Wroblewski v. Steven T. Russell Steven T. Russell

• Decision Date: 17 June 2014
• Docket Number: 1313–13–4.,Record Nos. 1308–13–4
• Citation: 63 Va.App. 468,759 S.E.2d 1
• Court: Virginia Court of Appeals
• Parties: Karen A. WROBLEWSKI, f/k/a Karen A. Russell v. Steven T. RUSSELL Steven T. Russell v. Karen A. Russell.

63 Va.App. 468

759 S.E.2d 1

Karen A. WROBLEWSKI, f/k/a Karen A. Russell

v.Steven T. RUSSELL

Steven T. Russell

v.Karen A. Russell.

Record Nos. 1308–13–4, 1313–13–4.

Court of Appeals of Virginia, Alexandria.

June 17, 2014.

Susan Leslie Fraser (Law Office of S. Leslie–Fraser, on briefs), for Karen A. Wroblewski, f/k/a Karen A. Russell.

James A. Watson, II (Colleen M. Haddow; Colten Cummins Watson & Vincent, P.C., on briefs), for Steven T. Russell.

Present: ALSTON and McCULLOUGH, JJ., and ANNUNZIATA, S.J.

McCULLOUGH, Judge.

Karen A. Wroblewski, formerly Karen A. Russell (wife) and Steven T. Russell (husband) appeal a final order of divorce. Wife argues the trial court erred by (1) awarding her spousal support for a limited period of time when she clearly established her ongoing need for, and the ability of husband to pay, spousal support; (2) awarding her spousal support in tapering amounts without evidence that, in the future, her need for support would diminish or that husband's ability to pay would “reasonably likely ... be impaired”; (3) entering the final order of divorce and denying her motion for reconsideration in violation of the United States Bankruptcy Court's Order of Stay; (4) awarding spousal support when factor 8 of Code § 20–107.1(E) could not be determined pending resolution of her Chapter 7 bankruptcy petition; (5) refusing to grant her motion for continuance when her counsel withdrew and in light of her inability to retain new counsel absent the continuance; (6) considering her marital history in determining the equitable distribution and spousal support awards since her prior marriages were not relevant to a determination of her financial assets or ability to support herself; (7) ordering her, in violation of her right to file taxes as “married filing separately,” to pay $30,000 of the nearly $300,000 income tax debt that husband incurred by failing to timely file his income tax returns; and (8) awarding husband all the retirement funds earned during the course of the marriage. Husband argues the trial court erred by (1) awarding spousal support to wife after granting his motion to strike wife's complaint for divorce because the trial court did not have jurisdiction to make such an award in the absence of a valid pleading before the trial court; and (2) ordering him to pay wife's health insurance premiums in the absence of either a statutory or jurisdictional basis for the entry of such award. We reverse on the issue of spousal support and otherwise affirm the trial court.

BACKGROUND

Husband and wife married on April 29, 2000 and separated on January 2, 2010. On May 2, 2011, wife filed a complaint for divorce and requested, in part, “support and maintenance, pendente lite, as well as permanent periodic support and maintenance, lump-sum support, and/or a reservation to petition for same in futuro, pursuant to Section 20–107.1 of the Code.” Husband filed an answer and counterclaim, to which wife responded. Wife's answer to husband's counterclaim did not include a request for spousal support.

On September 12, 2011, the trial court awarded wife pendente lite spousal support of $20,625 per month.¹ In January 2012, wife filed for bankruptcy protection, necessitating a continuance of the case. Husband filed a motion for relief from the automatic bankruptcy stay. On May 17, 2012, the United States Bankruptcy Court for the Eastern District of Virginia entered an order holding that:

The divorce proceeding is stayed to the extent that the divorce proceeding seeks to determine the division of property that is property of the bankruptcy estate. This does not prevent an equitable distribution hearing (including all state court matters leading up to such hearing) or order considering or taking into account property that is property of the estate in a monetary award. However, property of the bankruptcy estate may not be ordered to be transferred, conveyed, encumbered or otherwise affected.

Wife sought a continuance on June 25, 2012, which the court denied on July 25, 2012. On the eve of trial, on July 30, 2012, wife filed an emergency motion for a continuance. She alleged she had checked herself into the psychiatric unit of a hospital and that she was not presently mentally competent to participate in a judicial proceeding. The court continued the case, although it later learned that wife had checked herself out on July 31, the day after the continuance was granted. The court later granted wife another continuance due to the illness of her attorney. That same counsel withdrew on November 20, 2012 as a result of the illness. At that point, trial was scheduled to begin on February 1 and 4, 2013. On January 7, 2013, acting pro se, wife sought another continuance to find substitute counsel. After it was denied, she renewed it again at trial. In denying the motion, the court observed that

The subject proceeding had fully matured for adjudication by July of 2012. The nature of the second continuance Motion and the questionable credibility of the Plaintiff through later disclosed facts gave this Court great cause for concern. It appeared at that time that the Wife was using any mechanism possible to stay the proceedings. The Husband claimed the Wife was motivated to delay trial adjudication due to the substantial pendente lite support she was receiving. Hence, when she made additional continuance motions thereafter, the Court considered delay to be an ulterior motive of the Wife.

Wife represented that “if given more time,” she would obtain counsel. “In light of her previous delays,” the court concluded, “her representations had doubtful credibility. After nearly two years, the Husband was entitled to have his case adjudicated.”

At the conclusion of wife's evidence at trial, husband made a motion to strike wife's complaint for divorce because she failed to corroborate her grounds for divorce. Husband further argued that, if the trial court were to grant his motion to strike wife's complaint, then it should likewise strike wife's request for spousal support. The trial court granted husband's motion to strike wife's bill of complaint but declined to strike wife's request for spousal support, stating, “As to whether or not the claim for spousal support could remain alive after granting the motion to strike, I'm just going to take that portion of the case under advisement.”

On February 26, 2013, the trial court issued its letter opinion. Under the subsection titled “Divorce,” the trial court stated that wife failed to offer any evidence to support entry of a final decree of divorce in her favor and, “[a]s a result, her complaint was dismissed on a Motion to Strike the Evidence.” Instead, husband was granted a no-fault divorce based on his counterclaim. Under the letter's subsection titled, “Support,” the trial court found, among other things, that wife had requested spousal support in her complaint, that she had been receiving pendente lite spousal support, and that it would consider wife's request for spousal support because it had been raised as an issue. Referencing the legal reasoning underlying its decision to award wife spousal support, the trial judge specifically noted that “[n]either case law nor the applicable statute require[s] the prevailing party to raise the issue in its pleadings, only that at least one of the parties raise the support issue to allow the subject to be adjudicated.” (emphasis in original). After considering the factors in Code § 20–107.1(E), the trial court awarded spousal support to wife such that she received $5,000 per month for twelve months, $3,000 per month for the following twelve months, and $1,500 per month for twelve months thereafter. It further ordered husband to pay wife's health insurance premiums for a period of eighteen months.

In addition, the trial court considered the factors in Code § 20–107.3, and determined that the former marital residence was in foreclosure, awarded wife the Florida condominium in which her mother had a life estate, awarded husband his Morgan Stanley Brokerage account and stock options, awarded wife her bank accounts, and divided the personal property and vehicles. The trial court also held that husband was responsible for his Morgan Stanley loans and ordered wife to reimburse husband $30,000 for the IRS tax debt he had incurred.

Wife filed objections to husband's proposed final decree and filed an alternative final decree. On June 17, 2013, the trial court issued a letter opinion stating that it had considered her objections, but denied them. The trial court entered a final order of divorce on June 18, 2013. Wife filed a motion for reconsideration, which the trial court denied. Each party filed objections to the final order of divorce. These appeals followed.

ANALYSIS

I. Spousal support—Husband's first assignment of error

Husband argues that a written demand for spousal support is a necessary precondition for the award of such support. Once the trial court struck the only pleading that contained wife's demand for spousal support, he contends, the court could no longer proceed to award her any spousal support. Consequently, it was error for the court to do so. Wife argues that the trial court, acting with the powers of a court of equity, could still award wife support notwithstanding the fact that the court struck the one pleading that contained her demand for spousal support. We agree with husband.

We review this question of law de novo on appeal. Harrell v. Harrell, 272 Va. 652, 656, 636 S.E.2d 391, 393 (2006).

“ ‘Fundamental rules of pleading provide that no court can base its judgment or decree upon a right which has not been pleaded and claimed.’ ” Fadness v. Fadness, 52 Va.App. 833, 843, 667 S.E.2d 857, 862 (2008) (quoting Boyd v. Boyd, 2 Va.App. 16, 18, 340 S.E.2d 578, 580 (1986)). “ ‘Pleadings are as essential as proof, the one being unavailing without the other. A decree can not be entered in the absence of pleadings upon...