Jean A Gantt v. Barry Gantt

• Court: Court of Appeals of Virginia
• Decided: March 4, 2003
• Docket: 1973023
• Status: Unpublished

Opinion

COURT OF APPEALS OF Virginia

Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Coleman

JEAN A. GANTT MEMORANDUM OPINION * v. Record No. 1973-02-3 PER CURIAM MARCH 4, 2003 BARRY GANTT

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY John J. McGrath, Jr., Judge

(Jeffrey A. Ward; Paul A. Dryer; Franklin, Denney, Ward & Lawson, PLC, on briefs), for appellant.

(Danita S. Alt, on brief), for appellee.

Jean Gantt (wife) appeals rulings made by the trial court in

her divorce proceedings. On October 23, 2002, Barry Gantt

(husband) filed a motion in this Court to dismiss wife's appeal

for failure to file an appeal bond pursuant to Code § 8.01-676.1.

On October 25, 2002, husband filed an amended motion to dismiss on

the same ground. On November 7, 2002, wife moved for leave to

file the appeal bond and requested that the Court deny husband's

motion to dismiss. We grant wife's motion to file an appeal bond

and deny husband's motion to dismiss wife's appeal.

On appeal, wife contends the trial court erred: (1) in

considering post-separation adultery as a factor in establishing

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. spousal support; and (2) in imputing income to wife in calculating

spousal support. Upon reviewing the record and briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

See Rule 5A:27.

BACKGROUND

On April 19, 2002, the trial court heard evidence relating to

equitable distribution and spousal support. After hearing

testimony from most of the witnesses, the trial court indicated it

had another case scheduled and continued the matter. On May 30,

2002, the trial court heard testimony from wife's father and

additional testimony from wife, after which the parties presented

closing arguments.

After reviewing all of the evidence, the trial court

classified the parties' property and rendered an equitable

distribution award. In addition, the trial court indicated its

decision to award husband spousal support of $800 per month for a

period of nine years, explaining that it "considered all of the

evidence in light of the factors set out in [Code §] 20-107.1(E),"

including the circumstances and "factors which contributed to the

dissolution of the marriage." Code § 20-107.1(E). The trial

court noted that wife failed to submit any evidence supporting

her assertion that she was unable to work full-time. At the

conclusion of the hearing, the trial court directed husband's

- 2 - attorney to prepare an order reflecting its oral rulings. The

parties voiced no objections at that time.

The trial court signed and filed the final order on July 1,

2002. Husband's attorney signed it "Seen and agreed." In the

space for wife's signature, the trial judge wrote "Waived

[pursuant to] Rule 1:13" and initialed it. In the order, the

trial court directed the clerk to "certify copies of this order

to counsel of record."

On July 30, 2002, wife filed a "Notice of Respondent's

Objections to Final Order." In it, wife claimed she provided

husband's attorney with an order in which she objected to the

trial court's consideration of fault in awarding spousal support

and to its imputation of income to wife despite her inability to

work.

DISCUSSION

In her opening brief, wife refers to her July 30, 2002

"Notice of Respondent's Objections to Final Order" as indicating

where she preserved the issues for appeal. Although wife

included in that "Notice" the two issues she now raises, she

filed it twenty-nine days after entry of the July 1, 2002 final

decree.

In his brief, husband argues, inter alia, that wife failed

to timely preserve her issues for appeal.

Wife submitted a reply brief invoking the ends of justice

exception to Rule 5A:18. In it, she contends she "overnighted

- 3 - the [signed] order," which contained her objections, to

husband's attorney on June 28, 2002, "in time to present the

same to the court on July 1, 2002." She alleges that husband's

attorney "instead presented the original order [husband's

attorney] had prepared to the court for entry on July 1, 2002."

ANALYSIS

"All final judgments, orders, and decrees, irrespective of

terms of court, shall remain under the control of the trial

court and subject to be modified, vacated, or suspended for

twenty-one days after the date of entry, and no longer." Rule

1:1.

Wife filed her objections twenty-nine days after entry of

the final decree. Because the decree became final twenty-one

days after the date of entry, the trial court no longer had

jurisdiction over the case. See Rule 1:1.

Moreover, "Rule 5A:18 requires that objections to a trial

court's action or ruling be made with specificity in order to

preserve an issue for appeal." Collado v. Commonwealth, 33

Va. App. 356, 367, 533 S.E.2d 625, 631 (2000). The purpose of

Rule 5A:18 is to ensure that the trial court and opposing party

are given the opportunity to intelligently address, examine, and

resolve issues in the trial court, thus avoiding unnecessary

appeals and reversals. Kaufman v. Kaufman, 12 Va. App. 1200,

1204, 409 S.E.2d 1, 3-4 (1991); Lee v. Lee, 12 Va. App. 512,

514, 404 S.E.2d 736, 737 (1991) (en banc).

- 4 - Wife made no objections to the trial court orally or in

writing during the time within which the trial court had

jurisdiction.

Although wife suggests opposing counsel submitted the wrong

last page of the order, she never alleged fraud or explained why

she never timely filed objections after the order was submitted

and entered, and copies were sent to counsel.

Rule 1:13 allows the trial court to dispense with

endorsements on orders "in its discretion." "Courts are

presumed to act in accordance with the law and orders of the

court are entitled to a presumption of regularity." Napert v.

Napert, 261 Va. 45, 47, 540 S.E.2d 882, 884 (2001) (citing Beck

v. Semones' Adm'r, 145 Va. 429, 442, 134 S.E. 677, 681 (1926)).

Appellant failed to timely submit any objections, and when

she did so, the trial court no longer had jurisdiction over the

case. Therefore, Rule 5A:18 precludes us from addressing her

issues on appeal. Moreover, because appellant failed to

indicate why she waited so long to submit her objections and

because the decree is entitled to a presumption that the trial

court properly exercised its discretion in dispensing with

endorsement of the decree, the record does not reflect any

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

Rule 5A:18.

- 5 - Accordingly, we summarily affirm the decision of the trial

court. See Rule 5A:27.

Affirmed.

- 6 -