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STEVEN JEROME REID, SR. v. DEBBIE KNOX REID


REID v. REID


FEBRUARY 4, 1997
Record No. 0715-96-3

STEVEN JEROME REID, SR.

v.

DEBBIE KNOX REID

James F. Ingram, Judge
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia

OPINION BY JUDGE RICHARD S. BRAY
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE

Stacey W. Moreau (Williams, Stilwell, Morrison, Williams and
Light, on brief), for appellant.

Barbara Hudson for appellee.


Steven Jerome Reid, Sr. (husband) and Debbie Knox Reid (wife)
were divorced by a decree of the trial court which also
"revoked" a preexisting order awarding spousal support
to wife. Acting on the subsequent petition of wife, the court
amended the decree to reinstate the prior support order. Husband
appeals, contending that the court was without jurisdiction to
restore the earlier award. We disagree and affirm the amended
decree.

The relevant procedural history is uncontroverted. In a
proceeding unrelated to the subject cause, the trial court, on
August 18, 1994, awarded wife both child and spousal support
incidental to husband’s appeal of a like order from the juvenile
and domestic relations district court (district court). Husband
was required to pay wife spousal support "of $50.00 per week
commencing . . . August 15, 1994, . . . until further
order of the Court," and "all future matters of
support" were referred to the district court.

On June 7, 1995, husband commenced the instant suit, seeking
divorce a vinculo matrimonii from wife
pursuant to Code ? 20-91(9) and praying, inter alia,
"that the Court decree that the [parties] be perpetually
protected in their persons and property." Husband’s bill of
complaint did not specifically mention spousal support or
reference the earlier, continuing award. Although the complaint,
together with a notice of attendant depositions, was personally
served upon wife, she neither responded nor appeared at the
scheduled hearing. In accordance with husband’s prayer, the trial
court entered a decree of divorce on October 18, 1995, and
further decreed that "any and all prior orders with regard
to spousal support are hereby revoked."

On November 7, 1995, wife moved the court to "set
aside" that provision of the decree relating to spousal
support. Following a contested hearing on the issue, the court
ordered that the disputed "revocation" of spousal
support be "stricken from the final decree" and awarded
wife "all support arrearage that [had] accrued" on the
preexisting order. Husband appeals, arguing that the court was
without jurisdiction to amend the decree to reinstate the prior
award of spousal support.[1]

Code ? 20-79(b) confers jurisdiction upon a trial court
adjudicating a divorce to "provide in its decree for the . .
. support and maintenance [of] the spouse," upon the "requests"
of "either party to the proceedings." Id.
(emphasis added); see also Code
?? 20-103(A), -107.1. Clearly, the "exercise of such
power remains dependent upon the pleadings having raised the
issue." Boyd v. Boyd, 2 Va. App. 16, 19, 340 S.E.2d
578, 580 (1986). This well established principle recognizes that
the "office of pleadings is to give notice to the opposing
party of the nature and character of the claim, without which the
most rudimentary due process safeguards would be denied." Id.
Thus, a decree entered "in the absence of pleadings upon
which to found the same . . . is void." Potts
v. Mathieson Alkali Works
, 165 Va. 196, 207, 181 S.E. 521,
525 (1935).

Moreover, the "special statutory power to grant
divorces" and afford related relief was "conferred upon
[the] courts" by the legislature. Erickson-Dickson v.
Erickson-Dickson
, 12 Va. App. 381, 387, 404 S.E.2d 388, 392
(1991). "’It is elementary . . . that neither
courts of law nor equity have any inherent power to dissolve
marriage. The power to decree a divorce is purely
statutory.’" Blankenship v. Blankenship, 125 Va. 595,
598, 100 S.E. 538, 539 (1919) (quoting Rumping v. Rumping,
91 P. 1057 (1907)); see Day v. Day, 8 Va. App. 346, 348,
381 S.E.2d 364, 365-66 (1989). Therefore, unless the
"prerequisites necessary for exercising that
jurisdiction" are "specifically pled[,] . . .
the proceedings [are] a nullity." Erickson-Dickson,
12 Va. App. at 387, 404 S.E.2d at 392; see also Rogers
v. Damron
, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1997)
(subject matter jurisdiction requires jurisdiction over the
attendant relief).

Here, husband’s bill of complaint properly invoked the court’s
jurisdiction to decree the divorce. However, the absence of a
specific request for an adjudication of spousal support precluded
the court from obtaining jurisdiction over that subject matter. See
Rogers, ___ Va. App. at ___, ___ S.E.2d at ___. Husband’s
vague prayer that the court "decree that the plaintiff and
defendant be perpetually protected in their persons and
property" was insufficient to raise the issue. See Boyd,
2 Va. App. at 19, 340 S.E.2d at 580.

Accordingly, the purported revocation of "all prior
orders with regard to spousal support" was a nullity and,
contrary to husband’s contention, Rule 1:1 did not affect the
authority of the court to correct a void provision of its
original decree. See also Code
? 8.01-428(A)(ii). A judgment void ab initio
for want of jurisdiction "may be attacked in any court at
any time, directly or collaterally." Rook v. Rook,
233 Va. 92, 95, 353 S.E.2d 756, 758 (1987); see Morse
v. Commonwealth
, 6 Va. App. 466, 468, 369 S.E.2d 863, 864
(1988).

Husband’s assertion that the earlier order of spousal support
terminated by operation of law upon entry of the divorce decree
is also without merit. An existing order of spousal support
survives a subsequent decree of divorce which is silent on the
issue. See Werner v. Werner, 212 Va. 623, 624-25,
186 S.E.2d 76, 77-78 (1972); see also Code
?? 16.1-244(A), 20-79(a); Martin v. Bales, 7 Va.
App. 141, 145-46, 371 S.E.2d 823, 826 (1988). As the Court
instructed in Werner, either party, by proper pleading,
"could have asked the Circuit Court to make specific
provision in the final divorce decree for allowance or denial of
[spousal support]. If such a provision had been included in the
decree, the jurisdiction of the [district court] would have
ceased under ? 20-79(a)." Werner, 212 Va. at 625,
186 S.E.2d at 78; see also Code
? 16.1-244(A). However, because "neither party sought
to have such provision made," the preexisting support order
"continue[d] in full force and effect." Werner,
212 Va. at 625, 186 S.E.2d at 78.

Accordingly, we affirm the decree.

Affirmed.

 

FOOTNOTES:

[1] Wife contends that the record
is insufficient to permit appellate review. We disagree and
address the merits of the appeal. See Turner v.
Commonwealth
, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986).

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