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 

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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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