748 S.E.2d 655
Va. Ct. App.2013Background
- Milot filed a divorce action in February 2002; pendente lite spousal and child support was ordered in March 2003.
- Child-support matters were remanded to the Halifax County JDR Court.
- From March 2003 until August 2007 no action occurred; the case was dismissed under Code § 8.01-335(B).
- Parties testified they did not receive notice of the dismissal; counsel for Milot could not confirm receipt.
- In March 2011, appellee filed a divorce action in Norfolk Circuit Court, which was finalized in February 2012 with equitable distribution, child support, and spousal support reserved.
- Three weeks before the Norfolk decree, Milot moved to vacate the dismissal and reinstate the pendente lite order; the trial court denied the motion and denied appellee’s request for attorney’s fees; Milot appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the dismissal violate due process by denying notice? | Milot argues lack of pre/post-dismissal notice deprived due process. | Milot’s due process rights were not violated due to available post-deprivation remedy. | No due process violation; adequate post-deprivation remedy existed. |
| Was the dismissal void ab initio for clerk’s failure to provide notice? | Milot contends lack of notice voids the dismissal under § 8.01-335(B). | Presumption of regularity and no clear evidence clerk failed to provide notice; void not shown. | Dismissal not void ab initio; presumption of regularity controls. |
| Did the trial court abuse its discretion in denying attorney’s fees to appellee? | N/A (Milot seeks reversal, but the issue is appellee’s fees). | Court considered travel and case history; discretion to award fees lies with trial court. | No abuse of discretion; denial of fees affirmed. |
Key Cases Cited
- Nash v. Jewell, 227 Va. 230 (1984) (statutory dismissal and post-deprivation remedy context)
- Smith v. Smith, 4 Va. App. 148 (1987) (pendente lite rights terminated by operation of law on dismissal)
- Fun v. Va. Military Inst., 245 Va. 249 (1993) (adequate post-deprivation remedy satisfies due process)
- Snead v. Atkinson, 121 Va. 182 (1917) (order may be erroneous but not void ab initio; court loses jurisdiction if not timely acted)
- Zedan v. Westheim, 60 Va. App. 556 (2012) (notice issues in divorce context; failure to notify does not render order void ab initio)
- Hinderliter v. Humphries, 224 Va. 439 (1982) (presumption of regularity for public officials)
- Hladys v. Commonwealth, 235 Va. 145 (1988) (presumption of regularity in judicial proceedings)