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MAY 30, 2000

Record No. 2580-99-3





Clifford R. Weckstein, Judge

Present: Chief Judge Fitzpatrick, Judges
Coleman and Frank

Argued at Salem, Virginia

G. David Nixon (Huffman & Nixon, P.C., on
briefs), for appellant.

Arthur P. Strickland (Arthur P. Strickland,
P.C., on brief), for appellee.


Geraldine I. Jones appeals the trial court’s
entry of a final divorce decree on the grounds that the parties
had lived separate and apart for more than one year pursuant to
Code ? 20-91(A)(9)(a). She also appeals the court’s
equitable distribution award. Geraldine Jones argues that the
court erred by entering the divorce decree because when the bill
of complaint was filed, the parties had not lived separate and
apart for one year, as required by the statute; therefore, the
court lacked jurisdiction over the case. We hold that the court
erred by entering the final divorce decree because the grounds
for divorce alleged in the bill of complaint did not exist when
the bill was filed and, thus, the court lacked jurisdiction to
entertain the suit at the time it was filed. Moreover, no amended
bill was filed. Accordingly, we vacate the divorce decree and
dismiss the bill of complaint. We necessarily do not reach the
equitable distribution issues.


The parties were married in June 1985. On July
28, 1997, Frank Jones filed a bill of complaint for divorce,
alleging that he and Geraldine Jones separated on January 23,
1993 and had lived separate and apart continuously and without
cohabitation for more than one year. At the June 1999 ore tenus
hearing, Geraldine Jones moved to dismiss the suit, asserting
that when the suit was filed in 1997, the couple had not lived
separate and apart for the statutory period. Geraldine Jones
testified that after separating on January 23, 1993, the parties
resumed living together in August 1994 and lived together
continuously until June 1997, approximately one month before the
suit for divorce was filed. Thus, she contends when the bill of
complaint was filed, the parties had no ground under Code
? 20-91(A)(9)(a) to seek or obtain a divorce, which is a
jurisdictional prerequisite for filing suit. At the hearing,
Frank Jones agreed that Geraldine Jones’ factual account of when
they separated was correct. The court ruled that although the
grounds for divorce did not exist when the suit was filed, the
parties had lived separate and apart continuously for one year at
the date of the hearing; thus, grounds for divorce did exist at
the time of the hearing. Accordingly, the circuit court denied
Geraldine Jones’ motion to dismiss and entered a divorce decree a
vinculo matrimonii based on the parties having
lived separate and apart for more than one year and without an
amendment to the bill of complaint.


Code ? 20-91(A)(9)(a) provides, in part,
that "[a] divorce from the bond of matrimony may be decreed
. . . [o]n the application of either party if and
when the husband and wife have lived separate and apart without
any cohabitation and without interruption for one year."
"The act relied upon for divorce must be alleged and proved
to have occurred prior to the bringing of the suit, not based
upon some act or conduct alleged to have taken place during its
pendency." Beckner v. Beckner, 204 Va. 580, 583, 132
S.E.2d 715, 717-18 (1963); see also Johnson v.
, 213 Va. 204, 210, 191 S.E.2d 206, 210 (1972).

We have consistently held that jurisdiction in
a divorce suit is purely statutory. Although the court may have
jurisdiction over both the subject matter and the parties, the
court may nevertheless exceed its statutory authority if the
character of the judgment was not such as the court had the power
to render, or [if] the mode of procedure employed by the court
was such as it might not lawfully adopt.

Lowe v. Lowe, 233 Va. 431, 433, 357
S.E.2d 31, 33 (1987) (internal quotations and citations omitted.

The undisputed proof is that Geraldine Jones
and Frank Jones had not lived separate and apart without
cohabitation for the requisite one-year period before the suit
was filed in July 1997. Here, no amended bill of complaint was
filed. Code ? 20-91(A)(9)(a) provides that a
"no-fault" divorce may be granted only after an
application has been filed properly alleging that the parties
have lived separate and apart for the requisite time. See Moore
v. Moore
, 218 Va. 790, 796, 240 S.E.2d 535, 538 (1978)
(finding that an application under Code ? 20-91(A)(9)(a)
refers to a bill of complaint or a cross-bill). The ground for
divorce alleged is a statutory element and jurisdictional
prerequisite to filing the suit for divorce under Code
? 20-91(A)(9)(a). The grounds must be properly alleged and
proven. Thus, the trial court erred in entertaining the bill of
complaint for divorce and in entering the divorce decree therein
for which the proof showed, and the parties conceded therein, the
grounds alleged did not exist.

For the foregoing reasons, we reverse the trial
court, vacate the divorce decree, and grant the wife’s motion to
dismiss the bill of complaint.

Reversed and dismissed.




[1] Pursuant to Code
? 17.1-413, recodifying Code ? 17-116.010, this
opinion is not designated for publication.