COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia
CAROL H. LEE, SR.
MEMORANDUM OPINION * BY
v. Record No. 2195-01-2 JUDGE WILLIAM H. HODGES
AUGUST 20, 2002
MARY Y. LEE
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John Richard Alderman, Judge
Thomas W. Blue for appellant.
William S. Francis, Jr., for appellee.
Carol H. Lee (husband) appeals a final decree of divorce
entered on July 26, 2001. He contends that the decree is void
because the trial court lacked personal jurisdiction over him,
that the trial court erred in finding him guilty of adultery, and
that it erred in its distribution of the marital property and in
its award of spousal support. We hold that the trial court
properly obtained personal jurisdiction over husband, but that the
evidence was insufficient to prove adultery. Accordingly, we
reverse the judgment of the trial court and remand for
redetermination of the grounds for divorce, equitable
distribution, and spousal support.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
On November 28, 2000, Mary Lee (wife) filed a bill of
complaint for divorce, requesting that service of process be
made on husband at his place of employment. Not finding husband
there, the deputy sheriff served process on Murray Trelford, the
safety director of husband's place of employment.
On January 24, 2001, wife filed notice that "depositions of
the [wife] and witnesses will be taken" on February 12, 2001.
On February 26, 2001, she filed another notice that depositions
of wife and witnesses would be taken on March 15, 2001. The
husband was personally served with the latter notice on March 8,
2001.
On March 16, 2001, wife filed a document entitled
"STATEMENT IN LIEU OF MARCH 15, 2001 DEPOSITIONS," signed by
wife's attorney, William S. Francis, Jr., reciting that "notice
of depositions were [sic] properly served on the [husband] and
[husband] is here." The statement further recited that the
parties had "off-the-record preliminarily discussed some of the
matters surrounding this case," during which it became "obvious
to [wife's attorney] that [husband] intends to exercise the
rights that he has in contesting this divorce." The statement
recited that because husband had never answered the bill of
complaint, wife's attorney believed husband would not contest
the divorce or appear at the March 15, 2001 deposition hearing
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and, therefore, had not secured the presence of a court
reporter. When husband appeared, wife's attorney continued the
hearing until April 4, 2001, so a reporter could be obtained,
and sent notice thereof to husband by first class mail. Neither
husband nor an attorney on his behalf appeared at the April 4,
2001 rescheduled deposition hearing.
On June 5, 2001, wife filed a transcript of the April 4,
2001 hearing, at which wife and four additional witnesses
testified and wife submitted several exhibits.
On June 29, 2001, wife filed in the trial court a document
listing the parties' real and personal property and their
incomes so the trial court could equitably distribute that
property pursuant to Code § 20-107.3.
Despite notice posted at his usual place of abode, husband
did not appear at the July 26, 2001 ore tenus hearing at which
the trial court entered the final decree. The record contains
no transcript of or evidence from that hearing.
In the July 26, 2001 divorce decree, the trial court
awarded wife a divorce on the ground of adultery. It
classified, valued, and distributed the parties' property "after
considering the factors set forth in [Code] § 20-107.3(E) and
the evidence presented concerning each factor, and especially
the evidence of the [husband's] acts of adultery which destroyed
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the marriage," (emphasis added), and awarded wife spousal
support.
On August 9, 2001, husband's attorney filed a "Motion to
Vacate and Grant Leave for Late Pleadings." Husband asserted he
had not received notice of the July 26, 2001 hearing. He
further asserted that his misunderstanding regarding certain
actions taken by wife and his lack of education had rendered him
unable to appreciate the consequences of "failing to respond."
He argued that "the evidence offered by" wife had failed to
address all "issues set out in" Code § 20-94. Specifically, he
asserted that "the evidence does not deny that the alleged
adulterous behavior was committed by the procurement or
connivance of [wife]." Conceding that wife denied having any
sexual relations with him after the adulterous behavior, he
alleged that the parties continued to "cohabit in their
customary family fashion." He argued that "no direct evidence"
linked him "to any specific instance of adultery" and that there
was no "corroboration for the hearsay and circumstantial
evidence of adultery."
Husband also asserted that the trial court's rulings on
equitable distribution and spousal support were "greatly
inequitable." He denied "that he is guilty of the adulterous
behavior," and, "if permitted," promised to "introduce evidence
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directly from the allegedly involved persons that there was no
adulterous behavior committed by [him]."
On August 15, 2001, the trial court conducted a hearing on
husband's motions. Husband's attorney contested the finding of
adultery and represented that Mr. and Mrs. McBee, she being the
woman with whom husband allegedly committed adultery, were
present and "they will testify that's not so." He also
suggested the possibility of connivance and/or condonation
because "there was cohabitation after the adultery," precluding
a finding of adultery. The trial court asked husband's counsel
what errors the final decree contained. Counsel replied,
"deficiency in evidence as to the quality of the evidence as to
the equitable distribution and spousal support and also, . . .
the evidence of the adultery itself is poor."
Husband testified that he lived at the address at which the
notice of the July 26, 2001 hearing was posted. However, he
averred that he was not aware of the hearing until 4:00 p.m. on
that day, after conclusion of the 8:30 a.m. hearing. He never
argued that the trial court lacked jurisdiction because he was
never personally served with the bill of complaint.
The trial court found that husband "neglected this thing."
It also "assume[d] for purposes of th[e August 15] hearing" that
husband's witness, Mrs. McBee, would testify that no adultery
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took place. Nevertheless, the trial court denied husband's
motion.
A. PERSONAL JURISDICTION
Husband contends the final decree of divorce should be
vacated for lack of personal jurisdiction, because service of
the bill of complaint was defective and, thus, incapable of
establishing in personam jurisdiction over him.
Wife argues that husband subjected himself to the court's
jurisdiction by appearing twice in connection with the suit.
1. Raising Lack of Personal Jurisdiction
for First Time on Appeal
"A court acquires no jurisdiction over the person of a
defendant until process is served in the manner provided by
statute, and a judgment entered by a court which lacks
[personal] jurisdiction over a defendant is void as against that
defendant." Slaughter v. Commonwealth, 222 Va. 787, 791, 284
S.E.2d 824, 826 (1981) (citations omitted). Husband can raise a
lack of personal jurisdiction for the first time in this Court.
See Wackwitz v. Roy, 244 Va. 60, 63, 418 S.E.2d 861, 863 (1992).
2. Personal Jurisdiction and Waiver
Code § 20-99 provides that process in a suit for divorce
may be served in any manner authorized by Code § 8.01-296. That
code section provides in pertinent part:
In any action at law or in equity or any
other civil proceeding in any court,
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process, for which no particular mode of
service is prescribed, may be served upon
natural persons as follows:
1. By delivering a copy thereof in writing
to the party in person; or
2. By substituted service in the following
manner:
a. If the party to be served is not found
at his usual place of abode, by delivering a
copy of such process and giving information
of its purport to any person found there,
who is a member of his family, other than a
temporary sojourner or guest, and who is of
the age of sixteen years or older; or
b. If such service cannot be effected under
subdivision 2 a, then by posting a copy of
such process at the front door or at such
other door as appears to be the main
entrance of such place of abode.
Code § 8.01-296.
Service upon husband's supervisor is not one of the
prescribed methods for serving the bill of complaint.
Accordingly, the service was invalid and was insufficient to
subject husband to the trial court's jurisdiction.
However,
[I]f a writ issues irregularly or the
service thereof is imperfect a party may
appear specially and plead in abatement, but
where he does neither and appears generally,
then whatever may have been the defect in
the process or the service is waived, for
general appearance constitutes waiver of
such defect.
Scott v. Scott, 142 Va. 31, 35-36, 128 S.E. 599, 600 (1925).
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"Broadly stated, any action on the part of defendant,
except to object to the jurisdiction over his person which
recognizes the case as in court, will constitute a general
appearance." 6 C.J.S. Appearances § 19 (1975).
While there is some authority questioning
the ability to make a special appearance
after entry of judgment, a motion to vacate
a judgment or order, based on the sole
ground of want of jurisdiction of the
person, does not constitute a general
appearance, even though defendant's counsel
unsuccessfully attempts to elicit evidence
with respect to the circumstances under
which the judgment was entered.
A general appearance is entered, however, if
a motion to vacate a judgment or order is
based on other than jurisdictional grounds,
either wholly, or in connection with an
objection to the jurisdiction, or if in
addition to the request to vacate the
judgment defendant asks for other relief
. . . .
Id. at § 26.
"A party appearing in a proceeding to set aside a judgment
previously rendered, without objecting to the jurisdiction of
the court to set aside the judgment, thereby waives the question
of jurisdiction." Id. at § 48.
Rule 1:1 permits the trial court to retain jurisdiction of
a proceeding until twenty-one days from the date of entry of its
final order. By moving the trial court to vacate its decree
while it retained jurisdiction to modify, vacate or suspend its
judgment and by arguing the merits of the case without raising
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the issue of personal jurisdiction, husband made a general
appearance. He thus waived service of process and submitted
himself to the trial court's jurisdiction. See Minton v. First
Nat'l Exch. Bank, 206 Va. 589, 595, 145 S.E.2d 139, 143 (1965).
B. ADULTERY
Husband contends the evidence was insufficient to prove
adultery. We agree. Therefore, we need not address condonation
or the absence of connivance.
1. Evidence of Adultery
The evidence consisted of a transcript of the April 4, 2001
deposition hearing, documentary evidence presented by wife
during that hearing, and the document prepared by wife's
attorney listing the parties' assets and incomes. Husband
submitted no evidence.
At the April 4, 2001 deposition hearing, wife averred that
after July 2000, she hired a private detective, who videotaped
husband spending the night at the residence of Mr. and Mrs.
Richard McBee. Wife testified that she received from the
private detective a written summary of everything he saw. She
failed to provide the date of the videotaped conduct. No
videotape or summary was submitted into evidence, and the
unnamed private investigator did not testify.
Wife testified that she received a telephone call from an
unidentified woman, who said "I've been screwing your husband
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for thirty years." The caller indicated that she was
African-American and that she was pregnant. Wife recognized the
voice as belonging to a person who had previously called
approximately fifty times to speak to husband. A short time
later, the same woman called back and said the first call was a
mistake. Wife did not indicate the dates on which she received
the phone calls.
The following exchange took place between wife and her
attorney:
Q: To your knowledge has your husband also
been involved with a gentleman that you
believe is this lady's husband?
A: Yes.
Q: What's his name?
A: Mr. McBee.
Q: Do you know his full name?
A: Richard McBee.
Q: Was Mr. McBee present in the video
recording that the detective took?
A: Yes.
Q: Has Mr. McBee called and made demands on
your husband numerous times over the years?
A: Yes.
Q: Has your husband also responded, meaning
that he immediately would leave and do
whatever it was that Mr. McBee asked him to
do?
A: Yes.
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Q: Has there been an exchange of money from
Mr. McBee to your husband over the years?
A: Yes, sir.
Q: Has that increased from the summer of
2000 forward?
A: Yes.
Q: Do you know what any demands by Mr.
McBee were for?
A: No.
Q: Did your husband, to your knowledge,
make any money payments to Mr. McBee?
A: Yes.
Q: Do you have any idea what they were for?
A: No.
Q: Up to the July date the summer of 2000
and based upon the information you had, did
you also believe that your husband had
another family, that being children that he
was somehow involved with socially and
economically?
A: Yes, sir.
Wife presented no evidence to corroborate her beliefs
concerning husband.
According to wife, she and husband had had no sexual
relations for the past twenty-nine years because he was
medically unable to perform sexual intercourse. The following
exchange between wife and her attorney ensued:
Q: On or about the time of the summer of
2000 did your husband make a statement to
someone else that he had discovered Viagra
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and he can get all he wanted and as a result
he had a renewed interest in sex?
A: Yes, sir.
Q: Did he and you renew sexual relations at
that time at all?
A: No, sir.
Wife and her attorney also had the following exchange at
the deposition hearing:
Q: Mrs. Lee, off the record I asked you if
there was anything else that you wanted to
introduce, and you indicated that there was
with regard to proof about your husband's
adultery or abandonment of the marriage and
constructive desertion by him. You
indicated to me that this summer after July
of 2000 that you overheard a phone
conversation that your husband was having
with the same woman that had said she had
been screwing your husband for thirty years
and she was black. Would you testify what
you overheard on that phone conversation?
A: I heard him tell her he loved her, and
they set up a date for the next day.
Q: Was that date for him to meet her the
next day?
A: Yes.
Q: Did you hear the time and place they
were to meet?
A: He left the house early the next
morning, the destination I don't know.
Q: Did he often continuously leave the
house on weekends and stay gone where you
didn't know where he would be?
A: Yes, sir.
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Q: Based upon the information you have now,
is it your testimony that [sic] was with
this woman or her family on all of these
occasions?
A: Yes, sir.
Patsy Worsham, the parties' married daughter, testified on
wife's behalf as follows:
[Wife's Attorney]: You've been present here
this morning and heard all of the questions
that I've asked your mother?
[Ms. Worsham]: Yes.
[Wife's Attorney]: Have you heard the
answers she's given?
[Ms. Worsham]: Yes.
[Wife's Attorney]: If I were to ask you the
same questions at this time would your
answers be exactly the same?
[Ms. Worsham]: Yes, sir.
[Wife's Attorney]: Do you have a very close
personal relationship with your mother so
that you, yourself, have personal knowledge
of everything that I asked of her and the
answers she's given, correct?
[Ms. Worsham]: Yes.
[Wife's Attorney]: With regard to anything
your father has done in the way of adultery
or otherwise to end the marriage, is there
any other statement or evidence that you
wish to offer?
[Ms. Worsham]: No, sir.
A further exchange between Ms. Worsham and wife's attorney
occurred as follows:
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[Wife's Attorney]: You heard refer or
respond [sic] to my question about the
investigator, private investigator? Have
you, yourself, actually, were you there on
at least one or more occasions to see what
your father was doing, were you not?
[Ms. Worsham]: Yes.
[Wife's Attorney]: And did you see him
staying at or coming and going at this
address we talked about on Jefferson Davis
Turnpike?
[Ms. Worsham]: Yes.
[Wife's Attorney]: Have you also looked at
the videotape of what we talked about?
[Ms. Worsham]: Yes, sir.
[Wife's Attorney]: Is that consistent with
what you saw?
[Ms. Worsham]: Yes, sir.
[Wife's Attorney]: Have you ever confronted
your father and asked if he had a
relationship with another family?
[Ms. Worsham]: No, sir. There has been no
communication since we were kids.
Worsham further testified that she had overheard a
conversation between husband and an unidentified woman in
December 2000. Worsham affirmed that the woman told husband she
was not going to have a hysterectomy and she intended to have a
baby.
Angela Lee, another daughter of the parties, testified that
during the summer of 2000, she found a ladies jacket behind a
seat in husband's truck. Husband told her it belonged to a lady
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with whom he went fishing, who must have left it in his truck.
Another time, Ms. Lee found in husband's truck an earring, a
figurine "like the world's greatest grandfather," a child's hair
barrette, and a pack of cigarettes.
Alvin Saunders is the parties' son-in-law. He testified
that husband advised him that he could get any amount of Viagra
that Saunders wanted.
The trial court found that "the acts of adultery" by
husband "have been fully proven by the evidence submitted
herein; and that [wife] has not voluntarily cohabited with
[husband] since obtaining knowledge of the commission of these
adulterous acts." The trial court further found that wife had
not condoned husband's adultery and "no reconciliation has taken
place."
2. Discussion
"'To establish a charge of adultery the evidence must be
clear, positive and convincing. Strongly suspicious
circumstances are insufficient. Care and circumspection should
accompany consideration of the evidence.'" Romero v. Colbow, 27
Va. App. 88, 93-94, 497 S.E.2d 516, 519 (1998) (quoting Painter
v. Painter, 215 Va. 418, 420, 211 S.E.2d 37, 38 (1975)).
"A charge of adultery is one of a criminal
offense and especially and uniquely damaging
to the reputation of the party charged. The
general and widely recognized presumption of
innocence must be indulged against it, and,
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while it is not required to be proved beyond
a reasonable doubt, as in a criminal
proceeding, the evidence must be at least
clear and positive and convincing. Raising
a considerable or even strong suspicion of
guilt is not enough."
Id. (quoting Haskins v. Haskins, 188 Va. 525, 530-31, 50 S.E.2d
437, 439 (1948)).
The evidence created a suspicion that husband may have had
an intimate relationship with a person not his wife. However,
it failed to prove adultery. Wife's attorney repeatedly
propounded to the witnesses questions that assumed facts not in
evidence. Many of the witnesses' representations were based on
hearsay and speculation without any foundation as to their basis
of knowledge. Some of the evidence upon which the trial court
relied could well have described innocent activity or activity
unrelated to adultery, such as weekend fishing trips, visiting
Mr. McBee, and money paid to Mr. McBee. In toto, the evidence
failed to prove adultery clearly and convincingly, and the trial
court erred in granting the divorce on that ground.
C. EQUITABLE DISTRIBUTION AND SPOUSAL SUPPORT
Code §§ 20-107.1(E) and 20-107.3(E)(5) require a trial
court to consider "the circumstances and factors which
contributed to the dissolution of the marriage" in determining
equitable distribution and spousal support.
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Because the trial court relied upon adultery in making the
equitable distribution and spousal support awards, we reverse
those awards and remand for reconsideration of equitable
distribution and spousal support in accordance with the findings
expressed herein.
Reversed and remanded.
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