COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
BRUCE PATRICK McCLURE
MEMORANDUM OPINION *
v. Record No. 2569-95-4 JUDGE CHARLES H. DUFF
OCTOBER 8, 1996
MARGARET SUSAN McCLURE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
Mary M. Benzinger (Raymond B. Benzinger;
Benzinger & Benzinger, on brief), for
appellant.
Marc A. Astore (Shoun & Bach, on brief), for
appellee.
Bruce P. McClure (husband) appeals the decision of the
circuit court awarding spousal support to Margaret Susan McClure
(wife) and deciding other issues. Husband contends on appeal
that the trial court (1) erred in allowing wife to amend her bill
of complaint; (2) did not have subject matter jurisdiction over
the issues raised in wife's amended bill of complaint; (3) erred
in awarding wife $6,000 in attorney's fees; and (4) erred by
imputing income to husband. We affirm the decision of the trial
court.
Amended Bill of Complaint
Rule 1:8 provides that "[l]eave to amend [any pleading]
shall be liberally granted in furtherance of the ends of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
justice." "[T]he decision to permit a party to amend a pleading
is discretionary with the trial court. It is reviewable by this
Court only for an abuse of that discretion." Thompson v.
Thompson, 6 Va. App. 277, 281, 367 S.E.2d 747, 750 (1988).
Wife sought leave to amend her previously filed bill of
complaint upon entry of the ex parte divorce received in Guam by
husband. In both the original and amended bills of complaint,
wife sought spousal and child support, child custody, and
equitable distribution of the parties' assets. The amended bill
added a count, based upon the entry of the Guam divorce decree,
alleging that the Guam court lacked personal jurisdiction over
wife. The amended bill also requested that wife be designated as
the irrevocable beneficiary of husband's survivor benefit or
annuity plan.
The original bill and the amended bill both arose in the
context of the parties' divorce. Both bills sought spousal and
child support and equitable distribution. See Rosenberg v.
Rosenberg, 210 Va. 44, 47, 168 S.E.2d 251, 253 (1969). "[T]he
allegations of the amended and supplemental bill do not state 'a
completely new case', are the proper subject of such a bill and
sufficiently relate to the original bill." Id. Therefore, there
was no abuse of the trial court's discretion.
Subject Matter Jurisdiction
Husband asserts that, because he obtained a divorce in a
foreign jurisdiction, the trial court lacked subject matter
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jurisdiction to rule on spousal or child support, child custody,
or equitable distribution. However, the court in Guam never had
personal jurisdiction over wife. The only court which obtained
personal jurisdiction over both parties was the trial court in
Virginia.
Full faith and credit given a foreign divorce
decree extends to "property and support
rights, as well as to marital status, where
the divorce court had personal jurisdiction
over the parties." However, when a divorce
is granted ex parte the decree is binding
only insofar as it terminates the marital
status of the parties. Personal rights,
which include property and support rights in
divorce cases, may not be adjudicated by a
court lacking in personam jurisdiction.
Gibson v. Gibson, 5 Va. App. 426, 429, 364 S.E.2d 518, 519 (1988)
(citations omitted). "In Virginia, spousal support and
maintenance and property rights are cognizable legal obligations
which do survive an ex parte foreign divorce decree." Id.
Similarly, parents are legally obligated to provide support to
their minor child. Featherstone v. Brooks, 229 Va. 443, 448, 258
S.E.2d 513, 516 (1979). The court retains continuing
jurisdiction to exercise its authority over the maintenance and
support of children. See Kelley v. Kelley, 248 Va. 295, 298, 449
S.E.2d 55, 56 (1994).
Moreover, under Code § 20-107.3(J), a court of proper
jurisdiction
may exercise the powers conferred by this
section after a court of a foreign
jurisdiction has decreed a dissolution of a
marriage or a divorce from the bond of
matrimony, if (i) one of the parties was
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domiciled in this Commonwealth when the
foreign proceedings were commenced, (ii) the
foreign court did not have personal
jurisdiction over the party domiciled in the
Commonwealth, (iii) the proceeding is
initiated within two years of receipt of
notice of the foreign decree by the party
domiciled in the Commonwealth, and (iv) the
court obtains personal jurisdiction over the
parties . . . .
(Emphasis added.) Each of the four requirements was satisfied in
this case. Cf. Campbell v. Altizer, 19 Va. App. 553, 453 S.E.2d
570 (1995).
Parra v. Parra, 1 Va. App. 118, 336 S.E.2d 157 (1985),
relied upon as authority by husband, addressed the authority of a
trial court to bifurcate a decree of divorce from resolution of
equitable distribution issues. That question, specifically
resolved under the current statute, is inapposite to the issue
here.
Therefore, the trial court had subject matter jurisdiction.
Attorney's Fees
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of counsel fees is reasonableness under all the circumstances.
McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The trial court found that husband continued to vigorously
object to the court's jurisdiction after the court had rejected
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husband's arguments. Husband objected to the court's
jurisdiction in a motion filed April 14, 1995, which was denied
by the trial court on April 21, 1995. On May 12, 1995, husband
filed a motion for reconsideration and a motion to dismiss wife's
amended bill of complaint, both of which raised the same
jurisdictional argument. The court denied husband's motion to
dismiss by order entered May 26, 1995 and denied husband's motion
for reconsideration on June 9, 1995 "for the same reasons stated
in the April 21, 1995 hearing."
The record supports the factual finding by the trial court
that husband continued to assert an argument previously rejected
by the court. Based on the number of issues involved and the
respective abilities of the parties to pay, the award of $6,000
in attorney's fees to wife was not unreasonable or an abuse of
the trial court's discretion.
Imputation of Income
"[A] court may impute income to a party who is voluntarily
unemployed or underemployed. Imputation of income is based on
the principle that a spouse should not be allowed to choose a low
paying position that penalizes the other spouse or any children
entitled to support." Calvert v. Calvert, 18 Va. App. 781,
784-85, 447 S.E.2d 875, 876-77 (1994) (citations omitted).
Decisions concerning child support "rest within the sound
discretion of the trial court and will not be reversed on appeal
unless plainly wrong or unsupported by the evidence." Id. at
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784, 447 S.E.2d at 876.
Husband previously earned over $100,000 annually before he
was involuntarily retired from the military in August 1994.
Husband received notification of his involuntary retirement in
January 1994, but the trial court found that husband did not make
"totally reasonable efforts to obtain satisfactory, suitable
employment" after receiving notification. Husband spent several
months during the summer volunteering for the Forest Service in
Idaho. By husband's own testimony, the volunteer work resulted
in a missed opportunity for husband to obtain a teaching job.
Husband submitted evidence that he had attempted to obtain
additional employment, but acknowledged that he had not pursued
any management positions that paid less than $60,000 annually.
The court is authorized to consider the parties' earning
capacity when determining child support. Code § 20-108.1(B)(11).
At the time of the hearing, appellant testified that he earned
$20 an hour teaching one and one-half hours a day, or 7.5 hours a
week. The trial court imputed additional income to husband equal
to earnings at the minimum wage for 32.5 hours per week. We
cannot say that the trial court's decision to impute income to
husband was plainly wrong or unsupported by the evidence.
Accordingly, the decision of the circuit court is affirmed.
This matter is remanded to the trial court to assess and award
appropriate appellate attorney's fees to wife.
Affirmed and remanded.
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Bruce Patrick McClure v. Margaret Susan McClure
Combined Opinion