Opinion
Record No. 0528-94-1
Decided: March 28, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Edward W. Hanson, Jr., Judge
Calvin H. Childress (Kelberg, Childress Flax, on brief), for appellant.
Rita Ros-Planas for appellee.
Present: Judges Baker, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Julius M. Lenhart contends that the trial court erred (1) in reinstating the case of Burgett v. Lenhart, more than thirty days after entry of the final decree of divorce, for hearing before a commissioner in chancery on reserved issues of spousal support and equitable distribution, (2) in awarding equitable distribution although the original bill of complaint did not specifically pray for it, and (3) in entering a final decree on February 25, 1994 nunc pro tunc to November 29, 1993. We find no error and affirm with respect to the first two issues, but we modify the final decree on the third issue.
By final decree entered July 10, 1991, the trial court awarded Carol Burgett a divorce a vinculo matrimonii from Mr. Lenhart. This decree provided:
It further appearing that [Mr. Lenhart] was served by Order of Publication and has made no appearance, . . . all further matters pertaining to spousal support and equitable distribution of the marital estate [are] reserved for future determination by a court of competent jurisdiction . . . .
Thereafter, Mr. Lenhart was served personally in Slatington, Pennsylvania with notice stating:
[O]n the 11th day of December [1992] . . . counsel for Plaintiff will move this Court to reinstate the above captioned chancery suit [ Carol L. Burgett v. Julius M. Lenhart] to be heard on the matters of equitable distribution and spousal support . . . and for entry of the attached Decree of Re-Reference.
On December 11, 1992, Mr. Lenhart appeared personally before the trial court for a hearing on the issue of reinstatement of the case. The trial court found that "the issues reserved in the final decree have reached full merit and are ready to be heard." It re-referred the cause to Floyd Kellam, Jr., Commissioner in Chancery, to take direct testimony and report his findings. Mr. Lenhart endorsed this decree of re-reference "I ask for this."
On February 17, 1993, Mr. Lenhart filed a special appearance and plea challenging the jurisdiction of the trial court to entertain the issue of equitable distribution. By letter opinion dated April 14, 1993, the trial court ruled that Code Sec. 20-121.1 allowed reinstatement of the suit.
On October 20, 1993, the Commissioner in Chancery reported that "after entry of the final decree of divorce, the court determined [Mr. Lenhart] appeared in this cause, and thus submitted himself to the personal jurisdiction of the Court." The Commissioner recommended that Ms. Burgett be awarded fifty percent of the marital share of Mr. Lenhart's disposable monthly military retirement pay. He further recommended that spousal support be reserved to Ms. Burgett.
Mr. Lenhart excepted to the Commissioner's report, alleging that the trial court lacked jurisdiction. By letter, the trial court advised Mr. Lenhart that the issue of personal jurisdiction had been argued previously, that the trial court had ruled that it had acquired personal jurisdiction, and that it would entertain no further argument on this issue. On December 10, 1993, Mr. Lenhart's exceptions were overruled. By decree entered February 25, 1994 "effective nunc pro tunc to November 29, 1993," the trial court reserved spousal support to Ms. Burgett and awarded her a share of the marital portion of Mr. Lenhart's military pension, as recommended by the Commissioner in Chancery.
I.
Mr. Lenhart first contends that the divorce suit could not be reopened more than thirty (sic) days after entry of the final decree. He argues that Rule 1:1 barred further litigation on the issues of spousal support and equitable distribution. We disagree.
Code Sec. 20-121.1 provides for reinstatement of a suit in which complete relief has not been obtained. "Rule 1:1 bars only further litigation of issues over which the court had power to adjudicate . . . ." Hayes v. Hayes, 3 Va. App. 499, 504, 351 S.E.2d 590, 592 (1986). When the trial court granted Ms. Burgett a divorce it lacked jurisdiction to determine issues of spousal support and equitable distribution. Because Mr. Lenhart was domiciled outside the Commonwealth and had been proceeded against by order of publication, the trial court had acquired only in rem jurisdiction. This permitted dissolution of the marriage, see Price v. Price, 17 Va. App. 105, 435 S.E.2d 652 (1993), but did not permit determination of issues of spousal support and equitable distribution. Hayes, at 505, 351 S.E.2d at 593.
When military benefits are at issue, the law of the Commonwealth is preempted by the federal Uniformed Services Former Spouses Protection Act (USFSPA), which controls state court proceedings to divide a service member's disposable retired or retainer pay. Under the Act's long arm provisions, 10 USCA Sec. 1408(c) (4), a state court may acquire jurisdiction in three ways: (1) if the member is domiciled in the state, (2) if the member is a resident of the state, or (3) if the member gives his consent to the state's jurisdiction.
Mr. Lenhart made a general appearance at the December 11, 1992 hearing on the decree of re-reference, thereby waiving any objection to personal jurisdiction. Nixon v. Rowland, 192 Va. 47, 50, 63 S.E.2d 757, 759 (1951). By endorsing the December 11, 1992 order, he consented to the trial court's jurisdiction and satisfied the requirements of 10 U.S.C. § 1408(a) (4). See Seeley v. Seeley, 690 S.W.2d 626 (Tex.Ct.App. 1985) (husband waived special appearance and entered general appearance in divorce proceeding by not obtaining a ruling on his special appearance prior to the proceeding). See also Gowins v. Gowins, 466 So.2d 32 (La. 1985) ( 10 U.S.C.A. Sec. 1408(c) (4) (C) does not require express consent. Therefore, a military spouse can give implied consent by making a general appearance, waiving all jurisdictional objections).
II.
Mr. Lenhart next contends that, because Ms. Burgett did not pray specifically for equitable distribution in her bill of complaint, the trial court lacked authority to grant that relief. We disagree. Ms. Burgett asked for spousal support, child support, and "such other and further relief as the nature of [the] cause [required]." The commissioner in chancery recommended that Ms. Burgett be awarded a final decree of divorce and that the issues of spousal support and equitable distribution be reserved for future determination. The commissioner's reports were confirmed by the trial court.
Generally, "no court can base its judgment or decree upon a right which has not been pleaded and claimed." Boyd v. Boyd, 2 Va. App. 16, 18, 340 S.E.2d 578, 580 (1986). Boyd is distinguishable from this case. First, in Boyd the court made an actual award of spousal support, whereas in this case, the court merely reserved support and equitable distribution issues for future determination. Second, in Boyd, the wife sought spousal support neither in her pleadings nor by motion, whereas Ms. Burgett moved at the commissioner's hearing for reservation of the equitable distribution issue. Third, Mr. Lenhart was provided notice of the issues of spousal support and equitable distribution when he was served personally with the Notice of the Decree of Re-Reference. Therefore, we find no error in the trial court's reservation of the issues of spousal support and equitable distribution or its later equitable distribution award.
III.
Finally, Mr. Lenhart contends that the trial court erred in making the February 25, 1994 decree effective nunc pro tunc to November 29, 1993, because the nunc pro tunc date did not relate back to a time when judgment could properly have been rendered. He argues that neither a hearing nor any action by the court occurred on November 29, 1993. We agree.
"An order entered nunc pro tunc cannot create a fiction that an act not yet performed has already occurred; rather, the power of the trial court to amend by nunc pro tunc order is restricted to placing upon the record evidence of judicial action which has already been taken but was earlier omitted or misstated in the record." Williams v. Commonwealth, 7 Va. App. 516, 519, 375 S.E.2d 364, 366 (1988). The February 25, 1994 decree was the trial court's initial adjudication of the spousal support and equitable distribution issues. No ruling on those issues occurred on November 29, 1993. The trial court erred in seeking to accomplish a fictitious retroactivity by making its decree effective nunc pro tunc to the earlier date. Because this error is readily correctable on appeal, we do not reverse, but order that the decree of February 25, 1994 be modified by deletion of the nunc pro tunc provision, making the decree effective February 25, 1994, the date of its entry.
Modified in part and affirmed.