COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Retired Judge Hairston ∗
Argued at Salem, Virginia
DARRELL LEE WHITING
OPINION BY
v. Record No. 1037-99-3 JUDGE ROSEMARIE ANNUNZIATA
APRIL 11, 2000
CYNTHIA JAN FISHER WHITING
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge
Edward K. Stein for appellant.
Laura L. Dascher (Pasco & Dascher, P.C., on
brief), for appellee.
Darrell Lee Whiting ("husband") appeals from an order of
the Circuit Court of Alleghany County vacating a final decree of
divorce entered on January 18, 1985, and ruling that husband
owes Cynthia Jan Fisher Whiting ("wife") $18,100 pursuant to a
pendente lite order of spousal support and child support entered
on January 6, 1984. Husband contends on appeal that the 1985
decree was void because he received no notice of the hearing
prior to the entry of the decree and that, because the decree is
void, both the prior pendente lite order and the subsequent
∗
Retired Judge Samuel M. Hairston took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
court orders requiring him to pay spousal support are of no
effect. We affirm the trial court's decision.
BACKGROUND
On October 21, 1983, wife filed a Bill of Complaint in the
Circuit Court of Alleghany County seeking a divorce from
husband. On January 6, 1984, the circuit court entered a
pendente lite order requiring husband to pay child support to
wife. On June 15, 1984, the court further ordered husband to
pay wife $25 per week in spousal support. On November 21, 1984,
the court entered an order permitting husband's attorney to
withdraw from the case. On January 18, 1985, the circuit court
entered a final decree of divorce, ordering that all previous
orders issued in the case were to remain in effect and that wife
would have the right to petition the court for permanent alimony
and attorneys' fees. The decree failed to indicate whether
husband or substituted counsel for husband was present, and
nothing in the record established that husband received notice
of the entry of the decree. Husband alleges that he received no
such notice.
Husband failed to pay the support required by the pendente
lite order. He was found in contempt of the order on September
26, 1984, and on April 5, 1985, was ordered to appear before the
court to account for his failure to pay the arrearage. The
record does not reveal whether he made the required appearance.
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On June 21, 1985, however, the Department of Social Services
("DSS") moved the court to reinstate the case and transfer it to
the juvenile and domestic relations district court for
enforcement of the decree's support order. The circuit court
granted DSS's motion and specifically ordered that husband
continue to pay the support required under the pendente lite
order. Neither husband nor wife was given notice of this order.
Upon transferring the case to the juvenile and domestic
relations district court, the circuit court struck the case from
its docket. No further action was taken in the case. On June
24, 1992, the circuit court dismissed the case from its docket
pursuant to the "five-year rule" of Code § 8.01-335(B). 1
On November 20, 1997, wife filed a motion to reinstate the
cause before the circuit court and to transfer it to the
juvenile and domestic relations district court, having given
notice to husband on November 10, 1997. The circuit court
granted the motion and entered its decree on November 20, 1997.
The juvenile and domestic relations district court thereupon
determined that the pendente lite order of child and spousal
support had remained in effect since June 15, 1984 and that
husband owed spousal support arrears in the amount of $17,700
1
At the time the circuit court cleared its docket of
dormant cases pursuant to Code § 8.01-335(B), the five-year rule
was still in effect, although the statute was amended in 1992 to
shorten the period of pendency to three years.
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and child support arrears in the amount of $400. Upon appeal to
the circuit court, husband argued that he was under no
obligation to pay support, because the final decree of divorce
was void, it having been entered without notice to him. In the
alternative, he argued that he was not obligated to pay spousal
support because an award of temporary support does not survive
once a case is dismissed from the docket. The circuit court
disagreed and entered judgment in favor of wife.
On appeal, husband contends 1) that because he received no
notice of the entry of the final decree in January, 1985, the
decree was void, and its subsequent dismissal from the circuit
court docket terminated the pendente lite order entered in 1984;
2) that if the final divorce decree were deemed valid, its
language did not preserve the support obligation created by the
pendente lite order; and 3) that if the divorce decree were
deemed valid and it preserved the support required by the
pendente lite order, that obligation was subsequently terminated
by the circuit court's order dismissing the case from the
docket. For the reasons that follow, we affirm the trial
court's decision.
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ANALYSIS
The question of whether the final decree was void due to
husband's lack of notice is governed by Rule 1:13 2 of the Rules
of the Supreme Court of Virginia and by Westerberg v.
Westerberg, 9 Va. App. 248, 386 S.E.2d 115 (1989). "[A] decree
that fails to comply with Rule 1:13 is void." Francis v.
Francis, 30 Va. App. 584, 592, 518 S.E.2d 842, 846 (1999)
(citing Westerberg, 9 Va. App. at 250, 386 S.E.2d at 116). Rule
1:13 states that the notice to be sent to the opposite party in
a case must include "'the time and place of presenting such
drafts together with copies thereof.'" Westerberg, 9 Va. App.
at 250, 386 S.E.2d at 116. We held in Westerberg that "[a]
draft of an order or decree must be endorsed by counsel of
record unless . . . the endorsement is modified or dispensed
with by the court." Id. As in Westerberg, in this case the
final decree was not endorsed by counsel of record, and the
record does not indicate that the trial court modified or
2
The Rule 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 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.
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dispensed with the requirement. The decree was, therefore,
void, because husband received no notice of the final decree and
never endorsed it. A void decree is a nullity with no legal
effect. See Williams v. Dean, 175 Va. 435, 439, 9 S.E.2d 327,
329 (1940); Bray v. Landergren, 161 Va. 699, 172 S.E. 252
(1934). Consequently, the only effective support order under
which wife may claim support is the pendente lite order of 1984.
We find under our holdings in Taylor v. Taylor, 5 Va. App.
436, 364 S.E.2d 244 (1988), and Smith v. Smith, 4 Va. App. 148,
354 S.E.2d 816 (1987), that the pendente lite order remained in
effect from 1985 until 1992, when the suit was stricken from the
circuit court's docket under the five-year rule. In Taylor, we
held that Code § 20-103, which authorizes courts to award
support pendente lite, allows courts to order a spouse to make
support payments to the other spouse for "any time pending the
suit," a period of time which we said terminated upon "the final
adjudication of all of the issues properly raised in the
pleadings, which would usually result in dismissal of the case
from the pending docket." 5 Va. App. at 441, 364 S.E.2d at 247.
Because the final decree of divorce in this case was a nullity,
there was no final adjudication and the case remained pending at
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that time. 3 Consequently, according to our decision in Taylor,
husband's support obligation under the pendente lite award
continued unaffected by the decree.
Citing Smith, husband further contends that wife's right to
support terminated upon the dismissal of the divorce case from
the trial court docket in 1992. Smith addressed a suit for
divorce dismissed by the trial court under the "five-year rule"
of Code § 8.01-335(B). We held that a trial court's authority
to order spousal support in pendente lite orders under Code
§ 20-103 is limited to the period during which the action is
actually pending, regardless of language in such an order
stating that it would remain in effect "until further order of
the court." See 4 Va. App. at 151, 354 S.E.2d at 818. Although
under this principle of law, the wife's right to support would
terminate upon the dismissal of the divorce suit, see id.
(citing Wain v. Barnay, 219 Ill. App. 401, 405-06 (1920));
Heilbron v. Heilbron, 27 A. 967, 968 (Pa. 1893), we find that
husband is estopped under established principles of equity from
attacking the decree and the support obligation established by
it.
3
We note that transfer of the suit to the juvenile and
domestic relations district court after the entry of the final
decree did not divest the circuit court of its jurisdiction in
the case. See Code § 20-79(c).
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We have addressed the applicability of estoppel principles
in an instance when a marriage was challenged as defective. See
Kleinfield v. Veruki, 7 Va. App. 183, 189, 372 S.E.2d 407, 411
(1988) (acknowledging the validity of the principle in
determining whether the challenged marriage was void, but
finding that the facts failed to support its application in that
case). The matter before us thus presents an issue of first
impression in Virginia.
In assessing the applicability of estoppel principles when
a decree of divorce is collaterally attacked as void, we are
guided by the case law developed in our sister states. In the
context of divorce, it is widely accepted that one who accepts
the benefits of a divorce decree is estopped from attacking the
decree's validity. See 1 Homer H. Clark, The Law of Domestic
Relations in the United States § 13.3 (2d ed. 1987). The
circumstances under which courts have foreclosed attack on a
void decree are varied, but typically involve the conduct of the
parties, with the following three factors of particular
significance: "1) The attack on the divorce is inconsistent
with prior conduct of the attacking party. 2) The party
upholding the divorce has relied upon it, or has formed
expectations based upon it. 3) These relations or expectations
will be upset if the divorce is held invalid." Id. at 743-44.
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In the present case, husband remarried after the divorce.
"Remarriage after [a] defective decree, either by the person
attacking it, or by the other party, will usually raise an
estoppel. . . ." Id. at 736-37. Additionally, wife relied to
her detriment upon the void decree from 1985 until 1997.
Husband stood mute as she, with notice to him, attempted to
enforce the support provisions of the decree in the circuit
court and the juvenile and domestic relations district court.
An earlier challenge to the decree would have permitted timely
proceedings to effect the entry of a valid decree. In short,
husband's conduct after the entry of the invalid divorce decree
is inconsistent with the attack he now mounts. He will not now
be heard to challenge the validity of that decree and frustrate
wife's expectation of and right to receive the child and spousal
support award established by it.
The decision of the trial court is affirmed.
Affirmed.
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