COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
SHARON M. HICKSON
OPINION BY
v. Record No. 0154-00-4 JUDGE RICHARD S. BRAY
JANUARY 23, 2001
ROBERT D. HICKSON
FROM THE CIRCUIT COURT OF WARREN COUNTY
John E. Wetsel, Jr., Judge
Peter W. Buchbauer (James J. McGuire;
Lorena R. Smalls; Buchbauer & McGuire, P.C.,
on briefs), for appellant.
George W. Johnston, III (Robert D. Hickson,
pro se, on brief), for appellee.
Sharon M. Hickson (wife) filed a "Petition for Declaratory
Judgment" in the trial court, challenging an order vacating a
previously entered decree of divorce between wife and Robert D.
Hickson (husband). Wife alleged the court was without
jurisdiction to vacate the decree, resulting in an "actual
controversy as to the state of the parties' marital status," and
prayed the court to declare the decree "final and binding between
the parties." In response, husband moved to confirm the order and
revisit the divorce and related issues, including equitable
distribution.
Concluding that husband "ha[d] not had his . . . day in court
. . . because of some oversight or mistake on the part of the
court or of the attorney," the court, citing a general "power to
vacate" the decree, and additional authority to correct "[a]n
error of law . . . by bill of review," ruled "that the parties are
still married." Wife appeals, arguing Rule 1:1 divested the court
of jurisdiction to vacate the decree of divorce twenty-one days
after entry. 1 We agree and reverse the order.
I.
In the context of a bill of complaint for separate
maintenance, filed by wife May 13, 1993, husband, on December 29,
1998, lodged a "Conditional Motion for Divorce" with the court,
which motion was subject to certain specified terms. (Emphasis
added). Wife responded on January 9, 1999, and, without disputing
husband's "entitle[ment]" to pursue divorce, objected to the
proposed conditions. The court addressed husband's motion in an
ore tenus hearing on January 19, 1999, attended only by attorneys
representing each party, awarded husband a divorce, without
imposing the requested conditions, and directed his counsel to
prepare an appropriate decree. Dissatisfied with the result,
husband discharged his attorney immediately following the hearing.
However, no order was entered of record to relieve his counsel of
record, although both attorneys were aware of husband's action.
On February 3, 1999, wife's attorney notified the court and
husband's counsel of record that, pursuant to the January 19
1
The appeal is before us on a "Written Statement of Facts."
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hearing, a proposed decree of divorce would be presented to the
court for entry on February 16, 1999. Several days thereafter,
her counsel provided a draft of the decree to the court and
husband's counsel of record. Wife, her attorney, and husband's
counsel of record personally appeared before the court on the
appointed day, with husband present, at his request, by telephone.
At the inception of the hearing, the court granted the motion of
husband's counsel to withdraw, although she remained and
participated in the ensuing hearing. At the conclusion of the
proceedings, the court entered the decree previously circulated by
wife's attorney, subject to several insubstantial revisions then
disclosed to the parties and counsel,2 without endorsement of
either husband or his former counsel of record.
On March 23, 1999, husband first requested a copy of the
decree from the clerk of the trial court and, after receiving a
facsimile, moved the court, on March 29, 1999, to vacate the
decree, alleging that the provisions did not comport with his
conditional motion and the related proceedings. By order of April
20, 1999, the court granted husband's motion, "to the extent that
this [c]ourt has jurisdiction to vacate that final decree,"
finding that husband had not received "timely notice of the
2
Revisions to the draft decree noted husband's presence "in
person" at the hearing, corrected the birthdate of a child born
to the marriage and the date of separation, and denied wife
attorney's fees.
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earlier entry of the . . . decree" and "now wishes to withdraw"
his "conditional motion for divorce."
On September 30, 1999, wife filed the instant suit for
declaratory judgment, asserting that Rule 1:1 divested the court
of jurisdiction to vacate the decree twenty-one days after entry,
and seeking a determination that the divorce was "final and
binding." By order entered December 29, 1999, the court concluded
the decree had been "properly vacated . . . and that the parties
are still married," resulting in the instant appeal by wife.
II.
Rule 1:1 provides in pertinent part that "[a]ll final
judgments, orders, and decrees, irrespective of terms of court,
shall remain under the control of the trial court and subject to
be modified, vacated, or suspended for twenty-one days after the
date of entry, and no longer." Thus, "'[a]t the expiration of
that 21-day period, the trial court loses jurisdiction to disturb
a final judgment, order, or decree . . . .'" Bogart v. Bogart, 21
Va. App. 280, 290, 464 S.E.2d 157, 161-62 (1995) (quoting School
Board of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550,
554, 379 S.E.2d 319, 321 (1989)). However, the finality imposed
by the rule is not without exceptions, several of which are relied
upon by husband in support of the disputed order.
Rule 1:13 directs that
[d]rafts of orders and decrees shall be
endorsed by counsel of record, or reasonable
notice of the time and place of presenting
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such drafts together with copies thereof
shall be served by delivering, dispatching
by commercial delivery service, transmitting
by facsimile or mailing to all counsel of
record who have not endorsed them.
Compliance with this rule and with Rule 1:12
may be modified or dispensed with by the
court in its discretion.
"This rule is designed to protect parties without notice," Davis
v. Mullins, 251 Va. 141, 147, 466 S.E.2d 90, 93 (1996), and,
notwithstanding Rule 1:1, "failure to comply . . . renders an
order voidable." Singh v. Mooney, ___ Va. ___, ___, ___ S.E.2d
___, ___ (2001); see Francis v. Francis, 30 Va. App. 584, 518
S.E.2d 842 (1999).
Relying upon Rule 1:13, husband maintains that the divorce
decree, arising from improper notice to his former counsel and
lacking endorsement, was invalid and vulnerable to attack, a
contention not novel to this Court. In resolving an appeal on
similar facts in Francis, we concluded, "[o]nce an attorney has
appeared as the counsel of record, service on the counsel is
proper until the court enters a withdrawal order." Id. at 589,
518 S.E.2d at 845; see Code § 8.01-314 ("any process, order, or
other legal papers . . . may be served on . . . attorney of
record"); see also Rule 1:5 ("[c]ounsel of record shall not
withdraw from a case except by leave of court"). Such service,
"during the midst of ongoing litigation is notice reasonably
calculated to apprise interested parties of the course of the
proceedings." Francis, 30 Va. App. at 590, 518 S.E.2d at 846.
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Thus, "[u]ntil [husband's] counsel had effectively withdrawn,
. . . service upon [her] was proper" and in compliance with Rule
1:13, despite the absence of endorsement and actual notice to
both the court and opposing counsel that husband "was no longer
represented by counsel of record." Id. at 591-92, 518 S.E.2d at
846.
Husband next contends that the court was authorized to
vacate the decree pursuant to Code § 8.01-428, which permits
correction, "at any time," of "[c]lerical mistakes in all
judgments or other parts of the record and errors therein
arising from oversight or . . . inadvertent omission." Code
§ 8.01-428(B). He asserts that the clerk's failure to provide
"any notice of the entry of the order" departed from "customary
practice" and constituted an "inadvertent omission" that
"deprived [him] of any notice of the entry of the order."
However, husband's argument is belied by a record that reflects
proper notice of the proposed decree and entry, his personal
presence, albeit telephonically, at the related hearing and
awareness of the attendant revisions. Such circumstances
clearly do not establish clerical deficiencies in the decree
either supportive of husband's argument or contemplated by Code
§ 8.01-428(B). See, e.g., School Board of Lynchburg, 237 Va. at
554-55, 379 S.E.2d at 321 (statute codifies inherent authority
of court to "correct the record to . . . 'speak the truth'").
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Finally, husband relies upon reference by the trial court
in the subject order to a "bill of review" as authority to
vacate the divorce decree. Pursuant to Code § 8.01-623, a bill
of review is an extraordinary injunctive remedy to redress
"'errors of law apparent on the face of the record,'" predicated
upon a pleading that "identifies, with the requisite degree of
accuracy and definiteness, [such] errors." Blunt v. Lentz, 241
Va. 547, 550, 404 S.E.2d 62, 64 (1991) (citation omitted). A
"procedural device," "limited in scope," the relief is "rarely
used" and "discouraged." Id. at 550, 404 S.E.2d at 63-64.
Here, the record discloses neither the pleadings requisite to a
bill of review nor circumstances in justification of the remedy.
Accordingly, the trial court was without jurisdiction to
vacate the decree of divorce, and we reverse the instant
declaratory judgment order to the contrary.
Reversed and final judgment.
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