Analysis: Prizzia v. Prizzia

Richard J. Byrd, Esq.

Prizzia v. Prizzia, 3/22/05, Henrico Circuit, Judge Tidey

Facts: Parties were married in Hungary, had a child in Hungary and lived there about one year H-American. W-Hungarian. They moved to Richmond in April, 2000 and lived there for some 2½ years. Parties went to Hungary for a visit in December, 2000 and separated. W and child remained in Hungary; H returned to Richmond.

W filed for divorce in Hungary. H sought Hague Convention proceedings for custody in Hungary and appeared in the case in Hungary. Wife won custody; H appealed, but he lost in Hungarian appeals court. Hungarian court reasoned that the "habitual" residence of the child was Hungary and the 2½ year stay in Richmond was temporary [so much for Hungarian justice!]. Husband sought visitation and was granted visitation rights with the child.

Immediately after losing the case in Hungary, H filed for divorce in Richmond on desertion grounds and sought custody and E.D. W moved to dismiss proceedings or to stay them pending the divorce case in Hungary.

Trial Court: The trial court concluded that "Hungary has proper jurisdiction over the parties as to divorce, custody, visitation and child support." Accordingly, the court "decline[d] to exercise jurisdiction over [those] matters at this time." The T/C also stated that it would hear argument on equitable distribution, child support, and spousal support "[a]fter a final decree of divorce is granted in Hungary."

Issue on Appeal:

Was the Order of the T/C an Appealable Order: Neither party contended that the T/C's order was not an appealable order. However, the Court of Appeals, sua sponte, requested that the parties brief and argue this point of law.

Husband contends that the T/C's order was a final order, reasoning that the trial court's decision that jurisdiction over this proceeding was in Hungary effectively precluded husband from obtaining any of his requested relief. He asserts that his requests for equitable distribution and child custody were "dependent upon the divorce matter itself," and the trial court's decision "concluded" the divorce proceeding, and also "each of these dependent issues."

Holding C/A:

"Generally, a final order is one which disposes of the whole subject, gives all the relief contemplated, … and leaves nothing to be done in the cause save to superintend ministerially the execution of the order." The C/A found that this order did not "dispose of the whole subject" or grant all "relief contemplated" by the parties. Although the T/C indicated that it would not exercise jurisdiction over the divorce or child custody proceedings "at this time," the court expressly reserved jurisdiction on issues of E.D, child support, and spousal support. "Accordingly, the order is not final as to those issues."

The C/A found that this order did not actually dismiss the divorce or custody proceedings, either partially or in their entirety. The order merely indicates that the court would not exercise jurisdiction "at this time." This language does not preclude the possibility that the court would later exercise jurisdiction and rule on the merits of the case. Accordingly, because the order does not "dispose" of these issues, it is not a final order.

[Editors Note: - This case could have unexpected ramifications. When will this divorce ever be appealable! The trial judge said that "Hungary had proper jurisdiction over the parties as to divorce, custody, visitation and child support." Seemingly, he does not intend to hear anything else in this case ever. The C/A's emphasis on the "at this time" caveat in the T/C’s Order is disturbing. Does this mean that a judge in a spousal support case can rule: "Well, that's the way I see the facts, and that is what I am awarding in spousal support at this time." That spousal support award can then never be appealed, because the judge said: “…at this time”?]

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[Editor's Note: - This is an informal, and not rigorous, treatment of the issues and holdings in these cases. For the sake of brevity and easier reading, some liberty has been taken by the author with some of the language of the Court of Appeals, even though that language appears in Quotes. For example, underlining is used to emphasize important text. Also, shorthand language is used. E.G. - Where the actual opinion might say: "Fowler's position with regard the parties' Property Settlement Agreement of July 1, 1999 was..." this quote might actually be presented here as: "Mom's position regarding their PSA was..."]

© 2005, Richard J. Byrd, Esq., Chairman, Family Law Section, Fairfax Bar Association. This case summary may not be quoted or reprinted without express written permission.