Kaipha Sherman Brown v. Kadiatu Kukie Brown

• Court: Court of Appeals of Virginia
• Decided: July 17, 2012
• Docket: 1875114
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Beales and Senior Judge Annunziata

KAIPHA SHERMAN BROWN MEMORANDUM OPINION * v. Record No. 1875-11-4 PER CURIAM JULY 17, 2012 KADIATU KUKIE BROWN

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Gaylord Finch, Judge

(Kaipha S. Brown, pro se, on briefs).

(William J. Lyden; Locke & Lyden, PLLC, on brief), for appellee.

Kaipha S. Brown (husband) appeals from a final decree of divorce. Husband argues that the

trial court erred by (1) refusing to consider appellant’s daughter from a previous relationship and

deviate from the child support guidelines; (2) calculating child support “on incorrect amounts”;

(3) deciding to make the child support payments retroactive to April 1, 2011; (4) ruling that the

grounds of divorce would be based on the parties’ living separate and apart for more than one year;

(5) not addressing the issue of husband’s student loan because “it was too late, therefore referring

the record back to the response of the interrogatories”; (6) “allowing several unsubstantiated clauses

that were not pleaded, and not part of the Court’s ruling, to be included in the Final Divorce

Decree”; (7) denying husband an award of spousal support; (8) abusing its discretion in its “ruling

on custody, and the visitation schedule” because they were “contrary to Va. Code § 20-124.3, [and]

not in the best interest of the children”; (9) awarding wife half of her attorney’s fees; and

(10) deciding “which party would be responsible to pay the children’s health insurance . . . and the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. subsequent calculations of the parties’ contributions.”1 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. 2 See Rule 5A:27.

BACKGROUND

Husband and Kadiatu K. Brown (wife) married on November 20, 2003. Two children

were born of the marriage, and husband has a child from a previous relationship. According to

the final decree of divorce, the parties separated “on or before April 1, 2008.”

In 2009, husband filed a complaint for divorce. Husband subsequently filed two

amended complaints for divorce. The trial court allowed each amended complaint. The trial

court entered an order allowing the filing of the second amended complaint in February 2011,

and wife filed an answer and cross-complaint. On April 29, 2011, the trial court entered a

pendente lite order, which addressed temporary spousal support, custody, visitation, and child

support.

On July 19, 2011, the trial court heard evidence and argument from the parties. It issued

rulings from the bench and allowed wife to submit an attorney’s fees affidavit with a proposed

final decree of divorce. On August 15, 2011, the trial court entered the final decree of divorce

and awarded wife $8,115 for her attorney’s fees. This appeal followed.

1 In addition to his ten assignments of error, husband included nine “Statement of the Questions Presented.” Some of the questions presented are repetitive of the assignments of error; however, some of the questions presented are new issues. Effective July 1, 2010, Rule 5A:20(c) was revised to state that appellant’s opening brief shall contain a “statement of the assignments of error with a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each assignment of error was preserved in the trial court.” Pursuant to the revised rules, this Court considers only assignments of error and, as such, will not consider the additional issues listed as questions presented. We find that this failure to comply with Rule 5A:20 is significant. Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008). 2 On June 8, 2012, appellant filed a motion for expedited hearing. Since we are summarily affirming the trial court’s ruling, appellant’s motion is denied. -2- ANALYSIS

Issues 1, 5, and 8 (custody): Issues waived

In his first assignment of error, husband argues that the trial court erred in refusing to

deviate from the child support guidelines because he had a child from a previous relationship.

During closing argument, husband told the trial court to keep the child support as it was. Then,

husband told the trial court that it computed child support based on two children, as opposed to

three children. The trial court stated, “So you are paying $760 less than you were, and you are

complaining about it?” Husband responded, “Okay. Your Honor.” He did not raise the issue

again. This issue is waived.

Husband’s fifth assignment of error states, “The trial Court’s ruling that it was not incline

[sic] to take up the issue of Appellant [sic] student loan and that it was too late, therefore

referring the record back to the response of the interrogatories was contrary to VA. Code

§ 20-107.3, and is being appealed to meet the ends of justice.” In his brief, husband does not

address his assignment of error; instead, he simply states, “Under 20-107.3, student loans are

considered marital debts.” He then maintains that wife did not work during the first two years of

marriage and benefitted from his education. His argument does not reflect his assignment of

error. Consequently, this issue is waived. See Muhammad v. Commonwealth, 269 Va. 451,

478, 619 S.E.2d 16, 31 (2005) (citation omitted) (“Failure to adequately brief an assignment of

error is considered a waiver.”).

In his eighth assignment of error, husband contends the trial court erred by awarding sole

custody of the parties’ children to wife. The trial court told husband, “This is a very, very

detailed order, giving you basically, it seems, anything you are asking for except you would

rather have joint legal custody as opposed to her having legal custody.” Husband responded,

-3- “Your Honor, that – that – I can waive that.” He did not raise the issue again. This issue is

waived.

Therefore, husband waived the first and fifth assignments of error and the eighth

assignment of error regarding custody.

Issues 3 and 8 (visitation): Rule 5A:18

Wife argues that husband did not preserve many of his assignments of error because he

did not note his specific objections on the final decree. Husband signed the final decree as “Seen

and objected to,” and then specifically objected to the inclusion of information regarding the loss

of his employment, the taking and use of certain funds, and the award of attorney’s fees to wife.

Rule 5A:18 states, “No ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except

for good cause shown or to enable the Court of Appeals to attain the ends of justice.”

This Court has previously held that a statement of “seen and objected to” on an order is

insufficient to preserve an issue for appeal. Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2d 736,

738 (1991) (en banc). However, in a bench trial, an appellant can preserve his issues for appeal

in a motion to strike, in closing argument, in a motion to set aside the verdict, or in a motion to

reconsider. Id.

Husband did not note any objection to the trial court’s ruling that the child support

payments would be retroactive to April 1, 2011, as opposed to 2009. His closing argument did

not include his assertion that the child support obligation be retroactive to 2009. Husband asks

that we invoke the ends of justice exception to Rule 5A:18. “In order to avail oneself of the

exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that

a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487

-4- S.E.2d 269, 272 (1997) (citation omitted) (emphasis added). Husband did not show that a

miscarriage of justice occurred; therefore, we will not consider the third assignment of error.

For his eighth assignment of error, husband states, “The trial Court’s ruling on custody,

and the visitation schedule were contrary to Va. Code § 20-124.3, not in the best interest of the

children, and is being appealed to meet the ends of justice.” As discussed above, husband

waived the custody issue. With respect to visitation, he asked the trial court to award him five

weeks, as opposed to three weeks, of summer visitation. In his brief, husband stated that the trial

court did not consider the factors in Code § 20-124.3 and did not conduct a full hearing.

Husband did not raise these issues to the trial court. We “will not consider an argument on

appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299,

308, 494 S.E.2d 484, 488 (1998). Furthermore, husband argues that the trial court erred in not

dividing the transportation. Husband did not raise transportation in his assignments of error, and

he did not provide any legal authority to support his argument. See Rule 5A:20. Therefore, we

will not consider the eighth assignment of error.

Issues 2, 4, 6, and 10: Rule 5A:20

Wife argues that husband failed to include legal authority in his brief to support his

arguments. Rule 5A:20(e) mandates that appellant’s opening brief include “[t]he standard of

review and the argument (including principles of law and authorities) relating to each assignment

of error.” Husband did not comply with Rule 5A:20(e) because his opening brief does not

contain any principles of law or citation to legal authorities to fully develop his arguments for the

second, fourth, sixth, and tenth assignments of error.

Husband has the burden of showing that reversible error was committed. See Lutes v.

Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992). Unsupported assertions of

error “do not merit appellate consideration.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415

-5- S.E.2d 237, 239 (1992). Furthermore this Court “will not search the record for errors in order to

interpret the appellant’s contention and correct deficiencies in a brief.” Id. Nor is it this Court’s

“function to comb through the record . . . in order to ferret-out for ourselves the validity of

[appellant’s] claims.” Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7, 366 S.E.2d 615, 625 n.7 (1988)

(en banc). “Even pro se litigants must comply with the rules of court.” Francis v. Francis, 30

Va. App. 584, 591, 518 S.E.2d 842, 846 (1999).

We find that husband’s failure to comply with Rule 5A:20(e) is significant, so we will not

consider the second, fourth, sixth, and tenth assignments of error. See Fadness v. Fadness, 52

Va. App. 833, 851, 667 S.E.2d 857, 866 (2008) (“If the parties believed that the circuit court

erred, it was their duty to present that error to us with legal authority to support their

contention.”); Parks v. Parks, 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008).

Issue 7: Spousal support

Husband argues that the trial court abused its discretion by denying his request for

spousal support.

“‘In reviewing a spousal support award, we are mindful that the trial court has broad

discretion in awarding and fixing the amount of spousal support. Accordingly, our review is

limited to determining whether the trial court clearly abused its discretion.’” West v. West, 53

Va. App. 125, 130-31, 669 S.E.2d 390, 393 (2008) (quoting Miller v. Cox, 44 Va. App. 674, 679,

607 S.E.2d 126, 128 (2005)). “We will not disturb the trial court’s decision where it is based on

an ore tenus hearing, unless it is ‘plainly wrong or without evidence in the record to support it.’”

Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72, 73 (1992) (quoting Schoenwetter v.

Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989)).

In issuing its ruling, the trial court reviewed the factors in Code § 20-107.1(E) and found

that on a monthly basis, wife earned approximately thirty dollars less than husband. Given that

-6- wife earned less than husband, the trial court did not abuse its discretion in denying husband’s

request for spousal support.

Issue 9: Trial court’s award of attorney’s fees to wife

Husband argues that the trial court abused its discretion in awarding wife one-half of her

attorney’s fees. Wife’s attorney submitted an affidavit showing that wife incurred $16,230 in

attorney’s fees and $813.95 in costs. The trial court found that husband “filed numerous

unnecessary and voluminous motions, which lead [sic] to protracted and unnecessary litigation.”

The trial court further stated that husband’s actions “substantially increased” wife’s attorney’s

fees. Accordingly, the trial court ordered husband to pay $8,115 to wife’s attorney within 120

days.

“‘[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion

and is reviewable on appeal only for an abuse of discretion.’” Richardson v. Richardson, 30

Va. App. 341, 351, 516 S.E.2d 726, 731 (1999) (quoting Graves v. Graves, 4 Va. App. 326, 333,

357 S.E.2d 554, 558 (1987)). “[T]he key to a proper award of counsel fees [is] reasonableness

under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1 Va. App. 272,

277, 338 S.E.2d 159, 162 (1985).

Considering the circumstances of this case and husband’s actions, the trial court did not

abuse its discretion in awarding wife one-half of her attorney’s fees.

Wife’s attorney’s fees and costs incurred in appeal

Wife asks this Court to award her attorney’s fees and costs incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Having reviewed

and considered the entire record in this case, we hold that wife is entitled to a reasonable amount

of attorney’s fees and costs, and we remand for the trial court to set a reasonable award of

attorney’s fees and costs incurred by wife in this appeal.

-7- CONCLUSION

For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

We remand this case to the trial court for determination and award of the appropriate appellate

attorney’s fees and costs.

Affirmed and remanded.

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