Lee v. Lee

404 S.E.2d 736, 12 Va. App. 512, 7 Va. Law Rep. 2647, 1991 Va. App. LEXIS 102
CourtCourt of Appeals of Virginia
DecidedMay 14, 1991
DocketRecord No. 0496-89-3
StatusPublished
Cited by336 cases

This text of 404 S.E.2d 736 (Lee v. Lee) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. Lee, 404 S.E.2d 736, 12 Va. App. 512, 7 Va. Law Rep. 2647, 1991 Va. App. LEXIS 102 (Va. Ct. App. 1991).

Opinions

Koontz, C.J.,

with whom Benton, J., and Coleman, J., join.

I respectfully dissent from the majority’s decision that Rule 5A:18 bars our merit review of the issues presented in this appeal.

Pursuant to the initial pleadings in this divorce case, the trial court was called upon to apply the provisions of Code § 20-107.3 to the evidence produced by the parties. Specifically, the trial court was called upon to classify the assets of the parties as marital or separate property, to determine the rights and equities of the parties in the marital property, and to determine what would be an “equitable” award if one was appropriate. The parties agreed upon a procedure whereby they identified four items of property which were in dispute as to classification or value, and each party alternately presented evidence in support of his or her position as to each item of property. The admissibility of that evidence was not disputed. No objections were made. The court classified and valued the properties, determined the rights of the parties, made an award, and gave its reasons for those determinations. These findings were incorporated into a final de[518]*518cree to which appellant noted his objection. Pursuant to Code § 17-116.05(3), appellant appealed that decision as a matter of right. We were presented with a record which contains the pleadings, the evidence, the trial court’s determinations, and its reasons for those determinations, all clearly outlined within the provisions of Code § 20-107.3. The appellee has not asserted that Rule 5A:18 bars our merit review of the issues in this appeal. Rather, the majority of the panel, and now the majority of the court, sua sponte assert procedural bar.

We have had numerous occasions in various procedural contexts to recite the general principles explaining the purposes of Rule 5A:18. I do not now disagree with the majority’s recital of these. “The purpose of this rule is self-evident. Any potential error should be brought to the trial court’s attention so that the court may consider the issue and take corrective action to avoid unnecessary appeals, reversals and mistrials.” Wolfe v. Commonwealth, 6 Va. App. 640, 642, 371 S.E.2d 314, 315 (1988). Similarly, as the majority correctly observes, “[t]he purpose of the rule is to avoid costly appeals and promote efficient judicial administration by allowing the trial judge to correct, in the trial court, those errors called to his attention.” The purpose of this rule as stated should guide its application in a particular case. This should not be a complicated matter. The notion is that the trial court should be given the first opportunity to correct an error before the appellate court will consider the alleged error on appeal. The trial court simply cannot correct an error unless it has an opportunity to do so by having the issue brought to its attention during the trial or while the court has jurisdiction over the case. As the majority notes, all that is required to satisfy the requirement of the rule is that “at the time the ruling or order of the court is . . . sought, [a party] makes known to the court the action he desires the court take . . . and his grounds therefor.” Code. § 8.01-384. Based on the pleadings, the procedure adopted for identifying and presenting evidence as to classification and value of the property in dispute afforded the trial court “an opportunity to rule intelligently on the issues presented.” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 166 (1991). Neither party contended otherwise.

The majority reads Weidman too expansively. In Weidman, the Court reaffirmed the rule that “a party’s failure to object to a final order by merely endorsing it as ‘Seen,’ without more, is not [519]*519sufficient to preserve the party’s right to appeal.” Id. at 44, 400 S.E.2d at 166. Although the Court stated that “counsel during the . . . hearing on the motion to dismiss repeatedly had made known to the court his position,” the Court observed that “[additionally, counsel . . . endorsed the order denying the motion for reconsideration ... as ‘SEEN: and all exceptions noted.’ ” Id. (emphasis in original). Significantly, the Court noted that formal exceptions to rulings are no longer necessary. The reference to the exceptions had significance because it denoted that counsel did not merely acquiesce in the ruling of the trial court. There, as here, “we do not have a bare failure to object to the court’s ruling from the bench followed by endorsement of the final order merely as “SEEN.” Id. Weidman does not construct a hardfast procedural requirement for preserving issues for appeal. The clear import of the case is that issues are properly preserved where an opposing party is afforded an opportunity to address or meet the other party’s position, the trial judge has decided the issue presented, and the final order is not endorsed so as to convey acquiescence in the judgment. When this has been done, as it has in this instance, the issue is ripe for this Court’s consideration. Cf. Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1 (1991).

My disagreement with the majority’s decision lies in the application of Rule 5A:18 in the procedural context of this appeal. Here, we are not concerned with “rulings” by the trial court regarding its interpretation of Code § 20-107.3, its determination of the admissibility of the evidence, or other trial rulings. We are not concerned with trial errors which appellant desired the court to correct. Rather, we are concerned only with the trial court’s final decision on the ultimate issues in the case. The issues were joined by the parties in their pleadings and the trial court was necessarily aware of them. Thus, in the context of the application of Rule 5A:18 there was no “error” which could be called to the court’s attention. Moreover, the trial court did not need an opportunity to correct an error. The trial court either had correctly classified and valued the property of the parties and made an “equitable” award or it had not. The trial court was aware that these were the controverted issues it was to determine and the court made its decision upon the conflicting evidence presented. Because of appellant’s objection to the final order, the court was equally aware that he disagreed with the court’s resolution of these issues.

[520]*520The majority acknowledges that “there is no litany that counsel must recite to preserve for appeal an issue objected to in the trial court.” I agree. But I do not believe that the purpose of Rule 5A:18 is furthered by requiring a litigant to restate the obvious to the trial judge or by requiring a party after an adverse final decision to restate his position or arguments in support of his case. It is obvious that appellant objected to the trial court’s final decision on the grounds that the court had not properly classified and valued the parties’ property and had not made an “equitable” award based on the factors in Code § 20-107.3(E). These were the very issues upon which all the evidence was presented and which were before the court. It strains reason and common practice to expect the trial court to essentially re-open and reconsider its final decision in the case. In short, the case was concluded and appellant’s remedy was to appeal.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cheryl Lorraine Fitch v. Phantom Auto Group, LLC
Court of Appeals of Virginia, 2025
William E. Rogers v. Janet Louise Dudding
Court of Appeals of Virginia, 2025
Sherry M. Doyle v. Christopher J. Doyle
Court of Appeals of Virginia, 2025
David Andrew Shelton v. Commonwealth of Virginia
Court of Appeals of Virginia, 2025
Nancy G. Cook v. Leon H. Greene, Jr.
Court of Appeals of Virginia, 2024
Pui Ho v. Ebne Rahman
Court of Appeals of Virginia, 2024
Patrick Austin Carolino v. Commonwealth of Virginia
Court of Appeals of Virginia, 2023
Evan Scott Anthony v. Commonwealth of Virginia
Court of Appeals of Virginia, 2023
Donald H. Creef, III v. Marindy L. Creef
Court of Appeals of Virginia, 2021
Robert Leo Clavin v. Darlene Gibson Clavin
Court of Appeals of Virginia, 2021
Willie Hicks, Jr. v. Commonwealth of Virginia
Court of Appeals of Virginia, 2019

Cite This Page — Counsel Stack

Bluebook (online)
404 S.E.2d 736, 12 Va. App. 512, 7 Va. Law Rep. 2647, 1991 Va. App. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-lee-vactapp-1991.