Virginia Lawyers Weekly VA Lawyers Weekly
The pendente lite order in this case, which gave wife exclusive control of the former marital home, is neither a final order nor an appealable interlocutory order. As a result, husband’s appeal is dismissed for lack of jurisdiction.
Overview
Before their 1994 marriage, the parties bought a house. Both parties were on the deed. The home was refinanced and in November 2002, husband quitclaimed his interest in the house to wife.
Wife filed for divorce in 2021. Her motion for pendente lite relief asked the court to award her exclusive possession and control of the house.
After a hearing, the “circuit court awarded exclusive use and possession of the marital residence to wife and ordered her to pay $3,000 per month for six months to husband ‘so that he [could] find a place to live.’
“The circuit court further ordered husband to vacate the property within fifteen days and any property he did not take with him would be considered abandoned and that wife could dispose of it. On reconsideration, the court amended the personal property provision to give husband more time to remove his property.
Husband appeals.
Which statute?
“Wife argues that the pendente lite order is a non-appealable interlocutory order and the appeal should be dismissed for lack of jurisdiction.
“The circuit court entered the pendente lite order on November 19, 2021, and husband noted his appeal of that order on December 20, 2021. Code § 17.1-405, the code section relevant to the issues on appeal, was amended effective January 1, 2022.” The amended code section does not control the resolution of this appeal.
Because the amended statute is silent on retroactive application, “we find that husband’s right to appeal from an interlocutory order is governed by the provisions of Code § 17.1-405 in effect when husband noted his appeal.”
Not appealable
Under the pre-amendment version of Code § 17.1-405, the Court of Appeals “had appellate jurisdiction over final decisions of the circuit courts in domestic relations cases and interlocutory orders involving injunctions or ‘adjudicating the principles of a cause.’ …
“The pendente lite order placed at issue in this case is neither a final order nor an appealable interlocutory order. …
“‘A final order or decree for the purposes of Rule 1:1 “is one which disposes of the whole subject, gives all the relief contemplated … and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.”’ …
“By contrast, a pendente lite order preserves the status quo of the parties until a final decree of divorce. … It has ‘no presumptive or determinative effect on the underlying cause of divorce’ and does not determine the rights of the parties or address the main issues of the divorce suit. …
“In short, a pendente lite order is not a final order and ‘not directly appealable.’ …
The pendente lite order in this case is an interlocutory order … but it is not an order ‘adjudicating the principles of a cause[.]’ … It “must address ‘the chief object[s] of the suit.’” …
“The pendente lite order here does not adjudicate the principles of a cause and cannot be deemed an appealable interlocutory order.”
Injunction issue
“[P]rior to amendment, Code § 17.1-405 established that this Court had appellate jurisdiction over ‘interlocutory orders involving injunctions.’
“To the extent the pendente lite order awarding wife exclusive use and possession of the marital residence can be construed as an injunction, we are without jurisdiction to address the issue because husband failed to comply with the statutory framework for appellate review of injunctions that was in effect at the time. …
“Husband did not file a petition for review within the specified time.”
Conclusion
“[B]ecause the circuit court’s pendente lite order is neither a final order nor an appealable interlocutory order, this Court does not have jurisdiction to hear this appeal and we dismiss the appeal without prejudice.”
Summers v. Summers, Record No. 1376-21-4, Oct. 25, 2022. CAV (Annunziata). From the Circuit Court of Fairfax County (Gardiner). Daniel C. Collier for appellant. Beth A. Bittel for appellee. VLW 022-7-477, 7 pp.
