                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


ROSE E. SMITH
                                                  OPINION BY
v.   Record No. 0577-01-4                JUDGE JERE M. H. WILLIS, JR.
                                                 APRIL 16, 2002
ELLIS H. SMITH


              FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                  H. Selwyn Smith, Judge Designate

          Roy D. Bradley (Bradley Law Firm, P.C., on
          briefs), for appellant.

          Linda I. Dodge for appellee.


     Rose Smith contends on appeal that the trial court erred in

holding that it lacked jurisdiction to award equitable

distribution because neither party requested it.     See Code

§ 20-107.3.     For the following reasons, we reverse the judgment

of the trial court and remand for equitable distribution of the

parties' property.

                            I.   BACKGROUND

     Ellis and Rose Smith were married on July 2, 1973.     On June

10, 1995, they separated.    On November 4, 1997, Mr. Smith filed

a bill of complaint for divorce.     Two days later, Ms. Smith

filed her answer, asserting, inter alia:

          3. The parties hold joint title to
          property, the division of which will
          ultimately be a necessary part of these
          proceedings.
        On February 18, 1998, the trial court entered a decree

granting the parties a final divorce.      An error in the decree

was corrected on March 5, 1998, nunc pro tunc to February 18,

1998.    The decree provided, in pertinent part:

             AND THIS DECREE IS FINAL as to the parties'
             divorce, and the marriage of the parties is
             HEREBY DISSOLVED FOREVER, and matters
             requiring equitable distribution of marital
             property pursuant to Virginia Code Section
             20-107.3 are hereby deferred for further
             adjudication as allowed by Virginia Code
             Section 20-107.3.

        Over the next thirty-four months, the parties conducted

discovery in preparation for an equitable distribution hearing,

which was scheduled for January 23, 2001.      At that hearing, Mr.

Smith filed a plea of jurisdiction/motion to quash.     He argued

that because neither party had requested equitable distribution

pursuant to Code § 20-107.3, the trial court lacked jurisdiction

to grant it.

        Ms. Smith, first learning of the motion when it was

presented to the trial court, argued that she had requested

equitable distribution in paragraph three of her answer and

consequently, the trial court possessed jurisdiction.       The trial

court disagreed and granted Mr. Smith's motion.      Ms. Smith

appeals that judgment.

                             II.    ANALYSIS

        Code § 20-107.3 states, in pertinent part:

             Upon decreeing the dissolution of a marriage
             . . . the court, upon request of either

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             party, shall determine the legal title as
             between the parties and the ownership and
             value of all property . . . .

The statute specifies neither the form nor the substance of the

"request."    Thus, it is sufficient that a party make known to

the court his or her desire that the court award equitable

distribution.    However, a court's jurisdiction to award

equitable distribution is dependent upon a timely "request" by a

party.    See Toomey v. Toomey, 251 Va. 168, 465 S.E.2d 838

(1996).

     In Toomey, Mr. Toomey filed for a divorce from Victoria

Toomey.   Ms. Toomey filed no responsive pleading within the

required time.    Without further notice to her, depositions were

taken and a final decree of divorce was entered.    More than

seven months later, Ms. Toomey sought equitable distribution of

the marital estate, and, over Mr. Toomey's objection, the trial

court permitted her to file a cross-bill seeking that relief.

Reversing that judgment, the Supreme Court stated:

             Mrs. Toomey failed to protect her interests
             in having the circuit court adjudicate her
             equitable distribution rights. Under Code
             § 20-107.3, Mrs. Toomey could have requested
             the circuit court to adjudicate her rights
             prior to entering the divorce decree; she
             also could have moved the circuit court to
             retain its jurisdiction and adjudicate those
             rights after entering the divorce decree.
             She did neither.

Id. at 172, 465 S.E.2d at 840.




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     Unlike Ms. Toomey, Ms. Smith protected her interests by

requesting equitable distribution in paragraph three of her

answer.   While the request was not artfully stated, paragraph

three nevertheless sufficiently made known to the trial court

Ms. Smith's desire for equitable distribution.   The trial court

recognized as much in the February 18, 1998 decree by providing

that "matters regarding equitable distribution of marital

property . . . are hereby deferred for further adjudication as

allowed by Virginia Code Section 20-107.3."   The decree

containing this reservation was endorsed, "I ask for this," by

Mr. Smith's counsel.

     The trial court erred in holding it lacked jurisdiction to

award equitable distribution.   Therefore, we reverse the

judgment of the trial court and remand the case for

ascertainment of the parties' property rights, pursuant to Code

§ 20-107.3.

                                         Reversed and remanded.




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