Opinion
Record No. 2196-92-4
June 15, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY RICHARD J. JAMBORSKY, JUDGE.
(Brien A. Roche; Johnson and Roche, on brief), for appellant.
(Thomas Peter Mann; Peter D. Greenspun Associates, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Clair Soliman ("wife") appeals the decision of the trial court dismissing her motion to vacate a final decree of divorce between wife and Nader Soliman ("husband"). Wife raises the following arguments:
I. The divorce decree entered on April 23, 1992 was not final;
II. The cross-bill upon which the divorce was granted was never properly before the court; and
III. The order referring the case to a commissioner was not valid, therefore the final decree was not valid.
I.
Wife challenges the finality of the divorce decree on three grounds. The trial court, in that order, stated "that this Court shall maintain jurisdiction until the above ordered partition has been completed and the proceeds arising therefrom have been distributed as ordered herein." Wife refers to Code § 20-107.3(K), which states in part, "[t]he court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section," and argues that the language of the decree goes beyond the statutory language. We conclude that the decree, captioned "Final Decree of Divorce," is final under Rule 1:1 and appealable. The language of the decree falls within that of Code § 20-107.3(K). The decree leaves nothing to be done but to "superintend ministerially the execution of the order." Daniels v. Truck and Equipment Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964).
Husband alleges that Code § 20-107.3(K) was not in effect at the time of the decree. However, subsection (K) went into effect in July 1991, well before entry of the April 1992 decree.
Wife also maintains that the decree was not final because it failed to deal with child custody or spousal support. Custody was determined in a prior order. The commissioner addressed support in his report and found that fault grounds existed in favor of husband and that denial of support would not constitute a manifest injustice to wife. Wife filed no exceptions to the report. The final decree confirmed the report of the commissioner. Because wife failed to file exceptions to the commissioner's reports she may not question rulings contained in the report for the first time on appeal, unless error appears on the face of the report. See Dukelow v. Dukelow, 2 Va. App. 21, 24, 341 S.E.2d 208, 209-10 (1986).
II.
Wife argues that no valid decree of reference exists referring the case to the commissioner. In a prior appeal, we held that wife had not received proper notice of the commissioner's hearing. Soliman v. Soliman, 12 Va. App. 234, 402 S.E.2d 922 (1991). The record reveals that, on remand, the case was referred to the commissioner (1) in the presence of the parties and counsel for husband, and (2) by order of December 20, 1991. Wife was later served with notice of a meeting before the commissioner, in compliance with this Court's decision. Wife complains that no new decree of reference informed the commissioner of his authority and obligations. See Code § 8.01-609. However, the language of the court's December 20, 1991 decree implicitly recognizes the original decree of reference, in which the commissioner's authority and responsibilities were set forth. Therefore, wife's argument lacks merit.
III.
Wife argues that husband's cross-bill for divorce was never properly before the court, so that the decree of divorce based on that cross-bill was void. In Soliman, 12 Va. App. at 235, 402 S.E.2d at 924, we found that husband was properly served with the bill of complaint on June 2, 1988. Husband filed his cross-bill the next day, clearly within the time limits of Rule 2:13. Therefore, wife's argument lacks merit.
For the reasons stated, we affirm the decision of the circuit court.
Affirmed.