COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Fitzpatrick and Annunziata Argued at Alexandria, Virginia
ANTHONY WELLS MEMORANDUM OPINION * v. Record No. 2601-96-4 BY JUDGE JOSEPH E. BAKER NOVEMBER 18, 1997 CYNTHIA NORTH WELLS
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY William Shore Robertson, Judge Robin C. Gulick (Robin C. Gulick, P.C., on briefs), for appellant.
Burke F. McCahill (Sevila, Saunders & McCahill, on brief), for appellee.
Anthony Wells (husband) appeals from a decree of divorce
entered by the Circuit Court of Fauquier County (trial court)
that made equitable distribution and spousal support awards to
Cynthia North Wells (wife). Husband contends that the trial
court failed to consider all the factors contained in Code
§ 20-107.3; erred in applying a formula that inflated wife's
equity in property known as "Log House Hollow" by failing to
include therein a second deed of trust; erred by failing to give
credit to husband for mortgage payments he made after the parties
separated; and erred in making the spousal support award without
imputing income to wife, thereby requiring husband to make
spousal support payments in excess of wife's needs. Wife
contends that husband's acceptance of the benefit of the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. equitable distribution decree, under which he purchased wife's
interest in the marital residence, bars our review of this issue
on appeal. In addition, she contends that all assignments of
error are barred by husband's failure timely to file transcripts
of the proceedings below. For the reasons that follow, we affirm
the ruling of the trial court.
EQUITABLE DISTRIBUTION
Wife moves to dismiss husband's appeal of the equitable
distribution award on the ground that it is barred by husband's
acceptance of a portion of the benefit of the award. Wife points
to language in the final decree indicating that "counsel
conferred and reached agreement to modify the provisions of this
court's letter opinion in order to provide [two alternate
methods] . . . for the orderly disposition of this property."
She argues that husband's exercising one of those two methods by
purchasing wife's interest in Log House Hollow precludes the
relief husband seeks because the court lacks jurisdiction over
what is now husband's separate property. We disagree. In essence, wife received a money judgment for
$132,595 that was secured by the marital residence. The decree,
entered September 20, 1996, appointed the parties' attorneys as
special commissioners, and it provided that they would convey
title to husband upon his payment of the judgment amount but that
they would sell the residence if husband had not paid that amount
by December 20, 1996. Husband would remain liable for any
- 2 - deficiency in the amount of the judgment after the sale. Husband
registered specific written objections to the equitable
distribution provisions of the decree, thereby preserving his
right to appeal those issues, and noted his appeal on October 18,
1996. Thereafter, on December 17, 1996, only three days prior to
the scheduled sale of Log House Hollow, husband satisfied the
judgment, and the special commissioners conveyed the residence to
husband. "The general rule is that the payment of a judgment deprives
the payor of the right of appeal only if payment was made
voluntarily." Carlucci v. Duck's Real Estate, Inc., 220 Va. 164,
166, 257 S.E.2d 763, 765 (1979) (emphasis added). In this case,
husband objected to the trial court's entry of judgment against
him and satisfied the judgment after he had properly noted his
appeal in order to avoid imminent judicial sale of the property.
Therefore, husband's payment was not voluntary and did not
constitute a waiver of his right of appeal.
Wife also contends that husband failed timely to file
transcripts of the proceedings necessary to support the equitable
distribution claims. When filing his notice of appeal, husband
notified the clerk and wife that "A transcript or statement of
facts, testimony and other instances of the case will be filed." (Emphasis added). When husband recited in his notice that a
transcript "will be filed," wife had a "right to rely on . . .
[that] representation." See Twardy v. Twardy, 14 Va. App. 651,
- 3 - 655, 419 S.E.2d 848, 850 (1992) (en banc). The transcript
becomes a part of the record only when timely filed with the
clerk. See Williams v. Commonwealth, 7 Va. App. 516, 518, 375
S.E.2d 364, 365 (1988); Rule 5A:8. The absence or late filing of the transcript, however, does nothing to diminish our jurisdiction. If the record on appeal is sufficient in the absence of the transcript to determine the merits of the appellant's allegations, we are free to proceed to hear the case. . . . If, however, the transcript 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.
See Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400,
402 (1986) (citation omitted). This Court may extend the filing
deadline for "good cause," but only "[u]pon a written motion
filed within 60 days after entry of the final judgment." Rule
5A:8(a). No such motion was filed in this case. Accordingly, we
find that the referenced transcripts are not a part of the record
on appeal.
Husband complains that in making the equitable distribution
award, the trial court relied wholly on the so-called "magic
formula" to calculate the parties' equity in Log House Hollow and
failed to consider all the statutory factors, including husband's
monetary contributions to the marital residence. The trial
court's judgment is presumed to be correct, and the burden is on
appellant to present us with a sufficient record from which we
can determine that the lower court has erred. See Twardy, 14 Va.
- 4 - App. at 658, 419 S.E.2d at 852; see also Justis v. Young, 202 Va.
631, 632, 119 S.E.2d 255, 256-57 (1961). Here, the transcripts
of the many proceedings below may not be considered because they
were not timely filed on appeal, and the trial court's letter
opinion and final decree, which are properly contained in the
record, state that the trial court considered all statutory
factors. We see nothing in the portion of the record we may
consider indicating that the trial court failed properly to
consider those factors, and we affirm the trial court's ruling on
this issue. Husband also contends that the trial court misapplied the
magic formula, resulting in the miscalculation of the parties'
equity in Log House Hollow and a failure to credit husband for
post-separation mortgage reduction. Again, the transcripts may
not be considered because they were not timely filed, but we
consider the court's letter opinion with attachments and the
final decree sufficient to permit our limited review.
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Fitzpatrick and Annunziata Argued at Alexandria, Virginia
ANTHONY WELLS MEMORANDUM OPINION * v. Record No. 2601-96-4 BY JUDGE JOSEPH E. BAKER NOVEMBER 18, 1997 CYNTHIA NORTH WELLS
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY William Shore Robertson, Judge Robin C. Gulick (Robin C. Gulick, P.C., on briefs), for appellant.
Burke F. McCahill (Sevila, Saunders & McCahill, on brief), for appellee.
Anthony Wells (husband) appeals from a decree of divorce
entered by the Circuit Court of Fauquier County (trial court)
that made equitable distribution and spousal support awards to
Cynthia North Wells (wife). Husband contends that the trial
court failed to consider all the factors contained in Code
§ 20-107.3; erred in applying a formula that inflated wife's
equity in property known as "Log House Hollow" by failing to
include therein a second deed of trust; erred by failing to give
credit to husband for mortgage payments he made after the parties
separated; and erred in making the spousal support award without
imputing income to wife, thereby requiring husband to make
spousal support payments in excess of wife's needs. Wife
contends that husband's acceptance of the benefit of the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. equitable distribution decree, under which he purchased wife's
interest in the marital residence, bars our review of this issue
on appeal. In addition, she contends that all assignments of
error are barred by husband's failure timely to file transcripts
of the proceedings below. For the reasons that follow, we affirm
the ruling of the trial court.
EQUITABLE DISTRIBUTION
Wife moves to dismiss husband's appeal of the equitable
distribution award on the ground that it is barred by husband's
acceptance of a portion of the benefit of the award. Wife points
to language in the final decree indicating that "counsel
conferred and reached agreement to modify the provisions of this
court's letter opinion in order to provide [two alternate
methods] . . . for the orderly disposition of this property."
She argues that husband's exercising one of those two methods by
purchasing wife's interest in Log House Hollow precludes the
relief husband seeks because the court lacks jurisdiction over
what is now husband's separate property. We disagree. In essence, wife received a money judgment for
$132,595 that was secured by the marital residence. The decree,
entered September 20, 1996, appointed the parties' attorneys as
special commissioners, and it provided that they would convey
title to husband upon his payment of the judgment amount but that
they would sell the residence if husband had not paid that amount
by December 20, 1996. Husband would remain liable for any
- 2 - deficiency in the amount of the judgment after the sale. Husband
registered specific written objections to the equitable
distribution provisions of the decree, thereby preserving his
right to appeal those issues, and noted his appeal on October 18,
1996. Thereafter, on December 17, 1996, only three days prior to
the scheduled sale of Log House Hollow, husband satisfied the
judgment, and the special commissioners conveyed the residence to
husband. "The general rule is that the payment of a judgment deprives
the payor of the right of appeal only if payment was made
voluntarily." Carlucci v. Duck's Real Estate, Inc., 220 Va. 164,
166, 257 S.E.2d 763, 765 (1979) (emphasis added). In this case,
husband objected to the trial court's entry of judgment against
him and satisfied the judgment after he had properly noted his
appeal in order to avoid imminent judicial sale of the property.
Therefore, husband's payment was not voluntary and did not
constitute a waiver of his right of appeal.
Wife also contends that husband failed timely to file
transcripts of the proceedings necessary to support the equitable
distribution claims. When filing his notice of appeal, husband
notified the clerk and wife that "A transcript or statement of
facts, testimony and other instances of the case will be filed." (Emphasis added). When husband recited in his notice that a
transcript "will be filed," wife had a "right to rely on . . .
[that] representation." See Twardy v. Twardy, 14 Va. App. 651,
- 3 - 655, 419 S.E.2d 848, 850 (1992) (en banc). The transcript
becomes a part of the record only when timely filed with the
clerk. See Williams v. Commonwealth, 7 Va. App. 516, 518, 375
S.E.2d 364, 365 (1988); Rule 5A:8. The absence or late filing of the transcript, however, does nothing to diminish our jurisdiction. If the record on appeal is sufficient in the absence of the transcript to determine the merits of the appellant's allegations, we are free to proceed to hear the case. . . . If, however, the transcript 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.
See Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400,
402 (1986) (citation omitted). This Court may extend the filing
deadline for "good cause," but only "[u]pon a written motion
filed within 60 days after entry of the final judgment." Rule
5A:8(a). No such motion was filed in this case. Accordingly, we
find that the referenced transcripts are not a part of the record
on appeal.
Husband complains that in making the equitable distribution
award, the trial court relied wholly on the so-called "magic
formula" to calculate the parties' equity in Log House Hollow and
failed to consider all the statutory factors, including husband's
monetary contributions to the marital residence. The trial
court's judgment is presumed to be correct, and the burden is on
appellant to present us with a sufficient record from which we
can determine that the lower court has erred. See Twardy, 14 Va.
- 4 - App. at 658, 419 S.E.2d at 852; see also Justis v. Young, 202 Va.
631, 632, 119 S.E.2d 255, 256-57 (1961). Here, the transcripts
of the many proceedings below may not be considered because they
were not timely filed on appeal, and the trial court's letter
opinion and final decree, which are properly contained in the
record, state that the trial court considered all statutory
factors. We see nothing in the portion of the record we may
consider indicating that the trial court failed properly to
consider those factors, and we affirm the trial court's ruling on
this issue. Husband also contends that the trial court misapplied the
magic formula, resulting in the miscalculation of the parties'
equity in Log House Hollow and a failure to credit husband for
post-separation mortgage reduction. Again, the transcripts may
not be considered because they were not timely filed, but we
consider the court's letter opinion with attachments and the
final decree sufficient to permit our limited review.
Despite husband's contention, we find no error in the
court's application of the magic formula to its calculation of
the parties' equity in Log House Hollow. We cannot say the trial
court erred in concluding that wife was entitled to receive the
value of the appreciation in equity resulting from her initial
$150,000 contribution toward the purchase of Log House Hollow,
which was given in the form of a lien on Chesterfield. We also
cannot conclude that it erred in refusing to subtract from the
- 5 - total equity available for division the amount of the $150,000
note against Log House Hollow. Evidence in the record shows the
parties stipulated that husband would convey the jointly-titled
Chesterfield property to wife free of encumbrances, thereby
assuming sole responsibility for that $150,000 lien against Log
House Hollow. If the court were required to deduct that $150,000
from the value of the equity in Log House Hollow for purposes of
equitable distribution calculations, it would nullify the effect
of the parties' stipulations. We also cannot say that the trial court failed to credit
husband for his post-separation reduction in the mortgage
principal. After husband brought this omission to the court's
attention, it explained very clearly in the final decree that it
was giving husband credit for these payments by permitting
husband to keep wife's share of the assets of TKC corporation,
marital property that it had previously misclassified as
husband's separate property. Rather than revalue the corporation
as marital, it permitted husband to retain all corporate assets,
valued at $61,242.27, as credit for his post-separation reduction
in mortgage principal of no more than $12,182.12. Therefore, the
record makes clear that husband has already received the credit
he now seeks.
In light of the late filed transcripts and the record
properly before us on appeal, we cannot conclude that the trial
court erred in fashioning the equitable distribution award in
- 6 - this case.
SPOUSAL SUPPORT
In a letter dated July 1, 1996, reciting that it had
considered the factors set forth in Code § 20-107.1, the trial
court made an award of spousal support of $3,600 monthly in favor
of wife beginning July 15, 1996. Husband contends that the trial
court erred in failing to impute income to wife and in awarding
her more than her needs justified. We hold that the income imputation argument is barred by the
late filing of the transcripts. Although husband objected to
entry of the final decree based on the court's failure to impute
income to wife, nothing in the record indicates that husband had
previously raised this issue to the trial court, and we have no
evidence before us on appeal showing that the failure to impute
income constitutes error.
Also barred is husband's argument that the award exceeded
wife's justified needs, as compared to husband's ability to pay. 1
The record contains the parties' income and expense sheets, but
due to the late filing of transcripts, it contains no evidence
supporting or disputing their respective incomes and expenses.
Given that wife's evidence shows uncontradicted monthly expenses
of $6,601.44 as compared to an award of $3,600, we simply cannot
say that the trial court erred in making such an award.
Based on those portions of the record we may consider, we 1 Husband appears to concede this bar in his reply brief.
- 7 - cannot say that the trial court's equitable distribution or
spousal support awards were erroneous. Accordingly, the judgment
of the trial court is affirmed.
Affirmed.
- 8 -