Parra v. Parra

• Decision Date: 15 October 1985
• Docket Number: No. 0069-84,0069-84
• Citation: 336 S.E.2d 157,1 Va.App. 118
• Parties: Rafael D. PARRA v. Ana C. PARRA. Record
• Court: Virginia Court of Appeals

Page 157

336 S.E.2d 157

1 Va.App. 118

Rafael D. PARRA v. Ana C. PARRA.

Record No. 0069-84.

Court of Appeals of Virginia.

Argued May 29, 1985.

Decided Oct. 15, 1985.

Robert F. Zaniel, Springfield (Robert A. Ades & Associates, P.C., Springfield, on brief), for appellant.

Michael Kelley Maggs, Falls Church (Moyes & Maggs, Falls Church, on brief), for appellee.

Present: KOONTZ, C.J., and BAKER and KEENAN, JJ.

KEENAN, Judge.

The issues in this appeal are: (1) whether a circuit court retains jurisdiction to make an award of equitable distribution under Code § 20-107.3, after twenty-one days have elapsed from entry of a divorce decree, when a specific reservation of such a right is contained in the decree; and (2) whether in making its award of equitable distribution, the trial court should have honored the terms of a partial property settlement agreement entered into by the parties but repudiated by the wife. We conclude that the trial court properly retained jurisdiction but erred when it entered an award of equitable distribution inconsistent with the settlement agreement.

Appellant (husband) filed a bill of complaint against appellee (wife) on November 3, 1983, in the Circuit Court of Fairfax County, praying for a divorce and an award of equitable distribution under Code § 20-107.3. The wife filed a cross-bill for divorce on November 28, 1983, which also prayed for equitable distribution.

On December 16, 1983, the parties entered into a contract titled "Settlement Agreement" which set out their agreement regarding the disposition of the marital home and certain jointly-owned property in Colombia. The contract provided for sale of the marital home with sixty percent (60%) of the proceeds going to the wife and forty percent (40%) to the husband. It is undisputed that the wife later failed to acquiesce in the sale of the home.

In addition, it was agreed that "neither party shall attempt to assert a claim to the other party's share of the said proceeds." The parties further agreed that the Colombian property would be divided by having each party retain one condominium. On July 22, 1984, a decree was entered by the court awarding the wife a divorce on the grounds of desertion. In addition, the divorce decree concluded with the following:

ADJUDGED, ORDERED and DECREED that the Circuit Court of Fairfax County reserves the power to hear matters of equitable distribution, spousal and child support; and that said cause be and hereby is continued for such purposes.

An equitable distribution hearing was held on October 10, 1984, and concluded on October 29, 1984. At the beginning of the equitable distribution hearing, counsel for the husband tendered to the court a document entitled "Husband's Proposed Findings of Fact and Conclusions of Law." These proposed findings recited that the parties had entered into an agreement as to the disposition of the marital home and the Colombian property and asked the court to "decline to consider any further evidence as regards the equitable distribution of said property." A copy of the agreement was tendered along with this document. The court reviewed both documents.

During the course of the hearing, counsel for the husband noted, again, his position that the agreement of December 16, 1983, represented a final settlement between the parties of the items dealt with therein.

Counsel for the wife contended that the agreement could not be enforced by the court as it had not been incorporated into the decree of divorce. In addition, counsel for the wife urged the court to consider that the agreement was entered into the same day foreclosure proceedings had begun on the house, that it was close to Christmas, and that the wife had been under pressure. Although no evidence was offered on this point, her attorney argued that her mind had not been clear.

The court never made a specific ruling as to whether the agreement was valid; however, during the course of the hearing the court stated that counsel "need not deal with the property settlement agreement ... to as great a degree as we need to deal with what is going to work."

The court also made the following comments regarding the agreement:

Well, the problem that I have with the agreement is that in effect Mrs. Parra has disavowed the agreement and has not moved to have it incorporated.... At this point, there is an agreement which is to be treated as a contract if nothing else. I think that based upon that, it certainly would go to the issue of what the understanding between the parties was and how they lived under this agreement during the period of time, and I am going to allow him to go into it.

In making its final distribution award, the court did not mention the contract. The final order of distribution was consistent with the contract as to the Colombian properties. However, in awarding the marital home to the wife, the court went against the express terms of the contract. No reason for deviating from the contract was given by the court.

The first issue we address is the trial court's authority to reserve jurisdiction over equitable distribution matters beyond twenty-one days from entry of the decree of divorce. Though this issue was not raised by either party, it is well settled that questions of jurisdiction may be raised at any time. Smith v. Smith, 200 Va. 77, 82, 104 S.E.2d 17, 22 (1958). Further, subject matter jurisdiction cannot be conferred as a result of either party failing to raise the issue. Catron v. Bostic, 123 Va. 355, 360, 96 S.E. 845, 846 (1918).

A question of jurisdiction is raised in this case by the wording of the equitable distribution statute. In pertinent part, that statute provided:

[U]pon decreeing a divorce from the bond of matrimony, the ocurt, upon motion of either party, shall determine the legal title as between the parties, and the ownership and value of all real and personal property of the parties and shall consider which of such property is separate property and which is marital property.

Code § 20-107.3(A) ¹

The question before us is whether the language of the statute compels the trial court to make its equitable distribution award at the same time the decree of divorce is entered. If it does, the court loses its jurisdiction over matters of equitable distribution once twenty-one days have elapsed from entry of the divorce decree. Rule 1:1.

This would be true regardless of any attempts by the court to reserve its jurisdiction. A decree is void if the judgment exceeded the power of the court, or if the mode of procedure employed by the court was not in accordance with the law. Lapidus v. Lapidus, 226 Va. 575, 579, 311 S.E.2d 786, 788 (1984); Watkins v. Watkins, 220 Va. 1051, 1054, 265 S.E.2d 750, 752-53 (1980).

In divorce suits, jurisdiction is purely statutory and cannot be acquired inferentially or through indirection. Lapidus, 226 Va. at 578, 311 S.E.2d at 788; Johnson v. Johnson, 224 Va. 641, 645, 299 S.E.2d 351, 353 (1983). Therefore, if the statute mandates a simultaneous determination of divorce and equitable distribution, the court had no authority to provide otherwise.

The issue has been dealt with in other states; however, each determination turned on the particular statute involved and the prior case law of the jurisdiction. ² For those reasons, the resolution of this problem is not aided significantly by examining the law of other states.

The statutory scheme adopted by the Virginia General Assembly in conferring equitable distribution jurisdiction upon the circuit courts contains no provision which expressly allows the circuit court to enter consecutive decrees on the subjects of divorce and equitable distribution. It is clear, however, that no decree of equitable distribution can be made before the parties are divorced. We believe this is implicit in the phrase "upon decreeing a divorce." This phrase defines the earliest time at which the court may award equitable distribution. It also is clear that under our statute the court is not empowered to make an award of equitable distribution unless requested to do so by either party. ³ Therefore, two prerequisites must be satisfied before the court can make an award of equitable distribution: (1) the court must decree a divorce; and (2) must also have before it a request by either party to make an award of equitable distribution.

In the present case, both parties moved for equitable distribution. Later, they asked the court to exercise that part of its subject matter jurisdiction that dealt with the divorce while reserving its jurisdiction over equitable distribution. We find nothing in the wording of Code § 20-107.3(A) to prevent the court from proceeding in this manner. ⁴

In defining "upon," within the context of this statute, we note first that, although former Code § 20-107 was worded somewhat differently than Code § 20-107.3(A), the words "upon decreeing a divorce" were not interpreted to mandate a simultaneous divorce and property decree. See Smith, 200 Va. at 86-87, 104 S.E.2d at 24. We do not believe they should be given a more restrictive interpretation under Code § 20-107.3(A).

Our conclusion is supported by use of the word "upon" in two other phrases contained in Code § 20-107.3(A). First, as noted above, equitable distribution is only made "upon request of either party." The legislature could not have intended to require an immediate award of equitable distribution "at the time of" the request. Such a literal interpretation would necessarily lead to awards of equitable distribution before the final divorce decree, which is clearly not permitted by the statute.

Second, the legislature has now provided that Virginia courts of proper jurisdiction also may award equitable distribution "upon the filing with the court ... of a certified copy of a final divorce decree obtained without the Commonwealth." Code § 20-107.3. Despite use of the word "upon" in this provision, it is clear that a court...