                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Retired Judge Hairston ∗
Argued at Salem, Virginia


DARRELL LEE WHITING
                                            OPINION BY
v.   Record No. 1037-99-3           JUDGE ROSEMARIE ANNUNZIATA
                                          APRIL 11, 2000
CYNTHIA JAN FISHER WHITING


           FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
                   Duncan M. Byrd, Jr., Judge

          Edward K. Stein for appellant.

          Laura L. Dascher (Pasco & Dascher, P.C., on
          brief), for appellee.


     Darrell Lee Whiting ("husband") appeals from an order of

the Circuit Court of Alleghany County vacating a final decree of

divorce entered on January 18, 1985, and ruling that husband

owes Cynthia Jan Fisher Whiting ("wife") $18,100 pursuant to a

pendente lite order of spousal support and child support entered

on January 6, 1984.   Husband contends on appeal that the 1985

decree was void because he received no notice of the hearing

prior to the entry of the decree and that, because the decree is

void, both the prior pendente lite order and the subsequent




     ∗
       Retired Judge Samuel M. Hairston took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
court orders requiring him to pay spousal support are of no

effect.    We affirm the trial court's decision.

                              BACKGROUND

        On October 21, 1983, wife filed a Bill of Complaint in the

Circuit Court of Alleghany County seeking a divorce from

husband.    On January 6, 1984, the circuit court entered a

pendente lite order requiring husband to pay child support to

wife.    On June 15, 1984, the court further ordered husband to

pay wife $25 per week in spousal support.    On November 21, 1984,

the court entered an order permitting husband's attorney to

withdraw from the case.    On January 18, 1985, the circuit court

entered a final decree of divorce, ordering that all previous

orders issued in the case were to remain in effect and that wife

would have the right to petition the court for permanent alimony

and attorneys' fees.    The decree failed to indicate whether

husband or substituted counsel for husband was present, and

nothing in the record established that husband received notice

of the entry of the decree.    Husband alleges that he received no

such notice.

        Husband failed to pay the support required by the pendente

lite order.    He was found in contempt of the order on September

26, 1984, and on April 5, 1985, was ordered to appear before the

court to account for his failure to pay the arrearage.    The

record does not reveal whether he made the required appearance.


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On June 21, 1985, however, the Department of Social Services

("DSS") moved the court to reinstate the case and transfer it to

the juvenile and domestic relations district court for

enforcement of the decree's support order.   The circuit court

granted DSS's motion and specifically ordered that husband

continue to pay the support required under the pendente lite

order.   Neither husband nor wife was given notice of this order.

Upon transferring the case to the juvenile and domestic

relations district court, the circuit court struck the case from

its docket.   No further action was taken in the case.   On June

24, 1992, the circuit court dismissed the case from its docket

pursuant to the "five-year rule" of Code § 8.01-335(B). 1

     On November 20, 1997, wife filed a motion to reinstate the

cause before the circuit court and to transfer it to the

juvenile and domestic relations district court, having given

notice to husband on November 10, 1997.   The circuit court

granted the motion and entered its decree on November 20, 1997.

The juvenile and domestic relations district court thereupon

determined that the pendente lite order of child and spousal

support had remained in effect since June 15, 1984 and that

husband owed spousal support arrears in the amount of $17,700


     1
       At the time the circuit court cleared its docket of
dormant cases pursuant to Code § 8.01-335(B), the five-year rule
was still in effect, although the statute was amended in 1992 to
shorten the period of pendency to three years.


                               - 3 -
and child support arrears in the amount of $400.   Upon appeal to

the circuit court, husband argued that he was under no

obligation to pay support, because the final decree of divorce

was void, it having been entered without notice to him.   In the

alternative, he argued that he was not obligated to pay spousal

support because an award of temporary support does not survive

once a case is dismissed from the docket.   The circuit court

disagreed and entered judgment in favor of wife.

     On appeal, husband contends 1) that because he received no

notice of the entry of the final decree in January, 1985, the

decree was void, and its subsequent dismissal from the circuit

court docket terminated the pendente lite order entered in 1984;

2) that if the final divorce decree were deemed valid, its

language did not preserve the support obligation created by the

pendente lite order; and 3) that if the divorce decree were

deemed valid and it preserved the support required by the

pendente lite order, that obligation was subsequently terminated

by the circuit court's order dismissing the case from the

docket.   For the reasons that follow, we affirm the trial

court's decision.




                               - 4 -
                               ANALYSIS

     The question of whether the final decree was void due to

husband's lack of notice is governed by Rule 1:13 2 of the Rules

of the Supreme Court of Virginia and by Westerberg v.

Westerberg, 9 Va. App. 248, 386 S.E.2d 115 (1989).    "[A] decree

that fails to comply with Rule 1:13 is void."     Francis v.

Francis, 30 Va. App. 584, 592, 518 S.E.2d 842, 846 (1999)

(citing Westerberg, 9 Va. App. at 250, 386 S.E.2d at 116).      Rule

1:13 states that the notice to be sent to the opposite party in

a case must include "'the time and place of presenting such

drafts together with copies thereof.'"     Westerberg, 9 Va. App.

at 250, 386 S.E.2d at 116.    We held in Westerberg that "[a]

draft of an order or decree must be endorsed by counsel of

record unless . . . the endorsement is modified or dispensed

with by the court."    Id.   As in Westerberg, in this case the

final decree was not endorsed by counsel of record, and the

record does not indicate that the trial court modified or


     2
         The Rule 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 by delivering, dispatching
            by commercial delivery service, transmitting
            by facsimile or mailing to all counsel of
            record who have not endorsed them.
            Compliance with this rule and with Rule 1:12
            may be modified or dispensed with by the
            court in its discretion.

                                 - 5 -
dispensed with the requirement.   The decree was, therefore,

void, because husband received no notice of the final decree and

never endorsed it.   A void decree is a nullity with no legal

effect.   See Williams v. Dean, 175 Va. 435, 439, 9 S.E.2d 327,

329 (1940); Bray v. Landergren, 161 Va. 699, 172 S.E. 252

(1934).   Consequently, the only effective support order under

which wife may claim support is the pendente lite order of 1984.

     We find under our holdings in Taylor v. Taylor, 5 Va. App.

436, 364 S.E.2d 244 (1988), and Smith v. Smith, 4 Va. App. 148,

354 S.E.2d 816 (1987), that the pendente lite order remained in

effect from 1985 until 1992, when the suit was stricken from the

circuit court's docket under the five-year rule.   In Taylor, we

held that Code § 20-103, which authorizes courts to award

support pendente lite, allows courts to order a spouse to make

support payments to the other spouse for "any time pending the

suit," a period of time which we said terminated upon "the final

adjudication of all of the issues properly raised in the

pleadings, which would usually result in dismissal of the case

from the pending docket."   5 Va. App. at 441, 364 S.E.2d at 247.

Because the final decree of divorce in this case was a nullity,

there was no final adjudication and the case remained pending at




                               - 6 -
that time. 3   Consequently, according to our decision in Taylor,

husband's support obligation under the pendente lite award

continued unaffected by the decree.

      Citing Smith, husband further contends that wife's right to

support terminated upon the dismissal of the divorce case from

the trial court docket in 1992.    Smith addressed a suit for

divorce dismissed by the trial court under the "five-year rule"

of Code § 8.01-335(B).    We held that a trial court's authority

to order spousal support in pendente lite orders under Code

§ 20-103 is limited to the period during which the action is

actually pending, regardless of language in such an order

stating that it would remain in effect "until further order of

the court."    See 4 Va. App. at 151, 354 S.E.2d at 818.   Although

under this principle of law, the wife's right to support would

terminate upon the dismissal of the divorce suit, see id.

(citing Wain v. Barnay, 219 Ill. App. 401, 405-06 (1920));

Heilbron v. Heilbron, 27 A. 967, 968 (Pa. 1893), we find that

husband is estopped under established principles of equity from

attacking the decree and the support obligation established by

it.




      3
       We note that transfer of the suit to the juvenile and
domestic relations district court after the entry of the final
decree did not divest the circuit court of its jurisdiction in
the case. See Code § 20-79(c).


                                - 7 -
     We have addressed the applicability of estoppel principles

in an instance when a marriage was challenged as defective.      See

Kleinfield v. Veruki, 7 Va. App. 183, 189, 372 S.E.2d 407, 411

(1988) (acknowledging the validity of the principle in

determining whether the challenged marriage was void, but

finding that the facts failed to support its application in that

case).   The matter before us thus presents an issue of first

impression in Virginia.

     In assessing the applicability of estoppel principles when

a decree of divorce is collaterally attacked as void, we are

guided by the case law developed in our sister states.    In the

context of divorce, it is widely accepted that one who accepts

the benefits of a divorce decree is estopped from attacking the

decree's validity.   See 1 Homer H. Clark, The Law of Domestic

Relations in the United States § 13.3 (2d ed. 1987).     The

circumstances under which courts have foreclosed attack on a

void decree are varied, but typically involve the conduct of the

parties, with the following three factors of particular

significance:   "1) The attack on the divorce is inconsistent

with prior conduct of the attacking party.   2) The party

upholding the divorce has relied upon it, or has formed

expectations based upon it.   3) These relations or expectations

will be upset if the divorce is held invalid."   Id. at 743-44.




                               - 8 -
     In the present case, husband remarried after the divorce.

"Remarriage after [a] defective decree, either by the person

attacking it, or by the other party, will usually raise an

estoppel. . . ."   Id. at 736-37.   Additionally, wife relied to

her detriment upon the void decree from 1985 until 1997.

Husband stood mute as she, with notice to him, attempted to

enforce the support provisions of the decree in the circuit

court and the juvenile and domestic relations district court.

An earlier challenge to the decree would have permitted timely

proceedings to effect the entry of a valid decree.    In short,

husband's conduct after the entry of the invalid divorce decree

is inconsistent with the attack he now mounts.   He will not now

be heard to challenge the validity of that decree and frustrate

wife's expectation of and right to receive the child and spousal

support award established by it.

     The decision of the trial court is affirmed.

                                                     Affirmed.




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