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JESTICE v. JESTICE


JESTICE v. JESTICE

(unpublished)


JULY 8, 1997
Record No. 0344-97-4

AARON L. JESTICE

v.

EVELYN I. JESTICE

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Stanley P. Klein, Judge
Present: Judges Baker, Elder and Fitzpatrick

(Jeffrey S. Sawtelle; Baldwin & Associates, on brief), for
appellant.

No brief for appellee.


Aaron L. Jestice (husband) appeals the decision of the circuit
court deeming admitted certain Requests for Admission promulgated
by Evelyn I. Justice (wife). Husband contends that the trial
court abused its discretion because there was no prejudice to
wife’s case by the two-day delay in responding, the admissions
caused extreme prejudice to his case, and he lacked notice of
wife’s motion to deem the requests admitted. Upon reviewing the
record and opening brief, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the trial
court. Rule 5A:27.

Rule 4:11 provides, in pertinent part, that

[e]ach matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within
21 days after service of the request, or within such shorter
or longer time as the court may allow, the party to whom the
request is directed serves upon the party requesting the
admission a written answer or objection addressed to the
matter, signed by the party or by his attorney, but, unless
the court shortens the time, a defendant shall not be
required to service answers or objections before the
expiration of 28 days after service of the bill of complaint
or motion for judgment upon him.

The conduct of discovery is left to the discretion of the
trial court. See Helen W. v. Fairfax County Dep’t of
Human Dev.
, 12 Va. App. 877, 887, 407 S.E.2d 25, 31 (1991).
While the court is authorized to extend or shorten the period of
time within which a party may respond to requests for admission,
in the absence of any extension, the rule provides for no more
than twenty-one days. We cannot say that the court’s adherence to
the period provided in the rule was an abuse of discretion.

Moreover, while husband contends that his case was severely
prejudiced by the requests for admission, we find his arguments
unpersuasive. Husband contends that the parties’ separation
agreement did not specify with absolute accuracy the cost of
living index to be used to adjust the spousal support payments.
The agreement provided for adjustments "by the percentage of
change in the cost of living to be the same as the cost of living
set out in the Department of Labor’s publication on the Consumer
Price Index for Urban Wage Earners, Metropolitan D.C. Area, using
the 1986 issuance as the base change date." Therefore,
because the parties’ agreement identified with specificity the
cost of living index to be used, husband’s contention fails.

Similarly, as husband acknowledges, interest generally is
assessed on unpaid spousal support, unless it would be
inequitable to do so. See Alig v. Alig, 220 Va. 80,
85, 255 S.E.2d 494, 497-98 (1979). While husband asserted in the
trial court that wife orally waived the cost of living increases,
neither proof nor proffer in the record supports husband’s claim.
Husband concedes that the alleged oral agreement would be
ineffective to modify the written agreement. Therefore, husband
has not demonstrated prejudice sufficient to warrant reversal of
the court’s decision.

Husband contends that he lacked notice of wife’s motion to
compel. The record demonstrates that wife’s counsel served the
requests for admission on husband’s counsel on August 14, 1996,
that responses were due on September 4, 1996, and that husband’s
counsel filed a response on September 6, 1996, two days late. At
the September 20, 1996 hearing on wife’s motion to compel, wife’s
counsel indicated that she was not seeking to compel an answer to
the first interrogatory because the requests were deemed
admitted. At that same hearing, husband’s counsel withdrew.
However, the onus to ensure continuity with his subsequent
attorney falls on husband, not wife. Therefore, husband has
failed to demonstrate prejudice sufficient to warrant reversal.

Finally, husband argues that wife’s motion for a Rule to Show
Cause is in the nature of a motion for judgment, therefore
entitling him to twenty-eight days from service within which to
respond. That argument is without merit. Rule 4:11 provides for
an extended period for response if so allowed by the court or in
the specific instances of a bill of complaint or a motion for
judgment commencing an action. The rule does not contemplate an
extended period of response whenever any motion is served.
Husband filed his bill of complaint on March 20, 1985, and the
final decree of divorce was entered August 30, 1985. Therefore,
the twenty-eight day period for response is inapplicable.

Accordingly, the decision of the circuit court is summarily
affirmed.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this
opinion is not designated for publication.

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