Edward Joseph Cronin v. Stacey A. Cronin ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
EDWARD JOSEPH CRONIN
MEMORANDUM OPINION *
v. Record No. 0444-98-3 PER CURIAM
OCTOBER 27, 1998
STACEY A. CRONIN
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
(John B. Mann; Levit & Mann, on briefs), for
appellant.
(Marcus H. Long, Jr.; Long, Long & Kellerman,
on brief), for appellee.
Edward Joseph Cronin (husband) seeks to set aside the final
decree entered March 11, 1997, granting Stacey A. Cronin (wife) a
divorce and awarding her spousal support and attorney's fees.
Husband contends that the divorce decree is void because it was
not entered pursuant to the notice requirements of Rule 1:13 of
the Rules of the Supreme Court of Virginia. Upon reviewing the
record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of
the trial court. See Rule 5A:27.
Procedural Background
Wife commenced this action by filing a bill of complaint on
July 19, 1995. John Dixon, an attorney, appeared with husband at
his deposition on November 14, 1995, and filed an answer on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
behalf of husband on November 27, 1995. Subsequently, both
wife's counsel, Marcus Long, and the court served husband by
directing all notices to Dixon at the address listed in the court
files. Neither Dixon nor husband responded to these notices. On
September 16, 1996, Long noticed a hearing on October 3, 1996 on
the issue of spousal support. On November 27, 1996, a new
attorney, Raphael Hartley, sent a request for production of
documents to Long, with a copy to the court. Hartley sent
interrogatories to wife on December 16, 1996, a copy of which was
also filed with the court. Husband did not move to substitute
counsel.
On February 5, 1997, the trial court issued an opinion
letter indicating that it found the evidence sufficient to grant
wife a divorce on the ground of husband's desertion and to award
wife spousal support and attorney's fees. The opinion letter was
mailed to Long and Dixon. Pursuant to the court's instructions
in its opinion letter, on February 17, 1997, Long sent a draft of
the final decree to the court, with a copy to Dixon. Long noted
that he had received little or no communication from Dixon. The
court entered the final decree on March 11, 1997, and mailed a
copy to Dixon. On March 12, 1997, Hartley filed a motion seeking
to compel the production of documents, to which Long responded on
March 17, 1997, indicating that he had not received any previous
correspondence and that the final decree was entered on March 11,
1997. On April 14, 1997, more than twenty-one days after entry
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of the final decree, Hartley filed a motion seeking review,
accompanied by a copy of an order for substitution of counsel
which Hartley indicated he had sent to Long earlier.
Subsequently, husband obtained new counsel, John Mann, who
filed a Motion to Vacate the Final Decree. Mann argued that the
final decree did not comply with Rule 1:13. The trial judge
denied husband's motion to vacate.
Rule 1:13
Rule 1:13 of the Rules of the Supreme Court of Virginia
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 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.
"[T]he mere fact that an order may have been entered without
endorsement of counsel of record does not automatically render it
void. The last sentence of Rule 1:13 authorizes the trial court
in its discretion to modify or dispense with the requirement of
endorsement of counsel." Davis v. Mullins, 251 Va. 141, 147, 466
S.E.2d 90, 93 (1996). Although husband's counsel of record did
not endorse the draft decree, Long attempted to obtain counsel's
endorsement. Long sent the final decree to Dixon on February 17,
1997, pursuant to the trial court's instructions in its February
5, 1997 opinion letter. The trial court did not enter the decree
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until March 11, 1997, twenty-one days later. Both the court and
Long continually served notice upon Dixon at the address given in
the court files. The onus fell on husband and Dixon to ensure
that the court was notified of any changes in counsel's address
and to file a timely motion seeking to substitute counsel.
Moreover, Rule 1:13 grants the trial court discretion to
modify or dispense with compliance with its provisions. Here, as
set out in the trial court's January 30, 1998 opinion letter
denying husband's motion to vacate the decree, the court "further
dispensed with Mr. Dixon's signature as the Court's
correspondence to him was returned by the U. S. Postal Service,
as set forth above." Therefore, credible evidence demonstrates
that the trial court dispensed with compliance with Rule 1:13.
Under the circumstances of this case, we find no abuse of
discretion in the trial court's decision.
Finally, even when Hartley became aware that a final decree
had been entered on March 11, 1997, he took no action to set
aside the final decree until April 14, 1997. For the reasons set
out above, the final decree was not void. Under Rule 1:1, the
divorce decree became final twenty-one days after entry, and the
trial court lacked jurisdiction thereafter to set aside or vacate
the decree. See Davis, 251 Va. at 148-49, 466 S.E.2d at 94.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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