COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Retired Judge Whitehurst *
Argued at Norfolk, Virginia
CLAUDIA S. DIAMOND
v. Record No. 1300-94-1 OPINION BY
JUDGE RICHARD S. BRAY
ROY L. DIAMOND JUNE 13, 1995
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Nelson T. Overton, Judge
Terry N. Grinnalds for appellant.
LeeAnn N. Barnes (Isabel H. AtLee; Hall, Fox,
AtLee & Robinson, P.C., on brief), for
appellee.
Claudia S. Diamond (wife) and Roy L. Diamond (husband) were
divorced by final decree of the trial court. Wife complains on
appeal that the court erroneously entered the decree without
requisite notice to her. We disagree and affirm the judgment of
the trial court.
The procedural history is uncontroverted. Wife was
personally served with husband's bill of complaint on March 2,
1994, but filed no responsive pleadings. She subsequently
received notice of the taking of depositions before a
commissioner in chancery and appeared at the related hearing, on
May 24, 1994, without counsel. At the conclusion of husband's
evidence, wife initially declined the commissioner's invitation
to offer evidence or argument and orally requested a continuance
to retain counsel. After this motion was overruled by the
*
Retired Judge Alfred W. Whitehurst took part in
consideration of this case by designation pursuant to Code
§ 17-116.01.
commissioner, 1 wife challenged, again orally, husband's evidence
pertaining to the period of separation and demanded "half of
[his] retirement" and "$500 for alimony." At the conclusion of
the hearing, wife expressly waived her signature to the
depositions.
The commissioner subsequently prepared and filed with the
trial court a written report, which reflected both factual
findings and attendant recommendations, and mailed wife a notice
of this action, together with copies of the report and supporting
depositions. Wife took no exception to the contents of the
report, and the trial court entered the final decree in
accordance with it on June 13, 1994. Wife admitted receipt of a
copy of the decree, mailed to her by husband's counsel at the
direction of the trial court.
Wife now seeks to void the decree for noncompliance with
Rule 1:13. In pertinent part, Rule 1:13 prescribes that
[d]rafts 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 or mailing 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.
Id.; see Rosillo v. Winters, 235 Va. 268, 272-73, 367 S.E.2d 717,
719 (1988). "A decree that fails to comply with Rule 1:13 is
void." Westerberg v. Westerberg, 9 Va. App. 248, 250, 386 S.E.2d
1
The commissioner determined that wife had "ample notice" of
the proceedings and further delay was unjustified. Wife does not
dispute this ruling on appeal.
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115, 116 (1989).
Wife acknowledges that status as "counsel of record" as
contemplated by Rule 1:13 is dispositive of her appeal. Id. Rule
1:5 defines "counsel of record" as "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." Id. The
record clearly discloses that wife neither "signed a pleading" nor
"notified the other part[y] and the clerk in writing that [s]he
appear[ed] in the case" at any time during the disputed
proceedings. Id. Wife's contention that her mere presence and
comments at the depositions were tantamount to written notice of
appearance in the case is without support in the Rules.
Accordingly, the provisions of Rule 1:13 were inapplicable to
wife and the decree suffers no procedural infirmity.
Affirmed.
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