Anthony Carl Woodson v. Bernadette E.B. Woodson

• Court: Court of Appeals of Virginia
• Decided: November 16, 1999
• Docket: 1257993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

ANTHONY CARL WOODSON MEMORANDUM OPINION * v. Record No. 1257-99-3 PER CURIAM NOVEMBER 16, 1999 BERNADETTE ELIZA BANNISTER WOODSON

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Ray W. Grubbs, Judge

(Anthony Carl Woodson, pro se, on briefs).

(William C. Maxwell; Jolly, Place, Fralin & Prillaman, P.C., on brief), for appellee.

Anthony Carl Woodson (husband) appeals from the final decree

of divorce entered by the Montgomery County Circuit Court (trial

court). Husband contends that the trial court (1) erred by

denying him a fair and impartial trial; (2) erred by granting

Bernadette Eliza Bannister Woodson (wife) a divorce based upon the

parties' separation for more than six months; (3) abused its

discretion in entering the pendente lite support order; (4) abused

its discretion in awarding excessive temporary and permanent

spousal support; (5) erred in granting wife an excessive

percentage of his police pension; (6) erred in finding that the

parties had amicably divided all marital personal property; and

(7) erred by setting the spousal support arrearage husband owed

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. where husband had declared bankruptcy, and by not coordinating the

arrearage issue with the bankruptcy court. Wife contends that the

appeal should be dismissed based on husband's failure to comply

with Rule 5A:8. Upon reviewing the record and the briefs, we find

the record inadequate to address issues three, four and seven and

dismiss those issues. We conclude that issues one, two, five and

six are without merit and summarily affirm the decision of the

trial court. See Rule 5A:27.

Wife filed her bill of complaint for divorce on April 10,

1996. Following a May 30, 1996 hearing, and without objection

from husband, the trial court entered an order setting the amount

of temporary spousal support husband was to pay wife. On

September 11, 1997, the trial court entered an order setting

husband's spousal support arrearage at $16,839.18. Counsel for

husband signed the order "Seen and objected to – The payment of

arrears is subject to, and contingent upon, the approval of the

Bankruptcy Court referenced in paragraph #1 above."

On March 4, 1999, after appellant relocated to South

Carolina, the trial court entered an order relieving husband's

attorney, and ordering that, in the future, all service upon

husband would be by first class United States mail to husband's

South Carolina address.

- 2 - On March 31, 1999, following an ore tenus hearing that

husband did not attend, 1 the trial court entered an amended order

setting husband's spousal support arrearage at $19,829.81. The

trial court waived the necessity of husband's signature on the

order, pursuant to Rule 1:13.

On April 8, 1999, wife sent husband a notice to take

depositions, which were conducted on April 23, 1999. Husband did

not appear for the depositions. On May 5, 1999, wife submitted a

final decree of divorce to the trial court, which the court signed

on May 12, 1999.

Husband concedes that he received a copy of the decree on

May 21, 1999. He did not file any objection to the decree with

the trial court, but instead, on June 3, 1999, filed a notice of

appeal. Husband mailed a statement of facts to the trial court on

July 27, 1999, but because he sent it to the wrong address, the

statement was not filed with the clerk's office until August 10,

1999.

The procedures for preparing a written statement of facts

for the appellate record are governed by Rule 5A:8. See Mayhood

v. Mayhood, 4 Va. App. 365, 368-69, 358 S.E.2d 182, 184 (1987).

Rule 5A:8(c)(1) requires that the statement of facts be filed in

the office of the clerk of the trial court within fifty-five

1 A copy of the notice for the hearing, which was held on March 4, 1999, was mailed to husband's attorney on February 4, 1999.

- 3 - days of entry of the final order of judgment. This Court has

established a firm policy concerning the filing of transcripts

and statements of facts:

"If . . . the transcript [or statement of facts] is indispensable to the determination of the case, then the requirements for making the transcript a part of the record on appeal must be strictly adhered to. This Court has no authority to make exceptions to the filing requirements set out in the Rules."

Anderson v. Commonwealth, 13 Va. App. 506, 508, 413 S.E.2d 75,

77 (1992) (quoting Turner v. Commonwealth, 2 Va. App. 96, 99,

341 S.E.2d 400, 402 (1986)).

"If we determine that the [statement of facts] is

indispensable and is not a part of the record before us for

review, we must dismiss the appeal on the ground that the record

on appeal is insufficient to fairly and accurately determine the

issues presented." Turner, 2 Va. App. at 99, 341 S.E.2d at 402.

The trial court entered the final decree on May 12, 1999.

Thus, the statement of facts had to be filed in the trial court's

clerk's office no later than July 6, 1999. Husband failed,

therefore, to comply with Rule 5A:8(c). Moreover, because husband

seeks to invoke the ends of justice exception to Rule 5A:18, and

because what transpired at the hearings pertaining to temporary

spousal support and the subsequent spousal support arrearages

might be relevant to such a determination, we conclude that the

record is insufficient to address issues three, four and seven.

- 4 - We conclude, however, that the statement of facts is not

indispensable to adjudicating the remaining issues husband raises

on appeal. No hearing was held in connection with the entry of

the final decree, and the evidence relied upon in entering the

decree was in the form of depositions, which are contained in the

record.

"We will not consider for the first time on appeal an issue

that was not preserved in the trial court." Martin v. Martin, 27

Va. App. 745, 752, 501 S.E.2d 450, 453 (1998). See Rule 5A:18.

Husband concedes that he did not preserve in the trial court

any of the issues he now seeks to raise on appeal. Instead of

seeking to convince the trial court to set aside the final decree,

husband elected to by-pass that court and file his notice of

appeal. Thus, Rule 5A:18 bars our consideration of issues one,

two, five and six. Moreover, the record does not reflect any

reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18.

Accordingly, the judgment of the trial court is summarily

affirmed.

Affirmed in part and dismissed in part.

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