COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Agee and Senior Judge Overton 

Argued at Alexandria, Virginia 

ROSE E. SMITH 

 OPINION BY 

v. Record No. 0577-01-4 JUDGE JERE M. H. WILLIS, JR. 

 APRIL 16, 2002 

ELLIS H. SMITH 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

H. Selwyn Smith, Judge Designate 

 Roy D. Bradley (Bradley Law Firm, P.C., on 

briefs), for appellant. 

 Linda I. Dodge for appellee. 

 Rose Smith contends on appeal that the trial court erred in 

holding that it lacked jurisdiction to award equitable 

distribution because neither party requested it. See Code 

§ 20-107.3. For the following reasons, we reverse the judgment 

of the trial court and remand for equitable distribution of the 

parties' property. 

I. BACKGROUND

 Ellis and Rose Smith were married on July 2, 1973. On June 

10, 1995, they separated. On November 4, 1997, Mr. Smith filed 

a bill of complaint for divorce. Two days later, Ms. Smith 

filed her answer, asserting, inter alia: 

3. The parties hold joint title to 

property, the division of which will 

ultimately be a necessary part of these 

proceedings. 
 On February 18, 1998, the trial court entered a decree 

granting the parties a final divorce. An error in the decree 

was corrected on March 5, 1998, nunc pro tunc to February 18, 

1998. The decree provided, in pertinent part: 

AND THIS DECREE IS FINAL as to the parties' 

divorce, and the marriage of the parties is 

HEREBY DISSOLVED FOREVER, and matters 

requiring equitable distribution of marital 

property pursuant to Virginia Code Section 

20-107.3 are hereby deferred for further 

adjudication as allowed by Virginia Code 

Section 20-107.3. 

 Over the next thirty-four months, the parties conducted 

discovery in preparation for an equitable distribution hearing, 

which was scheduled for January 23, 2001. At that hearing, Mr. 

Smith filed a plea of jurisdiction/motion to quash. He argued 

that because neither party had requested equitable distribution 

pursuant to Code § 20-107.3, the trial court lacked jurisdiction 

to grant it. 

 Ms. Smith, first learning of the motion when it was 

presented to the trial court, argued that she had requested 

equitable distribution in paragraph three of her answer and 

consequently, the trial court possessed jurisdiction. The trial 

court disagreed and granted Mr. Smith's motion. Ms. Smith 

appeals that judgment. 

II. ANALYSIS

 Code § 20-107.3 states, in pertinent part: 

Upon decreeing the dissolution of a marriage 

. . . the court, upon request of either 

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party, shall determine the legal title as 

between the parties and the ownership and 

value of all property . . . . 

The statute specifies neither the form nor the substance of the 

"request." Thus, it is sufficient that a party make known to 

the court his or her desire that the court award equitable 

distribution. However, a court's jurisdiction to award 

equitable distribution is dependent upon a timely "request" by a 

party. See Toomey v. Toomey, 251 Va. 168, 465 S.E.2d 838 

(1996). 

 In Toomey, Mr. Toomey filed for a divorce from Victoria 

Toomey. Ms. Toomey filed no responsive pleading within the 

required time. Without further notice to her, depositions were 

taken and a final decree of divorce was entered. More than 

seven months later, Ms. Toomey sought equitable distribution of 

the marital estate, and, over Mr. Toomey's objection, the trial 

court permitted her to file a cross-bill seeking that relief. 

Reversing that judgment, the Supreme Court stated: 

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. 

Id. at 172, 465 S.E.2d at 840. 

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 Unlike Ms. Toomey, Ms. Smith protected her interests by 

requesting equitable distribution in paragraph three of her 

answer. While the request was not artfully stated, paragraph 

three nevertheless sufficiently made known to the trial court 

Ms. Smith's desire for equitable distribution. The trial court 

recognized as much in the February 18, 1998 decree by providing 

that "matters regarding equitable distribution of marital 

property . . . are hereby deferred for further adjudication as 

allowed by Virginia Code Section 20-107.3." The decree 

containing this reservation was endorsed, "I ask for this," by 

Mr. Smith's counsel. 

 The trial court erred in holding it lacked jurisdiction to 

award equitable distribution. Therefore, we reverse the 

judgment of the trial court and remand the case for 

ascertainment of the parties' property rights, pursuant to Code 

§ 20-107.3. 

 Reversed and remanded.

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