Khanna v. Khanna

• Decision Date: 17 May 1994
• Docket Number: No. 0562-93-4,0562-93-4
• Citation: Khanna v. Khanna, 443 S.E.2d 924, 18 Va.App. 356 (Va. App. 1994)
• Parties: Maria Elena KHANNA v. Trilochan Singh KHANNA. Record
• Court: Virginia Court of Appeals

Page 924

443 S.E.2d 924

18 Va.App. 356

Maria Elena KHANNA v.Trilochan Singh KHANNA.

Record No. 0562-93-4.

Court of Appeals of Virginia.

May 17, 1994.

Richard Peyton Whiteley(Legal Services of Northern VA, on brief), for appellant.

William Broady, for appellee.

Present: COLEMAN and FITZPATRICK, JJ., and HODGES, ^* Retired Judge.

FITZPATRICK, Judge.

Maria Elena Khanna(wife) argues that the trial court erred in denying her motion to set aside a final decree of annulment pursuant to Code§ 8.01-428, as having been procured by fraud.¹We agree and reverse.

Wife separated from her husband on April 5, 1989, and went with a police officer to a community shelter for victims of domestic violence.Husband filed a criminal complaint against wife for assault and battery in the Fairfax County Juvenile and Domestic Relations District Court(hereinafter J & DR).Wife was arrested, released on her own recognizance, and assigned an attorney to represent her in the criminal proceeding.After several court appearances in May and June 1989, the criminal case was dismissed on July 26, 1989.

During the time when the assault proceedings were ongoing, husband initiated an annulment suit in the Fairfax County Circuit Court.He requested that the marriage be annulled because wife fraudulently entered into the relationship and never consummated the marriage.Husband requested constructive rather than personal service on wife pursuant to Code§ 8.01-316(1)(b), and filed an affidavit of due diligence on May 12, 1989, which provided in part, as follows:

COMES NOW TRILOCHAN [SINGH] KHANNA, Complainant herein, and being first duly sworn, upon oath deposes and states that he does not know whether or not MARIA ELENA KHANNA, Defendant in the above case, is a resident of the State of Virginia, and that he has exercised due diligence in attempting to locate her, to no avail, her last known post office address or place of abode being, to the best of complainant's knowledge, information and belief, 8605-C Village Way, Alexandria, Virginia 22309.

(Emphasis added.)

The circuit court granted husband's service by publication request.While wife's misdemeanor case was on the J & DR calendar, husband appeared in that court on several occasions after the annulment suit was initiated and the publication request made.During one or more of the parties' appearances in J & DR, husband asked his wife to disclose her address.She refused because she was not permitted to disclose the address of the shelter where she was residing.However, there were continuing contacts between the parties.Wife's criminal defense counsel testified that she spoke with husband, gave him her business card, and instructed him that if he wanted to communicate with his wife he should do so in writing through wife's counsel's office.Husband never contacted his wife's counsel while the annulment suit was pending.Husband denied ever being told by his wife's counsel to communicate through her office or receiving her business card.The final decree was entered August 10, 1989, and wife first learned of the annulment of the marriage in a letter sent to her by the Immigration and Naturalization Service in February 1992.

Code§ 8.01-316(1)(b) authorizes service by publication only when "[due] diligence has been used without effect to ascertain the location of the party to be served.""The object of Code§§ 8.01-316 and 8.01-317 is to protect parties by giving them notice and an opportunity to present a defense.Because service by publication constitutes constructive notice only, these sections must be strictly construed."Carlton v. Paxton, 14 Va.App. 105, 112, 415 S.E.2d 600, 604(1992)(citingForrer v. Brown, 221 Va. 1098, 1105, 277 S.E.2d 483, 486(1981))(other citations omitted).The grounds stated in the affidavit...