Eddine v. Eddine

406 S.E.2d 914, 12 Va. App. 760, 8 Va. Law Rep. 10, 1991 Va. App. LEXIS 167

• Court: Court of Appeals of Virginia
• Decided: July 1, 1991
• Docket: Record Nos. 0158-89-4, 1558-89-4
• Status: Published

Opinions

Opinion

BARROW, J.

These domestic relations appeals arise from the denial of a motion to set aside a monetary award and an award of attorney’s fees. The husband, against whom the awards were entered, contends that he was denied due process because he did not receive notice of the hearing at which the awards were entered. Prior to the hearing, the trial court had dispensed with notice to the husband because when he moved from Virginia he failed to file a written statement of his new address as required by Code § 8.01-319(A). We hold that the husband was not denied due process. In addition, we hold that the trial court did not err, as also contended by the husband, in concluding that it could not set aside the judgment after the passage of twenty-one days from its entry.

In a final decree of divorce between the parties, entered in 1986, the trial court found that the parties’ marital residence was the separate property of the husband. The wife appealed to this court, which found that the residence should have been classified as marital property and, by an order dated March 24, 1988, reversed and remanded the matter for further proceedings.

On March 29, 1988, the husband left the United States for Syria. He shipped his furniture to Syria, closed his medical practice, and stopped making child support payments. He failed, however, to provide the wife or the trial court with his new address. As a result, the wife moved pursuant to Code § 8.01-319(A) to dispense with any further notice to him. Notice of the hearing of this motion, scheduled for May 6, 1988, was posted on the door of the marital residence, the husband’s last known residence in Virginia. On May 6, 1988, the trial court entered an order granting the wife’s motion to dispense with any further notice to the husband.

The husband testified that he returned to Virginia to live in the marital residence on June 24, 1988. The wife acknowledges that after the husband’s return, she saw him on the street some six or seven houses away from the marital residence but did not inform the trial court. She also testified that the notice of the hearing for May 6, 1988, was still posted on the door of the home as late as July.

On August 1, 1988, without any notice to the husband, the trial court heard evidence and entered an order awarding the wife a $289,540 monetary award and $3,000 attorney’s fees. On August 22, 1988, the husband, pro se, filed a motion to set aside this order on the ground that it was void because he had received no notice of the August 1 hearing. The motion was not heard until August 26, 1988, and on January 6, 1989, the trial court denied the motion because more than twenty-one days had elapsed since the entry of the order. On November 15, 1989, the husband, by counsel, moved to set aside the August 1, 1988 order because it violated his due process rights under the constitutions of the United States and Virginia. The trial court denied the motion, and the husband has appealed, contending that due process requires that “notice of trial setting be given litigants” and that “pro se litigants [not be given] less notice than . . . other litigants.”¹

The requirements of the due process clause are satisfied if a party “has reasonable notice and reasonable opportunity to be heard and to present his claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.” Dohany v. Rogers, 281 U.S. 362, 369 (1930). The “practicalities and particularities of the case” must be considered in determining whether these requirements are reasonably met. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).

An elementary requirement of due process in any proceeding 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.” Id. Such notice “must afford a reasonable time for those interested to make their appearance.” Id.

Unquestionably, the husband received such notice. He was served with process, made an appearance and had an opportunity to present his objections. The husband appeared and actively participated in the proceeding prior to the entry of a decree of divorce and, thereafter, on appeal. Notice to him was dispensed with only after he absented himself from the jurisdiction of the court without providing the clerk with his new address as required by statute.

Due process does not require actual notice to a party of the date of a trial or hearing after he or she has been properly made a party to the proceeding. See Williamson v. Hopewell Redevelopment & Hous. Auth., 203 Va. 653, 655, 125 S.E.2d 849, 850-51 (1962), appeal dismissed, 371 U.S. 234 (1963). The legislature may prescribe “the kind of notice and the manner in which it shall be given if it is reasonable under all the circumstances and affords the party affected a reasonable opportunity to be heard.” Id.

In this case, the General Assembly prescribed the “kind of notice and the manner in which it . . . [should] be given.” Since he was a pro se litigant, the husband was required to file with the clerk of the court “a written statement of his place of residence and mailing address.” Code § 8.01-319(A).² He was further required to “inform the clerk in writing of any changes of residence and mailing address during the pendency of the action.” Id. The wife was entitled to rely on such statement and since the statement was not filed, the court was authorized to dispense with notice to the husband. See id.

Code § 8.01-319 imposes different, not “less,” notice requirements for a pro se litigant than one represented by counsel. A pro se litigant is required to advise the clerk of court of his address and any change in it. If a litigant is not pro se, but is represented by counsel, papers may be served on “an attorney authorized to practice law in this Commonwealth” who has entered a general appearance for the litigant. Code § 8.01-314. Both of these provisions serve to ensure that notice of the proceedings may be served on the litigants. The failure to provide an address sufficient to ensure such notice may prevent a case from proceeding in an orderly manner. See Byrum v. Lowe & Gordon, Ltd., 225 Va. 362, 363-64, 302 S.E.2d 46, 47 (1983). If a litigant wishes to be informed of the proceedings, he or she must either keep the court advised of where service may be accomplished or be represented by counsel upon whom service may be had. The husband’s failure to receive notice because he moved from his residence without notifying the clerk of his new address did not deprive him of due process of law. To hold otherwise would allow a litigant disappointed in the direction litigation might be taking to thwart the authority of the court by leaving the area without notifying the court of his or her new address.

Finally, in appealing the trial court’s refusal to set aside the judgment, the husband contends that the twenty-one day limitation contained in Rule 1:1 does not bar the trial court from setting aside a void judgment. He contends that this judgment was void because it violated his “due process right to notice.” As previously discussed, the judgment did not violate the husband’s right to due process; therefore, the trial court did not err in concluding that Rule 1:1 prevented it from setting aside the judgment.

For these reasons, the judgment of the trial court entering a monetary award and an award for attorney’s fees and its order denying the husband’s motion to set aside the judgment are affirmed.

Affirmed.

Keenan, J., concurred.

1 Notice was dispensed with pursuant to the provisions of Code § 8.01-319(A), and the appellant only contests the constitutionality of Code § 8.01-319(A). We, therefore, address only the constitutionality of this provision and do not address the applicability of Code § 8.01-319(B) discussed in the dissent.

2 Although the headline of Code § 8.01-319 reads “Publication of interim notice,” we believe that this section is not limited to only those cases initiated by publication. See Code § 1-13.9.