Rochelle v. Rochelle

• Decision Date: 29 April 1983
• Docket Number: No. 801640,801640
• Citation: 302 S.E.2d 59,225 Va. 387
• Court: Virginia Supreme Court
• Parties: Carl Arthur ROCHELLE v. Connie Gale Peters ROCHELLE. Record

Page 59

302 S.E.2d 59

225 Va. 387

Carl Arthur ROCHELLE v. Connie Gale Peters ROCHELLE.

Record No. 801640.

Supreme Court of Virginia.

April 29, 1983.

Gwendolyn Jo M. Carlberg, Washington, D.C., for appellant.

Gilbert K. Davis, McLean (Davis & Gillenwater, McLean, on brief), for appellee.

Before CARRICO, C.J., COCHRAN, POFF, COMPTON, STEPHENSON and RUSSELL, JJ., and HARRISON, Retired Justice.

RUSSELL, Justice.

This child custody dispute raises issues concerning jurisdiction and venue. Carl and Connie Rochelle were married in 1971. Two children were born of the marriage: Carl, III, born in 1972 and John, born in 1974. The marriage proved unhappy, and the parties separated in 1976. They executed a property settlement agreement which purported to vest custody of the children in the mother and give liberal visitation rights to the father. In practice, however, the children divided their time equally between the parents.

From December 1977 until June 1978, the parties again lived together at the family home in Arlington County in an effort to reconcile. On June 15, 1978, while the children were visiting their grandmother in North Carolina, the mother left the home in Arlington and moved into an apartment in Washington, D.C. At the end of the summer of 1978, the parents enrolled the boys in private schools in the Washington area. They spent five nights each week with their mother and the other two nights with their father. No judicial proceedings had yet been instituted.

In October 1978, without notice to the father, the mother, at a time when the children were visiting her, moved with them to Franklin County. She enrolled them in local schools, found a place to live near the home of her parents, and sought local employment. On October 24, 1978, she filed a "Petition" in the Circuit Court of Franklin County, naming the father as defendant praying for custody of both children and for child support, spousal support, and costs.

On the following day, October 25, the father filed a petition for custody in the Juvenile and Domestic Relations Court of Arlington County. ¹ He appeared in that court personally, and secured entry of an ex parte order vesting temporary custody of both boys in him pending a further hearing to be held on November 15, 1978. The father later testified that he was aware on October 25 that the children had been removed to Franklin County, but that he did not know of the pendency of the mother's petition in the circuit court there. He was not served with the Franklin County process until November 6.

On November 14, 1978, both parties appeared, with counsel, in the Circuit Court of Franklin County. The father's counsel brought the Arlington temporary custody order to the court's attention, but the court ruled that it had jurisdiction to make a custody determination because the children were physically present within its territorial jurisdiction. The court awarded physical custody to the mother, directed that investigations and reports be made by appropriate officers in both Arlington and Franklin Counties, and continued the case for further proceedings. Upon learning of the circuit court case in Franklin County, the Arlington Juvenile and Domestic Relations Court took no further action except to forward the requested report to Franklin County.

On June 27, 1979, the father filed a bill of complaint for a "no-fault" divorce in the Circuit Court of Franklin County in which he prayed for custody of both boys. On July 6, 1979, at a consolidated hearing, the court took evidence on both the custody and divorce issues. It entered a decree on August 10 which granted the father a "no-fault" divorce, expressly ruled that the mother was not entitled to spousal support, and reserved the issues of custody, child support, and visitation rights for future determination. The appropriate officers in Franklin County were directed to make monthly unannounced visits to the mother's home and to make monthly reports to the court. Temporary custody was continued in the mother. On June 25, 1980, the court held a final custody hearing. It awarded permanent custody of the boys to the mother, with visitation rights to the father. The father assigns error to the court's assumption of jurisdiction, its ruling that Franklin County was the proper venue, and its conclusion that an award of custody to the mother was in the best interests of the children.

We first consider the question of jurisdiction. Code § 16.1-241(A) purports to vest in the juvenile and domestic relations district courts exclusive original jurisdiction of all cases involving child custody, visitation, and control. But Code § 16.1-241(A)3 expressly makes this jurisdiction concurrent with that of the circuit courts "as provided in § 16.1-244 hereof." Code § 16.1-244 provides in pertinent part:

Nothing contained in this law shall deprive any other court of the concurrent jurisdiction to determine the custody of children upon a writ of habeas corpus under the law, or to determine the custody, guardianship, visitation or support of children when such custody, guardianship, visitation or support is incidental to the determination of causes pending in such courts, provided that when a circuit court shall have taken jurisdiction thereof by entry of an order relating to custody, guardianship, visitation or support the juvenile and domestic relations district courts shall be divested of such jurisdiction.

We construed the predecessors of these sections to mean that the circuit court had no original jurisdiction to entertain a petition for custody, support and visitation, unless such matters were incidental to a cause properly within the court's jurisdiction. Poole v. Poole, 210 Va. 442, 171 S.E.2d 685 (1970). Here, however, the mother filed a petition in the Circuit Court of Franklin County which prayed for an award of spousal support. This constitutes a claim for separate maintenance, which is within the inherent jurisdiction of a court of equity, even in the absence of statute. Wilson v. Wilson, 178 Va. 427, 17 S.E.2d 397 (1941). ² Thus the circuit court had jurisdiction to entertain the mother's petition as a suit for separate maintenance and to determine all questions of child custody, support and visitation as matters incidental thereto.

The fact that the mother's claim for spousal support proved unsuccessful is immaterial. The court's jurisdiction, once properly invoked, is not lost because a part of the claim on which it was based is later found to lack merit. When a court acquires jurisdiction of the subject matter and the person, it retains jurisdiction until the matter before it has been fully adjudicated. Laing v. Commonwealth, 205 Va. 511, 514, 137 S.E.2d 896, 899 (1964). Because the Franklin County Circuit Court had jurisdiction of the subject matter and the proper persons, the Arlington juvenile court was "divested of such jurisdiction" by Code § 16.1-244.

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