Gibson v. Gibson

• Decision Date: 19 January 1988
• Docket Number: No. 1307-86-1,1307-86-1
• Citation: 5 Va.App. 426,364 S.E.2d 518
• Parties: Steven Bradley GIBSON v. Diana Kay GIBSON. Record
• Court: Virginia Court of Appeals

Page 518

364 S.E.2d 518

5 Va.App. 426

Steven Bradley GIBSON v. Diana Kay GIBSON.

Record No. 1307-86-1.

Court of Appeals of Virginia.

Jan. 19, 1988.

Louis W. Kershner, Virginia Beach, for appellant.

Moody E. Stallings, Jr. (Deborah L. Rawls, Stallings & Richardson, Virginia Beach, on brief), for appellee.

Before BAKER, COLEMAN and HODGES, JJ.

COLEMAN, Judge.

Steven Gibson appeals a final decree from the Circuit Court of the City of Virginia Beach awarding his wife spousal support and attorney's fees. He asserts that a Tennessee divorce based on in personam jurisdiction precludes the wife from seeking spousal support in a subsequent Virginia proceeding. He contends that because the Virginia court was required to give full faith and credit to the Tennessee divorce decree which had found Diana Gibson guilty of cruelty, Code § 20-107.1 precludes an award from him of permanent maintenance or spousal support. Alternatively, he argues that in setting the amount of spousal support, the commissioner and the court failed to consider all the enumerated factors of Code § 20-107.1. Finally, Mr. Gibson urges that, assuming the first two issues are resolved in his favor, the award of attorney's fees against him as the prevailing party cannot stand. Finding no error, we affirm the trial court's rulings.

Diana Kay Gibson filed a bill of complaint for divorce in the Circuit Court of Virginia Beach. The trial court ruled that Article IV § 1 of the U.S. Constitution required that full faith and credit be given to a Tennessee divorce obtained by Steven Gibson; however, the trial court also ruled that Virginia courts are not precluded from litigating the parties' property and support rights and not bound by the finding of cruelty of Diana Gibson. The Circuit Court of Virginia Beach awarded Mrs. Gibson four hundred fifty dollars per month permanent spousal support and six hundred dollars per month child support.

Full faith and credit given a foreign divorce decree extends to "property and support rights, as well as to marital status, where the divorce court had personal jurisdiction over the parties." Newport v. Newport, 219 Va. 48, 54, 245 S.E.2d 134, 138-39 (1978); see Vanderbilt v. Vanderbilt, 354 U.S. 416, 423, 77 S.Ct. 1360, 1365, 1 L.Ed.2d 1456 (1957). However, when a divorce is granted ex parte the decree is binding only insofar as it terminates the marital status of the parties. Personal rights, which include property and support rights in divorce cases, may not be adjudicated by a court lacking in personam jurisdiction. Vanderbilt, 354 U.S. at 418, 77 S.Ct. at 1362. This time-honored precept has been a recognized procedural due process requirement of jurisdiction since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877). Subsequent to a foreign ex parte proceeding, courts which obtain personal jurisdiction over both parties and subject matter may adjudicate the parties' personal rights in a separate proceeding, provided that the state's law empowers its courts to do so. See Newport, 219 Va. at 56, 245 S.E.2d at 139. In Virginia, spousal support and maintenance and property rights are cognizable legal obligations which do survive an ex parte foreign divorce decree. Id. The ability to litigate marital status and personal rights separately from the divorce proceeding in another jurisdiction has become widely known as the doctrine of divisible divorce.

To determine whether granting full faith and credit to the Tennessee decree precluded the Virginia trial court from awarding spousal support, we must examine the procedural background of the case. Mrs. Gibson filed her bill of complaint for divorce on February 28, 1985, in the Circuit Court for the City of Virginia Beach. The parties had lived together in Virginia Beach at the time of their last separation. Two days later on March 2, 1985, Mrs. Gibson was personally served in Virginia with a Tennessee bill of complaint which Mr. Gibson had filed in the Chancery Court of Lauderdale County. ¹ Mr. Gibson was personally served in Tennessee with Mrs. Gibson's bill of complaint on April 1, 1985. ²

Mrs. Gibson retained Virginia and Tennessee counsel. Her Tennessee attorney filed pleadings contesting the Tennessee court's subject matter jurisdiction on the basis of Mr. Gibson's Tennessee residence and domicile. The Tennessee court denied the motion to dismiss on May 10, 1985. It is not clear under Tennessee law whether Mrs. Gibson's unsuccessful challenge of subject matter jurisdiction constituted a general appearance subjecting her to the in personam jurisdiction of the court. See Dickey v. Turner, 49 F.2d 998 (6th Cir.1931) (a federal case holding that "by familiar principles" such appearance conferred personal jurisdiction); but see Patterson v. Rockwell International, 665 S.W.2d 96, 100 (Tenn.1984) (a party may appear specially to challenge the jurisdiction of the court and a general appearance will not be implied in the absence of specific proceedings other than a challenge to jurisdiction). However, the Circuit Court of Virginia Beach found that the Tennessee court had personal jurisdiction over Mrs. Gibson. Although we find no support in the record or under Tennessee law to conclude that Tennessee had in personam jurisdiction over Mrs. Gibson, nevertheless, for purposes of this appeal we accept that finding which the appellee does not challenge. Moreover, the law is clear that if the Tennessee court did not have in personam jurisdiction the "divisible doctrine" would clearly apply and appellant's challenge would be unfounded. See Newport, 219 Va. at 53, 245 S.E.2d at 137-38.

On June 24, 1985, without notice to Mrs. Gibson or her counsel as required by Tenn.R.Civ.P. 55.01, ³ Mr. Gibson appeared by counsel in Tennessee and moved for and obtained default judgment. The Tennessee default decree granted a final divorce to Mr. Gibson based on cruelty and adjudicated the parties' property and support rights. However, upon proof that no notice of the divorce hearing was given to Mrs. Gibson or her counsel of record, the Tennessee court on April 24, 1986, pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure ⁴ granted her motion to set aside that part of the decree pertaining to support and property rights but sustained the divorce award. The decree specified that "neither the defendant nor her counsel received notice of the setting [of the default judgment proceeding and] ... all other portions of the Decree of Divorce [other than the grant of an absolute divorce] are hereby set aside as to property rights, child support and alimony." At the time of the hearing to set aside, Mr. Gibson had remarried.

In the meantime, Mr. Gibson filed a motion in the Virginia Beach proceeding to dismiss Mrs. Gibson's bill of complaint for divorce for lack of subject matter jurisdiction. The trial court denied the motion on June 24, 1985, the same day the final divorce decree was entered in Tennessee. In September 1985, with both parties personally present, a commissioner in Virginia Beach heard evidence on Mrs. Gibson's bill of complaint and filed his report with the circuit court.

Adopting the commissioner's recommendation, the court ruled that the Tennessee divorce decree would be given full faith and credit but that Mrs. Gibson's rights in Virginia to litigate the incidences of divorce--child custody, spousal and child support, and property rights--were not barred by the Tennessee decree. The court adopted the commissioner's child custody and support recommendations and modified the spousal support recommendation to $450 per month. Attorney's fees and court costs were assessed against Mr. Gibson for $995.

The commissioner found in his report that Mrs. Gibson "was properly and personally before the court in Tennessee and should have had the opportunity to have her day in Court regarding spousal support." The trial court made no specific finding whether the Tennessee court had in personam jurisdiction. It ruled that the Tennessee decree should be accorded full faith and credit but that the Tennessee decrees and judicial proceedings did not preclude Virginia from adjudicating Mrs. Gibson's claim for spousal support. We agree.

A foreign divorce decree is presumed to be a verity. A party seeking to limit a foreign decree's effect or to assail the credit to be accorded it has the burden of establishing its limitations or invalidity. Williams v. North Carolina, 325 U.S. 226, 233-34, 65 S.Ct. 1092, 1096-97, 89 L.Ed. 1577 (1945). Both personal and subject matter jurisdiction will be presumed if necessary to give effect to the decree unless the record clearly establishes otherwise. Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 159, 96 L.Ed. 146 (1951) (quoting Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649 (1938)). However, a court giving full faith and credit to a foreign decree or judicial proceeding is not required to grant more efficacy to the decree than did the foreign court which granted it. Mr. Gibson contends that because the Tennessee court had in personam jurisdiction and could have litigated all support and property rights, Virginia cannot act on those issues. The appellant would have the Virginia court give the foreign divorce decree greater effect that the Tennessee court gave its own decree. In fact, the appellant's argument would have the effect of nullifying the Tennessee decree which set aside all portions of the divorce decree as to property rights, child support and alimony.

Furthermore, not only did the Tennessee court ultimately vacate its decision to consider support and property rights but, more important, it ruled that neither the defendant nor her counsel received the required notice of the proceeding in which the personal rights were to be adjudicated. The Circuit Court of Virginia Beach, as required accorded that ruling full faith and credit. The Tennessee court, in setting aside those parts of its prior decree which were...