Church v. Church

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia

TRACY ANN CHURCH
OPINION BY
v. Record No. 0792-96-4 JUDGE ROSEMARIE ANNUNZIATA
APRIL 8, 1997
MAURY CURTIS CHURCH

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
John D. Primeau (Stephens, Boatwright &
Howard, on brief), for appellant.

Kevin D. McCormick (Curtin, Nolan, Gallagher &
Mroz, on brief), for appellee.

Mother appeals from an order of the circuit court granting

father's motion to dismiss her petition for child support. The

court concluded that father owed no obligation of support because

the court had previously terminated his parental rights with

respect to the child. We find the court's order terminating

father's parental rights is void for want of jurisdiction and,

therefore, reverse the court's order dismissing mother's petition

for child support.

I.

Maury Curtis Church (father) and Tracy Ann Church (mother)

were divorced by final decree entered October 10, 1989.

Independent of the parties' admissions, the court found that the

parties' child "ha[d] been abandoned by his father; [and] that it

[wa]s in the best interest of the . . . child to terminate

[father's] residual parental rights." The court noted the
parties had agreed that "it [wa]s in the best interest of their

. . . child . . . to terminate the residual parental rights of

the father." Thus, as part of the final decree, the court

terminated father's residual parental rights, acting pursuant to

former Code § 16.1-279(A). 1 The decree also eliminated father's

obligation to provide child support and noted that mother "agreed

to renounce any claim she may have for delinquent child support

from [father]."
In July 1995, mother filed a petition for child support.

She acknowledged that the 1989 decree terminated father's

obligation to support the child but argued that the child's best

interests required a support order. Father filed a motion to

dismiss, arguing that the 1989 decree barred the relief wife

sought and that the time for seeking relief from that decree had

expired. The court granted father's motion, finding that it had

jurisdiction to terminate father's parental rights pursuant to

Code §§ 16.1-241(A)(5) and 16.1-244. 2
1
Former Code § 16.1-279(A) in effect at the time of the
final decree is, for all purposes material to this appeal,
identical to Code § 16.1-278.2, which provides, in part:

If a child is found to be . . . abandoned by
his parent . . . the juvenile court or the
circuit court may make . . . [an] order[] of
disposition to protect the welfare of the
child, . . . [t]erminat[ing] the rights of
the parent pursuant to § 16.1-283.
2
Code § 16.1-241(A)(5) grants jurisdiction to the juvenile
and domestic relations district courts (J&DR courts) over all
cases, matters and proceedings involving:

The custody, visitation, support, control or

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 II.

Mother failed to perfect a timely appeal from the October

1989 decree terminating father's residual parental rights.

Therefore, to have that decree set aside, mother must establish

that it is void. Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756,

758 (1987). A judgment entered by a court that does not have

jurisdiction over the subject matter is void. Id. Although the

parties agreed to the termination of father's parental rights,

together with his support obligation, jurisdiction cannot be

established by the parties' consent. Lucas v. Biller, 204 Va.

309, 313, 130 S.E.2d 582, 585 (1963).
A court possesses only such jurisdictional
powers as are directly, or indirectly,
expressly or by implication, conferred on it
by the constitution or legislation of the
sovereignty on behalf of which it functions.

20 Am. Jur. 2d Courts § 58 (1995); see also Thacker v. Hubard,
(..continued)
disposition of a child: . . . Where the
termination of residual parental rights and
responsibilities is sought. In such cases
jurisdiction shall be concurrent with and not
exclusive of courts having equity
jurisdiction, as provided in § 16.1-244.

Code § 16.1-244 provides, in part:

Nothing contained in this law shall deprive
any other court of the concurrent
jurisdiction . . . to determine the custody,
guardianship, visitation or support of
children when such custody, guardianship,
visitation or support is incidental to the
determination of causes pending in such
courts, . . . .

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122 Va. 379, 94 S.E. 929 (1918).

Jurisdiction to terminate parental rights can be found

neither in the common law nor in a court's inherent authority to

proceed under its general equity powers. Willis v. Gamez, 20 Va.

App. 75, 81-82, 455 S.E.2d 274, 277-78 (1995) ("`there was [no]

legal authority under the common law . . . for a total

relinquishment of parental rights and obligations or any inherent

authority in any court to terminate them'") (quoting Carroll
County Dept. of Social Servs. v. Edelmann, 577 A.2d 14, 25 (Md.

App. 1990)). 3 Accordingly, jurisdiction of the circuit courts to

terminate parental rights must be found, if at all, within the

statutory scheme. Id. at 81-83, 455 S.E.2d at 277-78.

Under Virginia's statutory scheme, the circumstances

providing authority for the termination of parental rights, and

the attendant obligation of support, are limited. While Title

3
At common law, the parent-child relationship was defined,
in part, in terms of the legal duty of the parent to support his
or her infant child. See, e.g., McClaugherty v. McClaugherty,
180 Va. 51, 65, 21 S.E.2d 761, 767 (1941); Carroll County Dept.
of Social Servs. v. Edelmann, 577 A.2d 14, 23 (Md. App. 1990)
("Parenthood is both a biological and a legal status."). The
common law knew no mechanism by which a parent's duty to support
his or her child could be terminated. See Edelmann, 577 A.2d at
25 ("[T]he duty arising from the relation of parent and child
. . . is a duty of which the parent can in no circumstances
divest himself."). Likewise, the termination or transfer of the
common law duty to support could not be achieved through
contract. See Buchanan v. Buchanan, 170 Va. 458, 477, 197 S.E.
426, 434 (1938); Kelley v. Kelley, 248 Va. 295, 299, 449 S.E.2d
55, 57 (1994). Because the chancery courts' inherent powers to
protect the rights of minors were derived from the common law,
those powers do not encompass the authority to terminate parental
rights. Willis, 20 Va. App. at 82, 455 S.E.2d at 277-78.

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16.1 of the Virginia Code provides for the termination of

parental rights, the reliance on it by the husband and the trial

court is misplaced. Title 16.1, denominated, "Courts Not of

Record," is manifestly limited to addressing only the power of

the J&DR courts; Code § 16.1-241, entitled, "Jurisdiction,"

cannot be relied upon to confer original jurisdiction on the

circuit courts. 4

The legislature's reference in Code § 16.1-241(A)(5) to

concurrent jurisdiction, upon which the circuit court relied in

granting father's motion to dismiss, does not constitute a grant
5
of jurisdiction to the chancery courts. It simply affirms that,

where jurisdiction is granted to the circuit courts, the

jurisdiction of the J&DR court is not exclusive. See Poole v.

4
A review of the title's specific provisions shows that Code
§ 16.1-241(A)(5) confers jurisdiction on the J&DR courts over all
cases involving, inter alia, "[t]he custody, visitation, support,
control or disposition of a child . . . [w]here the termination
of residual parental rights and responsibilities is sought."
Section 16.1-241 provides that, "[i]n such cases jurisdiction
shall be concurrent with and not exclusive of courts having
equity jurisdiction, as provided in § 16.1-244." Id. Code
§ 16.1-244(A) provides that nothing in the law governing the J&DR
courts "shall deprive any other court of the concurrent
jurisdiction . . . to determine the custody, guardianship,
visitation or support of children when such custody,
guardianship, visitation or support is incidental to the
determination of causes pending in such courts."
5
By analogy, we would not read Code § 16.1-244(B), which
provides that "[j]urisdiction of cases involving violations of
federal law . . . shall be concurrent," as conferring
jurisdiction on the federal courts; federal court jurisdiction
must be established under federal law. This provision simply
provides that the jurisdiction of the J&DR courts is not
exclusive in such cases.

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Poole, 210 Va. 442, 444, 171 S.E.2d 685, 686-87 (1970).

Jurisdiction that does not exist, a fortiori, cannot be

concurrent with another court's jurisdiction.

In Virginia, the jurisdictional powers of the circuit courts

are conferred by Code § 17-123. That section grants to the

circuit courts "original and general jurisdiction of all cases in

chancery and civil cases at law" and "jurisdiction of all other

matters . . . made cognizable therein by law." The circuit

court's jurisdiction in matters relating to minor children is

further "made cognizable" in three titles: Title 20, Title 63.1

and Title 31.
We note, preliminarily, that Chapter 11 of Title 63.1, which

confers chancery jurisdiction to circuit courts in adoption

proceedings, necessarily implicates the termination of parental

rights. See Code § 63.1-233 ("The birth parents . . . shall, by

. . . final order of adoption, be divested of all legal rights

and obligations in respect to the child . . . ."); Doe v. Doe,

222 Va. 736, 746, 284 S.E.2d 799, 805 (1981); Cage v.
Harrisonburg Dep't of Social Servs., 13 Va. App. 246, 249, 410

S.E.2d 405, 406 (1991). In the present case, however, the

circuit court clearly did not proceed under the adoption statute.

We also note that Chapter 2 of Title 31, which grants chancery

jurisdiction to the circuit courts over guardianship, likewise

does not confer jurisdiction to terminate parental rights; in any

event, the court in the present case did not proceed under that

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section. See Code § 31-4.

Thus, of the three titles, only Title 20 could arguably be

invoked here, as the trial court was proceeding in chancery on

the matter of divorce, specifically adjudicating child custody

and support. Chapter 6 of Title 20 confers chancery jurisdiction

to the circuit courts over divorce, and over the custody,

visitation and support of children, upon the court's exercise of

its jurisdiction over divorce. Code §§ 20-96, 20-107.2.

However, under this title, there is no express grant of

jurisdiction to the circuit court to terminate parental rights,

and none can arise by implication. It is well established in

Virginia that "jurisdiction in divorce suits is purely statutory,

and it cannot be acquired by the courts inferentially or through

indirection." Stroop v. Stroop, 10 Va. App. 611, 616, 394 S.E.2d

861, 864 (1990); see also Cutshaw v. Cutshaw, 220 Va. 638, 641,

261 S.E.2d 52, 54 (1979).

Moreover, in addition to the jurisdictional infirmity in the

case, the court's termination of parental rights was based, in

part, on the parties' agreement to terminate father's obligation

to pay child support. Indeed, the court refused to set the

termination aside on the ground that mother had agreed to it.

Such an agreement is void as against public policy and

unenforceable as a matter of law under the principles of Kelley

v. Kelley, 248 Va. 295, 298-99, 449 S.E.2d 55, 56-57 (1994),

which we find applicable here. Cf. Orlandi v. Orlandi, 23 Va.

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App. 21, 27 n.3, 473 S.E.2d 716, 719 n.3 (1996). A decree based

on such an agreement must likewise be deemed void.

In sum, the court in this case lacked jurisdiction to

terminate father's parental rights. Thus, the court's decree,

terminating father's parental rights and concomitantly relieving

him of his duty to support, is null and void.

Accordingly, we reverse the court's decision granting

father's motion to dismiss.

Reversed.

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Willis, J., concurring.

I concur in the result reached by the majority opinion.

However, I would hold that the decree terminating the father's

parental rights was void for failure to comply with the

procedural and substantive requirements of Code § 16.1-283. I

would hold it unnecessary to address the potential jurisdiction

of a circuit court to terminate parental rights in a properly

postured and developed case.

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