Aaron L. Jestice v. Evelyn I. Jestice

• Court: Court of Appeals of Virginia
• Decided: July 8, 1997
• Docket: 0344974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

AARON L. JESTICE MEMORANDUM OPINION * v. Record No. 0344-97-4 PER CURIAM JULY 8, 1997 EVELYN I. JESTICE

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Stanley P. Klein, Judge

(Jeffrey S. Sawtelle; Baldwin & Associates, on brief), for appellant. No brief for appellee.

Aaron L. Jestice (husband) appeals the decision of the

circuit court deeming admitted certain Requests for Admission

promulgated by Evelyn I. Justice (wife). Husband contends that

the trial court abused its discretion because there was no

prejudice to wife's case by the two-day delay in responding, the

admissions caused extreme prejudice to his case, and he lacked

notice of wife's motion to deem the requests admitted. Upon

reviewing the record and opening brief, we conclude that this

appeal is without merit. Accordingly, we summarily affirm the

decision of the trial court. Rule 5A:27.

Rule 4:11 provides, in pertinent part, that [e]ach matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 21 days after service of the request, or within such shorter or longer time as the court may * Pursuant to Code § 17-116.010 this opinion is not designated for publication. allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney, but, unless the court shortens the time, a defendant shall not be required to service answers or objections before the expiration of 28 days after service of the bill of complaint or motion for judgment upon him.

The conduct of discovery is left to the discretion of the

trial court. See Helen W. v. Fairfax County Dep't of Human Dev.,

12 Va. App. 877, 887, 407 S.E.2d 25, 31 (1991). While the court

is authorized to extend or shorten the period of time within

which a party may respond to requests for admission, in the

absence of any extension, the rule provides for no more than

twenty-one days. We cannot say that the court's adherence to the

period provided in the rule was an abuse of discretion. Moreover, while husband contends that his case was severely

prejudiced by the requests for admission, we find his arguments

unpersuasive. Husband contends that the parties' separation

agreement did not specify with absolute accuracy the cost of

living index to be used to adjust the spousal support payments.

The agreement provided for adjustments "by the percentage of

change in the cost of living to be the same as the cost of living

set out in the Department of Labor's publication on the Consumer

Price Index for Urban Wage Earners, Metropolitan D.C. Area, using

the 1986 issuance as the base change date." Therefore, because

the parties' agreement identified with specificity the cost of

living index to be used, husband's contention fails.

2 Similarly, as husband acknowledges, interest generally is

assessed on unpaid spousal support, unless it would be

inequitable to do so. See Alig v. Alig, 220 Va. 80, 85, 255

S.E.2d 494, 497-98 (1979). While husband asserted in the trial

court that wife orally waived the cost of living increases,

neither proof nor proffer in the record supports husband's claim.

Husband concedes that the alleged oral agreement would be

ineffective to modify the written agreement. Therefore, husband

has not demonstrated prejudice sufficient to warrant reversal of

the court's decision. Husband contends that he lacked notice of wife's motion to

compel. The record demonstrates that wife's counsel served the

requests for admission on husband's counsel on August 14, 1996,

that responses were due on September 4, 1996, and that husband's

counsel filed a response on September 6, 1996, two days late. At

the September 20, 1996 hearing on wife's motion to compel, wife's

counsel indicated that she was not seeking to compel an answer to

the first interrogatory because the requests were deemed

admitted. At that same hearing, husband's counsel withdrew.

However, the onus to ensure continuity with his subsequent

attorney falls on husband, not wife. Therefore, husband has

failed to demonstrate prejudice sufficient to warrant reversal.

Finally, husband argues that wife's motion for a Rule to

Show Cause is in the nature of a motion for judgment, therefore

entitling him to twenty-eight days from service within which to

3 respond. That argument is without merit. Rule 4:11 provides for

an extended period for response if so allowed by the court or in

the specific instances of a bill of complaint or a motion for

judgment commencing an action. The rule does not contemplate an

extended period of response whenever any motion is served.

Husband filed his bill of complaint on March 20, 1985, and the

final decree of divorce was entered August 30, 1985. Therefore,

the twenty-eight day period for response is inapplicable. Accordingly, the decision of the circuit court is summarily

affirmed.