Eddie Franklin Brock v. Lorna R. Coggin

• Court: Court of Appeals of Virginia
• Decided: April 15, 1997
• Docket: 1613961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Bray Argued at Norfolk, Virginia

EDDIE FRANKLIN BROCK MEMORANDUM OPINION * v. Record No. 1613-96-1 BY JUDGE JOSEPH E. BAKER APRIL 15, 1997 LORNA R. COGGIN

FROM THE CIRCUIT COURT OF SURRY COUNTY Robert G. O'Hara, Jr., Judge John B. Gaidies (Joynes & Bieber, P.C., on brief), for appellant.

Sterling H. Weaver, Sr., for appellee.

Eddie Franklin Brock (appellant) appeals from a decree

entered on May 28, 1996 by the Circuit Court of Surry County

(trial court) that denied his motion to require Lorna R. Coggin

(appellee), his former wife, to repay monies he asserts were

overpayment of child support he previously had been ordered by

the trial court to pay appellee.

On July 19, 1994, appellant moved the Juvenile and Domestic

Relations District Court of Surry County (lower court) to modify

a previous order of that court that required appellant to pay

$615 per month to appellee for the support of two children. In

addition, appellant moved that court to order appellee to pay

Metropolitan Insurance Company the sum of $5,000 that she had

received from the Social Security Administration for the benefit

* Pursuant to Code § 17-116.010, this opinion is not designated for publication. of the parties' two children. Appellant was dissatisfied with

the judgment of the lower court and appealed the judgment to the

trial court.

By decree entered on May 28, 1996, the trial court ordered

that the "child support obligation of [appellant] shall cease

retroactively to July 1, 1994 . . . ." However, by that same

decree, the trial court found that it had no authority to order

appellee to refund any sums paid appellee by Social Security on

behalf of the children of the parties which were in excess of

appellant's child support obligation. Therefore, it denied

appellant's request for the refund. Appellee contends that because appellant failed to timely

file a transcript or written statement of facts, this matter

should be dismissed without further consideration pursuant to

Rule 5A:8. See Rule 5A:8; Barrett v. Barrett, 1 Va. App. 378,

339 S.E.2d 208 (1986).

On October 2, 1996, the Court of Appeals of Virginia issued

an order to appellant to show cause why this appeal should not be

dismissed. Appellant did not challenge the fact that a

transcript or written statement of facts was not timely filed.

Instead, he asserts that the record sufficiently states the

factual merits and legal issues for a determination of this 1 case. 1 We note that appellant's formal motion alleges that the "lump sum award" ($5,000) belongs to Metropolitan Insurance Company, and the prayer of the motion is for "the entry of an order requiring the [appellee] to reimburse Metropolitan

- 2 - Judgments of the trial court are presumed correct, Dodge v.

Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986), and may

not be set aside unless plainly wrong. Code § 8.01-680; Carter

v. Carter, 223 Va. 505, 508-09, 291 S.E.2d 218, 220 (1982). We

have reviewed the record and, without a transcript or written

statement of facts, we find that we cannot determine whether the

trial court's findings require that we reverse its decree.

We hold that a transcript or written statement of facts is

indispensable to a determination of the issues raised, including

whether the decree appealed from must be reversed. Rule 5A:8

instructs as to the time within which a statement of facts must

be filed. On this record, failure to timely file a statement of

facts is jurisdictional and therefore requires that appellant's

appeal be dismissed, see Jordan v. Price, 3 Va. App. 672, 353 S.E.2d 168 (1987); Barrett v. Barrett, 1 Va. App. 378, 339 S.E.2d

208 (1986), and that the judgment of the trial court be affirmed.

Affirmed.

Insurance Co. for the sums rightfully due it."

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