Joyce Elizabeth Czajkowski v Kenneth Labowitz, Adm

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
JOYCE ELIZABETH CZAJKOWSKI
MEMORANDUM OPINION* BY
v. 	Record No. 1981-99-4 	JUDGE JERE M. H. WILLIS, JR.
MARCH 21, 2000
KENNETH E. LABOWITZ, AS ADMINISTRATOR C.T.A.
OF THE ESTATE OF ANTHONY F. CZAJKOWSKI
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Robert A. Payne (Fagelson, Schonberger,
Payne & Deichmeister, P.C., on briefs), for
appellant.
Kenneth E. Labowitz (Jason D. Blatt; Dingman
Labowitz, P.C., on brief), for appellee.
On appeal from the denial of a contempt citation, Joyce
Elizabeth Czajkowski contends that the trial court erred in
holding that a deed to her former husband and herself conveyed
title as tenants in common, rather than as joint tenants with
the right of survivorship. 	Because this holding was not
embraced by the pleadings within the scope of the parties'
divorce action, we reverse and vacate the holding without
prejudice.
Anthony and Joyce Czajkowski, while married, owned a
condominium as tenants by the entireties. 	They separated in
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

1988 and lived apart thereafter. 	On December 26, 1996, they
executed a marital settlement agreement which provided, in
relevant part, as follows:
II. 	C. 	The Husband and Wife will retain
ownership as joint tenants with common law
rights of survivorship of the condominium
. . . subject to the following:
1. 	Wife shall have the exclusive
right to use said condominium as her
residence. 	Wife shall be responsible for
paying the condominium fees of said
condominium and maintaining the property in
a habitable condition.
2. 	Wife shall have the sole right
to sell said condominium. 	Husband and Wife
will share the difference equally, if any,
between the selling price of said property
and the mortgage principal balance
outstanding on the date of sale.
3. 	Should Wife desire to obtain
sole title to the property, Husband shall
transfer his interest to her for 50 percent
of the difference between the property's
fair market value and the mortgage principal
balance outstanding at that time of
transfer.
By decree entered June 3, 1997, Anthony and Joyce were
granted a divorce a vinculo matrimonii. 	The decree provided, in
pertinent part:
[I]t is further . . .
ADJUDGED, ORDERED and DECREED that the
Property Settlement Agreement dated December
26, 1996, is affirmed, ratified and
incorporated, but not merged in this decree.
The divorce decree converted the tenancy by the entireties to a
tenancy in common. 	See Code § 20-111. 	On December 22, 1997,
Anthony and Joyce executed a general warranty deed conveying the
- 2 -

condominium to themselves "as joint tenants with common law
right of survivorship."
Anthony died on October 31, 1998. 	Kenneth E. Labowitz
qualified as Administrator C.T.A. of his estate. 	By deed dated
December 28, 1998, Joyce, "divorced and not remarried, surviving
joint tenant of Anthony F. Czajkowski, deceased," conveyed the
condominium to herself. 	The deed recited:
The above-named Anthony F. Czajkowski
departed this life on October 31, 1998,
. . . leaving Joyce E. Czajkowski as his
surviving joint tenant.
* 	* 	* 	* 	* 	* 	*
The purpose of this deed is to ratify and
confirm ownership of Joyce E. Czajkowski
upon the death of Anthony F. Czajkowski.
Labowitz, as administrator of Anthony's estate, petitioned
the trial court to hold Joyce in contempt for refusing to pay
Anthony's estate one-half of the equity in the condominium
pursuant to Part IIC(3) of the marital settlement agreement. 	By
decree entered August 4, 1999, the trial court declined to hold
Joyce in contempt, ruling that
there being no provision in the Marital
Settlement Agreement or final decree of
divorce that has been violated by [Joyce],
the prayer in the petition filed by the
Administrator for the entry of a decree
directing the Defendant, Joyce Czajkowski,
to show cause why she should not be judged
in contempt should be, and same hereby is,
denied . . . .
That ruling has not been appealed.
- 3 -

The trial court further held:
[U]pon the entry of the final decree of
divorce herein, the parties' ownership of
the subject condominium was that of tenants
in common and the General Warranty Deed
dated December 22, 1997 and Deed of
Confirmation dated December 28, 1998 were
ineffective to create a joint tenancy with
survivorship.
On appeal, Joyce contends that the trial court erroneously
construed the December 22, 1997 deed.
The trial court found no violation of the marital
settlement agreement or of the divorce decree. 	See Funches v.
Funches, 243 Va. 26, 31, 413 S.E.2d 44, 47 (1992); Jackson v.
Jackson, 211 Va. 718, 719, 180 S.E.2d 500, 500 (1971). 	That
ruling was not appealed and is final. 	That ruling was correct.
At issue are the rights of the parties under the December 22,
1997 deed. 	That Joyce and Anthony executed the deed in
furtherance of their marital settlement agreement, as approved
and incorporated in the divorce decree, is of no consequence.
When they executed the deed, they were no longer married. 	They
were legal strangers, free to contract as they thought proper.
They had the right, upon agreement, to vary the property
settlement provisions of their marital settlement and the
divorce decree. 	We note that on January 29, 1998, they executed
an amendment to the marital settlement agreement, containing
provisions not relevant to this case.
- 4 -

"Jurisdiction in divorce suits may not be acquired
inferentially or through indirection because divorce in Virginia
is a creature of statutes enacted in clear, detailed language."
Steinberg v. Steinberg, 11 Va. App. 323, 328-29, 398 S.E.2d 507,
510 (1990).
"A suit for divorce . . . does not
involve an appeal to the general
jurisdiction of the equity forum. 	The many
limitations, both in respect to jurisdiction
and procedure, placed upon divorce suits by
the statute, differentiate the divorce case
from ordinary suits in equity and render it
a chancery case sui generis."
Reid v. Reid, 245 Va. 409, 413, 429 S.E.2d 208, 210 (1993)
(citations omitted).
[A] decree may . . . be void if "the
character of the judgment was not such as
the court had the power to render, or [if]
the mode of procedure employed by the court
was such as it might not lawfully adopt."
Watkins v. Watkins, 220 Va. 1051, 1054, 625 S.E.2d 750, 752-53
(1980) (citation omitted).
The ruling on appeal involved the construction of the
December 22, 1997 deed, an instrument between legal strangers.
The issues raised in that ruling did not derive from the
parties' marriage, their marital settlement agreement, or their
divorce decree and, thus, were not properly embraced within the
divorce suit or the administrator's petition. 	Those issues
could be addressed only in a court of general law or equity
- 5 -

jurisdiction. 	The trial court, sitting as a divorce court,
lacked that jurisdiction.
Accordingly, we reverse and vacate the trial court's
holding that the December 27, 1997 deed created a tenancy in
common. 	That part of the August 4, 1999 decree is dismissed
without prejudice to the parties, who may address that issue in
a proper forum, if they be so advised.
Reversed and vacated
without prejudice.
- 6 -