Harrison v. Harrison

• Court: Virginia Court of Appeals
• Writing for the Court: Present: HUMPHREYS, HALEY and ALSTON, JJ.
• Citation: Harrison v. Harrison, 58 Va.App. 90, 706 S.E.2d 905 (Va. App. 2011)
• Decision Date: 05 April 2011
• Docket Number: Record No. 1005–10–4.
• Parties: Robert Curtis HARRISONv.Tammy Miriam HARRISON.

58 Va.App. 90

706 S.E.2d 905

Robert Curtis HARRISON

v.Tammy Miriam HARRISON.

Record No. 1005–10–4.

Court of Appeals of Virginia, Alexandria.

April 5, 2011.

Morgan A. Cox (Marcia M. Maddox; Katharine W. Maddox; The Maddox Law Firm, P.C., on briefs), Vienna, for appellant.Laura C. Dove (Betty A. Thompson, Arlington; Jennifer A. Bradley; Betty A. Thompson, Ltd., on brief), for appellee.Present: HUMPHREYS, HALEY and ALSTON, JJ.ALSTON, Judge.

Robert Curtis Harrison (husband) appeals from the trial court's determination that it lacked in personam jurisdiction over Tammy Miriam Harrison (wife) and thus could not adjudicate the personal and property rights arising from husband's and wife's marriage. On appeal, husband asserts that the trial court erred by: 1) denying in personam jurisdiction over wife based upon Code § 20–146.8; 2) denying in personam jurisdiction over wife based upon Code § 8.01–328.1(A)(9); 3) refusing to find wife guilty of constructive fraud in determining the establishment of a matrimonial domicile in Virginia; 4) assigning greater weight to the credibility and evidence of wife over that of husband; and 5) sustaining a relevance objection barring presentation of testimony regarding wife's alleged extramarital relationship. We disagree with husband on each of the issues raised and, for the reasons that follow, affirm the ruling of the trial court.

I. Background

Husband and wife were married on March 18, 2000, in Colorado. In 2001 and 2005, respectively, husband and wife had two daughters. In 2004, the parties relocated to Brussels, Belgium, for husband's work. Subsequently, the parties began experiencing marital difficulties. In the spring of 2008, husband learned he would have to relocate to Virginia for his employment. As a result of their marital difficulties, wife decided she would not relocate to Virginia with husband, but rather would remain in Belgium with the children. In May 2008, the parties purchased a home in Tervuren, Belgium.

In June 2008, husband, wife, and their children traveled to Virginia to look for a house.¹ Even during this endeavor, the parties continued to experience marital difficulties. Ultimately, in July 2008, wife and the children moved into the Tervuren residence. On July 2, 2008, husband sent an email to a friend in which he discussed his marital problems, stating,

I am less optimistic now for [wife] and I[sic] than before. [Wife] has refused all requests for joint marriage counseling. She has also taken to lying to me and about me as necessary to rationalize any issue or challenge as to why she shouldn't squat in Belgium with the kids....

... I am near [the] breaking point where I will need to actively oppose her citizenship request and sue for divorce....

At the end of July 2008, the parties' children were registered to attend the International Montessori School Tervuren for the 2008–2009 academic school year. Husband appeared before the local government authority in Belgium and provided his written permission for the parties' children to be registered to reside with wife in Belgium.

Husband relocated to Virginia in August 2008. Wife and the children also flew to Virginia at the same time to assist husband in finding a home and to assist husband during his treatment for a medical condition. Wife and husband both met with a realtor. A car was purchased, and wife arranged for car insurance for the parties, on which both husband and wife were named as insured. On August 28, 2008, wife and the children returned to Belgium, and husband signed a contract to purchase a residence in Virginia. Wife did not sign any documents relating to the purchase of the Virginia residence, and she was not named as an owner on the deed. Husband testified that, after he purchased the house, wife shipped items from Belgium to the Virginia residence.

In October 2008 and December 2008, wife and the children returned to Virginia to visit husband. In January 2009, wife informed husband that she had filed a suit for divorce in Belgium. In response, husband communicated via email to his marriage counselor that wife had advised him in early January 2009 that she did not want to move to Virginia and was preparing a custody agreement where he could have visitation during the summer and on holidays. In addition, husband paid consultation fees to two different divorce attorneys in early February 2009. Wife and the children again visited husband in Virginia in February 2009.

In May 2009, wife purchased round-trip tickets for herself and the children to travel to Virginia on June 26, 2009, with a return to Belgium on August 23, 2009. Wife also purchased a round-trip ticket for herself to fly back to Belgium on July 4, 2009, with a return date to Virginia of August 15, 2009, so she could retrieve the children.

Wife and the children arrived in Virginia on June 26, 2009. Subsequently, as per her original plan, wife returned to Belgium on July 4, 2009. On the same day, husband sent wife an email advising her that he would not return the children to her, and on July 28, 2009, husband filed a complaint for divorce and an emergency custody motion in the Circuit Court of Fairfax County.

Husband's emergency custody motion was set for hearing on August 14, 2009. On August 1, 2009, wife was served at the Tervuren residence with husband's complaint for divorce, civil summons, and the emergency custody motion. Wife then purchased a one-way ticket to come to Virginia on August 12, 2009, to participate in the custody hearing.

The custody hearing was postponed until August 20, 2009. At the August 2009 hearing, the circuit court found that Belgium was the “home state” of the parties' children and thus declined to exercise jurisdiction pursuant to Code § 20–146.12.²96 Immediately following the hearing, wife asked husband to return the children to her so she could take them back to Belgium on August 23, 2009. Husband refused to return the children, claiming he wished to take them to visit their grandfather in Texas. Ultimately, husband and wife agreed that husband would return the children to wife on August 25, 2009.

On August 21, 2009, wife filed a motion in the Circuit Court of Fairfax County (trial court) asking the court to decline to adjudicate issues related to the parties' divorce, alleging that it lacked in personam jurisdiction over wife.

On August 25, 2009, husband returned the children to wife as agreed. When wife met husband to receive the children, she was served with husband's complaint for divorce. Wife then returned with the children to Belgium.

On April 1, 2010, the trial court held a hearing on wife's claim that the court did not have in personam jurisdiction over her. At the hearing, husband attempted to question wife about, among other things, her alleged romantic relationship with another man in Belgium. According to husband, this evidence tended to prove wife's motivation for her actions. The trial court sustained wife's objection to this line of questioning on relevance grounds.

The trial court issued its ruling on April 7, 2010, holding that it lacked in personam jurisdiction over wife, finding Code § 20–146.8(A) controlled, thus rendering wife immune from service. In making this determination, the trial court found that

[a]lthough [wife] had originally planned to retrieve her children and return to Belgium with them after allowing visitation with [husband], ... the sole reason [wife] returned on August 12th, 2009[,] from Brussels to Virginia was to physically appear and contest the emergency custody petition in Fairfax which she, in fact, did.

The trial court also questioned husband's refusal to return the children to wife after the custody hearing, finding,

[Husband] testified that his sole reason was so that the children could spend time with their paternal grandparents who were ill. Regardless of his rationale, his unilateral decision and the convenient timing of it, he put [wife] in a Hobson's choice of either returning to Belgium without the children or remaining until she could convince [husband] to relinquish them.

The trial court also held that it lacked in personam jurisdiction over wife under Code § 8.01–328.1(A)(9). In so holding, the trial court stated that it credited the testimony of wife regarding her matrimonial domicile. It also made five specific factual findings:

[O]ne, that the Fairfax Station residence was in [husband's] name only and that [wife] never signed any offers or letters of ratification and was, in fact, in Belgium when the contract was ratified. Two, that [wife] and the children moved into the Belgium residence in June of 2008. [Husband] came to the United States. Three, the children were enrolled for the 2008–2009 academic year in Belgium[.] Four, ... [husband] signed a statement and in his own writing grant[ed] permission for the children to be registered and reside in Belgium. Five, that [wife] filed suit for divorce in Brussels in January of 2009 and said that she told [husband]. He denied having any knowledge of that. However ... it's clear that he did pay consultation fees to two different divorce attorneys in early February of 2009. And it's also clear that, in late January 2009, he communicated with his counselor that his wife had advised in early January 2009 that she did not want to move to Virginia and was preparing a custody agreement where he could have visitation in the summer and the holidays.

Finally, there was an e-mail that was introduced that [husband] communicated with his friend ... in July of 2008 that supports [wife's] testimony that, in the summer of 2008, she was not happy in the marriage and intended to remain in Belgium with the children.

After a denial of husband's motion for reconsideration, this appeal followed.

II. Analysis

A. In Personam Jurisdiction

Husband contends that the trial court erred in holding that it lacked in personam jurisdiction over wife under Code § 20–146.8 and Code § 8.01–328.1(A)(9)....