Christensen v. Christensen

                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia


PETER D. CHRISTENSEN
                                                OPINION BY
v.        Record No. 1363-97-1            JUDGE JOSEPH E. BAKER
                                            FEBRUARY 24, 1998
JANALEE M. CHRISTENSEN


           FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                      John M. Folkes, Judge
          Breckenridge Ingles (Martin, Ingles & Ingles,
          Ltd., on brief), for appellant.

          No brief or argument for appellee.



     Peter D. Christensen (husband) appeals the decision of the

Gloucester County Circuit Court awarding Janalee M. Christensen

(wife) a divorce.   Husband contends that the trial court

erroneously entered the divorce decree without complying with the

provisions of Code § 20-107.3(A).    He asserts there was "no

evidence that it was clearly necessary to retain jurisdiction

with regard to equitable distribution."   Accordingly, husband

argues, we should set aside the decree of divorce and remand this

cause to the trial court for further proceedings.   We disagree

and deny the requested relief.

     The facts are not in dispute.    Husband and wife were married

in 1980 in Florida.    Two children were born of the marriage, both

of whom remain minors.   On February 22, 1996, husband filed a

bill of complaint for divorce charging desertion and adultery and

requested all such relief as provided for by Code § 20-107.3.
Wife filed an answer and cross-bill requesting a divorce on

grounds of cruelty and seeking equitable distribution.     On May 9,

1997, the trial court indicated its intent to enter a decree of

divorce based on a one-year separation, reserving to the parties

their right to equitable distribution.     Husband objected to entry

of the divorce decree prior to resolution of the equitable

distribution because the bifurcation was not "clearly necessary."

The parties had "very little [marital property] to speak of," a

trailer and "a little bit of real estate, maybe worth $20,000."

The record contains no other evidence regarding the necessity for

bifurcation.
     Confronted with husband's objection that the divorce should

not be granted in the absence of a record showing a clear

necessity to reserve matters of equitable distribution, the trial

court responded:   "Well, I think it's necessary.    I think [wife]

wants a divorce, and that might accelerate yours."     The trial

court then entered the decree of divorce, which included a

provision that "the parties reserve their right to an equitable

distribution of the marital property of the parties pursuant to

§ 20-107.3 of the Code of Virginia, 1950, as amended."

     Code § 20-107.3, as originally written, did not address

whether a trial court could dissolve the bond of matrimony

between the parties and retain jurisdiction to decide marital

property matters at a later time.      See Parra v. Parra, 1 Va. App.

118, 336 S.E.2d 157 (1985).   Subsequent to Parra, in 1986, Code



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§ 20-107.3 was amended.     See 1986 Va. Acts ch. 537.   In relevant

part, it then provided:
          Upon decreeing the dissolution of a marriage,
          and also upon decreeing a divorce from the
          bond of matrimony, . . . [t]he court, on the
          motion of both parties, may retain
          jurisdiction in the final decree of divorce
          to adjudicate the remedy provided by this
          section when the court determines that such
          action is clearly necessary because of the
          complexities of the parties' property
          interests, and all decrees heretofore entered
          retaining such jurisdiction are validated.

Id. (emphasis added).

     The 1986 amendment clearly authorized bifurcation of the

divorce issue and equitable distribution of marital property

"only where the parties jointly [made] a motion to do so and then

only when the court determine[d] that such action [was] clearly

necessary because of the complexities of the parties' property

interests."   Erickson-Dickson v. Erickson-Dickson, 12 Va. App.

381, 385-86, 404 S.E.2d 388, 391 (1991).     Otherwise, the divorce

issues and equitable distribution determinations were to be

adjudicated contemporaneously.     See id.

     In both 1991 and 1992, the legislature again amended Code

§ 20-107.3 1 but continued limitations on the trial court's

authority to retain equitable distribution jurisdiction upon

granting a final divorce.     See 1991 Va. Acts ch. 640; 1992 Va.
     1
      The legislature previously had enacted other amendments,
not directly relevant to the portion of the statute under
discussion, in 1988, 1989 and 1990. See 1988 Va. Acts chs. 745,
746, 747, 825, 880; 1989 Va. Acts ch. 70; 1990 Va. Acts chs. 636,
764.



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Acts ch. 88.   The 1991 and 1992 amendments were effective at the

time the trial court entered the decree from which this appeal

emanates.   As a result of these amendments, the applicable

portion of Code § 20-107.3 provides:
          Upon decreeing the dissolution of a marriage,
          and also upon decreeing a divorce from the
          bond of matrimony, . . . [t]he court, on the
          motion of either party, may retain
          jurisdiction in the final decree of divorce
          to adjudicate the remedy provided by this
          section when the court determines that such
          action is clearly necessary, and all decrees
          heretofore entered retaining such
          jurisdiction are validated.

Id. (emphasis added).    The 1991 and 1992 amendments eliminated

the requirement that both parties join the retention motion and

the requirement that the equitable distribution matter be

complex.    However, the statute retained the requirement that the

trial court must make a specific finding of clear necessity for

granting the divorce while retaining jurisdiction to decide

equitable distribution issues.

     Under the facts of this case, we hold that the trial court

erred in bifurcating the equitable distribution and divorce

proceedings.   The trial court made no express finding that

bifurcation of the proceedings was "clearly necessary," see Code
§ 20-107.3(A) (emphasis added), and the record does not support

such a finding.   We therefore must determine whether, as a

consequence, the decree entered by the trial court dissolving the

marriage must be set aside and the matter remanded.   Here, we are

confronted with an issue similar, but not identical, to the issue



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addressed by this Court in Erickson-Dickson.      There, the Court

noted that the 1986 amendment continued to be "silent as to

whether the divorce is void or voidable because complete relief

was not granted, or whether, how, or to what extent the parties

may proceed with equitable distribution."      12 Va. App. at 386,

404 S.E.2d at 391.

     Because subsequent amendments have done nothing to clarify

that dilemma, we hold that this Court's rationale in
Erickson-Dickson is equally applicable to the facts of this case.

 Circuit courts in this Commonwealth are authorized to enter

decrees of divorce that dissolve the bond of matrimony between

the parties, see Code § 20-96, and to "equitably distribut[e] the

marital wealth."     Erickson-Dickson, 12 Va. App. at 387, 404

S.E.2d at 392; see Code § 20-107.3.      Where a court has

jurisdiction of the subject matter of the controversy, and the

parties before it, its mistaken exercise of that jurisdiction

does not render its judgment void.       See County Sch. Bd. v. Snead,

198 Va. 100, 107, 92 S.E.2d 497, 503 (1956).      An act of the

legislature, not the courts, is required to deprive circuit

courts of authority to enter decrees of divorce.       Cf. Parra, 1

Va. App. at 123, 336 S.E.2d at 159 (noting that jurisdiction in

divorce suits "is purely statutory and cannot be acquired

inferentially or through indirection").

     Following the Erickson-Dickson opinion and before the

proceedings in the instant case, the legislature met on several



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occasions, amending Code § 20-107.3 two additional times, and yet

it has given no indication of a desire to deprive the circuit

court of the authority to dissolve the bond of matrimony even if

the attempt to retain jurisdiction over equitable distribution

was made contrary to the Code provisions.    See 1992 Acts ch. 88;

1993 Acts ch. 79.   "[W]here the General Assembly acts in an area

in which this Court has already spoken, it is presumed to know

the law as the Court has stated it and to acquiesce therein."
McFadden v. Commonwealth, 3 Va. App. 226, 230, 348 S.E.2d 847,

849 (1986) (quoting Burns v. Board of Supervisors, 227 Va. 354,

360, 315 S.E.2d 856, 860 (1984)).

     In summary, Code § 20-107.3(A) forbids the court from

retaining jurisdiction to make an equitable distribution award

after the divorce has been granted without first finding a clear

necessity therefor.   However, the statute does not prohibit the

court from granting the divorce.    Therefore, we hold that the

language in the decree that "the parties reserve their right to

an equitable distribution of the marital property of the parties

pursuant to § 20-107.3" was an erroneous attempt to retain

jurisdiction of the matter without complying with the clear

necessity provision of that Code section; however, the decree

dissolving the bond of matrimony between the parties is not void

or voidable as a result.

     Accordingly, we will not set aside the decree of divorce,

and the relief prayed for is denied.



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        Denied.




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