Erin Marie Coster Evans v. James August Evans, Jr.

• Court: Court of Appeals of Virginia
• Decided: July 21, 2020
• Docket: 1666193
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Russell and AtLee UNPUBLISHED

Argued by teleconference

ERIN MARIE COSTER EVANS MEMORANDUM OPINION* BY v. Record No. 1666-19-3 JUDGE RICHARD Y. ATLEE, JR. JULY 21, 2020 JAMES AUGUST EVANS, JR.

FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge

Mary T. Morgan (GoLightly Mulligan & Morgan, PLC, on briefs), for appellant.

James A. Evans (Evans & Bryant, PLC, on brief), for appellee.

Appellant Erin Marie Coster Evans (“wife”) appeals the circuit court’s decision that it

lacked in personam jurisdiction over James August Evans, Jr. (“husband”) at the time the divorce

decree was entered.1 Wife argues that the circuit court erred because it had jurisdiction over

husband via three different subsections of Code § 8.01-328.1, the Virginia “long arm” statute.

Wife also argues that the circuit court erred by modifying the divorce decree because it

retroactively modified a child support obligation. Finally, wife argues that the circuit court erred

in granting husband’s motion to reopen the original case in violation of Code § 8.01-322(1).

Because we agree that the circuit court lacked in personam jurisdiction over husband at the time

the divorce decree was entered, we affirm.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 We recognize that “former husband” and “former wife” would be more accurate, but we use less cumbersome titles in this memorandum opinion for ease of reference. I. BACKGROUND

“Under settled principles, we view the evidence in the light most favorable to the

prevailing party in the trial court, granting to that party the benefit of any reasonable inferences.”

Wright v. Wright, 61 Va. App. 432, 442 n.2 (2013).

Husband and wife married on September 11, 1999, in Hampton, Virginia. They had three

children during the marriage. The parties separated on or about May 31, 2004, and they last

lived together in Virginia Beach.

Following their separation, the parties, both represented by counsel, entered into a

property settlement agreement. Per the agreement, wife got sole legal custody of the children,

while husband was allowed visitation. Under the agreement, husband was obligated to pay

$1,000 per month in child support, and the agreement could be affirmed and incorporated into a

divorce decree. On June 22, 2005, husband signed the agreement before a notary public in

Virginia Beach.

Wife filed for divorce on December 29, 2005. In her pleading, she stated that she had

been a resident of Virginia for more than six months, that the parties last lived together in

Virginia Beach, and that husband’s last known residence was in Virginia Beach. The pleading

also stated that she had not had contact with husband since November 2005.

On the same day she filed for divorce, wife filed an affidavit for order of publication in

the circuit court. In the affidavit, she stated that she could not locate husband and that she had

exercised due diligence in trying to locate him. The circuit court issued the order of publication.

Wife and another witness were deposed in February 2006. Wife testified that she had not

had contact with husband since November 2005. She also claimed that he was behind in his

child support obligations under the agreement. Husband did not appear.

-2- The circuit court entered a final decree of divorce on May 21, 2006. The decree stated

that wife was a resident of Virginia and that husband’s last known address was in Virginia

Beach. It ratified, confirmed, approved, and incorporated the parties’ property settlement

agreement, and it ordered husband to pay the agreed-upon $1,000 per month in child support.

On May 23, 2019, husband filed a motion to reopen case on special appearance and to

grant relief. He acknowledged the circuit court in the divorce proceedings had in rem

jurisdiction to grant the divorce. But he argued that it did not have in personam jurisdiction to

order him to pay child support because he did not appear before the court in person or by

counsel. Thus, he argues the portion of the decree ordering him to pay child support is void.

Wife filed a motion to dismiss the motion to reopen2 the case, arguing that the circuit

court in the divorce proceedings had in personam jurisdiction over husband via Code

§ 8.01-328.1(A)(8)(i), (8)(iii), and (9) because he had executed an agreement in the

Commonwealth that required him to pay child support to a domiciliary of the Commonwealth,

because he fathered children in the Commonwealth, and because he maintained a matrimonial

domicile in the Commonwealth at the time of separation. She also argued that husband was

time-barred from reopening the case under Code § 8.01-322(1) and that the circuit court could

not retroactively modify child support.

The circuit court granted the motion to reopen the case. Following oral argument, the

circuit court issued a letter opinion stating that the circuit court in the divorce proceedings did

not have in personam jurisdiction over husband at the time the divorce decree was entered.

2 Wife also filed a motion for attorney’s fees and sanctions, arguing that husband only filed the motion to reopen the divorce case to delay a motion for show cause that she had filed in Virginia Beach. The show cause motion alleged husband owed $88,128.31 in arrears on his child support obligations. -3- Accordingly, it found that the portion of the divorce decree that ordered husband to pay support

was void ab initio. Wife now appeals to this Court

II. ANALYSIS

A. In Personam Jurisdiction and the Long Arm Statute3

Under Virginia law, service by order of publication confers upon a court in rem

jurisdiction. Cranford v. Hubbard, 208 Va. 689, 690-91 (1968). With in rem jurisdiction, a court

has jurisdiction to grant a divorce, even where one party does not appear. Morris v. Morris, 4

Va. App. 539, 543-44 (1987). But orders of support, including child support, require in

personam jurisdiction over the person obligated, Hayes v. Hayes, 3 Va. App. 499, 505 (1986),

and a circuit court does not generally obtain in personam jurisdiction to order support in a

proceeding initiated by order of publication, Morris, 4 Va. App. at 543-44.

Despite these principles, wife argues that Virginia’s long arm statute, Code § 8.01-328.1,

which is generally used to obtain in personam jurisdiction over nonresidents, gives the circuit

court in personam jurisdiction over husband, a resident, because the statutory definition of

3 Wife argues that the circuit court erred by granting the motion to reopen the case because Code § 8.01-322(1) places a time limit on when a case may be reopened after judgment in a case where service was made by an order of publication. Under Code § 8.01-322(1), a party may petition to have a case reheard within two years of the judgment. Since the divorce decree was entered in 2006 and husband did not file his motion until 2019, wife argues that the two-year time limit has expired. Yet husband did not petition to have the case reheard. He argued that the circuit court lacked jurisdiction. A court always has “power to determine whether it has jurisdiction.” Smith v. Commonwealth, 56 Va. App. 351, 357 (2010). Furthermore, we have previously concluded that Code § 8.01-322 applies only to cases “over which the trial court had jurisdiction.” Hayes v. Hayes, 3 Va. App. 499, 505 (1986) (finding wife was not barred from reopening case to seek support where the trial court in the divorce proceedings did not have in personam jurisdiction at the time of the divorce proceedings). Because the circuit court did not have in personam jurisdiction over husband, Code § 8.01-322(1) does not bar the circuit court from reopening the case. -4- “person” includes “an individual . . . whether or not a citizen or domiciliary of this

Commonwealth[.]” Code § 8.01-328. She argues that three provisions apply.

Issues of statutory interpretation are questions of law, which we review de novo.

Bergaust v. Flaherty, 57 Va. App. 423, 429 (2011). “The primary objective of statutory

construction is to ascertain and give effect to legislative intent.” Hines v. Commonwealth, 59

Va. App. 567, 573 (2012) (quoting Commonwealth v. Zamani, 256 Va. 391, 395 (1998)). To

determine the legislature’s intent, we look to the plain meaning of the words used in the statute,

Bergaust, 57 Va. App. at 431, “with reference to its subject matter, the object sought to be

attained, and the legislative purpose in enacting it[.]” Hines, 59 Va. App. at 573 (quoting

Esteban v. Commonwealth, 266 Va. 605, 609 (2003)).

Code § 8.01-328.1(A) provides, in relevant part,

A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:

....

8. Having (i) executed an agreement in this Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth . . . provided that proof of service of process on a nonresident party is made by law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located . . . or (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth;

9. Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein;

-5- Jurisdiction in subdivision 9 is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320. Jurisdiction under clause (iii) of subdivision 8 is valid only upon proof of personal service on a nonresident pursuant to § 8.01-320.

Wife concedes that each provision she points to contains a personal service requirement

for nonresidents, but she argues that those provisions do not apply to this case because husband

is a resident of Virginia. The language of those provisions, however, does not support her

interpretation.

Assuming husband is a resident as wife argues and meets the other requirements of the

provisions, the language of each service of process requirement makes clear that application of

the entire provision is conditional on the service of process requirement being met.4 Subsection

8(i) allows jurisdiction where a child support agreement has been entered with a domiciliary of

the Commonwealth “provided that proof of service of process on a nonresident” is made. Code

§ 8.01-328.1(A)(8)(i) (emphasis added). Subsections 8(iii) and 9 contain even stronger

language, with each stating that “[j]urisdiction is valid only upon” proof of the respective

nonresident service of process requirement. (Emphasis added.) Thus, by the express language

of each provision, jurisdiction only exists if the service of process requirement is met, and we

“presume[] ‘the legislature “chose, with care,” the specific words of the statute.’” Va. Emp’t

Comm’n v. Cmty. Alts., Inc., 57 Va. App. 700, 706 (2011) (quoting Kane v. Szymczak, 41

Va. App. 365, 371 (2003)). Wife’s interpretation asks us to ignore this statutory language, but

4 Wife relies on Mock v. Mock, 11 Va. App. 616 (1991), to argue that the husband was a domiciliary of Virginia at the time of the divorce and thus the circuit court had in personam jurisdiction over him pursuant to Code § 8.01-328.1. In Mock, the contested issue was the husband’s connection to Virginia at the time of separation. Here, the contested issue is the personal service requirement. Thus, Mock is inapposite to this issue. -6- we must give “reasonable effect to every word used.” Riverside Owner, L.L.C. v. City of

Richmond, 282 Va. 62, 69 (2011) (quoting Antisdel v. Ashby, 279 Va. 42, 48 (2010)).

Each of the service of process provisions makes specific reference to “nonresidents,”

which would preclude their application to residents such as husband.5 Though the statute does,

as wife argues, define “person” to include “individual[s] . . . whether or not a citizen or

domiciliary of this Commonwealth,” Code § 8.01-328, the three provisions wife relies on refer

directly to “nonresidents” rather than simply persons. “[W]hen the General Assembly has used

specific language in one instance, but omits that language or uses different language when

addressing a similar subject elsewhere in the Code, we must presume that the difference in the

choice of language was intentional.” Small v. Fed. Nat’l Mortg. Ass’n, 286 Va. 119, 132 (2013)

(quoting Newberry Station Homeowners Ass’n v. Bd. of Supervisors, 285 Va. 604, 616 (2013)).

Further, of the ten provisions in Code § 8.01-328.1, only these three specifically refer to a

nonresident. We presume that the General Assembly intentionally used the word nonresident,

and we therefore conclude that these three provisions, Code § 8.01-328.1(A)(8)(i), (8)(iii), and

(9), apply solely to nonresidents.6

5 Even if husband were a nonresident and the long arm statute applied, wife has not met the personal service requirements. Subsection 8(i) requires personal service by a “law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located.” Subsection 8(iii) requires “proof of personal service on a nonresident pursuant to § 8.01-320.” Subsection 9 requires “proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320.” Code § 8.01-320 defines who is authorized to provide service of process. Each of these require personal service by a properly authorized person. Husband was served by order of publication, which is, definitionally, the opposite of personal service. This Court has already held that service by order of publication on a nonresident does not meet the requirements of Code § 8.01-328.1 to give a court in personam jurisdiction to order support. Morris, 4 Va. App. at 545. 6 We make no conclusion on whether the other provisions of the long arm statute can be used to obtain personal jurisdiction over residents. -7- This interpretation harmonizes best with the purpose of the long arm statute, which “is to

assert jurisdiction, to the extent permissible under the Due Process Clause of the Constitution of

the United States, over nonresidents who engage in some purposeful activity in Virginia.”

Bergaust, 57 Va. App. at 429 (quoting Danville Plywood Corp. v. Plain & Fancy Kitchens, Inc.,

218 Va. 533, 534 (1977)). Its purpose is not to circumvent jurisdictional rules and service

requirements for suits against residents. Accordingly, we conclude that the circuit court

correctly concluded it did not have personal jurisdiction over husband. Consequently, it did not

err in finding that it did not have the authority to order husband to pay child support at the time

the divorce decree was entered.

Though “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[.]” Morris, 4 Va. App. at 543 (finding that support provisions were

properly affirmed but unenforceable where circuit court did not have in personam jurisdiction

because husband was served by order of publication). “[A]lthough a court may affirm, ratify and

incorporate a property settlement agreement into its final decree, it may only enforce personal

obligations contained therein when personal jurisdiction has been obtained over the party

obligated to perform.” Price v. Price, 17 Va. App. 105, 112 (1993) (alteration in original)

(quoting Morris, 4 Va. App. at 545). Thus, husband’s child “support obligations contained in the

agreement became part of the divorce decree, but remained unenforceable by resort to the

contempt powers of the court that rendered the divorce.” Id. at 113 (quoting Morris, 4 Va. App.

at 543).

B. Retroactive Modification of Child Support

Wife argues that the circuit court erred by retroactively modifying the child support in

violation of Code § 20-112, which provides that “no support order may be retroactively -8- modified, but may be modified with respect to any period during which there is a pending

petition for modification in any court, but only from the date that notice of such petition has been

given to the responding party.”

Wife, however, mistakes the nature of husband’s motion and the ruling of the circuit

court. Husband did not seek to modify or terminate the child support, nor did the circuit court

retroactively modify child support.

Instead, the circuit court concluded that it did not have jurisdiction to order child support

in the first place. “A court acquires no jurisdiction over the person of a defendant until process is

served in the manner provided by statute, and a judgment entered by a court which lacks

jurisdiction over a defendant is void as against that defendant.” Slaughter v. Commonwealth,

222 Va. 787, 791 (1981) (citations omitted). The lack of jurisdiction to enter an order renders

the order a complete nullity. Singh v. Mooney, 261 Va. 48, 52 (2001). Because we conclude

that the circuit court lacked in personam jurisdiction at the time it entered the divorce decree, the

order of child support was a complete nullity and was void from the time of entry.

Consequently, the circuit court could not, and did not, retroactively modify child support.

III. CONCLUSION

For the foregoing reasons, we affirm the circuit court.

Affirmed.

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