Gregory Alan Ransom v. Tina Chang Ransom ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
GREGORY ALAN RANSOM
MEMORANDUM OPINION * BY
v. Record No. 1322-98-2 JUDGE SAM W. COLEMAN III
MAY 18, 1999
TINA CHANG RANSOM
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
R. Scott Pugh for appellant.
Edward V. O’Connor, Jr. (Byrd, Mische,
Bevis, Bowen, Joseph & O’Connor, P.C., on
brief), for appellee.
In this appeal from a final divorce decree the husband
contends that the decree is void because (1) he failed to receive
notice of the evidentiary deposition hearing and (2) failed to
receive notice of the entry of the final decree. We find that
husband did not receive the required notice for the evidentiary
hearing or of the presentation of the proposed final divorce
decree. Therefore, we reverse and vacate the final divorce decree
and remand the case for further proceedings. 1
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
1
Husband also contends that the divorce decree should be
reversed because the clerk of the circuit court failed to
deliver his letter to the trial judge informing the judge of his
lack of notice, thereby depriving him of his right to seek a
Continued . . .
BACKGROUND
Husband, who was represented by counsel, filed a bill of
complaint for divorce alleging adultery and requesting child
custody and the equitable distribution of their property. The
bill of complaint alleged that wife had left the marital
residence. Wife filed a pro se answer and cross-bill, alleging
adultery by the husband and requesting child custody, child and
spousal support, and equitable distribution. After filing an
answer to the wife’s cross-bill, husband’s attorney withdrew.
Husband proceeded pro se, but did not file with the clerk of court
a written statement of his place of residence or mailing address
as provided by Code § 8.01-319.
During the ensuing proceedings, wife retained counsel. Also,
during that time husband, acting pro se, endorsed two decrees.
Proceeding with her cross-bill, wife mailed a copy of a notice to
take depositions to husband at 3205 Waverly Drive, Fredericksburg,
VA 22407. Waverly Drive was not the marital address where the
parties had resided. “3205 Waverly Drive” was the address at
which wife alleged husband was living with his paramour. 2 In
Continued . . .
vacation or modification of the final decree within twenty-one
days of entry of the decree as provided by Rule 1:1. Because we
reverse on other grounds, we do not reach this issue.
2
Wife’s answer asserted that “Mrs. Hernandez lives at 3205
Waberly Drive, Fredersburg VA 22407.” (Emphasis added).
- 2 -
addition to wife’s mailing the notice, the sheriff went to the
same Waverly Drive address and after finding no one there for
substituted service, he posted the notice on the front door.
Thereafter, depositions were taken in husband’s absence.
Following the depositions, wife filed a notice that she would
present to the circuit court on a date certain a final divorce
decree for entry. The certificate of mailing appended to the
notice certified that wife timely mailed a copy of the notice to
husband at 1200 Townsend Boulevard, #8, Fredericksburg, VA 22407.
The trial judge entered the final decree without the husband’s
endorsement. 3 The final decree recited that husband failed to
appear after opposing counsel had mailed notice to him of the
proposed entry of the final decree. The decree, which granted the
wife a divorce based upon a one year separation, awarded her
custody of the children granting husband “reasonable” visitation,
child and spousal support, equitable distribution, and attorney’s
fees. The husband appeals from the divorce decree.
3
Twelve days after entry of the final decree, husband sent
an ex parte letter addressed to the trial judge explaining that
he had received no notice of the evidentiary hearing and
requesting an opportunity to be heard on the matter. Husband’s
letter indicated that his address was 1200 Townsend Boulevard,
#8, Fredericksburg, VA 22407 –- the same address where
twenty-four days earlier wife had mailed the notice of the
proposed entry of a final divorce decree. The clerk responded
by providing husband a copy of the wife’s certificate of mailing
and informing him that neither the clerk’s office nor the judge
could provide him legal advice. At that time, seven days
remained before the divorce decree became final under Rule 1:1.
- 3 -
ANALYSIS
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.” . . . Due process does not
require actual notice to a party of the date
of a trial or hearing after he or she has
been properly made a party to the
proceeding. [However, a state’s]
legislature may prescribe “the kind of
notice and the manner in which it shall be
given if it is reasonable under all the
circumstances and affords the party affected
a reasonable opportunity to be heard.”
Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d 914, 916
(1991).
Here, husband had notice of the pendency of the suit. He
had instituted it in filing the bill of complaint. He asserts,
however, that having made a general appearance, he was
thereafter entitled to interim notice of evidentiary proceedings
and of the entry of the final divorce decree.
In a divorce suit, the bill of complaint shall not be taken
for confessed. The case shall be heard independently of the
admissions of either party, and the charges shall be proven by
full and clear testimony. See Code § 20-99; Westfall v.
Westfall, 196 Va. 97, 101, 82 S.E.2d 487, 490 (1954). A party
desiring to take evidence by deposition testimony may do so by
giving reasonable notice in writing to the other party stating
the time, place, and name and address of persons to be examined.
- 4 -
See Rule 4:5(b)(1). Rule 1:12 provides that when no other
provision exists for service of a pleading, motion, or other
paper, service shall be given by mailing or delivering to
counsel of record. Code § 20-99(4) provides that notice to take
depositions may be served by mailing a copy of the “notice” to
counsel for opposing party. Code § 20-99 provides that in the
context of notice in divorce proceedings, “‘[c]ounsel for
opposing party’ shall include a pro se party who (i) has entered
a general appearance in person by filing a pleading or endorsing
an order of withdrawal of that party’s counsel.” See also Rule
1:5 (“‘counsel of record’ includes a . . . 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”).
Where a party who has appeared in a divorce proceeding has
not received notice of the evidentiary hearing upon which the
divorce decree is based, the decree shall be vacated. See
Soliman v. Soliman, 12 Va. App. 234, 241, 402 S.E.2d 922, 927
(1991) (holding that failure to give notice of the
commissioner’s evidentiary hearing as required by Rule 2:18(a)
invalidates the final decree). Thus, the question before us is
whether the wife’s mailing of the notice or sheriff’s posting of
it on the door of the Waverly Road address satisfied the notice
requirement.
When husband’s counsel withdrew, husband became “counsel of
record” and was entitled to notice of any hearings and of
- 5 -
pleadings. See Rule 1:12. Both Rule 1:12 and Code § 20-99(4)
provide that notice may be given to counsel of record or
opposing counsel by mailing a copy to him or her. Thus, the
wife could have given notice to husband for the taking of
depositions by mailing or by serving notice upon him in
accordance with the provisions of Code §§ 8.01-296 or
8.01-319(A).
However, Code § 8.01-319(A) provides that a pro se party
“shall file with the clerk of court in which the action is
pending a written statement of his place of residence and
mailing address during the pendency of the action” and that an
opposing party may rely on the “last written statement filed”
for purposes of noticing the pro se party. See Eddine, 12 Va.
App. at 764, 406 S.E.2d at 917. The record contains no evidence
that husband furnished the clerk with his residence or mailing
address.
Further, husband, who filed the initial bill of complaint
did not provide an address as required by Rule 1:4(C). Thus,
no “last written statement” of an address existed upon which
wife could rely for mailing notice.
Although husband failed to provide an address for mailing
or for constructive service, Code § 8.01-319(A) authorizes the
trial court to dispense with the notice requirement or to
require some form of substitute notice. However, wife did not
inform the court that husband had failed to furnish an address,
- 6 -
nor did she request that the court waive the notice requirements
or authorize her to substitute a notice procedure. Moreover,
the record does not indicate that the court dispensed with the
notice requirement of Rule 1:12.
When a pro se party fails to provide an address as required
by Code § 8.01-319, the omission does not empower the opposing
party to dispense with the required notice except by leave or
direction of the court. Here, wife failed to follow the
statutory requirements for notice of the taking of depositions
and the entry of the final divorce decree. See Soliman, 12 Va.
App. at 241, 402 S.E.2d at 927 (vacating divorce for lack of
notice of commissioner’s hearing).
In addition, the record contains no indication that the
husband received notice of entry of the final decree. Husband
did not endorse the final decree as required by Rule 1:13.
Although Rule 1:13 gives the trial judge discretion to dispense
with a party’s endorsement of the decree and the notice
requirement, here, the trial judge apparently dispensed with the
notice and endorsement requirement based on the husband’s
failure to appear. Under these circumstances, we hold that
wife’s failure to comply with Code § 8.01-319 or otherwise give
husband notice of entry of the divorce decree violated his due
process and statutory rights and resulted in the entry of an
invalid decree of divorce. See Rosillo v. Winters, 235 Va. 268,
271-73, 367 S.E.2d 717, 718-19 (1988) (declaring void a draft
- 7 -
order entered by the trial court without notice to, or
endorsement by, opposing counsel); Norfolk Div. of Soc. Services
v. Unknown Father, 2 Va. App. 420, 427-28, 345 S.E.2d 533,
536-37 (1986) (finding an order entered without notice to, or
endorsements by one party, was void); but see Smith v. Stenaway,
242 Va. 286, 288-89, 410 S.E.2d 610, 612 (1991) (affirming entry
of an order without notice or endorsement where both counsel
were present when the judge issued the ruling orally and,
therefore, were fully aware of the court’s decision).
Accordingly, the judgment of the trial court is reversed,
the decree is vacated and the case remanded for such further
proceedings as are necessary.
Reversed and remanded.
- 8 -