Key v. Key, Record No. 1079-04-1 (VA 12/14/2004)
| Decision Date | 14 December 2004 |
| Docket Number | Record No. 1079-04-1. |
| Court | Virginia Supreme Court |
| Parties | ANDREA CATHERINE WILLIAMS KEY v. JAMES DARREN KEY, II. |
Appeal from the Circuit Court of Isle of Wight County, Rodham T. Delk, Jr., Judge.
Mary Elizabeth Davis (Hofheimer/Ferrebee, P.C., on brief), for appellant.
Archer L. Jones, II (Jones & Jones, P.C., on brief), for appellee.
Present: Judges Elder, Clements and Senior Judge Overton.
Andrea Catherine Williams Key (mother) appeals from a decision of the Circuit Court of Isle of Wight County holding that it had continuing jurisdiction to consider the issue of custody of the two children born of her marriage to James Darren Key, II, (father) and awarding father custody. Mother contends the court lost jurisdiction after awarding custody of the children to her because the court's handwritten custody order was a final order, all parties left the state of Virginia, and Virginia's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not thereafter authorize it to exercise jurisdiction. Father contends this Court cannot consider mother's appeal because she has failed to present a sufficient record to permit review. He also opposes the appeal on the merits and seeks an award of attorney's fees.
We hold the trial court's April 22, 2003 order awarding custody to mother was a final order and that the court lacked authority based solely on that order to exercise continuing jurisdiction over the child custody matter. We reverse and remand to the trial court to take evidence relevant to the issue of father's residence and any other basis upon which subject matter jurisdiction may rest. Because we reverse, we deny father's request for an award of attorney's fees.
Mother contends the trial court's order of April 22, 2003, although handwritten, was a final order within the meaning of Rule 1:1 and that, absent a statutory basis for the renewed exercise of jurisdiction over custody and visitation, the court lost jurisdiction to modify the April 22, 2003 order following expiration of 21 days from the date of its entry. We agree.
As we noted in Vokes v. Vokes, 28 Va. App. 349, 504 S.E.2d 865 (1998),
Under Rule 1:1, a trial court is divested of jurisdiction over a matter twenty-one days after the entry of a final order unless within the twenty-one-day period it enters an order suspending or vacating the final order.
"Neither the filing of post-trial or post-judgment motions, nor the court's taking such motions under consideration, nor the pendency of such motions on the twenty-first day after final judgment is sufficient to toll or extend the running of the 21-day period prescribed by Rule 1:1 . . . ."
D'Alessandro[ v. Commonwealth], 15 Va. App. [163,] 166, 423 S.E.2d [199,] 201 [(1992)] (quoting [Sch. Bd. v.] Caudill Rowlett Scott, Inc., 237 Va. [550,] 556, 379 S.E.2d [319,] 323 [(1989)]). Once the twenty-one-day period of Rule 1:1 has expired without an intervening order tolling the running of the time period, every action taken by a court thereafter to alter or vacate the final order is a nullity unless one of the limited exceptions to the preclusive effect of Rule 1:1 applies.
Id. at 357-38, 504 S.E.2d at 869 (citation omitted).
In Vokes, the trial court ruled from the bench that Mr. Vokes would receive custody of the parties' two sons and later, on July 3, 1997, entered an order reflecting its ruling. Id. at 353, 504 S.E.2d at 867. By the time the date for the hearing on the entry of the order arrived, Mrs. Vokes had filed a motion for reconsideration and asked the court to delay entering the order "`so that [Mrs. Vokes's] appeal time doesn't start running.'" Id. "In an apparent attempt to satisfy both parties' requests, the trial court amended the final paragraph of the order." Id. at 353-54, 504 S.E.2d at 867. Instead of providing that "this cause shall remain on the docket of this Court for monitoring the visitation," the court changed the language to read that "this cause shall remain on the docket of this Court for further hearing." Id. at 354, 504 S.E.2d at 867-68 (emphases added). The court "emphasized that it would not rehear the case" at the hearing on mother's motion for reconsideration, and following that hearing on August 8, 1997, it denied Mrs. Vokes's motion for reconsideration and ordered her to pay Mr. Vokes's attorney's fees. Id. It entered an order reflecting those rulings on October 20, 1997. Id. On November 12, 1997, Mrs. Vokes "filed her first and only notice of appeal of any of the orders of the trial court." Id.
We noted that "[a] court order is final if it `"disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness for giving effect to the [ruling], and leaves nothing to be done in the cause save to superintend ministerially the execution of the decree."'" Id. at 355, 504 S.E.2d at 868 (quoting Street v. Street, 24 Va. App. 14, 19, 480 S.E.2d 118, 121 (1997) (quoting Richardson v. Gardner, 128 Va. 676, 683, 105 S.E. 225, 227 (1920))). Applying these principles, we held that the trial court's order of July 3, 1997 granting Mr. Vokes's motion to transfer custody "was `final' because it disposed of the entire subject matter raised in father's motion and granted all of the relief contemplated." Id. at 356, 504 S.E.2d at 868. We found the trial court's amending of the order to attempt to prevent the appeal period from running was insufficient because the order "contained no language stating that the trial court either modified or vacated the order or suspended its execution." Id. at 357, 504 S.E.2d at 869.
Similarly here, on April 22, 2003, the trial court entered an order resolving all child custody, visitation, and other disputed issues between the parties. The court gave no indication that the order was "modified" or "vacated" or that its "execution" was "suspended." Id. The trial court merely directed the clerk, via a post-it note affixed to the handwritten order, "NOT [TO] RECORD THIS ORDER," indicating "A TYPEWRITTEN ORDER WILL BE SUBSTITUTED."1 (Emphasis added). The trial court indicated in subsequent argument that the purpose for this instruction was that Further, despite the court's instruction to the clerk not to record the order, father and the trial court proceeded as if the custody and visitation provisions of the order were in full force and effect as of April 22, 2003. Although mother did not comply with the order's visitation provisions, she has never taken the position that the handwritten order was not effective as of its entry on April 22, 2003.
Following the court's entry of the handwritten order on April 22, 2003 the only thing remaining to be done was to substitute a typewritten order so that the substance of the court's ruling regarding custody and visitation could be spread in the order book in a more formal and readable fashion, a purely ministerial act. Thus, the April 22, 2003 order was a final order in that it "`"dispose[d] of the whole subject, [gave] all the relief that was contemplated, provide[d] with reasonable completeness for giving effect to the [ruling], and [left] nothing to be done in the cause save to superintend ministerially the execution of the decree."'" Id. at 355, 504 S.E.2d at 868. The fact that mother still had counsel of record in these proceedings, to whom husband provided copies of his subsequent motions to modify custody, did nothing to provide the court with jurisdiction for purposes of a separate, new modification proceeding.
Because the court lost jurisdiction of the initial custody and visitation determination following expiration of 21 days from the date of entry of the April 22, 2003 order, it lacked the power to revisit the issue unless it again obtained, under the UCCJEA, jurisdiction to modify the terms of the initial custody and visitation order.
Under settled law, the divorce court generally has continuing jurisdiction to revise or alter its decree concerning the custody and maintenance of minor children. See Code § 20-108; Lutes v. Alexander, 14 Va. App. 1075, 1083, 421 S.E.2d 857, 862 (1992). Scott v. Rutherfoord, 30 Va. App. 176, 182, 516 S.E.2d 225, 228 (1999).
However, when the children and one or both parents no longer live in the state, the court's jurisdiction to modify custody and visitation orders may be affected. In order to "avoid jurisdictional competition and conflict with courts of other states in matters of child custody and to promote cooperation with courts of other states so that a custody decree [or modification thereof] is rendered in a state which can best decide the issue in the interest of the child," Middleton v. Middleton, 227 Va. 82, 93, 314 S.E.2d 362, 367 (1984), Virginia adopted a form of the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJA has now been superseded by the UCCJEA, a form of which has also been adopted in Virginia.
Virginia courts interpreted the UCCJA to provide that `"When the courts of more than one state have jurisdiction . . . , priority in time determines which court will proceed with the action"' unless the court with priority determines under `"the inconvenient forum principle of [the Act]"' that the courts of another state are better suited to resolve the dispute. Scott, 30 Va. App. at 186, 516 S.E.2d at 230 ; see Code § 20-146.13 off. cmt. ( that under UCCJA, "[c]ontinuing jurisdiction was not...
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