                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia


SHARON M. HICKSON
                                                 OPINION BY
v.   Record No. 0154-00-4                   JUDGE RICHARD S. BRAY
                                              JANUARY 23, 2001
ROBERT D. HICKSON


                FROM THE CIRCUIT COURT OF WARREN COUNTY
                       John E. Wetsel, Jr., Judge

          Peter W. Buchbauer (James J. McGuire;
          Lorena R. Smalls; Buchbauer & McGuire, P.C.,
          on briefs), for appellant.

          George W. Johnston, III (Robert D. Hickson,
          pro se, on brief), for appellee.


     Sharon M. Hickson (wife) filed a "Petition for Declaratory

Judgment" in the trial court, challenging an order vacating a

previously entered decree of divorce between wife and Robert D.

Hickson (husband).    Wife alleged the court was without

jurisdiction to vacate the decree, resulting in an "actual

controversy as to the state of the parties' marital status," and

prayed the court to declare the decree "final and binding between

the parties."    In response, husband moved to confirm the order and

revisit the divorce and related issues, including equitable

distribution.

     Concluding that husband "ha[d] not had his . . . day in court

. . . because of some oversight or mistake on the part of the
court or of the attorney," the court, citing a general "power to

vacate" the decree, and additional authority to correct "[a]n

error of law . . . by bill of review," ruled "that the parties are

still married."    Wife appeals, arguing Rule 1:1 divested the court

of jurisdiction to vacate the decree of divorce twenty-one days

after entry. 1   We agree and reverse the order.

                                  I.

     In the context of a bill of complaint for separate

maintenance, filed by wife May 13, 1993, husband, on December 29,

1998, lodged a "Conditional Motion for Divorce" with the court,

which motion was subject to certain specified terms.    (Emphasis

added).    Wife responded on January 9, 1999, and, without disputing

husband's "entitle[ment]" to pursue divorce, objected to the

proposed conditions.    The court addressed husband's motion in an

ore tenus hearing on January 19, 1999, attended only by attorneys

representing each party, awarded husband a divorce, without

imposing the requested conditions, and directed his counsel to

prepare an appropriate decree.    Dissatisfied with the result,

husband discharged his attorney immediately following the hearing.

However, no order was entered of record to relieve his counsel of

record, although both attorneys were aware of husband's action.

     On February 3, 1999, wife's attorney notified the court and

husband's counsel of record that, pursuant to the January 19


     1
         The appeal is before us on a "Written Statement of Facts."


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hearing, a proposed decree of divorce would be presented to the

court for entry on February 16, 1999.   Several days thereafter,

her counsel provided a draft of the decree to the court and

husband's counsel of record.   Wife, her attorney, and husband's

counsel of record personally appeared before the court on the

appointed day, with husband present, at his request, by telephone.

At the inception of the hearing, the court granted the motion of

husband's counsel to withdraw, although she remained and

participated in the ensuing hearing.    At the conclusion of the

proceedings, the court entered the decree previously circulated by

wife's attorney, subject to several insubstantial revisions then

disclosed to the parties and counsel,2 without endorsement of

either husband or his former counsel of record.

     On March 23, 1999, husband first requested a copy of the

decree from the clerk of the trial court and, after receiving a

facsimile, moved the court, on March 29, 1999, to vacate the

decree, alleging that the provisions did not comport with his

conditional motion and the related proceedings.   By order of April

20, 1999, the court granted husband's motion, "to the extent that

this [c]ourt has jurisdiction to vacate that final decree,"

finding that husband had not received "timely notice of the




     2
       Revisions to the draft decree noted husband's presence "in
person" at the hearing, corrected the birthdate of a child born
to the marriage and the date of separation, and denied wife
attorney's fees.

                               - 3 -
earlier entry of the . . . decree" and "now wishes to withdraw"

his "conditional motion for divorce."

     On September 30, 1999, wife filed the instant suit for

declaratory judgment, asserting that Rule 1:1 divested the court

of jurisdiction to vacate the decree twenty-one days after entry,

and seeking a determination that the divorce was "final and

binding."   By order entered December 29, 1999, the court concluded

the decree had been "properly vacated . . . and that the parties

are still married," resulting in the instant appeal by wife.

                                  II.

     Rule 1:1 provides in pertinent part that "[a]ll final

judgments, orders, and decrees, irrespective of terms of court,

shall remain under the control of the trial court and subject to

be modified, vacated, or suspended for twenty-one days after the

date of entry, and no longer."    Thus, "'[a]t the expiration of

that 21-day period, the trial court loses jurisdiction to disturb

a final judgment, order, or decree . . . .'"       Bogart v. Bogart, 21

Va. App. 280, 290, 464 S.E.2d 157, 161-62 (1995) (quoting School

Board of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550,

554, 379 S.E.2d 319, 321 (1989)).       However, the finality imposed

by the rule is not without exceptions, several of which are relied

upon by husband in support of the disputed order.

     Rule 1:13 directs that

            [d]rafts of orders and decrees shall be
            endorsed by counsel of record, or reasonable
            notice of the time and place of presenting

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          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.

"This rule is designed to protect parties without notice," Davis

v. Mullins, 251 Va. 141, 147, 466 S.E.2d 90, 93 (1996), and,

notwithstanding Rule 1:1, "failure to comply . . . renders an

order voidable."     Singh v. Mooney, ___ Va. ___, ___, ___ S.E.2d

___, ___ (2001); see Francis v. Francis, 30 Va. App. 584, 518

S.E.2d 842 (1999).

     Relying upon Rule 1:13, husband maintains that the divorce

decree, arising from improper notice to his former counsel and

lacking endorsement, was invalid and vulnerable to attack, a

contention not novel to this Court.      In resolving an appeal on

similar facts in Francis, we concluded, "[o]nce an attorney has

appeared as the counsel of record, service on the counsel is

proper until the court enters a withdrawal order."      Id. at 589,

518 S.E.2d at 845; see Code § 8.01-314 ("any process, order, or

other legal papers . . . may be served on . . . attorney of

record"); see also Rule 1:5 ("[c]ounsel of record shall not

withdraw from a case except by leave of court").     Such service,

"during the midst of ongoing litigation is notice reasonably

calculated to apprise interested parties of the course of the

proceedings."   Francis, 30 Va. App. at 590, 518 S.E.2d at 846.


                                 - 5 -
Thus, "[u]ntil [husband's] counsel had effectively withdrawn,

. . . service upon [her] was proper" and in compliance with Rule

1:13, despite the absence of endorsement and actual notice to

both the court and opposing counsel that husband "was no longer

represented by counsel of record."      Id. at 591-92, 518 S.E.2d at

846.

       Husband next contends that the court was authorized to

vacate the decree pursuant to Code § 8.01-428, which permits

correction, "at any time," of "[c]lerical mistakes in all

judgments or other parts of the record and errors therein

arising from oversight or . . . inadvertent omission."     Code

§ 8.01-428(B).   He asserts that the clerk's failure to provide

"any notice of the entry of the order" departed from "customary

practice" and constituted an "inadvertent omission" that

"deprived [him] of any notice of the entry of the order."

However, husband's argument is belied by a record that reflects

proper notice of the proposed decree and entry, his personal

presence, albeit telephonically, at the related hearing and

awareness of the attendant revisions.     Such circumstances

clearly do not establish clerical deficiencies in the decree

either supportive of husband's argument or contemplated by Code

§ 8.01-428(B).    See, e.g., School Board of Lynchburg, 237 Va. at

554-55, 379 S.E.2d at 321 (statute codifies inherent authority

of court to "correct the record to . . . 'speak the truth'").



                                - 6 -
     Finally, husband relies upon reference by the trial court

in the subject order to a "bill of review" as authority to

vacate the divorce decree.    Pursuant to Code § 8.01-623, a bill

of review is an extraordinary injunctive remedy to redress

"'errors of law apparent on the face of the record,'" predicated

upon a pleading that "identifies, with the requisite degree of

accuracy and definiteness, [such] errors."     Blunt v. Lentz, 241

Va. 547, 550, 404 S.E.2d 62, 64 (1991) (citation omitted).      A

"procedural device," "limited in scope," the relief is "rarely

used" and "discouraged."     Id. at 550, 404 S.E.2d at 63-64.

Here, the record discloses neither the pleadings requisite to a

bill of review nor circumstances in justification of the remedy.

     Accordingly, the trial court was without jurisdiction to

vacate the decree of divorce, and we reverse the instant

declaratory judgment order to the contrary.

                                 Reversed and final judgment.




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