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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