COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
GERALD PAUL NAPERT
MEMORANDUM OPINION * BY
v. Record No. 1173-99-4 JUDGE CHARLES H. DUFF
FEBRUARY 8, 2000
THERESA MARIE NAPERT
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
William F. Wall for appellant.
James Ray Cottrell (Christopher W.
Schinstock; Kyle F. Bartol; Gannon,
Cottrell & Ward, P.C., on brief), for
appellee.
Gerald Paul Napert (husband) appeals the decision of the
circuit court granting a Bill of Review filed by Theresa Marie
Napert (wife) and declaring void a divorce decree entered
without the endorsement of wife or of counsel on her behalf. We
find no error in the trial court's decision. Accordingly, we
affirm the decision.
On appeal,
[u]nder familiar principles, we view the
evidence and all reasonable inferences in
the light most favorable to the prevailing
party below . . . . "The burden is on the
party who alleges reversible error to show
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
by the record that reversal is the remedy to
which he is entitled." We are not the
fact-finders and an appeal should not be
resolved on the basis of our supposition
that one set of facts is more probable than
another.
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859
(1992) (citations omitted).
According to the record before us, husband's counsel sent a
one-page copy of a form entitled "Friday Motions
Day - Praecipe/Notice" to wife, notifying her that he would file a
motion to "establish permanent child support and entry of final
decree of divorce" on November 13, 1998. The notice did not
include the back side of the form that set out instructions on how
to respond to the notice. No copies of the proposed decree or
motion were provided to wife. The court held a hearing on
November 16, 1998. Husband did not make a motion concerning
support. The trial court entered a final decree of divorce on
November 16, 1998, "upon the [husband's] motion for entry of a
final decree of divorce and notice to the defendant thereof." The
decree was not endorsed by wife or counsel on her behalf, and the
trial court did not waive compliance with Rule 1:13 of the Rules
of the Supreme Court of Virginia.
Rule 1:13 provides, in total:
Rule 1:13. Endorsements.
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
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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.
Husband's counsel failed to provide wife with a copy of the
motion and decree to be presented. The trial court did not
waive the endorsement of the order by wife or her counsel.
Therefore, the decree violated Rule 1:13. Orders entered in
violation of Rule 1:13 are void. See, e.g., Westerberg v.
Westerberg, 9 Va. App. 248, 250, 386 S.E.2d 115, 116 (1989).
See also Francis v. Francis, 30 Va. App. 584, 518 S.E.2d 842
(1999). Therefore, the decree of divorce entered by the trial
court was void.
Husband contends that the trial court erred in granting
wife's bill of review to collaterally attack a final decree.
Wife initially timely filed a bill of review in the original
cause, then, pursuant to the directions of the trial court,
refiled the bill in a new, separate cause.
A bill of review is a bill filed to reverse
or modify a decree that has been signed and
enrolled for error in law apparent upon the
face of such decree or on account of new
facts discovered since publication was
passed in the original cause, and which
could not by the exercise of due diligence
have been discovered or used before the
decree was made.
1 Charles E. Friend, Virginia Pleading and Practice § 20-8, at
586-87 (1998) (footnote omitted). See Blunt v. Lentz, 241 Va.
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547, 550, 404 S.E.2d 62, 64 (1991). "'A bill of review does not
lie to review or correct errors of judgment in the determination
of facts.'" Id. (citation omitted). Although "use of a bill of
review is discouraged" because of modern appellate practice
remedies, "[n]onetheless, it remains an available procedural
device" pursuant to Code § 8.01-623. Id.
The error which wife sought to correct by her bill of
review was one of law, not judgment. The trial court entered a
decree in violation of Rule 1:13. As the final decree of
divorce contains neither the endorsement of wife or her counsel
nor a waiver of the need for her endorsement, the decree was
facially erroneous and void.
Accordingly, the decision of the circuit court granting
wife's bill of review and declaring void the decree entered
November 16, 1998 is affirmed.
Affirmed.
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