ANALYSIS OF CAV JURISDICTIONAL RULING
(Posted February 9, 2021) The Court of Appeals of Virginia hands down an interesting jurisdictional decision this morning. The case is Johnson v. Johnson, a divorce proceeding from here in Virginia Beach.
Husband and Wife married in 1974. After 43 years of marriage, Wife had had enough; she filed to end the union in 2017.
It took the case 2½ years to mature for trial. In February of last year, a circuit-court judge heard evidence and announced in open court that he would award Wife a no-fault divorce based on separation for one year. The judge directed Husband’s lawyer to prepare a final divorce decree, and asked the lawyers to put their heads together on the wording and on any exceptions.
Wife, sadly, had brain cancer. Just over two months after the hearing, and before the parties submitted a sketch final order, she died. Husband’s lawyer reported that she had duly prepared the draft order and submitted it to Wife’s lawyer before the death, and that the lawyers were engaged in a back-and-forth discussion of the terms before Wife’s passing.
Wife’s lawyer moved the court to enter a decree of divorce nunc pro tunc, carrying out the judge’s announcement of his ruling. He argued that such an order would be appropriate because, in the words of today’s opinion, “without a pre-death divorce decree, [Husband] was still legally [Wife’s] next-of-kin and that would complicate her last wishes.”
Four weeks after Wife’s passing, the court held a hearing to consider the motion. It ultimately ruled that it was powerless to grant a divorce after the death of one of the parties. The court granted a motion filed by the spouses’ daughter — her mother’s qualified personal rep — to substitute as a party. It then dismissed the case for lack of jurisdiction. The daughter then brought this appeal.
Judge Humphreys writes today’s short and compelling opinion for a unanimous panel of the court. It affirms the circuit court’s decision that a court’s power doesn’t extend to granting divorces to a marriage that no longer exists. As Judge Humphreys notes, “Put simply, the words ‘until death do us part’ found in traditional marriage vows are reflected in the law of the Commonwealth. A marriage ends upon the death of a spouse.”
As for the daughter’s argument that the circuit court should have carried out its express in-court ruling, there’s a difference between rendition of judgment and entry of judgment. A court may render a judgment orally by announcing a ruling, or even in writing through a letter opinion. But entry of judgment calls for signing a written order, and that didn’t happen here before the marriage ended the way so many others have, and so many others will.
The panel also rejects the notion of a nunc pro tunc solution to this problem. That kind of order is fine to correct errors or omissions; but it can’t “record an event that never occurred.” Trial courts, being courts of record, speak through their orders; not through their oral pronouncements.
What can a lawyer in a similar situation do to prevent something like this? That’s hard for me to say without a greater knowledge of the trial record than today’s seven-page opinion provides. There’s a suggestion there that Wife’s lawyer could move to bifurcate equitable-distribution issues from the divorce itself; but that wouldn’t necessarily have hastened the divorce here. The only thing I can conceive is a motion to expedite the trial once the lawyer knows of her client’s diagnosis, but there may be circumstances about this case’s trial preparation that made that impractical.
I expect my appellate pal John Koehler to post analysis of this decision plus the other CAV published opinion today, in Wills v. Wills, on his website by this evening. You’ll be able to see that analysis here.