Karen I. Sabean Schlieper v. Charles Roy Schlieper ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Hodges
Argued at Alexandria, Virginia
KAREN IRENE SABEAN SCHLIEPER
v. Record No. 2219-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
CHARLES ROY SCHLIEPER OCTOBER 17, 1995
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Albert H. Jacoby for appellant.
Joan C. McKenna (Rae H. Ely; Rae H. Ely & Associates, on
brief), for appellee.
In this domestic appeal, Karen Irene Sabean Schlieper (wife)
argues that the trial court erred in: (1) entering the final
decree when she did not receive notice of entry or a copy of the
decree; (2) refusing to hold a hearing on wife's exceptions to
the commissioner's report or to allow her to present additional
evidence; and (3) awarding husband $3500 in attorney's fees.
Finding no error, we affirm the decision of the trial court.
BACKGROUND
Charles Roy Schlieper (husband) filed a bill of complaint
requesting a divorce on December 17, 1992, and served wife at the
marital residence, 38 Hidden Lake Drive, Stafford, Virginia. He
served Interrogatories and a Request for Production of Documents
on January 12, 1993. Wife did not respond until April 8, 1993,
and provided incomplete answers. In November 1993, husband filed
*
Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
a motion to compel discovery, a motion to inspect the marital
residence, and a notice to take wife's deposition. Wife agreed
to the inspection and deposition, and husband withdrew the
motions. Wife did not appear for the inspection or deposition
scheduled for December 10, 1993.
The trial court referred the case to a commissioner in
chancery on August 9, 1993. The commissioner scheduled a hearing
for January 17, 1994. Before the hearing on January 12, 1994,
wife's attorney withdrew from the case. The commissioner refused
to continue the case. At the January 17, 1994 hearing, wife
presented no evidence but reserved her right to do so at a later
date. Wife made no motion to present additional evidence, and
after more than six months elapsed, the commissioner submitted
his report on August 5, 1994. In his report, the commissioner
recommended that the trial court: (1) deny any motion by wife to
present evidence, and (2) award husband $3500 in attorney's fees
for discovery abuse by wife. The commissioner mailed a copy of
his report to the marital residence, the address where wife had
earlier been served. Wife did not receive notice of the report
until August 18, 1994. Wife filed exceptions to the report on
September 1, 1994, more than ten days after entry of the
commissioner's report.
On September 26, 1994, husband mailed notice of entry of the
final decree of divorce on October 3, 1994, and a copy of the
proposed final decree to wife at the marital residence. Wife
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failed to appear on October 3, 1994, and the trial court entered
the final decree. Wife never provided the clerk with any address
other than the one at which she was originally served.
NOTICE OF FINAL DECREE
Wife argues that she never received notice of entry of the
final decree or a copy of the final decree because husband mailed
the notice and decree to the wrong address. She asserts that the
mailing address of the marital residence is different from the
street address.
Code § 8.01-319(A) provides as follows:
A party, who appears pro se in an action,
shall file with the clerk of the court in
which the action is pending a written
statement of his place of residence and
mailing address, and shall inform the clerk
in writing of any changes of residence and
mailing address during the pendency of the
action. The clerk and all parties to the
action may rely on the last written statement
filed as aforesaid. The court in which the
action is pending may dispense with such
notice for failure of the party to file the
statement herein provided for or may require
notice to be given in such manner as the
court may determine.
See also Eddine v. Eddine, 12 Va. App. 760, 764, 406 S.E.2d 914,
917 (1991) (holding that, if a pro se party fails to provide an
address statement, the court may dispense with notice of
proceedings). In Eddine, the Court explained the reasoning
behind Code § 8.01-319(A) as follows:
The failure to provide an address sufficient
to ensure such notice may prevent a case from
proceeding in an orderly manner. If a
litigant wishes to be informed of the
proceedings, he or she must either keep the
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court advised of where service may be
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accomplished or be represented by counsel
upon whom service may be had.
Id. (citation omitted).
In this case, wife failed to provide a written statement of
her address to the clerk of the trial court after her attorney
withdrew from the case. Husband mailed the notice and a copy of
the decree to the marital residence, where wife was served with
the bill of complaint. Wife's own failure to notify the court
and husband of her proper mailing address resulted in her not
receiving notice of entry of the final decree. Under these
circumstances, the trial court did not err in entering the final
decree in wife's absence.
FAILURE TO HOLD HEARING
Wife next contends that the trial judge erred in failing to
hold a hearing allowing her to argue her exceptions to the final
decree or to present additional evidence.
Code § 8.01-615 provides as follows:
A cause may be heard by the court upon a
commissioner's report. Subject to the Rules
of Court regarding dispensing with notice of
taking proofs and other proceedings,
reasonable notice of such hearing shall be
given to counsel of record and to parties not
represented by counsel. Exceptions to the
commissioner's report shall be filed within
ten days after the report has been filed with
the court, or for good cause shown, at a
later time specified by the court.
(Emphasis added).
In this case, the trial judge did not abuse his discretion
in refusing to hold a hearing allowing wife to argue her
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exceptions and to present evidence. Wife filed her exceptions on
September 1, 1994, more than ten days after the filing of the
commissioner's report on August 5, 1994 and, additionally, more
than ten days after she received notice of the report on August
18, 1994. Wife had over six months to request to present
additional evidence or argument to the commissioner and failed to
do so. Upon this record, we find no abuse of discretion on the
part of the trial court.
ATTORNEY'S FEES
Lastly, wife argues that the trial court erred in awarding
husband $3500 in attorney's fees because husband failed to
provide an itemization of the expenses incurred.
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Graves v. Graves, 4 Va. App. 326,
333, 357 S.E.2d 554, 558 (1987). "Although evidence of time
expended by counsel and the charges made to the client is the
preferred basis upon which a trial judge can formulate a
reasonable award, it is not the only basis." Davis v. Davis, 8
Va. App. 12, 17, 377 S.E.2d 640, 643 (1989) (quoting McGinnis v.
McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985)).
In this case, the trial judge did not abuse his discretion
in awarding husband $3500 in attorney's fees. The record shows
wife's continuing abuse of the discovery process. Her responses
to husband's interrogatories were late and incomplete, and she
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failed to attend the inspection of the marital residence and the
deposition scheduled for December 10, 1993. As this Court noted
in Davis, "[a] trial court is aware of the usual charges within
its jurisdiction, and 'a relatively modest award may be found to
be reasonable.'" 8 Va. App. at 17, 377 S.E.2d at 643. Under
these circumstances, the attorney's fees award was reasonable.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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