Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
O. RIDDICK HARRELL, JR.
v. Record No. 052629 OPINION BY JUSTICE DONALD W. LEMONS
November 3, 2006
CHRISTINA H. HARRELL
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in affirming the trial court's reservation of spousal
support to a party without a valid pleading requesting it.
For the reasons stated below, the judgment of the Court of
Appeals will be reversed.
I. Facts and Proceedings Below
Christina H. Harrell ("Ms. Harrell") and O. Riddick
Harrell, Jr. ("Mr. Harrell") were married on November 22,
1969. The parties separated on June 27, 2003. On June 15,
2004, Ms. Harrell filed a bill of complaint for a no-fault
divorce in the Circuit Court of the County of Chesterfield.
This bill of complaint was filed before the expiration of the
one year separation period required by Code § 20-91(9)(a).
The complaint requested that Ms. Harrell "be awarded temporary
and permanent spousal support." On June 15, 2004, Ms. Harrell
also filed a motion for relief pendente lite in which she
moved the court to direct Mr. Harrell to pay temporary spousal
support. On June 29, 2004, without leave of court, Ms.
Harrell filed an amended bill of complaint. In her amended
complaint, Ms. Harrell requested a divorce on the grounds of
adultery and again requested "temporary and permanent spousal
support." On July 1, 2004, Mr. Harrell filed an "Answer and
Motion to Dismiss the Plaintiff's Bill of Complaint for
Divorce." Included in Mr. Harrell's answer and motion to
dismiss was a cross-bill in which he requested "that he be
awarded permanent spousal support." Ms. Harrell did not file
an answer to the cross-bill.
On November 3, 2004, the trial court issued an opinion
letter in which it ruled on several issues. First, it granted
Mr. Harrell's "Motion to Dismiss the Bill of Complaint"
because the bill was filed before the passage of the period of
separation required by statute. The opinion letter also
stated that the amended bill of complaint was not properly
before the Court because Ms. Harrell had not sought leave of
court to file it pursuant to Rule 1:8. The trial court
indicated it would grant a divorce based on Mr. Harrell's
cross-bill. Finally, the trial court indicated that the final
decree should include a "reservation of Ms. Harrell's right to
request spousal support pursuant to Va. Code 20-107.1(D)."
In response to the November 3, 2004, opinion letter, Ms.
Harrell filed "Defendant's Omnibus Motion for Relief"
("omnibus motion") wherein she requested that her amended bill
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of complaint be deemed an answer to the cross-bill, thereby
placing the issue of a permanent award of spousal support
before the court. She also requested that her "prior
pleadings" be deemed sufficient to place her request for
permanent spousal support before the court.
On January 18, 2005, in a final decree, the trial court
dismissed Ms. Harrell's bill of complaint and granted a final
divorce to Mr. Harrell based solely on his cross-bill. The
trial court's decree ordered that "both parties [were]
entitled to a reservation of the right to request spousal
support." The trial court never specifically ruled on Ms.
Harrell's motion to consider her amended bill of complaint as
an answer to the cross-bill or to "deem her prior pleadings
. . . to be responsive pleadings sufficient to place before
[the trial court] the matter[] of spousal support."
Significantly, however, in the final decree, the trial court
does not recite that the amended bill of complaint was one of
the pleadings it considered and the trial court ordered that
the bill of complaint be dismissed.
On February 11, 2005, Mr. Harrell filed a timely notice
of appeal. The Court of Appeals affirmed the judgment of the
trial court. Because the Court of Appeals' judgment involves
a matter of significant precedential value, we granted Mr.
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Harrell an appeal to this Court. See Code §§ 17.1-410(B) and
–411.
II. Analysis
On appeal, Mr. Harrell advances three assignments of
error. First, "[t]he trial court erred in granting wife
relief in the absence of a valid pleading." Second, "[t]he
trial court erred in awarding wife a reservation of spousal
support in the absence of a specific prayer for that form of
relief." Third, "[t]he trial court erred in granting wife a
reservation of spousal support without considering all of the
factors contained in Virginia Code Section 20-107.1(E)." Ms.
Harrell assigns cross-error as follows: "The trial court
erred in dismissing wife's original bill of complaint." Under
well-established principles, we review such questions of law
de novo. Westgate at Williamsburg Condominium Ass'n v. Philip
Richardson Co., 270 Va. 566, 574, 621 S.E.2d 114, 118 (2005).
Code § 20-79(b) states "[i]n any suit for divorce, the
court in which the suit is instituted or pending, when either
party to the proceedings so requests, shall provide in its
decree . . . support and maintenance for the spouse."
(Emphasis added.) Pursuant to Code § 20-79(b), a party must
request spousal support in order to be granted that relief.
In Potts v. Mathieson Alkali Works, 165 Va. 196, 181 S.E.
521 (1935), this Court held:
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No court can base its decree upon facts not
alleged, nor render its judgment upon a right,
however meritorious, which has not been pleaded and
claimed. Pleadings are as essential as proof, the
one being unavailing without the other.
Id. at 207, 181 S.E. at 525 (citation omitted).
Ms. Harrell alleges that she properly pled her request
for spousal support in several of her pleadings: the bill of
complaint, the amended bill of complaint, the motion for
relief pendente lite, and in the omnibus motion for relief.
We will address each in turn.
In her bill of complaint, Ms. Harrell's grounds for
divorce were that she and Mr. Harrell had "lived separate and
apart for a period of more than one year" pursuant to Code
§ 20-91(9)(a). The bill of complaint also requested that Ms.
Harrell be awarded "temporary and permanent spousal support."
However, when Ms. Harrell filed the bill of complaint, she had
not been separated from Mr. Harrell "without interruption for
one year" as required by the statute. Code § 20-91(9)(a).
"[J]urisdiction in divorce suits is purely statutory," Sprouse
v. Griffin, 250 Va. 46, 50, 458 S.E.2d 770, 772 (1995), and
this Court has held that "[t]he act relied upon for divorce
must be alleged and proved to have occurred prior to the
bringing of the suit, not based upon some act or conduct
alleged to have taken place during its pendency." Beckner v.
Beckner, 204 Va. 580, 583, 132 S.E.2d 715, 717-18 (1963).
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Consequently, Ms. Harrell failed to state a claim upon which
relief could be granted. The trial court had subject matter
jurisdiction over the divorce; however, inadequate grounds
were alleged in the bill. The trial court properly dismissed
the bill for this reason. Consequently, the request for
spousal support contained in the bill of complaint abated with
its dismissal.
Ms. Harrell's amended complaint was also properly
dismissed by the trial court because Ms. Harrell failed to
seek leave of court prior to amending her pleading pursuant to
Rule 1:8. Her request for spousal support therein abated with
the dismissal of the amended bill.
Ms. Harrell's motion for relief pendente lite was
insufficient to grant a reservation of permanent spousal
support pursuant to Code § 20-107.1. A trial court grants
pendente lite relief pursuant to Code § 20-103, while a
request for permanent spousal support or a reservation of
permanent spousal support is made pursuant to Code § 20-107.1.
The two statutory schemes are separate and distinct. See
Whiting v. Whiting, 262 Va. 3, 4 (2001) ("This Court further
holds that the pendente lite decree awarding spousal support
only applied during the pendency of litigation and was
terminated when the cause was dismissed by the final decree of
divorce."); Reid v. Reid, 245 Va. 409, 412, 429 S.E.2d 208,
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209 (1993) ("The authority granted by § 20-107.1 relates to
orders entered at the time divorce is awarded or denied and is
limited to matters of 'maintenance and support.' "). Ms.
Harrell's request for pendente lite support was not sufficient
for the trial court to order that Ms. Harrell was "entitled to
a reservation of the right to request spousal support pursuant
to Section 20-107.1(D)."
Additionally, Ms. Harrell could not be granted a
reservation of spousal support based on her "omnibus motion."
Ms. Harrell's omnibus motion does not contain an independent
request for spousal support. In the omnibus motion, Ms.
Harrell requests that the amended bill of complaint be
considered an answer to the cross-bill and that all of her
"prior pleadings" be deemed "sufficient" to place the issue of
spousal support before the trial court. The trial court did
not address this matter in its final decree. There was no
objection to the failure to rule on the motion and no
assignment of error made on this basis.
Ms. Harrell failed to request permanent spousal support
in any valid pleading. Her bill of complaint was properly
dismissed as premature. Her amended bill of complaint was
properly dismissed for failing to comply with the requirements
of Rule 1:8 to obtain leave of court before filing. Any
request for spousal support contained in either of these
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pleadings was rendered a nullity by the respective dismissals.
Ms. Harrell's separate motion for pendente lite spousal
support was inadequate to obtain permanent spousal support.
Ms. Harrell's omnibus motion did not contain an independent
request for spousal support and the court did not rule on the
request to deem prior dismissed pleadings as a request for
permanent spousal support or to consider the amended bill of
complaint to be an answer to the cross-bill. Ms. Harrell does
not assign error to the trial court's failure to rule on the
omnibus motion. Finally, Ms. Harrell filed no answer to the
cross-bill.
As a consequence, Ms. Harrell had no valid pleading
before the trial court requesting permanent spousal support.
Without such a pleading, it was error for the trial court to
grant a reservation of spousal support to her pursuant to Code
§ 20-107.1(D).
III. Conclusion
We hold that the trial court erred in its judgment that
Ms. Harrell was "entitled to a reservation of the right to
request spousal support pursuant to Section 20-107.1(D)." We
do not address assignment of error three concerning compliance
under Code § 20-107.1(E). For the reasons stated herein, the
assignment of cross-error is without merit. Accordingly, we
will reverse that portion of the judgment of the Court of
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Appeals concerning a reservation of spousal support to Ms.
Harrell, with directions to the Court of Appeals to remand
this case to the trial court for entry of a modified decree in
accordance with this opinion.
Reversed in part and remanded.
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