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Jurisdiction: The Word of Too Many Meanings by Charles E. Powers Jurisdiction sounds easy. It is a simple word and the concept, ultimately, is pretty straight forward. Yet, well into the third century of this commonwealth, it still presents great potential for disaster. As our Supreme Court of Virginia recently noted, "jurisdiction is a word of many, too many, meanings."1 Charles E. Powers is a partner with the Richmond law firm of Batzli, Wood & Stiles which focuses exclusively on family law and related matters. He has devoted his practice to family law for his entire career and is a fellow of the American Academy of Matrimonial Lawyers and has served as president of the Metro Richmond Family Law Bar Association. He currently sits on the board of gover- nors for the Family Law Section of the Virginia State Bar. Too often, litigants get tripped up by jurisdic- tional issues, whether it is bringing the matter in the wrong place or asking the wrong court to take action. Jurisdictional traps are everywhere and can be sprung at any time, even long after a case is decided on the merits. While defects in some jurisdictional requirements can be overlooked, others can be fatal and raised at any time, even for the first time by an appellate court sua sponte.2 Thus, it is important to make sure that the case can actually be heard. For if the court is called upon to "plumb the murky depths of the sea of 'jurisdiction,'"3 a lot of time and effort may be wasted and litigants left without remedies. In the area of family law, a delay in obtaining access to the courts can have devastating results. The Elements of Jurisdiction Jurisdiction "is the power to adjudicate a case upon the merits and dispose of it as justice may require."4 In order for a court to have the power to actually adjudicate a case, however, it must have "active" jurisdiction which consists of several elements, all of which must be present in order for a court to have the ability to "proceed to a valid judgment": • "Subject matter jurisdiction," which is the authority granted to a court by the Constitution or by statute to adjudicate a class of cases or controversies; • "Territorial jurisdiction," which is the authority of a court over persons, things or occurrences located in a defined geo- graphic area; • "Notice jurisdiction," which is effective notice to a party or, if the proceeding is in rem, seizure of the res; and 52 VIRGINIA LAWYER | February 2012 | Vol. 60 | FAMILY LAW SECTION • "The other conditions of fact [that] must exist which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judg- ment or decree."5 There is a critical distinction between the first element, namely the "power of a court to adjudicate a specified class of cases," and the other elements which provide the "authority" to a court to actually exercise that power.6 That distinction is that the lack of subject matter can never be waived under any circumstance while the "other jurisdictional elements generally will be consid- ered waived unless raised in the pleadings filed with the trial court and properly preserved on appeal."7 What Cannot Be Waived (Subject Matter Jurisdiction) Subject matter jurisdiction is often referred to as "potential" jurisdiction: a court is given the authority by the constitution or by statute to hear a certain type of case (e.g., a circuit court has the "potential" to grant an equitable distribution of a divorcing couple's property based on the author- ity granted to it by Virginia Code §20-107.3). However, unlike the other elements of jurisdic- tion, a lack of subject matter jurisdiction cannot be waived and cannot be conferred on the court by the agreement of the parties.8 Any judgment made, even those made on the merits, without subject matter jurisdiction is null and void as is any subsequent proceeding based upon that defective judgment.9Most importantly, not only can the lack of subject matter jurisdiction not be waived, it can be raised at any time, even for the first time on appeal by the court sua sponte.10

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