The Russell v. Russell opinion, handed down on June 17, 2014 by Virginia Court of Appeals Judge Stephen R. McCullough, (Record Nos. 1308-13-4 and 1313-13-4), involves the disposition of an alimony award when the alimony recipient fails to prove her entitlement to a divorce and her complaint is dismissed.
The case is especially interesting for its partial dissent by Judge Rosemarie Annunziata.
The appellate majority held in Russell that if a divorce complaint is dismissed, then a spousal support claim goes with it. Judge Annunziata wrote that it depends if jurisdictional grounds existed to support the complaint at the time it was filed.
I have an analogy to describe what happened to the unfortunate Mrs. Russell.
Imagine an electric freight train on a pair of tracks. You have an overhead wire as the source of power. We will call one rail subject matter jurisdiction, and the other personal jurisdiction. You need both rails to operate the train. The overhead line runs the engine. Without electricity, the engine will not operate and the train cannot move forward. The power line is the set of facts qualifying you for divorce.
These three elements (two rails and electricity) are necessary before a court may award anything in a divorce case — whether it be the divorce itself, spousal support or anything else. The train in my analogy is the pleading we call the complaint.
Here’s how it works: If a trial court dismisses the complaint, then there is no train on the tracks and you cannot obtain any relief. This is what happened in Russell.
If you cannot prove a separation for the requisite period of time before the complaint is filed, then — according to my analogy — you may have a train on two rails, but you lack overhead power. The case will be dismissed and you cannot get support. That is what happened in Harrell. Harrell v. Harrell, 272 Va. 652, at 657, 636 S.E.2d 391, at 394 (2006).
My analogy allows the majority and the dissent in Russell to both appear to be making correct statements of the law, although the majority – in my opinion – is more correct based on the facts, as I will explain.
The majority is essentially right in ruling that if your complaint is dismissed, you have no train on the tracks to deliver anything.
Judge Annunziata is basically right as well: In the context of my analogy, various claims for relief are like products in different cars of a freight train, and you should be able to lose one without necessarily sacrificing the others. (We all know you can detach one car of a freight train, re-connect the remaining cars, and still pull the train to your destination.)
If the majority and dissent are both properly reasoned with apposite citations, how did they end up on opposite sides of Russell? My view is that it all came down to the circuit court’s choice of words. Words made the difference.
When the trial judge, in this case the Honorable Jeffrey W. Parker, presiding judge of the Circuit Court of Fauquier County, ruled that the wife’s complaint was dismissed, his ruling removed wife’s proverbial freight train from the rails. She could no longer ask for support; she no longer had a vehicle to transport her claims. Judge Parker granted spousal support to wife pursuant to the theory that even without all counts of her complaint surviving, her support claim remained viable. The court of appeals majority disagreed and reversed the award.
What comes next is this blogger's speculation:
Had Judge Parker stricken only the paragraph of the complaint asking for a divorce, his ruling might have been the equivalent of detaching just the “divorce” box car from the wife’s freight train. Stated differently, if the trial court had not used the word ”complaint” in its dismissal language, but instead had stated it was dismissing the prayer for divorce; then the complaint might have remained filed and active, wife’s metaphorical train might have kept the three elements it needed to run, and wife might still be able to claim support.
A different choice of words by the trial judge might have allowed wife to retain her support in the court of appeals.