Present: All the Justices
GERALD PAUL NAPERT
v. Record No. 000562 OPINION BY JUSTICE ELIZABETH B. LACY
January 12, 2001
THERESA MARIE NAPERT
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we review a determination made on a bill
of review that a decree of a trial court was entered in
violation of Rule 1:13.
In December 1997, Gerald Paul Napert (husband) filed a
proceeding seeking a divorce a vinculo matrimonii from Theresa
Marie Napert (wife). The wife filed a response, pro se,
denying certain allegations of the bill of complaint. On
October 9, 1998, the husband mailed a copy of a "Motion to
Establish Permanent Child Support and For Entry of Final
Decree of Divorce" to the wife. The motion designated the
date and time he would seek entry of the decree. A hearing
was held on November 13, 1998, but the wife did not appear. A
decree of divorce was subsequently entered on November 16,
1998. The decree was silent as to child support.
The wife filed a bill of review pursuant to Code § 8.01-
623, asserting that the divorce decree was void because it was
entered in violation of Rule 1:13. The Circuit Court of
Fairfax County agreed, holding that the decree did not comply
with either the endorsement or notice requirements of Rule
1:13 and that there was no indication on the decree that the
trial court dispensed with those requirements. The trial
court granted the relief sought in the bill of review, vacated
the November 16, 1998 divorce decree declaring it void, and
denied the husband's motion for reconsideration. The Court of
Appeals affirmed the judgment of the trial court in an
unpublished memorandum opinion (Napert v. Napert, Record No.
1173-99-4, February 8, 2000), holding that because the
November 16, 1998 decree contained neither the endorsement of
the wife or her counsel nor a dispensation of the endorsement
by the court, the decree was "facially erroneous and void."
We granted the husband an appeal.
In his first assignment of error, the husband asserts
that the Court of Appeals erred in construing and applying
Rule 1:13. Rule 1:13 states:
Drafts of orders and decrees shall be endorsed
by counsel of record, or reasonable notice of
the time and place of presenting such drafts
together with copies thereof shall be served
. . . to all counsel of record who have not
endorsed them. Compliance with this rule . . .
may be modified or dispensed with by the court
in its discretion.
The Court of Appeals held that the trial court did not
dispense with the Rule's requirements because the decree did
not specifically recite such dispensation. The husband
2
asserts that this holding is in conflict with previous
decisions of this Court. We agree with the husband.
This Court has never held that, in order to modify or
dispense with the requirements of Rule 1:13, a court must
affirmatively state in its order that it is exercising its
discretion to take such action. For example, in Smith v.
Stanaway, 242 Va. 286, 410 S.E.2d 610 (1991), the trial court
entered an order without endorsement of or notice to counsel
and the order did not include any statement that the court had
dispensed with such requirements as allowed by Rule 1:13.
Nevertheless, this Court evaluated the validity of the order
by considering whether the trial court abused its discretion
in dispensing with the requirements of the Rule. Id. at 288-
89, 410 S.E.2d at 612. The concurrence in Smith specifically
contended that the trial court should be required to recite
its reasons for exercising its discretion to dispense with
Rule 1:13, a requirement implicitly rejected by the majority.
Id. at 290-91, 410 S.E.2d at 613; see also Rosillo v. Winters,
235 Va. 268, 272-73, 367 S.E.2d 717, 719 (1988).
Although a better practice would be for a trial court to
include a statement reflecting its decision to exercise its
discretion, in the absence of such a statement, we presume
that a trial court exercised its discretion to dispense with
the Rule's requirements. Courts are presumed to act in
3
accordance with the law and orders of the court are entitled
to a presumption of regularity. Beck v. Semones' Adm'r, 145
Va. 429, 442, 134 S.E. 677, 681 (1926).
Likewise in this case, the divorce decree is entitled to
a presumption that the trial court dispensed with the Rule's
requirements. Accordingly, we hold that the Court of Appeals
erred in approving the trial court's decision that the
November 16, 1998 divorce decree was entered in violation of
Rule 1:13.
For these reasons, we will reverse the judgment of the
Court of Appeals and dismiss the bill of review.
Reversed and dismissed.
4