Rose E. Smith v Ellis H. Smith

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia
ROSE E. SMITH
OPINION BY
v. 	Record No. 0577-01-4 	JUDGE JERE M. H. WILLIS, JR.
APRIL 16, 2002
ELLIS H. SMITH
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
H. Selwyn Smith, Judge Designate
Roy D. Bradley (Bradley Law Firm, P.C., on
briefs), for appellant.
Linda I. Dodge for appellee.
Rose Smith contends on appeal that the trial court erred in
holding that it lacked jurisdiction to award equitable
distribution because neither party requested it. 	See Code
§ 20-107.3. 	For the following reasons, we reverse the judgment
of the trial court and remand for equitable distribution of the
parties' property.
I. 	BACKGROUND
Ellis and Rose Smith were married on July 2, 1973. 	On June
10, 1995, they separated. 	On November 4, 1997, Mr. Smith filed
a bill of complaint for divorce. 	Two days later, Ms. Smith
filed her answer, asserting, inter alia:
3. 	The parties hold joint title to
property, the division of which will
ultimately be a necessary part of these
proceedings.

On February 18, 1998, the trial court entered a decree
granting the parties a final divorce. 	An error in the decree
was corrected on March 5, 1998, nunc pro tunc to February 18,
1998. 	The decree provided, in pertinent part:
AND THIS DECREE IS FINAL as to the parties'
divorce, and the marriage of the parties is
HEREBY DISSOLVED FOREVER, and matters
requiring equitable distribution of marital
property pursuant to Virginia Code Section
20-107.3 are hereby deferred for further
adjudication as allowed by Virginia Code
Section 20-107.3.
Over the next thirty-four months, the parties conducted
discovery in preparation for an equitable distribution hearing,
which was scheduled for January 23, 2001. 	At that hearing, Mr.
Smith filed a plea of jurisdiction/motion to quash. 	He argued
that because neither party had requested equitable distribution
pursuant to Code § 20-107.3, the trial court lacked jurisdiction
to grant it.
Ms. Smith, first learning of the motion when it was
presented to the trial court, argued that she had requested
equitable distribution in paragraph three of her answer and
consequently, the trial court possessed jurisdiction. 	The trial
court disagreed and granted Mr. Smith's motion. 	Ms. Smith
appeals that judgment.
II. 	ANALYSIS
Code § 20-107.3 states, in pertinent part:
Upon decreeing the dissolution of a marriage
. . . the court, upon request of either
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party, shall determine the legal title as
between the parties and the ownership and
value of all property . . . .
The statute specifies neither the form nor the substance of the
"request." 	Thus, it is sufficient that a party make known to
the court his or her desire that the court award equitable
distribution. 	However, a court's jurisdiction to award
equitable distribution is dependent upon a timely "request" by a
party. 	See Toomey v. Toomey, 251 Va. 168, 465 S.E.2d 838
(1996).
In Toomey, Mr. Toomey filed for a divorce from Victoria
Toomey. 	Ms. Toomey filed no responsive pleading within the
required time. 	Without further notice to her, depositions were
taken and a final decree of divorce was entered. 	More than
seven months later, Ms. Toomey sought equitable distribution of
the marital estate, and, over Mr. Toomey's objection, the trial
court permitted her to file a cross-bill seeking that relief.
Reversing that judgment, the Supreme Court stated:
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.
Id. at 172, 465 S.E.2d at 840.
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Unlike Ms. Toomey, Ms. Smith protected her interests by
requesting equitable distribution in paragraph three of her
answer. 	While the request was not artfully stated, paragraph
three nevertheless sufficiently made known to the trial court
Ms. Smith's desire for equitable distribution. 	The trial court
recognized as much in the February 18, 1998 decree by providing
that "matters regarding equitable distribution of marital
property . . . are hereby deferred for further adjudication as
allowed by Virginia Code Section 20-107.3." 	The decree
containing this reservation was endorsed, "I ask for this," by
Mr. Smith's counsel.
The trial court erred in holding it lacked jurisdiction to
award equitable distribution. 	Therefore, we reverse the
judgment of the trial court and remand the case for
ascertainment of the parties' property rights, pursuant to Code
§ 20-107.3.
Reversed and remanded.
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