COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Haley and Alston
Argued at Alexandria, Virginia
LISA MILLER
OPINION BY
v. Record No. 2405-08-4 JUDGE ROBERT J. HUMPHREYS
JUNE 23, 2009
JANET JENKINS
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
John R. Prosser, Judge
Matthew D. Staver (Rena M. Lindevaldsen; Liberty Counsel, on
briefs), for appellant.
Gregory R. Nevins (Rebecca K. Glenberg; Lambda Legal Defense
& Education Fund, Inc.; American Civil Liberties Union of
Virginia Foundation, Inc., on brief), for appellee.
Lisa Miller (“Miller”) appeals the dismissal of her action for declaratory judgment and
injunctive relief. For the following reasons, we do not address Miller’s arguments because we
hold that the circuit court did not have jurisdiction to entertain an action for declaratory judgment
in this case.
I. BACKGROUND
During the late 1990’s and up until 2002, Miller and Janet Jenkins (“Jenkins”) lived
together in Virginia. On December 19, 2000, Miller and Jenkins traveled to Vermont and
entered into a civil union pursuant to the laws of Vermont. Some time thereafter, Miller and
Jenkins decided that Miller would undergo artificial insemination and bear a child. In April
2002, Miller gave birth to I.M.J. In July 2002, Miller, Jenkins, and I.M.J. moved to Vermont.
They lived there together until September 2003, when Miller and I.M.J. moved back to Virginia.
Jenkins remained in Vermont.
In November 2003, Miller filed a “Complaint for Civil Union Dissolution” in Vermont.
In the complaint, Miller listed I.M.J. as the “biological or adoptive child[] of the civil union.”
Miller also asked the Vermont court to award her legal and physical “rights and responsibilities”
for I.M.J., to award reasonable visitation rights to Jenkins, and to “award payment of suitable
child support money.” On June 17, 2004, a Vermont court entered a temporary order awarding
Miller custody of I.M.J. and awarding visitation to Jenkins. Since that time, Vermont courts
have issued multiple custody orders regarding I.M.J. and have dissolved the couple’s civil union.
The case before us represents Miller’s third attempt to collaterally attack the Vermont
court custody orders. Her first appeal was unsuccessful because it was she who brought suit in
Vermont in the first instance and thereby submitted herself to the jurisdiction of that state. A
panel of this Court dismissed Miller’s appeal because, pursuant to the Parental Kidnapping and
Protection Act (PKPA), 28 U.S.C. § 1738A, Vermont had sole jurisdiction over the issues of
custody and visitation. See Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 88, 637 S.E.2d 330
(2006). Miller’s second attempt to attack the Vermont custody and visitation order was
unsuccessful based upon the “law of the case” doctrine and the res judicata effect of her first
appeal. The Supreme Court of Virginia held that this Court’s decision in the previous appeal
was the “law of the case” and that it required Virginia to register the Vermont orders and give
them full faith and credit. See Miller-Jenkins v. Miller-Jenkins, 276 Va. 19, 661 S.E.2d 822
(2008).
Following the Supreme Court’s decision in her second appeal, Miller filed a complaint in
the Circuit Court of the City of Winchester asking the court for declaratory relief and an
injunction. Miller sought to have the court issue temporary and permanent injunctions, enjoining
Jenkins “from registering and attempting to enforce in Virginia, the Vermont Temporary Order,
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the June 2007 Vermont Final Order concerning parental rights and responsibilities, and any
subsequent modifications thereto.”
Jenkins filed a demurrer, claiming that the Court of Appeals and Virginia Supreme Court
had already addressed all of the issues raised by Miller in her complaint. The trial court held a
hearing on Jenkins’ demurrer. The court ultimately sustained the demurrer, holding that, “The
issues raised in [Miller’s] Complaint have all previously been litigated between [Miller] and
[Jenkins] and decided by the Court of Appeals of Virginia and Supreme Court of Virginia.” The
court dismissed Miller’s complaint with prejudice.
Contemporaneously with the hearing on Jenkins’ demurrer, the circuit court addressed a
separate pleading filed by Jenkins to “register and enforce the Vermont orders.” Jenkins asked
the circuit court to order the juvenile and domestic relations district court (“the J&DR court”) to
register the orders and asked the circuit court to enforce the Vermont orders by ordering Miller to
comply with them. At the hearing, the circuit court remanded the matter brought by Jenkins
regarding the Vermont orders to the J&DR court for consideration. 1 At oral argument on this
case, Miller’s attorney conceded that the issues in the two cases are “essentially the same.”
II. ANALYSIS
Miller, once again, seeks to sidestep her prior submission to the jurisdiction of the courts
of Vermont and the decisions already rendered there and in this Commonwealth regarding the
custody of her child. She supports her petition by asserting the significant public policy
differences between the Commonwealth and Vermont regarding the status to be accorded to
same sex unions. In pursuing this course, Miller raises three arguments on appeal, all of which
relate to the degree to which the Commonwealth owes recognition to the Vermont orders under
1
At oral argument in this matter, counsel for both parties represented to this panel that
Jenkins’ case has since proceeded from the J&DR court, through the circuit court, and a further
appeal to this Court is being contemplated.
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the Full Faith and Credit Clause, U.S. Const., art. IV, § 1, the PKPA, or the Defense of Marriage
Act, 28 U.S.C. § 1738C (“DOMA”). However, Jenkins makes several jurisdictional claims that
we must address first.
Jenkins’ first jurisdictional claim attacks our jurisdiction to hear this case under Code
§ 17.1-405. Code § 17.1-405 provides that we have appellate jurisdiction over:
3. Any final judgment, order, or decree of a circuit court involving:
a. Affirmance or annulment of a marriage;
b. Divorce;
c. Custody;
d. Spousal or child support;
e. The control or disposition of a child;
f. Any other domestic relations matter arising under Title 16.1
or Title 20.
Jenkins argues that, although Code § 17.1-405 gives us jurisdiction over appeals involving
custody, that jurisdiction extends only to custody cases “arising under Title 16.1 or Title 20.”
Code § 17.1-405. She reasons that, because this case involves a suit for a declaratory judgment
pursuant to the Declaratory Judgment Act, Code § 8.01-184, et seq., the language “Any other
domestic relations matter arising under Title 16.1 or Title 20,” limits our jurisdiction to custody
disputes arising under those titles. We disagree.
Our jurisdiction over the subject areas enumerated by Code § 17.1-405 is not limited to
actions arising out of Title 16.1 or Title 20. In Bullis v. Bullis, 22 Va. App. 24, 467 S.E.2d 830
(1996), we held that an independent action instituted pursuant to Code § 8.01-428 to set aside a
final decree of divorce is within this Court’s appellate jurisdiction, even though the action arose
out of Code § 8.01-428 rather than Title 16.1 or Title 20. We explained that “[b]ecause the
underlying cause in this case is a decree involving a divorce . . . this Court has jurisdiction to
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review the final judgment.” Id. at 31, 467 S.E.2d at 834. Likewise, despite the fact that Miller
brought this suit under the declaratory judgment act, we hold that we have jurisdiction over this
appeal because the underlying cause is a custody dispute. See also, Khanna v. Khanna, 18
Va. App. 356, 357 n.1, 443 S.E.2d 924, 925 n.1 (1994).
Next, Jenkins argues that it was improper for the circuit court to exercise its jurisdiction
to entertain Miller’s declaratory judgment action. Jenkins argues that declaratory judgment is
inappropriate because other remedies are available to Miller.
“Under the Declaratory Judgment Act, Code §§ 8.01-184 through -191, circuit courts
have the authority to make ‘binding adjudications of right’ in cases of ‘actual controversy’ when
there is ‘antagonistic assertion and denial of right.’” USAA Cas. Ins. Co. v. Randolph, 255 Va.
342, 345, 497 S.E.2d 744, 746 (1998) (quoting Code § 8.01-184). “The Declaratory Judgment
Act does not give trial courts the authority to render advisory opinions, to decide moot questions,
or to answer inquiries that are merely speculative.” Id. at 346, 497 S.E.2d at 746.
The intent of the declaratory judgment statutes is not to give
parties greater rights than those which they previously possessed,
but to permit the declaration of those rights before they mature. In
other words, the intent of the act is to have courts render
declaratory judgments which may guide parties in their future
conduct in relation to each other, thereby relieving them from the
risk of taking undirected action incident to their rights, which
action, without direction, would jeopardize their interests. This is
with a view rather to avoid litigation than in aid of it.
. . . [T]he power to make a declaratory judgment is a
discretionary one and must be exercised with care and caution. It
will not as a rule be exercised where some other mode of
proceeding is provided.
Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414, 421, 177 S.E.2d 519, 524 (1970) (emphasis
added).
In Randolph, our Supreme Court addressed the appropriateness of declaratory judgment
where other remedies are available. In that case, Randolph was accidentally shot while at work.
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Randolph filed a suit asking the court to declare that his injury did not arise out of his
employment, which would allow him to pursue a tort action rather than seeking redress under the
Workers’ Compensation Act. The Supreme Court held that an action for declaratory judgment
was inappropriate because Randolph’s “case involves claims and rights that had accrued and
matured when the bill of complaint was filed.” Randolph, 255 Va. at 347, 497 S.E.2d at 747.
The Court explained, “declaratory judgment did not lie because other remedies were available to
Randolph, namely, a claim for workers’ compensation benefits or an action at law.” Id.
Like Randolph, Miller has remedies available to her aside from declaratory judgment.
The future harm alleged by Miller is that Jenkins will seek to register and enforce the Vermont
custody orders. However, as noted above, Jenkins is already attempting to do so. The wrong
that Miller alleges has already been suffered. In the very same hearing in which the circuit court
addressed Miller’s claim for declaratory judgment, the circuit court also heard argument on
Jenkins’ separate request to register and enforce the Vermont orders. Miller objected, arguing
that Virginia may not either register or enforce the Vermont orders. According to Miller’s reply
brief and the representations of her counsel at oral argument, the litigation involving Jenkins’
petition to register and enforce the Vermont orders continues to this day and Miller is continuing
to oppose Jenkins’ request on the same grounds on which she seeks declaratory relief. 2
Declaratory judgment “will not as a rule be exercised where some other mode of
proceeding is provided.” Bishop, 211 Va. at 421, 177 S.E.2d at 524. Declaratory judgment does
not lie in this case because Miller has other remedies available to her – opposing Jenkins’ motion
to register and enforce – and is, in fact, pursuing those remedies. Because declaratory judgment
2
At oral argument, Miller agreed that the issues in the two cases are “the same.”
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does not lie in this case, the circuit court had no jurisdiction to entertain Miller’s claim and,
therefore, properly dismissed it. 3
The same is true of Miller’s claim for injunctive relief. Courts “‘will not enjoin the
prosecution of an action at law when the defendant can make a full and adequate defense in such
action. A suit at law cannot be enjoined and the litigation transferred to the equity forum merely
on the assertion of defenses that are pleadable at law.’” Williams v. Southern Bank of Norfolk,
203 Va. 657, 664, 125 S.E.2d 803, 808 (1962) (quoting Belcher v. Davis, 203 Va. 38, 41, 121
S.E.2d 760, 762-63 (1961)). As discussed above, Miller is not without an adequate remedy at
law. She can and is defending against Jenkins’ motion to register and enforce the custody orders.
All of the claims that Miller raises in this case are available in the case filed by Jenkins. Thus,
the trial court properly dismissed Miller’s claim for an injunction as well.
For the foregoing reasons, we hold that the circuit court did not have jurisdiction to issue
a declaratory judgment in this case, and we affirm its dismissal of Miller’s complaint.
Affirmed.
3
Given our holding that the trial court correctly determined that a declaratory judgment
was not appropriate in this case, we need not and do not consider Jenkins’ remaining procedural
argument that the “law of the case” controls the outcome of this appeal. Likewise, we need not
and do not consider the merits of Jenkins’ arguments with respect to whether Congress, in
enacting DOMA, intended to permit the several states to restrict the application of the PKPA
with respect to custody and visitation of the progeny of same sex unions.
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