COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
ARTHUR O. ROGERS
OPINION BY
v. Record No. 0808-96-3 JUDGE LARRY G. ELDER
JANUARY 14, 1997
NORA KATHERINE ROGERS DAMRON
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Thomas P. Walk (Altizer, Walk & White, on
briefs), for appellant.
James R. Henderson IV (Felicia H. de Courcy;
Henderson and de Courcy, on brief), for
appellee.
Arthur O. Rogers (husband) appeals from a decision of the
Circuit Court of Tazewell County (trial court) denying his
motions to vacate an order finding him in contempt, to quash a
capias, and to declare void a prior decree incorporating a
settlement agreement. He contends that the trial court lacked
jurisdiction to institute a contempt proceeding against him
because the court order on which the contempt proceeding was
based was void. For the reasons that follow, we affirm.
I.
FACTS
Husband and Nora Katherine Rogers Damron (wife) were married
in 1960, and husband filed for divorce in 1979. Wife filed an
answer and cross bill requesting, among other things, spousal
support. On April 23, 1981, the trial court granted husband a
divorce a vinculo matrimonii. In the decree, the trial court
reserved jurisdiction over spousal support and property issues by
stating:
It is further ORDERED, ADJUDGED and DECREED
that this Court retain jurisdiction of this
case for the purpose of adjudicating and
determining all the rights of the wife for
spousal support and property rights existing
between the parties until such property
rights and rights to spousal support are
fully considered and determined.
On July 17, 1981, the parties entered into a settlement
agreement. Under the agreement, husband agreed to transfer
certain property to wife, to make annual payments to wife over a
ten-year period, to pay specified debts, and to obtain a term
life insurance policy as security for his obligations under the
agreement. Wife agreed "to release and discharge . . . all [of
her] interest by dower and any and all claims which she may or
might have for alimony and for support and maintenance for
herself or otherwise." On November 4, 1981, the trial court
entered a decree that ratified and incorporated the agreement
between the parties (settlement decree).
In 1986, wife began contempt proceedings to enforce the
terms of the settlement decree. On April 23, 1993, the trial
court found that husband was in arrears in the payment of his
obligations under the settlement decree. It held that husband
was in contempt of court and ordered the issuance of a capias for
his arrest.
On November 22, 1994, husband filed motions to quash the
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capias, to vacate the finding of contempt and to void the
settlement decree. The trial court denied husband's motions.
II.
VALIDITY OF THE 1981 SETTLEMENT DECREE
Husband contends that the trial court erred when it denied
his motions because the 1981 settlement decree enforced by the
trial court was void. We disagree.
A decree is void ab initio if it "has been procured by
extrinsic or collateral fraud, or entered by a court that did not
have jurisdiction over the subject matter of the parties." Rook
v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987). A void
judgment may be attacked collaterally or directly in any court at
any time. Id.
Husband's attack on the 1981 settlement decree is based
solely on his contention that the trial court lacked subject
matter jurisdiction to incorporate the settlement agreement into
the decree. Subject matter jurisdiction may be fixed only by the
constitution or a statute, and it may not be conferred upon a
court by the consent of the parties. See Barnes v. American
Fertilizer Co., 144 Va. 692, 705-06, 130 S.E. 902, 906 (1925).
In Virginia, jurisdiction over divorce matters is
statutorily-based. See Lapidus v. Lapidus, 226 Va. 575, 578, 311
S.E.2d 786, 788 (1984). A court has jurisdiction over the
subject matter if it has jurisdiction over the cause of action
and of the relief sought. See Nolde Bros. v. Chalkley, 184 Va.
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553, 561, 35 S.E.2d 827, 830 (1945).
Husband does not argue that the trial court lacked
jurisdiction over the cause of action in this case. 1 Instead,
husband contends that the 1981 settlement decree is void because
the trial court lacked jurisdiction to grant the relief sought by
wife: the incorporation of the settlement agreement in a decree
issued after the entry of the divorce decree. 2 Husband relies on
1
In 1981, the trial court had jurisdiction over suits for
divorce and the adjudication of related support, custody and
property issues. Code §§ 20-96, 20-107 (1975 & Supp. 1980). In
addition, the court properly used its inherent equity power to
bifurcate the divorce proceeding when it expressly reserved its
consideration of the spousal support and property issues beyond
the entry of the divorce decree. See Erickson-Dickson v.
Erickson-Dickson, 12 Va. App. 381, 388, 404 S.E.2d 388, 392
(1991) (stating that "when a court acquires jurisdiction over the
subject matter and over the person, the court retains
jurisdiction until the matter before it has been fully
adjudicated"); Morris v. Morris, 3 Va. App. 303, 306, 349 S.E.2d
661, 662-63 (1986) (holding that trial court had power to reserve
jurisdiction over attorney's fees, spousal support, custody, and
equitable distribution after entry of divorce decree); Parra v.
Parra, 1 Va. App. 118, 127, 336 S.E.2d 157, 161-62 (1985)
(stating that once subject matter jurisdiction attaches, only a
statute can prevent a trial court from using its inherent powers
in equity); Brinn v. Brinn, 147 Va. 277, 285, 137 S.E. 503, 505
(1927) (describing inherent equity powers of a court of
chancery).
2
We disagree with wife's argument that the power of a
divorce court to incorporate a settlement agreement is a
procedural matter rather than an issue of subject matter
jurisdiction. Subject matter jurisdiction encompasses both
jurisdiction over the cause of action and the power to grant the
relief sought. See Nolde Bros., 184 Va. at 561, 35 S.E.2d at
830. Wife's reliance on Morrison v. Bestler is misplaced. 239
Va. 166, 387 S.E.2d 753 (1990). In Morrison, the Virginia
Supreme Court held that compliance with the notice requirement
and waiting period associated with a medical malpractice tort
claim was not an issue of subject matter jurisdiction. 239 Va.
at 173, 387 S.E.2d at 757-58. However, unlike the issue in this
case, these procedural matters concern neither the court's
underlying grant of jurisdiction to adjudicate tort claims nor
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the language of the 1981 version of Code § 20-109.1 stating that
a divorce court may incorporate a settlement agreement "by
reference in its . . . decree of divorce . . . ." (1975 & Supp.
1980). 3 Husband argues that the plain meaning of Code
§ 20-109.1 in 1981 divested the trial court of its subject matter
jurisdiction to incorporate settlement agreements after the
decree of divorce became final. We disagree.
We hold that the 1981 version of Code § 20-109.1 did not
deprive the trial court of its power to incorporate a settlement
agreement in a decree following the entry of a decree of divorce
and that the 1981 settlement decree is not void for lack of
subject matter jurisdiction. Both the legal framework on which
the court's power to grant the relief sought in such cases:
money damages. The issue in this case, on the other hand,
centers on the power of the trial court to incorporate a
settlement agreement into a post-divorce decree at the request of
a party, which was the relief sought by wife in November, 1981.
Thus, husband's appeal attacks the settlement decree for lack of
subject matter jurisdiction, an issue that may be raised at any
time.
3
In 1981, Code § 20-109.1 stated in relevant part:
Any court may affirm, ratify and incorporate
by reference in its . . . decree of divorce
whether from the bond of matrimony or from
bed and board, any valid agreement between
the parties, or provisions thereof,
concerning conditions of the maintenance of
the parties, or either of them and the care,
custody and maintenance of their minor
children, or establishing or imposing any
other condition or consideration, monetary or
nonmonetary. . . .
(1975 & Supp. 1980).
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Code § 20-109.1 was grafted and the purpose of Code § 20-109.1
support this conclusion.
First, Code § 20-109.1 was not intended to alter the divorce
court's power that existed prior to the statute's enactment to
incorporate settlement agreements into its decrees. Before Code
§ 20-109.1 was enacted in 1970, a divorce court had an
"incidental authority to approve bona fide and valid agreements
between the parties for the settlement of property rights and
claims for [support]." Barnes, 144 Va. at 710, 714, 130 S.E. at
907, 909 (holding that a trial court has a right to set forth in
its decrees a settlement agreement entered between the parties in
a divorce proceeding). This incidental authority of a divorce
court extended to the enforcement of the agreement through its
contempt power if the court had incorporated the terms of the
settlement agreement instead of merely ratifying them. See Gloth
v. Gloth, 154 Va. 511, 548, 153 S.E. 879, 891 (1930) (stating
that a trial court has jurisdiction in a divorce suit to enforce
the terms of a settlement agreement when it incorporates them in
its decree); see also Casilear v. Casilear, 168 Va. 46, 55, 190
S.E. 314, 318 (1937) (stating that a trial court retains
jurisdiction after a final decree of divorce to enforce
agreements between the parties); McLoughlin v. McLoughlin, 211
Va. 365, 368, 177 S.E.2d 781, 783, (1970) (stating that prior to
the enactment of Code § 20-109.1, the incorporation of a
settlement agreement "meant the court could use its contempt
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power to enforce the agreement"). Soon after the enactment of
Code § 20-109.1, the Virginia Supreme Court stated that this
statute merely codified the preexisting power of a divorce court
to incorporate a settlement agreement in a decree and to enforce
it through its contempt power. See McLoughlin, 211 Va. at 368,
n.1, 177 S.E.2d at 783, n.1.
In addition, the conclusion that a divorce court may in a
bifurcated proceeding incorporate a settlement agreement
following the entry of a decree of divorce is consistent with the
purpose of Code § 20-109.1. "The primary objective of statutory
construction is to ascertain and give effect to legislative
intent." Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d
337, 338 (1983). A statute is construed "to promote the end for
which it was enacted." Woolfolk v. Commonwealth, 18 Va. App.
840, 847, 447 S.E.2d 530, 533 (1994). The purpose of Code
§ 20-109.1 is to encourage dispute resolution and the formation
of settlement agreements in divorce proceedings by facilitating
their enforcement "by the contempt power of the court." Morris
v. Morris, 216 Va. 457, 459, 219 S.E.2d 864, 866-67 (1975). When
it enacted Code § 20-109.1, the General Assembly was presumably
aware of a divorce court's inherent equity power to adjudicate
separately the issues associated with a divorce. See Morris v.
Morris, 3 Va. App. 303, 306, 349 S.E.2d 661, 662-63 (1986)
(holding that trial court has inherent equity power to reserve
jurisdiction over attorney's fees, spousal support, custody, and
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equitable distribution after entry of divorce decree) (citing
Brinn v. Brinn, 147 Va. 277, 285, 137 S.E. 503, 505 (1927)); see
also cases cited in supra note 1. In a bifurcated divorce
proceeding, the only construction of Code § 20-109.1 that
promotes the statute's purpose is one that permits a divorce
court to incorporate settlement agreements after the entry of a
divorce decree. When a divorce court decrees a divorce while
reserving consideration of support, custody, or property issues,
it provides the parties with additional time to resolve their
differences. In these circumstances, a divorce court must
possess the power to incorporate in a subsequent decree, rather
than merely ratify, any settlement negotiated by the parties in
order to facilitate the trial court's enforcement of such
agreements through the contempt power of the court.
For the foregoing reasons, we affirm the trial court's
denial of husband's motions to vacate the order finding him in
contempt, to quash the capias and to declare void the 1981
settlement decree.
Affirmed.
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