COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
VALERIE A. PATEL
OPINION BY
v. Record No. 0228-00-2 JUDGE ROBERT P. FRANK
NOVEMBER 21, 2000
NOEL P. PATEL
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
Lawrence D. Diehl for appellant.
Richard L. Locke (Robert W. Partin;
Patricia A. Collins; McCandlish, Kaine &
Grant, on brief), for appellee.
Valerie A. Patel (wife) contends on appeal: 1) the trial
court erred in ruling that it lacked jurisdiction to make an
equitable distribution award pursuant to Code § 20-107.3; 2) the
trial court retained jurisdiction over the issue of equitable
distribution; and 3) she should be awarded attorney's fees or
costs related to this appeal.
I. BACKGROUND
Wife and Noel P. Patel (husband) were married in 1982. Wife
filed her bill of complaint for divorce on January 24, 1996. On
December 10, 1997, the trial court rejected a sketch final decree
that was endorsed by counsel because the decree purported "to
have the court retain jurisdiction in order to hold an equitable
distribution hearing." The trial court offered three options to
the parties: "(1) have the decree entered and dismiss the case
from the docket; (2) schedule an equitable distribution hearing;
or (3) schedule a hearing to state why retaining the case for an
equitable distribution hearing after granting a divorce is
clearly necessary."
On December 31, 1997, at the conclusion of a hearing,
counsel for the parties submitted to the trial court the same
sketch decree, which recited that "this cause shall otherwise be
retained on the docket for the Court to perform the equitable
distribution of the property of the parties pursuant to Virginia
Code Section 20-107.3, which the parties have agreed shall be an
equal (50/50) division." Simultaneously with entry of the
decree, the trial judge inserted, by his own hand, that the case
would be retained on the docket "for a period of 60 days." Thus,
in its final form, the decree read, in pertinent part, "And this
cause shall otherwise be retained on the docket for a period of
60 days for the Court to perform the equitable distribution of
the property of the parties pursuant to Virginia Code Section 20-
107.3, which the parties have agreed shall be an equal (50/50)
division." The trial court entered the decree December 31, 1997.
The final decree was endorsed by both counsel without objection.
By joint motion on February 20, 1998, the parties requested
a ninety-day extension of the time period the case would be
retained on the docket. On March 3, 1998, the trial court
entered an order retaining the case on the docket only until
March 31, 1998. The order was endorsed by both counsel without
objection. No further orders were entered until the trial court
dismissed the matter for lack of subject matter jurisdiction on
January 5, 2000.
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During November 1999, counsel for wife scheduled hearings
during which wife intended to request that the trial court enter
a pretrial order, hear evidence, and make an equitable
distribution of the marital assets.
A hearing was held on December 15, 1999, at which time
husband objected to the trial court taking any action because the
trial court did not have jurisdiction to do so. Husband asserted
the trial court lacked jurisdiction because the December 31, 1997
decree did not expressly find that retention of jurisdiction was
"clearly necessary," in accordance with the statutory
requirements, and the record did not support a finding that
retention was "clearly necessary." Husband further contended the
trial court retained jurisdiction only for a specified period of
time and that twenty-one days after the expiration of that
period, the court no longer had jurisdiction over the case.
After hearing the arguments of counsel and receiving briefs
on the issue, the trial court, by letter opinion and an order
dated January 5, 2000, dismissed the case. The trial court held
that, prior to the entry of the December 31, 1997 decree, the
court had found that retention of jurisdiction was "clearly
necessary" and that, "by specifically stating that jurisdiction
was retained to a date certain, the court was necessarily saying
that after that date, jurisdiction would no longer exist."
Furthermore, the trial court expressly found that the parties
knew the court would be divested of jurisdiction when the time
period expired, asking rhetorically, "Why else did [the parties]
ask the court to enter the March 3 order extending the first
retention of jurisdiction?"
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On January 24, 2000, counsel for wife presented argument to
the trial court on her motion to rehear and reconsider. The
trial court denied wife's motion to reconsider.
II. ANALYSIS
Wife first contends the trial court erred in ruling that it
did not have jurisdiction to make an equitable distribution award
beyond the extension period set by the court. We disagree.
Wife urges us to interpret the time period established in
the December 31, 1997 final decree and the March 3, 1998 order
extending the time period as simply a limitation that would
remove the cause from the docket, not a limitation on the court's
jurisdiction to make an equitable distribution award. In support
of her position, wife first points to the final decree, which
states, "And this cause shall otherwise be retained on the docket
for a period of 60 days for the Court to perform the equitable
distribution of the property of the parties pursuant to Virginia
Code Section 20-107.3, which the parties have agreed shall be an
equal (50/50) division." The March 3, 1998 order extending the
time limitation states,
This day counsel for the defendant
appeared and was heard, ore tenus, upon the
joint motion of the parties that this cause
be retained on the docket for an additional
period of time for the parties to divide
their marital property and, it appearing
proper to do so, it is hereby ORDERED that
this cause be retained on the docket until
March 31, 1998.
The court's order of January 5, 2000 dismissed the case and
removed it from the active docket of the court.
In interpreting the December 31, 1997 and March 3, 1998
orders, we must determine whether the language created a deadline
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after which the case would be removed from the trial court's
docket or a limitation on the court's jurisdiction to make an
equitable distribution award. We find that the court entered an
order retaining jurisdiction only for a time certain.
It is clear that the parties agreed to a "50/50" division of
the marital estate but were unable to have the property,
particularly husband's medical practice, fully evaluated by
December 31, 1997. The parties agreed to a sixty-day period and
then agreed to extend the time period to March 31, 1998.
By letter dated December 10, 1997, the trial judge returned
a sketch final decree retaining jurisdiction over equitable
distribution and indicated to the parties that he would not
retain the case for "an equitable distribution hearing" unless it
was "clearly necessary." In the opinion letter of January 5,
2000, the trial judge recited that both parties agreed for the
court to retain jurisdiction for a period of time and then agreed
to extend such retention until March 31, 1998. The trial court
continued,
By specifically stating that jurisdiction was
retained to a date certain, the court was
necessarily saying that after that date,
jurisdiction would no longer exist. The
parties knew that. Why else did they ask the
court to enter the March 3 order extending
the first retention of jurisdiction? Once
the extension ended, the court lost
jurisdiction over the issue of equitable
distribution. It cannot now be revived.
Unquestionably, the trial court intended to limit its
jurisdiction to make an equitable distribution award. Further,
the trial court found that the parties knew of the jurisdictional
time limitation. The language of the final decree supports that
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finding. The final decree retains the matter on the docket for a
period of sixty days "to perform the equitable distribution of
the property of the parties."
Interestingly, wife, in her brief, frames the issue as
follows:
[W]here the court has retained the issue of
equitable distribution in the cause for a
limited or defined period of time, does the
failure to adjudicate the relief within that
time and/or the removal of the matter from
the docket, cause the court to lose subject
matter jurisdiction over the ability to grant
equitable distribution of the property of the
parties.
While wife contends the orders in question were "merely
[orders] addressing the docketing of the case," nothing in the
record supports that position. Removing the case from the docket
while complete relief had not been obtained was not the issue.
The parties had difficulty in the evaluation of husband's medical
practice. The purpose of the time limitation was to put both
parties on terms to resolve the equitable distribution award in a
timely fashion. Code § 20-107.3 compels the trial court to
decide the divorce and property issues contemporaneously. See
Code § 20-107.3. The 1986 amendment to Code § 20-107.3 only
permits bifurcation under a "clear necessity" showing. See
Erickson-Dickson v. Erickson-Dickson, 12 Va. App. 381, 385-86,
404 S.E.2d 388, 391 (1991). In Erickson-Dickson, we wrote,
Ostensibly, the 1986 amendment was enacted,
among other reasons, to prevent a litigant or
the trial court from delaying adjudication of
property issues after a final divorce as a
means of using economic pressure to compel
one or both parties to make a forced
settlement of those or other issues, such as
support or custody.
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Id. at 386, 404 S.E.2d at 391 (citations omitted).
Wife's interpretation of the time limitation does not
respond to the trial court's proper concern for a timely
resolution of the equitable distribution award. Wife cites Code
§ 20-121.1 as dispositive of the issue. Code § 20-121.1 states:
In any suit which has been stricken from the
docket, and in which complete relief has not
been obtained, upon the motion or application
of either party to the original proceedings,
the same shall be reinstated upon the docket
for such purposes as may be necessary to
grant full relief to all parties.
Contrary to wife's assertion, Code § 20-121.1 supports a
finding that the time limitation in the final decree was for the
purpose of retaining jurisdiction to make an equitable
distribution award, not for the purpose of removing the case from
the docket. Wife's interpretation of the final decree would
remove the case from the docket and allow the parties to
reinstate the matter on the docket to litigate the equitable
distribution at their leisure. As the trial court said in its
opinion letter of January 5, 2000,
[C]ourt orders must mean something. If
jurisdiction was not lost by the court 21
days after March 31, the deadline set out in
the March 3 order means absolutely nothing.
If parties to litigation, whether
unilaterally or in concert, can simply ignore
deadlines imposed by courts for filing
pleadings and bringing matters on for
hearing, such court-imposed deadlines may as
well not exist.
We conclude that the language in the final decree retaining
jurisdiction "to perform equitable distribution" meant what it
said. When the deadline was extended until March 31, 1998, by
agreement of both parties, the trial court lost jurisdiction to
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adjudicate equitable distribution twenty-one days after March 31,
1998. See Rule 1:1. The trial court properly dismissed the case
on January 5, 2000.
Additionally, wife maintains the trial court had no
authority to limit the time frame in which the parties could
address equitable distribution. This issue is procedurally
defaulted under Rule 5A:18. Wife did not object to the
reservation nor did she object to the time limitation. In fact,
the parties requested the time extension. The order reserving
the equitable distribution issue and setting a time limitation
and the order extending the limitation were endorsed by wife's
counsel without objection. We have held that failure to object
to bifurcation, even where the statutory mandates or findings
have not been made, precludes the consideration of the issue on
appeal. See Erickson-Dickson, 12 Va. App. 381, 404 S.E.2d 388.
We find that, because wife agreed to both orders, she cannot now
argue the trial court lacked the authority to impose the
deadline. Therefore, we do not address the merits of her
argument.
Finally, both parties ask for an award of attorneys' fees
and costs related to this appeal. We find both parties had
reasonable grounds for this appeal and, therefore, we deny their
respective requests for awards of attorneys' fees. See Gayler v.
Gayler, 20 Va. App. 83, 87, 455 S.E.2d 278, 280 (1995).
For these reasons, we affirm the trial court's dismissal of
the suit for lack of jurisdiction and deny the parties' requests
for attorneys' fees.
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Affirmed.
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