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Cabaniss v. Cabaniss10/18/2005
Richard Jennings Cabaniss (husband) appeals a trial court decision granting Nancy Turner Cabaniss (wife) a divorce, ordering equitable distribution, and awarding wife spousal support. He contends wife failed to allege in her bill of complaint sufficient facts to support personal jurisdiction over him, a nonresident of Virginia, under Code § 8.01-328.1(A)(9) (a domestic relations provision of Virginia's long-arm statute) and that the court thus erred in adjudicating the divorce proceeding. For the reasons that follow, we affirm the trial court.
I. PROCEDURAL BACKGROUND
Wife filed a bill of complaint seeking a divorce from husband on grounds of willful desertion and abandonment. She also sought equitable distribution, spousal support, and other relief. She alleged that she was domiciled in and a bona fide resident of Virginia whereas husband was living in the West Indies.
Wife first sought to effect service of the suit on husband by substituted service on the Secretary of the Commonwealth of Virginia, as statutory agent. Her Affidavit for Service of Process on the Secretary of the Commonwealth indicated Code § 8.01-328.1(A)(9) was the basis for service on husband, a nonresident, and gave his last known address in the West Indies. Wife finally obtained personal service on him more than a year later after locating him in Canada. In response, husband, by special appearance, filed a pleading requesting dismissal of the bill of complaint on the ground that the allegations therein were insufficient to allow the court to exercise personal jurisdiction over him. Specifically, he contended wife did not allege the parties maintained a matrimonial domicile in Virginia at the time of separation, at the time the cause of action arose, or at the time of commencement of the suit, as required by Code § 8.01-328.1(A)(9).
The trial court heard oral argument on husband's jurisdictional objection, which it overruled, after finding the allegations in the bill of complaint sufficient to implicate personal jurisdiction over husband under Virginia's long-arm statute. Husband took no other part in the divorce proceedings, except for appending his written "Objections and Exceptions" to the court's order overruling his objection to jurisdiction. Following its ruling on husband's objection, the court held an evidentiary hearing at which time wife presented evidence in support of her bill of complaint, including evidence on the jurisdictional issue. Thereafter, the court entered a final decree granting wife a divorce, ordering equitable distribution, and awarding wife spousal support, along with attorney's fees and other expenses. The decree included specific findings that husband and wife maintained a matrimonial domicile in Virginia in March 2002 when the cause of action for divorce arose and the parties separated and that the court had personal jurisdiction over husband pursuant to Code § 8.01-328.1(A)(9).
II. ANALYSIS
Husband's pleading filed with the trial court challenging personal jurisdiction was styled only as a "Special Appearance," with no express indication that it was in substance a demurrer or plea in bar. Because he sought in that pleading to dismiss the bill of complaint on grounds of insufficiency of the factual allegations to "empower the court to exercise personal jurisdiction over " under Code § 8.01-328.1(A)(9), we will consider the trial court's denial of husband's requested relief as a ruling on a demurrer. While one of the main uses of a demurrer is to challenge a pleading as failing to state a cause of action or to state facts upon which relief can be granted, a demurrer is also used to assert "the lack of potential or active jurisdic
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