PROCEDURE – PARTY IN DEFAULT – SERVICE AND NOTICE OVERSEAS – DIVORCE BY DEPOSITION. - Va.Ct.App.

When the General Assembly in 2012 passed Code §20-106 A allowing divorce by affida­vits in some no-fault cases, it probably did not fore­see all the odd cases that could arise seeking to fit the facts within this statute’s narrow gates, but the Court of Appeals had little trouble affirming a dismissal of the wife’s complaint in a case turning on whether or means and, or and means or. So if a statute allows you to proceed “where … The adverse party has been personally served with the complaint and has failed to file a responsive pleading or to make an appear­ance,” does it mean that you need one or both? In other words, does that mean the personally served adverse party need only have done one, or that he must have done both those things? (Well, that is the sort of thing people pay lawyers to do, after all.) In Cruz v. Cruz, 62 Va. App. 31, 741 S.E.2d 71 (4/30/13), the Court of Appeals said it’s obvious that it just means doing one, and you don’t have to have done both. The Wife here could not rely on Code §20-106 A, because the husband, living in Saudi Arabia when served, entered an appearance. In fact, it was a special appearance moving to dismiss on grounds of bigamy. So this wife relied on the wrong statute, because now she didn’t even pass the thresh­old requirement of having only a no-fault case, and she couldn’t rely on the deposition-divorce statute because the other party had appeared. For those who don’t know, these new-fangled divorces are allowed only for those who have a full year of uninterrupted separation (or six months with a complete separation agreement and no minor children). To read the new statute as though it requires both a responsive plead­ing and an appearance would be contrary to the plain language of the statute and to the intent thereof, the Court says.