Lewis v. Lewis

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,∗ S.J.

THOMAS RANDOLPH LEWIS

v. Record No. 051349 OPINION BY JUSTICE CYNTHIA D. KINSER
April 21, 2006
COURTENAY MUNFORD LEWIS

FROM THE COURT OF APPEALS OF VIRGINIA

A panel of the Court of Appeals of Virginia decided

that a circuit court’s interlocutory decree dismissing a

cross-bill for annulment of a marriage “adjudicat[ed] the

principles of a cause” and was thus appealable under Code

§ 17.1-405(4)(ii). Lewis v. Lewis, Record No. 1807-04-2,

slip op. at 3 (May 10, 2005). Because the interlocutory

decree did not “respond to the chief object” of the

domestic relations dispute and did not determine “‘the

principles’ that are necessary to adjudicate the cause,” we

conclude that the decree was not appealable to the Court of

Appeals. Erikson v. Erikson, 19 Va. App. 389, 391, 451

S.E.2d 711, 713 (1994). The Court of Appeals therefore

lacked subject matter jurisdiction to entertain the appeal.

For those reasons, we will reverse the judgment of the

Court of Appeals.

∗
Senior Justice Compton participated in the hearing
and decision of this case before his death on April 9,
2006.
 RELEVANT FACTS AND PROCEEDINGS

The appellee, Courtenay Munford Lewis, filed a bill of

complaint in the Circuit Court of Powhatan County in March

2004. In that pleading, she sought a divorce a vinculo

matrimonii from the appellant, Thomas Randolph Lewis, and

an equitable distribution award. Thomas answered the bill

of complaint and denied that the parties are married. He

also filed a cross-bill for annulment of the marriage under

Code §§ 20-38.1(1) and –89.1.1 Thomas alleged that his

marriage with Courtenay was void on the grounds that, at

the time of their marriage on March 1, 1976, Courtenay “was

then married to and not validly divorced from Frederick

Latimer Wells, whom she had married on July 6, 1963.”

Courtenay subsequently filed a motion in limine to

preclude Thomas from introducing into evidence certain

documents pertaining to her divorce from her former

husband. She asserted that Thomas lacked standing to

attack the validity of a September 25, 1975 divorce decree

between her and Wells entered by the Circuit Court of the

City of Richmond. Thus, Courtney claimed that Thomas could

1
In pertinent part, Code § 20-38.1 prohibits “[a]
marriage entered into prior to the dissolution of an
earlier marriage of one of the parties.” Pursuant to Code
§ 20-89.1(a), a marriage “alleged to be void or voidable
for any of the causes mentioned in § . . . 20-38.1 . . .
shall be decreed void by a decree of annulment.”

2
not introduce into evidence, with regard to either the

divorce or the annulment, a decree of divorce entered on

August 30, 1979 by the Circuit Court of Powhatan County in

a suit styled Courtenay Munford Wells a/k/a Courtenay

Munford Lewis against Frederick L. Wells, nor could he

introduce the bill of complaint that she filed in that 1979

proceeding.2

During a hearing on the motion in limine, Courtenay

orally moved the circuit court to dismiss the cross-bill

for annulment. After considering the parties’ memoranda

and argument, the circuit court concluded that Thomas

lacked standing to attack Courtenay’s 1975 decree of

divorce and thus granted both the motion in limine and the

motion to dismiss the cross-bill for annulment.

Thomas appealed the circuit court’s judgment to the

Court of Appeals of Virginia. The only question Thomas

presented to the Court of Appeals was “[w]hether the trial

court erred in dismissing the [c]ross-[b]ill for

[a]nnulment and ruling that the marriage between the

parties was valid and not void ab initio.” The Court of

2
In the 1979 bill of complaint filed in the Circuit
Court of Powhatan County, Courtenay alleged that the
previous decree granting a divorce between her and Wells,
entered in 1975 by the Circuit Court of the City of
Richmond, was “null and void for lack of jurisdiction.”

3
Appeals, however, asked the parties to also address whether

the circuit court’s dismissal of the cross-bill was an

appealable order. Lewis, slip op. at 3.

With regard to that question, the Court of Appeals

concluded that the circuit court, “[b]y holding that

[Thomas] cannot attack [Courtenay’s] former marriage and by

dismissing his suit for annulment, [had,] by implication,

determined that a valid marriage exists between [Thomas and

Courtenay].” Id., slip op. at 3-4. The circuit court’s

holding, according to the Court of Appeals, “respond[ed] to

the chief object of the suit because it determine[d] the

status of the parties’ marriage” and thus “adjudicate[d]

the principles of a cause.” Id.

In deciding that the decree dismissing the cross-bill

was appealable, the Court of Appeals distinguished its

decision in Erikson. There, the trial court entered a

decree finding that the parties’ marriage was valid. 19

Va. App. at 390, 451 S.E.2d at 712. The decree did not

grant or deny a divorce, spousal support, or any other

relief. Id. at 390-91, 451 S.E.2d at 712. The Court of

Appeals concluded that the ruling that the parties were

validly married did not “adjudicate the principles of a

Courtenay filed the 1979 bill of complaint after her
marriage to Thomas.

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cause” because the ruling did not determine whether a

divorce would be granted or upon what grounds, nor did it

“determine the rules or methods by which the ultimate

decision in the divorce [would] be adjudicated, thereby

requiring only the application of those principles to the

facts of the case to decide the issues.” Id. at 391, 451

S.E.2d at 713. Thus, the Court of Appeals concluded that

the interlocutory decree in Erikson was not appealable

under former Code § 17-116.05(4) (now Code § 17.1-405(4))

and that the Court of Appeals was therefore without

jurisdiction to entertain the appeal. Id. at 391-92, 451

S.E.2d at 713. Because the interlocutory decree presently

at issue actually dismissed a cross-bill for annulment

whereas the interlocutory decree in Erikson merely held

that the parties’ marriage was valid, the Court of Appeals

in the case before us concluded that Erikson is factually

distinguishable and not controlling. Lewis, slip op. at 4.

Thomas then petitioned for an appeal to this Court.

Concluding that the decision of the Court of Appeals

involved a matter having significant precedential value,

see Code §§ 17.1-410(B) and -411, we awarded Thomas this

appeal. Contrary to the position that he asserted before

the Court of Appeals, Thomas now claims that the Court of

Appeals erred in deciding that the circuit court’s order

5
dismissing the cross-bill for annulment is an appealable

interlocutory order under Code § 17.1-405(4)(ii). That

assignment of error frames the dispositive issue before us.

ANALYSIS

“The Court of Appeals of Virginia is a court of

limited jurisdiction.” Canova Elec. Contracting, Inc. v.

LMI Ins. Co., 22 Va. App. 595, 599, 471 S.E.2d 827, 829

(1996). Unless a statute confers subject matter

jurisdiction to that court over a class of appeals, the

Court of Appeals is without authority to review an appeal.

Id. As pertinent to the case before us, the provisions of

Code § 17.1-405 grant subject matter jurisdiction to the

Court of Appeals over “[a]ny final . . . decree of a

circuit court involving . . . [a]ffirmance or annulment of

a marriage; . . . divorce; [and a]ny interlocutory decree

. . . entered in [such] cases . . . adjudicating the

principles of a cause.” Code §§ 17.1-405(3)(a), (b) and

–405(4)(ii).

Relying on Equitable Life Assurance Soc’y v. Wilson,

110 Va. 571, 573, 66 S.E. 836, 837 (1910), Courtenay argues

that the cross-bill was a pleading that alleged new facts

and prayed for affirmative relief, and would therefore

remain for disposition if the bill of complaint were

dismissed. It must then follow, according to Courtenay,

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that the decree dismissing the cross-bill was an appealable

order as the “ ‘chief object’ of [Thomas’] suit was for the

court to determine the status of” his marriage to

Courtenay. She also asserts that all the cases cited by

Thomas, including Erikson, are inapposite because in each

case only a bill of complaint for divorce had been filed.

Courtenay’s argument, as well as the decision of the

Court of Appeals, turns on the fact that Thomas filed a

cross-bill seeking affirmative relief in the nature of an

annulment.

The primary purposes of a cross-bill are to
obtain affirmative relief on behalf of the
defendant . . . filing such a bill, and to obtain
in the course of one proceeding a full and
complete determination of all issues which arise
out of, or which are connected with, the subject
matter of the original bill.

Brewer v. Brewer, 199 Va. 626, 628, 101 S.E.2d 516, 518

(1958); cf. Shevel’s, Inc. v. Southeastern Assocs., Inc.,

228 Va. 175, 184, 320 S.E.2d 339, 344 (1984) (if a

defendant presents a claim for affirmative relief in a

defensive pleading, the trial court may in its discretion

treat the answer as a cross-bill). Because Thomas sought

affirmative relief in the cross-bill, as opposed to filing

a merely defensive cross-bill, it is correct, as Courtenay

asserts, that dismissal of the original bill of complaint

would not necessarily result in a dismissal of the cross-

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bill. Equitable Life Assurance Soc’y, 110 Va. at 573-74,

66 S.E. at 837. Even so, neither the fact that Thomas used

a cross-bill to seek affirmative relief in the nature of an

annulment nor the tenets associated with a cross-bill

resolve the issue before us. We must, instead, apply the

well-established principles setting the parameters of an

interlocutory order that adjudicates the principles of a

cause.

Many years before the establishment of the Court of

Appeals of Virginia, this Court, in addressing our own

jurisdiction, see Code § 3454 (1887), recognized the

difficulty in defining the phrase “adjudicating the

principles of [a] cause” in such a manner as to fit every

case, but we, nevertheless, stated

it must mean 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 these 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.

Lancaster v. Lancaster, 86 Va. (11 Hans.) 201, 204-05, 9

S.E. 988, 990 (1889); accord Lee v. Lee, 142 Va. 244, 252-

53, 128 S.E. 524, 527 (1925); Vinson v. Vinson, 41 Va. App.

675, 683, 588 S.E.2d 392, 396 (2003); Pinkard v. Pinkard,

12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991). The

phrase “refers to principles which affect the subject

8
matter of the litigation and the rules by which the rights

of the parties to the suit are to be finally determined.”

Thrasher v. Lustig, 204 Va. 399, 402, 131 S.E.2d 286, 288

(1963).

The subject matter of the litigation in the suit filed

by Courtenay and the cross-bill filed by Thomas is a

domestic relations dispute. As the Court of Appeals noted

in Wells v. Wells, 29 Va. App. 82, 509 S.E.2d 549 (1999),

“[a]n interlocutory order that adjudicates the principles

of a domestic relations dispute ‘must respond to the chief

object of the suit,’ . . . which is to determine the status

of the parties’ marriage and the custody of the parties’

children, and, if appropriate, to award spousal and child

support.” Id. at 86, 509 S.E.2d at 551; see also Erikson,

19 Va. App. at 391, 451 S.E.2d at 713 (an “interlocutory

order that adjudicates the principles in a divorce case

must ‘respond to the chief object of the suit which [is] to

secure a divorce’”) (quoting Pinkard, 12 Va. App. at 352,

407 S.E.2d at 341-42).

In the cross-bill, Thomas alleged that, at the time he

and Courtenay were married, she was not validly divorced

from her former husband. Based on his allegations, the

question whether Thomas was entitled to an annulment turned

on the validity of Courtenay’s 1975 divorce. See Code

9
§ 20-38.1 (a marriage entered into prior to the dissolution

of a prior marriage of one of the parties is prohibited).

Relying on this Court’s decision in George v. King, 208 Va.

136, 138, 156 S.E.2d 615, 616-17 (1967), the circuit court,

however, concluded that Thomas lacked standing to attack

the validity of Courtenay’s 1975 divorce from her former

husband. For that reason, the circuit court dismissed the

cross-bill.

The circuit court’s decree did not “respond to the

chief object” of the domestic relations dispute nor did it

determine the “‘principles’ that are necessary to

adjudicate the cause.” Erikson, 19 Va. App. at 391, 451

S.E.2d at 713. It did not determine the status or validity

of the parties’ marriage; it did not award spousal support

or make an equitable distribution of marital assets.

Instead, the circuit court merely determined that Thomas

could not obtain an annulment by attacking the validity of

Courtenay’s 1975 divorce. Thus, the interlocutory decree

dismissing the cross-bill for annulment did not “determine

the rights of the parties” and it would not “of necessity

affect the final order in the case.” Pinkard, 12 Va. App.

at 851, 407 S.E.2d at 341; see also Erikson, 19 Va. App. at

391, 451 S.E.2d at 712-13 (decree ruling that the parties

were validly married did not adjudicate the principles of a

10
cause because it did not determine whether a divorce would

be granted or upon what grounds). Unlike the decree at

issue, an interlocutory decree that adjudicates the

principles of a cause “must ‘determine the rights of the

parties’ and ‘would of necessity affect the final order.’ ”

Pinkard, 12 Va. App. at 851, 407 S.E.2d at 341; accord

Erikson, 19 Va. App. at 391, 451 S.E.2d at 713. “ ‘[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).

In contrast, a decree entered in the domestic

relations dispute in Crowder v. Crowder, 125 Va. 80, 83, 99

S.E. 746, 747 (1919), did adjudicate the principles of a

cause. There, the wife filed a suit for divorce on the

grounds of desertion and also asked the trial court to set

aside as fraudulent the sale of certain real estate and “a

stock of shoes” by her husband to his brothers. Id. In

the decree, which was the subject of the appeal to this

Court, the trial court had not granted the divorce, but it

had found that the husband’s brothers were not guilty of

fraud in the purchases from the husband. Id. In holding

that the decree appealed from, while not final, did

11
nonetheless adjudicate the principles of the cause, we

stated:

This [decree] was an adjudication of all the
questions raised by the complainant’s bill. She
claimed that she was entitled to a divorce on the
ground of desertion by her husband, and this
claim was in effect sustained. She further
claimed that the sales from her husband to his
brothers was [sic] in fraud of her marital
rights, and that she had the right to have them
set aside and the property subjected to her
demands. This claim was overruled, and the sales
declared to be free from fraud.

Id.

Unlike the decree in Crowder that did determine the

rights of the parties and the principles necessary to

adjudicate the cause, the circuit court’s interlocutory

decree dismissing Thomas’ cross-bill did not do so. Thus,

the decree was not appealable under Code § 17.1-405(4)(ii).3

CONCLUSION

For the reasons stated, we conclude that the Court of

Appeals erred. Since the interlocutory decree before us

did not adjudicate the principles of a cause and was

therefore not appealable, the Court of Appeals lacked

3
To the extent that Courtenay suggests that the decree
was a final order and thus appealable on that basis, see
Code § 17.1-405(3), we find no merit in that argument. See
Brooks v. Roanoke County Sanitation Auth., 201 Va. 934,
936, 114 S.E.2d 758, 760 (1960) (“A decree is final only
when it disposes of the whole subject, gives all the relief
that is contemplated and leaves nothing to be done by the
court in the cause except its ministerial execution.”).

12
subject matter jurisdiction to entertain the appeal.4 Thus,

we will reverse the judgment of the Court of Appeals of

Virginia and dismiss the appeal.5

Reversed and dismissed.

4
Whether the dismissal of the cross-bill for annulment
was appealable under the “severable interests” doctrine has
not been raised in this appeal. See generally Safeway,
Inc. v. DPI Midatlantic, Inc., 270 Va. 285, 619 S.E.2d 76
(2005); Maitland v. Allen, 267 Va. 714, 718 n.2, 594 S.E.2d
918, 920 n.2 (2004); Thompson v. Skate Am., Inc., 261 Va.
121, 540 S.E.2d 123 (2001); Dalloul v. Agbey, 255 Va. 511,
515 n.*, 499 S.E.2d 279, 282 n.* (1998); Hinchey v. Ogden,
226 Va. 234, 236-37 & n.1, 307 S.E.2d 891, 892 & n.1
(1983); Wells v. Whitaker, 207 Va. 616, 628-29, 151 S.E.2d
422, 432-33 (1966). We express no opinion on that issue.
5
Our decision today allows Thomas to take a position
before this Court that is inconsistent with, and contrary
to, his position before the Court of Appeals. We do not
condone such behavior, but the issue before us involves the
subject matter jurisdiction of the Court of Appeals which
cannot be created by the action of a party. Furthermore,
the issue of subject matter jurisdiction can always be
reviewed by this Court sua sponte. See Board of
Supervisors of Fairfax County v. Board of Zoning Appeals of
Fairfax County, 271 Va. 336, 344, 626 S.E.2d 374, 379
(2006).
The present disposition is without prejudice to
Thomas’ option to challenge the circuit court’s ruling with
respect to his annulment claim in a future appeal after a
final judgment is entered. See Smith v. Woodlawn Constr.
Co., 235 Va. 424, 429, 368 S.E.2d 699, 702 (1988)
(recognizing the general rule that an “adverse
interlocutory adjudication may be the subject of appeal
from the final adjudication”); Alliance to Save the
Mattaponi v. Virginia Marine Res. Comm’n, 43 Va. App. 724,
726-27 & n.2; 601 S.E.2d 684, 685 & n.2 (2004).
In light of our decision, it is not necessary to
address the remaining assignment of error.

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