Bobsin v. Bobsin

1

EILEEN BOBSIN v. GEOFFREY BOBSIN

No. 1389-22-4

Court of Appeals of Virginia

August 1, 2023

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Brett A. Kassabian, Judge ^[1]

John S. Koehler (The Law Office of James Steele, PLLC, on briefs) for appellant.

Robert M. Worster III (Worster Law PLLC, on brief), for appellee.

Present: Judges Humphreys, Malveaux and Fulton Argued at Fredericksburg, Virginia

MEMORANDUM OPINION ^[*]

MARY BENNETT MALVEAUX, JUDGE

Eileen Bobsin ("wife") appeals the circuit court's denial of her motion to reconsider after the court conducted an equitable distribution hearing in her absence and entered a final order of divorce. She contends that the circuit court erred by denying her motion and refusing to reopen the record so that she could present evidence on the valuation of the marital accounts. Finding no error in the circuit court's decision, we affirm.

I. BACKGROUND

"When reviewing a [circuit] court's decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences." Nielsen v. Nielsen, 73 Va.App. 370, 377 (2021) (quoting Congdon v. Congdon, 40 Va.App. 255, 258 (2003)).

On June 18, 2020, Geoffrey Bobsin ("husband") filed a complaint for divorce in the circuit court. Trial was set originally for August 24, 2021, but was continued three times between August 2021 and July 2022 due to changes of counsel by wife and an emergency motion for continuance by wife. On July 13, 2022, wife's sixth attorney filed a motion to withdraw as counsel stating that wife had informed counsel of her intent to find a new attorney.^[2]On July 14, 2022, the circuit court entered an order granting the motion. At that time, trial was scheduled for July 18, 2022.

On that date, wife appeared in court without counsel and stated that she had fired her attorney on July 1. Nevertheless, she claimed that she was unaware of her attorney's withdrawal from the case. Counsel for husband stated that he had been present when the court heard the motion to withdraw, but that wife had not been present. He informed the court, however, that wife's attorney had said she had noticed wife about the proceeding by mail, email, and service of process. Counsel for husband further noted the numerous attorneys wife had previously discharged and that the court had already granted wife two continuances over husband's objections. He argued against a further continuance, stating that the case had been pending for more than two years and that "[i]t wasn't because of COVID. It was because of the continuances." Counsel for husband also noted that the continuances he had objected to had been brought "on . . . the Friday before a Monday trial," and contended that husband had been significantly prejudiced by the continuances.

The circuit court found that wife had had notice of her attorney's withdrawal.^[3] It then told wife that, "I haven't heard a continuance request, but even if there was one, I am disinclined to grant it because . . . it was incumbent upon you to be ready for today or to continue the case before today rather than making the parties show up." Accordingly, the court announced its intention to proceed. However, before husband could present his opening statement, wife announced that she was not feeling well and stated that she had been having chest pains since having surgery in March 2022. Wife then requested a continuance "for a week, at least" so that she could go to the hospital. When the circuit court ruled that wife appeared able to proceed, wife said, "No. I'm holding my chest. I'm physically holding my chest. It's killing me right now." Wife continued to maintain she was experiencing chest and head pains and was "not well enough to do this now," and said she could summon her daughter to take her to the hospital. The court stated that it could call rescue personnel to come and examine wife, so that "if everything is fine, we can continue," but wife insisted she needed to go to the hospital with her daughter.

The circuit court summoned paramedics and continued the case to August 24, 2022. In its continuance order, the court noted that trial was continued "based on claimed medical emergency of [wife] for which emergency transport was called." It ruled that trial would not be continued again based upon wife's lack of counsel and required wife to "produce medical discharge [records] from 7/18/22 hospital admission not later than 8/18/22 to counsel for [husband]."

On August 24, 2022, wife failed to appear for trial. Husband informed the circuit court that wife had been served notice of the new trial date on July 18, 2022, and introduced into evidence a copy of the return indicating that notice had been posted on wife's front door. The court held that it was "satisfied" that wife "has notice of today's [court] date based upon service" and that it had "waited as long as it's going to wait for her appearance physically here." After further noting that there was "no record . . . of any request for a postponement of the case," the court expressed that it was ready to proceed and commenced trial in wife's absence. At the conclusion of trial, the court entered a final order of divorce valuing the marital assets based on husband's evidence and dividing the marital assets equally. The court noted in its order that wife had been "given active notice by posting and did not appear."

On September 9, 2022, wife filed a one-page motion for an "emergency case continuance / reconsideration," but offered no reason for her absence at trial. On September 13, 2022, wife filed a motion for reconsideration of the final order of divorce and asked that the order be "extended" for four weeks. For the first time, wife cited "emergency medical reasons" for her requests and asserted that she was at a hospital emergency room on August 24 and 25, 2022. On September 14, 2022, the circuit court entered an order suspending its final judgment for thirty days. In its order, the court directed wife to submit a brief in support of her motion "that evidence[d] her purported medical emergency."

On September 23, 2022, wife filed a "Motion for Reconsideration . . . Respecting Medical Emergency" and an accompanying brief. In her motion, she asked the circuit court to reconsider its final decree because a medical emergency had "rendered [her] medically unable to attend and participate in" the proceedings on August 24, 2022. She argued that the court should reconsider its ruling "for a few separate and distinct reasons to prevent manifest injustice . . . and to correct a clear error in the Order." Wife did not specify the "reasons" or the "error" in the order; instead, she simply requested "additional time to provide those details." Wife did not request a hearing on her motion or ask that the circuit court reopen the record.

In her accompanying brief, to which she attached copies of some of her medical records, wife stated that in the early morning of August 24, 2022, she experienced "an urgent medical emergency[] with extreme chest and eye/head pains." Wife was "unsuccessful in calling and reaching 911," but the pain "decreased a little" after she rested for a while, so wife called her physician and set up an appointment for 1:00 p.m. Wife stated that she and her physician "were both concerned about a heart attack," but the only medical record wife provided from her doctor's visit was a photocopy of a prescription instructing her to take ibuprofen alternating with Tylenol. The prescription did indicate that wife was to have an MRI scan of her head "to evaluate retroorbital pain," but provided that this should be done at the same appointment as a previously scheduled chest MRI set for the following week. Wife further stated that her physician suggested she go to the emergency room if her pain persisted, but no such recommendation is reflected in wife's medical records.

Wife indicated that her pain abated after visiting with her physician and going home to rest, but that she then "decided to be pro-active" by going to the emergency room. There, she "requested a cardiac workup" and was administered several tests, but was released some hours later. Wife's medical records from the emergency room indicate diagnoses of "[c]hest pain, unspecified type," "[a]cute non intractable tension-type headache," and knee pain and that wife was given Benadryl and anti-anxiety and anti-migraine medications while at the hospital.

Also in her brief, wife alleged that she had called the circuit court on the morning of August 24, 2022, as well as husband and his attorney, and left messages informing them that she could not attend trial. Wife further alleged that she had called the police regarding "non-receipt of [c]ourt documents posted to my house front door" and that they had told her to call after she returned home from her doctor's appointment or the emergency room "so they could come by my house and take the full police report."^[4]

Husband filed a response to wife's motion stating that he had not been served with a copy of the motion and that wife had not complied with the court's order that she provide him with medical documentation supporting her claim of a medical emergency on July 18, 2022. Husband also noted that wife's motion did not specifically identify what "she wants reconsidered and on what basis," and asserted that nothing in the motion established good cause to modify the final order of divorce.

On September 29, 2022, the circuit court entered an order summarily denying wife's motion to reconsider and vacating its suspension order. The order made clear that the court had considered the parties' briefs, wife's accompanying medical records, and the entire record of the case in...