Solon Neil Xenias v. Betty Louise Xenias

• Court: Court of Appeals of Virginia
• Decided: November 7, 2000
• Docket: 1473002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Overton

SOLON NEIL XENIAS MEMORANDUM OPINION * v. Record No. 1473-00-2 PER CURIAM NOVEMBER 7, 2000 BETTY LOUISE XENIAS

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge

(George H. Edwards; George H. Edwards, J.D., P.C., on brief), for appellant.

(Gregory R. Waddell; Coates & Davenport, on brief), for appellee.

Solon Neil Xenias (husband) appeals the decision of the

circuit court denying his motion to file a late answer and

granting a bill for separate maintenance. On appeal, husband

contends that (1) the trial court abused its discretion by

refusing to allow the filing of a late answer; and (2) a bill

for separate maintenance cannot be granted without alleging

cruelty or desertion on the part of the defendant or without

alleging that the plaintiff is faultless in the separation of

the parties. Husband asks that the order for separate

maintenance be dismissed or that the case be remanded and he be

granted an extension of time to file responsive pleadings. Upon

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

On appeal, we view the evidence and all reasonable

inferences in the light most favorable to appellee as the party

prevailing below. See McGuire v. McGuire, 10 Va. App. 248, 250,

391 S.E.2d 344, 346 (1990).

Procedural Background

Betty Louise Xenias (wife) filed a bill of complaint in the

circuit court seeking an award of separate maintenance from

husband. Wife sought a court order to require husband to pay

the support amount agreed to in their property settlement

agreement. Neither husband nor his attorney appeared to defend

the case, and the trial judge entered judgment for wife.

Husband then filed a motion requesting leave to file a late

answer to wife's bill of complaint. The trial court denied the

motion in the final order entered on May 22, 2000.

I.

Husband contends that the trial court abused its discretion

by denying his motion to file late pleadings. Rule 1:9 of the

Rules of the Supreme Court of Virginia states that "[t]he time

allowed for filing pleadings may be extended by the court in its

discretion and such extension may be granted although the time

fixed has already expired." "[W]hether such discretion has been

properly exercised will, of course, depend on the circumstances

- 2 - of the particular case." Westfall v. Westfall, 196 Va. 97, 103,

82 S.E.2d 487, 490 (1954). Due to poor health, mounting medical

bills, and no income of her own, wife was in need of a quick

resolution to this case. Husband was already in arrears of his

contractual obligation to pay spousal support at the time this

action began. The court was free to conclude that husband's

attempt at late filing was simply a delaying tactic and posed an

undue burden on wife. In light of these circumstances, we

cannot say that the court abused its discretion in denying

husband's motion.

II.

Husband contends that an award of separate maintenance

requires a showing of fault on the part of the defendant. This

argument is without merit. Code § 20-109(C) states that in

suits for separate maintenance in which a contract has been

entered into the court shall only enter an order or decree that

follows the terms of the contract. The statute makes no

reference to the necessity of alleging fault in order to be

eligible for separate maintenance. Because the parties in this

case had a valid separation agreement in place, the court was

bound to follow its terms. This agreement called for husband to

make monthly payments to wife and to pay for her medical

insurance and medical expenses. The court did not err in

granting this relief.

- 3 - Accordingly, the decision of the circuit court is summarily

affirmed.

- 4 -