COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
JACK J. JENKINS
MEMORANDUM OPINION *
v. Record No. 2616-98-4 PER CURIAM
JUNE 15, 1999
NANCY ANN WHITEHEAD JENKINS
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
(Jon D. Huddleston; Sevila, Saunders,
Huddleston & White, on brief), for appellant.
(Mark B. Sandground; Curt M. Nichols;
Sandground, Barondess, West & New, on brief),
for appellee.
Jack J. Jenkins appeals from a final decree of divorce
awarding his wife, Nancy Ann Whitehead Jenkins, spousal support
and deciding other issues. The husband contends that the trial
judge erred in ruling that the issue of spousal support was
properly pleaded. The husband also seeks attorney's fees and
costs associated with this appeal. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the trial
judge. See Rule 5A:27.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Plea for Spousal Support
Husband contends that wife failed to properly plead the issue
of spousal support and that the trial judge erred in reserving
wife's right to seek spousal support in the future. Husband's
argument is based, in part, upon the procedural peculiarities of
this case.
The record establishes that the husband filed a Bill of
Complaint for divorce in which he prayed, in pertinent part, that
"to the extent any issues of support or property remain
unresolved, that the [husband] be awarded relief pursuant to
Section 20-107.1 and Section 20-107.3." The wife filed her
Answer, Grounds of Defense, and Cross-Bill. In the Grounds for
Defense, the wife asserted that there were unresolved "issues
concerning support, assets and liabilities, which remain to be
determined by the Court" and requested "that the Court resolve
issues of support and property which remain unresolved." The
husband filed a demurrer to the wife's cross-bill and a motion to
strike wife's answer and grounds of defense. The trial judge
sustained the husband's demurrer to the Amended Cross-Bill and
granted the wife leave to file another amended Answer. The
judge's order did not strike the grounds of defense. The wife
filed an Amended Answer and Amended Cross-Bill of Complaint. The
husband again successfully demurred to the cross-bill. However,
the trial judge denied the husband's motion to strike the amended
- 2 -
answer, but instead granted leave to amend. The order did not
address the grounds of defense. The wife filed several additional
amended cross-bills and answers, all of which were challenged by
the husband.
In his opinion letter dated June 25, 1997, the trial judge
found that wife had sought spousal support in her grounds of
defense, which remained pending despite the various orders
sustaining the husband's demurrers to the bills of complaint and
motions to strike the answers. In the divorce decree entered on
October 3, 1997, the trial judge expressly reserved jurisdiction
to determine spousal support and other issues by further decree.
By final decree entered October 13, 1998, the trial judge found
that "there was a pleading that was not stricken and was a part
of the record of this cause, and the [wife] is awarded a
reservation of spousal support." This appeal followed.
"'The power to decree a divorce is purely statutory.'
Therefore, unless the 'prerequisites necessary for exercising
that jurisdiction' are 'specifically pled[,] . . . the
proceedings [are] a nullity.'" Reid v. Reid, 24 Va. App. 146,
150, 480 S.E.2d 771, 773 (1997) (citations omitted).
Fundamental rules of pleading provide that
no court can base its judgment or decree
upon a right which has not been pleaded and
claimed. The office of pleadings is to give
notice to the opposing party of the nature
and character of the claim, without which
the most rudimentary due process safeguards
would be denied.
- 3 -
Boyd v. Boyd, 2 Va. App. 16, 18-19, 340 S.E.2d 578, 580 (1986).
Thus, the trial judge's exercise of the power to decree a
divorce "remains dependent upon the pleadings having raised the
issue." Id. at 19, 340 S.E.2d at 580.
The specific references to support set out in the pleadings
distinguish this case from the general prayers for relief that
we found to be insufficient in Boyd and Reid. Here, both
parties raised the question of spousal support in their initial
pleadings as an issue which remained to be resolved.
The husband correctly notes that a grounds of defense is a
responsive pleading at law, not equity. See Rules 3:5 and 3:7.
Nonetheless, we find no error in the trial judge's determination
that the wife's plea for spousal support remained before the
court.
The record reflects that the trial judge's order did not
strike all of the wife's initial pleading. The order sustained
the husband's demurrer to the portion of the pleading designated
cross-bill, granted the wife leave to amend the portion of the
pleading designated answer, and did not expressly address the
portion of the wife's pleading that was designated grounds of
defense, which contained a request for support and distribution
of property. Thus, we cannot conclude that the wife's request
for spousal support in her grounds of defense was stricken by
the trial judge. Indeed, in that same order, the trial judge
- 4 -
awarded the wife pendente lite spousal support. Cf. Boyd, 2 Va.
App. at 18, 340 S.E.2d at 579 (noting the absence of either a
request or order for pendente lite support). Furthermore, when
the trial judge awarded pendente lite support the husband did
not object to the grounds of defense as a pleading inappropriate
to an action in equity. The pleading was not challenged as to
form; it was not stricken, and it gave the husband notice of the
claim for support. Therefore, we find no error in the trial
judge's reservation to the wife of a right to spousal support in
the future.
Attorney's Fees and Costs
Because we find husband's appeal to be without merit, we deny
his request for attorney's fees and costs incurred on this appeal.
See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 479 S.E.2d 98
(1996).
Accordingly, the decree is summarily affirmed.
Affirmed.
- 5 -