De Haan v. De Haan

• Decision Date: 04 August 2009
• Docket Number: Record No. 2268-08-4.
• Citation: 54 Va. App. 428,680 S.E.2d 297
• Parties: David Dwight DE HAAN v. Lynn Carol Holmbeck DE HAAN.
• Court: Virginia Court of Appeals

680 S.E.2d 297

54 Va. App. 428

David Dwight DE HAAN v. Lynn Carol Holmbeck DE HAAN.

Record No. 2268-08-4.

Court of Appeals of Virginia, Alexandria.

August 4, 2009.

Demian J. McGarry (Gwendolyn Jo M. Carlberg, Alexandria; The Carlberg Law Firm, on brief), for appellant.

John K. Cottrell (Cottrell Fletcher Schinstock Bartol & Cottrell, on brief), for appellee.

Present: HUMPHREYS, HALEY and ALSTON, JJ.

HALEY, JR., Judge.

I. INTRODUCTION

In this domestic relations appeal, David de Haan ("father") argues the lower court erred in (1) holding the decision of a judge pro tempore was final instead of pendente lite; (2) granting Lynn Holmbeck de Haan ("mother") primary custody of the parties' children; and (3) declining to enjoin mother from relocating with the children.¹ We hold that since the appealed order did not resolve all issues, it represents an interlocutory order over which we have limited subject matter jurisdiction. We further hold that since the order left several main objects of the divorce suit unresolved, the order did not adjudicate "the principles of a cause" within the meaning of Code § 17.1-405(4) and, therefore, we lack subject matter jurisdiction to hear the appeal. Accordingly, we dismiss the appeal without prejudice.

II. BACKGROUND

The parties married in 1994. They have three surviving minor daughters. Another daughter died as an infant. The parties separated in March 2008. At that time, father was a stay at home parent and a retired major in the Army. Mother was a lieutenant colonel on active duty in the Air Force Reserve.

Mother filed a complaint seeking divorce in the Circuit Court of Fairfax County. In addition to the divorce, mother's complaint sought custody of the children, child support, equitable distribution, exclusive possession of the marital home and contribution for its maintenance, an injunction against wasting or dissipating marital assets, and attorney fees. Father soon filed his answer to the complaint and a counterclaim for divorce, essentially seeking the same relief as mother. Both parties filed motions for pendente lite relief, and father filed a motion to enjoin mother from relocating with the children to the Norfolk/Virginia Beach area.

The parties agreed to employ a judge pro tempore to adjudicate certain areas more rapidly than they would otherwise be heard under the circuit court scheduling system. The circuit court agreed to the designation of a judge pro tempore and entered an order appointing one on May 12, 2008. The order provided the judge pro tempore with authority to adjudicate nine areas:

i. Enforcement of Pre-Marital Agreement of January 20, 1994

ii. Custody of the parties' three children

iii. Child support

iv. Designation of parenting time between Plaintiff and Defendant

v. Injunction from removal of the parties' three children from the County of Fairfax, Virginia, by the Plaintiff

vi. Injunction from dissipating or wasting marital assets or increasing debts for which the other party would be liable vii. Exclusive use of the marital home

viii. Exclusive use of the Nissan Quest mini-van

ix. Award of attorney's fees, expenses, and costs[.]

The order contained no limit on the authority over these areas. Rather, the order stated that the "judge pro tempore is hereby appointed and vested with the same power and authority and is hereby charged with the same duties as to the cause in and as to which he is appointed as if he were a regularly elected and qualified judge of this Court." Brian Hirsch was the person appointed judge pro tempore.

The judge pro tempore held an ore tenus hearing on the relevant issues from May 15-16, 2008, during which he received extensive evidence. Given our disposition of this case, most of it lacks relevance to this opinion. However, we note that while mother worked at the Pentagon at the time of the hearing, she had received orders to transfer to a position in Norfolk, Virginia. Mother's testimony suggested that after accepting the Norfolk position, she had no choice but to move. She testified: "Whether or not I'm awarded custody, I have to move to Norfolk. I've taken an oath and I've accepted the orders." While working in Norfolk, mother planned to reside in nearby Virginia Beach. These facts have relevance to this opinion because of father's desire to prohibit mother from relocating there with the children.

The judge pro tempore issued a letter opinion on May 21, 2008. The opinion noted the nine areas of jurisdiction the parties asked him to resolve. It also stated "[t]he parties filed cross motions for pendente lite relief, essentially asking for the above [nine areas of] relief."

Concerning custody, the judge pro tempore considered each of the statutory factors and awarded the parties joint legal custody, with mother having primary physical custody of the children during the school year and shared custody during the summer. The letter opinion contained a detailed custody arrangement, which was obviously intended to be final on the issue.² When deciding custody, the judge pro tempore assumed mother's relocation as inevitable, specifically noting it was from "Mother's impending move that this hearing arose." The judge pro tempore again indicated the inevitability of mother's move in another portion of his opinion. In spite of this inevitability, the judge pro tempore granted mother permission to relocate with the children to the Norfolk/Virginia Beach area, denying father's request for an injunction prohibiting the move.

Regarding child support, the judge pro tempore accepted evidence presented by mother on father's earning potential and imputed father with income "after September 30, 2008," with the amount of income depending on where father chose to reside. If father remained in the Northern Virginia area it would be $75,000, or if he moved to be closer to the children it would be $65,000. The letter opinion called for child support to be "recalculated in September 2008."

Other relevant provisions of the letter opinion involve the disposition of marital property. The judge pro tempore enjoined the parties from "dissipating or wasting marital assets," but expressly declined "to classify the parties' assets as marital, separate and hybrid." The judge pro tempore asked the parties to consult each other on items mother could remove from the marital house. However, the opinion held that "[t]o the extent the parties are unable to agree upon a temporary division of property ... this issue shall be decided at the parties' equitable distribution hearing or by written agreement." The opinion also stated that "removal of such furnishings by the Mother or the retention of same by the Father shall be without prejudice to a final disposition of the parties' furnishings."

The judge pro tempore concluded by requesting mother's counsel to prepare an order consistent with the letter opinion.

Asserting the hearing and letter opinion of the judge pro tempore involved only a pendente lite disposition on custody, father's counsel requested the circuit court to set a date for a final hearing on custody. A Fairfax County Circuit Court judge denied this request on a calendar control form dated June 3, 2008. The order stated: "Defendant's Request for hearing date on custody. It's opposed. This has been decided." That judge also wrote: "Appeal from final order of Judge Pro Tem is to the Court of Appeals."

The next relevant order was entered on July 14, 2008. The order set a final hearing on equitable distribution, spousal support, and child support for April 8, 2009. However, at oral argument, this Court learned this hearing was stayed pending the appeal.

The judge pro tempore's letter opinion was reduced to an order on August 22, 2008, entitled "FINAL ORDER BY JUDGE PRO TEMPORE" ("the August 22 order"). The order essentially granted the relief provided by the letter opinion verbatim, with only minor variation. One of those variations to note is that the order called for mother to submit evidence of her child care costs at her new home.³ This was to facilitate the recalculation of child support in September 2008 called for by the letter opinion and incorporated into the order.

Father now appeals from the August 22 order.

III. ANALYSIS

It is axiomatic that before considering the merits of a case, we must have subject matter jurisdiction. Comcast of Chesterfield County, Inc. v. Bd. of Supervisors of Chesterfield County, 277 Va. 293, 299, 672 S.E.2d 870, 872 (2009). Orders entered without subject matter jurisdiction are void and may be challenged "`directly or collaterally by all persons, anywhere, at any time, or in any manner.'" Singh v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001) (quoting Barnes v. Am. Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925)). Moreover, "`[n]either the consent of the parties, nor waiver, nor acquiescence can confer'" subject matter jurisdiction. Bd. of Supervisors of Fairfax County v. Bd. of Zoning Appeals of Fairfax County, 271 Va. 336, 344, 626 S.E.2d 374, 379 (2006) (quoting Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 894 (1947)). This Court may raise the issue sua sponte. Earley v. Landsidle, 257 Va. 365, 371, 514 S.E.2d 153, 156 (1999).

"The Court of Appeals of Virginia is a court of limited jurisdiction." Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va.App. 595, 599, 471 S.E.2d 827, 829 (1996). We possess subject matter jurisdiction over only those classes of cases specified by statute. Id.

Our jurisdiction over domestic relations disputes comes from Code § 17.1-405. In relevant part, that section provides us jurisdiction over:

3. Any final judgment, order, or decree of a circuit court involving:

* * * * * * c. Custody;

d. Spousal or child support;

e. The control or disposition of a child;

* * * * * *

4. Any interlocutory decree or order entered in any of the cases listed in this section (i) granting, dissolving, or denying an injunction or (ii)...