Kotara v. Kotara, Record No. 0290-09-4 (Va. App. 11/3/2009)

• Decision Date: 03 November 2009
• Docket Number: Record No. 0290-09-4.
• Parties: GARY M. KOTARA v. KATHLEEN M. KOTARA
• Court: Virginia Court of Appeals

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GARY M. KOTARA v. KATHLEEN M. KOTARA

Record No. 0290-09-4.

Court of Appeals of Virginia, Alexandria.

November 3, 2009.

Appeal from the Circuit Court of Fairfax County, Jane Marum Roush, Judge.

James Ray Cottrell (John K. Cottrell; Cottrell Fletcher Schinstock Bartol & Cottrell, on briefs), for appellant.

Dorothy M. Isaacs (Surovell Markle Isaacs & Levy, PLC, on briefs), for appellee.

Present: Judges Kelsey, Petty and Senior Judge Clements

MEMORANDUM OPINION^*

JUDGE WILLIAM G. PETTY

Appellant, Gary M. Kotara ("husband"), challenges the trial court's refusal to relinquish its jurisdiction over spousal support in this case. Husband presents four questions on appeal, yet, taken as a whole, they all raise one issue: whether the trial court must relinquish its continuing and exclusive jurisdiction over spousal support matters provided by Code § 20-88.43:2 because neither husband nor wife currently reside in Virginia. As explained in this opinion, we do not have jurisdiction over this appeal because it arises from neither a final order nor an appealable interlocutory order within the meaning of Code § 17.1-405.

I.

Because the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as necessary to the parties' understanding of the disposition of this appeal. We view those facts and incidents, and all reasonable inferences flowing therefrom, in the light most favorable to wife, the party prevailing below. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003).

At the time of their divorce, the parties lived in Fairfax County, Virginia. Accordingly, the Circuit Court for the County of Fairfax adjudicated all of the issues involved with the parties' divorce and entered the final divorce decree in this case, which included, among other things, an award of spousal support. In 2007, Kathleen Kotara (wife) moved with her children to Heath, Texas. In 2008, husband moved his legal residence to Houston, Texas, although he lives and works in Dubai. Subsequently, husband filed a "Petition to Modify Parent-Child Relationship" in Texas. As a part of that petition, husband included a motion to decrease spousal support based on an alleged material change in circumstances. The Texas court refused to make a determination regarding spousal support in light of Virginia's exclusive and continuing jurisdiction over the spousal support award as provided by the Uniform Interstate Family Support Act.

Husband, however, argued that it was inconvenient for him to litigate spousal support matters in Virginia. He accordingly moved the Circuit Court for the County of Fairfax to "dismiss support issues from this court's jurisdiction" based on Code § 8.01-265, Virginia's forum non conveniens statute.¹ The trial court denied his motion, and this appeal followed.

II.

The Virginia Court of Appeals is a court of limited jurisdiction. Lewis v. Lewis, 271 Va. 520, 524, 628 S.E.2d 314, 316 (2006) (citing Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996)). Unless a statute confers subject matter jurisdiction to this Court over an appeal, we are without authority to review that appeal. Id. at 524-25, 628 S.E.2d at 316-17. Code § 17.1-405 grants subject matter jurisdiction to the Court of Appeals over "any final . . . decree of a circuit court involving . . . divorce; [and] any interlocutory decree . . . entered in [such] cases . . . adjudicating the principles of a cause." Code § 17.1-405(3)(a), (b) and -405(4)(ii).

Our Supreme Court has explained many times that "a final order or decree is one that disposes of the entire matter before the court, giving all the relief contemplated and leaving nothing to be done by the court except the ministerial execution of the court's order or decree." McLane v. Vereen, 278 Va. 65, 70, 677 S.E.2d 294, 297 (2009) (citing Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 293, 301, 672 S.E.2d 870, 873 (2009); Upper Occoquan Sewage Auth. v. Blake Constr. Co., 275 Va. 41, 60, 655 S.E.2d 10, 21 (2008); James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137 (2002); Daniels v. Truck & Equip. Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964)). An interlocutory order adjudicates the principles of a cause when:

"the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case in order to ascertain the relative rights of the parties, with regard to the subject matter of the suit."

Moreno v. Moreno, 24 Va. App. 227, 231, 481 S.E.2d 482, 485 (1997) (quoting Pinkard v. Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991)).

Here, however, there was never a cause properly before the trial court. While it is true that Code § 20-88.43:2 gives the trial court "continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation[,]" that power is limited by the other provisions in the Code. Code § 20-109(A) states that "[u]pon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper." (Emphasis added). Moreover, Code § 20-109(B) states "[t]he court may consider a modification of an award of spousal support for a defined duration upon petition of either party filed within the time covered by the duration of the award." (Emphasis added).

Here, husband never petitioned the trial court for a modification of spousal support. In other words, he did not plead his case and place the actual issue before the court. "Fundamental rules of pleading provide that no court can base its judgment or decree upon a right which has not been pleaded and claimed." Boyd v. Boyd, 2 Va. App. 16, 18, 340 S.E.2d 578, 580 (1986) (citing Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935)). Moreover, a trial court cannot enter an order "in the absence of pleadings upon which to found [the order], and if so entered it is void." Id.; see also Harrell v. Harrell, 272 Va. 652, 656, 636 S.E.2d 391, 394 (2006) ...