COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata Argued at Chesapeake, Virginia
JOSEPH S. KOST MEMORANDUM OPINION * BY v. Record No. 0116-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK DECEMBER 14, 1999 ROBERTA E. KOST
FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge
Nancy J. Luchs (Furlong & Luchs, on brief), for appellant.
No brief or argument for appellee.
In this domestic relations case, Joseph S. Kost (husband)
appeals the trial court's equitable distribution order. On
appeal, he contends the trial court erred: (1) in making an
equitable distribution award based on the written proffers of
the parties and without properly considering the statutory
factors of Code § 20-107.3; (2) in awarding fifty-percent of the
marital property to wife and in making various other awards,
including in-kind marital property, distribution of IRA accounts
and permanent spousal support; (3) in its calculation of
pendente lite support; (4) in declining to postpone the
equitable distribution hearing until a court reporter arrived;
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. (5) by including a "hold harmless" provision in the award of
real property to husband; (6) in requiring husband to maintain a
survivor benefit plan for wife under his military retirement;
and (7) in continuing pendente lite support after the entry of
the divorce decree and equitable distribution award. 1
I. BACKGROUND
On appeal, we construe the evidence in the light most
favorable to wife, the prevailing party below, granting to her
evidence all reasonable inferences fairly deducible therefrom.
See Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257
(1995) (citing McGuire v. McGuire, 10 Va. App. 248, 250, 391
S.E.2d 344, 346 (1990)).
So viewed, the evidence established that the parties were
married October 23, 1971 in Devon, Pennsylvania. Husband served
in the United States Air Force for approximately 26 years, and
he retired August 1, 1998. Wife worked as an office manager for
approximately ten years. The parties separated October 1, 1996.
Following an initial pendente lite support hearing, husband
was ordered to pay wife temporary support in the amount of
$2,797 per month. On August 5, 1998, husband moved the court to
1 In his opening brief, husband alleged fourteen assignments of error. Some of his arguments are repetitive and, accordingly, we have combined his arguments in this appeal.
- 2 - reduce the award of temporary spousal support. 2 Following the
direct examination of husband, the hearing was continued to
August 19, 1998 ("August hearing").
At the August hearing, both husband and wife testified as
to their income and financial obligations. Based upon the
evidence presented, the trial court reduced wife's award of
temporary support to $2,473 per month. 3 At that time, the trial
court also conducted a pretrial hearing, in which the parties
discussed the disputed issues and the trial court advised the
parties of its method of equitable distribution.
The equitable distribution hearing was held on November 5,
1998 ("November hearing"). Adhering to the pretrial schedule,
the parties presented testimony and the trial court reviewed
their written proffers. Throughout the hearing, the trial judge
made various oral rulings, to which husband did not object. At
the conclusion of the November hearing, husband's counsel was
asked to prepare the order reflecting the trial court's
decisions.
On December 15, 1998 ("December hearing"), the parties
appeared before the trial court to resolve undetermined issues,
2 Husband failed to file in the trial court the transcript of the August 5, 1998 hearing and, therefore, we are unable to determine what occurred at that hearing. 3 On September 21, 1998, the parties appeared before the trial court because they disputed the previous pendente lite support award. However, husband failed to include this transcript in the Appendix.
- 3 - including equitable distribution of life insurance policies,
husband's military pension, and various claims for personal
property. Husband objected to the trial court's rulings from
the November hearing. After considering arguments, the trial
court held that the objections were untimely and, therefore,
waived.
Ms. Luchs, I'm baffled by your today's position. We went through -- and although this may be your first case in the Ninth Circuit, you certainly went through an educational process in September when we did our pretrial. The Court explained to you how that would happen.
* * * * * * *
. . . And I have a note that there are no facts in dispute under the factors, and we would have resolved that on August 19, 1998.
Ms. Luchs, in all due respect to you and your concern about the procedure of the Court, when there's no facts in dispute under the factors, there's nothing to try except what we set forth on other types of issues such as the classification issues, and we assign burdens of proof on those. . . . Everything else under classification was agreed.
Now, we've spent an hour this morning discussing or retrying the case. The Court will enter an order of divorce, retain the matter on the docket for further determination as to . . . permanent support . . . .
In its decree entered December 15, 1998, the trial court granted
the parties a divorce. The trial court "expressly retain[ed]"
- 4 - its jurisdiction to determine the issue of permanent spousal
support and ordered that pendente lite support continue "until
further modified." In a separate order, the trial court awarded
equitable distribution of the property.
II. RULE 5A:18
Rule 5A:18 provides that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice." Rule 5A:18;
see also Taylor v. Taylor, 27 Va. App. 209, 212, 212 n.1, 497
S.E.2d 916, 917, 917 n.1 (1998); Smith v. Smith, 18 Va. App.
427, 433, 444 S.E.2d 269, 273-74 (1994).
The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals. In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)
(citation omitted).
The "ends of justice" exception is "narrow and is to be
used sparingly. . . ." Patrick v. Commonwealth, 27 Va. App.
655, 660, 500 S.E.2d 839, 842 (1998) (citations omitted). "In
order to avail oneself of the exception, a defendant must
affirmatively show that a miscarriage of justice has occurred,
- 5 - not that a miscarriage might have occurred." Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)
(emphasis in original).
In the instant case, many of husband's assignments of error
were not properly preserved in the trial court proceedings and,
thus, Rule 5A:18 bars our consideration of them on appeal.
III. EQUITABLE DISTRIBUTION HEARING
A. Use of Written Proffers
Husband argues that the trial court erred in making an
equitable distribution award based on the submitted written
proffers of the parties and in limiting his presentation of
evidence.
Husband did not request that he be allowed to call
witnesses on his behalf, and he failed to object to the trial
court's method of taking evidence at the November hearing. It
was not until the conclusion of the December hearing that
husband made the following objection: "[O]ne of my objections
is that I did not have an opportunity to conduct
cross-examination. I don't see how Your Honor can make a ruling
on written proffers alone without eliciting testimony,
permitting cross-examination or argument of counsel." 4
4 In finding that the parties were given a reasonable opportunity to present evidence, the trial court noted the following: "And you had that opportunity . . . to reduce your facts to writing, and the Court did a pretrial [conference] and I asked what facts are legitimately in dispute so that we can set those aside for ore tenus consideration."
- 6 - Husband's objection was not timely made. "In order to be
considered on appeal, an objection must be timely made and the
grounds stated with specificity." McLean v. Commonwealth, 30
Va. App. 322, 329, 516 S.E.2d 717, 720 (1999) (en banc).
"To be timely, an objection must be made when the occasion
arises -- at the time the evidence is offered or the statement
made." Id.
Without a contemporaneous objection from counsel at the
time the evidence was offered by the parties, husband's argument
is procedurally barred on appeal. See Crawley v. Commonwealth,
29 Va. App. 372, 375, 512 S.E.2d 169, 171 (1999) ("Because
appellant registered no hearsay objection to the admissibility
of the cards, he waived the right to contest their admissibility
on appeal."); Newton v. Commonealth, 29 Va. App. 433, 459-60,
512 S.E.2d 846, 858-59 (1999) (holding that defendant's
objection to the trial court's statement to the jury was
procedurally barred because he failed to contemporaneously
object at the time the statement was made); see also Woodson v.
Commonwealth, 211 Va. 285, 288-89, 176 S.E.2d 818, 821 (1970)
("A litigant may not, in a motion to strike, raise for the first
time a question of admissibility of evidence.").
Next, husband argues that the trial court's method of
taking evidence denied him due process. This claim is also
barred by Rule 5A:18 because "he failed to raise this argument
before the trial judge and, therefore, denied the judge the
- 7 - opportunity to consider the question." Yiaadey v. Commonwealth,
29 Va. App. 534, 546, 513 S.E.2d 446, 452 (1999); see Patrick,
27 Va. App. at 660, 500 S.E.2d at 842 ("Rule 5A:18 applies to
bar even constitutional claims."). Additionally, the record
does not show affirmatively that a miscarriage of justice
occurred and, therefore, provides insufficient grounds for
invocation of the ends of justice exception.
B. Statutory Factors
Husband next contends that the trial court erred by failing
to consider the statutory factors of Code § 20-107.3 in
determining the equitable distribution award. He argues that
the trial court "never considered each of the statutory factors
in any sort of one-by-one basis but only in the aggregate."
Husband did not object to the trial court's decision at the
conclusion of the November hearing and, in fact, was asked
without objection to prepare the equitable distribution order.
Having failed to properly preserve this issue, husband's
argument is barred. See Rule 5A:18. Additionally, the evidence
established that the trial court considered the statutory
factors.
IV. EQUITABLE DISTRIBUTION AWARD
A. Division of Property
Husband next argues that the trial court erred in dividing
the marital property equally, awarding a fifty-percent
distribution to each party. He contends that the parties did
- 8 - not agree upon the percentage and that the trial court proceeded
on this mistaken assumption.
At the November hearing, husband failed to timely object to
the fifty-percent division of marital property and agreed to an
equal split of the marital property. At the conclusion of the
December hearing, the trial court asked counsel whether she had
previously objected to the fifty-percent division.
COURT: Did you say that that wasn't correct?
MS. LUCHS: No, sir, I did not.
COURT: You did not dispute it?
MS. LUCHS: No, sir.
(Emphasis added). Husband ultimately conceded that his
objection was untimely, stating the following: "I did not make
at the time the objections that I should have made, and I admit
that quite readily." 5 We conclude that under these
5 When the trial court reconsidered counsel's argument, the following colloquy took place:
COURT: So we had an agreement to begin with, is that what it was?
MR. WOOD: That's the point.
MS. LUCHS: No. As we addressed each issue, Your Honor ruled on that issue. That's throughout the transcript.
COURT: And it was 50 percent throughout?
MS. LUCHS: That was Your Honor's ruling.
- 9 - circumstances, having failed to timely object to the trial
court's use of a fifty-percent figure throughout the proceedings
when the division of property was made, husband waived any
objection to the award. See Rule 5A:18.
B. In-Kind Marital Property
Husband argues that the trial court erred by making an
award of in-kind marital property. At the time of the November
hearing, wife was in possession of the parties' china, crystal
and silverware. After the parties separated, but prior to these
proceedings, wife gave husband a box containing jewelry.
Husband lost the jewelry and filed an insurance claim in the
amount of $6,943. In its equitable distribution award, the
trial court awarded wife her marital share of the value of the
jewelry. Additionally, the court ordered wife to appraise the
COURT: And that was the agreement of the parties?
MS. LUCHS: It was not the agreement of the parties, Your Honor.
COURT: When you say "it was not the agreement," but you never made it an issue; is that correct?
MS. LUCHS: That is correct, Your Honor.
COURT: So you're making it an issue today?
MS. LUCHS: Yes, sir.
COURT: Overruled. Too late.
(Emphasis added).
- 10 - parties' china, crystal and silverware and pay husband his
marital share of its value.
At the November hearing, husband did not object to the
trial court's in-kind division of the china, crystal and
silverware. In fact, husband's counsel implicitly agreed to the
disposition of this marital property, stating the following:
MS. LUCHS: So you're physically awarding her these items?
COURT: That is correct, marital property untitled. I believe the Court has the authority to award in-kind marital property which is untitled.
MS. LUCHS: I'm not disputing the Court's authority, Your Honor. I just want to make sure I fully understanding your ruling, sir.
COURT: Okay.
COURT: Now, did you have another issue you wished to bring to mind?
(Emphasis added). Having failed to timely object to the trial
court's decision, husband's claim is barred on appeal. See Rule
5A:18.
C. IRA Accounts
Husband contends that the parties did not discuss the
division of their respective IRA accounts and that the trial
court erred by including this property in the equitable
distribution award. However, at both the November and December
- 11 - hearings these accounts were discussed by the parties. The
record affirmatively establishes that the parties discussed the
inclusion of this property in the equitable distribution award
and, in fact, husband included both IRA accounts in his written
proffers: "IRA: Husband, $69,315; Wife, $45,000."
Additionally, at the December hearing the parties debated
at length the division of the IRA accounts. The trial court
specifically asked husband's counsel what his position was on
this issue. Counsel stated:
I think each should benefit from their respective contributions. In fact, Mr. Kost made substantial contributions to Mrs. Kost's IRA. She's contributed to her own IRA through her employer. Mr. Kost has totally funded his own IRA. I don't see where she should benefit from those efforts on his behalf to fund his own IRA.
Contrary to counsel's assertion, this issue was clearly
addressed by the trial court.
Additionally, husband offered no evidence that the deposits
into either of the parties' IRA accounts were his separate
property. Absent credible evidence establishing the separate
nature of at least a portion of the funds, we cannot hold that
the trial court erred in classifying these accounts as marital
assets or in distributing them to the parties equally. See
Luczkovich v. Luczkovich, 26 Va. App. 702, 715, 496 S.E.2d 157,
163 (1998); Marion v. Marion, 11 Va. App. 659, 670, 401 S.E.2d
432, 439 (1991) (holding that husband's IRA account was subject
- 12 - to equitable distribution because it was purchased during
marriage, creating presumption of marital property, and no
evidence in record indicated that it was his separate property).
D. Permanent Spousal Support
Husband argues that the trial court erred in awarding, sua
sponte, permanent spousal support. "Surely it is an abuse of
discretion to insert into a final order an issue which neither
party has asked the court to consider, . . . ."
Because wife requested in her Answer to the Bill of
Complaint "that she be awarded temporary and permanent spousal
support," the issue of permanent spousal support was properly
before the trial court's consideration. 6 More importantly, the
record establishes that the trial court did not make an award of
permanent spousal support in the divorce decree. Rather, it
"expressly retain[ed] jurisdiction to determine the issue of the
payment of spousal support" and its previous award of pendente
lite support was ordered to "remain in full force and effect
until further modified."
Here, we conclude the trial court did not err in retaining
its jurisdiction to later consider the issue of permanent
spousal support. See Rogers v. Damron, 23 Va. App. 708, 715,
479 S.E.2d 540, 543 (1997) (noting that the trial court may
reserve "consideration of support, custody, or property issues"
6 Husband did not include the Answer and Cross-Bill in the Appendix.
- 13 - to provide "the parties additional time to resolve their
differences" (emphasis added)); Zipf v. Zipf, 8 Va. App. 387,
390, 382 S.E.2d 263, 265 (1989) ("That order specifically
continued the cause, retaining jurisdiction to determine issues
of spousal support and maintenance, . . . . By it's very
language, that order did not purport to dispose of all issues
remaining in the suit." (emphasis added)).
V. PENDENTE LITE SUPPORT
A. Imputed Income
Husband asserts the trial court erred in finding that he
was "voluntary unemployed" and by imputing income to him for
purposes of determining pendente lite support. At the
conclusion of the parties' evidence at the August 19, 1998
hearing for temporary support, the trial court made the
following findings:
The Court finds that the income of the wife has changed. It is now $1,926. The Court finds that the income of the husband has changed to $4,213 per month but that the income is voluntary unemployment income.
Therefore, there has been a substantial change of circumstance. Pendente lite support will be pursuant to the Ninth Circuit guidelines, income of the wife $1,926, income of the husband $7,474.
Accordingly, the trial court awarded wife temporary support in
the amount of $2,473 per month. Husband's counsel prepared the
- 14 - order, which was signed by the trial court and endorsed by both
parties.
Husband did not object to the award of temporary support at
the August 19, 1998 hearing or when he endorsed the trial
court's pendente lite support order. Indeed, at a later hearing
on September 21, 1998 to discuss the trial court's award of
temporary support, husband was given another opportunity to
object to the order, but failed to do so. The trial court
stated the following:
COURT: All right. If you'll make those changes. Ms. Luchs, I think you and Mr. Wood can probably resolve these issues based upon this discussion this morning, and I'd ask that you endorse the order. And you make your notes to whatever you object to relevant to that.
COURT: On the order, if in fact you have any objection. I think we may have resolved that for you. And I thank you for coming this morning. I'm sorry to put you to that trouble.
The record establishes that husband did not object at the
time of the trial court's ruling, at the time counsel was asked
to prepare the order, or at the time the trial court gave him
another opportunity to do so at the September 21, 1998 hearing.
Having failed to timely object to the trial court's award of
pendente lite support, his argument is barred on appeal. See
Rule 5A:18.
- 15 - B. Overstated Income
Husband also argues that the trial court erred in modifying
his income for purposes of determining pendente lite support.
He contends that when the trial court calculated the support
award, husband's income was "overstated." Husband argues that
the trial court later recognized this error and at the August
19, 1998 hearing the court agreed to "credit the husband from
the April 29, 1998, order wherein the income was overstated."
Our review of the record indicates that there is no trial
court order dated April 29, 1998. Additionally, husband failed
to include a copy of the August 5, 1998 hearing transcript in
the Appendix, and it appears from the record that a copy of that
transcript was not filed in the trial court. Accordingly, we
are unable to determine whether any income was "overstated" in a
previous order of the trial court and, therefore, we are unable
to properly decide this issue. See Twardy v. Twardy, 14 Va.
App. 651, 654, 419 S.E.2d 848, 850 (1992) (en banc) ("[A]n
appellant has the primary responsibility of ensuring that a
complete record is furnished to an appellate court so that the
errors assigned may be decided properly."); Id. at 658, 419
S.E.2d at 852 ("The trial court's judgment is presumed to be
correct, and 'the burden is on the appellant to present to us a
sufficient record from which we can determine whether the lower
court has erred.'").
- 16 - Significantly, when husband's counsel prepared the order
for pendente lite support he did not object to the trial court's
calculations. Even if the trial court mistakenly failed to
credit husband the claimed amount, husband agreed to and signed
the order without objection. Accordingly, his argument is
barred on appeal. See Rule 5A:18.
VI. COURT REPORTER
Husband argues that the trial court erred in declining to
postpone the November 5, 1998 hearing until a court reporter
arrived to transcribe the proceedings. However, husband did not
object to the trial court's decision, and he conceded that no
substantive issues had been discussed during the ten-minute
absence of the court reporter. When the parties discussed this
issue at the December 15, 1998 hearing, husband's counsel stated
the following:
But, again, during that ten minutes, as I recall, no substantive issues were discussed, and that's probably reflected in your notes. Certainly, in the beginning of the transcript, Your Honor notified the court reporter of what had been discussed to the point of her arrival, . . . .
Accordingly, husband waived any objection to the absence of a
court reporter during the beginning of the November 5, 1998
hearing. See Rule 5A:18.
VII. HOLD HARMLESS PROVISION
Husband argues that trial court's final order is flawed
under various federal bankruptcy provisions and laws. In its
- 17 - order the trial court awarded husband real property located in
Blacksburg, Virginia, and ordered wife to execute a deed
conveying her marital interest in that property to husband. The
trial court valued the Blacksburg property at $80,000, with a
debt of $72,048, resulting in an equity value of $7,951.
Accordingly, husband was ordered to pay wife $3,975, her marital
share of the equity value.
In addition, the trial court noted that "[husband] shall
hold [wife] harmless for the mortgage payment on said property
and shall make a good faith effort to refinance the property
thereby relieving [wife] and the parties' daughter 7 of the debt."
On appeal, husband argues that this hold harmless provision
violates federal bankruptcy laws.
Husband's claim of error is procedurally barred because he
failed to make a timely objection to the trial court's ruling.
See Rule 5A:18. At the November hearing, husband testified that
he was going to refinance the Blacksburg property to get a lower
interest rate and to release his daughter from any liability as
a named party to the original deed. Because the trial court did
not want to order husband to refinance the property if it was
not possible, the court only required that he make a "good faith
7 The evidence established that in addition to husband and wife the parties' daughter was named in the original deed of the Blacksburg property.
- 18 - effort" to do so. Additionally, the trial court ruled as
follows:
COURT: And you will hold Mrs. Kost harmless from that debt. For instance, if it was foreclosed on and there was a deficiency and they came after both of you, it's your responsibility to hold her harmless on that debt.
MR. WOOD: I would like the order to reflect that hold harmless to the extent that she would have to pay any of that debt, that would transfer into the nature of spousal support; and therefore, not dischargeable in bankruptcy.
COURT: So ordered.
Husband did not object to the trial court's ruling and,
therefore, his argument is barred on appeal. See Rule 5A:18.
VIII. HUSBAND'S MILITARY RETIREMENT
Lastly, husband argues that the trial court abused its
discretion by requiring him to maintain the survivor benefit
plan under his military retirement. Husband did not object to
the court's decision at that time and, therefore, his argument
is barred on appeal. Additionally, husband did not object at
the December hearing when the parties were discussing the
military pension. Having failed to timely object, husband's
argument is barred on appeal. See Rule 5A:18.
IX. CONTINUATION OF SUPPORT
Husband argues that the trial court erred in requiring him
to continue paying pendente lite support after the entry of the
divorce decree and equitable distribution award. Husband did
- 19 - not raise this issue at any time during the proceedings and his
only objection was raised in his exceptions to the order.
As noted above, the trial court expressly retained
jurisdiction to determine permanent spousal support and,
therefore, continued pendente lite support "until further
modified." Because the trial court correctly reserved
jurisdiction to further consider the issue, we find no abuse of
discretion. See Rogers, 23 Va. App. at 715, 479 S.E.2d at 543;
Zipf, 8 Va. App. at 390, 382 S.E.2d at 265.
For the foregoing reasons, the order of the trial court
awarding equitable distribution of marital property and
retaining jurisdiction for consideration of permanent spousal
support is affirmed.
Affirmed.
- 20 -