Erickson-Dickson v. Erickson-Dickson, ERICKSON-DICKSON

• Decision Date: 30 April 1991
• Docket Number: ERICKSON-DICKSON,No. 0301-89-4,0301-89-4
• Citation: 404 S.E.2d 388,12 Va.App. 381
• Parties: Herbertv. Linda A. Record
• Court: Virginia Court of Appeals

Page 388

404 S.E.2d 388

12 Va.App. 381

Herbert ERICKSON-DICKSON v. Linda A. ERICKSON-DICKSON.

Record No. 0301-89-4.

Court of Appeals of Virginia.

April 30, 1991.

Dabney Overton, Jr., Harrisonburg, for appellant.

Glenn M. Hodge (Wharton, Aldhizer & Weaver, on brief), Harrisonburg, for appellee.

Present: BAKER, COLEMAN and DUFF, JJ.

COLEMAN, Judge.

In this appeal we consider what remedy, if any, is available to a party seeking equitable distribution in a divorce proceeding where the trial court has violated the directives of Code § 20-107.3 by granting a divorce and deferring equitable distribution. Here, the trial court granted a divorce and retained jurisdiction to consider the equitable distribution issues without a joint motion of the parties and without a determination that such action was clearly necessary because of the complexities of the property interests. We hold that the appellant did not make a timely objection to the trial court's ruling or its failure to make the required findings of fact; therefore, we hold that the appellant has failed to preserve for appeal the question whether the evidence was sufficient to support the ruling to bifurcate the issues and to retain jurisdiction to consider equitable distribution issues.

Linda Erickson-Dickson filed a bill of complaint for divorce, alleging that she and her husband had lived separate and apart without cohabitation for more than one year. Herbert Erickson-Dickson alleged in his cross-bill that his wife had deserted him. Both parties requested equitable distribution of the marital property. The trial court granted the wife a final divorce on December 22, 1987, on the grounds that the parties had lived separate and apart for more than one year; the court retained the matter on the docket and "reserved" the issues of equitable distribution, which it referred to a special commissioner. The husband, by counsel, made a general objection to granting the wife a divorce and endorsed the decree as "seen and objected to." He did not specify any particular aspect of the court's findings or rulings which he considered objectionable, and he did not object to or appeal the decree of divorce or the ruling in the decree which deferred adjudication of the equitable distribution issues. ¹ The wife, who had prevailed on her ground for divorce and who also had no objection to the court's action deferring adjudication of equitable distribution issues, did not object to the court's rulings or decree.

The special commissioner received evidence and filed a report in which he recommended that the wife be granted a monetary award of $8,634.38, provided the court had the authority to do so. The special commissioner raised for the first time whether the 1986 amendment to Code § 20-107.3 precluded further adjudication of the equitable distribution issues. ² Thereafter, the husband objected to the trial court receiving the commissioner's recommendation of a monetary award and considering further the issue of equitable distribution, asserting for the first time that the trial court no longer had jurisdiction to adjudicate the issues of equitable distribution. He argued there, as he does here, that the 1986 amendment to Code § 20-107.3 is cast in terms that the court "may retain jurisdiction" in the final divorce decree, provided the two mandatory prerequisites are met. When, as here, those conditions have not been met, he argues, the court is divested of its jurisdiction to consider further the equitable distribution issues.

The trial court ruled that the requirements of Code § 20-107.3 which are necessary to retain jurisdiction had been substantially satisfied because both parties had requested equitable distribution in their pleadings, both had contemplated that equitable distribution issues would be considered further by the court, and both parties were in agreement that the matter would be referred to a special commissioner. These facts were sufficient, the court ruled, to satisfy the joint motion requirement. Also, the trial court ruled that, although no specific finding of complexity of the property issues was made part of the decree, such a finding was implicit in its ruling and was supported by evidence that most of the marital assets were located in Maryland.

We hold that when the trial court granted a final divorce and "reserved" the issue of equitable distribution, this action by the trial court did constitute a ruling to retain jurisdiction. However, the fact that both parties requested equitable distribution in their pleadings or "contemplated" that the issue would be considered further does not satisfy the requirement of the 1986 amendment to Code § 20-107.3 that in order to enter a final decree of divorce and retain jurisdiction to decide the equitable distribution issues, the parties must jointly make a motion for the court to do so. To hold otherwise would authorize courts to bifurcate the divorce and property issues based solely upon the fact that both parties had requested equitable distribution in their pleadings. Separate requests in the pleadings by the parties is not the equivalent of a joint motion to defer consideration of an issue after granting the final decree of divorce. Moreover, the husband purported to "object" to the entry of the divorce decree which contained the decree of reference; his actions cannot be considered a joint motion for the court to decide the divorce issue but retain equitable distribution jurisdiction. Also, the trial court's ruling, after the fact, that its finding regarding the complexity of the property issues was implicit in its decision to retain jurisdiction does not satisfy the statutory requirement that the court find a clear necessity for retaining jurisdiction because of the complexities of the parties' property interests. Thus, we hold that, although the trial court did purport to retain jurisdiction to decide equitable distribution issues after granting a final divorce, it did not comply with the requirements of the statute since it failed to make the necessary findings of fact for its ruling and, to the extent it attempted to make those findings after the ruling, the evidence was insufficient to support them. We must, therefore, consider the effect of the trial court's ruling "to retain jurisdiction" when the court failed to make the findings required by statute.

The husband contends that Code § 20-107.3 defines and limits the jurisdiction which trial courts have to grant a final divorce and to retain jurisdiction to decide equitable distribution. He argues that the failure of the court to follow the procedure divested the court of further jurisdiction. The effect of a trial court failing to follow the statute, he argues, is that the court loses jurisdiction to grant equitable distribution after granting a final divorce. He also argues that he was not required to object to the court's failure to make findings or to its ruling which exceeded its jurisdiction.

The history of Code § 20-107.3 and the cases leading to the 1986 amendment are instructive. The 1986 amendment followed our decision by a divided panel in Parra v. Parra, 1 Va.App. 118, 336 S.E.2d 157 (1985). In Parra, we held that Code § 20-107.3, as it then read, authorized trial courts to grant a final divorce but to defer adjudication of the monetary award issues until some future date. Id. at 127, 336 S.E.2d at 162; see also Morris v. Morris, 3 Va.App. 303, 306, 349 S.E.2d 661, 663 (1986). The 1986 amendment by the General Assembly, following the Parra holding, imposed specific limitations upon when a court may bifurcate the divorce issues and defer adjudication of the equitable distribution questions. Ostensibly, the 1986 amendment was enacted, among other reasons, to prevent a litigant or the trial court from delaying adjudication of property issues after a final divorce as a means of using economic pressure to compel one or both parties to make a forced settlement of those or other issues, such as support or custody. See Parra, 1 Va.App. at 130-135, 336 S.E.2d at 163-66 (Baker, J., concurring in part and dissenting in part); see also Bifurcation, 7 Equitable Distribution Journal 71 (1990) (discussing benefits and disadvantages of courts being able to bifurcate the issues). The legislature determined in the 1986 amendment that trial courts may bifurcate the divorce issue and incidental questions of distribution of marital property only where the parties jointly make a motion to do so and then only when the court determines that such action is clearly necessary because of the complexities of the parties' property interests. Otherwise, the divorce issues and equitable distribution determinations, which issues are also interdependent with the spousal and child support determinations, Code §§ 20-107.1(8) and 20-107.2(2)(g), must be adjudicated contemporaneously.

When, however, the trial court fails to abide by the limitations of Code § 20-107.3, either because the parties did not join in the motion to bifurcate or because the court did not determine that the parties' property interests are complex, the statute is silent as to whether the divorce is void or voidable because complete relief was not granted, or whether, how, or to what extent the parties may proceed with equitable distribution.

We must determine the purpose and scope of the 1986 amendment by construing the intent of our legislature from the language and "the plain meaning of the words" used in the statute. Marsh v. City of Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987). Where the intent is clear from a plain reading of the amendment to the statute, we must adhere to the pronouncement of our legislature. While the clear intent of the legislature was to compel courts to obtain the consent of both parties before the courts could grant a divorce and defer equitable distribution issues, and then only when complex property interests created a clear necessity for doing...