Is an order reinstating a Virginia divorce case after dismissal for inactivity an interlocutory order or a final order?
In the case of Bell v. Bell, CL 08-1083, the Virginia Circuit Court held that the previous order reinstating the divorce case was interlocutory and could be corrected by the trial court.
In Bell, the case began in June of 1995 when the parties filed for divorce. In 1997, the action was referred to a commissioner in chancery, and two years later, the commissioner was made judge pro tem (a lawyer appointed by a judge to act as judge when the judge is disqualified or unable to try the case) in accordance with Virginia Code Section 17.1-110. In 2005, the Court dismissed the action under Virginia Code §8.01-335(B) because there had not been an order or a proceeding in the past three years.
After the case was dismissed, the judge pro tem entered the wife’s ex parte order that the case be reinstated to resolve questions of equitable distribution, permanent spousal support, and attorney fees. In April 2005, the Virginia Circuit Court judge examined the action of the judge pro tem in reopening the case and reaffirmed the appointment of the judge. For the next three years, both parties neglected to take any action in the proceeding, and the Virginia Circuit Court once again dismissed the case under Virginia Code §8.01-335(B).
In September 2008, the court reinstated the case upon the Wife’s ex parte order and reappointed the judge pro tem in order to resolve the question of contempt for failure to pay spousal support, an increase in spousal support, and equitable distribution of the martial property. The husband filed a motion to dismiss and nullify all orders of the case in October 2009, and the wife refused to respond. Upon examination, the Court found that no divorce had been granted to the parties. Pendente lite orders, however, had been entered in 1995 that enjoined the parties from disposing of any martial asset or demonstrating offensive conduct and also requiring payment of spousal support. That temporary spousal support had later been reduced in December of 1995. Furthermore, the court had entered an order enjoining the husband from making any additions to the marital home. Finally, in December 1999, the court overruled a plea of satisfaction and accord, and according to the record, that ruling was the last action taken in the case.
The husband argues that under Virginia Code §8.01-335(B), the parties must be given notice prior to the Court’s reinstatement of a case after its dismissal for inactivity. According to his interpretation of the statute, the Court’s order reinstating the case and all subsequent orders were null and void because he did not receive any notice. Furthermore, he alleges that the appointment of the judge pro tem was null and void under Virginia Code §17.1-110 because he received no notice of that action as well.
The Court in Bell, however, rejected the Husband’s arguments. The Court affirmed that an order is void ab initio if the court did not have the jurisdiction to make that order. If the Court does have the jurisdiction to make that order, however, it is only a reversible error, and the order is voidable. See Hicks v. Mellis, 275 Va. 213, 219 (2008). Here, the Court ruled the jurisdiction to make the order was correct; therefore, the order to reinstatement the case was only a voidable error.
As the court affirmed, a voidable error can be correct in two ways: the parties can appeal to the Court of Appeals of Virginia or, if the case has not ended in a final order (but rather an interlocutory order), the trial judge can correct the error. See Freezer v. Miller, 163 Va. 180 (1934). See also Robbins v. Robbins, 48 Va. App. 466 (2006). In this case, the order reinstating the case in 2005 and reappointing the judge pro tem was an interlocutory order. The court determined that this order was improperly entered without notice to the parties, and it was vacated. Furthermore, the court ruled that all orders after the reinstatement were void ab initio because the court did not have the jurisdiction to make any orders in a discontinued case. Therefore, the court held the case had ended but stated that if the parties wished to obtain a divorce, they could file a new divorce action.
You should consult with your Virginia divorce lawyer concerning whether a given order is interlocutory or final.