COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
DAHLIA FRANCIS
OPINION BY
v. Record No. 2433-98-2 JUDGE MARVIN F. COLE
SEPTEMBER 14, 1999
DEREK FRANCIS
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Tim Schulte (Thomas H. Roberts; Thomas H.
Roberts & Associates, P.C., on briefs), for
appellant.
Stephen C. Williams (Phoebe P. Hall; Julie M.
Cillo; Hall and Hall, on brief), for
appellee.
Dahlia Francis (wife) appeals from a final decree of divorce
granted to Derek Francis (husband) in the Chesterfield County
Circuit Court on September 18, 1998. She contends the court (1)
deprived her of due process by entering the final decree upon
notice of presentation of the decree upon her former attorney of
record, Paul C. Bland, when both the court and opposing counsel
knew that she had terminated the attorney-client relationship with
her counsel of record six months prior to entry of the decree; (2)
violated Rule 1:13 by entry of its final decree without providing
her any notice, absent endorsement of the decree by her, and erred
by finding that she and her counsel had waived endorsement of the
final decree pursuant to Rule 1:13 when there was no endorsement
of the decree; (3) erroneously dismissed her claim for spousal
support without reservation of her right to spousal support and
without consideration of the factors set forth in Code § 20-107.1;
(4) erroneously dismissed her claim for spousal support for her
failure to respond to discovery; and (5) erroneously dismissed her
claims for spousal support and child support. We find no
reversible error and affirm.
Facts
On August 26, 1997, wife filed her bill of complaint in the
Chesterfield Circuit Court. Paul C. Bland signed the pleading as
her counsel. A set of interrogatories was served with the
complaint upon husband, requiring that he furnish information
requested within twenty-one days.
On September 3, 1997, an agreed order to preserve marital
assets was entered by the court. The order was endorsed by
Paul C. Bland, wife's counsel of record, and by Phoebe P. Hall,
counsel of record for husband. Husband's answer and cross-bill
were filed by his counsel of record in the clerk's office on
September 18, 1997. Counsel obtained service of the answer and
cross-bill upon wife by mailing a copy to Paul C. Bland, wife's
counsel of record. A hearing was held before the court on
November 7, 1997, resulting in the entry of a pendente lite order
on December 11, 1997. The order was endorsed by counsel of record
for both parties.
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On July 7, 1998, wife wrote to the trial judge, informing him
that she had terminated the employment of Paul C. Bland on March
5, 1998, because he had failed to adequately represent her and her
children in the divorce proceeding and had left her no other
choice but to seek a new attorney. Wife enclosed a copy of her
dismissal letter to Bland dated March 5, 1998. The letter to the
judge was stamped received in the Chesterfield Circuit Court
Judges Chambers on July 7, 1998.
The copy of the letter dated March 5, 1998, addressed to
Bland, stated, "I will no longer be using your services. I have
been dissatisfied with your representation in and out of the
court. You have failed to keep me informed and have repeatedly
failed to return my calls." No action was taken by the court in
response to these letters. The record does not indicate that wife
sent copies of these letters to husband's counsel. During the
following months, Bland filed no motion to withdraw as counsel of
record.
On July 22, 1998, husband filed a notice to take depositions
of himself and others on August 5, 1998, at 9:00 a.m. Husband's
counsel certified that on July 21, 1998, a true copy of the notice
to take depositions was mailed to Paul C. Bland.
On July 22, 1998, husband also filed a notice that on
September 18, 1998, at 8:45 a.m., he would appear before a judge
of the Chesterfield Circuit Court for a hearing on a motion to
show cause, a motion for a pretrial conference, a motion to compel
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and other relief. Husband's counsel also certified that a true
copy of this notice was mailed to Paul C. Bland.
On August 11, 1998, husband filed in the circuit court a
notice of presentation of final decree, stating that he would
appear before a judge of the court on September 18, 1998, at
8:45 a.m., and request entry of the final decree. A copy of the
final decree was attached to the notice. Husband's counsel
certified that a true copy of the notice of presentation of final
decree was mailed on August 7, 1998, to Paul C. Bland.
Neither wife nor her counsel of record, Paul C. Bland,
appeared for the taking of the depositions on August 5, 1998, or
for the hearing and presentation of the final decree on September
18, 1998. However, Bland wrote a letter to the trial court dated
September 15, 1998, received September 16, 1998, indicating that
wife had terminated his services in May. He related that he had
indicated to her that she should retain new counsel due to the
gravity of the situation. He also advised the court that during
the last three months he had been under "strain because of
sickness, hospitalization, and death in my immediate family, which
caused me not to communicate with the court sooner." Bland
forwarded a motion for withdrawal of counsel and an accompanying
order with the letter. A copy was mailed to husband's counsel of
record, but was only endorsed by Bland. The order was not entered
by the court.
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On September 18, 1998, husband and his counsel of record
appeared and tendered to the court the final decree. The final
decree was endorsed by husband's counsel of record but not by
wife's counsel of record. It was entered by the trial judge as
presented except that he added that "endorsement of counsel and
plaintiff waived pursuant to Rule 1:13." In the decree the court
found that wife failed to comply with the visitation set out in
the pendente lite order. It found that wife failed to respond to
interrogatories and requests for production of documents, failed
to appear at the taking of husband's depositions, failed to submit
on her behalf depositions, and failed to provide evidence
sufficient for an award of spousal or child support. No motion
for reconsideration was filed with the trial court.
On October 19, 1998, wife, represented by new counsel, filed
a notice of appeal from the final decree. The trial court entered
a written statement of facts on December 9, 1998, which contained
findings and an index to the trial court file. Transcripts of the
hearings on September 18, 1998 and December 2, 1998 and two
deposition transcripts were not made part of the record on appeal
because they were not timely filed with the clerk of the trial
court. See Rule 5A:8(a).
Due Process
Wife contends she was denied due process. We find wife's
contention to be without merit. The record demonstrates that
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husband's counsel properly served notice to wife's counsel of
record of all proceedings. As defined in Rule 1:5,
"[c]ounsel of record" includes a counsel or
party who has signed a pleading in the case
or who has notified the other parties and
the clerk in writing that he appears in the
case. Counsel of record shall not withdraw
from a case except by leave of court after
notice to the client of the time and place
of a motion for leave to withdraw.
Once an attorney has appeared as the counsel of record,
service on the counsel is proper until the court enters a
withdrawal order. In Department of Corrections v. Crowley, 227
Va. 254, 264, 316 S.E.2d 439, 444 (1984), appointed counsel
argued that the notice his client received was inadequate
because counsel was appointed only for the trial and the
prohibition proceeding, not for the subsequent proceeding on a
motion to vacate. The Virginia Supreme Court rejected that
contention, noting that because counsel never withdrew "'by
leave of court after notice to the client', Rule 1:5, he
remained counsel of record throughout every stage of the
proceeding . . . ." Id. at 264, 316 S.E.2d at 444.
The record before us demonstrates that Bland filed the bill
of complaint, continued as wife's counsel of record throughout
the entire proceedings, and only served a motion to withdraw as
counsel more than thirty days after husband's counsel sent a
notice of presentation of final decree. Wife's counsel of
record received notice of the taking of depositions, of the
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hearings, and of the presentation of the final decree. The fact
that counsel had notice is further demonstrated by the fact that
counsel sought to withdraw by letter dated only three days prior
to the scheduled hearing for the presentation of the final
decree. 1
An elementary requirement of due process in
any proceeding is "notice reasonably
calculated, under all the circumstances, to
apprise interested parties of the pendency
of the action and afford them an opportunity
to present their objections." Such notice
"must afford a reasonable time for those
interested to make their appearance."
Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d 914, 916
(1991) (quoting Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950)). Service upon counsel of record during
the midst of ongoing litigation is notice reasonably calculated
to apprise interested parties of the course of the proceedings.
Although the wife terminated her contractual relationship
with Bland, neither she nor Bland took the steps necessary to
substitute in Bland's stead a new "counsel of record." See Rule
1:5. In satisfying her obligation to the court and the opposing
1
Bland failed to promptly file a motion to withdraw as
counsel of record pursuant to his client's directive. Counsel's
performance is not an issue before us, but nothing in the
opinion is intended to suggest that his conduct is condoned.
Reference is made to the Virginia Code of Professional
Responsibility Disciplinary Rule 2-108(A)(3) and especially (D)
("a lawyer shall take reasonable steps for the continued
protection of the client's interests, including . . . delivering
all papers and property to which the client is entitled . . .").
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party, wife could not merely announce she was no longer
represented by her counsel of record. Her letter did not
indicate that she would act as her own counsel. See Rule 1:5.
Indeed, the letter states she will "seek a new attorney." Even
pro se litigants must comply with the rules of court. See
Diamond v. Diamond, 20 Va. App. 481, 458 S.E.2d 303 (1995)
(holding that Rule 1:5 requires notice that the party "appears
in the case" as counsel). "[T]he 'right of self-representation
is not a license' to fail 'to comply with the relevant rules of
procedural and substantive law.'" Townes v. Commonwealth, 234
Va. 307, 319, 362 S.E.2d 650, 656-57 (1987), cert. denied, 485
U.S. 971 (1988). At no time prior to the entry of the final
decree did wife's counsel of record effectively withdraw. Until
counsel had effectively withdrawn, pursuant to the provisions of
Rule 1:5, service upon him was proper. Code § 8.01-314
provides, in pertinent part:
When an attorney authorized to practice law
in this Commonwealth has entered a general
appearance for any party, any process, order
or other legal papers to be used in the
proceeding may be served on such attorney of
record. Such service shall have the same
effect as if service had been made upon such
party personally . . . .
Therefore, wife's contention that she was denied due process is
without merit.
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Void Decree
Relying upon the grounds previously asserted, wife contends
the final decree was void. This contention also fails.
Initially, we note that wife's counsel failed to file a motion
for reconsideration or otherwise raise this issue before the
trial court. By failing to take timely action before the trial
court, wife failed to preserve the issue and failed to build a
record adequate for consideration of her issues on appeal. See
generally Code § 8.01-428.
Wife argues that the final decree is void because it was
not endorsed by her counsel of record. Rule 1:13 provides:
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.
We have held that a decree that fails to comply with Rule 1:13
is void. See Westerberg v. Westerberg, 9 Va. App. 248, 250, 386
S.E.2d 115, 116 (1989). However, in this case the requirement
of notice was complied with, and the notice included "'the time
and place of presenting such drafts together with copies
thereof.'" Id. The final decree complied with Rule 1:13, and
the trial court did not err in waiving endorsement of wife's
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counsel of record and entering the decree. See Diamond, 20 Va.
App. at 484, 458 S.E.2d at 305. The decree was not void.
Remaining Issues
Wife raises additional issues which she acknowledges were
not presented to the trial court or preserved for appeal. Rule
5A:18 provides that "[n]o ruling of the trial court . . . will
be considered as a basis for reversal unless the objection was
stated with the grounds therefor at the time of the ruling,
except for good cause shown or to enable the Court of Appeals to
attain the ends of justice." "The purpose of Rule 5A:18 is to
allow the trial court to correct in the trial court any error
that is called to its attention." Lee v. Lee, 12 Va. App. 512,
514, 404 S.E.2d 736, 737 (1991) (en banc). "The Court of
Appeals will not consider an argument on appeal which was not
presented to the trial court." Ohree v. Commonwealth, 26 Va.
App. 299, 308, 494 S.E.2d 484, 488 (1998).
Accordingly, Rule 5A:18 bars our consideration of these
questions on appeal. The record does not demonstrate good cause
for wife's failure to preserve these issues, nor "affirmatively
sho[w] that a miscarriage of justice has occurred, not . . .
merely . . . that a miscarriage might have occurred" so as to
warrant application of the "ends of justice" provision. Mounce
v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744
(1987). Therefore, the record does not reflect any reason to
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invoke the good cause or ends of justice exceptions to Rule
5A:18.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.
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