Jennifer Denise (Mercer) Lowe v. Charles R. Lowe

• Court: Court of Appeals of Virginia
• Decided: October 24, 2000
• Docket: 0746003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bumgardner and Senior Judge Hodges

JENNIFER DENISE (MERCER) LOWE MEMORANDUM OPINION * v. Record No. 0746-00-3 PER CURIAM OCTOBER 24, 2000 CHARLES REESE LOWE

FROM THE CIRCUIT COURT OF RUSSELL COUNTY Donald A. McGlothlin, Jr., Judge

(Teresa M. Chafin; Chafin and Chafin, P.C., on brief), for appellant.

(Felicia H. de Courcy; Henderson and de Courcy, P.C., on brief), for appellee.

Jennifer Lowe (wife) appeals from an order of the Russell

County Circuit Court (circuit court) granting Charles Lowe's

(husband) motion to quash and denying wife's request for permanent

spousal support. The circuit court ruled that it lacked

jurisdiction to award wife spousal support, but denied husband's

request for an award of attorney's fees. As an additional

question presented, husband contends the circuit court abused its

discretion when it denied his request for attorney's fees. See

Rule 5A:21. Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Accordingly, we summarily affirm the judgment of the circuit

court. See Rule 5A:27.

Background

On October 7, 1998, husband filed a bill of complaint in the

Tazewell County Circuit Court seeking a divorce from wife. In his

bill of complaint, husband asked the court to award him spousal

support. Wife subsequently and successfully moved to have the

case transferred to Russell County. She did not, however, file

any responsive pleadings. On May 4, 1999, the circuit court

entered a final decree wherein the court "reserved and preserved"

jurisdiction "to adjudicate and enter such further decrees as to

support (child [and] spousal), custody, visitation and equitable

distribution."

On September 28, 1999, wife filed a notice of hearing for

the purpose of moving the trial court to award her permanent

spousal support. Husband responded by filing a motion to quash,

asserting that because wife had filed no pleadings requesting

spousal support, the circuit court lacked jurisdiction to

address the issue.

In a memorandum to the trial court in response to husband's

motion to quash, wife attached a copy of an Answer and

Cross-Bill she asserted she had mailed to the circuit court

prior to entry of the final decree. In that cross-bill, wife

requested permanent spousal support. The Answer and Cross-Bill

were never filed in the circuit court.

- 2 - At a January 21, 2000 hearing, counsel for husband

represented to the court that she never received a copy of the

pleading in question and was unaware of its existence until

after wife filed her notice of hearing. Wife responded that,

prior to entry of the final decree, the parties had reached a

"stipulation" and that, when the court reserved jurisdiction

over spousal support, it was reserving jurisdiction over that

issue as it pertained to both husband and wife. Husband did not

agree that such a stipulation had been reached.

The trial court ruled that it lacked jurisdiction to

address the issue of spousal support because the divorce decree

was final and wife had failed to seek spousal support by a

pleading filed with the court.

Jurisdiction

Code § 20-107.1

grants to the divorce court the power to award maintenance and support, but the exercise of such power remains dependent upon the pleadings having raised the issue. Jurisdiction in a divorce suit is purely statutory, and does not encompass broad equitable powers not conferred by statute. . . . [T]he power of a court of equity to grant such further relief as necessary extends only to those powers required to effectually carry out its decrees in matters over which it has the power to act; it does not extend to an award of relief not raised by the pleadings.

Boyd v. Boyd, 2 Va. App. 16, 19, 340 S.E.2d 578, 580 (1986)

(citations omitted).

- 3 - In Boyd, the wife, in her cross-bill, had prayed for

custody of the parties' son, child support, equitable

distribution, and "'such other and further relief as to equity

may seem meet and the nature of her case may require.'" Id. at

18, 340 S.E.2d at 579. Although the wife never specifically

requested spousal support, the trial court nevertheless included

a spousal support award to the wife in its final decree. See

id. at 18, 340 S.E.2d at 580.

In holding that the trial court lacked jurisdiction to

award spousal support, we noted that "[f]undamental rules of

pleading provide that no court can base its judgment or decree

upon a right which has not been pleaded and claimed." Id.

Recognizing the due process implications of permitting a trial

court to award relief that had not been pled, we concluded:

"For us to hold that a pleading which seeks a divorce without

requesting spousal support nevertheless empowers a court to

award support would constitute an unwarranted modification of

the nature of the cause of action, with potentially far-reaching

effects. We decline to do so." Id. at 20, 340 S.E.2d at 581.

In the present case, wife never filed a pleading wherein

she sought an award of spousal support. As a result, at the

time it entered the final decree, the circuit court lacked

jurisdiction to enter such an award in favor of wife. And the

court could not create such jurisdiction merely by stating in

- 4 - the decree that it was reserving jurisdiction over the issue. 1

Although wife asserts that the parties had reached a

"stipulation" and that it was understood that the reservation of

jurisdiction over spousal support applied to husband and wife,

the record is insufficient to support such an inference.

Accordingly, the circuit court did not err in ruling that it did

not have jurisdiction to award spousal support to wife.

Attorney's Fees

Relying on Code § 8.01-271.1, husband asserts the circuit

court abused its discretion by refusing his request for an award

of attorney's fees. Under that code section, if a pleading or

motion is not "well grounded in fact and . . . warranted by

existing law or a good faith argument for the extension,

modification, or reversal of existing law," then the trial court

must impose sanctions, which may include an award of attorney's

fees. Code § 8.01-271.1. A trial court's decision denying an

award of attorney's fees under Code § 8.01-271.1 will not be

reversed absent an abuse of discretion. See Bandas v. Bandas,

16 Va. App. 427, 437, 430 S.E.2d 706, 711 (1993).

Wife learned prior to the January 21, 2000 hearing that her

Answer and Cross-Bill had never been filed with the circuit

court. But she also asserted that the parties had agreed that

1 The circuit court was entitled to reserve jurisdiction over the issue of spousal support as it applied to husband because he had specifically prayed for such relief in his bill of complaint.

- 5 - wife would be allowed to pursue a claim for spousal support and

that the reservation of jurisdiction in the final decree applied

not only to husband, but also to her. Under the circumstances,

we cannot say the trial court abused its discretion when it

denied husband's motion for attorney's fees.

Husband's request for attorney's fees and his costs on

appeal is denied.

For the foregoing reasons, the judgment of the circuit

court is affirmed.

Affirmed.

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