Carol H Lee, Sr v. Mary Y Lee

• Court: Court of Appeals of Virginia
• Decided: August 20, 2002
• Docket: 2195012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Senior Judge Hodges Argued at Richmond, Virginia

CAROL H. LEE, SR. MEMORANDUM OPINION * BY v. Record No. 2195-01-2 JUDGE WILLIAM H. HODGES AUGUST 20, 2002 MARY Y. LEE

FROM THE CIRCUIT COURT OF HANOVER COUNTY John Richard Alderman, Judge

Thomas W. Blue for appellant.

William S. Francis, Jr., for appellee.

Carol H. Lee (husband) appeals a final decree of divorce

entered on July 26, 2001. He contends that the decree is void

because the trial court lacked personal jurisdiction over him,

that the trial court erred in finding him guilty of adultery, and

that it erred in its distribution of the marital property and in

its award of spousal support. We hold that the trial court

properly obtained personal jurisdiction over husband, but that the

evidence was insufficient to prove adultery. Accordingly, we

reverse the judgment of the trial court and remand for

redetermination of the grounds for divorce, equitable

distribution, and spousal support.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. BACKGROUND

On November 28, 2000, Mary Lee (wife) filed a bill of

complaint for divorce, requesting that service of process be

made on husband at his place of employment. Not finding husband

there, the deputy sheriff served process on Murray Trelford, the

safety director of husband's place of employment.

On January 24, 2001, wife filed notice that "depositions of

the [wife] and witnesses will be taken" on February 12, 2001.

On February 26, 2001, she filed another notice that depositions

of wife and witnesses would be taken on March 15, 2001. The

husband was personally served with the latter notice on March 8,

2001.

On March 16, 2001, wife filed a document entitled

"STATEMENT IN LIEU OF MARCH 15, 2001 DEPOSITIONS," signed by

wife's attorney, William S. Francis, Jr., reciting that "notice

of depositions were [sic] properly served on the [husband] and

[husband] is here." The statement further recited that the

parties had "off-the-record preliminarily discussed some of the

matters surrounding this case," during which it became "obvious

to [wife's attorney] that [husband] intends to exercise the

rights that he has in contesting this divorce." The statement

recited that because husband had never answered the bill of

complaint, wife's attorney believed husband would not contest

the divorce or appear at the March 15, 2001 deposition hearing

-2- and, therefore, had not secured the presence of a court

reporter. When husband appeared, wife's attorney continued the

hearing until April 4, 2001, so a reporter could be obtained,

and sent notice thereof to husband by first class mail. Neither

husband nor an attorney on his behalf appeared at the April 4,

2001 rescheduled deposition hearing.

On June 5, 2001, wife filed a transcript of the April 4,

2001 hearing, at which wife and four additional witnesses

testified and wife submitted several exhibits.

On June 29, 2001, wife filed in the trial court a document

listing the parties' real and personal property and their

incomes so the trial court could equitably distribute that

property pursuant to Code § 20-107.3.

Despite notice posted at his usual place of abode, husband

did not appear at the July 26, 2001 ore tenus hearing at which

the trial court entered the final decree. The record contains

no transcript of or evidence from that hearing.

In the July 26, 2001 divorce decree, the trial court

awarded wife a divorce on the ground of adultery. It

classified, valued, and distributed the parties' property "after

considering the factors set forth in [Code] § 20-107.3(E) and

the evidence presented concerning each factor, and especially

the evidence of the [husband's] acts of adultery which destroyed

-3- the marriage," (emphasis added), and awarded wife spousal

support.

On August 9, 2001, husband's attorney filed a "Motion to

Vacate and Grant Leave for Late Pleadings." Husband asserted he

had not received notice of the July 26, 2001 hearing. He

further asserted that his misunderstanding regarding certain

actions taken by wife and his lack of education had rendered him

unable to appreciate the consequences of "failing to respond."

He argued that "the evidence offered by" wife had failed to

address all "issues set out in" Code § 20-94. Specifically, he

asserted that "the evidence does not deny that the alleged

adulterous behavior was committed by the procurement or

connivance of [wife]." Conceding that wife denied having any

sexual relations with him after the adulterous behavior, he

alleged that the parties continued to "cohabit in their

customary family fashion." He argued that "no direct evidence"

linked him "to any specific instance of adultery" and that there

was no "corroboration for the hearsay and circumstantial

evidence of adultery."

Husband also asserted that the trial court's rulings on

equitable distribution and spousal support were "greatly

inequitable." He denied "that he is guilty of the adulterous

behavior," and, "if permitted," promised to "introduce evidence

-4- directly from the allegedly involved persons that there was no

adulterous behavior committed by [him]."

On August 15, 2001, the trial court conducted a hearing on

husband's motions. Husband's attorney contested the finding of

adultery and represented that Mr. and Mrs. McBee, she being the

woman with whom husband allegedly committed adultery, were

present and "they will testify that's not so." He also

suggested the possibility of connivance and/or condonation

because "there was cohabitation after the adultery," precluding

a finding of adultery. The trial court asked husband's counsel

what errors the final decree contained. Counsel replied,

"deficiency in evidence as to the quality of the evidence as to

the equitable distribution and spousal support and also, . . .

the evidence of the adultery itself is poor."

Husband testified that he lived at the address at which the

notice of the July 26, 2001 hearing was posted. However, he

averred that he was not aware of the hearing until 4:00 p.m. on

that day, after conclusion of the 8:30 a.m. hearing. He never

argued that the trial court lacked jurisdiction because he was

never personally served with the bill of complaint.

The trial court found that husband "neglected this thing."

It also "assume[d] for purposes of th[e August 15] hearing" that

husband's witness, Mrs. McBee, would testify that no adultery

-5- took place. Nevertheless, the trial court denied husband's

motion.

A. PERSONAL JURISDICTION

Husband contends the final decree of divorce should be

vacated for lack of personal jurisdiction, because service of

the bill of complaint was defective and, thus, incapable of

establishing in personam jurisdiction over him.

Wife argues that husband subjected himself to the court's

jurisdiction by appearing twice in connection with the suit.

1. Raising Lack of Personal Jurisdiction for First Time on Appeal

"A court acquires no jurisdiction over the person of a

defendant until process is served in the manner provided by

statute, and a judgment entered by a court which lacks

[personal] jurisdiction over a defendant is void as against that

defendant." Slaughter v. Commonwealth, 222 Va. 787, 791, 284

S.E.2d 824, 826 (1981) (citations omitted). Husband can raise a

lack of personal jurisdiction for the first time in this Court.

See Wackwitz v. Roy, 244 Va. 60, 63, 418 S.E.2d 861, 863 (1992).

2. Personal Jurisdiction and Waiver

Code § 20-99 provides that process in a suit for divorce

may be served in any manner authorized by Code § 8.01-296. That

code section provides in pertinent part:

In any action at law or in equity or any other civil proceeding in any court,

-6- process, for which no particular mode of service is prescribed, may be served upon natural persons as follows:

1. By delivering a copy thereof in writing to the party in person; or

2. By substituted service in the following manner:

a. If the party to be served is not found at his usual place of abode, by delivering a copy of such process and giving information of its purport to any person found there, who is a member of his family, other than a temporary sojourner or guest, and who is of the age of sixteen years or older; or

b. If such service cannot be effected under subdivision 2 a, then by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode.

Code § 8.01-296.

Service upon husband's supervisor is not one of the

prescribed methods for serving the bill of complaint.

Accordingly, the service was invalid and was insufficient to

subject husband to the trial court's jurisdiction.

However,

[I]f a writ issues irregularly or the service thereof is imperfect a party may appear specially and plead in abatement, but where he does neither and appears generally, then whatever may have been the defect in the process or the service is waived, for general appearance constitutes waiver of such defect.

Scott v. Scott, 142 Va. 31, 35-36, 128 S.E. 599, 600 (1925).

-7- "Broadly stated, any action on the part of defendant,

except to object to the jurisdiction over his person which

recognizes the case as in court, will constitute a general

appearance." 6 C.J.S. Appearances § 19 (1975).

While there is some authority questioning the ability to make a special appearance after entry of judgment, a motion to vacate a judgment or order, based on the sole ground of want of jurisdiction of the person, does not constitute a general appearance, even though defendant's counsel unsuccessfully attempts to elicit evidence with respect to the circumstances under which the judgment was entered.

A general appearance is entered, however, if a motion to vacate a judgment or order is based on other than jurisdictional grounds, either wholly, or in connection with an objection to the jurisdiction, or if in addition to the request to vacate the judgment defendant asks for other relief . . . .

Id. at § 26.

"A party appearing in a proceeding to set aside a judgment

previously rendered, without objecting to the jurisdiction of

the court to set aside the judgment, thereby waives the question

of jurisdiction." Id. at § 48.

Rule 1:1 permits the trial court to retain jurisdiction of

a proceeding until twenty-one days from the date of entry of its

final order. By moving the trial court to vacate its decree

while it retained jurisdiction to modify, vacate or suspend its

judgment and by arguing the merits of the case without raising

-8- the issue of personal jurisdiction, husband made a general

appearance. He thus waived service of process and submitted

himself to the trial court's jurisdiction. See Minton v. First

Nat'l Exch. Bank, 206 Va. 589, 595, 145 S.E.2d 139, 143 (1965).

B. ADULTERY

Husband contends the evidence was insufficient to prove

adultery. We agree. Therefore, we need not address condonation

or the absence of connivance.

1. Evidence of Adultery

The evidence consisted of a transcript of the April 4, 2001

deposition hearing, documentary evidence presented by wife

during that hearing, and the document prepared by wife's

attorney listing the parties' assets and incomes. Husband

submitted no evidence.

At the April 4, 2001 deposition hearing, wife averred that

after July 2000, she hired a private detective, who videotaped

husband spending the night at the residence of Mr. and Mrs.

Richard McBee. Wife testified that she received from the

private detective a written summary of everything he saw. She

failed to provide the date of the videotaped conduct. No

videotape or summary was submitted into evidence, and the

unnamed private investigator did not testify.

Wife testified that she received a telephone call from an

unidentified woman, who said "I've been screwing your husband

-9- for thirty years." The caller indicated that she was

African-American and that she was pregnant. Wife recognized the

voice as belonging to a person who had previously called

approximately fifty times to speak to husband. A short time

later, the same woman called back and said the first call was a

mistake. Wife did not indicate the dates on which she received

the phone calls.

The following exchange took place between wife and her

attorney:

Q: To your knowledge has your husband also been involved with a gentleman that you believe is this lady's husband?

A: Yes.

Q: What's his name?

A: Mr. McBee.

Q: Do you know his full name?

A: Richard McBee.

Q: Was Mr. McBee present in the video recording that the detective took?

Q: Has Mr. McBee called and made demands on your husband numerous times over the years?

Q: Has your husband also responded, meaning that he immediately would leave and do whatever it was that Mr. McBee asked him to do?

-10- Q: Has there been an exchange of money from Mr. McBee to your husband over the years?

A: Yes, sir.

Q: Has that increased from the summer of 2000 forward?

Q: Do you know what any demands by Mr. McBee were for?

A: No.

Q: Did your husband, to your knowledge, make any money payments to Mr. McBee?

Q: Do you have any idea what they were for?

Q: Up to the July date the summer of 2000 and based upon the information you had, did you also believe that your husband had another family, that being children that he was somehow involved with socially and economically?

Wife presented no evidence to corroborate her beliefs

concerning husband.

According to wife, she and husband had had no sexual

relations for the past twenty-nine years because he was

medically unable to perform sexual intercourse. The following

exchange between wife and her attorney ensued:

Q: On or about the time of the summer of 2000 did your husband make a statement to someone else that he had discovered Viagra

-11- and he can get all he wanted and as a result he had a renewed interest in sex?

Q: Did he and you renew sexual relations at that time at all?

A: No, sir.

Wife and her attorney also had the following exchange at

the deposition hearing:

Q: Mrs. Lee, off the record I asked you if there was anything else that you wanted to introduce, and you indicated that there was with regard to proof about your husband's adultery or abandonment of the marriage and constructive desertion by him. You indicated to me that this summer after July of 2000 that you overheard a phone conversation that your husband was having with the same woman that had said she had been screwing your husband for thirty years and she was black. Would you testify what you overheard on that phone conversation?

A: I heard him tell her he loved her, and they set up a date for the next day.

Q: Was that date for him to meet her the next day?

Q: Did you hear the time and place they were to meet?

A: He left the house early the next morning, the destination I don't know.

Q: Did he often continuously leave the house on weekends and stay gone where you didn't know where he would be?

-12- Q: Based upon the information you have now, is it your testimony that [sic] was with this woman or her family on all of these occasions?

Patsy Worsham, the parties' married daughter, testified on

wife's behalf as follows:

[Wife's Attorney]: You've been present here this morning and heard all of the questions that I've asked your mother?

[Ms. Worsham]: Yes.

[Wife's Attorney]: Have you heard the answers she's given?

[Wife's Attorney]: If I were to ask you the same questions at this time would your answers be exactly the same?

[Ms. Worsham]: Yes, sir.

[Wife's Attorney]: Do you have a very close personal relationship with your mother so that you, yourself, have personal knowledge of everything that I asked of her and the answers she's given, correct?

[Wife's Attorney]: With regard to anything your father has done in the way of adultery or otherwise to end the marriage, is there any other statement or evidence that you wish to offer?

[Ms. Worsham]: No, sir.

A further exchange between Ms. Worsham and wife's attorney

occurred as follows:

-13- [Wife's Attorney]: You heard refer or respond [sic] to my question about the investigator, private investigator? Have you, yourself, actually, were you there on at least one or more occasions to see what your father was doing, were you not?

[Wife's Attorney]: And did you see him staying at or coming and going at this address we talked about on Jefferson Davis Turnpike?

[Wife's Attorney]: Have you also looked at the videotape of what we talked about?

[Wife's Attorney]: Is that consistent with what you saw?

[Wife's Attorney]: Have you ever confronted your father and asked if he had a relationship with another family?

[Ms. Worsham]: No, sir. There has been no communication since we were kids.

Worsham further testified that she had overheard a

conversation between husband and an unidentified woman in

December 2000. Worsham affirmed that the woman told husband she

was not going to have a hysterectomy and she intended to have a

baby.

Angela Lee, another daughter of the parties, testified that

during the summer of 2000, she found a ladies jacket behind a

seat in husband's truck. Husband told her it belonged to a lady

-14- with whom he went fishing, who must have left it in his truck.

Another time, Ms. Lee found in husband's truck an earring, a

figurine "like the world's greatest grandfather," a child's hair

barrette, and a pack of cigarettes.

Alvin Saunders is the parties' son-in-law. He testified

that husband advised him that he could get any amount of Viagra

that Saunders wanted.

The trial court found that "the acts of adultery" by

husband "have been fully proven by the evidence submitted

herein; and that [wife] has not voluntarily cohabited with

[husband] since obtaining knowledge of the commission of these

adulterous acts." The trial court further found that wife had

not condoned husband's adultery and "no reconciliation has taken

place."

2. Discussion

"'To establish a charge of adultery the evidence must be

clear, positive and convincing. Strongly suspicious

circumstances are insufficient. Care and circumspection should

accompany consideration of the evidence.'" Romero v. Colbow, 27

Va. App. 88, 93-94, 497 S.E.2d 516, 519 (1998) (quoting Painter

v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 38 (1975)).

"A charge of adultery is one of a criminal offense and especially and uniquely damaging to the reputation of the party charged. The general and widely recognized presumption of innocence must be indulged against it, and,

-15- while it is not required to be proved beyond a reasonable doubt, as in a criminal proceeding, the evidence must be at least clear and positive and convincing. Raising a considerable or even strong suspicion of guilt is not enough."

Id. (quoting Haskins v. Haskins, 188 Va. 525, 530-31, 50 S.E.2d

437, 439 (1948)).

The evidence created a suspicion that husband may have had

an intimate relationship with a person not his wife. However,

it failed to prove adultery. Wife's attorney repeatedly

propounded to the witnesses questions that assumed facts not in

evidence. Many of the witnesses' representations were based on

hearsay and speculation without any foundation as to their basis

of knowledge. Some of the evidence upon which the trial court

relied could well have described innocent activity or activity

unrelated to adultery, such as weekend fishing trips, visiting

Mr. McBee, and money paid to Mr. McBee. In toto, the evidence

failed to prove adultery clearly and convincingly, and the trial

court erred in granting the divorce on that ground.

C. EQUITABLE DISTRIBUTION AND SPOUSAL SUPPORT

Code §§ 20-107.1(E) and 20-107.3(E)(5) require a trial

court to consider "the circumstances and factors which

contributed to the dissolution of the marriage" in determining

equitable distribution and spousal support.

-16- Because the trial court relied upon adultery in making the

equitable distribution and spousal support awards, we reverse

those awards and remand for reconsideration of equitable

distribution and spousal support in accordance with the findings

expressed herein.

Reversed and remanded.

-17-