Wells v. Wells

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia

AMY C. WELLS
OPINION BY
v. Record No. 0782-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 26, 1999
BILLY R. WELLS, JR.

FROM THE CIRCUIT COURT OF WISE COUNTY
Ford C. Quillen, Judge
Martin Wegbreit (Client Centered Legal
Services of Southwest Virginia, Inc., on
briefs), for appellant.

Frederick W. Adkins (Cline, Adkins & Cline,
on brief), for appellee.

Amy C. Wells (wife) appeals the trial court's order denying

her motion to dismiss for lack of subject matter jurisdiction.

Because this order is interlocutory in nature and did not

adjudicate the principles of the cause, we dismiss the appeal. 1
I.

On February 20, 1997, wife filed a Petition for Dissolution

of Marriage in the Circuit Court of Hendry County, Florida,

seeking a divorce, child custody, spousal and child support, and

attorneys' fees. 2 Billy R. Wells (husband), a resident of
1
On appeal, wife argues that the court erred: (1) in
exercising jurisdiction over the divorce and the child custody
proceedings and (2) in failing to afford the Florida orders full
faith and credit under Virginia's provisions of the U.C.C.J.A.,
Code § 20-136. Because of the procedural posture of the case, we
do not reach the merits of the second claim.
2
The record before us provides no testimony regarding the
underlying dispute between the parties. Rather, the parties have
Virginia, filed a motion to dismiss the Florida action for lack

of subject matter jurisdiction. The parties' four minor children

have lived with wife for various time periods in North Carolina

and Florida; however, the children currently reside in Virginia

with husband.

On March 27, 1997, husband filed a Bill of Complaint in Wise

County Circuit Court, Virginia, seeking a divorce and child

custody. Wife entered a special appearance and moved to dismiss

that bill of complaint for lack of subject matter jurisdiction. 3

Following a hearing, the trial court denied wife's motion. The

trial court stated:
The Court having considered the
arguments of Counsel and documents filed
hereby finds . . . that the [husband] is in
the proper jurisdiction to bring a divorce
action and has filed a divorce action in Wise
County which is proper jurisdiction; . . .
that the children are presently living in
Virginia and have lived in North Carolina and
Florida.
THEREFORE, the Court doth ADJUDGE, ORDER
and DECREE that the Motion of the [wife] be
and is hereby denied and the Court retains
the jurisdiction of the above-styled cause in
Wise County, State of Virginia. The Court
doth further ADJUDGE, ORDER AND DECREE that
the Florida orders are not determinative of
child custody. The Court also doth ADJUDGE,
ORDER AND DECREE that the Court not only
included only pleadings and orders of the trial court and the
Florida court.
3
In the trial court, wife filed a pleading entitled,
"Special Appearance, Motion to Rehear, Motion to Dismiss Divorce,
Objection to Jurisdiction over Child Custody and Visitation, and
Motion to Grant Full Faith and Credit to Florida Orders." The
trial court addressed each of wife's objections in its order
dated April 3, 1998.

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 retains jurisdiction over the divorce case in
Wise County, Virginia, but also claims
jurisdiction over child custody and
visitation in Wise County, Virginia.
This cause is retained upon the docket
for further proceedings in this matter.

Wife noted her appeal to this order.

II.

This Court 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

involving the granting, dissolving, or denying of an injunction

or "adjudicating the principles of a cause." Code

§ 17.1-405(3)(f) and (4), recodifying Code § 17-116.05(3)(f) and

(4). 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 v. Erikson, 19 Va. App. 389, 390,

451 S.E.2d 711, 712 (1994) (internal quotation marks and

citations omitted).

The parties agree that the trial court's order denying

wife's objection to jurisdiction is a non-final, interlocutory

order. Therefore, unless it constitutes an interlocutory order

that "adjudicates the principles of the cause," we do not have

jurisdiction to consider an appeal.
An interlocutory decree adjudicates the
principles of a cause where "`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

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 subject matter of the suit.'"

Moreno v. Moreno, 24 Va. App. 227, 231, 481 S.E.2d 482, 485

(1997) (quoting 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))). An interlocutory decree that

adjudicates the principles of a cause is one which must

"determine the rights of the parties" and "would of necessity

affect the final order in the case." Erikson, 19 Va. App. at

391, 451 S.E.2d at 713. "[T]he mere possibility that an

interlocutory decree may affect the final decision in the trial

does not necessitate an immediate appeal." Id. (internal

quotation marks and citations omitted).

An interlocutory order that adjudicates the principles of a

domestic relations dispute "must respond to the chief object of

the suit," id., 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. See id. (child

support modification); Nenninger v. Nenninger, 19 Va. App. 696,
697, 454 S.E.2d 45, 45 (1995) (divorce decree and equitable

distribution).

In the present case, the trial court's order, which denied

wife's motion to dismiss for lack of jurisdiction, fulfilled

neither requirement. No final custody determination or decree of

divorce has been entered. The specific language of the trial

court's order establishes the need for further hearings to

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resolve these issues. Accordingly, we are without jurisdiction

to consider the appeal. See Uninsured Employer's Fund v. Harper,

26 Va. App. 522, 527-28, 495 S.E.2d 540, 543 (1998) (holding that

the commission's determination of jurisdiction does not

constitute a final order appealable to this Court).

Our holding is consistent with the holdings of many of our

sister states who have held that a trial court's decision on a

challenge to jurisdiction is a non-appealable interlocutory

order. See Atlanta Hanggliders & Ultralights, Inc. v. Rountree,

314 S.E.2d 679, 680 (Ga. Ct. App. 1984) (holding that an "order

of the trial court denying [a] motion to dismiss for lack of

jurisdiction . . . is an interlocutory order which is not

appealable without a certificate of immediate review"); Duke

Univ. v. Bryant-Durham Elec. Co., 311 S.E.2d 638, 639 (N.C. Ct.

App. 1984) ("A trial judge's order denying a motion to dismiss

for lack of subject matter jurisdiction is interlocutory and not

immediately appealable."); Burry v. Raisbeck, 605 N.Y.S.2d 204,

204 (N.Y. Fam. Ct. 1993) (dismissing an appeal from an

interlocutory order denying motion to dismiss for lack of

personal jurisdiction); Ratz v. Ratz, 518 A.2d 317, 319 (Pa.
Super. Ct. 1986) ("[A] party challenging an order sustaining

subject matter jurisdiction may not appeal the interlocutory

order as a matter of right.").

In those states where courts have allowed an appeal from an

interlocutory order denying an objection to jurisdiction, a state

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statute or court rule specifically grants such a right of appeal.

See, e.g., Parrish v. South Bank, N.A., 657 So.2d 1189, 1190 n.1

(Fla. Dist. Ct. App. 1995) (court rule authorizing "a non-final

appeal from an order relating to jurisdiction over the person");

Torborg v. Fort Wayne Cardiology, Inc., 671 N.E.2d 947, 948 (Ind.

Ct. App. 1996) (court rule allowing an appeal from interlocutory

order addressing personal jurisdiction over the parties); County

of Bexar v. Garcia, 974 S.W.2d 107, 108 (Tex. App. 1998) (state

statute authorizing an "appeal from an interlocutory order that

grants or denies governmental unit's plea to jurisdiction").
Neither Code § 17.1-405, recodifying Code § 17-116.05, nor

any Rule of the Supreme Court authorizes an appeal here. Rather,

the code limits our appellate jurisdiction to final decrees in

domestic relations matters arising under Titles 16.1 or 20, or

interlocutory decrees or orders "adjudicating the principles of a

cause." Code § 17.1-405(3)(f) and (4), recodifying Code

§ 17-116.05(3)(f) and (4). No other statutory provisions

authorize an immediate right of appeal from a trial court's order

on a jurisdictional challenge. Consequently, we are without

jurisdiction to entertain this appeal.
Dismissed.

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