Opinion
Record No. 2377-92-4 Record No. 2408-92-4
August 10, 1993
FROM THE CIRCUIT COURT OF WARREN COUNTY JOHN E. WETSEL, JR., JUDGE.
(John W. Acree; Acree Associates, on brief), for Samuel W. Heywood.
(Thomas D. Logie, on briefs), for Nancy M. Heywood.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that these appeals are without merit. Accordingly, we affirm the decision of the circuit court. Rule 5A:27.
Samuel W. Heywood ("husband") appeals the final decree of divorce entered by the trial court on October 30, 1992. He contends that (1) the failure to properly notify him of the presentation of the proposed final decree of divorce rendered it void; and (2) the trial court erred in ordering him to pay 100% of the commissioner's fees and costs without including an explanation or justification for such an award. (Record No. 2377-92-4). Nancy M. Heywood ("wife") cross-appeals and contends that the trial court erred in failing to require husband to pay her attorney's fees. (Record No. 2408-92-4).
FAILURE TO NOTIFY OF PRESENTATION OF FINAL DECREE
In his opening brief, husband argues that since he was appearing pro se at the time that the final decree of divorce was presented by wife to the trial court for entry, he was entitled to notice in the manner prescribed by Code § 20-99, specifically "by any methods prescribed in 8.01-296 by any person authorized to serve process under 8.01-293. . . ." Thus, relying on Soliman v. Soliman, 12 Va. App. 234, 402 S.E.2d 922 (1991), husband maintains that mailing of the notice was not sufficient and renders the final decree void.
However, Code § 20-99 was amended after the Soliman decision and prior to the time wife's counsel sent the notice of hearing to husband. Code § 20-99(4), in effect at the time the notice was mailed to husband, provided that if an appearance had been made on behalf of the defendant by counsel after the suit had been commenced, then notices of hearings, motions, and other proceedings, may be served by delivering or mailing a copy of the notice to counsel for the opposing party. The statute defines "counsel for the opposing party" to include a pro se party who (1) has entered a general appearance in person or by filing a pleading or endorsing an order of withdrawal of that party's counsel; or (2) who has signed a pleading in the case or who had notified the other parties or the clerk that he appears in the case.
Here, it is clear from the record that husband endorsed the order entered on August 17, 1992, allowing his counsel, Douglas M. Swift, to withdraw. This clearly satisfies the definition of "counsel for the opposing party" contained in Code § 20-99(4) (i). Accordingly, wife's counsel's mailing to husband a copy of the notice of hearing, which stated that all pending motions would be addressed in order to bring the case to a complete and final resolution, was sufficient to satisfy the statute and does not render the decree void.
We note that in the order entered on August 17, 1992 and agreed to and endorsed by husband, it is specifically stated that service of documents shall be considered herein effective if made by mail to husband at his mailing address.
COMMISSIONER'S FEES AND COSTS
Rule 5A:18 provides in pertinent part: "No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Here, husband did not note any objection to the award of the commissioner's fees and costs made against him. Accordingly, we will not consider this issue on appeal.
ATTORNEY'S FEES
There must be evidence in the record to explain or justify the amount of an award of counsel fees. Westbrook v. Westbrook, 5 Va. App. 446, 458, 364 S.E.2d 523, 530 (1988) (citation omitted). However, awards of attorney's fees generally lie within the discretion of the trial court after consideration of the circumstances and equities of the entire case and will only be reviewable on appeal for an abuse of discretion. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987) (citation omitted); Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989).
Based upon this record, we find that the trial judge did not abuse his discretion in requiring each party to bear their own attorneys' fees, especially where, as here, the trial court had already ordered husband to pay $2912.75, representing 100% of the commissioner's fees and costs.
For the reasons stated, we affirm the decision of the circuit court.
Affirmed.