COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Hodges Argued at Chesapeake, Virginia

WENDY S. BEHNKE MEMORANDUM OPINION * BY v. Record No. 0005-03-1 J UDGE WILLIAM H. HODGES OCTOBER 28, 2003 MARK J. BEHNKE

FROM THE CIRCUIT COURT OF TH E CITY OF VIRGINIA BEACH Patricia L. West, Judge Robert B. Jeffries (Law Offices of Diane Fene r, P.C., on briefs), for appellant. Bobby W. Davis for appellee.
Wendy S. Behnke, wife, appeals a decision of the trial court granting the bill of complaint for divorce filed by Mark J. Behnke, husband. On appeal, wife conten ds: (1) the statutory presumption of domicile for a memb er of the armed services is re buttable; (2) the evidence showed that husband was not domiciled in Vi rginia; (3) the trial c ourt's pretrial ruling that it had subject matter jurisdiction did not preclude the wife from raising that issue to the commissioner; and (4) pursuant to Co de § 20-146.1 et seq. , the trial court lacked jurisdiction to determ ine the child custody issue. We affirm the trial court' s ruling that it had juri sdiction to hear the divorce case. However, we reverse the trial court's ru ling that it had jurisdiction to make an initialchild custody determination.

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.- 2 - BACKGROUND The parties were married in California in 1983, and they moved to Virg inia in 1984. Husband has been a member of the United States Navy si nce 1982. In 1988 , husband and wife purchased a house in Virginia Beach where they resided together for fifteen years. The parties had one child, who was born in 1992. They separated in September 19 99, and wife continued to reside in Virginia Beach until N ovember 1, 2000 when sh e moved to Florida, taki ng the child with her. On October 30, 2000, husba nd and wife entered into a separation agreement wherein they agreed to have joint legal and physical cu stody of the child, wi th the child residing with the wife when husband was standing duty or goin g out to sea. The agreement also provided that the child would reside with the wife in Florida during the 2000-2001 school y ear and that the parties would determine "further custody" of the child afte r the completion of the 2000-2001 school year. On July 13, 2001, husban d filed a bill of comp laint for divorce in th e circuit court of the City of Virginia Beach. Wife, by special appearance, filed a pleadin g objecting to th e trial court's jurisdiction to hear the divorce case on the grou nd that neither she nor husband had "ever been a domiciliary of Virginia." She re quested that the bill of complaint be dismissed for lack of subject matter and personal jurisdiction. On December 7, 2001, th e trial court held an evidentiary hearing on the jurisdiction issue. The record contains no transcript or written statement of facts concerning that proc eeding. By order entered on February 1, 2002, the trial court denied wife's motion objecting to ju risdiction. The trial court then referred the case to a commissioner in chancery and directed hi m to take testimony and report his findings to the court. On July 9, 2002, the commissioner held a hearing con cerning child custody and support. Prior to the taking of evidence, wife again sought to raise the issues of subject matter and personal jurisdiction, and she requ ested that the commissioner take evid ence concerning those issues. The- 3 - commissioner referred to the trial court's February 1, 2002 order and found that the order "settles the point that the circuit court has already ruled that this [c]ourt has jurisdiction ." Wife then proffered evidence concerning husband's domicile, arguing that he was do miciled in Florida. Husband represented to the comm issioner that, at the hearing in the trial court concerning the jurisdiction issue, wife pr esented the same evidence and documents she proffered at the commissioner's hearing. He also stated that the parties had stipulated that husband had been stationed in Virginia with the military for at least six months prior to the date he filed the bill of complaint. Husband argued that th e jurisdiction issue ha d already been decide d by the trial court. The commissioner then took evidence concerning the child custody issues. After the commissioner issued his report, wife filed exceptions to the report and, on November 8, 2002, the trial court held a hearing on wife's exceptions. Wife contested the jurisdiction of the court to hear the divorce case, and she argued that the commissioner had erred in failing to reconsider the jurisdiction issue because she had new ev idence on the matter to present to the commissioner. The trial court found that th e record did not show wife indicated to the commissioner that she had new evid ence related to the jurisdiction question. The trial court also stated that wife had an opportunity to present her evidence at the time of the trial court's hearing on the jurisdiction issue. Th e trial court then ruled that the child custody matter was ancillary to the divorce case and, because the trial court had jurisdiction to hear the divorce case, it had jurisdiction to determine child custody. Wife appeals the final decree containing the trial court's decision. ANALYSIS Wife first contends that the statutory presumption of Code § 20-97(1) may be rebutted. Code § 20-97 provides that, in or der for a divorce suit to be maintainable in Virginia, one of the parties must be an actual bona fide resident and domiciliary of Virginia for at least six months prior to the commencement of the suit. Code § 20-97(1) provides:- 4 - If a member of the armed forces of the United States has been stationed or resided in this Co mmonwealth and has lived for a period of six months or more in this Commonwealth next preceding the commencement of the suit, then such person shall be presumed to be domiciled in and to have been a bona fide resident of this Commonwealth during such period of time. We need not decide whether the presumpti on in this subsection is rebuttable and not conclusive because the record does not indicate th is issue was raised in the trial court. The transcript of the hearing at which the jurisd iction issue was raised and determined is not contained in the record. The trial judge's order overruling th e motion to dismiss for lack of jurisdiction does not address this issue. The evid ence in the record clea rly showed that husband is a member of the armed forces, has been stationed or resided in Vi rginia, and has lived in Virginia for a period of six months or more "next preceding the commencement" of the divorce suit. Therefore, husband was domiciled in and was a bona fide resident of Virginia. Accordingly, the trial court had subject matter juri sdiction to adjudicate the parties' divorce suit. Wife also argues that the commissioner erred in refusing to take evidence regarding the jurisdiction issue. The record establishes, however, that the jurisd iction question had been decided by the trial court prior to the court's referral of the case to the commissioner. The Supreme Court has defined th e authority of a commissioner in chancery in an equity proceeding as "an officer appointed by the chancellor to aid him [or her] in the proper and expeditious performance of his [or her] duties. " When a trial court refers a cause to a commissioner in chan cery, it does not delegate its judicial functions to the commissioner in chancery. Kelker v. Schmidt, 34 Va. App. 129, 136-37, 538 S.E.2d 342, 346 (2000) (citations omitted). "Commissioners are to assist the court, not to supplant it." Raiford v. Raiford, 193 Va. 221, 229-30, 68 S.E.2d 888, 894 (1952). The trial court had ruled on the issue of juri sdiction prior to referring the case to the commissioner. The commissioner was without authority to overrule that decision. Furthermore,- 5 - "'the actions of the commissioner are not bi nding on the chancellor, who must exercise independent judicial judgment over the eviden ce presented in the commissioner's report.'" Kelker, 34 Va. App. at 137, 538 S.E.2d at 346 (c itation omitted). Therefore, had the commissioner decided the issue differently, his d ecision would not have been binding on the trial court. Accordingly, the commissioner did not err in refusing to reconsider the jurisdiction issue. Wife argues the trial court lacked jurisdic tion to rule on the child custody matter because the child had resided in Florida since November 1, 2000, more than six months before the bill of complaint was filed on July 13, 2001. Code § 20-146.12(1) provides, in pertinent part: A. Except as otherwise provide d in § 20-146.15, a court of this Commonwealth has jurisdiction to make an initial child custody determination only if: 1. This Commonwealth is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six m onths before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth[.] "Home state" is defined, in relevant part, as: "[T]he state in wh ich a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." Code § 20-146.1. The evidence is undisputed that the child move d with his mother from Virginia Beach to Florida on November 1, 2000. On July 13, 2001, more than six months after the child moved to Florida, husband filed the bill of complaint re questing a divorce and jo int legal and physical custody of the child. Applying the statutory defini tion to these facts, the child's home state is Florida, and the Virginia Beach circuit court lacked jurisdiction to determine child custody in this case. Furthermore, Code § 20-146.12(B) provides that Code § 20-146.12(A) is "the exclusive jurisdictional basis for making a ch ild custody determination by a court of this- 6 - Commonwealth," and the excepti ons listed in Code § 20- 146.15 are inapplicable here. Accordingly, we hold that the trial court erred in ruling it had jurisdiction to determine child custody in this case. In sum, the trial court had jurisdiction to ad judicate the parties' divorce case pursuant to Code § 20-97. However, the trial court lacked jurisdiction to make aninitial child custody determination pursuant to Code § 20-146.12. Thus, th e trial court's final decr ee, as it pertains to matters of child custody, is null and void. Affirmed in part, reversed in part.