COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner Argued at Richmond, Virginia
STEVE ROSE MEMORANDUM OPINION * BY v. Record No. 2776-99-3 JUDGE RICHARD S. BRAY JUNE 13, 2000 BETTY BARTLETT AND WENDY ROSE
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Thomas H. Wood, Judge
Roland S. Carlton, Jr. (Carlton & Titus, P.L.C., on brief), for appellant.
Nancy A. Frank (Edmunds, Willetts & Frank, P.C., on brief), for appellees.
Steve Rose (husband) appeals an order of the trial court,
which determined that the court "never . . . adjudicated . . . the
issue[s] of child custody" or attendant support with respect to
children born or adopted by husband and his former wife, Wendy
Rose (wife), and deferred to the jurisdiction of the juvenile and
domestic relations district court (J&D court) for resolution of
such issues. Husband contends that the trial court displaced the
jurisdiction of the J&D court upon entry of the decree of divorce
between the parties. We disagree and affirm the trial court.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
The convoluted procedural history of this cause is
substantially undisputed. On March 18, 1994, husband filed both a
bill of complaint in the trial court, praying for a divorce a
vinculo matrimonii, custody of the minor children, and related
support from wife, and a petition for like relief in the J&D
court. On March 31, 1994, the J&D court entered an order awarding
husband custody of the children and, on May 27, 1994, required
wife to pay husband support monies for the children. On September
19, 1995, the trial court entered a decree of divorce, which
acknowledged that husband "has custody of the three minor children
born or adopted of the marriage pursuant to a Juvenile and
Domestic Relations Court Order," and recited that "said Order is
hereby ratified, confirmed and approved by this Court." 1
On October 20, 1995, the J&D court entered an order awarding
custody of the oldest child, David, to Betty Bartlett, his
maternal grandmother, and required husband and wife to pay related
child support to Bartlett. Thereafter, prompted by "various show
1 The decree also provided, "this matter is continued on the docket of the Court for a resolution of the child support issues raised in the Court's August 31, 1995 letter opinion." The referenced letter opinion principally addressed equitable distribution issues attendant to the divorce proceedings but mentioned "a hearing for the purpose of determining child support," conducted on June 22, 1995. The record clearly discloses that such hearing related to wife's appeal of a prior J&D court order, which assessed an arrearage due from wife on the prior support order. Wife's appeal was dismissed by the trial court on December 10, 1996.
- 2 - cause motions filed by the respective parties" before the J&D
court, husband challenged the continuing jurisdiction of the J&D
court over the custody and support issues, arguing that the trial
court had assumed exclusive jurisdiction upon entry of the divorce
decree. The J&D court agreed and dismissed the proceedings by
order of June 9, 1998. Wife and Bartlett appealed to the trial
court, resulting in the disputed order, entered September 1, 1999,
which "reversed" the J&D court.
In support of the order, the trial court specifically
incorporated by reference three letter opinions previously
written to counsel, the final of which, dated July 9, 1999,
advised the parties that
the Court rules as a matter of fact that it has never been requested to adjudicate custody and never has, in fact, adjudicated the issue of custody or assumed jurisdiction of the issue of custody. Further, the Court rules as a matter of law that the language in the Order of September 19, 1995, in which this Court "ratified, affirmed and approved" a Juvenile Court Custody Order does not constitute an adjudication of custody and does not constitute an assumption of jurisdiction of the custody issue by this Court. Accordingly, the Juvenile Court had jurisdiction to enter the Order on October 20, 1995, and all subsequent Orders.
The court further concluded that Code § 16.1-244(A) did "not
operate to divest the Juvenile Court of its jurisdiction to
enter Orders concerning child custody and/or support. No date
for a hearing on either issue was ever set in the divorce
- 3 - proceeding, and no hearing was ever held in the divorce
proceeding."
Nevertheless, relying upon the pre-emptive provisions of
Code § 20-79(a), husband appeals, arguing that the trial court
divested the J&D court of jurisdiction over the issues of child
custody and support upon entry of the divorce decree, which
expressly "ratified, confirmed and approved" the existing J&D
court order.
II.
Initially, we address appellees' motion to dismiss the
appeal. Citing Rule 5A:18, wife contends that husband's
endorsement of the disputed order, "Seen and Objected To,"
failed to adequately "preserve issues for this Court's review."
"The purpose of Rule 5A:18 is to allow the trial court to
correct in the trial court any error that is called to its
attention." Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736,
737 (1991). "Since the rule provides that '[a] mere statement
that the judgment or award is contrary to the law and the
evidence is not sufficient,' it follows that a statement that an
order is 'seen and objected to' must also be insufficient." Id.
at 515, 404 S.E.2d at 738. However, "[c]ounsel may meet the
mandates of Rule 5A:18 in many ways." Id.; see, e.g., Weidman
v. Babcock, 241 Va. 40, 400 S.E.2d 164 (1991); Kaufman v.
Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3 (1991)
(appellant made "known to the trial court his position through
- 4 - his memoranda and other written correspondence with the court
prior to . . . issuance of . . . final decree").
Here, husband presented a memorandum of law to the trial
court that extensively addressed the jurisdictional questions
now on appeal. Further, the record is clear that the court
considered the related arguments and pointedly ruled on such
issues. We, therefore, deny appellees' motion and address the
merits of the appeal.
III.
Code § 16.1-241 provides, in pertinent part, that "each
juvenile and domestic relations district court shall have . . .
exclusive original jurisdiction . . . over all cases, matters
and proceedings involving: A. The custody, visitation,
support, control or disposition of a child: . . . 3. Whose
custody, visitation or support is a subject of controversy or
requires determination." However, jurisdiction "[i]n such cases
. . . shall be concurrent with and not exclusive of courts
having equity jurisdiction, except as provided in [Code]
§ 16.1-244." Code § 16.1-241(A)(3).
Code § 16.1-244(A) prescribes, in relevant part:
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner Argued at Richmond, Virginia
STEVE ROSE MEMORANDUM OPINION * BY v. Record No. 2776-99-3 JUDGE RICHARD S. BRAY JUNE 13, 2000 BETTY BARTLETT AND WENDY ROSE
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Thomas H. Wood, Judge
Roland S. Carlton, Jr. (Carlton & Titus, P.L.C., on brief), for appellant.
Nancy A. Frank (Edmunds, Willetts & Frank, P.C., on brief), for appellees.
Steve Rose (husband) appeals an order of the trial court,
which determined that the court "never . . . adjudicated . . . the
issue[s] of child custody" or attendant support with respect to
children born or adopted by husband and his former wife, Wendy
Rose (wife), and deferred to the jurisdiction of the juvenile and
domestic relations district court (J&D court) for resolution of
such issues. Husband contends that the trial court displaced the
jurisdiction of the J&D court upon entry of the decree of divorce
between the parties. We disagree and affirm the trial court.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
The convoluted procedural history of this cause is
substantially undisputed. On March 18, 1994, husband filed both a
bill of complaint in the trial court, praying for a divorce a
vinculo matrimonii, custody of the minor children, and related
support from wife, and a petition for like relief in the J&D
court. On March 31, 1994, the J&D court entered an order awarding
husband custody of the children and, on May 27, 1994, required
wife to pay husband support monies for the children. On September
19, 1995, the trial court entered a decree of divorce, which
acknowledged that husband "has custody of the three minor children
born or adopted of the marriage pursuant to a Juvenile and
Domestic Relations Court Order," and recited that "said Order is
hereby ratified, confirmed and approved by this Court." 1
On October 20, 1995, the J&D court entered an order awarding
custody of the oldest child, David, to Betty Bartlett, his
maternal grandmother, and required husband and wife to pay related
child support to Bartlett. Thereafter, prompted by "various show
1 The decree also provided, "this matter is continued on the docket of the Court for a resolution of the child support issues raised in the Court's August 31, 1995 letter opinion." The referenced letter opinion principally addressed equitable distribution issues attendant to the divorce proceedings but mentioned "a hearing for the purpose of determining child support," conducted on June 22, 1995. The record clearly discloses that such hearing related to wife's appeal of a prior J&D court order, which assessed an arrearage due from wife on the prior support order. Wife's appeal was dismissed by the trial court on December 10, 1996.
- 2 - cause motions filed by the respective parties" before the J&D
court, husband challenged the continuing jurisdiction of the J&D
court over the custody and support issues, arguing that the trial
court had assumed exclusive jurisdiction upon entry of the divorce
decree. The J&D court agreed and dismissed the proceedings by
order of June 9, 1998. Wife and Bartlett appealed to the trial
court, resulting in the disputed order, entered September 1, 1999,
which "reversed" the J&D court.
In support of the order, the trial court specifically
incorporated by reference three letter opinions previously
written to counsel, the final of which, dated July 9, 1999,
advised the parties that
the Court rules as a matter of fact that it has never been requested to adjudicate custody and never has, in fact, adjudicated the issue of custody or assumed jurisdiction of the issue of custody. Further, the Court rules as a matter of law that the language in the Order of September 19, 1995, in which this Court "ratified, affirmed and approved" a Juvenile Court Custody Order does not constitute an adjudication of custody and does not constitute an assumption of jurisdiction of the custody issue by this Court. Accordingly, the Juvenile Court had jurisdiction to enter the Order on October 20, 1995, and all subsequent Orders.
The court further concluded that Code § 16.1-244(A) did "not
operate to divest the Juvenile Court of its jurisdiction to
enter Orders concerning child custody and/or support. No date
for a hearing on either issue was ever set in the divorce
- 3 - proceeding, and no hearing was ever held in the divorce
proceeding."
Nevertheless, relying upon the pre-emptive provisions of
Code § 20-79(a), husband appeals, arguing that the trial court
divested the J&D court of jurisdiction over the issues of child
custody and support upon entry of the divorce decree, which
expressly "ratified, confirmed and approved" the existing J&D
court order.
II.
Initially, we address appellees' motion to dismiss the
appeal. Citing Rule 5A:18, wife contends that husband's
endorsement of the disputed order, "Seen and Objected To,"
failed to adequately "preserve issues for this Court's review."
"The purpose of Rule 5A:18 is to allow the trial court to
correct in the trial court any error that is called to its
attention." Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736,
737 (1991). "Since the rule provides that '[a] mere statement
that the judgment or award is contrary to the law and the
evidence is not sufficient,' it follows that a statement that an
order is 'seen and objected to' must also be insufficient." Id.
at 515, 404 S.E.2d at 738. However, "[c]ounsel may meet the
mandates of Rule 5A:18 in many ways." Id.; see, e.g., Weidman
v. Babcock, 241 Va. 40, 400 S.E.2d 164 (1991); Kaufman v.
Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3 (1991)
(appellant made "known to the trial court his position through
- 4 - his memoranda and other written correspondence with the court
prior to . . . issuance of . . . final decree").
Here, husband presented a memorandum of law to the trial
court that extensively addressed the jurisdictional questions
now on appeal. Further, the record is clear that the court
considered the related arguments and pointedly ruled on such
issues. We, therefore, deny appellees' motion and address the
merits of the appeal.
III.
Code § 16.1-241 provides, in pertinent part, that "each
juvenile and domestic relations district court shall have . . .
exclusive original jurisdiction . . . over all cases, matters
and proceedings involving: A. The custody, visitation,
support, control or disposition of a child: . . . 3. Whose
custody, visitation or support is a subject of controversy or
requires determination." However, jurisdiction "[i]n such cases
. . . shall be concurrent with and not exclusive of courts
having equity jurisdiction, except as provided in [Code]
§ 16.1-244." Code § 16.1-241(A)(3).
Code § 16.1-244(A) prescribes, in relevant part:
when a suit for divorce has been filed in a circuit court, in which the custody, guardianship, visitation or support of children of the parties or spousal support is raised by the pleadings and a hearing is set by the circuit court on any such issue for a date certain to be heard within twenty-one days of the filing, the juvenile and domestic relations district courts shall
- 5 - be divested of the right to enter any further decrees or orders[.]
Moreover, Code § 20-79(a) provides that the "jurisdiction of the
court which entered" an order "concerning the care, custody or
maintenance of any child . . . shall cease . . . upon the entry
of a decree . . . for divorce . . ., in which . . . provision is
made for" such issues.
In the instant cause, husband fully utilized the concurrent
jurisdiction initially available to him in both the trial and
J&D courts, simultaneously filing a bill of complaint for
divorce in the trial court seeking, inter alia, child custody
and support, and a petition pursuing identical relief in the J&D
court. The record does not reveal that a hearing on the matters
of custody or support was thereafter scheduled in the trial
court "for a date certain to be heard within twenty-one days of
filing." Code § 16.1-244(A). Thus, the institution of the
divorce proceedings, together with the related prayers, did not
divest the J&D court from shared jurisdiction.
Further, the trial court correctly ruled "as a matter of
law that . . . the Order of September 19, 1995, . . . which
. . . 'ratified, affirmed and approved' a Juvenile Court Custody
Order," did not constitute an adjudication of child custody or
support issues. The language "approved, ratified and confirmed"
is not synonomous with "affirm, ratify and incorporate."
Rodriguez v. Rodriguez, 1 Va. App. 87, 91, 334 S.E.2d 595, 597
- 6 - (1985) (emphasis added). "The former merely approves the
[order] . . . while the latter makes [it] a part of the divorce
decree and enforceable as such." Id. Thus, while the trial
court took cognizance of the existing order of the J&D court
addressing custody and support, the court did not exercise
jurisdiction over such issues, and the resulting silence
continued "the preexisting . . . order [of the J&D court] . . .
'in full force and effect,'" without implicating Code
§ 20-79(a). Reid v. Reid, 24 Va. App. 146, 151, 480 S.E.2d 771,
773 (1997) (citation omitted).
Accordingly, the jurisdiction of the J&D court to
adjudicate the instant issues of child custody and support
survived the decree of divorce, and the trial court properly
remanded the proceedings.
Affirmed.
- 7 -