COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Retired Judge Whitehurst*

Argued at Norfolk, Virginia 

CLAUDIA S. DIAMOND 

v. Record No. 1300-94-1 OPINION BY 

 JUDGE RICHARD S. BRAY 

ROY L. DIAMOND JUNE 13, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Nelson T. Overton, Judge 

 Terry N. Grinnalds for appellant. 

 LeeAnn N. Barnes (Isabel H. AtLee; Hall, Fox, 

AtLee & Robinson, P.C., on brief), for 

appellee. 

 Claudia S. Diamond (wife) and Roy L. Diamond (husband) were 

divorced by final decree of the trial court. Wife complains on 

appeal that the court erroneously entered the decree without 

requisite notice to her. We disagree and affirm the judgment of 

the trial court. 

 The procedural history is uncontroverted. Wife was 

personally served with husband's bill of complaint on March 2, 

1994, but filed no responsive pleadings. She subsequently 

received notice of the taking of depositions before a 

commissioner in chancery and appeared at the related hearing, on 

May 24, 1994, without counsel. At the conclusion of husband's 

evidence, wife initially declined the commissioner's invitation 

to offer evidence or argument and orally requested a continuance 

to retain counsel. After this motion was overruled by the 

 

 *Retired Judge Alfred W. Whitehurst took part in 

consideration of this case by designation pursuant to Code 

§ 17-116.01. 
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commissioner,1

 wife challenged, again orally, husband's evidence 

pertaining to the period of separation and demanded "half of 

[his] retirement" and "$500 for alimony." At the conclusion of 

the hearing, wife expressly waived her signature to the 

depositions. 

 The commissioner subsequently prepared and filed with the 

trial court a written report, which reflected both factual 

findings and attendant recommendations, and mailed wife a notice 

of this action, together with copies of the report and supporting 

depositions. Wife took no exception to the contents of the 

report, and the trial court entered the final decree in 

accordance with it on June 13, 1994. Wife admitted receipt of a 

copy of the decree, mailed to her by husband's counsel at the 

direction of the trial court. 

 Wife now seeks to void the decree for noncompliance with 

Rule 1:13. In pertinent part, Rule 1:13 prescribes that 

[d]rafts 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 or mailing to all 

counsel of record who have not endorsed them. Compliance 

with this rule . . . may be modified or dispensed with by 

the court in its discretion. 

Id.; see Rosillo v. Winters, 235 Va. 268, 272-73, 367 S.E.2d 717, 

719 (1988). "A decree that fails to comply with Rule 1:13 is 

void." Westerberg v. Westerberg, 9 Va. App. 248, 250, 386 S.E.2d 

 

 1The commissioner determined that wife had "ample notice" of 

the proceedings and further delay was unjustified. Wife does not 

dispute this ruling on appeal. 
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115, 116 (1989). 

 Wife acknowledges that status as "counsel of record" as 

contemplated by Rule 1:13 is dispositive of her appeal. Id. Rule 

1:5 defines "counsel of record" as "a counsel or party who has 

signed a pleading in the case or who has notified the other parties 

and the clerk in writing that he appears in the case." Id. The 

record clearly discloses that wife neither "signed a pleading" nor 

"notified the other part[y] and the clerk in writing that [s]he 

appear[ed] in the case" at any time during the disputed 

proceedings. Id. Wife's contention that her mere presence and 

comments at the depositions were tantamount to written notice of 

appearance in the case is without support in the Rules. 

 Accordingly, the provisions of Rule 1:13 were inapplicable to 

wife and the decree suffers no procedural infirmity. 

 Affirmed.