Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice

THOMAS NELSON TOOMEY
                                         OPINION BY
v.   Record No. 950578             SENIOR JUSTICE HENRY H. WHITING
                                      January 12, 1996
VICTORIA L. TOOMEY

              FROM THE COURT OF APPEALS OF VIRGINIA


     This appeal concerns a circuit court's jurisdiction to

consider a nonresident party's motion for equitable distribution

that was filed more than 21 days after a final decree had been

entered in a divorce suit.
     Thomas Nelson Toomey, a resident of Virginia, filed a bill

of complaint in the Circuit Court of the City of Newport News

against Victoria L. Toomey, a resident of Oregon, seeking a

divorce on the ground that the parties had lived separate and

apart without cohabitation and without any interruption for a

period of more than one year.   Although a subpoena in chancery,

with a copy of Mr. Toomey's bill of complaint attached thereto,

was personally served on Mrs. Toomey in Oregon, she failed to

file responsive pleadings within the required time.   Without

further notice to Mrs. Toomey, depositions were taken, and, in

April 1992, a final decree was entered in which Mr. Toomey was

granted a divorce from the bond of matrimony.

     More than seven months later, Mrs. Toomey moved the circuit

court for equitable distribution of the marital estate.   Over Mr.

Toomey's objection, the circuit court permitted Mrs. Toomey to

file a cross-bill for equitable distribution, and the Court of

Appeals affirmed that ruling upon Mr. Toomey's appeal.    Toomey v.
Toomey, 19 Va. App. 756, 454 S.E.2d 735 (1995).     Agreeing with

Mr. Toomey's contention that the Court of Appeals' decision has

significant precedential value, Code § 17-116.07(B), we awarded

this appeal.

     The litigants agree that the circuit court could not have

adjudicated issues of equitable distribution prior to Mrs.

Toomey's intervention in the suit because it lacked personal

jurisdiction over her.   They disagree whether the circuit court

could do so later under the facts of this case.
     Mr. Toomey claims that because the circuit court lost its

jurisdiction to adjudicate that claim upon entry of the final

decree, Mrs. Toomey lost her rights to equitable distribution in

a Virginia court by failing to claim those rights prior to entry

of the final decree.   Mrs. Toomey responds that she could not

have lost her equitable distribution rights at that time since

the circuit court lacked personal jurisdiction over her when the

decree was entered.    We agree with Mr. Toomey.

     We consider Mrs. Toomey's contention by examining the origin

of a spouse's right to equitable distribution.     At common law,

divorce courts had no jurisdiction to make awards of equitable

distribution.   See Guy v. Guy, 210 Va. 536, 541, 172 S.E.2d 735,

738 (1970); Barnes v. American Fertilizer Co., 144 Va. 692, 709,

130 S.E. 902, 907 (1925).    That authority was vested in divorce

courts by Code § 20-107.3.    Parra v. Parra, 1 Va. App. 118, 124,

336 S.E.2d 157, 160 (1985).   And when jurisdiction is vested in a



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court by statute, that jurisdiction is limited by the terms of

the statute.   See Cauthorn v. Cauthorn, 196 Va. 614, 619, 85

S.E.2d 256, 259 (1955).

     The circuit court's limited jurisdiction in this case is

described in the following pertinent language in Code § 20-107.3:
          A. Upon . . . decreeing a divorce from the bond
     of matrimony, or upon the filing with the court as
     provided in subsection J of a certified copy of a final
     divorce decree obtained without the Commonwealth, the
     court, upon request of either party, shall determine
     the legal title as between the parties, and the
     ownership and value of all property, real or personal,
     tangible or intangible, of the parties and shall
     consider which of such property is separate property,
     which is marital property, and which is part separate
     and part marital property in accordance with
     subdivision A 3. . . . The court, on the motion of
     either party, may retain jurisdiction in the final
     decree of divorce to adjudicate the remedy provided by
     this section when the court determines that such action
     is clearly necessary, and all decrees heretofore
     entered retaining such jurisdiction are validated.

     . . . .

          J. [The] court . . . may [order equitable
     distribution] after a court of a foreign jurisdiction
     has decreed a dissolution of a marriage or a divorce
     from the bond of matrimony, if (i) one of the parties
     was domiciled in this Commonwealth when the foreign
     proceedings were commenced, (ii) the foreign court did
     not have personal jurisdiction over the party domiciled
     in the Commonwealth, (iii) the proceeding is initiated
     within two years of receipt of notice of the foreign
     decree by the party domiciled in the Commonwealth, and
     (iv) the court obtains personal jurisdiction over the
     parties pursuant to subdivision A 9 of [Code] § 8.01-
     328.1 [maintenance of matrimonial domicile in Virginia
     at specified times if other party resides in Virginia],
     or in any other manner permitted by law.


(Emphasis added.)

     Although Mrs. Toomey invokes Code § 20-107.3, we find



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nothing in that statute giving the circuit court jurisdiction to

adjudicate Mrs. Toomey's claim to equitable distribution.      The

circuit court awarded the divorce and did not retain jurisdiction

in the divorce decree to adjudicate equitable distribution after

entry of that decree. 1   Hence, we conclude that the circuit court

had no jurisdiction to consider Mrs. Toomey's filing under the

provisions of Code § 20-107.3.

     Nor does the two-year period provided in Code § 8.01-322

vest jurisdiction in the circuit court to consider Mrs. Toomey's
                                                           2
application for equitable distribution, as she contends.       We

rejected a similar contention when a nonresident wife, who had

been personally served in a foreign state, moved for a rehearing

and sought spousal support after a divorce decree had been

entered.   Mitchell v. Mitchell, 227 Va. 31, 314 S.E.2d 45 (1984).


     1
      Although the court's jurisdiction to modify, vacate, or

suspend the final decree continued for 21 days after its entry,

Rule 1:1, Mrs. Toomey filed no pleadings within that period

invoking that jurisdiction.

     2
      Code § 8.01-322 provides in pertinent part:

                If a party against whom service by publication is
           had under this chapter did not appear before the date
           of judgment against him, then such party . . . may
           petition to have the case reheard . . . within the
           following time and not after:

                1. Within two years after the rendition of such
           judgment, decree or order . . . .




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In Mitchell, we pointed out that "[i]f a [nonresident] defendant

has received personal service [in the foreign state] at the

commencement of the litigation . . . and fails to protect his

interests, he accepts the risk of an unfavorable result."         Id. at

38, 314 S.E.2d at 49.

     Similar to the nonresident defendant in Mitchell, 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.     Mrs. Toomey's failure to

protect her interests does not substantively adjudicate her

equitable distribution rights, but does bar her from asserting

those rights in a Virginia court.
     We recognize that, had Mrs. Toomey timely protected her

interests, she would have subjected herself to the circuit

court's personal jurisdiction.   Nevertheless, this decision--

whether to remain outside the circuit court's personal

jurisdiction or to protect her interests in having that court

adjudicate equitable distribution rights--is one dictated by Code

§ 20-107.3.   The consequence of Mrs. Toomey's decision is that

the circuit court was without jurisdiction to consider her motion

for equitable distribution.



                                 -5-
     Accordingly, we will reverse the order of the Court of

Appeals that affirmed the circuit court's decree in Mrs. Toomey's

favor, and we will enter a final decree for Mr. Toomey in this

Court.

                                       Reversed and final decree.




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