NAPERT v. NAPERT



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NAPERT

v.

NAPERT


January 12, 2001

Record No. 000562

Present: All the Justices

GERALD PAUL NAPERT

v.

THERESA MARIE NAPERT

FROM THE COURT OF APPEALS OF VIRGINIA


OPINION BY JUSTICE ELIZABETH B. LACY

In this appeal, we review a determination made
on a bill of review that a decree of a trial court was entered in
violation of Rule 1:13.

In December 1997, Gerald Paul Napert (husband)
filed a proceeding seeking a divorce a vinculo matrimonii
from Theresa Marie Napert (wife). The wife filed a response, pro
se, denying certain allegations of the bill of complaint. On
October 9, 1998, the husband mailed a copy of a "Motion to
Establish Permanent Child Support and For Entry of Final Decree
of Divorce" to the wife. The motion designated the date and
time he would seek entry of the decree. A hearing was held on
November 13, 1998, but the wife did not appear. A decree of
divorce was subsequently entered on November 16, 1998. The decree
was silent as to child support.

The wife filed a bill of review pursuant to
Code ? 8.01-623, asserting that the divorce decree was void
because it was entered in violation of Rule 1:13. The Circuit
Court of Fairfax County agreed, holding that the decree did not
comply with either the endorsement or notice requirements of Rule
1:13 and that there was no indication on the decree that the
trial court dispensed with those requirements. The trial court
granted the relief sought in the bill of review, vacated the
November 16, 1998 divorce decree declaring it void, and denied
the husband’s motion for reconsideration. The Court of Appeals
affirmed the judgment of the trial court in an unpublished
memorandum opinion (Napert v. Napert, Record No.
1173-99-4, February 8, 2000), holding that because the November
16, 1998 decree contained neither the endorsement of the wife or
her counsel nor a dispensation of the endorsement by the court,
the decree was "facially erroneous and void." We
granted the husband an appeal.

In his first assignment of error, the husband
asserts that the Court of Appeals erred in construing and
applying Rule 1:13. Rule 1:13 states:

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 . . . to all counsel of record who have not
endorsed them. Compliance with this rule . . . may be
modified or dispensed with by the court in its discretion.

The Court of Appeals held that the trial court
did not dispense with the Rule’s requirements because the decree
did not specifically recite such dispensation. The husband
asserts that this holding is in conflict with previous decisions
of this Court. We agree with the husband.

This Court has never held that, in order to
modify or dispense with the requirements of Rule 1:13, a court
must affirmatively state in its order that it is exercising its
discretion to take such action. For example, in Smith v.
Stanaway
, 242 Va. 286, 410 S.E.2d 610 (1991), the trial court
entered an order without endorsement of or notice to counsel and
the order did not include any statement that the court had
dispensed with such requirements as allowed by Rule 1:13.
Nevertheless, this Court evaluated the validity of the order by
considering whether the trial court abused its discretion in
dispensing with the requirements of the Rule. Id. at
288-89, 410 S.E.2d at 612. The concurrence in Smith
specifically contended that the trial court should be required to
recite its reasons for exercising its discretion to dispense with
Rule 1:13, a requirement implicitly rejected by the majority. Id.
at 290-91, 410 S.E.2d at 613; see also Rosillo
v. Winters
, 235 Va. 268, 272-73, 367 S.E.2d 717, 719 (1988).

Although a better practice would be for a trial
court to include a statement reflecting its decision to exercise
its discretion, in the absence of such a statement, we presume
that a trial court exercised its discretion to dispense with the
Rule’s requirements. Courts are presumed to act in accordance
with the law and orders of the court are entitled to a
presumption of regularity. Beck v. Semones’ Adm’r, 145 Va.
429, 442, 134 S.E. 677, 681 (1926).

Likewise in this case, the divorce decree is
entitled to a presumption that the trial court dispensed with the
Rule’s requirements. Accordingly, we hold that the Court of
Appeals erred in approving the trial court’s decision that the
November 16, 1998 divorce decree was entered in violation of Rule
1:13.

For these reasons, we will reverse the judgment
of the Court of Appeals and dismiss the bill of review.

Reversed and dismissed.

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