Helping With Divorce & Child Custody
If you are facing a divorce in Prince William, turn to the Law Offices of SRIS P.C. lawyers for help.
Are you having a divorce? If yes, then you may need legal help. Having a divorce may seem easy, but the legal process is hectic and involves a lot of legal work. The dissolution of marriage is absolute divorce in Virginia. The state also refers to it as the divorce from the bond of matrimony. There are many things which you should know before you file a divorce in Virginia. The laws here are defence than other states. It is why you should take help from Prince William Virginia, a divorce lawyer.
The divorce laws in Virginia
If you want to file a divorce, you should be a resident of the state. You have to be the resident for at least six months before you can file the case. You will have to file the divorce in the circuit court. Also, you cannot file a divorce if you are not separate for six months. You can only file a divorce if you no longer live with each other for six months (if you do not have any kids). If you have children, you can file a case for divorce only if you are separate for more than one year. These laws may puzzle you; it is why hiring a divorce lawyer is a must.
There are many other issues also such as maintenance and spousal support. You may have to provide support for your spouse even after divorce. You may have to support your children. If you are a female and your spouse is getting a divorce, you can file a case against him for child custody and child support. Our lawyers will ensure that you get the maximum benefit after divorce.
Hiring the expert divorce lawyer
There are so many issues when you get a divorce. There are child custody cases which may arise; there may be property distribution cases and so much more. There are so many issues that you cannot handle them on your own. It is why you must hire an expert Prince William Virginia, the divorce lawyer. These lawyers are capable of handling all types of divorce cases.
You should also understand that it is not always necessary to go to the court for a divorce. Going to the court will cost you a lot of money. If you want to get a divorce, you can ask your partner to come to an agreement and dissolve the marriage without going to the court. Ask your lawyer to talk to the lawyer about your partner/spouse. An expert lawyer will always think of a way to come to common terms. The lawyers are professionals, and they know how to talk with the counterpart’s lawyers. They will ensure that you both agree to the annulment. It is the quality of the lawyer to make sure that the case does not go to the court for trial court unless both parties want it. It is why you should hire a divorce lawyer. He will get you out of the problems you face with your partner with a divorce.
The following are some of the Virginia div. laws:
A. A div. from the bond of matrimony may be decreed:
(1) For adultery; or for sodomy or buggery committed outside the marriage;
Click on above link to read more.
- VA § 20-94. Effect of cohabitation after knowledge of adultery, sodomy or buggery; lapse of five years.
When the suit is for div. for adultery, sodomy, or buggery, the div. shall not be granted, if it appear that the parties voluntarily cohabited after the knowledge of the fact of adultery, sodomy or buggery, or that it occurred more than five years before the institution of the suit, or that it was committed by the procurement or connivance of the party alleging such act. Click on above link to read more.
A dissolution of marriage from bed and board may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment.
Prince William dissolution of marriage Virginia
The following is a case that is illustrative of a div. case in Virginia:
Gary Prizzia (“husband”) and Judit Prizzia (“wife”) were married in Hungary on August 28, 1999. While they were living there, their only child was born on February 3, 2000. In April 2000, the Prizzias moved to Prince William Virginia, where they resided until December 15, 2002. On that date, both parties took the child to Hungary for a visit over the Christmas holidays. Husband returned to Commonwealth on December 25, 2002, and wife and the child remained in Hungary. On February 4, 2003, wife filed for div. in Hungary, requesting custody of the child. Upon learning of wife’s actions, husband filed for div. in the Circuit Court of Prince William County on May 6, 2003. Husband’s complaint also requested the court to award him custody of the child and to make an equitable distribution of the marital estate.
On December 30, 2003, the trial court entered an order finding “that Hungary had proper jurisdiction over the parties as to div., custody, visitation and child support,” and accordingly “declined to exercise jurisdiction over those matters at that time.” Furthermore, the trial court’s order provided that “after a final decree of div. is granted in Hungary, this court will hear argument on equitable distribution and spousal support.” Finally, the order stated: “In the future, if spousal support and/or child support is awarded in this court, it can be made retroactive.”
On March 19, 2005, the Hungarian court granted the parties a div. and awarded custody of the child to wife, with visitation rights to husband. The Hungarian court did not award child support, nor did it divide the parties’ property. Husband then sought to revive the dormant proceeding in Prince William County in order to address all issues other than the div. Wife did not return to Commonwealth for the hearings, but was granted permission to present testimony by telephonic deposition.
On May 24, 2010, the Prince William court entered a final decree. The final decree addressed the issues of equitable distribution, child support, and spousal support. The Prince William court declined to enter any order dealing with the issues of div. or child custody, choosing instead to defer to the Hungarian court’s ruling on those issues.
On appeal, husband assigns numerous errors to the Prince William court’s actions, and wife argues three additional assignments of error as well. We discuss additional facts that are relevant to specific assignments of error in our analysis below.
- Child Custody and Visitation
Husband first argues that the trial court of Prince William erred in finding that the Hungarian court had jurisdiction to decide the issues of child custody and visitation. Thus, he posits, the trial court of Prince William erred in failing to exercise its jurisdiction over those issues where multiple states or foreign countries have potential initial jurisdiction over child custody, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) dictates where actual jurisdiction shall be exercised. Here, we conclude that the trial court failed to follow the requirements of the UCCJEA.
- Jurisdiction To Make an Initial Child Custody Determination
To determine whether a court of this Commonwealth has jurisdiction to make an initial child custody determination, we look to Code § 20-146.12:
- Except as otherwise provided in § 20-146.15 the section providing for temporary emergency jurisdiction, a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:
- This Commonwealth is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;
- A court of another state does not have jurisdiction under subdivision 1, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under § 20-146.18 or § 20-146.19, and (i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence and (ii) substantial evidence is available in this Commonwealth concerning the child’s care, protection, training, and personal relationships;
- All courts having jurisdiction under subdivision 1 or 2 have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under § 20-146.18 or § 20-146.19; or
- No court of any other state would have jurisdiction under the criteria specified in subdivision 1, 2, or 3.
As subsection (B) makes clear, “Subsection A is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.” Code § 20-146.12(B). Thus, to determine whether a court of this Commonwealth had jurisdiction to make an initial child custody determination in this case, we must first decide what the “home state” of the child was on May 6, 2003, the date this proceeding was commenced.
The UCCJEA defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period.” Code § 20-146.1. Hence, a child’s “home state” is where the child has lived with one or more of his parents for the consecutive six-month period immediately preceding the date on which a child custody proceeding is filed.
However, this is not the only six-month period we must consider in analyzing initial jurisdiction over child custody under Code § 20-146.12(A)(1). Where, as here, the child was not living in Commonwealth on the date the proceeding was filed, we must determine if Commonwealth was the child’s home state at any time during the six months before the filing date. If so, Commonwealth would continue to have initial jurisdiction. See Code § 20-146.12(A)(1) (prescribing initial custody jurisdiction if the “Commonwealth is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth” (emphasis added)). This alternate basis for jurisdiction becomes relevant in instances where a child has acquired a new residence less than six months before the commencement of a custody proceeding, thus rendering the child technically without a home state as of the date of the commencement of the proceeding. In such a case, the court must examine whether the child had a home state at any point within the six-month period preceding the date of filing. In other words, the court must ask whether at any point throughout the six months preceding the date of filing, it could be said that on a particular date, the child had lived with a parent in a particular state for at least six consecutive months. The purpose behind this statutory scheme is to extend a state’s home state status throughout the six-month period it would take for another state to become the child’s new home state.
Thus, if a child lived with a parent in Commonwealth for six months and then moved to another state (or another country, for that matter), Commonwealth would continue to have jurisdiction to make an initial child custody determination under Code § 20-146.12(A)(1) until the child had lived long enough in the other state (i.e., six months) for that state to become the child’s new home state. See Code § 20-146.1.
With this understanding of the UCCJEA’s basic jurisdictional scheme in mind, we need not decide whether the child’s presence in Hungary from December 15, 2002 to May 6, 2003 constituted a “period of temporary absence” within the meaning of Code § 20-146.1, thus rendering Commonwealth the home state as of the date of filing, or whether the child had actually changed residence from Commonwealth to Hungary during that time. Even if the child’s residence had permanently changed on December 15, 2002 from Commonwealth to Hungary, Commonwealth continued to have initial child custody jurisdiction for six months after that date. Thus, as of May 6, 2003, the date on which husband commenced this custody proceeding, Commonwealth either was the child’s home state or had been the child’s home state within the previous six months. This means that under Code § 20-146.12(A)(1), Commonwealth had jurisdiction to make an initial child custody determination.
- Declining To Exercise Jurisdiction Under the UCCJEA
Having concluded that Commonwealth had jurisdiction to make an initial child custody determination, we must next analyze whether the court properly declined to exercise its jurisdiction under the UCCJEA. In analyzing this issue, we must decide as a subsidiary issue whether Hungary also had jurisdiction under the UCCJEA’s jurisdictional framework. In considering this question, we treat the Hungarian court as we would a court of another state in the United States: “A court of this Commonwealth shall treat a foreign country as if it were a state of the United States for purposes of applying this article and Article 2 (§ 20-146.12 et seq.) of this chapter.” Code § 20-146.4(A).
Code § 20-146.4(B) directs that “a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this act must be recognized and enforced under Article 3 (§ 20-146.22 et seq.) of this chapter.” In other words, a Commonwealth court must recognize and enforce a foreign custody determination if the facts of the case would have supported a finding of jurisdiction by the foreign court had it applied the jurisdictional standards of the UCCJEA.
Here, when we apply the jurisdictional standards of the UCCJEA to the facts before the Hungarian court as of February 4, 2003, when wife first filed her div. and custody petition, we conclude that the Hungarian court did not exercise jurisdiction “under factual circumstances in substantial conformity with” the UCCJEA’s jurisdictional standards. See Code § 20-146.4(B). Essentially, we are faced with the question, “Under the standards of Code § 20-146.12, did the Hungarian court have jurisdiction to make an initial child custody determination as of February 4, 2003?” We hold that it did not.
First, Hungary was not the “home state” of the child in February 2003, when wife filed her div. and custody petition in the Hungarian court. The child had not yet lived in Hungary for six months as of February 4, 2003. Furthermore, Hungary had not been the home state of the child at any time during the six-month period immediately preceding the date of wife’s filing on February 4, 2003. Thus, Hungary did not have jurisdiction under Code § 20-146.12(A)(1) at the time of wife’s filing. Rather, Commonwealth continued to have home state jurisdiction at that time.
Second, Hungary did not have jurisdiction pursuant to any of the other potential avenues for obtaining jurisdiction under Code § 20-146.12(A), viz., subsections (A)(2), (A)(3), and (A)(4). This is for two reasons: (1) Commonwealth retained home state jurisdiction under Code § 20-146.12(A)(1); and (2) the Commonwealth trial court did not decline to exercise jurisdiction on the ground that the Hungarian court was the more appropriate forum in accordance with the requirements of Code § 20-146.18 or Code § 20-146.19. See Code § 20-146.12(A)(2)-(4). We have already discussed the first reason. We will now explain the second.
Although the trial court of said it was “declining to exercise jurisdiction” over child custody matters in this case, the trial court of did not decline to exercise its jurisdiction in a manner that conformed either to Code § 20-146.18 or to Code § 20-146.19.
Code § 20-146.18(A) provides:
A court of this Commonwealth that has jurisdiction under this act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.
However, Code § 20-146.18 does not permit a court simply to declare that it has decided to decline to exercise jurisdiction. Rather, Code § 20-146.18(B) requires:
Before determining whether it is an inconvenient forum, a court of this Commonwealth 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 present evidence and shall consider all relevant factors . . . .
(Emphasis added.) The statute then lists eight specific factors the court must consider in determining whether to decline to exercise jurisdiction under this section
Thus, in order for a trial court to decline to exercise jurisdiction under Code § 20-146.18, it must specifically determine two things: (1) “that it is an inconvenient forum under the circumstances,” and (2) “that a court of another state is a more appropriate forum.” Code § 20-146.18(A). Furthermore, in “considering whether it is appropriate for a court of another state to exercise jurisdiction,” the trial court must both “allow the parties to present evidence” and “consider all relevant factors, including those listed in the statute.” Code § 20-146.18(B).
Here, the trial court of failed to do what the statute requires. The trial court made no specific determination that Commonwealth was an inconvenient forum under the circumstances or that the Hungarian court was a more appropriate forum. Moreover, the trial court did not allow the parties to present all relevant evidence, as husband requested, on the issue of whether it was more appropriate for the Hungarian court to exercise jurisdiction. Because it did not allow the parties to present evidence pertaining to the statutory factors, the trial court could not have based its decision on a proper review of those factors. Thus, we conclude that by failing to follow the requirements of Code § 20-146.18, the trial court did not properly decline to exercise its jurisdiction pursuant to that section.
The second way a trial court can decline to exercise its jurisdiction over child custody is set forth in Code § 20-146.19, which states that “if a court of this Commonwealth has jurisdiction under this act because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless one of certain enumerated exceptions is met.” Code § 20-146.19(A). Here, there is no evidence that Commonwealth had home state jurisdiction because husband had engaged in unjustifiable conduct. The trial court did not make this finding, nor did it base its decision to decline to exercise jurisdiction on Code § 20-146.19. Therefore, this second avenue for declining to exercise jurisdiction does not apply to this case.
Because the trial court did not properly decline to exercise its jurisdiction under Code § 20-146.18 or Code § 20-146.19, its vague, unexplained, general decision to decline to exercise jurisdiction was improper under the UCCJEA. Moreover, since Commonwealth had jurisdiction to make an initial child custody determination under Code § 20-146.12(A)(1), and since the Commonwealth trial court did not properly decline to exercise this jurisdiction pursuant to either Code § 20-146.18 or Code § 20-146.19, Hungary did not have jurisdiction to make an initial child custody determination under Code § 20-146.12(A)(2), (A)(3), or (A)(4). Therefore, under the jurisdictional standards of the UCCJEA, Commonwealth had jurisdiction to make an initial child custody determination, and Hungary did not. Accordingly, it was error for the trial court to defer to the Hungarian court on the issue of child custody in the manner that it did. We thus reverse this decision of the trial court of and remand for the trial court to decide whether to exercise its jurisdiction and award custody pursuant to Commonwealth law. In making that determination, the trial court of must allow the parties to present evidence and must consider all relevant factors, including those expressly listed in Code § 20-146.18(B). If, based on that consideration, the trial court concludes that Commonwealth is an inconvenient forum under the current circumstances and that Hungary is currently a more appropriate forum for determination of child custody, the trial court may decline to exercise its jurisdiction under Code § 20-146.18.
- Child Support
Husband assigns error to the trial court’s award of child support on several grounds, arguing that: (1) the trial court did not have jurisdiction to award child support; (2) the trial court erred in applying the wrong standard of proof in its decision not to deviate from the statutory guidelines; and (3) the trial court erred in awarding child support retroactive to the date wife filed her initial pleadings. We disagree with husband’s contentions.
- Jurisdiction over Child Support
Initially, husband argues that the trial court did not have jurisdiction to award child support because it had previously ruled the Hungarian court had proper jurisdiction over child support. In its order of December 30, 2003, the trial court did find that Hungary had proper jurisdiction over child support and accordingly declined to exercise jurisdiction over child support at that time. However, this order did not constitute a finding that the trial court had no jurisdiction over child support. Rather, the trial court was simply declining to exercise jurisdiction over child support at that particular time. See Prizzia v. Prizzia, 45 v. App. 280, 286, 610 S.E.2d 326, 329 (2005) (noting that the language of the trial court’s order in this case “does not preclude the possibility that the court would later exercise jurisdiction and rule on the merits of the case”).
Husband also argues that Code § 20-107.2 did not give the trial court jurisdiction to award child support in this case. Code § 20-107.2 provides:
Upon entry of a decree providing (i) for the dissolution of a marriage, (ii) for a div. , whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a div. , or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the custody or visitation and support of the minor children of the parties . . . .
As husband notes, none of these four prerequisites appear to be present in this case. The trial court did not div. the parties; the Hungarian court dissolution of marriaged them. Although wife argues that the trial court decreed neither party was entitled to a div. under Code § 20-107.2(iii), the trial court did not deny the parties a div. on the merits of their case. Rather, the trial court simply declined to exercise jurisdiction over the issue of div. An order declining to exercise jurisdiction over div. is not the same as a decree denying a div. on the merits, as Code § 20-107.2(iii) appears to contemplate. Thus, we will assume without deciding that Code § 20-107.2 did not give the trial court jurisdiction to award child support in this case.
However, that does not mean that the trial court erred in awarding child support. Husband’s counsel conceded at oral argument that if the trial court had jurisdiction over child custody, it would also have had jurisdiction over child support. We agree. Code § 16.1-241(A)(3) provides that the juvenile and domestic relations district court has jurisdiction over all cases where the custody, visitation, or support of a child “is a subject of controversy or requires determination.” However, that section also expressly states that “in such cases jurisdiction shall be concurrent with and not exclusive of courts having equity jurisdiction.” Code § 16.1-241(A)(3). In this case, the trial court had equity jurisdiction, because the case originally began as a suit for div. We hold that where a case is originally filed as a div. proceeding and includes child custody and child support issues, and where the trial court has jurisdiction to decide child custody—even though it does not end up exercising jurisdiction over the div. itself—the trial court also retains jurisdiction to award child support as an equitable concomitant to its jurisdiction over child custody.
Thus, we conclude that the trial court had jurisdiction to award child support in this case.
- Failure To Deviate from Statutory Guidelines
Husband next argues that the trial court erred in failing to deviate from the statutory guidelines because it did not apply the proper standard of proof. As husband notes, Code § 20-108.1(B) creates a rebuttable presumption that the amount of child support set forth in the statute is proper. See Code § 20-108.1(B). To rebut this presumption and deviate from the statutory guidelines, the court must find “that the application of such guidelines would be unjust or inappropriate in a particular case.” Id. Here, the trial court found there was “no ostensible reason to deviate” from the statutory guidelines, and accordingly ordered husband to pay child support to wife “pursuant to statutory guidelines.” Husband argues this was not the proper standard for the trial court’s decision not to deviate from the guidelines.
The problem with husband’s argument is that Code § 20-108.1(B) does not require a trial court to make any finding at all when it decides to follow the guidelines. A trial court imposing the statutory guideline amount need not specifically find that application of the guideline amount would not be unjust or inappropriate. Rather, this section simply requires a trial court to make a specific finding that application of the guidelines would be unjust or inappropriate when it decides to deviate from those guidelines. See id. Since the trial court here followed the statutory guideline amount, it was not required to make any findings regarding whether that amount was unjust or inappropriate. No finding was necessary to support its decision to follow the guidelines. Accordingly, we affirm the trial court’s decision to follow the statutory guidelines in determining the amount of child support.
- Retroactive Child Support
Husband’s third assignment of error related to child support is that the trial court erred in awarding child support retroactive to the date wife filed her initial pleadings. Husband contends the trial court had no jurisdiction to award this retroactive child support because the trial court had already ruled it had no jurisdiction over child support. In reality, however, the trial court never so ruled. As we have explained above, supra II.B.1, the trial court’s order of December 30, 2003 did not constitute a finding that the trial court had no jurisdiction over child support. Rather, it was simply a decision to decline to exercise jurisdiction over child support at that particular time. Because this order is no basis for saying the trial court had no jurisdiction over child support, we affirm the trial court’s award of child support retroactive to the date wife filed her initial pleadings.
- Equitable Distribution
Husband next argues that the trial court erred in finding husband gifted his separate interest in the marital residence to wife. Wife challenges, for the first time on appeal, the trial court’s jurisdiction to make an equitable distribution award. We disagree with both of the parties’ contentions. For the sake of logical organization, we will address wife’s jurisdictional challenge first.
- Jurisdiction over Equitable Distribution
We requested the parties to provide supplemental briefs on the following issues: (1) whether the trial court had jurisdiction under Code § 20-107.3 to make an equitable distribution award; and (2) if the trial court did not have jurisdiction under Code § 20-107.3, whether this jurisdictional defect was waived by lack of appropriate objection below. We conclude that even if the jurisdictional prerequisites of Code § 20-107.3 were not met, wife’s failure to object on these grounds below effectively waived any such alleged defects.
Wife contends that if the prerequisites of Code § 20-107.3 are not met, a court is without subject matter jurisdiction to divide a marital estate. We disagree. As the Supreme Court has recently reiterated, “‘subject matter jurisdiction . . . is the authority granted through constitution or statute to adjudicate a class of cases or controversies.'” Ghameshlouy v. Commonwealth, 279 v. 379, 389, 689 S.E.2d 698, 703 (2010) (quoting Bd. of Supervisors v. Bd. of Zoning Appeals, 271 v. 336, 344, 626 S.E.2d 374, 379 (2006)). Significantly, however, the Supreme Court has “’emphasized the necessary distinction to be drawn . . . between the power of a court to adjudicate a specified class of cases, commonly known as “subject matter jurisdiction,” and the authority of a court to exercise that power in a particular case.'” Nelson v. Warden, 262 v. 276, 281, 552 S.E.2d 73, 75 (2001) (omission in original) (quoting Moore v. Commonwealth, 259 v. 431, 437, 527 S.E.2d 406, 409 (2000)). As the Supreme Court has explained,
Subject matter jurisdiction, perhaps best understood as the “potential” jurisdiction of a court, is the authority granted to it by constitution or statute over a specified class of cases or controversies, and becomes “active” jurisdiction, the power to adjudicate a particular case upon the merits, only when various elements are present.
Ghameshlouy, 279 v. at 388-89, 689 S.E.2d at 702-03. These elements include subject matter jurisdiction, territorial jurisdiction, notice jurisdiction, “‘and the other conditions of fact . . . which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree.'” Id. at 389, 689 S.E.2d at 703 (emphasis added) (quoting Bd. of Supervisors, 271 v. at 344, 626 S.E.2d at 379).
While “‘the lack of subject matter jurisdiction can be raised at any time in the proceedings, even for the first time on appeal by the court sua sponte,'” Porter v. Commonwealth, 276 v. 203, 228, 661 S.E.2d 415, 427 (2008) (quoting Morrison v. Bestler, 239 v. 166, 170, 387 S.E.2d 753, 756, 6 v. Law Rep. 1125 (1990)), “‘defects in the other jurisdictional elements generally will be considered waived unless raised in the pleadings filed with the trial court and properly preserved on appeal,'” id. at 229, 661 S.E.2d at 427 (quoting Morrison, 239 v. at 170, 387 S.E.2d at 756).
Code § 20-96 grants a circuit court subject matter jurisdiction over “suits for annulling or affirming marriage and for div.” In a div. case, Code § 20-107.3 further provides the trial court with authority to make an equitable distribution of the parties’ marital estate, provided certain prerequisites are met. See Code § 20-107.3(A). Before a trial court can make an equitable distribution award under Code § 20-107.3, it must “decree the dissolution of a marriage,” “decree a div. from the bond of matrimony,” or receive a filing “of a certified copy of a final div. decree obtained without the Commonwealth” as provided in Code § 20-107.3(J). Id. However, under the Supreme Court’s jurisprudence distinguishing subject matter jurisdiction from the statutory prerequisites to the court’s exercise of jurisdiction in a particular case, we conclude that the statutory prerequisites of Code § 20-107.3(A) can be waived. If a party does not object to the trial court’s authority to make an equitable distribution award based on an alleged failure to satisfy the prerequisites of Code § 20-107.3(A) in a particular div. case, that party has waived the right to raise that objection on appeal. See Rule 5A:18 (requiring generally that an objection be “stated with reasonable certainty at the time of the ruling”); see also Porter, 276 v. at 228-29, 661 S.E.2d at 426-27.
Wife had the opportunity below to object to the trial court’s jurisdiction over equitable distribution, and she failed to do so. The Hungarian div. decree was filed with the trial court, and if wife had any objection that specific elements of Code § 20-107.3(J) were not satisfied, she should have raised this objection below, during the equitable distribution proceedings, for the trial court’s consideration. However, wife failed to raise any objection to the trial court’s equitable distribution award on the grounds that the statutory prerequisites of Code § 20-107.3(A) or (J) were not met. Therefore, she waived any objection she may have had to the trial court’s jurisdiction over equitable distribution based on failure to comply with the prerequisites of Code § 20-107.3(A) or (J). Accordingly, we will not reverse the trial court’s equitable distribution award for alleged failure to satisfy the statutory prerequisites of Code § 20-107.3.
- Sufficiency of the Evidence To Prove a Gift
Husband argues that the trial court erred in finding husband gifted his separate interest in the marital residence to the marital estate. We conclude the trial court did not err in making this finding. Code § 20-107.3(A)(3)(e) provides:
When marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.
Here, the trial court found that husband’s separate interest in the marital residence was retraceable. However, the trial court also found that husband gifted this separate interest to the marital estate. As we have noted before with respect to a similar subdivision of § 20-107.3(A)(3), “when retraceable separate property is used to purchase a gift, it no longer retains its classification as separate property.” Watts v. Watts, 40 v. App. 685, 701, 581 S.E.2d 224, 232 (2003). Wife here had the burden to prove by clear and convincing evidence that husband made a gift to the marital estate of his separate interest in the property. See Utsch v. Utsch, 266 v. 124, 128, 581 S.E.2d 507, 508 (2003) ( “The burden of proof that the transfer was a gift is upon the party seeking to establish the gift.”); Cirrito v. Cirrito, 44 v. App. 287, 303, 605 S.E.2d 268, 275 (2004) (“The burden of proof that the transfer was a gift is upon the party seeking to establish the gift by clear and convincing evidence.”). Thus, wife had to prove the three elements of a gift: “‘(1) the intention on the part of the donor to make the gift; (2) delivery or transfer of the gift; and (3) acceptance of the gift by the donee.'” Robinson v. Robinson, 46 v. App. 652, 665, 621 S.E.2d 147, 154 (2005) (en banc) (quoting Theismann v. Theismann, 22 v. App. 557, 566, 471 S.E.2d 809, 813, aff’d on reh’g en banc, 23 v. App. 697, 479 S.E.2d 534 (1996)). Husband contends that wife failed to carry her burden of proving husband’s donative intent.
The trial court found that three circumstances in particular supported its finding that husband intended to make a gift to the marital estate. First, the trial court noted that the property was jointly titled. See Rowe v. Rowe, 24 v. App. 123, 137, 480 S.E.2d 760, 766 (1997) ( “The fact that property is jointly titled must be considered by the trial court in determining if a gift was made, but alone, it is insufficient proof of a gift.”). Second, the trial court based its finding on wife’s testimony that husband and wife “used wife’s separate funds to pay for several of our expenses, and this way we could save husband’s salary and use it to repay our mortgage and pay for other expenses.” Third, the trial court relied on husband’s testimony that, “Because we loved the house so much, we decided to pay off the house.”
“On appeal, we view the evidence in the light most favorable to . . . the party prevailing below.” Robinson, 46 v. App. at 660, 621 S.E.2d at 151. Furthermore, “because the trial court’s classification of property is a finding of fact, that classification will not be reversed on appeal unless it is plainly wrong or without evidence to support it.” Id. at 661, 621 S.E.2d at 151; see Code § 8.01-680. Based on the multiple factors listed above that the trial court considered, we cannot say the trial court’s finding that husband had donative intent with respect to the marital residence was plainly wrong or without evidence to support it. The residence was jointly titled in husband’s and wife’s names, and the couple agreed together to pay off the mortgage because they “loved the house.” They allocated the way in which they spent their funds to achieve this jointly desired goal. This evidence is sufficient to support the trial court’s finding that husband intended to gift to the marital estate his separate interest in the funds that were used to purchase and pay off the mortgage on the marital residence.
- The Fugitive Disentitlement Doctrine
Husband’s next assignment of error is that the trial court erred in failing to apply the fugitive disentitlement doctrine to wife in order to require her to testify in person before the trial court. Husband does not ask for wife’s claims to be dismissed, or for her to be completely barred from participating in this action. Rather, husband simply asks that wife be required to appear in person before the trial court, arguing the trial court erred in allowing wife to participate by telephonic deposition as a substitute for live testimony.
We begin by noting the absolute nature of the remedy afforded by the fugitive disentitlement doctrine. If the fugitive disentitlement doctrine applies in a particular case, the remedy afforded by the doctrine is a dismissal of a litigant’s claims or a complete bar to the litigant’s participation in the action. See Degen v. United States, 517 U.S. 820, 826, 828, 116 S. Ct. 1777, 135 L. Ed. 2d 102 (1996) (describing the fugitive disentitlement doctrine as “a rule forbidding all participation by the absent claimant” and “foreclosing consideration of claims on the merits”). If a lesser alternative to such an extreme remedy is available, the doctrine does not apply. Id. at 827 (reversing a trial court’s application of the fugitive disentitlement doctrine to bar a criminal indictee from participating in a related civil suit, because “the existence of . . . alternative means of protecting the Government’s interests in that case showed the lack of necessity for the harsh sanction of absolute disentitlement”); Matsumoto v. Matsumoto, 171 N.J. 110, 792 A.2d 1222, 1233 (N.J. 2002) (observing that the fugitive disentitlement doctrine is to be applied only “so long as nothing less than dismissal will suffice”); see Sasson v. Shenhar, 276 v. 611, 623, 667 S.E.2d 555, 561 (2008) (noting that the fugitive disentitlement doctrine should not be applied to bar an appeal unless “no lesser sanction or remedy is available”).
Husband acknowledges that a lesser remedy than dismissal or a complete bar to participation is appropriate in this case. Therefore, he cannot successfully argue that the trial court erred in failing to apply the fugitive disentitlement doctrine to wife. Rather, husband’s argument, as he states it more precisely, is that the trial court erred in failing to apply the rationales underlying the fugitive disentitlement doctrine to require wife to appear before the trial court in person instead of permitting her to participate via telephonic deposition.
We decline to adopt any rule requiring trial courts to impose particular remedies or sanctions in specific cases, apart from the general requirement that a trial court’s decision regarding remedies and sanctions not constitute an abuse of its discretion. See Oxenham v. Johnson, 241 v. 281, 287, 402 S.E.2d 1, 4, 7 v. Law Rep. 1699 (1991) ( “We apply an abuse-of-discretion standard in reviewing a trial court’s award or denial of a sanction.”). “Fugitive disentitlement is a doctrine that springs out of the inherent power of courts to enforce their judgments and protect their dignity.” Matsumoto, 792 A.2d at 1227. The fugitive disentitlement doctrine thus permits radical sanctions against fugitive litigants in extreme circumstances, but it does not serve as the basis for erecting a complex pyramid of varying degrees of particular sanctions and remedies that must be imposed in specific situations. We hold that the fugitive disentitlement doctrine and its various rationales do not grant a non-fugitive party a right to the imposition of any particular lesser remedy in a specific case. If the fugitive disentitlement doctrine per se does not apply—with its extreme remedy—the decision whether to impose any particular lesser remedy against a fugitive litigant in a specific case rests squarely within the sound discretion of the trial court in the case before it.
The question before us thus becomes whether the trial court abused its discretion in failing to give husband the precise lesser remedy he requested. We cannot say on the facts before us that the trial court abused its discretion in failing to order wife to appear in person to testify. The trial court was within its discretion in deciding what specific measures it did or did not need to take to “enforce its judgments and protect its dignity.” Matsumoto, 792 A.2d at 1227. We therefore affirm the trial court’s decision to permit wife to participate via telephonic deposition instead of requiring her to appear in person.
- The QDRO and the Trial Court’s Final Decree
In his final assignment of error, husband contends that the trial court erred by entering a Qualified Domestic Relations Order (QDRO) that altered the final decree’s valuation of the marital share of husband’s GE Savings and Security Plan (the “Plan”). In its final decree, the trial court stated:
Ms. Prizzia shall receive 40% of the marital share of Mr. Prizzia’s GE Savings and Security Plan, namely that which accrued between August 29, 1999 and December 31, 2002, plus any interest, earnings, gains and losses on her share from December 31, 2002 until the date of distribution. The division shall be by a QDRO.
The QDRO assigned to wife “nine percent (9%) of the current market value of husband’s account.”
The trial court arrived at this nine percent figure by utilizing the “coverture fraction” that is typically applied to defined benefit plans. However, husband’s Plan is not a defined benefit plan, but a defined contribution plan. As we have previously indicated, the coverture fraction is an inappropriate method to determine the marital share of a defined contribution plan. Mann v. Mann, 22 v. App. 459, 465 n.6, 470 S.E.2d 605, 607 n.6 (1996) (“Applying the coverture fraction to a defined contribution plan could lead to incongruous results, and such an approach is not generally used. Proration of a defined contribution plan is typically accomplished by tracing separately contributed funds.” (citation omitted)); see also Brett R. Turner, Equitable Distribution of Property § 6:24 (3d ed. 2005) (explaining why “it is generally error to classify a defined contribution retirement plan using the time-based coverture fraction used to classify defined benefit plans,” and why “application of a time-based coverture to defined contribution plans creates a significant risk of reaching unjust results”).
The trial court’s final decree defined the Plan’s marital share as the amount of money that accrued between two specific dates—”that which accrued between August 29, 1999 and December 31, 2002.” Thus, the final decree was concerned with the amount of money that actually accrued during a certain time period. In contrast, the coverture fraction is concerned solely with proportions of time, completely disregarding what may actually accrue during any particular period of time. Since the coverture fraction is based on temporal proportions rather than on what actually accrued in an account during a particular time, the trial court effectively altered the terms of the final decree when it entered the QDRO. Thus, the trial court’s use of the coverture fraction in its QDRO was not an appropriate method for “effectuating the expressed intent” of its final decree. See Code § 20-107.3(K)(4).
“‘We have previously held that QDRO orders that alter critical terms of the equitable distribution order, such as timing or amount of payments, exceed the authority granted under Code § 20-107.3(K)(4).'” Turner v. Turner, 47 v. App. 76, 80, 622 S.E.2d 263, 266 (2005) (alterations in original) (quoting Hastie v. Hastie, 29 v. App. 776, 781, 514 S.E.2d 800, 803 (1999)). The method for valuing the marital share of a defined contribution plan is certainly a critical term of an equitable distribution order. Here, the trial court’s use of a coverture fraction in the QDRO altered the final decree’s valuation of the Plan’s marital share. Therefore, we vacate the specific provision of the QDRO assigning nine percent of the Plan’s overall value to wife, and we remand the matter to the trial court for entry of a QDRO reflecting a proper valuation of the marital share of the Plan, as that marital share was defined in the trial court’s final decree.
- Deviation from Statutory Child Support Guidelines
We turn now to address wife’s additional assignments of error. Wife’s first assignment of error is that the trial court erred in allowing husband a “credit” against his child support obligation for payment of educational expenses on behalf of the child. The trial court awarded child support according to the statutory guidelines, see Code § 20-108.2, but also granted husband “a credit for private school tuition and English lessons” for which it found husband had already paid certain amounts. Wife contends it was error for the trial court to grant husband this credit, arguing that the trial court failed to make necessary written findings. We agree.
Although wife refers to this “credit” as a credit for non-conforming payments, we note that this was not a credit for non-conforming payments made after a child support award had already been entered. Rather, the “credit” here functionally altered the amount of child support that had been calculated pursuant to the statutory guidelines. Thus, we determine the validity of this credit by analyzing whether it satisfied the statutory requirements for a deviation from the guideline amount. Code § 20-108.1(B) requires a trial court that deviates from the guidelines to “make written findings . . . that the application of the guidelines would be unjust or inappropriate in a particular case.” See Mayers v. Mayers, 15 v. App. 587, 592, 425 S.E.2d 808, 811, 9 v. Law Rep. 783 (1993) (“We have repeatedly held that whenever a child support award varies from the amount of support set forth in the guidelines, the trial court must make written findings of fact explaining why application of the guidelines would be ‘unjust or inappropriate.'”).
Here, the trial court failed to make the written findings required by Code § 20-108.1(B). Moreover, the final decree recites that the amount of child support “is based on calculations pursuant to the statutory guidelines” and that “husband’s request for a deviation from the statutory guidelines is denied.” The trial court was asked to deviate from the guidelines, and it expressly refused to do so. Yet, in awarding husband what it termed a “credit” for the tuition payments husband had previously made, the trial court effectively reduced the amount of child support as calculated under the guidelines. Thus, whatever the reduction was called, it amounted to a deviation from the guideline amount. Since the trial court failed to follow the statutory requirements for deviating from the guideline amount, we reverse its decision to reduce the child support award by the “credit” it granted to husband.
- Exclusion of Day-Care Expenses from Child Support Calculation
Wife’s second assignment of error is that the trial court erred in failing to add work-related day-care expenses to the child support calculation. We find no error in the trial court’s ruling on this issue.
Code § 20-108.2(F) provides: “Any child-care costs incurred on behalf of the child or children due to employment of the custodial parent shall be added to the basic child support obligation.” This language is mandatory. However, the trial court here held that the mere testimony of wife as to what her day-care expenses were for the child, without any further evidence, was insufficient proof of the appropriate amount of day-care expenses to be added to the basic child support obligation. The trial court noted the lack of evidence showing that the amount to which wife testified was reasonable in comparison to alternative day-care centers. Moreover, the trial court observed that the evidence did not show whether the child was in public school, which provided a free day-care option. The trial court also noted that wife’s testimony indicated she was paying a nanny a higher hourly rate than wife herself was earning. In light of this evidentiary dilemma, the trial court was certainly free to conclude that wife had not carried her burden of production in demonstrating the appropriate amount of day-care expenses that should have been added to the basic support obligation.
Simply because a statute requires inclusion of certain expenses in a child support award, it does not follow that the party seeking the inclusion of those expenses does not have the burden to produce sufficient credible evidence showing the appropriate amount of those expenses. Cf. Bowers v. Bowers, 4 v. App. 610, 617, 359 S.E.2d 546, 550, 4 v. Law Rep. 301 (1987) (observing that even under a mandatory statute, a litigant still carries “the burden to present evidence sufficient for the court to discharge its duty”). Thus, we find no error in the trial court’s exclusion of day-care expenses from its child support calculation.
- Condition Imposed on Wife’s Receipt of Her Equitable Distribution Award
Wife’s final assignment of error is that the trial court erred in ordering that her equitable distribution award be held in escrow until she complied with the Hungarian court’s visitation order. We agree that this was error.
“Jurisdiction in dissolution of marriage suits is purely statutory, and it cannot be acquired by the courts inferentially or through indirection. When the General Assembly confers jurisdiction on dissolution of marriage courts, it accomplishes the purpose using clear, detailed language.” Stroop v. Stroop, 10 v. App. 611, 616, 394 S.E.2d 861, 864, 7 v. Law Rep. 93 (1990) (citing Johnson v. Johnson, 224 v. 641, 645, 299 S.E.2d 351, 353-54 (1983)). Thus, “a dissolution of marriage court’s judgment must not exceed the power given it, nor may it claim inherent power to employ a mode or procedure which is not clearly provided by law.” Id.
Husband contends that Code § 20-107.3(E) provides the requisite statutory authority for the trial court’s order imposing a condition on wife’s receipt of her equitable distribution award. Code § 20-107.3(E) gives the trial court authority to determine “the amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment.” Husband argues that the trial court’s order was justified under its authority to determine the “method of payment” of wife’s equitable distribution award. However, we note that although the language of Code § 20-107.3(E) permits a trial court to determine the method of payment of an equitable distribution award, it does not permit a trial court to set conditions of payment that are unrelated to the award itself. Without express statutory authorization to condition payment of an equitable distribution award upon compliance with child custody and visitation orders, a trial court is without authority to impose such a condition. Cf. Stroop, 10 v. App. at 616, 394 S.E.2d at 863-64 (holding that although Code § 20-107.3(C) authorizes the transfer of ownership of jointly owned marital property, it “does not empower the trial court to require the transferor to await payments at some future date”). Because Code § 20-107.3(E) does not grant a trial court the authority to impose unrelated conditions on one party’s right to receive her equitable distribution award, we reverse the trial court’s imposition of such a condition in this case.
For the foregoing reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.