Hayes v. Hayes, 0722-85

Decision Date16 December 1986
Docket NumberNo. 0722-85,0722-85
CourtVirginia Court of Appeals
PartiesBonnie Czeck HAYES v. John G. HAYES. Record

Willafay McKenna (Lawrence A. Martin; Peninsula Legal Aid Center, Williamsburg, on brief), for appellant.

Edward L. Chambers, Jr. (Prentis Smiley, Jr.; Smiley & Chambers, Yorktown, on briefs), for appellee.

Present: BAKER, HODGES and MOON, JJ.


Bonnie Czeck Hayes (wife) appeals from a decree entered in the Circuit Court of York County (trial court) on May 1, 1985, dismissing her motion for an award of support from John G. Hayes, (husband). The trial court held that the provisions of Code § 8.01-322 constituted a time-bar to wife's claim for support because the claim was filed more than two years subsequent to the entry of a final decree of divorce between the parties.

On February 21, 1974, husband filed a bill of complaint in the trial court seeking a divorce from wife on the ground that the parties had lived separate and apart for more than two years and no reconciliation appeared probable. The bill alleged that wife was not a resident of Virginia at the time the bill was filed. It stated her place of residence as Heidelberg 69, Postfach 704, Germany.

After filing the bill, husband also filed an affidavit which asserted that wife was a resident of Germany whose last known address was that set forth in the bill of complaint. Wife was served by publication. 1 The record does not disclose how wife obtained knowledge of the suit; however, the stipulated facts reveal that pursuant to "the written request of defendant," the trial court, on April 23, 1974, entered an order staying the case until June 1, 1974. The order read, in part: "Personal appearance is not required." During oral argument in this court, counsel for husband conceded that wife did not make a personal appearance in the trial court. On April 15, 1974, depositions in support of the bill of complaint were taken, without notice to wife, in the City of Newport News, Virginia, and in the City of Vaihingen, Germany. The depositions were filed in the clerk's office of the trial court on April 16, 1974 and April 23, 1974, respectively. The record does not disclose whether the latter deposition was filed before or after the April 23, 1974 order staying further proceedings.

Although the trial court's order of April 23, 1974 stayed the proceedings until June 1, 1974, a final decree of divorce was entered without notice to wife by the trial court on May 21, 1974. Neither the divorce decree 2 nor the agreed facts explain the reason for the entry of the order ten days prior to June 1, 1974. 3

On June 13, 1984, the trial court entered an order granting wife's motion to reinstate the matter on the court's docket. Pursuant to notice by wife, a hearing was held on wife's claim that when granting the divorce the trial court did not have jurisdiction to rule on matters involving spousal support and, therefore, wife's right to seek such support under Code § 20-107.1 survived the divorce decree. The trial court held that wife's request for support was time-barred by the provisions of Code § 8.01-322 and its predecessor sections. A decree documenting that ruling was entered on May 1, 1985.

Code § 8.01-322 reads as follows:

If a party against whom service by publication is had under this chapter did not appear before the date of judgment against him, then such party or his representative may petition to have the case reheard, may plead or answer, and may have any injustice in the proceeding corrected within the following time and not after:

1. Within two years after the rendition of such judgment, decree or order; but

2. If the party has been served with a copy of such judgment, decree, or order more than a year before the end of such two-year period, then within one year of such service.

For the purpose of subdivision 2 of this section, service may be made in any manner provided in this chapter except by order of publication, but including personal or substituted service on the party to be served, and personal service out of the Commonwealth by any person of eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy.

Wife was not served with a copy of the May 21, 1974 decree of divorce.

The Supreme Court has held that a person proceeded against by order of publication is a party not served with process within the meaning of the Code of Virginia. See Mitchell v. Mitchell, 227 Va. 31, 36, 314 S.E.2d 45, 47-48 (1984); Robertson v. Stone, 199 Va. 41, 45, 97 S.E.2d 739, 743 (1957). Thus, where service by publication is the method by which personal jurisdiction is sought to be obtained in a divorce proceeding, a jurisdictional question inevitably arises. See Newport v. Newport, 219 Va. 48, 245 S.E.2d 134 (1978). In Newport, husband, a resident of Nevada, obtained a Nevada divorce from wife, a Virginia resident, who thereafter instituted a support action against him in Virginia. As in the case before us, wife was served by publication and did not appear in person or by counsel. The only relief granted husband in the Nevada divorce was a decree dissolving the bonds of matrimony between the parties. Husband pled the Nevada divorce in bar to the proceeding in Virginia. In rejecting that plea, the Supreme Court applied the divisible divorce doctrine, gave full faith and credit to the Nevada decree insofar as it terminated the marital status of the parties, but held that the Nevada court was without power to adjudicate the question of alimony. Id. at 54-55, 245 S.E.2d at 138-39.

In summary, the duty of a husband to support his wife is a moral as well as a legal obligation; it is a marital duty, in the performance of which the public as well as the parties are interested; it is a duty which is an incident to the marriage state and arises from the relation of the marriage; and it is an inherent right which may be asserted in a divorce suit or in an independent suit therefor.

The right of a wife to support is of such importance to the community, as well as to the parties, that it survives an absolute divorce obtained by her husband in an ex parte proceeding in another state.

Id. at 56, 245 S.E.2d at 139 (citations omitted).

In reaching this conclusion, the Supreme Court relied in substantial part on Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957). In that case, the parties separated while living in California. Wife subsequently moved to New York and became a legal resident of that state. Thereafter, husband sued for divorce in Nevada, obtaining service by publication. Wife did not appear in person or by counsel. The Nevada divorce decree provided that both husband and wife were "freed and released from the bonds of matrimony and all duties and obligations thereof." Wife brought an action for support against husband in New York where husband owned property. In defense thereof, husband contended that New York was required to give full faith and credit 4 to the Nevada decree. Justice Black, writing for the majority, said:

In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561 ... this Court decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no power to terminate a husband's obligation to provide her support as required in a...

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  • Estate of Hackler v. Hackler
    • United States
    • Virginia Court of Appeals
    • 21 Septiembre 2004
    ...cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.'" Hayes v. Hayes, 3 Va.App. 499, 505, 351 S.E.2d 590, 593 (1986) (quoting Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1362, 1 L.Ed.2d 1456 (1957)). "No order can be ......
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    ...Bailey , 172 Va. 18, 21-22, 200 S.E. 622 (1939) ; Morris v. Morris , 4 Va. App. 539, 542, 359 S.E.2d 104 (1987) ; Hayes v. Hayes , 3 Va. App. 499, 502, 351 S.E.2d 590 (1986) ; W. Hamilton Bryson, Virginia Civil Procedure § 3.02[3][d][iii], at 3-26 (5th ed. 2017) ("Process by publication is ......
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    ...e.g., Shoustari v. Zamani, 39 Va.App. 517, 519, 574 S.E.2d 314, 315 (2002). 10. We fail to perceive the relevance of Hayes v. Hayes, 3 Va.App. 499, 351 S.E.2d 590 (1986), the lone case cited by father on this issue. The issue in Hayes was whether wife's claim for spousal support was time-ba......
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