COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ALAN RICHARD STEWART MEMORANDUM OPINION * v. Record No. 1483-98-2 PER CURIAM MAY 18, 1999 PHYLLA JEAN STEWART
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge
(Carol A. N. Breit; John A. Gibney; Shuford, Rubin & Gibney, on brief), for appellant.
(Thomas W. Blue, on brief), for appellee.
Alan Richard Stewart (husband) appeals the decision of the
circuit court granting Phylla Jean Stewart (wife) a divorce and
deciding other issues. Husband raises the following issues on
appeal: (1) whether the trial court denied him due process; (2)
whether he received proper notice; (3) whether the trial court
erred in finding him in default; (4) whether the trial court
erred by denying him the opportunity to appear, present
evidence, and defend the case; (5) whether there was proper
service and return on service; (6) whether there was sufficient
evidence to support the ground of divorce; (7) whether there was
sufficient evidence to support the financial award against
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. husband; and (8) whether the trial court had jurisdiction to
grant the relief awarded. Upon reviewing the record and briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
The parties were married in Henrico County on April 1,
1995, and last lived together in Chesterfield County. Wife
commenced this action by filing a bill of complaint in
Chesterfield County on November 30, 1995, alleging that husband
abandoned her on November 24, 1995. Husband was personally
served with the subpoena in chancery and bill of complaint in
Minnesota on June 24, 1996. Husband commenced an action in
Minnesota, serving wife on May 3, 1996. The Minnesota action
was dismissed on March 19, 1997. By letter dated January 31,
1997, husband's Minnesota counsel contacted the trial judge,
referenced the pending Virginia divorce action, and stated that
"[i]t is our belief that our service was completed before the
service of this matter in the State of Virginia." Husband filed
no further pleadings in the Virginia action prior to entry of
the final decree on October 8, 1997. On October 8, 1997, wife's
counsel received a request for discovery from husband's Virginia
counsel. Husband filed a motion to vacate, which was granted on
October 29, 1997, to allow the parties to brief the adequacy of
notice received by husband. By order entered January 14, 1998,
the trial court ruled that husband received adequate notice and
- 2 - that the court had jurisdiction over husband. The court entered
the final decree on June 8, 1998.
Due Process and Sufficiency of Service
Questions Presented One through Five and Eight arise from a
single underlying issue concerning the sufficiency of the
process served upon him so that he received due process and a
chance to defend himself in the divorce proceedings. We find
husband's contentions to be without merit.
Under Code § 8.01-328.1(A)(9), the Chesterfield County
circuit court properly exercised personal jurisdiction over
husband.
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:
* * * * * * *
9. Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein. Jurisdiction in subdivision 9 of this subsection is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320.
Id. Wife established that husband was served with process in
accordance with the provisions of Code §§ 8.01-296 and 8.01-320.
"When the court can exercise jurisdiction over the nonresident
- 3 - pursuant to § 8.01-328.1, such service shall have the same
effect as personal service on the nonresident within Virginia."
Code § 8.01-320. Upon service of process, husband was required
to file a responsive pleading in the Virginia action or suffer
the consequences of default.
The person so served shall be in default upon his failure to file a pleading in response to original process within twenty-one days after such service. If no responsive pleading is filed within the time allowed by law, the case may proceed without service of any additional pleadings, including the notice of the taking of depositions.
Id.
Both Emrich v. Emrich, 9 Va. App. 288, 387 S.E.2d 274
(1989), and Mackey v. Mackey, 203 Va. 526, 125 S.E.2d 194
(1962), cited by husband as authority for his contention that
the trial court abused its discretion, are factually
distinguishable. In Emrich, the wife failed to file a timely
response to the bill of complaint because the parties resumed
cohabitation and the husband fraudulently induced her not to
answer by indicating he would seek to have the case dismissed.
We found that the trial court abused its discretion when it
denied the wife's motion for an extension of time to answer and
entered a decree of divorce within two months of the filing of
the bill of complaint, notwithstanding evidence refuting the
husband's proffered grounds for divorce. See Emrich, 9 Va. App.
at 295, 387 S.E.2d at 277. In Mackey, unlike the case here, the
- 4 - defendant answered the complaint, but then was not provided with
accurate notice of the taking of the deposition subsequently
relied upon as the basis for the divorce. See Mackey, 203 Va.
at 527-28, 125 S.E.2d at 195-96. Both cases are inapposite to
the circumstances here where husband was properly served but
failed without good cause to respond to the ongoing action.
Trial courts may properly refuse an extension where the delay is due to negligence or carelessness on the part of a party. Inadvertence or failure to exercise due diligence under the circumstances in responding to legal process does not constitute a reasonable or legal excuse for failure to comply with filing requirements.
Emrich, 9 Va. App. at 293, 387 S.E.2d at 276 (citation omitted).
Husband filed no response to the June 1996 service of
process. He was aware of the ongoing Virginia proceeding, as
demonstrated by the January 1997 letter from his Minnesota
counsel to the Virginia trial judge. Even after the dismissal
of the Minnesota litigation in March 1997, husband filed no
response in the Virginia action. The final decree of divorce
was entered almost two years after the filing of wife's bill of
complaint, more than one year after the service of process on
husband, and more than six months after the dismissal of the
Minnesota proceeding. Wife complied with the statutory
requirements and obtained personal jurisdiction over husband.
Husband received notice and an opportunity to be heard, which is
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ALAN RICHARD STEWART MEMORANDUM OPINION * v. Record No. 1483-98-2 PER CURIAM MAY 18, 1999 PHYLLA JEAN STEWART
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge
(Carol A. N. Breit; John A. Gibney; Shuford, Rubin & Gibney, on brief), for appellant.
(Thomas W. Blue, on brief), for appellee.
Alan Richard Stewart (husband) appeals the decision of the
circuit court granting Phylla Jean Stewart (wife) a divorce and
deciding other issues. Husband raises the following issues on
appeal: (1) whether the trial court denied him due process; (2)
whether he received proper notice; (3) whether the trial court
erred in finding him in default; (4) whether the trial court
erred by denying him the opportunity to appear, present
evidence, and defend the case; (5) whether there was proper
service and return on service; (6) whether there was sufficient
evidence to support the ground of divorce; (7) whether there was
sufficient evidence to support the financial award against
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. husband; and (8) whether the trial court had jurisdiction to
grant the relief awarded. Upon reviewing the record and briefs
of the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
The parties were married in Henrico County on April 1,
1995, and last lived together in Chesterfield County. Wife
commenced this action by filing a bill of complaint in
Chesterfield County on November 30, 1995, alleging that husband
abandoned her on November 24, 1995. Husband was personally
served with the subpoena in chancery and bill of complaint in
Minnesota on June 24, 1996. Husband commenced an action in
Minnesota, serving wife on May 3, 1996. The Minnesota action
was dismissed on March 19, 1997. By letter dated January 31,
1997, husband's Minnesota counsel contacted the trial judge,
referenced the pending Virginia divorce action, and stated that
"[i]t is our belief that our service was completed before the
service of this matter in the State of Virginia." Husband filed
no further pleadings in the Virginia action prior to entry of
the final decree on October 8, 1997. On October 8, 1997, wife's
counsel received a request for discovery from husband's Virginia
counsel. Husband filed a motion to vacate, which was granted on
October 29, 1997, to allow the parties to brief the adequacy of
notice received by husband. By order entered January 14, 1998,
the trial court ruled that husband received adequate notice and
- 2 - that the court had jurisdiction over husband. The court entered
the final decree on June 8, 1998.
Due Process and Sufficiency of Service
Questions Presented One through Five and Eight arise from a
single underlying issue concerning the sufficiency of the
process served upon him so that he received due process and a
chance to defend himself in the divorce proceedings. We find
husband's contentions to be without merit.
Under Code § 8.01-328.1(A)(9), the Chesterfield County
circuit court properly exercised personal jurisdiction over
husband.
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:
* * * * * * *
9. Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein. Jurisdiction in subdivision 9 of this subsection is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320.
Id. Wife established that husband was served with process in
accordance with the provisions of Code §§ 8.01-296 and 8.01-320.
"When the court can exercise jurisdiction over the nonresident
- 3 - pursuant to § 8.01-328.1, such service shall have the same
effect as personal service on the nonresident within Virginia."
Code § 8.01-320. Upon service of process, husband was required
to file a responsive pleading in the Virginia action or suffer
the consequences of default.
The person so served shall be in default upon his failure to file a pleading in response to original process within twenty-one days after such service. If no responsive pleading is filed within the time allowed by law, the case may proceed without service of any additional pleadings, including the notice of the taking of depositions.
Id.
Both Emrich v. Emrich, 9 Va. App. 288, 387 S.E.2d 274
(1989), and Mackey v. Mackey, 203 Va. 526, 125 S.E.2d 194
(1962), cited by husband as authority for his contention that
the trial court abused its discretion, are factually
distinguishable. In Emrich, the wife failed to file a timely
response to the bill of complaint because the parties resumed
cohabitation and the husband fraudulently induced her not to
answer by indicating he would seek to have the case dismissed.
We found that the trial court abused its discretion when it
denied the wife's motion for an extension of time to answer and
entered a decree of divorce within two months of the filing of
the bill of complaint, notwithstanding evidence refuting the
husband's proffered grounds for divorce. See Emrich, 9 Va. App.
at 295, 387 S.E.2d at 277. In Mackey, unlike the case here, the
- 4 - defendant answered the complaint, but then was not provided with
accurate notice of the taking of the deposition subsequently
relied upon as the basis for the divorce. See Mackey, 203 Va.
at 527-28, 125 S.E.2d at 195-96. Both cases are inapposite to
the circumstances here where husband was properly served but
failed without good cause to respond to the ongoing action.
Trial courts may properly refuse an extension where the delay is due to negligence or carelessness on the part of a party. Inadvertence or failure to exercise due diligence under the circumstances in responding to legal process does not constitute a reasonable or legal excuse for failure to comply with filing requirements.
Emrich, 9 Va. App. at 293, 387 S.E.2d at 276 (citation omitted).
Husband filed no response to the June 1996 service of
process. He was aware of the ongoing Virginia proceeding, as
demonstrated by the January 1997 letter from his Minnesota
counsel to the Virginia trial judge. Even after the dismissal
of the Minnesota litigation in March 1997, husband filed no
response in the Virginia action. The final decree of divorce
was entered almost two years after the filing of wife's bill of
complaint, more than one year after the service of process on
husband, and more than six months after the dismissal of the
Minnesota proceeding. Wife complied with the statutory
requirements and obtained personal jurisdiction over husband.
Husband received notice and an opportunity to be heard, which is
the essence of due process. "An elementary and fundamental
- 5 - requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections." Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314-15 (1950). When husband elected not to respond to
the ongoing action, he was in default. Wife was not required to
provide him with further notice. See Code § 8.01-320.
Sufficient Evidence of the Ground of Divorce
Evidence of the ground for the divorce was presented by
deposition. On appeal, husband challenges the sufficiency of
this evidence. "'The rule is firmly established in Virginia
that a divorce decree based solely on depositions is not as
conclusive on appellate review as one based upon evidence heard
ore tenus, but such a decree is presumed correct and will not be
overturned if supported by substantial, competent and credible
evidence.'" Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d
827, 828 (1986) (citation omitted). See also Code § 20-99(1).
Wife presented her own deposition and the corroborating
deposition of Mildred Settle to establish her alleged ground of
desertion.
"The question of corroboration is one of fact, the decision of which in each case depends upon the particular facts of that particular case. It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential charge stated as a ground for divorce. The
- 6 - corroborative testimony need not be sufficient, standing alone, to prove the alleged ground for divorce. Any other rule would deprive the testimony of the complaining spouse of any practical effect. The general rule is that where a particular fact or circumstance is vital to complainant's case, some evidence of the same, in addition to the complainant's own testimony, is essential. The main object of the provision of the statute requiring corroboration is to prevent collusion. Where it is apparent that there is no collusion, the corroboration needs to be only slight."
Dodge v. Dodge, 2 Va. App. 238, 245, 343 S.E.2d 363, 367 (1986)
(emphasis and citations omitted).
The trial court found wife's evidence credible. Wife
provided sufficient corroboration. Collusion was not a concern.
Husband has failed to demonstrate grounds to overturn the decree
which is presumed to be correct.
Financial Award
Husband also contends that the evidence did not support a
financial award against him. Because husband received adequate
notice, his argument to strike the evidence submitted by
deposition is without merit. Wife presented evidence to support
her claim that husband’s actions leading to the dissolution of
the marriage cost her $43,381.53 and that she incurred $8,006.50
in attorney’s fees and costs. We find no error in the trial
court’s lump sum award to wife pursuant to Code § 20-107.3(D),
and its award of her attorney’s fees and costs.
- 7 - Accordingly, the decision of the circuit court is summarily
affirmed.
- 8 -