COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Willis and Fitzpatrick 

Argued at Alexandria, Virginia 

CLEVE J. BURD, JR. 

 MEMORANDUM OPINION*

v. Record No. 1156-96-4 BY CHIEF JUDGE NORMAN K. MOON 

 FEBRUARY 11, 1997 

HELGA URSULA BURD 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

J. Howe Brown, Jr., Judge 

 Judy Dugger for appellant. 

 Robert B. Machen for appellee. 

 Cleve J. Burd, Jr. (husband) appeals the decision of the 

circuit court finding him in contempt for failing to comply with 

the terms of the final decree of divorce entered by the circuit 

court on June 29, 1995. Husband contends that the trial court 

did not have personal jurisdiction over him at the time the final 

decree was entered and, therefore, the court lacked authority to 

order the disposition of his retirement pay. 

 The final decree of divorce contains the following findings 

of fact: Helga Ursula Burd (wife) was a resident of Virginia; the 

parties last cohabited as husband and wife in their marital home 

in Virginia; husband left the marital home and moved to 

Pennsylvania; husband was personally served with the bill of 

complaint, subpoena in chancery, notice of commissioner's hearing 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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and notice of final hearing in Pennsylvania; and proof of service 

of process was provided by properly authenticated certificates of 

service and made part of the record. The trial court found that 

it had personal jurisdiction over husband pursuant to Code 

§§ 8.01-296 and 8.01-328.1(A)(9). 

 The final decree was entered on June 29, 1995. Husband made 

a special appearance seeking to vacate the final decree. That 

motion was denied by letter opinion dated October 17, 1995. A 

final order finding that husband was subject to the jurisdiction 

of the circuit court was entered on November 28, 1995. Husband 

filed a notice of appeal on January 25, 1996, but withdrew the 

appeal on February 16, 1996. No further appeal of the court's 

November 28, 1995 order was filed. 

 Wife filed a Rule to Show Cause, seeking withholding to 

enforce the terms of the final decree. On February 22, 1996, the 

trial court entered an order finding husband in contempt. 

Husband filed a motion to quash, again arguing that the trial 

court lacked personal jurisdiction to order a money judgment 

against him, and a motion for reconsideration of the court's 

denial. On March 20, 1996, husband appealed the court's order of 

February 22, 1996.1

 

 In its November 28, 1995 order, the trial court found that 

 1Husband appealed this matter to the Supreme Court of 

Virginia. Jurisdiction is properly with the Court of Appeals of 

Virginia. Code § 17-116.05(3). The Supreme Court transferred 

the appeal to the Court of Appeals. 
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it had personal jurisdiction over husband pursuant to Code 

§ 8.01-328.1(A)(9). Husband elected not to pursue an appeal of 

that order and it became final. Rule 1:1. Husband may not now 

seek to challenge the factual findings necessarily decided in the 

prior unappealed order. 

 Under the principle of collateral estoppel, 

"the parties to the first action and their 

privies are precluded from litigating [in a 

subsequent action] any issue of fact actually 

litigated and essential to a valid and final 

personal judgment in the first action." . . . 

 "A fundamental precept of common-law 

adjudication, embodied in the related 

doctrines of collateral estoppel and res 

judicata, is that a `right, question or fact 

distinctly put in issue and directly 

determined by a court of competent 

jurisdiction . . . cannot be disputed in a 

subsequent suit between the parties.'" 

Slagle v. Slagle, 11 Va. App. 341, 344, 398 S.E.2d 346, 348 

(1990) (citations omitted). 

 Husband contends that jurisdictional questions may be raised 

at any time. While "objections to subject-matter jurisdiction 

may be raised at any time and are not waivable," Owusu v. 

Commonwealth, 11 Va. App. 671, 672, 401 S.E.2d 431, 431 (1991), 

the same is not true for a finding of personal jurisdiction 

decided previously by the court and not appealed. "Subject 

matter jurisdiction alone cannot be waived or conferred on the 

court by agreement of the parties." Morrison v. Bestler, 239 Va. 

166, 169-70, 387 S.E.2d 753, 755 (1990). 

 [T]he lack of subject matter jurisdiction can 

be raised at any time in the proceedings, 

even for the first time on appeal by the 
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court sua sponte. In contrast, defects in 

the other jurisdictional elements generally 

will be considered waived unless raised in 
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 the pleadings filed with the trial court and 

properly preserved on appeal. Rule 5:25. 

Id. at 170, 387 S.E.2d at 756. 

 Here, the record proves that husband was aware of the 

proceeding against him, a fact made clear by both the duly 

authenticated certificates of notice and husband's entrance by 

special appearance to contest the trial court's jurisdiction. 

Husband did not appeal the court's subsequent finding that it did 

have personal jurisdiction, and consequently that finding became 

final twenty-one days after entry of the order. Such actions are 

sufficient to constitute waiver. 

 Accordingly, the decision of the circuit court is affirmed. 

 Affirmed.