                       COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Frank


ALAN RICHARD STEWART
                                            MEMORANDUM OPINION *
v.   Record No. 1483-98-2                       PER CURIAM
                                                MAY 18, 1999
PHYLLA JEAN STEWART


            FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      William R. Shelton, Judge

            (Carol A. N. Breit; John A. Gibney; Shuford,
            Rubin & Gibney, on brief), for appellant.

            (Thomas W. Blue, on brief), for appellee.


     Alan Richard Stewart (husband) appeals the decision of the

circuit court granting Phylla Jean Stewart (wife) a divorce and

deciding other issues.    Husband raises the following issues on

appeal:    (1) whether the trial court denied him due process; (2)

whether he received proper notice; (3) whether the trial court

erred in finding him in default; (4) whether the trial court

erred by denying him the opportunity to appear, present

evidence, and defend the case; (5) whether there was proper

service and return on service; (6) whether there was sufficient

evidence to support the ground of divorce; (7) whether there was

sufficient evidence to support the financial award against


    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
husband; and (8) whether the trial court had jurisdiction to

grant the relief awarded.    Upon reviewing the record and briefs

of the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial

court.     See Rule 5A:27.

     The parties were married in Henrico County on April 1,

1995, and last lived together in Chesterfield County.    Wife

commenced this action by filing a bill of complaint in

Chesterfield County on November 30, 1995, alleging that husband

abandoned her on November 24, 1995.     Husband was personally

served with the subpoena in chancery and bill of complaint in

Minnesota on June 24, 1996.   Husband commenced an action in

Minnesota, serving wife on May 3, 1996.    The Minnesota action

was dismissed on March 19, 1997.   By letter dated January 31,

1997, husband's Minnesota counsel contacted the trial judge,

referenced the pending Virginia divorce action, and stated that

"[i]t is our belief that our service was completed before the

service of this matter in the State of Virginia."    Husband filed

no further pleadings in the Virginia action prior to entry of

the final decree on October 8, 1997.    On October 8, 1997, wife's

counsel received a request for discovery from husband's Virginia

counsel.    Husband filed a motion to vacate, which was granted on

October 29, 1997, to allow the parties to brief the adequacy of

notice received by husband.   By order entered January 14, 1998,

the trial court ruled that husband received adequate notice and

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that the court had jurisdiction over husband.    The court entered

the final decree on June 8, 1998.

                Due Process and Sufficiency of Service

      Questions Presented One through Five and Eight arise from a

single underlying issue concerning the sufficiency of the

process served upon him so that he received due process and a

chance to defend himself in the divorce proceedings.     We find

husband's contentions to be without merit.

      Under Code § 8.01-328.1(A)(9), the Chesterfield County

circuit court properly exercised personal jurisdiction over

husband.

           A court may exercise personal jurisdiction
           over a person, who acts directly or by an
           agent, as to a cause of action arising from
           the person's:

            *       *      *      *      *      *        *

           9. Having maintained within this
           Commonwealth a matrimonial domicile at the
           time of separation of the parties upon which
           grounds for divorce or separate maintenance
           is based, or at the time a cause of action
           arose for divorce or separate maintenance or
           at the time of commencement of such suit, if
           the other party to the matrimonial
           relationship resides herein.
                Jurisdiction in subdivision 9 of this
           subsection is valid only upon proof of
           service of process pursuant to § 8.01-296 on
           the nonresident party by a person authorized
           under the provisions of § 8.01-320.

Id.   Wife established that husband was served with process in

accordance with the provisions of Code §§ 8.01-296 and 8.01-320.

"When the court can exercise jurisdiction over the nonresident

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pursuant to § 8.01-328.1, such service shall have the same

effect as personal service on the nonresident within Virginia."

Code § 8.01-320.   Upon service of process, husband was required

to file a responsive pleading in the Virginia action or suffer

the consequences of default.

           The person so served shall be in default
           upon his failure to file a pleading in
           response to original process within
           twenty-one days after such service. If no
           responsive pleading is filed within the time
           allowed by law, the case may proceed without
           service of any additional pleadings,
           including the notice of the taking of
           depositions.

Id.

      Both Emrich v. Emrich, 9 Va. App. 288, 387 S.E.2d 274

(1989), and Mackey v. Mackey, 203 Va. 526, 125 S.E.2d 194

(1962), cited by husband as authority for his contention that

the trial court abused its discretion, are factually

distinguishable.   In Emrich, the wife failed to file a timely

response to the bill of complaint because the parties resumed

cohabitation and the husband fraudulently induced her not to

answer by indicating he would seek to have the case dismissed.

We found that the trial court abused its discretion when it

denied the wife's motion for an extension of time to answer and

entered a decree of divorce within two months of the filing of

the bill of complaint, notwithstanding evidence refuting the

husband's proffered grounds for divorce.   See Emrich, 9 Va. App.

at 295, 387 S.E.2d at 277.   In Mackey, unlike the case here, the

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defendant answered the complaint, but then was not provided with

accurate notice of the taking of the deposition subsequently

relied upon as the basis for the divorce.   See Mackey, 203 Va.

at 527-28, 125 S.E.2d at 195-96.   Both cases are inapposite to

the circumstances here where husband was properly served but

failed without good cause to respond to the ongoing action.

           Trial courts may properly refuse an
           extension where the delay is due to
           negligence or carelessness on the part of a
           party. Inadvertence or failure to exercise
           due diligence under the circumstances in
           responding to legal process does not
           constitute a reasonable or legal excuse for
           failure to comply with filing requirements.

Emrich, 9 Va. App. at 293, 387 S.E.2d at 276 (citation omitted).

     Husband filed no response to the June 1996 service of

process.   He was aware of the ongoing Virginia proceeding, as

demonstrated by the January 1997 letter from his Minnesota

counsel to the Virginia trial judge.   Even after the dismissal

of the Minnesota litigation in March 1997, husband filed no

response in the Virginia action.   The final decree of divorce

was entered almost two years after the filing of wife's bill of

complaint, more than one year after the service of process on

husband, and more than six months after the dismissal of the

Minnesota proceeding.   Wife complied with the statutory

requirements and obtained personal jurisdiction over husband.

Husband received notice and an opportunity to be heard, which is

the essence of due process.   "An elementary and fundamental


                               - 5 -
requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of

the action and afford them an opportunity to present their

objections."     Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 314-15 (1950).    When husband elected not to respond to

the ongoing action, he was in default.     Wife was not required to

provide him with further notice.     See Code § 8.01-320.

             Sufficient Evidence of the Ground of Divorce

     Evidence of the ground for the divorce was presented by

deposition.    On appeal, husband challenges the sufficiency of

this evidence.    "'The rule is firmly established in Virginia

that a divorce decree based solely on depositions is not as

conclusive on appellate review as one based upon evidence heard

ore tenus, but such a decree is presumed correct and will not be

overturned if supported by substantial, competent and credible

evidence.'"     Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d

827, 828 (1986) (citation omitted).      See also Code § 20-99(1).

Wife presented her own deposition and the corroborating

deposition of Mildred Settle to establish her alleged ground of

desertion.

             "The question of corroboration is one of
             fact, the decision of which in each case
             depends upon the particular facts of that
             particular case. It is not necessary that
             the testimony of the complaining spouse be
             corroborated on every element or essential
             charge stated as a ground for divorce. The

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          corroborative testimony need not be
          sufficient, standing alone, to prove the
          alleged ground for divorce. Any other rule
          would deprive the testimony of the
          complaining spouse of any practical effect.
          The general rule is that where a particular
          fact or circumstance is vital to
          complainant's case, some evidence of the
          same, in addition to the complainant's own
          testimony, is essential. The main object of
          the provision of the statute requiring
          corroboration is to prevent collusion.
          Where it is apparent that there is no
          collusion, the corroboration needs to be
          only slight."

Dodge v. Dodge, 2 Va. App. 238, 245, 343 S.E.2d 363, 367 (1986)

(emphasis and citations omitted).

     The trial court found wife's evidence credible.      Wife

provided sufficient corroboration.      Collusion was not a concern.

Husband has failed to demonstrate grounds to overturn the decree

which is presumed to be correct.

                         Financial Award

     Husband also contends that the evidence did not support a

financial award against him.    Because husband received adequate

notice, his argument to strike the evidence submitted by

deposition is without merit.    Wife presented evidence to support

her claim that husband’s actions leading to the dissolution of

the marriage cost her $43,381.53 and that she incurred $8,006.50

in attorney’s fees and costs.   We find no error in the trial

court’s lump sum award to wife pursuant to Code § 20-107.3(D),

and its award of her attorney’s fees and costs.



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     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                        Affirmed.




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