VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Friday, the 8th day of June,
2001.
Darrell Lee Whiting, Appellant,
against Record No. 001133
Court of Appeals No. 1037-99-3
Cynthia Jan Fisher Whiting, Appellee.
Upon an appeal from a judgment rendered by the
Court of Appeals of Virginia on the 11th day of April,
2000.
Upon consideration of the record, briefs, and argument of
counsel, the Court is of opinion that there is error in the
judgment appealed from.
The proceedings and facts are undisputed and are fully set
forth in the Court of Appeals' opinion. Whiting v. Whiting, 32
Va. App. 192, 526 S.E.2d 806 (2000). There, the Court of
Appeals held, inter alia, that the final decree of divorce
entered by the Circuit Court of Alleghany County on January 18,
1985, was void ab initio "because husband received no notice of
the final decree and never endorsed it." Id. at 197, 526 S.E.2d
at 808; see Rule 1:13 (endorsement of draft decree by, or
reasonable notice of presentation thereof to, counsel of record
required unless dispensed with by court). The Court of Appeals
further ruled that a pendente lite decree entered by the circuit
court on June 15, 1984, directing the husband to pay spousal
support, remained in effect until the cause was ultimately
dismissed from the docket by a valid court decree. Id.
After the Court of Appeals' decision, this Court held that
a decree or order entered in violation of Rule 1:13 is merely
voidable, not void ab initio. Napert v. Napert, 261 Va. 45, 540
S.E.2d 882 (2001); Singh v. Mooney, 261 Va. 48, 541 S.E.2d 549
(2001). A voidable decree or order is not subject to collateral
attack and must be challenged within 21 days of its entry
pursuant to Rule 1:1, by a bill of review within the time
prescribed by Code § 8.01-623, or by an independent action
pursuant to Code § 8.01-428. Singh, 261 Va. at 51-52, 541
S.E.2d at 551.
In the present case, no such challenge was made; therefore,
this Court holds that the final decree of divorce entered
January 18, 1985, remained in full force and effect. This Court
further holds that the pendente lite decree awarding spousal
support only applied during the pendency of litigation and was
terminated when the cause was dismissed by the final decree of
divorce. See Code § 20-103; accord Smith v. Smith, 4 Va. App.
148, 151, 354 S.E.2d 816, 818 (1987). Thus, the husband was
obligated to pay spousal support only for the period between
June 15, 1984, and January 18, 1985.
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Accordingly, the judgment of the Court of Appeals is
reversed; the trial court's decree, entered April 8, 1999, is
vacated; and the trial court's decree, entered April 16, 1999,
is vacated to the extent that it is inconsistent with this
Court's holding herein. The case is remanded to the Court of
Appeals with direction that the case be remanded to the said
circuit court for a determination of the amount of spousal
support, if any, that is owing to the appellee.
This order shall be certified to the Court of Appeals and
to the Circuit Court of Alleghany County and shall be published
in the Virginia Reports.
A Copy,
Teste:
David B. Beach,
Clerk
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