COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, O’Brien and AtLee
Argued at Fredericksburg, Virginia
UNPUBLISHED
STUART CHUNG
MEMORANDUM OPINION* BY
v. Record No. 0325-18-4 JUDGE RICHARD Y. ATLEE, JR.
OCTOBER 2, 2018
STEPHANIE CHUNG, N/K/A
STEPHANIE FITZGERALD
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
Charles S. Sharp, Judge
Thomas B. Dance (Dance & Waldman, PLLC, on briefs), for
appellant.
Elizabeth Carpenter-Hughes (Anthony C. Williams; Williams
Stone Carpenter Buczek, PC, on brief), for appellee.
Appellant Stuart Chung (“husband”1) appeals the Circuit Court of Stafford County’s
decision to award Stephanie Fitzgerald (“wife”) spousal support as there was no valid pleading
before the circuit court requesting it. We agree that the circuit court erred and reverse.
I. BACKGROUND
Wife filed for divorce from husband alleging the sole ground of constructive desertion.
In her complaint, she also requested that the circuit court award her spousal support. This was
the only pleading filed in the circuit court that requested spousal support. Husband subsequently
filed an answer and cross-complaint requesting a divorce on the grounds of constructive
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
We use the designations “husband” and “wife” for clarity, recognizing that such terms
actually describe the parties’ former, rather than current, legal relationship.
desertion or, in the alternative, a divorce on the grounds of living separate and apart for one
year.2 In that pleading, he also requested that the circuit court deny wife’s request for spousal
support.
Husband moved for the circuit court to strike wife’s complaint. Finding that the evidence
did not support a finding of constructive desertion, the circuit court granted husband’s motion to
strike and, thus, dismissed wife’s complaint. The circuit court, pursuant to husband’s
cross-complaint, entered a final order of divorce on the grounds of the parties having lived
separate and apart for one year. It also awarded wife spousal support of $1,200 a month for five
years. Husband objected to the award of spousal support as there was no valid pleading before
the circuit court requesting said support, given that the circuit court struck wife’s complaint.
Husband timely noted his appeal.
II. ANALYSIS
We review this question of law de novo on appeal. Wroblewski v. Russell, 63 Va. App.
468, 476, 759 S.E.2d 1, 4 (2014). “Fundamental rules of pleading provide that no court can base
its judgment or decree upon a right which has not been pleaded and claimed.” Cirrito v. Cirrito,
44 Va. App. 287, 314-15, 605 S.E.2d 268, 281 (2004) (quoting Boyd v. Boyd, 2 Va. App. 16, 18,
340 S.E.2d 578, 580 (1986)). Before a circuit court can award permanent spousal support, there
must be a valid pleading before the court requesting it. See Wroblewski, 63 Va. App. at 480,
759 S.E.2d at 6 (reversing circuit court’s award of spousal support when it struck wife’s pleading
requesting it); Harrell v. Harrell, 272 Va. 652, 657-58, 636 S.E.2d 391, 394-95 (2006) (reversing
circuit court granting spousal support as there was “no valid pleading before the trial court
requesting permanent spousal support” after wife’s pleadings requesting it were dismissed). A
2
Wife’s counsel drafted an answer to husband’s cross-complaint and provided a copy to
counsel, but failed to file it with the circuit court; however, even if counsel had properly filed
that pleading, it failed to request an award of spousal support.
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stricken pleading is no longer a valid pleading as striking it “has the effect of withdrawing any
claims rooted in that pleading from consideration by the court . . . .” Wroblewski, 63 Va. App. at
476, 759 S.E.2d at 5. “A claim that is grounded upon a stricken pleading does not linger on in
spectral form before the court — it is interred and removed from consideration.” Id. at 477, 759
S.E.2d at 5.
As in Wroblewski, the circuit court here granted a motion to strike wife’s pleading
demanding spousal support before subsequently making such an award. Accordingly, as in that
case, that pleading became a nullity. Thus, the circuit court had no valid pleading before it
requesting spousal support, and it similarly lacked the authority to make such an award. In so
doing, the circuit court erred.
Wife counters that we should find both Wroblewski and Harrell are superseded by statute
because the General Assembly amended Code § 20-107.1(A) in 20163 to include the following
emphasized language: when entering a divorce decree, “the court may make such further decree
as it shall deem expedient concerning the maintenance and support of the spouses,
notwithstanding a party’s failure to prove his grounds for divorce, provided that a claim for
support has been properly pled by the party seeking support.” Code § 20-107.1(A). A panel of
3
Wife states that this language was added in 2018 and, based upon that misconception,
asserts that “the version of [Code] § 20-107.1.A [sic] in effect at all times between the filing of
the original Complaint and the entry of the Amended Final Decree did not contain the
emphasized language.” This is partially incorrect, as this amendment took effect in 2016, see
2016 Va. Acts ch. 477; thus, it would have been in effect at the time of the entry of the amended
final decree of divorce on January 25, 2018. Regardless, because it was not in effect at the time
of the initiation of these proceedings, it is not applicable here, and the amended language does
not apply retroactively. See Bailey v. Spangler, 289 Va. 353, 358-59, 771 S.E.2d 684, 686
(2015) (“Virginia law does not favor retroactive application of statutes. For this reason, we
interpret statutes to apply prospectively ‘unless a contrary legislative intent is manifest.’”
(quoting Bd. of Supervisors of James Cty. v. Windmill Meadows, LLC, 287 Va. 170, 180, 752
S.E.2d 837, 843 (2014))).
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this Court addressed this very amendment in Ozfidan v. Ozfidan, No. 0806-16-2, 2017 Va. App.
LEXIS 5 (Va. Ct. App. Jan. 10, 2017).4 We explained:
“As a general rule, laws existing at the time a suit is filed govern
the case.” Marion v. Marion, 11 Va. App. 659, 669, 401 S.E.2d
432, 438 (1991). “[W]hen a statute is amended while an action is
pending, the rights of the parties are to be decided in accordance
with the law in effect when the action was begun, unless the
amended statute shows a clear intention to vary such rights.” Price
v. Price, 4 Va. App. 224, 230, 355 S.E.2d 905, 908 (1987) (quoting
Washington v. Commonwealth, 216 Va. 185, 193, 217 S.E.2d 815,
823 (1975)). Because nothing in the 2016 amendment suggests the
General Assembly intended the amendment to apply retroactively
to actions filed before July 1, 2016, this Court reviews this case
under the prior version of Code § 20-107.1.
Id. at *11 n.3. The amendment to Code § 20-107.1 took effect on July 1, 2016, and therefore
was not in effect at the time wife filed her complaint on August 3, 2015, or when husband filed
his cross-complaint on September 8, 2015. As such, this amended language does not apply in
this case.5
III. CONCLUSION
The circuit court erred in awarding wife spousal support, as it was without authority to do
so with no valid pleading requesting it upon striking wife’s complaint. We deny both parties’
requests for an award of fees and costs. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695,
479 S.E.2d 98, 100 (1996). We reverse and remand this matter for proceedings consistent with
this opinion.
Reversed.
4
“Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3, 735 S.E.2d 255, 257
n.3 (2012) (citing Rule 5A:1(f)).
5
Moreover, even if we were to find it applied retroactively, it nonetheless fails to support
wife’s argument, as in striking the entirety of her complaint, the circuit court effectively ruled
that her claim was not “properly pled” as required by the amendment’s language.
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