Present: All the Justices
JILL M. BROWN, a/k/a JILL HARMS
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 951260 March 1, 1996
THOMAS EUGENE HARMS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
In this appeal, we decide whether the plaintiff's alleged
cause of action for breach of contract is barred by the
applicable statute of limitations.
Jill M. Brown, formerly Jill Harms, filed this action
against her former husband, Thomas Eugene Harms. The plaintiff
alleged the following facts in her motion for judgment.
The plaintiff and defendant, residents of Fairfax County,
were married in England in 1967 and obtained a divorce from a
German court in 1984. The German court's divorce decree
contained the following provisions:
Pension Equalization:
The parties have agreed that a pension
equalization shall proceed between the parties by way
of the law of obligations (contracts). A regulation
under U.S. law that possibly put the wife into a better
position is specifically reserved to the wife. This
agreement is appropriate and reserves to the parties
their rights for pension equalization, it therefore was
agreed to by the Family Court.
. . . .
4. A claim for support of the wife who is
gainfully employed does not exist at this time. The
assertion of support rights in case of the wife's need
remains reserved.
5. The parties are agreed that there is to be a
pension equalization between them by way of the law of
obligations (contract).
Possible further rights of the wife under U.S. law
remain reserved.
The plaintiff had filed a divorce proceeding in Illinois
before she obtained her divorce from the German court. The
defendant requested and apparently obtained a continuance in the
Illinois proceeding because at that time, he was a lieutenant
colonel in the United States Air Force and was assigned to a
military installation in Germany. In 1987, the Illinois court
dismissed that proceeding for lack of prosecution.
In 1990, the plaintiff filed an action in the circuit court
of Champaign County, Illinois, seeking a portion of the
defendant's military retirement benefits. The Illinois court
dismissed the plaintiff's action because that court lacked
subject matter jurisdiction and entered a judgment in favor of
the defendant. This judgment was affirmed by the Appellate Court
of Illinois. In Re: the Marriage of Jill Brown, 587 N.E.2d 648
(Ill. App. Ct. 1992).
The plaintiff alleged in her motion for judgment filed in
the Fairfax County Circuit Court that the defendant "agreed and
contracted both in private dialogue with [her] and before the
[German court], such agreement and contract being memorialized
and incorporated into said German Court's judgment, to either pay
[her] a portion of his military retirement benefits or to submit
himself to a U.S. Court for a determination of the Plaintiff's
share of his benefits." The plaintiff further alleged that the
defendant began receiving his military retirement benefits on
October 1, 1992, and that he has "refused to abide by his
contract and agreement to pay [her] a portion of his military
retirement benefits, nor has he consented to the determination of
[her] share of his benefits by a U.S. Court."
The defendant filed a special plea in bar asserting, inter
alia, that the plaintiff's action is barred by the applicable
statute of limitations and that the German decree constitutes
"nothing more than an acknowledgement of [an] alleged verbal
agreement to negotiate or litigate later."
The trial court held that the German court's decree does not
constitute a written contract and, therefore, the five-year
statute of limitations contained in Code § 8.01-246(2) that
governs actions for breach of written contracts is not implicated
here. The trial court also held, among other things, that the
defendant had breached an oral contract by failing to submit to
the jurisdiction of the Illinois court in 1990 and, therefore,
the plaintiff's action is barred by the applicable statute of
limitations. We awarded the plaintiff an appeal.
Since this case was decided without an evidentiary hearing,
we, like the trial court, rely solely upon the pleadings and
exhibits in resolving the issues before us. Weichert Co. of Va.
v. First Commercial Bank, 246 Va. 108, 109, 431 S.E.2d 308, 309
(1993).
The plaintiff asserts that the trial court erred by holding
she failed to plead a cause of action for breach of a written
contract. The plaintiff argues that the German court was
purportedly acting as an agent for her and the defendant when
that court entered its decree and that the decree constitutes a
written contract between the plaintiff and defendant which is
subject to the five-year statute of limitations contained in Code
§ 8.01-246(2). We disagree with the plaintiff.
Code § 8.01-246 states in part:
[A]ctions on a judgment or decree, shall be brought
within the following number of years next after the
cause of action shall have accrued:
. . . .
2. In actions on any contract which is not
otherwise specified and which is in writing and signed
by the party to be charged thereby, or by his agent,
within five years whether such writing be under seal or
not.
(Emphasis added). Code § 8.01-246(2) has no application here.
The plaintiff admits that the German court's decree is signed
neither by her nor by the defendant. And, there are no factual
allegations in the pleadings or exhibits which would permit this
Court to conclude that the German court's decree somehow
constitutes a written contract between the plaintiff and
defendant. Furthermore, there is no factual or legal basis in
this record which would permit this Court to conclude that the
German court acted as an agent for litigants who appeared before
that court for the dissolution of their marriage. Therefore, we
hold that the trial court did not err by holding that the German
court's decree does not constitute a written contract.
Next, the plaintiff argues that the trial court erred by
sustaining the plea in bar against her claim for breach of an
alleged oral contract. The plaintiff asserts that her cause of
action for breach of an alleged oral contract did not accrue
until the defendant breached the purported contract by failing to
permit her to acquire a portion of his retirement benefits when
he began to receive those benefits in September 1992. The
plaintiff further asserts that the defendant had taken no action
in breach of the contract before that date. Thus, she contends
that her action is not barred by the three-year statute of
limitations for actions on oral contracts because her motion for
judgment was filed in October 1994.
In response, the defendant contends that his alleged breach
of the purported contract occurred when he failed to submit to
the jurisdiction of the Illinois court. We disagree with the
defendant.
We assume, but expressly do not decide, that the plaintiff
pled a cause of action for breach of an oral contract. In
Virginia, an action to enforce an unwritten contract, express or
implied, is barred by the statute of limitations if such action
is not brought within three years after the cause of action
accrues. Code § 8.01-246(4); Westminster Investing Corp. v.
Lamps Unlimited, 237 Va. 543, 546, 379 S.E.2d 316, 317 (1989).
And, as we have said, the essential elements of a cause of action
for breach of contract are: "(1) 'a legal obligation of a
defendant to the plaintiff,' (2) 'a violation or breach of that
right or duty,' and (3) 'a consequential injury or damage to the
plaintiff.'" Id. at 546, 379 S.E.2d at 317 (quoting Caudill v.
Wise Rambler, Inc., 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969)).
Here, the defendant, who has the burden of proving that he
is entitled to the bar of the statute of limitations, Lo v.
Burke, 249 Va. 311, 316, 455 S.E.2d 9, 12 (1995), failed to
establish that he breached the purported contract more than three
years before the date plaintiff brought this action. It is true,
as defendant asserts, that he failed to submit to the
jurisdiction of the Illinois court for an adjudication of the
plaintiff's rights, if any, to a portion of his federal pension.
The defendant's act, however, did not constitute a breach of
contract because the Illinois court lacked subject matter
jurisdiction to make a binding adjudication of the plaintiff's
purported right to a portion of the defendant's pension once the
German court entered its decree of divorce.
The Appellate Court of Illinois stated in In Re: the
Marriage of Jill Brown, supra:
Regardless of the apparent harshness of our
decision, we conclude that subject-matter jurisdiction
did not exist in the present circuit court proceedings.
As we have stated, marriage dissolution jurisdiction
is statutory. . . . Commencement of an action under
the Dissolution Act requires the filing of a petition
for dissolution of marriage or for a legal
separation. . . . Inherent within this provision is
the existence of a marriage.
. . . .
As no marriage now exists between the parties, any
petition under section 403 of the Dissolution Act
(Ill.Rev.Stat.1989, ch. 40, par. 403) would necessarily
contain a false allegation. Thus, we can find no
statutory authority under the Dissolution Act which
will allow petitioner to come within its coverage. Not
being able to come within the Act deprives the trial
court of the jurisdiction of subject matter normally
provided by a filing under the Act.
*
587 N.E.2d at 653-54. The Illinois court also observed that
"[o]rders entered by a court lacking subject-matter jurisdiction
are void, and subject-matter jurisdiction cannot be conferred by
consent of the parties." Id. at 652.
Accordingly, we will affirm that portion of the trial
court's judgment holding that the German court's decree does not
constitute a written contract. We will reverse that portion of
*
We find no merit in the defendant's contention that the
plaintiff's act of filing this Illinois proceeding constituted an
election to seek damages for an anticipatory breach of contract.
We find nothing in the record, which consists of the pleadings
and exhibits, to support the defendant's contention. See Mutual
Reserve Fund Life Ass'n v. Taylor, 99 Va. 208, 213-14, 37 S.E.
854, 856 (1901).
the trial court's judgment which holds that the plaintiff's
purported cause of action for breach of an oral contract is
barred by the statute of limitations. We will remand this case
for further proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.