Hongyi Zhou v. Bo L Zhou

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Overton Argued at Alexandria, Virginia

HONGYI ZHOU MEMORANDUM OPINION * BY v. Record No. 0032-02-4 JUDGE NELSON T. OVERTON OCTOBER 15, 2002 BO L. ZHOU

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Leslie M. Alden, Judge

Edward V. O'Connor, Jr. (Byrd Mische, P.C., on brief), for appellant.

David M. Levy (Surovell, Jackson, Colten & Dugan, P.C., on brief), for appellee.

Hongyi Zhou (husband) contends the trial court erred in (1)

requiring him to transfer to Bo L. Zhou (wife) additional

retirement assets which were not covered by the final divorce

decree; (2) denying his motion to modify child support; and (3)

failing to give him a credit for childcare costs from June 2001

through December 2001. We affirm the trial court's ruling

because the record is insufficient to determine the issues

raised on appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Discussion

In an appeal from a divorce decree, "[t]he burden is upon

the party appealing to point out the error in the decree and to

indicate how and why it was wrong." Kaufman v. Kaufman, 7

Va. App. 488, 499, 375 S.E.2d 374, 380 (1988).

Because the judgment of the court below is presumed to be correct, the onus is upon the appellant to provide the reviewing court with a sufficient record from which it can be determined whether the trial court erred as the appellant alleges. If an insufficient record is furnished, the judgment appealed from will be affirmed.

White v. Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995).

Husband failed to provide in the record on appeal

transcripts or statements of fact from (A) the June 8, 2001

hearing on wife's show cause motion at which the trial court

found that husband was "in violation" for failing to comply with

the terms of the final decree, and (B) the December 17, 2001

hearing at which husband asked the trial court to reconsider its

earlier rulings. At the conclusion of the June 8, 2001

evidentiary hearing, the trial judge found the husband in

violation of the final decree in failing to transfer the assets

and ordered the husband to transfer specific assets.

The record contains a Statement of Facts from the November

20, 2001 hearing. 1 As a result of that hearing, the trial court

1 Rule 5A:25 requires an appellant to file an appendix, which "shall include," inter alia, "any testimony and other incidents of the case germane to the questions presented."

- 2 - entered the November 30, 2001 order granting wife's motion to

compel and ordering husband to "transfer to [wife] the amount of

$9,443.76 of assets pursuant to the terms of the Final Decree of

Divorce." Although that Statement of Facts explains each

party's argument made to the trial court, it fails to indicate

the evidence presented to the trial court or the evidence relied

upon by the trial court in making its ruling.

The record also indicates the husband filed a motion to

modify his child support obligation and to obtain a credit for

overpayment. That motion was also considered at the November

20, 2001 hearing. The Statement of Facts also fails, however,

to recite the evidence that was presented at the hearing in

support of this motion to modify child support and to award a

credit for an alleged overpayment.

Moreover, neither the Statement of Facts nor the contested

orders contains the trial court's rationale for ruling as it did

on the motions. Absent any explanation as to what evidence the

trial court relied upon or why it ruled as it did, we cannot

determine whether it committed reversible error in making the

rulings complained of on appeal. In summary, because husband

failed to provide us with a sufficient record to substantiate

his allegations of trial error, we affirm the trial court's

Husband failed to designate for inclusion in the appendix a copy of the signed Statement of Facts. Husband's omission hampered efficient appellate review.

- 3 - decisions. See Kyhl v. Kyhl, 32 Va. App. 53, 59-60, 526 S.E.2d

292, 295 (2000) (holding that records of cases on appeal must be

"'accurate [and] complete to the degree necessary to adjudicate

the appeal'").

In addition, we award appellee her attorney's fees for this

appeal. Accordingly, we remand this cause to the trial court to

award reasonable attorney's fees and costs to wife for this

appeal and for any further proceeding in the trial court in

connection with the award of fees and costs.

Affirmed and remanded.

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