Morris v. Morris, 1506-85

• Decision Date: 04 August 1987
• Docket Number: No. 1506-85,1506-85
• Citation: 4 Va.App. 539,359 S.E.2d 104
• Parties: Thomas W. MORRIS v. Amy F. MORRIS. Record
• Court: Virginia Court of Appeals

Page 104

359 S.E.2d 104

4 Va.App. 539

Thomas W. MORRIS v. Amy F. MORRIS.

Record No. 1506-85.

Court of Appeals of Virginia.

Aug. 4, 1987.

Samuel S. Jackson, Jr. (Sheehan & Jackson, Ltd., on brief), Fairfax, for appellant.

Howard M. Bushman, Arlington, for appellee.

Present: KEENAN, DUFF and MOON, JJ.

DUFF, Judge.

Thomas W. Morris appeals from a final decree awarding Amy F. Morris a no-fault divorce and ordering him to pay spousal support pursuant to a provision of a property settlement agreement. He also appeals from a judgment entered in the same cause finding him in arrears in spousal support in the amount of $14,315.69 and from a payment order entered on a garnishment summons styled Morris v. Morris v. United States of America. Mr. Morris seeks reversal on the following grounds: (1) because service upon him, a nonresident, was by publication, the trial court lacked in personam jurisdiction to order him to pay spousal support; (2) because the court lacked in personam jurisdiction, the judgment for arrearages in spousal support and the subsequent order of payment issued on the garnishment summons are void; and (3) because the wife's affidavit supporting the order of publication was fraudulent and effectively denied his due process rights, the trial court erroneously awarded a divorce. We find that the trial court did not have in personam jurisdiction and reverse the part of the divorce decree ordering spousal support and the judgment for support arrearages. Further, we find that the court had in rem jurisdiction and affirm the trial court's award of divorce.

I.

On July 13, 1984, the wife filed a bill of complaint in circuit court, seeking a divorce on the ground that the parties had lived separate and apart for more than six months. Her bill alleged that the two children born of the marriage were emancipated and that the husband was a nonresident of Virginia. She also requested that a January 5, 1980, property settlement agreement executed in Virginia be affirmed, ratified and incorporated by the trial court in its final decree.

The wife sought service by an order of publication and filed an affidavit stating that the husband's last known address was Rural Route 2, Creek Ridge 23, Beach [sic] Mountain, Banner Elk, North Carolina, 28604. The record discloses that a copy of the order was mailed to the husband at this address but was returned marked undeliverable. The husband did not appear in person or by counsel.

Based upon the report of a commissioner in chancery that the jurisdictional requirements had been met and that the parties had lived separate and apart without interruption for a period in excess of one year, the trial court entered a final decree of divorce on October 22, 1984. The decree incorporated all of the provisions of the property settlement agreement pursuant to Code § 20-109.1. The sixth clause of the agreement provided that the husband would pay spousal support, subject to increase whenever his military retirement pension was raised.

On January 17, 1985, the wife filed a motion for spousal support arrearages. The record contains the certified mail receipt bearing the husband's signature and a January 28, 1985, delivery date. After an ex parte hearing on the motion, the trial court entered a judgment against the husband for $14,315.69 in arrearages. Following the issuance of a garnishment summons and payment order against the pension, the husband made a special appearance requesting that the summons be quashed and that the final divorce decree and payment order be vacated. The trial court held that although service was by publication, the decree providing for spousal support was valid. This holding was based on the terms of the property settlement agreement that were incorporated by the court pursuant to Code § 20-109.1. The court found that the language in the twentieth clause, allowing "any court of competent jurisdiction" to incorporate the agreement, gave the court jurisdiction to enforce all terms of the agreement, including the payment of spousal support set forth in the sixth clause. We disagree.

Code § 8.01-328.1(A)(8)(i) provides that a court may exercise personal jurisdiction over a nonresident who has "executed an agreement in this Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth." However, this statute requires that service on the nonresident party be made by a law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located. In the present case, the wife proceeded by an order of publication, but did not personally serve the husband with process. 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); Hayes v. Hayes, 3 Va.App. 499, 502, 351 S.E.2d 590, 591 (1987). Accordingly, the trial court did not obtain personal jurisdiction over the husband and could not direct him to pay spousal support. See Hayes, 3 Va.App. at 505, 351 S.E.2d at 593.

Mrs. Morris, as did the trial court, relies on Code § 20-109.1 in support of the argument that in personam jurisdiction was obtained by the issuance of the order of publication. That section provides:

Any court may affirm, ratify and incorporate by reference in its decree dissolving a marriage or decree of divorce whether from the bond of matrimony or from bed and board, any valid agreement between the parties, or provisions thereof, concerning the conditions of the maintenance of the parties, or either of them and the care, custody and maintenance of their minor children, or establishing or imposing any other condition or consideration, monetary or nonmonetary. Where the court affirms, ratifies and incorporates by reference in its decree such agreement or provision thereof, it shall be deemed for all purposes to be a term of the decree and enforceable in the same manner as any provision of such decree. The provisions of this section shall apply to any decree hereinbefore or hereinafter entered affirming, ratifying and incorporating an agreement as provided herein. If such agreement provides for the maintenance of either of such parties, upon the remarriage of such party the court shall order that such maintenance shall cease as of the date of such marriage, and upon the death of such party the court shall order that no payment shall be made to the estate of such decedent on account of such provision, unless such agreement otherwise specifically provides in the event of remarriage or death. In any case where jurisdiction is obtained over a nonresident defendant by order of publication or by acceptance of service pursuant to § 20-99.1, any properly acknowledged and otherwise valid agreement entered into between the parties may be affirmed, ratified and incorporated as provided in this section.

We find that the effect of service on a nonresident by an order of publication pursuant to the last sentence of § 20-109.1 is to provide the court with in rem jurisdiction. In order for a court to obtain in personam jurisdiction and the respective ability to enforce personal monetary obligations, the nonresident must be personally served "by a law enforcement officer or other official authorized to serve process." Code § 8.01-328.1(A)(8)(i). Although this interpretation may result in the anomalous situation where support obligations become part of a decree, but remain unenforceable, we find that such an interpretation is necessary to prevent a conflict with Code § 8.01-328(A)(8)(i). Where possible, a statute should be construed with a view toward harmonizing it with other statutes. Blue v. Virginia State Bar ex rel. First District Committee, 222 Va. 357, 359, 282 S.E.2d 6, 8 (1981). Further, where a statute may be subject to two interpretations, the court will adopt the interpretation that will harmonize the statute with the fundamental law, especially where no violence is done to the language of the statute and...