                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia


KELLY ELIZABETH KLEIN
                                           MEMORANDUM OPINION * BY
v.   Record No. 2826-02-4              JUDGE RUDOLPH BUMGARDNER, III
                                                JULY 8, 2003
GEORGE JOHN KLEIN, JR.


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                 Herman A. Whisenant, Jr., Judge

          T. James Binder for appellant.

          Kathleen Latham Farrell (Farrell & Croft,
          P.C., on brief), for appellee.


     The trial court granted a divorce to Kelly Elizabeth Klein

and George John Klein, Jr. on the grounds of a one-year

separation.   The wife appeals the denial of spousal support and

the failure to award her a portion of the husband's pension.

Concluding the trial court acted within the parameters of its

discretion, we affirm.

     The parties married in 1985, had two children, and

separated January 8, 1999.    The wife filed a bill of complaint

for divorce February 12, 1999.    The bill of complaint did not

request spousal support.    The cause came for final hearing in


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
September 2002 on the report of the commissioner in chancery and

to determine equitable distribution, custody, and support.

During her opening remarks, the wife asked for spousal support

in the amount she had received as pendente lite support.     The

husband objected to an award of spousal support because the wife

had not pleaded the issue.   The wife responded that support had

been awarded pendente lite and that she had made a general

prayer for such further relief as the court deemed appropriate.

The trial court ruled the issue was not properly pleaded.

     After the lunch recess, the wife moved the court to

reconsider its decision.   She referred to a motion filed

November 1, 1999 that requested pendente lite support and

concluded with a prayer for "spousal support pendente lite and

permanently . . . ."   She argued the phrase "and permanently"

constituted a sufficient pleading of the issue.   In the

alternative, she moved to amend orally her bill of complaint.

     The trial court ruled that it could only award the relief

when the pleadings raised the issue and that the general prayer

for further relief did not, by itself, justify an award of

spousal support.   The trial court relied on Boyd v. Boyd, 2

Va. App. 16, 340 S.E.2d 578 (1986).   The trial court then denied

the request to amend the pleading.    It distinguished the facts

from those in Pantazes v. Pantazes, No. 0129-00-4 (Va. Ct. App.




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December 5, 2000), upon which the wife relied. 1        In this case, no

transcript existed of the contested pendente lite hearing in

1999 that might have showed previous counsel acknowledged the

issue.      The trial court also noted that the discovery conducted

would not have put the husband on notice of the claim for

spousal support.

       In Boyd, the wife filed a cross-bill for divorce that

included a request for custody, child support, and maintenance.

Although the wife did not request spousal support, the trial

court awarded it.      This Court held that a general prayer for

"further relief" did not justify an award of spousal support.

To hold otherwise "would constitute an unwarranted modification

of the nature of the cause of action, with potentially

far-reaching effects."      2 Va. App. at 20, 340 S.E.2d at 581.

"[N]o court can base its judgment or decree upon a right which

has not been pleaded and claimed."        Id. at 18, 340 S.E.2d at

580.       "'Pleadings are as essential as proof, the one being

unavailing without the other.'"       Id. at 19, 340 S.E.2d at 580

(quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207, 181

S.E. 521, 525 (1935)).       Boyd controls this case.




       1
       In Pantazes, the wife requested spousal support pendente
lite, and the husband did not object. When the court granted
the wife's motion to amend, the husband suffered no surprise and
did not request a continuance. Under those facts, the trial
court did not abuse its discretion in granting the motion.

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     The wife maintains Boyd did not preclude an amendment of

her bill of complaint and Rule 1:8 encourages liberal amendment

of the pleadings.   However, neither Boyd nor Rule 1:8 requires

the trial court to grant the amendment.   Permission to amend

pleadings rests within the sound discretion of the trial court.

Kole v. City of Chesapeake, 247 Va. 51, 57, 439 S.E.2d 405, 409

(1994).   That decision will not be disturbed absent an abuse of

discretion.   Alphin v. Alphin, 15 Va. App. 395, 400, 424 S.E.2d

572, 575 (1992).

     In this case, the wife filed her initial pleading in

February 1999.    At no point in the record, which involved

multiple attorneys and numerous pleadings, did she ever request

permanent spousal support.   She never sought to amend her

complaint before the final two-day hearing commenced in

September 2002.    Opposing counsel was surprised by the claim,

and the wife gave no reason or justification for her delay and

failure to plead.   While the facts of this case may have

permitted an amendment, they did not mandate one.   The decision

was an appropriate exercise of discretion.

     The wife also maintains the trial court erred in failing to

award her any portion of the husband's pension.   She argues the

ruling precluded her "from any significant return for her

contribution to the marital pension asset."   The division of the

marital estate, including any pension, is a matter of the


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exercise of sound discretion by the trial court.    Code

§ 20-107.3.

     The couple did not have many assets to divide.    The wife

earned $22,000, and the husband earned $56,000.    After they

separated, the wife lived in the marital residence.   It had a

market value of $279,000 but had liens of more than $250,000.

They included a mortgage arrearage of $65,425 that the wife

incurred while living there after the separation.   During the

separation, the wife had received $24,000 in child and spousal

support while the husband had discharged $45,000 in other

marital debts.   The trial court awarded the residence to the

wife and the $21,089 pension to the husband.    It also ordered

him to pay $2,800 in marital income tax debt.    The trial judge

took the statutory factors into consideration.    We cannot say

the trial court abused its discretion when it allocated the two

assets among the parties rather than splitting their value

between them.

     Finding the trial court did not abuse its discretion, we

affirm.

                                                           Affirmed.




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