Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and 

Keenan, JJ., and Whiting, Senior Justice 

THOMAS NELSON TOOMEY 

 OPINION BY 

v. Record No. 950578 SENIOR JUSTICE HENRY H. WHITING 

 January 12, 1996 

VICTORIA L. TOOMEY 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This appeal concerns a circuit court's jurisdiction to 

consider a nonresident party's motion for equitable distribution 

that was filed more than 21 days after a final decree had been 

entered in a divorce suit. 

 Thomas Nelson Toomey, a resident of Virginia, filed a bill 

of complaint in the Circuit Court of the City of Newport News 

against Victoria L. Toomey, a resident of Oregon, seeking a 

divorce on the ground that the parties had lived separate and 

apart without cohabitation and without any interruption for a 

period of more than one year. Although a subpoena in chancery, 

with a copy of Mr. Toomey's bill of complaint attached thereto, 

was personally served on Mrs. Toomey in Oregon, she failed to 

file responsive pleadings within the required time. Without 

further notice to Mrs. Toomey, depositions were taken, and, in 

April 1992, a final decree was entered in which Mr. Toomey was 

granted a divorce from the bond of matrimony. 

 More than seven months later, Mrs. Toomey moved the circuit 

court for equitable distribution of the marital estate. Over Mr. 

Toomey's objection, the circuit court permitted Mrs. Toomey to 

file a cross-bill for equitable distribution, and the Court of 

Appeals affirmed that ruling upon Mr. Toomey's appeal. Toomey v. 
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Toomey, 19 Va. App. 756, 454 S.E.2d 735 (1995). Agreeing with 

Mr. Toomey's contention that the Court of Appeals' decision has 

significant precedential value, Code § 17-116.07(B), we awarded 

this appeal. 

 The litigants agree that the circuit court could not have 

adjudicated issues of equitable distribution prior to Mrs. 

Toomey's intervention in the suit because it lacked personal 

jurisdiction over her. They disagree whether the circuit court 

could do so later under the facts of this case. 

 Mr. Toomey claims that because the circuit court lost its 

jurisdiction to adjudicate that claim upon entry of the final 

decree, Mrs. Toomey lost her rights to equitable distribution in 

a Virginia court by failing to claim those rights prior to entry 

of the final decree. Mrs. Toomey responds that she could not 

have lost her equitable distribution rights at that time since 

the circuit court lacked personal jurisdiction over her when the 

decree was entered. We agree with Mr. Toomey. 

 We consider Mrs. Toomey's contention by examining the origin 

of a spouse's right to equitable distribution. At common law, 

divorce courts had no jurisdiction to make awards of equitable 

distribution. See Guy v. Guy, 210 Va. 536, 541, 172 S.E.2d 735, 

738 (1970); Barnes v. American Fertilizer Co., 144 Va. 692, 709, 

130 S.E. 902, 907 (1925). That authority was vested in divorce 

courts by Code § 20-107.3. Parra v. Parra, 1 Va. App. 118, 124, 

336 S.E.2d 157, 160 (1985). And when jurisdiction is vested in a 
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court by statute, that jurisdiction is limited by the terms of 

the statute. See Cauthorn v. Cauthorn, 196 Va. 614, 619, 85 

S.E.2d 256, 259 (1955). 

 The circuit court's limited jurisdiction in this case is 

described in the following pertinent language in Code § 20-107.3: 

 A. Upon . . . decreeing a divorce from the bond 

of matrimony, or upon the filing with the court as 

provided in subsection J of a certified copy of a final 

divorce decree obtained without the Commonwealth, the 

court, upon request of either party, shall determine 

the legal title as between the parties, and the 

ownership and value of all property, real or personal, 

tangible or intangible, of the parties and shall 

consider which of such property is separate property, 

which is marital property, and which is part separate 

and part marital property in accordance with 

subdivision A 3. . . . The court, on the motion of 

either party, may retain jurisdiction in the final 

decree of divorce to adjudicate the remedy provided by 

this section when the court determines that such action 

is clearly necessary, and all decrees heretofore 

entered retaining such jurisdiction are validated. 

 . . . . 

 J. [The] court . . . may [order equitable 

distribution] after a court of a foreign jurisdiction 

has decreed a dissolution of a marriage or a divorce 

from the bond of matrimony, if (i) one of the parties 

was domiciled in this Commonwealth when the foreign 

proceedings were commenced, (ii) the foreign court did 

not have personal jurisdiction over the party domiciled 

in the Commonwealth, (iii) the proceeding is initiated 

within two years of receipt of notice of the foreign 

decree by the party domiciled in the Commonwealth, and 

(iv) the court obtains personal jurisdiction over the 

parties pursuant to subdivision A 9 of [Code] § 8.01-

328.1 [maintenance of matrimonial domicile in Virginia 

at specified times if other party resides in Virginia], 

or in any other manner permitted by law. 

(Emphasis added.) 

 Although Mrs. Toomey invokes Code § 20-107.3, we find 
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nothing in that statute giving the circuit court jurisdiction to 

adjudicate Mrs. Toomey's claim to equitable distribution. The 

circuit court awarded the divorce and did not retain jurisdiction 

in the divorce decree to adjudicate equitable distribution after 

entry of that decree.1

 Hence, we conclude that the circuit court 

had no jurisdiction to consider Mrs. Toomey's filing under the 

provisions of Code § 20-107.3. 

 Nor does the two-year period provided in Code § 8.01-322 

vest jurisdiction in the circuit court to consider Mrs. Toomey's 

application for equitable distribution, as she contends.2

 We 

rejected a similar contention when a nonresident wife, who had 

been personally served in a foreign state, moved for a rehearing 

and sought spousal support after a divorce decree had been 

entered. Mitchell v. Mitchell, 227 Va. 31, 314 S.E.2d 45 (1984). 

 

 1Although the court's jurisdiction to modify, vacate, or 

suspend the final decree continued for 21 days after its entry, 

Rule 1:1, Mrs. Toomey filed no pleadings within that period 

invoking that jurisdiction. 

 2Code § 8.01-322 provides in pertinent part: 

 If a party against whom service by publication is 

had under this chapter did not appear before the date 

of judgment against him, then such party . . . may 

petition to have the case reheard . . . within the 

following time and not after: 

 1. Within two years after the rendition of such 

judgment, decree or order . . . . 
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 In Mitchell, we pointed out that "[i]f a [nonresident] defendant 

has received personal service [in the foreign state] at the 

commencement of the litigation . . . and fails to protect his 

interests, he accepts the risk of an unfavorable result." Id. at 

38, 314 S.E.2d at 49. 

 Similar to the nonresident defendant in Mitchell, Mrs. 

Toomey failed to protect her interests in having the circuit 

court adjudicate her equitable distribution rights. Under Code 

§ 20-107.3, Mrs. Toomey could have requested the circuit court to 

adjudicate her rights prior to entering the divorce decree; she 

also could have moved the circuit court to retain its 

jurisdiction and adjudicate those rights after entering the 

divorce decree. She did neither. Mrs. Toomey's failure to 

protect her interests does not substantively adjudicate her 

equitable distribution rights, but does bar her from asserting 

those rights in a Virginia court. 

 We recognize that, had Mrs. Toomey timely protected her 

interests, she would have subjected herself to the circuit 

court's personal jurisdiction. Nevertheless, this decision--

whether to remain outside the circuit court's personal 

jurisdiction or to protect her interests in having that court 

adjudicate equitable distribution rights--is one dictated by Code 

§ 20-107.3. The consequence of Mrs. Toomey's decision is that 

the circuit court was without jurisdiction to consider her motion 

for equitable distribution. 
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 Accordingly, we will reverse the order of the Court of 

Appeals that affirmed the circuit court's decree in Mrs. Toomey's 

favor, and we will enter a final decree for Mr. Toomey in this 

Court. 

Reversed and final decree.