Linda M. Nelson v. Andrew M. Gecelosky

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
LINDA M. NELSON
MEMORANDUM OPINION *
v. Record No. 0242-00-4 PER CURIAM
JULY 11, 2000
ANDREW M. GECELOSKY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
(Linda M. Nelson, pro se, on briefs).
(Mary M. Benzinger; Raymond B. Benzinger;
Benzinger & Benzinger, P.C., on brief), for
appellee.
Linda M. Nelson appeals the final decree of divorce entered
by the circuit court on January 6, 2000. On appeal, Nelson
contends that (1) the decree was entered in violation of Rules
1:13 and 1:12 of the Rules of the Supreme Court of Virginia; (2)
her rights to due process were violated because she was denied
meaningful notice and a hearing; and (3) counsel for Andrew M.
Gecelosky procured the decree by fraud upon the court. Both
parties seek an award of appellate attorney's fees. 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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On appeal, we view the evidence and all reasonable inferences
in the light most favorable to Gecelosky as the party prevailing
below. See McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d
344, 346 (1990). "The trial court's decision, when based upon
credibility determinations made during an ore tenus hearing, is
owed great weight and will not be disturbed unless plainly wrong
or without evidence to support it." Douglas v. Hammett, 28 Va.
App. 517, 525, 507 S.E.2d 98, 102 (1998).
Procedural Background
Gecelosky filed his bill of complaint for divorce and
obtained service by publication on Nelson, who is a resident of
North Carolina. It is uncontested that Nelson received notice.
Nelson's father, a Maryland attorney who is not a member of the
Virginia State Bar, signed her responsive pleading.
Rule 1A:4 provides, in pertinent part:
An attorney from another jurisdiction may be
permitted to appear in and conduct a
particular case in association with a member
of the Virginia State Bar, if like courtesy
or privilege is extended to members of the
Virginia State Bar in such other
jurisdiction.
* * * * * * *
Except where a party conducts his own case,
a pleading, or other paper required to be
served (whether relating to discovery or
otherwise) shall be invalid unless it is
signed by a member of the Virginia State
Bar.
(Emphasis added.)
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Nelson did not sign her own pleadings, did not retain a member of
the Virginia State Bar as counsel, and did not have her pleadings
signed by a member of the Virginia State Bar. Therefore, Nelson's
responsive pleading was invalid. See Rule 1A:4. Under Rule 2:7,
Nelson's failure to file a valid, timely response to the bill of
complaint rendered her in default.
Rules 1:12 and 1:13
Nelson contends that the decree from which she appeals was
entered in violation of Rule 1:13 because it was not endorsed by
her counsel of record and she did not receive a copy of the
proposed decree with the notice of the hearing. Nelson also
contends that the record does not show that Gecelosky's counsel
complied with Rule 1:12 when noticing the ore tenus hearing.
Those contentions lack merit.
Under Rule 1:13, "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 . . . to
all counsel of record who have not endorsed them." Although
Nelson contends she was not served with a copy of the proposed
decree, evidence in the record contradicts that contention.
Gecelosky's Request for Ore Tenus Hearing indicates that the
proposed decree was attached and provided to Nelson's father as
her purported counsel of record. Cf. Westerberg v. Westerberg, 9
Va. App. 248, 386 S.E.2d 115 (1989). In addition, Gecelosky's
counsel indicated that he complied with the Fairfax Circuit Court
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Ore Tenus Hearing Instructions, which also expressly included the
requirement that the proposed decree be provided to the opposing
party along with notice of the date and time of the hearing.
Therefore, based upon the evidence in the record, we find no
violation of Rule 1:13.
Nelson concedes she did not raise her objection under Rule
1:12 before the trial court. "The Court of Appeals will not
consider an argument on appeal which was not presented to the
trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998); see Rule 5A:18. The record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
Due Process
Nelson contends that she was deprived of her right to due
process because she received inadequate notice and opportunity
to be heard. The record demonstrates, however, that Gecelosky
served both Nelson and her purported counsel of record with
notice of the hearing. They were aware of the hearing, appeared
before the trial court on the scheduled day, and failed to raise
these claims before the trial court. Nelson did not file a
motion for reconsideration or seek to stay entry of the trial
court's decree. When her purported counsel of record was barred
from proceeding because he failed to comply with the Rules of
the Supreme Court of Virginia, Nelson did not obtain local
counsel or represent herself. Her father, an attorney licensed
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to practice in another jurisdiction, did not seek to associate a
member of the Virginia State Bar, as required by Rule 1A:4. It
is mere cavil to dispute the trial court's authority to require
that Nelson and her desired counsel comply with this rule.
The failure to have local counsel's
signature on . . . the briefs implicates the
fundamental supervisory power of this Court
over the practice of law in this forum.
"The right to practice law in Virginia is
governed by statute as supplemented by the
Rules of the Supreme Court of Virginia."
Rahbaran v. Rahbaran, 26 Va. App. 195, 203, 494 S.E.2d 135, 139
(1997) (quoting Brown v. Supreme Court, 359 F. Supp. 549, 553
(E.D. Va.), aff'd, 414 U.S. 1034 (1973)). We therefore will not
consider this issue for the first time on appeal. See Rule
5A:18.
Extrinsic Fraud
Nelson contends that Gecelosky perpetrated extrinsic fraud
upon the court by representing that there were no outstanding
contested issues. She alleges that the parties had not resolved
all issues surrounding the distribution of Gecelosky's military
retirement pay. This contention is also meritless.
"'[E]xtrinsic fraud' consists of 'conduct which prevents a
fair submission of the controversy to the court' and, therefore,
renders the results of the proceeding null and void." Peet v.
Peet, 16 Va. App. 323, 327, 429 S.E.2d 487, 490 (1993). "One
who advances a cause of action for actual fraud bears the burden
of proving by clear and convincing evidence: (1) a false
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representation, (2) of a material fact, (3) made intentionally
and knowingly, (4) with intent to mislead, (5) reliance by the
party misled, and (6) resulting damage to the party misled."
Evaluation Research Corp. v. Alequin, 247 Va. 143, 148, 439
S.E.2d 387, 390 (1994).
The record demonstrates that Gecelosky's bill of complaint
contained a request that the Agreement in Contemplation of
Divorce, executed by the parties on May 2, 1997, be "affirmed,
ratified and incorporated, but not merged" into the trial
court's final decree of divorce. Even assuming arguendo that
Nelson's allegations of fraudulent intent were established by
record proof, which we do not find in this record, the final
decree provided for the distribution of Gecelosky's military
retired pay "in accordance with the Agreement in Contemplation
of Divorce, executed by the parties on May 2, 1997." Nelson
does not contend that the agreement itself was tainted by fraud.
Therefore, we find no indication that there was any damage to
Nelson resulting from the alleged extrinsic fraud or that the
trial court was misled or committed error in dividing the
military retirement pay.
Appellate Attorney's Fees
Both Nelson and Gecelosky seek an award of attorney's fees
incurred in this appeal. Nelson has incurred no attorney's fees
because she is proceeding pro se. Her request therefore is
denied.
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Simple steps taken before the trial court in compliance
with the Rules of the Supreme Court of Virginia could have
avoided this appeal, which raised no meritorious issues. We
find that an award of appellate attorney's fees to Gecelosky is
warranted in this case. We therefore remand this matter to the
trial court solely for entry of an order awarding Gecelosky a
reasonable amount of attorney's fees incurred on this appeal.
See O'Loughlin v. O'Loughlin, 23 Va. App. 690, 695, 479 S.E.2d
98, 100 (1996).
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed and remanded.
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