Where a spouse is served by publication in Virginia, will a divorce court allow an evidentiary hearing after dismissal based on a failure to file a timely answer following the re-opening of the case?

Where a spouse is served by publication in Virginia, will a divorce court allow an evidentiary hearing after dismissal based on a failure to file a timely answer following the re-opening of the case?

Not in Sharp v. Sharp, No. 2712-09-2, (Va. Ct. App. 2010), where the Virginia Court of Appeals summarily affirmed the ruling of the Circuit Court for the City of Hopewell, Commonwealth of Virginia, on wife’s second appeal of a dismissal.

The husband and wife were married for 21 years before the husband filed for a divorce.  The wife was served by publication, a process allowed in Virginia under Virginia Code Section 8.01-317 where a spouse whose whereabouts is unknown is notified of the divorce proceeding by an advertisement in the newspaper and/or posting at the courthouse door.  While service by publication can be used to obtain a divorce, it will not support a money judgment for support or equitable distribution of property because that kind of service does not confer personal jurisdiction over the defendant absentee spouse.  Six months after the divorce was granted, the wife filed a motion to re-open the case and set aside the default judgment.  The City of Hopewell Circuit Court judge granted wife’s motion and allowed her twenty-one days to file an answer.  The wife failed to file an answer in the 21 days and the husband filed a motion to dismiss, asking the Court to re-affirm the final divorce decree.  In response, the wife filed a responsive pleading opposing the husband’s motion, along with her late answer and counterclaim. Upon evaluating the motions, the trial court dismissed the case and affirmed the final divorce decree.  The wife subsequently filed two more motions to re-open the case and appealed, and in November 2009, the trial court again dismissed the matter. The first appeal was dismissed because wife failed to file a timely notice of appeal.

On appeal for the second time, wife argued that the trial court erred by dismissing the case and by abusing its discretion in not extending the time for her to file her answer to the complaint. The Virginia Court of Appeals ruled that wife’s claims were barred by res judicata. Res judicata is a legal doctrine that prevents a party from relitigating an issue already decided by a court on its merits.  ,  See Bates v. Devers, 214 Va. 667, 202 S.E.2d 917 (1974) .  The Supreme Court of Virginia, in the case of Lofton Ridge, LLC v. Norfolk Southern Rwy. Co., 268 Va. 377, 601 S.E.2d 648 (2004) described the application of the doctrine of res judicata as follows: “When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings, or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters, a new suit on the same cause of action cannot be maintained between the same parties.”  In this case, wife had previously appealed a decision of the Circuit Court of the City of Hopewell to the Virginia Court of Appeals on the grounds of error.  In her first appeal, wife had failed to file a timely notice of appeal.  The Court determined that wife’s second appeal was barred by the doctrine of res judicata, and refused to allow her to litigate again the issues she could have raised in her first appeal.

On appeal, wife also contended that the trial court erred in not conducting an evidentiary hearing on equitable distribution, child and/or spousal support, and attorney’s fees.  The Virginia Court of Appeals court could not determine whether wife had preserved this issue for appeal because she signed the final order “seen and objected to” with a statement of facts that did not reveal wife’s argument.  The appeals court noted that neither party presented any evidence or testimony at trial and that the wife failed to meet her burden in showing that the trial court had committed a reversible error. See Lutes v. Alexander, 14 Va. App. 1075, 421 S.E.2d 857 (1992). Because the appellate court will not search for errors or correct a party’s deficiencies to allow an appeal (See Buchanan v. Buchanan, 14 Va. App. 53, 415 S.E.2d 237 (1992) , the court held it would not address the final two questions presented in this appeal.

The appeals court did grant husband a reasonable amount of his attorney’s fees on appeal, using the standard of O’Loughlin v. O’Loughlin, 23 Va.App. 690, 479 S.E.2d 98 (1996).

You should consult with your Virginia divorce lawyer concerning the implications of setting aside a divorce decree based on service by publication.

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