Bruce G. Perrone
Legal Aid of West Virginia
Charleston, West Virginia
Attorneys for the Appellee,
Nancy L. Ellithorp
Kimberly D. Bentley
Roger D. Williams
James F. Humphreys & Associates
Charleston, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
1. This Court reviews the circuit court's
final order and ultimate disposition under an abuse of discretion standard.
We review challenges to findings of fact under a clearly erroneous standard;
conclusions of law are reviewed de novo. Syl. Pt. 4, Burgess
v. Porterfield,196 W.Va. 178, 469 S.E.2d 114 (1996).
2. Under the divisible divorce doctrine, where
a foreign jurisdiction does not have personal jurisdiction over both parties
to a marriage, the personal and property rights of the parties may be litigated
in West Virginia separately from a divorce decree issued in another jurisdiction.
Spousal support and marital property rights, available under W.Va.Code,
48-2-15 , survive such an ex parte foreign divorce decree when
the foreign court did not have personal jurisdiction over the defendant in
the foreign proceeding. Syl. Pt. 5, Snider v. Snider, 209 W.Va.
771, 551 S.E.2d 693 (2001).
Appellant Gary Dean Ellithorp appeals from the June
28, 2001, order of the Circuit Court of Putnam County affirming the family
law master's recommended order for entry of a decretal judgment arising from
an arrearage for both child support and alimony. While the underlying proceedings
relative to the divorce and establishment of child support and alimony were
protracted and involved conflicting rulings due to the initiation of simultaneous
divorce proceedings in Texas and West Virginia, the sole matter raised by
Appellant is whether the lower court erred in ruling that Appellant's consent
to an agreed order entered by the circuit court in February 1997 retroactively
conferred jurisdiction necessary to enforce the support provisions of a West
Virginia divorce decree that was entered in May 1995 without personal jurisdiction
over Appellant. Upon our full and considered review of this matter, we affirm,
in part, and reverse, in part.
Appellee instituted a divorce proceeding in the
Circuit Court of Putnam County, West Virginia, on July 21, 1994. She averred
in the divorce complaint that Appellant was stationed in El Paso, Texas, as
a member of the armed forces of this country, but that he maintained his legal
residence in Putnam County. Appellee attempted service of the complaint upon
Appellant through the West Virginia Secretary of State, but Appellant refused
to accept delivery of the divorce papers and he filed no response to the West
Virginia divorce proceedings.
Five days after Appellee initiated the divorce action
in this state, Appellant filed for divorce in El Paso County, Texas.
(See footnote 2)
When the West Virginia family law master contacted the Texas court to
inform it of the pending West Virginia divorce action,
(See footnote 3) the Texas court refused to defer jurisdiction to the West Virginia court.
(See footnote 4) Following a hearing before
the West Virginia Family Law Master on December 19, 1994, to determine whether
the action should proceed in West Virginia, the law master signed an order
on December 22, 1994, which included the following findings: (1) that the
children of the parties were continuous bona fide residents of Putnam County,
West Virginia; (2) that West Virginia had jurisdiction under the Uniform Child
Custody Jurisdiction Act; and (3) that West Virginia shall maintain
the jurisdiction of the complaint filed in Putnam County as to all issues
and, specifically the infant children.
(See footnote 5)
On January 13, 1995, the Texas court issued a Final Decree of Divorce (See footnote 6) in which the parties were appointed as joint managing conservators of the children. Under the Texas final decree, Appellee was designated as the primary managing conservator and awarded child support of $400 per month until any child reaches the age of 18 years. (See footnote 7)
A final hearing of divorce was held by the family law master in West Virginia on January 3, 1995, and an order was prepared recommending divorce on the grounds of adultery and irreconcilable differences. Because Appellee had not alleged irreconcilable differences in her complaint, the circuit court remanded the matter to the family law master. Following the submission of a second recommended order, (See footnote 8) which identified adultery as the only ground for the divorce, the circuit court entered a final order of divorce on May 11, 1995. Under the West Virginia final order of divorce, Appellee received custody of the children and was awarded child support in the amount of $591.67 per month and alimony in the amount of $400 per month.
Various post-divorce actions ensued,
(See footnote 9)
none of which directly impact upon this proceeding, until the entry of
an agreed order by the parties in the Circuit Court of Putnam County on February
3, 1997. Through counsel, Appellant and Appellee signed an agreed order that was aimed at resolving the continuing disputes concerning which court
had jurisdiction over matters of custody, child support, and alimony, as well
as reaching finality on those specific issues. The agreed order, in admittedly
less than exemplary language, provides, in pertinent part, that:
That the Divorce Decree entered on January 13, 1996 and Order Enforcing said Decree entered on May 30, 1996, in the District Court of El Paso County, Texas, 205th Judicial District, shall be entered in this Court record and venue on all issues contained therein shall be by agreement of the parties changed to solely within the Circuit Court of Putnam County, West Virginia. That the said Texas Final Decree and Order Enforcing said Decree shall be and the same is hereby DISMISSED and the same shall have no force and effect, by agreement of the parties.
WHEREFORE, it is hereby ORDERED, ADJUDGED and DECREED that the [sic] upon dismissal of the Texas Final Decree that the Final Decree of Divorce entered in the Circuit Court of Putnam County on the above-referenced Civil Action Number is hereby ratified and confirmed as if fully set out herein and the same shall be bifurcated so that the Paragraphs 1, 2 (except that visitation shall may be modified by further order of the Court upon remand), 5, 7, 10, 11 and 13 shall remain as a FINAL DECREE; however, the issues in Paragraphs 3, 4, 6, 8, 9 and 12, shall have the force and effect of a Temporary Order and continue as Ordered therein until further order of the Court.
Pertinent to this opinion are several of those paragraphs designated as having the force and effect of a temporary order: Paragraph 3 provides for child support of $591.67 per month; Paragraph 4 provides for alimony in the amount of $400 per month; Paragraph 6 concerns medical insurance; Paragraph 8 concerns equitable distribution; Paragraph 9 addresses allocation of marital debts; and Paragraph 12 involves fees. (See footnote 10)
The agreed order further provides for service of
the order upon the Texas court and declares the Texas order entered
there to West Virginia and the same is then DISMISSED and shall be NULL and
VOID in effect and unenforceable. Based on the inclusion of a nunc
pro tunc clause, the agreed order provides for the terms of such order
to take effect on December 12, 1996.
Other than a notice of appearance by new local counsel
on Appellant's behalf in June 1997, no action was taken relative to this matter
until on February 25, 2000, when the West Virginia Bureau for Child Support
Enforcement (Child Support Bureau) filed a motion for decretal
judgment against Appellant seeking to collect a child support and alimony
(See footnote 11) At a hearing before the family law master
on this motion, Appellant challenged the jurisdiction of the West Virginia court at the entry of the final order
of divorce. He further argued that Texas continued to maintain jurisdiction
over this matter, notwithstanding the entry of the agreed order.
By order dated October 20, 2000, the family law
master concluded that West Virginia was the home state of the children under
the Uniform Interstate Family Support Act (UIFSA)
(See footnote 12)
and had continuing exclusive jurisdiction of issues of child and spousal
support under the UIFSA. Citing the agreed order's recognition of West Virginia
as the controlling order relative to support issues, the family
law master looked to the amounts of support set forth therein and granted
a decretal judgment against Appellant as of March 30, 2000, in the amounts
of $2,864.86 for child support arrearage and $17,874.00 for alimony arrearage.
Appellant sought review of the family law master's findings with the circuit
court, again raising the issue of whether West Virginia had jurisdiction of
(See footnote 13)
Upon its careful consideration of this critical
issue of jurisdiction, the circuit court concluded that West Virginia did
not have jurisdiction over Appellant when the West Virginia final decree of
divorce was entered in May 1995. In its ruling of June 28, 2001, the circuit
court determined that West Virginia did not acquire personal jurisdiction
over Appellant until the entry of the agreed order on February 3, 1997.
(See footnote 14)
Based on this acquisition of personal jurisdiction in 1997, the circuit
court affirmed the family law master's order finding Appellant in arrearage
for both child support and alimony payments that had accrued since the entry
of the West Virginia divorce.
(See footnote 15) Appellant challenges the
circuit court's ruling in the June 28, 2001, order that the West Virginia
divorce decree was given full force and effect retroactively from its May
1995 entry based upon its conclusion that by virtue of the entry of the agreed
order on February 3, 1997, the parties had conferred jurisdiction upon the
West Virginia court to enforce the West Virginia divorce decree under the
terms of the agreed order.
The circuit court's sole basis for determining that
Appellant had voluntarily submitted himself to in personam jurisdiction
of the West Virginia court was his involvement in these matters incident to
preparing an agreed order and the eventual entry of such order. As the circuit
court indicated in its order, Appellant has not provided this Court with
any evidence that his counsel at the time, Timothy C. Bailey, did not have the
authority to sign the Agreed Order. Given the lack of any challenge to
the agreed order and its entry, Appellant has no basis from which to deny that
he voluntarily submitted himself to the personal jurisdiction of the West Virginia
court by reason of the agreed order.
With regard to the issue of subject matter jurisdiction
and the lower court's ruling that jurisdiction had been conferred, Appellant
appears to suggest that the circuit court was ruling that subject matter jurisdiction
resulted only from the parties' consent to the agreed order. It is
well settled that whereas, [j]urisdiction of the person may be conferred
by consent, . . . jurisdiction of the subject-matter of litigation must exist
as a matter of law. State ex rel. Hammond v. Worrell, 144 W.Va.
83, 90, 106 S.E.2d 521, 525 (1959), overruled on other grounds as stated
in Patterson v. Patterson, 167 W.Va. 1, 277 S.E.2d 709 (1981). Separate
and apart from the agreed order, West Virginia had jurisdiction to resolve
matters of child custody and, upon the occurrence of in personam jurisdiction
over both parties, West Virginia had jurisdiction to determine the consequent
financial obligations arising under the divorce. The necessary subject matter
jurisdiction arose under certain uniform domestic acts and through operation
of the doctrine of divisible divorce. We proceed to discuss in detail the origin of the West Virginia court's subject matter jurisdiction, given its
integral significance to the issue before us.
After examining the factors set forth in the UCCJA
for determining jurisdiction, the West Virginia Family Law Master determined
that the children of the parties were residents of West Virginia. The facts
in the record demonstrate that Appellee was similarly never a resident of
Texas. Consequently, West Virginia, rather than Texas, was the state that
satisfied the jurisdictional prerequisites of the UCCJA, given that West Virginia
was, under the facts of this case, the state with which Appellee and the parties'
children had a significant connection and the state in which substantial
evidence was available pertinent to the children's present or
future care, protection, training and personal relationships. W.Va.
Code § 48-10-3. Given the complete absence of any contacts with the state
of Texas as contrasted with the continuous residence of Appellee and the children in West Virginia
beginning in 1990, West Virginia, and not Texas, was the preferred jurisdictional
forum under the UCCJA. This conclusion is required given the UCCJA's objective
of establishing jurisdiction in the state where significant evidence
concerning . . . [the child's] care, protection, training and personal relationships
is most readily available. W.Va. Code § 48-10-1 (1981) (Repl. Vol.
Beyond the jurisdictional provisions, another provision
of the UCCJA similarly mandated that Texas should have refused to exercise
jurisdiction over this matter. In full anticipation of dueling proceedings,
the UCCJA addresses which state should exercise jurisdiction in the event
of simultaneous proceedings filed in separate states:
(a) Except as otherwise provided in section 20-204, (See footnote 21) a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under 20-207. (See footnote 22)
W.Va. Code § 48-20-206 (footnotes supplied). (See footnote 23) As required under the UCCJA, the West Virginia Family Law Master, contacted the Texas court to inform it of the pending West Virginia divorce action which was filed prior to the Texas action. As related above, the Texas court, with no explanation, refused to comply with the directives of the UCCJA regarding simultaneous proceedings. (See footnote 24) See supra note 4.
Just as the jurisdictional factors set forth in the UCCJA clearly weigh in favor of West Virginia over Texas, the jurisdictional factors contained in the federal Parental Kidnapping Prevention Act (PKPA) point in only one direction -- towards West Virginia. See 28 U.S.C. § 1738A (2001). The PKPA, which defines the conditions under which the child custody order of one state must be accorded full faith and credit by another state, identifies the same jurisdictional grounds as those utilized in the UCCJA. Those factors include: (1) whether the state which issued the order is or was the home state of the child; (2) whether it appears that no other state would have jurisdiction and it is in the best interest of the child for the state to assume jurisdiction based upon the child's and one other party's significant connection with the state and the availability of substantial evidence concerning the child; (3) whether the child is physically present in the state; and (4) whether any other state has jurisdiction under these factors or has declined to exercise jurisdiction. 28 U.S.C. § 1738A(c). Thus, had Appellant been awarded custody of his children by the Texas court and sought to enforce such an order in West Virginia, the provisions of the PKPA would not have required this state to enforce the custody determination given the clear lack of jurisdiction on the part of the Texas court with regard to issues of custody. See id; see generally W.Va. DHHR ex rel. Hisman v. Angela D., 203 W.Va. 335, 507 S.E.2d 698 (1998) (applying provisions of UCCJA and PKPA to determine that West Virginia was not required to extend full faith and credit to Ohio decree).
Applying the provisions of yet another uniform act -- the UIFSA _ an act which expressly addresses conflicts arising in connection with child and spousal support obligations issued by different states, similarly results in the conclusion that Texas does not have jurisdiction over matters of support. See supra note 22. Upon our review of these three uniform acts, we are left with the firm conviction that West Virginia undisputedly had subject matter jurisdiction over issues pertinent to child custody and support obligations. However, because Texas had jurisdiction to issue a divorce decree, we proceed to a discussion of the doctrine of divisible divorce.
In its June 28, 2001, order, the circuit court recognized
the doctrine of divisible divorce in connection with its conclusion that West
Virginia lacked personal jurisdiction over Appellant in May 1995 when a divorce
decree was issued in this state. Applying this doctrine, the circuit court ruled
that the May 11, 1995, divorce decree was void in so far as it ordered
the Defendant [Appellant] to pay child support and alimony. While this
conclusion was correct, the lower court appears to have overlooked the fact
that the Texas divorce, entered on January 13, 1995, which preceded the West
Virginia divorce by several months, served to sever the bonds of matrimony between
the parties. The parties were no longer married at the time the West Virginia
final decree was entered.
The lack of personal jurisdiction over Appellant
at the time of the divorce, as the circuit court correctly recognized, prevented
the West Virginia court from addressing matters beyond the divorce itself.
See Burnett, 208 W.Va. at 755, 542 S.E.2d at 918. Only when the West
Virginia court obtained personal jurisdiction over Appellant could the financial
issues of child support and alimony be resolved. Ultimately, the necessary
in personam jurisdiction was obtained over Appellant through his consent
to the entry of the agreed order.
No issue exists as to the enforceability of the
agreed order as far as the amounts of child and spousal support reflected
therein from the effective date of the order forward, given the existence
of both personal and subject matter jurisdiction relative to the entry of
the agreed order. The only issue is whether the circuit court erred in ordering
that the agreed order, by its terms, reached back to the date of the West
Virginia divorce decree for purposes of the decretal judgment sought by the
Child Support Bureau.
In this Court's opinion, the lack of personal jurisdiction
over Appellant at the time of the West Virginia divorce decree prevents this
Court from finding Appellant obligated to pay child and spousal support at the rates set forth in the West Virginia
divorce decree prior to the entry of the agreed order. Accordingly, we affirm
the lower court's conclusion that it had personal and subject matter jurisdiction
over Appellant at the time of the entry of the agreed order, but we reverse
the determination that the West Virginia divorce decree, and specifically
the amounts of child and spousal support set forth therein, could be enforced
retroactively to the date of the West Virginia divorce decree. The absence
of personal jurisdiction over Appellant combined with the lack of any express
language in the agreed order addressing the imposition of such amounts retroactive
to the date of the West Virginia divorce decree is fatal to the lower court's
ruling. West Virginia is simply without authority to enforce any child support
obligation that might have been thought to arise under the agreed order during
the period of time between the entry of the West Virginia final decree of
divorce and the entry of the agreed order.
(See footnote 25)
Based on the foregoing, the decision of the Circuit Court of Putnam County is affirmed insofar as it correctly determined that the lower court had both personal and subject matter jurisdiction over Appellant at the time of the entry of the agreed order, but reversed as to its conclusion that the agreed order could, by means of incorporating the terms of the West Virginia final decree of divorce that was entered without the exercise of personal jurisdiction over Appellant, establish a retroactive date for purposes of implementing the child and spousal support obligations that are set forth in the agreed order. Upon remand, (See footnote 27) the appropriate amount of a decretal judgment shall be determined for those payments of alimony and child support falling due under the terms of the agreed order from and after the date of entry of that order (See footnote 28) and remaining unpaid, together with any amount of interest deemed owing, and an order reflecting such amount entered. Because the provisions of the agreed order regarding several issues, including child support and alimony, have only the effect of a temporary order by the express terms of the order, the court, on remand, is encouraged to proceed to further determine the appropriate terms of a final order on those issues.
Affirmed, in part;
Reversed, in part.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
W.Va. Code § 48-20-207 (2001); Tex. Fam. Code Ann. § 152.207 (2002).
(a) A tribunal of this state
may exercise jurisdiction to establish a support order if the petition or
comparable pleading is filed after a pleading is filed after a pleading is
filed in another state only if:
(1) the petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state;
(2) the contesting party timely challenges the exercise of jurisdiction in the other state; and
(3) if relevant, this state is the home state of the child.
(b) A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state if:
(1) the petition or comparable pleading in the other state is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state;
(2) the contesting party timely challenges the exercise of jurisdiction in this state; and
(3) if relevant, the other state is the home state of the child.
Texas Fam. Code Ann. §159.204 (1995); accord W.Va. Code § 48-16-204 (2001).