Opinion
Record No. 0290-09-4.
November 3, 2009.
Appeal from the Circuit Court of Fairfax County, Jane Marum Roush, Judge.
James Ray Cottrell (John K. Cottrell; Cottrell Fletcher Schinstock Bartol Cottrell, on briefs), for appellant.
Dorothy M. Isaacs (Surovell Markle Isaacs Levy, PLC, on briefs), for appellee.
Present: Judges Kelsey, Petty and Senior Judge Clements.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Appellant, Gary M. Kotara ("husband"), challenges the trial court's refusal to relinquish its jurisdiction over spousal support in this case. Husband presents four questions on appeal, yet, taken as a whole, they all raise one issue: whether the trial court must relinquish its continuing and exclusive jurisdiction over spousal support matters provided by Code § 20-88.43:2 because neither husband nor wife currently reside in Virginia. As explained in this opinion, we do not have jurisdiction over this appeal because it arises from neither a final order nor an appealable interlocutory order within the meaning of Code § 17.1-405.
I.
Because the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, we recite only those facts and incidents of the proceedings as necessary to the parties' understanding of the disposition of this appeal. We view those facts and incidents, and all reasonable inferences flowing therefrom, in the light most favorable to wife, the party prevailing below. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003).
At the time of their divorce, the parties lived in Fairfax County, Virginia. Accordingly, the Circuit Court for the County of Fairfax adjudicated all of the issues involved with the parties' divorce and entered the final divorce decree in this case, which included, among other things, an award of spousal support. In 2007, Kathleen Kotara (wife) moved with her children to Heath, Texas. In 2008, husband moved his legal residence to Houston, Texas, although he lives and works in Dubai. Subsequently, husband filed a "Petition to Modify Parent-Child Relationship" in Texas. As a part of that petition, husband included a motion to decrease spousal support based on an alleged material change in circumstances. The Texas court refused to make a determination regarding spousal support in light of Virginia's exclusive and continuing jurisdiction over the spousal support award as provided by the Uniform Interstate Family Support Act.
Husband, however, argued that it was inconvenient for him to litigate spousal support matters in Virginia. He accordingly moved the Circuit Court for the County of Fairfax to "dismiss support issues from this court's jurisdiction" based on Code § 8.01-265, Virginia's forum non conveniens statute. The trial court denied his motion, and this appeal followed.
Code § 8.01-265 states, in pertinent part:
[T]he court wherein an action is commenced may, upon motion by any party and for good cause shown, (i) dismiss an action brought by a person who is not a resident of the Commonwealth without prejudice under such conditions as the court deems appropriate if the cause of action arose outside of the Commonwealth and if the court determines that a more convenient forum which has jurisdiction over all parties is available in a jurisdiction other than the Commonwealth or (ii) transfer the action to any fair and convenient forum having jurisdiction within the Commonwealth.
II.
The Virginia Court of Appeals is a court of limited jurisdiction.Lewis v. Lewis, 271 Va. 520, 524, 628 S.E.2d 314, 316 (2006) (citing Canova Elec. Contracting, Inc. v. LMI Ins. Co., 22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996)). Unless a statute confers subject matter jurisdiction to this Court over an appeal, we are without authority to review that appeal.Id. at 524-25, 628 S.E.2d at 316-17. Code § 17.1-405 grants subject matter jurisdiction to the Court of Appeals over "any final . . . decree of a circuit court involving . . . divorce; [and] any interlocutory decree . . . entered in [such] cases . . . adjudicating the principles of a cause." Code § 17.1-405(3)(a), (b) and-405(4)(ii).
Our Supreme Court has explained many times that "a final order or decree is one that disposes of the entire matter before the court, giving all the relief contemplated and leaving nothing to be done by the court except the ministerial execution of the court's order or decree." McLane v. Vereen, 278 Va. 65, 70, 677 S.E.2d 294, 297 (2009) (citing Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 293, 301, 672 S.E.2d 870, 873 (2009); Upper Occoquan Sewage Auth. v. Blake Constr. Co., 275 Va. 41, 60, 655 S.E.2d 10, 21 (2008); James v. James, 263 Va. 474, 481, 562 S.E.2d 133, 137 (2002);Daniels v. Truck Equip. Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964)). An interlocutory order 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."
Moreno v. Moreno, 24 Va. App. 227, 231, 481 S.E.2d 482, 485 (1997) (quotingPinkard v. Pinkard, 12 Va. App. 848, 851, 407 S.E.2d 339, 341 (1991)).
Here, however, there was never a cause properly before the trial court. While it is true that Code § 20-88.43:2 gives the trial court "continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation[,]" that power is limited by the other provisions in the Code. Code § 20-109(A) states that " [u]pon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper." (Emphasis added). Moreover, Code § 20-109(B) states "[t]he court may consider a modification of an award of spousal support for a defined duration upon petition of either party filed within the time covered by the duration of the award." (Emphasis added).
Here, husband never petitioned the trial court for a modification of spousal support. In other words, he did not plead his case and place the actual issue before the court. "Fundamental rules of pleading provide that no court can base its judgment or decree upon a right which has not been pleaded and claimed." Boyd v. Boyd, 2 Va. App. 16, 18, 340 S.E.2d 578, 580 (1986) (citingPotts v. Mathieson Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935)). Moreover, a trial court cannot enter an order "in the absence of pleadings upon which to found [the order], and if so entered it is void." Id.;see also Harrell v. Harrell, 272 Va. 652, 656, 636 S.E.2d 391, 394 (2006) (reversing the trial court's reservation of the issue of spousal support when wife failed to file pleadings requesting spousal support).
Essentially, the husband moved the trial court to dismiss a nonexistent case. Accordingly, the trial court's order denying the husband's motion was not a final order — because there was no live controversy before the court — i.e., a pending motion for modification of spousal support pursuant to Code § 20-109. For the same reason, the trial court's order was not an appealable interlocutory order because it did not adjudicate the principles of a cause; indeed, there was no actual cause before the trial court due to husband's failure to properly plead his case.
Because the trial court's denial of husband's motion to dismiss was neither a final order nor an appealable interlocutory order, we do not have jurisdiction to hear this appeal.
C.
Wife requested that we award her attorney's fees and costs incurred in connection with this appeal.
The rationale for the appellate court being the proper forum to determine the propriety of an award of attorney's fees for efforts expended on appeal is clear. The appellate court has the opportunity to view the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment.
O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Applying these principles here, we hold wife is entitled to her attorney's fees and costs as husband's appeal was without merit.
III.
For the reasons stated above, we conclude that husband did not properly plead his case below, and did not appeal from a final order in this case. Accordingly, we dismiss this appeal, and remand the case for the trial court's determination of an award of wife's attorney's fees incurred in connection with this appeal.
Dismissed and remanded.