Yun Soo Kim v. Jung Ja Kim

• Court: Court of Appeals of Virginia
• Decided: April 10, 2001
• Docket: 1825004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Elder and Senior Judge Overton Argued at Alexandria, Virginia

YUN SOO KIM MEMORANDUM OPINION * BY v. Record No. 1825-00-4 JUDGE LARRY G. ELDER APRIL 10, 2001 JUNG JA KIM

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY David F. Berry, Judge Designate

Barry L. Leibowitz (David K. Lee; Leibowitz & Band, on briefs), for appellant.

Intak Lee for appellee.

Yun Soo Kim (husband) appeals from an order of the Circuit

Court of Prince William County (trial court) which awarded Jung

Ja Kim (wife) a divorce and periodic spousal support. On

appeal, husband contends, inter alia, that the trial court

erroneously awarded spousal support to wife without first

fashioning the requested equitable distribution award. We hold

the trial court committed reversible error to the extent it

purported to hold the order was a final order, and we reverse

that ruling. As to all other matters, we hold the order was

neither a final order nor an appealable interlocutory order.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Therefore, we dismiss the remainder of the appeal and remand for

further proceedings consistent with this opinion.

On March 2, 1999, wife filed a bill of complaint for

divorce in which she also sought spousal support and equitable

distribution of the parties' property. By order entered June

26, 2000, the trial court awarded wife a divorce a vinculo

matrimonii and ordered husband to pay spousal support to wife

monthly for five years pursuant to Code § 20-107.1. The order

provided that "distribution of marital properties shall be

determined at any time as requested by either party after this

Decree of Divorce is entered" and that "this cause is continued

as to matters of equitable distribution." Husband then noted

this appeal.

The Court of Appeals has appellate jurisdiction over final

decrees of a circuit court in domestic relations matters arising

under Titles 16.1 or 20, and any interlocutory decree or order

in such matters involving the granting, dissolving, or denying

of an injunction or "adjudicating the principles of a cause."

Code § 17.1-405; Erikson v. Erikson, 19 Va. App. 389, 390, 451

S.E.2d 711, 712 (1994).

A final decree is one "'"which disposes of the whole

subject, gives all the relief that is contemplated, and leaves

nothing to be done by the court."'" Erikson, 19 Va. App. at

390, 451 S.E.2d at 712 (quoting Southwest Va. Hosps. v. Lipps,

193 Va. 191, 193, 68 S.E.2d 82, 83-84 (1951) (quoting Ryan's v.

- 2 - McLeod, 73 Va. (32 Gratt.) 367, 376 (1879))). Where a bill of

complaint seeks a divorce, spousal support, and equitable

distribution, and the court enters a decree determining only

that the marriage is valid, the decree is not a final order

because it does not "'dispose[] of the whole subject . . . and

leave[] nothing to be done by the court.'" Id. at 391, 451

S.E.2d at 712. Similarly here, the decree from which husband

seeks to appeal is not a final order; although the bill of

complaint sought a divorce, spousal support and equitable

distribution, the challenged decree resolves only the first two

issues and leaves the equitable distribution for a later date.

Nor is the decree an interlocutory decree that adjudicates

the principles of the cause.

For an interlocutory decree to adjudicate the principles of a cause, the decision must be such that "'the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply those rules or methods to the facts of the case in order to ascertain the relative rights of the parties, with regard to the subject matter of the suit.'" Pinkard v. Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991) (quoting Lee v. Lee, 142 Va. 244, 252-53, 128 S.E. 524, 527 (1925)). . . . "'[T]he mere possibility' that an interlocutory decree 'may affect the final decision in the trial does not necessitate an immediate appeal.'" Polumbo v. Polumbo, 13 Va. App. 306, 307, 411 S.E.2d 229, 229 (1991) (quoting Pinkard, 12 Va. App. at 853, 407 S.E.2d at 342).

- 3 - Id. at 391, 451 S.E.2d at 712-13. Because the decree did not

effect an equitable distribution and left open such issues as

the value of various items of marital property and the

percentage of marital property to which each spouse was

entitled, it did not constitute an appealable interlocutory

order.

Although we do not reach the merits of any issues other

than the finality of the order, we note that a trial court

entering an award of spousal support pursuant to Code § 20-107.1

"shall consider," inter alia, "[t]he provisions made with regard

to the marital property under § 20-107.3." Code § 20-107.1(E)

(emphasis added). Thus, absent special circumstances, "it [is]

reversible error for [a] trial court to make its final award

requiring husband to pay a lump sum or periodic spousal support

award to wife . . . without considering the income which may

result from the monetary award, if any, to which wife [may] be

entitled." Kaufman v. Kaufman, 7 Va. App. 488, 493, 375 S.E.2d

374, 377 (1988); see also Code § 20-107.1(F). However, a court

may, "in [its] discretion," award pendente lite support pursuant

to Code § 20-103 as "necessary" at "any time pending [the]

suit." Code § 20-103(A).

For these reasons, we reverse the determination of the

trial court that its order was a final order. We also dismiss

the remainder of the appeal, remand to the trial court for

further proceedings, and direct that the trial court consider

- 4 - the issue of spousal support anew after fashioning the equitable

distribution award.

Reversed in part, dismissed in part, and remanded.

- 5 -