COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Alston and McCullough
PUBLISHED
Argued at Alexandria, Virginia
KENT M. WILLIAMS
OPINION BY
v. Record No. 0476-12-4 JUDGE ROSSIE D. ALSTON, JR.
NOVEMBER 27, 2012
KIMBERLY D. WILLIAMS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Lorraine Nordlund, Judge
John L. Bauserman, Jr. (Pikrallidas & Associates, on brief), for
appellant.
No brief or argument for appellee.
Kent Williams (father) appeals an order dismissing his motion to modify child support
for lack of subject matter jurisdiction. On appeal, father argues that the trial judge of the Circuit
Court of Fairfax County (trial judge) erred by (1) relying upon Code § 20-79(c) and the Uniform
Interstate Family Support Act, Code §§ 20-88.32 to 20-88.82, as her basis for dismissing father’s
motion for lack of subject matter jurisdiction, “instead of treating the issue in controversy as a
matter of venue only and not of subject matter jurisdiction”; and (2) finding the Circuit Court of
Fairfax County lacked subject matter jurisdiction to modify the final child support order of the
Circuit Court of Fauquier County although both parties resided within the Circuit Court of
Fairfax County’s jurisdiction and neither had contested venue. In the alternative, father argues
that the trial judge erred in declining to transfer the case back to the Circuit Court of Fauquier
County instead of dismissing it.
For the reasons that follow, we affirm the judgment of the trial judge.
I. BACKGROUND
Father and Kimberly D. Williams (mother) were married in 1988 and had two children,
one born in 1993 and the other born in 1996. On December 21, 1999, the Circuit Court of
Fauquier County granted father and mother a divorce a vinculo matrimonii. The final decree of
divorce entered by the Circuit Court of Fauquier County incorporated a custody, visitation and
child support order. The order required father to pay child support to mother through the
Division of Child Support Enforcement (DCSE). There is nothing in the record that indicates
that the Circuit Court of Fauquier County transferred the case to the Fauquier County Juvenile
and Domestic Relations District Court or, for that matter, any other court for enforcement of the
Circuit Court of Fauquier County’s child support order.
Subsequently, DCSE and mother filed a rule to show cause against father in the Circuit
Court of Fauquier County, alleging father had failed to pay his required child support. Father
and mother also both filed motions to modify child support before the Circuit Court of Fauquier
County. On June 14, 2002, the Circuit Court of Fauquier County found father in contempt of
court for his failure to pay the full amount of child support due and modified and increased
father’s child support obligation from $1,536.33 to $1,566 per month, effective December 1,
2001. The June 14, 2002 order did not transfer the case to a juvenile and domestic relations
district court (JDR court) or any other court for enforcement of the order.
By 2006, both father and mother had moved to Fairfax County. Mother was the sole
custodian of the children.
Shortly before the parties’ older child prepared to leave for college, mother sought to
modify the child support agreement. She filed a motion on May 16, 2011, in the Fauquier
County JDR court to transfer venue to the Fairfax County JDR court, despite the fact that the
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Circuit Court of Fauquier County had not transferred the case to the Fauquier County JDR court
or any other court. In turn, father filed a motion to modify child support on June 30, 2011, in the
Circuit Court of Fairfax County. His motion noted mother’s motion in the Fauquier County JDR
court, but he argued that the Fauquier County JDR court did not have jurisdiction and that the
Circuit Court of Fairfax County was the “proper and preferred venue in which to hear this
matter.”
DCSE was not named as a party in father’s motion to modify child support, but it filed a
motion for leave to intervene in the Fairfax Circuit Court action and to dismiss father’s motion
on January 10, 2012. In support of its motion, DCSE filed a memorandum arguing that the
Circuit Court of Fairfax County lacked jurisdiction in the case because the Circuit Court of
Fauquier County retained jurisdiction. DCSE argued that “[t]he public policy reasons for the
retention of jurisdiction by a court entering an order are the same as one of the fundamental
principles underlying the adoption of the Uniform Interstate Family Support Act (UIFSA), Code
§§ 20-88.32 [to 20-88.82]: to deter the entry of competing and conflicting orders of support in
multiple jurisdictions,” that Code § 20-79(c) prescribed the only manner by which a support case
may be transferred, and that the Circuit Court of Fairfax County was not an appropriate
transferee court under Code § 20-79(c).
The trial judge held a hearing on DCSE’s motion on January 27, 2012. The trial judge
declined to rule on DCSE’s motion to intervene, but agreed to hear arguments on whether
father’s motion should be dismissed for lack of subject matter jurisdiction. All of the recognized
parties to the Fairfax action agreed that the Circuit Court of Fauquier County had neither
transferred the case nor relinquished jurisdiction to any other circuit or JDR court. Mother
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adopted DCSE’s arguments regarding the purported lack of subject matter jurisdiction in the
Circuit Court of Fairfax County.
The trial judge first determined that the primary issue before her was one of subject
matter jurisdiction that she could raise sua sponte. The trial judge held that the Circuit Court of
Fairfax County did not have subject matter jurisdiction to hear father’s motion. In so holding,
the trial judge concluded that Code § 20-79(c) defines and limits the ability of a circuit court
entering a final decree of divorce to transfer matters concerning the support and maintenance of a
child or spouse and requires that such a transfer be to the JDR court in the same jurisdiction
where the decree was entered or any JDR court within the Commonwealth that is a more
appropriate forum. In making this determination, the trial judge also noted that the purpose of
Code § 20-79(c) is to deter the issuance of competing and conflicting orders between
jurisdictions as well as forum shopping between circuits after an unfavorable decision, “as there
is no procedure to transfer directly from one circuit court to another for enforcement or
modification of support matters upon the entry of a final decree.”
The trial judge issued her written order on February 10, 2012, stating that the case was
dismissed for “lack of jurisdiction” for the reasons set forth in DCSE’s memorandum and
adopted by mother. This appeal followed.
II. ANALYSIS
On appeal, father alleges that the trial judge erred in dismissing this case for lack of
subject matter jurisdiction because the parties resided in Fairfax County and venue was proper in
the Circuit Court of Fairfax County and because the trial judge erroneously relied upon Code
§ 20-79(c) and UIFSA in support of her decision.
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A. Subject Matter Jurisdiction and Venue Distinguished
At the outset, we note that the issue in this case involves the question of subject matter
jurisdiction, not territorial jurisdiction or venue.
“‘Jurisdiction’ is a word of many, too many meanings.” United States v. Vanness, 85
F.3d 661, 663 n.2 (D.C. Cir 1996), quoted in Hitt Construction v. Pratt, 53 Va. App. 422, 425,
672 S.E.2d 904, 905 (2009). In Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753 (1990), the
Supreme Court of Virginia clarified the distinction between subject matter jurisdiction and
territorial jurisdiction, also known as venue:
The term jurisdiction embraces several concepts including
subject matter jurisdiction, which is the authority granted through
constitution or statute to adjudicate a class of cases or
controversies; territorial jurisdiction, that is, authority over
persons, things, or occurrences located in a defined geographic
area; notice jurisdiction, or effective notice to a party or if the
proceeding is in rem seizure of a res; and “the other conditions of
fact must exist which are demanded by the unwritten or statute law
as the prerequisites of the authority of the court to proceed to
judgment or decree.” Farant Investment Corp. v. Francis, 138 Va.
417, 427-28, 122 S.E. 141, 144 (1924).
While these elements are necessary to enable a court to
proceed to a valid judgment, there is a significant difference
between subject matter jurisdiction and the other “jurisdictional”
elements. Subject matter jurisdiction alone cannot be waived or
conferred on the court by agreement of the parties. Lucas v. Biller,
204 Va. 309, 313, 130 S.E.2d 582, 585 (1963). A defect in subject
matter jurisdiction cannot be cured by reissuance of process,
passage of time, or pleading amendment. While a court always has
jurisdiction to determine whether it has subject matter jurisdiction,
a judgment on the merits made without subject matter jurisdiction
is null and void. Barnes v. American Fert. Co., 144 Va. 692, 705,
130 S.E. 902, 906 (1925). Likewise, any subsequent proceeding
based on such a defective judgment is void or a nullity. Ferry Co.
v. Commonwealth, 196 Va. 428, 432, 83 S.E.2d 782, 784 (1954).
Morrison, 239 Va. at 169-70, 387 S.E.2d at 755-56.
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Later, in Porter v. Commonwealth, 276 Va. 203, 661 S.E.2d 415 (2008), the Supreme
Court of Virginia elucidated this passage from Morrison, stating that it
reflects the long-standing distinction between subject matter
jurisdiction, which cannot be granted or waived by the parties and
the lack of which renders an act of the court void, and territorial
jurisdiction or venue. The latter goes to the authority of the court
to act in particular circumstances or places and is waived if not
properly and timely raised.
Id. at 229, 661 S.E.2d at 427.
Father alleges that the trial judge erred in treating the issue in the instant case as one of
subject matter jurisdiction rather than venue. Father argues that because circuit courts in the
Commonwealth are courts of “general jurisdiction,” all circuit courts have “the clear and
undisputed, unambiguous subject matter jurisdiction to modify child support orders emanating
from sister [c]ircuit [c]ourts in this Commonwealth.”
Code § 20-96 provides, “The circuit court shall have jurisdiction of suits for annulling or
affirming marriage and for divorces, and claims for separate maintenance, and such suits shall be
heard by the judge as equitable claims.” It is true, therefore, that “[a]ll circuit courts within the
Commonwealth . . . have potential subject matter jurisdiction to try divorce cases.” Ragouzis v.
Ragouzis, 10 Va. App. 312, 315, 391 S.E.2d 607, 609 (1990).
However, in the instant matter, father was not seeking to try a divorce case in the Circuit
Court of Fairfax County. Instead, father was seeking modification of a child support order
entered as part of a divorce decree by the Circuit Court of Fauquier County. Modification of
child support is governed by Code § 20-108, which provides:
The court may, from time to time after decreeing as provided in
[Code] § 20-107.2, on petition of either of the parents, or on its
own motion or upon petition of any probation officer or the
Department of Social Services, which petition shall set forth the
reasons for the relief sought, revise and alter such decree
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concerning the care, custody, and maintenance of the children and
make a new decree concerning the same, as the circumstances of
the parents and the benefit of the children may require.
We hold that Code § 20-108 confers subject matter jurisdiction to revise and alter a
decree concerning the care, custody, and maintenance of children on the particular circuit court
that entered the original decree. The use of the definite article “the” in the phrase “the court” in
Code § 20-108 suggests that the legislature intended the specific circuit court that entered the
original decree, and no other circuit court, retain subject matter jurisdiction to revise and alter
that decree. See Grafmuller v. Commonwealth, 57 Va. App. 58, 65, 698 S.E.2d 276, 280 (2010)
(“The word ‘the’ is used grammatically in the statute as a definite article—a word that, when
used before a noun, specifies or particularizes the meaning of the noun that follows, as opposed
to the indefinite article ‘a.’” (citing Am. Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir. 2000))).
In addition, Code § 20-108 states that the court may revise or alter the decree “from time to time
after decreeing as provided in [Code] § 20-107.2.” Thus, a circuit court that did not enter the
original decree could not revise it under Code § 20-108 because it did not first “decree[] as
provided in Code § 20-107.2.” Therefore, the language of Code § 20-108 shows that it
establishes subject matter jurisdiction to modify child support in the circuit court that issued the
original decree.
Furthermore, Virginia jurisprudence has consistently held that the circuit court that
entered the divorce retains “continuing jurisdiction” to change or modify its decree concerning
the custody and maintenance of minor children. See, e.g., Featherstone v. Brooks, 220 Va. 443,
446, 258 S.E.2d 513, 515 (1979) (superseded by statute on other grounds); Johnson v. Johnson,
26 Va. App. 135, 145, 493 S.E.2d 668, 672 (1997); Orlandi v. Orlandi, 23 Va. App. 21, 26, 473
S.E.2d 716, 718 (1996); Watkinson v. Henley, 13 Va. App. 151, 157, 409 S.E.2d 470, 473
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(1991); Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986); see also
Taylor v. Taylor, 203 Va. 1, 121 S.E.2d 753 (1961) (stating that “[t]he trial court remains open to
the parties to show that changed conditions require change of provisions with respect to custody,
maintenance and alimony”).
Moreover,
“[t]he general rule supported by the greater weight of authority
seems to be that jurisdiction acquired by a court in divorce
proceedings over the subject of the custody and maintenance of the
child or children of the parties to the divorce suit is not only
continuing but is also exclusive, and precludes any other court in
the same state or sovereignty from thereafter acquiring or
exercising jurisdiction over the same subject, and that all
proceedings relating to the maintenance and custody of such child
or children of the divorced parents must thereafter be brought in
the same court in which the original decree affecting that subject
was rendered.”
Williams v. Woolfolk, 188 Va. 312, 316, 49 S.E.2d 270, 271-72 (1948) (emphasis added)
(quoting 17 Am. Jur. § 677.4 (Supp. 1947)).
Finally, the policy rationale underlying the continuing and exclusive grant of subject
matter jurisdiction to the court that entered the divorce decree is well established. “A contrary
holding could result in conflict of jurisdiction, be productive of confusion and subversive of
orderly procedure.” Id. at 319, 49 S.E.2d at 273. A contrary holding could also encourage
litigants to engage in impermissible forum shopping, seeking a more favorable result in a
different circuit court from the one that entered the divorce decree.
Because Code § 20-108 confers subject matter jurisdiction upon the circuit court that
entered the original decree in cases involving alteration or modification of a decree concerning
the care, custody, and maintenance of children, we hold that the trial judge did not err in treating
the issue in the instant case as one of subject matter jurisdiction, not venue.
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B. Subject Matter Jurisdiction in the Instant Case
Father alleges that the trial judge erred in finding a lack of subject matter jurisdiction to
modify the final child support order of the Circuit Court of Fauquier County although both
parties resided within the Circuit Court of Fairfax County’s jurisdiction and neither had
contested venue. 1 We find no error in the trial judge’s holding that the Circuit Court of Fairfax
County lacked subject matter jurisdiction in the instant case.
“The jurisdiction of a court to provide for child support pursuant to a divorce is purely
statutory.” Cutshaw v. Cutshaw, 220 Va. 638, 641, 261 S.E.2d 52, 54 (1979) (citing Jackson v.
Jackson, 211 Va. 718, 719, 180 S.E.2d 500, 500 (1971)). “[A]n issue of statutory interpretation
is a pure question of law which we review de novo.” Conyers v. Martial Arts World of
Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citing Crawford v. Haddock, 270
Va. 524, 528, 621 S.E.2d 127, 129 (2005); Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246,
248 (2003)).
As noted above, we hold that Code § 20-108 confers subject matter jurisdiction to alter
and revise decrees regarding the care, custody, and maintenance of children on the circuit court
that entered the original divorce decree. Here, the Circuit Court of Fauquier County entered a
final decree of divorce in the instant case incorporating the parties’ agreement on child support.
The Circuit Court of Fauquier County also entered an order on June 14, 2002, modifying and
increasing father’s child support obligations. The Circuit Court of Fauquier County never
transferred the case to any JDR court or any other court, and the case remained active in the
Circuit Court of Fauquier County, as evidenced by its June 14, 2002 order. As a result, under
1
Again, for the sake of clarity, we reaffirm as noted above the longstanding distinction in
Virginia law between venue and subject matter jurisdiction. Because we have already decided
that the issue in the instant case is one of subject matter jurisdiction, we will say no more
regarding father’s arguments concerning venue.
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Code § 20-108, it was the Circuit Court of Fauquier County that retained continuing and
exclusive subject matter jurisdiction over the alteration or modification of the custody and
maintenance of the minor children at issue in this case. Therefore, the trial judge did not err in
holding that the Circuit Court of Fairfax County lacked subject matter jurisdiction in the case at
bar.
Father claims error in the trial judge’s reliance on Code § 20-79(c) in support of her
reasoning for her holding. The DCSE memorandum, which the trial judge adopted in her order
dismissing for lack of subject matter jurisdiction, stated that under Code § 20-79(c), a support
case must be transferred to an appropriate JDR court and that the Circuit Court of Fairfax County
“would not, under any circumstances, be an appropriate transferee forum.” Father argues that
because Code § 20-79(c) does not explicitly limit “the general jurisdiction of another [c]ircuit
[c]ourt of the Commonwealth from re-opening the case of its sister circuit [c]ourt and modifying
or enforcing child support orders,” Code § 20-79(c) is irrelevant to the instant case and the trial
judge should not have relied upon it. We disagree.
First, we find nothing in Virginia law that authorizes one circuit court, under its “general
jurisdiction,” to modify and enforce child support orders from another circuit court. As stated
above, subject matter jurisdiction over modification of a decree concerning the care, custody, and
maintenance of children is controlled by Code § 20-108.
Second, the trial judge did not err in holding that Code § 20-79(c) does not authorize the
transfer of an order pertaining to support and maintenance for the spouse, maintenance, support,
care and custody of the child or children from one circuit court to another. Code § 20-79(c)
provides:
In any suit for divorce or suit for maintenance and support, the
court may after a hearing, pendente lite, or in any decree of divorce
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a mensa et thoro, decree of divorce a vinculo matrimonii, final
decree for maintenance and support, or subsequent decree in such
suit, transfer to the juvenile and domestic relations district court
the enforcement of its orders pertaining to support and
maintenance for the spouse, maintenance, support, care and
custody of the child or children. After the entry of a decree of
divorce a vinculo matrimonii the court may transfer to the juvenile
and domestic relations district court any other matters pertaining to
support and maintenance for the spouse, maintenance, support,
care and custody of the child or children on motion by either party,
and may so transfer such matters before the entry of such decree on
motion joined in by both parties. In the transfer of any matters
referred to herein, the court may, upon the motion of any party, or
on its own motion, and for good cause shown, transfer any matters
covered by said decree or decrees to any juvenile and domestic
relations district court within the Commonwealth that constitutes a
more appropriate forum. An appeal of an order by such juvenile
and domestic relations district court which is to enforce or modify
the decree in the divorce suit shall be as provided in [Code]
§ 16.1-296.
Therefore, Code § 20-79(c) authorizes a circuit court to transfer an order pertaining to
maintenance, support, care and custody of children after a decree of divorce to a JDR court. The
statute is silent regarding transfers to another circuit court in the Commonwealth. 2
“Courts cannot ‘add language to the statute the General Assembly has not seen fit to
include.’” Jackson v. Fid. & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 906 (2005)
(quoting Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)). “The
2
Code § 16.1-296(J) does provide:
[i]n any case which has been referred or transferred from a circuit
court to a juvenile court and an appeal is taken from an order or
judgment of the juvenile court, the appeal shall be taken to the
circuit court in the same locality as the juvenile court to which the
case had been referred or transferred.
Thus, in an appropriate case, the circuit court that entered the divorce decree may transfer the
case to any JDR court within the Commonwealth and an appeal from that JDR court will be
taken to the circuit court in the same locality as the JDR court.
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maxim expressio unius est exclusio alterius applies when mention of a specific item in a statute
implies that omitted items were not intended to be included.” Virginian-Pilot Media Cos. v.
Dow Jones & Co., 280 Va. 464, 468-69, 698 S.E.2d 900, 902 (2010) (citing Turner v. Wexler,
244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)). By stating the specific court to which a circuit
court may transfer the enforcement of its orders regarding child maintenance, support, care and
custody – i.e., to the JDR court – Code § 20-79(c) necessarily excludes transfers to other courts.
Therefore, the trial judge did not err in finding that the Circuit Court of Fairfax County would
not be an appropriate transferee forum under Code § 20-79(c) and in relying upon Code
§ 20-79(c) as part of its rationale for holding it lacked subject matter jurisdiction in the instant
case. 3
Father also argues that the trial judge erred in relying upon UIFSA in holding that the
Circuit Court of Fairfax County lacked subject matter jurisdiction, because the parties and their
children all reside in Virginia, rendering UIFSA inapplicable in the instant case. The DCSE
memorandum adopted by the trial judge in her order dismissing this case for lack of subject
matter jurisdiction stated: “The public policy reasons for the retention of jurisdiction by a court
entering an order are the same as one of the fundamental principles underlying the adoption of
[UIFSA]: to deter the entry of competing and conflicting orders of support in multiple
jurisdictions.” 4
3
In any event, the Circuit Court of Fauquier County never transferred the instant case to
any other court, let alone the Circuit Court of Fairfax County. As a result, even if Code
§ 20-79(c) allowed such a transfer, which it does not, no such transfer occurred in this case.
4
Indeed, UIFSA itself provides for the exercise of “continuing, exclusive jurisdiction” of
the “tribunal of the Commonwealth that has issued a child support order” to “modify its child
support order.” Code § 20-88.39(A). We note also that this Court has interpreted this provision
as a grant of subject matter jurisdiction. Nordstrom v. Nordstrom, 50 Va. App. 257, 266, 649
S.E.2d 200, 204 (2007).
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In adopting this language in its order, the trial judge was not applying the actual
provisions of UIFSA to the instant case. Rather, the trial judge was drawing on the policy
rationale underlying UIFSA and finding the same policy rationale applicable in the case at bar.
The policy rationale underlying UIFSA and cited by the learned trial judge is consistent with the
policy considerations already recognized under Virginia law. See Woolfolk, 188 Va. at 319, 49
S.E.2d at 273. Therefore, the trial judge did not err in referencing these policy implications in
reaching her decision.
For these reasons, we hold that the trial judge did not err in holding that the Circuit Court
of Fairfax County lacked subject matter jurisdiction in the instant case.
C. Transfer
Finally, father argues that even if the trial judge did not err in holding that the Circuit
Court of Fairfax County lacked subject matter jurisdiction, the remedy was to transfer the case to
the appropriate tribunal, not to dismiss the case.
Although transfer may be appropriate in cases where venue is improper, see Code
§ 8.01-265, 5 where a court lacks subject matter jurisdiction, the case must be dismissed.
W. Union Tel. Co. v. Pettyjohn, 88 Va. 296, 298, 13 S.E. 431, 432 (1891). Therefore, neither
Code § 8.01-265 nor Code § 20-88.49 required the trial judge to transfer this case, rather than
dismiss it.
5
We note that Code § 8.01-265 is inapplicable to the instant case. By its plain language,
Code § 8.01-265 allows the transfer by a court “wherein an action is commenced” to “any fair
and convenient forum having jurisdiction within the Commonwealth.” The action in the case at
bar was not “commenced” in the Circuit Court of Fairfax County; rather, father sought to modify
an order entered in a prior action commenced in the Circuit Court of Fauquier County.
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III. CONCLUSION
For these reasons, we hold that the trial judge did not err in finding that the Circuit Court
of Fairfax County lacked subject matter jurisdiction and therefore dismissing the case.
Affirmed.
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Kent M. Williams v. Kimberly D. Williams
Court: Court of Appeals of Virginia
Date filed: 2012-11-27
Citations: 61 Va. App. 170, 734 S.E.2d 186
Copy CitationsCombined Opinion