No interlocutory appeal of pendente lite order

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Under an amendment to Code §17.1-405, enacted April 12, 2023, the court lacks jurisdiction to hear an interlocutory appeal of a pendente lite order, even though the appeal was pending when the General Assembly amended the statute.

Overview

“On January 10, 2022, appellee Young Ae Choi filed a complaint for divorce in the circuit court alleging desertion and cruelty. On January 26, appellee filed her motion for pendente lite relief including spousal and child support, exclusive use of the marital residence, legal and physical custody of the minor children, and attorney fees.

“On March 11, the circuit court heard argument on the pendente lite motion. On April 21, 2022, the circuit court entered a pendente lite order granting in part appellee’s motion. …

“Appellant filed his notice of appeal on May 13, 2022.”

Amended legislation

‘[I]n between the date of the pendente lite order and the notice of appeal, the General Assembly amended Code § 17.1-405 to permit appeals from ‘Any interlocutory decree or order involving an equitable claim in which the decree or order (i) requires money to be paid or the possession or title of property to be changed or (ii) adjudicates the principles of a cause.’ This amendment had an effective date of April 27, 2022.

[D]uring the pendency of this appeal, the General Assembly further amended Code § 17.1-405 to prohibit this Court from hearing interlocutory appeals in orders involving divorce, custody, support, or ‘any other domestic relations matter arising under Title 16.1 or 20.’ …

“This legislation included an emergency provision and was effective from the date of its passage, April 12, 2023. …

“The terms of Code § 17.1-405 clearly exclude this appeal from our appellate jurisdiction. ‘A pendente lite order is interlocutory.’ …

“A pendente lite order ‘is not a final order, is not directly appealable, and has no presumptive or determinative effect on the underlying cause of divorce.’ … It is clear that appellant’s appeal from the circuit court’s pendente lite order was an interlocutory appeal from an order involving a domestic relations matter arising under Title 16.1 or 20 of the Virginia Code.

“Furthermore, the General Assembly’s decision to strip us of jurisdiction over interlocutory appeals in domestic relations cases applies to this appeal, despite the fact that the notice of appeal was filed prior to the passage of the jurisdiction stripping legislation. …

“Jurisdiction stripping statutes are procedural and therefore apply to cases pending at the time of enactment. …

“Additionally, the General Assembly chose not to include a savings clause in its jurisdiction stripping legislation. When the General Assembly has divested this Court of jurisdiction in other areas, it has sometimes chosen to permit this Court to adjudicate pending litigation. …

“The General Assembly did not append such a savings clause when it divested this Court of jurisdiction over interlocutory appeals in domestic relations matters.”

Appeal dismissed.

Choi v. Choi, Record No. 0727-22-4, Aug. 1, 2023. CAV (published order) (Humphreys, Malveaux and Fulton) From the Circuit Court of Fairfax County. VLW 023-7-299, 4 pp.