                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued at Chesapeake, Virginia


DONALD F. DELINE
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2801-09-1                                   JUDGE ROBERT P. FRANK
                                                                 AUGUST 31, 2010
ELIZABETH BAKER


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                              A. Joseph Canada, Jr., Judge

                 Samuel R. Brown, II, for appellant.

                 James A. Evans (Evans & Bryant, P.L.C., on briefs), for appellee.


       Donald F. DeLine, father, appeals a judgment of the circuit court which found that the

juvenile and domestic relations district court had not lost jurisdiction to determine matters

involving child support, ruling the circuit court never assumed jurisdiction in the divorce

proceeding. For the reasons stated, we find no error. 1

                                          BACKGROUND

       On January 5, 2000, the juvenile and domestic relations district court (juvenile court) for

the City of Virginia Beach ordered father to pay $233.20 per week for the support of the parties’

two minor children. Subsequently, that court established arrearage at $6,455.44 and ordered

weekly payments toward the arrearage by order dated September 19, 2002.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         At oral argument, we requested counsel to file supplemental briefs to address whether
the circuit court had subject matter jurisdiction to address matters involving child support.
       On October 22, 2002, Elizabeth Baker (mother) filed a bill of complaint in the Circuit

Court for the City of Virginia Beach seeking a divorce from father. The prayer for relief did not

seek child or spousal support, or a determination of custody or visitation.

       The matter was referred to a commissioner in chancery, and evidence was heard on

March 26, 2003. Mother testified there were outstanding orders in the juvenile and domestic

relations district court and she wanted them to remain “in place.” She further acknowledged

father was in arrears of $8,525.96 for child support and $1,126.55 for medical expenses.

However, she wanted no judgment entered for those sums.

       The commissioner, in his report filed April 8, 2003, reported inter alia that “The issue of

child support should be reserved to the Virginia Beach Juvenile & Domestic Relations District

Court” but then recommended mother should provide health insurance for the children and that

both parties should share equally in uncovered medical and dental expenses. The commissioner

also reported a child support arrearage of $8,525.96 and $1,126.55 for medical expense

reimbursement. No exceptions were filed to the commissioner’s report.

       The final decree, entered July 30, 2003, awarded custody to mother, with visitation to

father, and denied spousal support to each party, based on their mutual waiver. It further

provided:

               ADJUDGED, ORDERED and DECREED that child support is
               reserved. Per the Commissioner in Chancery’s report, the [father]
               has an arrearage of $8,525.96 through the date of the hearing; and
               it is further,

               ADJUDGED, ORDERED and DECREED that the [mother] shall
               pay the monthly premium for medical insurance coverage for the
               minor children, and that the parties are to equally split any
               non-covered medical expenses. Per the Commissioner in
               Chancery’s report, the [father] has a balance of $1,126.55 for
               medical expenses through the date of the hearing, which are to be
               reimbursed to the [mother]; and it is further

                          *       *      *       *       *      *       *

                                               -2-
               ADJUDGED, ORDERED and DECREED that pursuant to
               § 20-79(c) of the Code of Virginia, 1950, as amended, that all
               further matters pertaining to the enforcement and/or modification
               of child support, custody and visitation should be transferred to the
               Virginia Beach Juvenile and Domestic Relations District Court for
               all further action as may be deemed appropriate.

       The final decree was endorsed by mother, “I Ask For This” and was not appealed.

       Thereafter, the juvenile court, on October 22, 2003, February 2, 2004, and June 9, 2005,

found father in contempt, set arrearages, and sentenced father to varying terms of incarceration.

None of these orders were appealed.

       On April 30, 2009, mother filed a show cause motion with the juvenile court, alleging

arrearage. On August 14, 2009, father filed a motion to dismiss and a motion to vacate, alleging

that because jurisdiction remained with the Circuit Court of the City of Virginia Beach, having

reserved child support jurisdiction, the juvenile court had no jurisdiction to enter the October 22,

2003, February 2, 2004, and June 9, 2005 contempt orders.

       The juvenile court denied father’s motion, finding father in contempt and setting

arrearage at $53,021.32. Father appealed this ruling to the circuit court. In response, mother

filed a motion for summary judgment, asking that the appeal be dismissed, averring that the

circuit court, in the divorce action, made no adjudication as to child support and therefore did not

assume jurisdiction as to child support, leaving jurisdiction with the juvenile court.

       After a hearing, the circuit court found the divorce action did not divest the juvenile court

of jurisdiction to determine child support and that the three juvenile court contempt orders were

valid and enforceable.

       This appeal follows.




                                                -3-
                                             ANALYSIS

        Father argues since the circuit court, in the divorce action, assumed jurisdiction over

child support, that action divested the juvenile court from any jurisdiction to hold him in

contempt and set arrearages. Mother responds that since the circuit court, in the divorce action,

never had subject matter jurisdiction over child support, jurisdiction in juvenile court continued.

Our analysis, therefore, addresses the effect of the circuit court’s final decree on the juvenile

court’s jurisdiction.

        Code § 16.1-244(A) states in part:

                However, when a suit for divorce has been filed in a circuit court,
                in which the custody, guardianship, visitation or support of
                children of the parties or spousal support is raised by the pleadings
                and a hearing, including a pendente lite hearing, is set by the
                circuit court on any such issue for a date certain or on a motions
                docket to be heard within 21 days of the filing, the juvenile and
                domestic relations district courts shall be divested of the right to
                enter any further decrees or orders to determine custody,
                guardianship, visitation or support when raised for such hearing
                and such matters shall be determined by the circuit court unless
                both parties agreed to a referral to the juvenile court. Nothing in
                this section shall deprive a circuit court of the authority to refer any
                such case to a commissioner for a hearing or shall deprive the
                juvenile and domestic relations district courts of the jurisdiction to
                enforce its valid orders prior to the entry of a conflicting order of
                any circuit court for any period during which the order was in
                effect or to temporarily place a child in the custody of any person
                when that child has been adjudicated abused, neglected, in need of
                services or delinquent subsequent to the order of any circuit court.

Code § 20-79(a) provides:

                        In any case where an order has been entered under the
                provisions of this chapter, directing either party to pay any sum or
                sums of money for the support of his or her spouse, or concerning
                the care, custody or maintenance of any child, or children, the
                jurisdiction of the court which entered such order shall cease and
                its orders become inoperative upon the entry of a decree by the
                court or the judge thereof in vacation in a suit for divorce instituted
                in any circuit court in this Commonwealth having jurisdiction
                thereof, in which decree provision is made for support and
                maintenance for the spouse or concerning the care, custody or

                                                 -4-
                  maintenance of a child or children, or concerning any matter
                  provided in a decree in the divorce proceedings in accordance with
                  the provisions of § 20-103.

         Here, the final decree of divorce addresses support and maintenance of the children in

several aspects. It reserved child support; it found a child support arrearage; it addressed medical

insurance and “non-covered medical expenses”; and it transferred to the juvenile court “further

matters pertaining to the enforcement and/or maintenance of child support, custody and

visitation . . . .”

         However, it must be remembered that in the complaint for divorce mother only asked for

a divorce and resumption of her maiden name. The pleadings did not include a prayer for

support and maintenance, custody or visitation.

         As the Supreme Court of Virginia concluded in Potts v. Mathieson Alkali Works, 165

Va. 196, 181 S.E. 521 (1935):

                          The basis of every right of recovery under our system of
                  jurisprudence is a pleading setting forth facts warranting the
                  granting of the relief sought. It is the sine qua non of every
                  judgment or decree. No court can base its decree upon facts not
                  alleged, nor render its judgment upon a right, however meritorious,
                  which has not been pleaded and claimed. Pleadings are as
                  essential as proof, the one being unavailing without the other. A
                  decree cannot be entered in the absence of pleadings upon which to
                  found the same, and if so entered it is void.

Id. at 207, 181 S.E. at 525 (citations omitted).

         In Virginia, jurisdiction over divorce matters is statutorily based. Rogers v. Damron, 23

Va. App. 708, 711, 479 S.E.2d 540, 541 (1997). A court has jurisdiction over the subject matter

if it has jurisdiction over the cause of action and of the relief sought. Id. at 712, 479 S.E.2d at




                                                   -5-
541. Here, the circuit court lacked subject matter jurisdiction to grant relief not sought by either

party to the divorce action. 2

        Orders entered without subject matter jurisdiction are void and may be challenged

“‘directly or collaterally by all persons, anywhere, at any time, or in any manner.’” Singh v.

Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001) (quoting Barnes v. American Fertilizer

Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925)).

        In Boyd v. Boyd, 2 Va. App. 16, 340 S.E.2d 578 (1986), we reversed an award of spousal

support when that relief was not pled. We held a divorce court’s authority “does not extend to an

award or relief not raised by the pleading.” Id. at 19, 340 S.E.2d at 580.

        In Reid v. Reid, 24 Va. App. 146, 480 S.E.2d 771 (1997), husband’s bill of complaint did

not specifically reference spousal support, yet the final decree revoked all prior spousal support

orders. Wife moved to set aside the provisions of the final decree relating to the revocation of

spousal support, and the trial court so ordered. Id. at 149, 480 S.E.2d at 772. This Court agreed,

stating that issues relating to spousal support were not properly pled in husband’s bill of

complaint. Id. at 150, 480 S.E.2d at 773. “[T]he absence of a specific request for an

adjudication of spousal support precluded the court from obtaining jurisdiction over that subject

matter.” Id.




        2
         While there is authority that distinguishes subject matter jurisdiction from the authority
to exercise that jurisdiction, i.e., Nelson v. Warden, 262 Va. 276, 552 S.E.2d 73 (2001), and
Ghameshlouy v. Commonwealth, 279 Va. 379, 391, 689 S.E.2d 698, 704 (2010), the parties
never raised that distinction in oral argument or on brief. Therefore, we will not consider this
issue on appeal. See Mullins v. Commonwealth, 39 Va. App. 728, 733, 576 S.E.2d 770, 772
(2003) (“On appeal, we [will] consider only the issues raised.”); see also Richardson v. Moore,
217 Va. 422, 423 n.1, 229 S.E.2d 864, 865 n.1 (1976) (stating the Court would “express no
opinion” on a particular question because that question was “not raised on appeal”).

                                                -6-
       We affirmed the principles of Boyd and Reid in Fadness v. Fadness, 52 Va. App. 833,

667 S.E.2d 857 (2008). 3 There, we restated the principle that without a specific request for an

adjudication of spousal support, a court cannot obtain jurisdiction over that subject matter. Id. at

843, 667 S.E.2d at 862.

       In his supplemental brief, father attempts to distinguish Reid by noting wife did, in fact,

ask for the relief granted by the trial court, i.e., matters pertaining to child support, by endorsing

the final decree “I Ask For This.” Citing Manns v. Commonwealth, 13 Va. App. 677, 679-80,

414 S.E.2d 613, 615 (1992), father concludes mother cannot now take an inconsistent position by

arguing such relief was not requested. 4

       Father’s argument misses the mark in several significant respects. First, an endorsement

of an order is not a prayer for relief in a pleading. See Baylor v. Commonwealth, 190 Va. 116,

121, 56 S.E.2d 77, 79 (1949) (“Webster’s New International Dictionary, 2d Ed., defines

‘pleadings’ as, ‘[t]he successive statements, now usually written, by which the plaintiff sets forth

his cause and claim, and the defendant his defense.’”); Burch v. Grace Street Bldg. Corp., 168

Va. 329, 341, 191 S.E. 672, 677 (1937) (“Pleadings are the allegations made for the purpose of




       3
         Under the interpanel accord doctrine, the “decision of one panel ‘becomes a predicate
for application of the doctrine of stare decisis’ and cannot be overruled except by the Court of
Appeals sitting en banc or by the Virginia Supreme Court.” Clinchfield Coal Co. v. Reed, 40
Va. App. 69, 73, 577 S.E.2d 538, 540 (2003) (citation omitted).
       4
         Father made this argument at trial. While conceding the bill of complaint’s prayer did
not request any determination of child support, and further conceding the final decree should
have only granted the divorce, he contended wife’s endorsement of the final decree “I Ask For
This” conferred jurisdiction for the circuit court to address child support issues in the final
decree.
        Similarly, mother argued below that the trial court had no subject matter jurisdiction
because the bill of complaint did not pray for the relief granted and alternatively that the circuit
court had no authority to exercise subject matter jurisdiction. With these issues before it, the trial
court concluded the final decree did not divest the juvenile court of the “support issue.”

                                                 -7-
definitely presenting the issue or issues to be tried and determined.”). Second, this argument is

premised on mother being estopped from raising subject matter jurisdiction. However,

                 [j]urisdiction of the subject matter cannot be obtained by consent
                 of the parties, waiver or estoppel. The subjects over which the
                 various courts of this State shall have jurisdiction, if not fixed by
                 the Constitution, shall be determined only by the legislature, and a
                 judgment rendered outside of the jurisdiction so conferred is void.

Lucas v. Biller, 204 Va. 309, 313, 130 S.E.2d 582, 585 (1963). Thus, father’s contention that

mother agreed to the action of the trial court in assuming jurisdiction over matters of child

custody fails.

       Having concluded the circuit court, in its final decree entered July 30, 2003, had no

subject matter jurisdiction to address child support, those portions of the final decree are a nullity

and void. Therefore, the juvenile court was not divested of its jurisdiction to enter the contempt

orders of October 22, 2003, February 2, 2004, and June 9, 2005. The support order of the

juvenile court was not terminated by operation of law. “An existing order of spousal support

survives a subsequent decree of divorce which is silent on the issue.” Reid, 24 Va. App. at 151,

480 S.E.2d at 773 (citing Werner v. Commonwealth, 212 Va. 623, 624-25, 186 S.E.2d 76, 77-78

(1972)). As the Supreme Court explained in Werner, either party, by proper pleading, “could

have asked the Circuit Court to make specific provision in the final divorce decree for allowance

or denial of [support]. If such a provision had been included in the decree, the jurisdiction of the

[district court] would have ceased under § 20-79(a).” 212 Va. at 625, 186 S.E.2d at 78; see also

Code § 16.1-244(A). However, because “neither party sought to have such provision made,” the

preexisting support order “continue[d] in full force and effect.” Werner, 212 Va. at 625, 186

S.E.2d at 78.




                                                 -8-
       We conclude the final decree did not divest the juvenile court of its jurisdiction to hear

matters concerning child support, which would include contempt and establishing arrearages. 5

The circuit court did not err in finding the juvenile court contempt orders were valid because the

circuit court did not assume jurisdiction over child support. 6

                                                                                          Affirmed.




       5
         Wife filed a motion to remand this matter to the trial court to correct the final decree
pursuant to Code § 8.01-428(B), contending there was a clerical error when the court included
provisions addressing child support “by error.” Code § 8.01-428(B) allows for correction of a
judgment for “errors therein arising from oversight or from an inadvertent omission.” That
section does not allow corrections for errors of law. Therefore, we deny the motion.
       6
         Since we find the circuit court had no subject matter jurisdiction to address any matter
involving child support, we need not interpret the “transfer” language of the final decree.
                                               -9-
