Brown v. Brown

          FROM THE CIRCUIT COURT OF YORK COUNTY Richard H. Rizk, Judge.

          Richard G. Collins (Collins & Hyman, PLC, on briefs), for appellant.

          Philip L. Hatchett (Daniel F. Basnight; Kaufman & Canoles, on brief), for appellees.

          Present: Judges Petty, Chafin and Senior Judge Frank Argued at Norfolk, Virginia

          OPINION

          WILLIAM G. PETTY JUDGE.

         In this appeal, we consider the effect of the death of a party in a bifurcated divorce proceeding after the entry of a final decree of divorce but before the equitable distribution of the marital property.

         I. BACKGROUND

         Diana K. Brown (former wife) and Bruce S. Brown (former husband) were married in 1989. On March 8, 2017, the circuit court entered a final decree of divorce between them. In part, the circuit court decreed,

By agreement of the parties, and upon good cause shown, the [c]ourt reserves final determination of equitable distribution of property and debt in accordance with § 20-107.3 of the Code of Virginia, 1950, as amended, and an award of attorney's fees and costs. A hearing is scheduled for April 19, 2017, at 1:00 p.m. to present closing arguments regarding equitable distribution of assets and debts and an award of attorney's fees and costs and to review the status of the sale of the marital residence located [in Seaford, Virginia].

         Neither party appealed the decree of divorce. The parties appeared on April 19, 2017, and presented evidence and argument regarding equitable distribution of the parties' assets. The court entered an order on May 1, 2017, nunc pro tunc to April 19, 2017, "upon consideration of the evidence presented and argument of counsel" "pending the final determination of equitable distribution of property and debt." The order described the procedure for maintenance and sale of the marital residence, including the use of funds from husband's individual retirement account, which was "an account subject to equitable distribution," to pay expenses on the marital residence. Further, the order required that any withdrawal in excess of $2, 000 from the individual retirement account had to be approved by former wife and accompanied by a distribution to her of "the exact sum of money as the excess withdrawal." Additionally, the order set closing arguments regarding equitable distribution for August 2, 2017.

         Former husband died on April 24, 2017. On August 9, 2017, the trial court granted former wife's motion to add Megan K. Brown (daughter) as a substitute party defendant, individually and as co-administrator c.t.a. of former husband's estate, and to add Joshua K. Brown (son) as a substitute party defendant as co-administrator c.t.a. of former husband's estate.^[1]The trial court additionally ordered that the prior order to preserve marital assets, including the individual retirement account, would remain in effect. Daughter was the beneficiary named on that account.

         On August 29, 2017, daughter, individually and on behalf of the estate, filed a motion to dismiss the equitable distribution case. She argued that former husband's death abated that case. She further argued that while the divorce itself was final, the circuit court lost jurisdiction to distribute the marital assets due to the death of a party. She argued that, as beneficiary, she was now sole owner of former husband's individual retirement account, which had once been marital property. On March 8, 2018, the trial court granted daughter's motion and dismissed the case, concluding that it lost jurisdiction when former husband died. This appeal followed.

         II. ANALYSIS

         "[A] trial court's jurisdiction is a question of law that is reviewed de novo on appeal." Reaves v. Tucker, 67 Va.App. 719, 727, 800 S.E.2d 188, 192 (2017). Additionally, "[s]tatutory interpretation is a question of law which we review de novo." Friedman ...