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HORN v. HORN


HORN v. HORN


DECEMBER 22, 1998

Record No. 2654-97-3

 

ELSIE NAOMI BOYD
(McKINNEY) HORN

v.

CLYDE J. HORN

 

Donald R. Mullins, Judge

Argued at Salem, Virginia

Present: Chief Judge
Fitzpatrick, Judges Coleman and Elder

OPINION BY CHIEF JUDGE
JOHANNA L. FITZPATRICK

FROM THE CIRCUIT COURT OF
TAZEWELL COUNTY

Susan E.F. Henderson
(Henderson & Fuda, on brief), for appellant.

Robert M. Galumbeck
(Dudley, Galumbeck & Simmons, on brief), for appellee.


Elsie Naomi Boyd
(McKinney) Horn (wife) appeals the trial court’s divorce and
equitable distribution decree. Because this order is
interlocutory in nature and thus not appealable, we dismiss the
appeal.
[1]

I.

In its decree entered
October 9, 1997, the trial court granted the parties a divorce.
On the issue of the equitable distribution of the parties’
business property, the court found as follows:

Dana Coal
Company, Inc., although the stock in same was
solely owned by [wife] at the time of the
marriage of the parties, and remains solely owned
by [wife] at this time, has been transmuted into
marital property by the investment of marital
funds, marital property and the personal efforts
of the parties in the said company during the
marriage. The Court finds that there remains no
identifiable portion of the asset which may
continue to be classified as separate property,
as a result of the investment of marital funds,
marital property and the personal efforts of the
parties in the operation of the business since
the marriage of the parties.

Accordingly, the trial
court classified Dana Coal and the remaining businesses as
marital property subject to equitable distribution and set the
valuation date of the marital estate as the time of the parties’
separation.

Although the trial court
granted the divorce and determined the classification of property
owned by the parties, it retained jurisdiction to value and
distribute the various property.
[2] The court found that:

[a]dditional
evidence must be taken with regard to the value
of the marital estate; and, further, this Court
finds that matters currently pending before the
United States Bankruptcy Court for the Western
District of Virginia, Abingdon Division, may
affect the valuation of, individual ownership and
distribution of such property, specifically as
same relates to McHorn Construction Company, Inc.
and Dana Coal Company, Inc.; and, that as a
result of same, and upon motion of [husband],
further matters concerning the equitable
distribution of the marital estate, including
valuation thereof and the manner in which the
distribution of the estate shall be made, must be
continued upon the docket of this Court because
such action is clearly necessary and the Court
will, therefore, retain jurisdiction concerning
same.

Accordingly, the court
ordered that the equitable distribution, value and manner of
distribution "shall be determined at a later date for the
reasons previously set forth, herein." The matter was
continued on the docket of the trial court. No final valuation of
the property or monetary award was entered.

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 Sect. 17.1-405(3)(f) and (4),
recodifying Sect. 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) (quotations omitted).

In the instant case, the
decree is far from final. Only the first step in the equitable
distribution scheme has been completed. The parties’ property has
been classified but has not been valued or divided and no
monetary award has been made. The trial court specifically
retained jurisdiction to consider further valuation and
distribution of the marital property. The court acknowledged that
the valuation of Dana Coal and McHorn Construction, two of the
included assets, was dependent upon the outcome of a bankruptcy
proceeding.

Unless the trial court’s
decree constituted an interlocutory decree that "adjudicates
the principles of the cause," we do not have jurisdiction to
consider an appeal of the equitable distribution of property.

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 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. An interlocutory order
that adjudicates the principles "must respond to the chief
object of the suit," id., which, in an equitable
distribution proceeding is to classify the property, value the
marital estate, and distribute the estate accordingly.
"[T]he mere possibility that an interlocutory decree may
affect the final decision in the trial does not necessitate an
immediate appeal." Id. (quotations omitted).

The trial court’s decree,
while classifying the marital property, did not value the
property and did not actually determine the manner in which the
distribution of marital assets would be accomplished. Although
the court’s ruling may affect the ultimate decision as to the
distribution of Dana Coal and McHorn Construction, the valuation
of this property also significantly affects the parties’ property
rights. See Webb v. Webb, 13 Va. App. 681, 682-83,
414 S.E.2d 612, 613 (1992) (dismissing an appeal because the
parties’ rights may still be determined through equitable
distribution proceedings). We hold the decree is interlocutory
and does not adjudicate the principles of the cause. Accordingly,
we are without jurisdiction to entertain the appeal.

Dismissed.

 

 

 

FOOTNOTES:

[1] On appeal, wife argues
that the court erred: (1) in classifying a corporation solely
owned by wife as marital property; (2) in finding that wife
committed waste with regard to the parties’ marital property; and
(3) in setting the valuation date for the marital estate as of
the time of separation. Because of the procedural posture of the
case, we do not reach the merits of these claims.

[2] We initially note that the
trial court did not retain jurisdiction pursuant to Code
Sect. 20-107.3(K), which grants a trial court continuing
jurisdiction in various enumerated situations, none of which
apply here. Code Sect. 20-107.3(K) provides:

The court shall
have the continuing authority and jurisdiction to make
any additional orders necessary to effectuate and enforce
any order entered pursuant to this section, including the
authority to:

1. Order a
date certain for transfer or division of any
jointly owned property under subsection C or
payment of any monetary award under subsection D;

2. Punish
as contempt of court any willful failure of a
party to comply with the provisions of any order
made by the court under this section;

3. Appoint
a special commissioner to transfer any property
under subsection C where a party refuses to
comply with the order of the court to transfer
such property; and

4. Modify
any order entered in a case filed on or after
July 1, 1982, intended to affect or divide any
pension, profit-sharing or deferred compensation
plan or retirement benefits pursuant to the
United States Internal Revenue Code or other
applicable federal laws, only for the purpose of
establishing or maintaining the order as a
qualified domestic relations order or to revise
or conform its terms so as to effectuate the
expressed intent of the order.

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