COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
THOMAS RANDOLPH LEWIS
MEMORANDUM OPINION* BY
v. Record No. 1807-04-2 JUDGE ROBERT P. FRANK
MAY 10, 2005
COURTENAY MUNFORD LEWIS
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Pamela S. Baskervill, Judge
Donald K. Butler (Mary Beth Joachim; ButlerCook, L.L.P., on
briefs), for appellant.
David M. Branch for appellee.
Thomas Randolph Lewis, appellant (husband), appeals the trial court’s dismissal of his
cross-bill of complaint for annulment of his marriage to Courtenay Munford Lewis, appellee
(wife). Wife contends husband lacks standing to challenge the validity of the previous marriage.
For the reasons stated, we find the trial court did not err.
BACKGROUND
The facts are essentially uncontroverted. Wife married Frederick Latimer Wells on July
6, 1963. On September 25, 1975, the Circuit Court of the City of Richmond, Virginia, entered a
final decree of divorce, finding wife had been “an actual bona fide resident of the City of
Richmond, State of Virginia . . . .”
Wife married husband on March 1, 1976 in Haiti. The couple lived together as husband
and wife until March 1, 2003, when they separated.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Upon learning that the Richmond divorce of September 25, 1975 may be void for lack of
jurisdiction, wife, while married to appellant, filed again for divorce against Frederick L. Wells
on May 23, 1979. Her bill of complaint, this time filed in Powhatan County, Virginia, alleged
that the earlier divorce suit was “erroneously filed in the Circuit Court of the City of Richmond,
Division II and that the divorce . . . decreed by that court is null and void.” She further alleged
she was not aware of the invalidity of the divorce decree until May 17, 1979. The Circuit Court
of Powhatan County entered a final decree against Frederick L. Wells on August 30, 1979,
finding “the facts alleged in the bill of complaint have been proved and fully sustained.”
Following this decree, neither wife nor husband took action to validate this present marriage.
On March 9, 2004, wife filed a bill of complaint against husband, praying for a final
decree of divorce based on one-year separation. Among other relief, wife asked for an equitable
distribution award.
Husband answered the bill of complaint and filed a cross-bill for annulment, alleging the
marriage to be void. He claimed that at the time of their marriage, wife was not validly divorced
from Wells.
Wife filed an answer to husband’s cross-bill, asserting husband had no standing to attack
the validity of the prior Richmond divorce. She filed a motion in limine requesting the trial court
to preclude husband from introducing evidence of the prior 1979 pleadings and divorce decree
entered by the Circuit Court of Powhatan County divorcing wife from Wells. The motion
in limine asserted the Powhatan proceedings were relevant and material to neither the pending
divorce nor the pending cross-bill for annulment and therefore were inadmissible.
Without presenting testimony, counsel argued their respective positions at the hearing.
The trial court dismissed the cross-bill, finding husband had no standing to challenge the validity
of the 1975 Richmond divorce. While the trial judge ruled solely on the standing issue, she also
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concluded she saw nothing in the 1975 order that rendered it void. Further, the trial court opined
there was no evidence in the 1979 divorce action from which the court could have concluded the
1975 decree was invalid. The trial court then said, “[s]o I do not believe Mr. Lewis has standing,
but I mention these other two things for whatever help it is in the future.” The court therefore
granted the motion in limine and the motion to dismiss.
ANALYSIS
FINAL ORDER
As a preliminary matter, we asked both parties to brief the issue of whether or not the
trial court’s dismissal of the cross-bill is an appealable order. After reviewing the briefs, we are
satisfied that this matter is properly before this Court.
This Court is vested with jurisdiction over matters involving affirmance or annulment of
a marriage. Code § 17.1-405(3)(a). The statute allows that interlocutory orders may be appealed
if they “adjudicate the principles of a cause.” Code § 17.1-405(4)(ii). An interlocutory decree
adjudicates the principles of a cause when the rules or methods by which the rights of the parties
are to be finally worked out have been so far determined that it is only necessary to apply those
rules or methods to the facts of the case in order to ascertain the relative rights of the parties,
with regard to the subject matter of the suit. Whitaker v. Day, 32 Va. App. 737, 743, 530 S.E.2d
924, 927 (2000). “An interlocutory order that adjudicates the principles of a domestic relations
dispute ‘must respond to the chief object of the suit,’ . . . which is to determine the status of the
parties’ marriage and the custody of the parties’ children, and, if appropriate, to award spousal
and child support.” Wells v. Wells, 29 Va. App. 82, 86, 509 S.E.2d 549, 551 (1999) (quoting
Erikson v. Erikson, 19 Va. App. 389, 391, 451 S.E.2d 711, 713 (1994)) (citation omitted).
The order dismissing husband’s cross-bill “adjudicates the principles of a cause.” By
holding that husband cannot attack wife’s former marriage and by dismissing his suit for
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annulment, the court has, by implication, determined that a valid marriage exists between
husband and wife. This determines the rights of the parties and responds to the chief object of
the suit because it determines the status of the parties’ marriage. Because the court has
determined that the parties are married, this ruling “would necessarily affect the final order in the
case.” See Erikson at 391, 451 S.E.2d at 713.
The dissent relies on Erikson to conclude the dismissal of husband’s cross-bill is not an
appealable order. Erikson does not involve the dismissal of a cross-bill. The facts in the Erikson
opinion only recite that a bill of complaint was filed seeking a divorce. Id. at 390, 451 S.E.2d at
712. The trial court entered a decree that held only that the marriage was valid. Id. The decree
“did not grant or deny a divorce, spousal support . . . . The decree, therefore, is not a final decree
which disposes of the whole subject . . . and leaves nothing to be done by the court.” Id. at
390-91, 451 S.E.2d at 712. We also determined the order was not an interlocutory decree that
adjudicated the principles of the cause. Id. at 391, 451 S.E.2d at 712. We concluded:
Although the factual finding and legal holding that the parties are
validly married is an essential element of the complainant’s cause
of action, that ruling is not a legal determination of “the principles”
that are necessary to adjudicate the cause, and the ruling does not
“respond to the chief object of the suit which was to secure a
divorce.” See Webb v. Webb, 13 Va. App. 681, 682, 414 S.E.2d
612, 613 (1992); Polumbo v. Polumbo, 13 Va. App. 306, 411
S.E.2d 229 (1991); Weizenbaum v. Weizenbaum, 12 Va. App.
899, 407 S.E.2d 37 (1991); Pinkard [v. Pinkard], 12 Va. App. 848,
407 S.E.2d 339 [1991].
Erikson at 391-92, 451 S.E.2d at 713. Thus, we find Erikson is factually distinguishable and not
controlling.
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DISMISSAL OF CROSS-BILL
This issue before this Court is narrow in scope. Husband argues the trial court erred in
ruling he had no standing to challenge the validity of the 1975 Richmond divorce. Wife argues
the present marriage is valid.
Appellant’s only contention in his question presented is that the trial court erred in
dismissing the cross-bill for annulment and ruling that the marriage between the parties is valid.
He argues on brief that the 1979 Powhatan divorce decree renders the previous 1975 decree void.
Husband’s logic is that since the 1979 Powhatan County divorce determined the 1975 Richmond
divorce decree between wife and Wells to be void, then wife was still married to Wells when she
“married” husband in 1976. Thus, the marriage between husband and wife is a nullity.1
The 1979 proceedings are not before us since the trial court granted the motion in limine,
thus barring the introduction of those pleadings at the trial level. Husband did not challenge the
granting of the motion in limine on appeal. The validity of that ruling is not part of the question
presented and thus is not cognizable on appeal. See Hillcrest Manor Nursing Home v.
Underwood, 35 Va. App. 31, 39 n.4, 542 S.E.2d 785, 789 n.4 (2001) (finding “an issue [was] not
expressly stated among the ‘questions presented’, . . . we, therefore, decline to consider [it] on
appeal”); see also Rule 5A:20(c). The only issue before us is whether the trial court erred in
dismissing appellant’s cross-bill for lack of standing.
1
Since the parties did not argue the marriage between husband and wife was void
ab initio and did not need any proceedings to declare it void, we will not address that issue. See
Code § 20-43 (all marriages which are prohibited by law on account of either of the parties
having a former wife or husband then living shall be absolutely void, without any decree of
divorce, or other legal process).
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Thus, we cannot consider the 1979 Powhatan County divorce in determining whether the
trial court erred in dismissing the cross-bill for lack of standing.2 Husband made it abundantly
clear in his brief and oral argument that he is not attacking the 1975 Richmond divorce decree.
Husband, in this appeal, can only prevail by showing the 1979 Powhatan decree found
the 1975 Richmond decree void. Without the 1979 divorce before us, husband’s appeal fails.
See Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (“When the party with
the burden of proof on an issue fails for lack of proof, he cannot prevail on that question.”).
CONCLUSION
We find the trial court did not erred in dismissing the cross-bill for annulment.3
Affirmed.
2
The trial court relied on the analysis in George v. King, 208 Va. 136, 156 S.E.2d 615
(1967) to conclude husband had no standing to contest the validity of the 1975 divorce decree
from Wells.
In George v. King, George filed a bill of complaint against Judith King alleging that the
parties entered into a “supposed marriage” based on wife’s representation that an earlier
marriage had been lawfully terminated. 208 Va. 136, 156 S.E.2d at 616. George later
discovered that the divorce was void for lack of jurisdiction. George prayed, inter alia, for an
entry of an order declaring the marriage between he and King a nullity. Id. at 137, 156 S.E.2d at
616. King responded by arguing George’s suit was a collateral attack on the divorce decree
between King and her former husband and that George was a stranger to that action. Id.
The Supreme Court of Virginia held that George’s action was, in fact, a collateral attack
on the divorce and George was not a party to that litigation. The court further concluded George
had no “legally protected interest” adversely affected by the divorce decree. Id. at 138, 156
S.E.2d at 617.
3
While both parties, in their briefs, argued estoppel and other equitable defenses, we do
not address those issues because the trial court specifically declined to rule on those issues.
Since wife prevails in this appeal, we need not discuss her argument on “divisible divorce.”
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Elder, J., dissenting.
I believe the order dismissing husband’s cross-bill for annulment was neither a final order
nor an appealable interlocutory order. Thus, I would dismiss the appeal.
Wife filed a bill of complaint for divorce and equitable distribution. Husband filed an
answer and a cross-bill seeking an annulment. The cross-bill alleged the parties’ 1976 marriage
was void because wife’s 1975 divorce from her prior spouse was void for lack of jurisdiction.
Wife filed an answer to the cross-bill alleging that husband lacked standing to challenge the
validity of the 1975 divorce decree from her prior marriage. Wife also moved to exclude
evidence of a 1979 suit in which she again sought a divorce from her prior spouse based on her
belief that the 1975 divorce was void for lack of jurisdiction.
The trial court agreed with wife that husband lacked standing to attack the decree, and it
dismissed husband’s cross-bill. It also granted wife’s motion to exclude evidence of the 1979
suit. Before the trial court acted on wife’s bill of complaint for divorce and equitable
distribution, husband noted this appeal of the dismissal of his cross-bill for annulment.
The Court of Appeals has appellate jurisdiction over final decrees of a circuit court in
domestic relations matters arising under Titles 16.1 or 20, and any interlocutory decree or order
in such matters involving the granting, dissolving, or denying of an injunction or “adjudicating
the principles of a cause.” Code § 17.1-405; Erikson v. Erikson, 19 Va. App. 389, 390, 451
S.E.2d 711, 712 (1994). Code § 17.1-405(3)(a) specifically vests the Court with jurisdiction
over matters involving affirmance or annulment of a marriage.
A final decree is one “‘“which disposes of the whole subject, gives all the relief that is
contemplated, and leaves nothing to be done by the court.”’” Erikson, 19 Va. App. at 390, 451
S.E.2d at 712 (quoting Southwest Va. Hosps. v. Lipps, 193 Va. 191, 193, 68 S.E.2d 82, 83-84
(1951) (quoting Ryan’s v. McLeod, 73 Va. (32 Gratt.) 367, 376 (1879))). We held in Erikson
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that where a bill of complaint seeks a divorce, spousal support, and equitable distribution, and
the court enters a decree determining only that the marriage is valid, the decree is not a final
order because it does not “‘dispose[ ] of the whole subject . . . and leave[ ] nothing to be done by
the court.’” Id. at 391, 451 S.E.2d at 712.
Husband argues that the court’s ruling was a final order as to his suit for annulment and,
thus, that it was appealable. Husband contends Erikson is distinguishable because it discusses
only a challenge to the validity of the marriage and does not indicate that either party sought an
annulment or that a cross-bill was filed. Although we did not note in Erikson whether the
validity of the marriage had been challenged by answer, cross-bill, or some other vehicle, I see
no reason, in a divorce case involving an attack on the validity of the marriage, to determine the
degree of finality to be accorded a ruling based solely on the type of pleading through which a
litigant has chosen to launch that attack.
Under settled principles, the subject matter of a cross-bill must be “germane to the
subject matter of the [original] suit.” Charles E. Friend, Virginia Pleading and Practice § 9-2(d)
(2004). A cross-bill “is an affirmative pleading whereby the defendant seeks the full and
complete determination of all issues that arise from the pertinent subject matter of the original
bill.” Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 9.11 (1982 & Supp.
2004). “The dismissal of a bill of complaint will be accompanied by a dismissal of a cross-bill
. . . if the [cross-bill] is defensive in nature. [Only] [i]f the cross-bill makes assertions upon
which affirmative relief may be granted to the defendant [may] the action . . . proceed on the
cross-bill despite dismissal of the original bill.” Id. (citing Lile’s Equity Pleading and Practice
§ 153 (3d ed. 1952)) (emphasis added).
The Virginia Supreme Court has concluded that, where one spouse attacks the validity of
his or her marriage based on a claim that a prior marriage of the other spouse was not lawfully
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terminated prior to the parties’ marriage, such a suit constitutes an impermissible collateral attack
on the prior marriage unless the spouse was a party to that litigation or had a “pre-existing,”
“legally protected interest” adversely affected by the prior divorce decree. George v. King, 208
Va. 136, 139-40, 156 S.E.2d 615, 616-17 (1967). The Court’s holding in George makes clear
that husband lacks standing to challenge the validity of wife’s prior divorce and that husband’s
cross-bill is dependent upon the continuing existence of wife’s bill of complaint for divorce and
equitable distribution. Because husband’s challenge to the validity of the marriage is
inextricably linked to wife’s request for a divorce and equitable distribution, I would hold the
trial court’s ruling on that challenge is not an appealable final judgment. Cf. Taussig v. Ins. Co.
of North America, 301 So. 2d 21, 22-23 (Fla. Ct. App. 1974) (holding that where counterclaim is
compulsory rather than permissive, no appeal may be taken from dismissal of counterclaim until
underlying claim has been resolved).
For similar reasons, I would hold the order is not an interlocutory decree that
“adjudicat[es] the principles of the cause.”
For an interlocutory decree to adjudicate the principles of a cause,
the decision must be such that “‘the rules or methods by which the
rights of the parties are to be finally worked out have been so far
determined that it is only necessary to apply those rules or methods
to the facts of the case in order to ascertain the relative rights of the
parties, with regard to the subject matter of the suit.’” Pinkard v.
Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991)
(quoting Lee v. Lee, 142 Va. 244, 252-53, 128 S.E. 524, 527
(1925)) . . . . “‘[T]he mere possibility’ that an interlocutory decree
‘may affect the final decision in the trial does not necessitate an
immediate appeal.’” Polumbo v. Polumbo, 13 Va. App. 306, 307,
411 S.E.2d 229, 229 (1991) (quoting Pinkard, 12 Va. App. at 853,
407 S.E.2d at 342).
Id. at 391, 451 S.E.2d at 712-13. Because the order did not grant wife’s request for divorce or
effect an equitable distribution, it did not constitute an appealable interlocutory order. Cf.
Richardson v. Bowcock, 213 Va. 141, 191 S.E.2d 238 (1972) (“An order overruling a demurrer
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is not one which adjudicates the principles of a cause.” (citing Lancaster v. Lancaster, 86 Va.
201, 203-05, 9 S.E. 988, 989-90 (1889)).
For these reasons, I would dismiss the appeal, and I respectfully dissent from the decision
of the majority.
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