COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Kelsey
Argued at Richmond, Virginia
SELENA GUDINO
MEMORANDUM OPINION*
v. Record No. 2016-11-2 BY JUDGE D. ARTHUR KELSEY
JUNE 12, 2012
DENNIS GUDINO
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Jonathan W. Ware (Freshfields Bruckhaus Deringer US LLP,
on briefs), for appellant.
No brief or argument for appellee.
Louise A. Moore (Louise A. Moore, Esquire, LLC, on briefs),
Guardian ad litem for the minor children.
In this case, the circuit court entered an order compensating the guardian ad litem for her
work in a custody case involving the children of Selena and Dennis Gudino. On appeal, Selena
Gudino argues the court erred in several respects. The circuit court, however, did not address her
objections to the award because they were filed after the entry of the order. Given the unique
circumstances of this case, we hold good cause exists to excuse wife’s procedural default. We
remand this matter to the circuit court for reconsideration of its fee award.
I.
The divorce of Selena and Dennis Gudino involved various cases litigated in the
Chesterfield Circuit Court, including a divorce and equitable distribution case (No. CL10-2086)
and several de novo appeals from the Chesterfield Juvenile and Domestic Relations District
Court: namely, a custody dispute (No. CJ10C-12) and two cases involving support and attorney
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
fees (Nos. CL10J-339 and CL10J-2336). The circuit court appointed a guardian ad litem (GAL)
for the parties’ three children in the custody dispute and awarded fees to the GAL for her
representation of the children. Wife appealed the circuit court’s custody decision on various
grounds, including the appointment of the GAL and the apportionment of her fees. In an
unpublished opinion, we affirmed the circuit court. See Gudino v. Gudino, No. 0068-11-2, 2011
Va. App. LEXIS 327 (Nov. 1, 2011) (hereinafter Gudino I).
On August 22, 2011, while Gudino I was on appeal to us, the GAL attended an
evidentiary hearing in the circuit court scheduled to address support, attorney fees, and equitable
distribution — but not custody.1 Nothing in the record suggests the GAL gave written notice of
her intention to appear. After a recess in the hearing, the GAL orally asked the circuit court to
issue an order awarding fees arising out of the custody dispute (No. CJ10C-12). She proffered a
fee statement seeking $39,978.62 in fees for her work in the JDR court and circuit court. See
App. at 187 (claiming unpaid fee balance was “from both Juvenile Court and the Circuit Court
proceedings”).
At the hearing, wife was represented by different counsel than had represented her in the
custody case involving the GAL. She appeared pro se regarding equitable distribution issues.
When the GAL made her request for fees during the hearing, neither wife nor her counsel
objected. Counsel, however, reminded the court that the custody dispute was then pending on
appeal and that separate counsel represented wife in that matter.
Without further discussion, the trial judge stated from the bench, “the guardian ad litem is
going to get paid.” App. at 188. At the conclusion of the hearing, the GAL asked the court to
1
On December 6, 2010, the circuit court consolidated for purposes of an evidentiary
hearing the custody case, the two support cases, and the divorce and equitable distribution case.
Neither party has addressed whether this consolidation order affects the Rule 5A:18 analysis.
Lacking any argument on this issue, we likewise do not address it.
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“make a decision in terms of the guardian ad litem fees” and “determine which amounts will be
paid by which party . . . .” Id. at 242. After learning from the court reporter that it would take
three weeks to prepare a transcript, the circuit court advised the parties: “I will get you a
decision, obviously, it’s not going to be before the next 21 days.” Id. at 244. The court directed
the GAL to submit a draft order addressing her fee request. Id. at 247. The court stated the order
should include a “Rule 1:13 waiver” of counsel endorsement. Id.2 It is unclear from the court’s
remarks if the twenty-one-day delay period applied to all, or only some, of the orders to be
issued after the hearing.
One week later, on August 29, the GAL forwarded to the court a draft order awarding her
$42,866.12 in fees. The record reveals no reason for the variance from the $39,978.62 request
made at the hearing a week earlier. The draft order waived the requirements of Rule 1:13
(requiring endorsement of counsel) and Rule 1:12 (requiring service on opposing counsel). The
caption of the draft order identified the custody dispute by the case number (No. CJ10C-12) and
listed each of the children’s names.
The GAL’s cover letter to the court did not state that copies had been forwarded to wife
pro se, her counsel in Gudino I, or her counsel at the August 22 hearing. The following day,
August 30, the GAL sent the same letter and draft order to the court, the only change appearing
to be the inclusion of a “cc” noting that copies had been mailed to counsel appearing at the
August 22 hearing — but not to wife pro se or to counsel representing her in Gudino I.
On September 6, the circuit court entered the GAL’s draft order — six days before the
end of the twenty-one-day delay period noted by the court at the August 22 hearing. The order
2
“Rule 1:13 specifically provides that compliance with the rule may be modified or
dispensed with by the court in its discretion.” Smith v. Commonwealth, 32 Va. App. 766, 773,
531 S.E.2d 11, 15 (2000) (internal quotation marks omitted). Nothing in our opinion implies that
dispensing with the requirements of Rule 1:13 should be disfavored.
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entered by the court did not direct the clerk of court to forward copies of the entered order to the
parties or their counsel, and the clerk apparently never did so.
On September 8, seventeen days after the hearing, wife filed objections to the GAL’s fee
request, unaware that the court had already entered an order awarding fees on September 6.
Wife challenged the GAL’s fee request on various grounds and asserted the circuit court had
used an improper procedure to consider it. Wife initially filed her objections in the divorce case
(No. CL10-2086), in which the GAL had appeared at the August 22 hearing. The next day,
September 9, wife filed the same objections in the custody case (No. CJ10C-12), in which the
GAL fees were incurred. Wife forwarded copies of her objections to the GAL and husband’s
counsel.
Sometime after wife filed her objections, she learned that the court had entered the GAL
order on September 6, but had filed the order in one of the support cases, No. CL10J-339. The
GAL had not been appointed in the support case, and her fee request was not related to that case.
The entered order showed that the custody case number (No. CJ10C-12) had been crossed out
and the support case number (No. CL10J-339) had been handwritten directly below it. On
October 5, wife filed a notice of appeal in the support case (No. CL10J-339), in which the GAL
order had been entered.
It appears someone — presumably in the office of the clerk of court — attempted to
remedy the situation by crossing through the handwritten notation of the support case number
(No. CL10J-339) and then reinserting by hand the custody case number (No. CJ10C-12). Wife
thereafter amended her notice of appeal to include the custody case. The case now matures on
appeal on the merits. Because the circuit court never ruled on any of the points wife raises on
appeal, we directed the parties to address whether the appeal should be summarily denied on
procedural default grounds.
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II.
“As a precondition to appellate review, Rule 5A:18 requires a contemporaneous
objection in the trial court to preserve the issue on appeal.” West v. West, 53 Va. App. 125, 131,
669 S.E.2d 390, 393 (2008) (citation omitted). “Not just any objection will do. It must be both
specific and timely — so that the trial judge would know the particular point being made in time
to do something about it.” Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738,
742, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005) (emphasis in
original).
The contemporaneous objection rule enforces a litigant’s “responsibility to afford a court
the opportunity to consider and correct a perceived error before such error is brought to the
appellate court for review.” Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587
S.E.2d 546, 548 (2003). “Errors can usually be corrected in the trial court, particularly in a
bench trial, without the necessity of appeal.” Bazemore v. Commonwealth, 42 Va. App. 203,
218, 590 S.E.2d 602, 609 (2004) (en banc) (citation omitted).
In this case, wife filed her pro se objections to the GAL’s fee request after the circuit
court entered its order. Wife did not file a motion to reconsider, nor did she request a hearing on
her objections.3 It is unclear whether the court was ever aware of wife’s objections. Given that
wife never requested a hearing to bring these objections to the court’s attention, the court had no
duty to act on the untimely objections4 and, understandably, did not do so. Cf. Smith v. Smith,
3
See Williams, 266 Va. at 411-12, 587 S.E.2d at 548 (holding failure to file a motion to
reconsider waived appellate review).
4
Except in the rarest of cases, a party filing a motion, objection, or any other request for
affirmative relief, must actively seek to place the matter on the court’s docket for resolution. See
Morva v. Commonwealth, 278 Va. 329, 340, 683 S.E.2d 553, 559 (2009) (holding issue waived
where defendant “filed a motion and a proffer” on the issue and “requested that the court
continue the hearing” until a later time, but “never raised the motion again at any point before,
during, or after the trial”); Juniper v. Commonwealth, 271 Va. 362, 383, 626 S.E.2d 383, 398
(2006) (holding memorandum filed with court did not require ruling because “the record reflects
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18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994) (finding objection timely only because the
“motion for rehearing was both filed and ruled upon within the twenty-one day period”).
As a general rule, a circuit court should not be reversed on a ruling it never made.5 Rule
5A:18, therefore, precludes appellate review of the circuit court’s GAL award unless wife shows
“good cause” for her untimely objection or persuades us that the “ends of justice” are so
compelling that the procedural default should be excused. On appeal, wife contends both the
“good cause” and “ends of justice” exceptions apply. See Appellant’s Suppl. Br. at 1, 5-8.6 We
need not address the ends-of-justice exception7 because we agree with wife that good cause
exists for lifting the procedural bar of Rule 5A:18.
The good cause exception applies when the litigant “did not have the opportunity to
object to an alleged error during the proceedings below.” Flanagan v. Commonwealth, 58
Va. App. 681, 694, 714 S.E.2d 212, 218 (2011) (citation omitted). It does not apply when a
no request for a ruling or that the trial court was ever alerted to the existence of the
Memorandum”); Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993)
(holding “there is no ruling for us to review” where defendant requested permission to “get
something on the record” but “requested no relief”).
5
Under settled waiver principles, we treat a circuit court’s failure to rule no differently
than an affirmative ruling later challenged on appeal. See, e.g., Lenz v. Commonwealth, 261 Va.
451, 463, 544 S.E.2d 299, 306 (2001); Buck v. Jordan, 256 Va. 535, 545-46, 508 S.E.2d 880,
885-86 (1998); Taylor v. Commonwealth, 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967);
Hodnett v. Stanco Masonry, 58 Va. App. 244, 254, 708 S.E.2d 429, 435 (2011); Harter v.
Commonwealth, 31 Va. App. 743, 752, 525 S.E.2d 606, 610-11 (2000); Fisher, 16 Va. App. at
454, 431 S.E.2d at 890.
6
We requested supplemental briefs on the procedural default issue. See, e.g., Branch v.
Commonwealth, 42 Va. App. 665, 672 n.1, 593 S.E.2d 835, 838 n.1 (2004).
7
The ends-of-justice doctrine serves as a “narrow” exception “used sparingly.” Alford v.
Commonwealth, 56 Va. App. 706, 710, 696 S.E.2d 266, 268 (2010) (citation omitted). It is
never enough for a defaulting appellant “to merely assert a winning argument on the merits —
for if that were enough procedural default ‘would never apply, except when it does not matter.’”
Id. (quoting Delaney v. Commonwealth, 55 Va. App. 64, 69, 683 S.E.2d 834, 836 (2009)).
Instead, the appellant must show that a “clear, substantial, and material” miscarriage of justice
has occurred, not merely that it “might have occurred.” D’Ambrosio v. D’Ambrosio, 45
Va. App. 323, 340, 610 S.E.2d 876, 884-85 (2005) (citation omitted).
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litigant “had the opportunity to object but elected not to do so,” Perry v. Commonwealth, 58
Va. App. 655, 667, 712 S.E.2d 765, 771 (2011) (citation omitted), was merely “taken by
surprise” by the trial court’s decision, Jones v. Commonwealth, 194 Va. 273, 280, 72 S.E.2d 693,
697 (1952), or failed to obtain a ruling from a trial court on a motion or objection asserted
before, during, or after trial.8 Nor does good cause exist when a litigant concludes an objection
would be futile because the trial court had “already considered” the issue in dispute. Luck v.
Commonwealth, 32 Va. App. 827, 834, 531 S.E.2d 41, 44 (2000).
Despite its narrowness, however, the good cause exception applies to the sui generis
circumstances of this case. Seeking an award of fees arising from her appointment in a custody
case then pending on appeal, the GAL appeared — apparently without any written motion or
notice — in another proceeding (addressing support, attorney fees, divorce, and equitable
distribution) to orally request an award of her GAL fees. The circuit court’s remarks from the
bench arguably suggested all issues, including the GAL’s fee request, would be decided no
earlier than twenty-one days after the hearing. The court, however, entered the GAL’s draft
order awarding fees fifteen days after the hearing.
In addition, presumably someone in the office of the clerk of court crossed out the correct
case number and filed the order in a different case. Weeks later, the incorrect case number was
crossed out and the correct case number was reinserted. The GAL fee award order did not direct
the clerk to forward copies of the entered order to either the parties or to counsel. Thus, neither
the parties nor counsel appeared to have been aware the order had been entered in the wrong
case. When wife discovered the entry of the order, she immediately filed a notice of appeal.
8
See Galumbeck v. Lopez, 283 Va. 500, 508-09, 722 S.E.2d 551, 555 (2012) (pretrial
motion); Williams v. Commonwealth, 57 Va. App. 341, 347, 702 S.E.2d 260, 263 (2010)
(pretrial motion); Taylor, 208 Va. at 324, 157 S.E.2d at 191 (objection during trial); Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998) (post-trial motion).
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When the handwritten notation was made on the order, ostensibly refiling it in the correct case,
wife amended her notice of appeal to include that case number.
Given the cascading series of missteps leading up to the twice-edited order, we believe
good cause excuses wife’s procedural default. This conclusion, however, does not mean we can
address the merits of wife’s arguments on appeal. Her challenges to the GAL’s fee request
mostly involve fact-specific objections to the amount of the award, the use of the proffered
exhibit, and the attribution of various charges to specific proceedings. Had the GAL known of
these objections prior to the court’s ruling, she likely would have responded with testimony and
evidence in support of her request. She may also “have been able to offer an alternative to the
objectionable ruling, but did not do so, believing there was no problem.” Lee v. Lee, 12
Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
The circuit court, moreover, would have had an opportunity to rule on each disputed issue
and could have supported its rulings with specific factual findings. See generally W. Square,
L.L.C. v. Commc’n Techs., Inc., 274 Va. 425, 433-34, 649 S.E.2d 698, 702 (2007) (outlining
factors governing the “reasonableness” of attorney’s fee request); Schlegel v. Bank of Am., 271
Va. 542, 556, 628 S.E.2d 362, 369 (2006) (same). Given the undeveloped state of the record, we
decline to address these issues for the first time on appeal.
III.
For these reasons, we remand this case to the circuit court for reconsideration of its GAL
fee award. On remand, the circuit court should conduct an evidentiary hearing and specifically
rule on each of wife’s objections to the award that she asserted in her objections filed on
September 8 and 9.9 We imply no opinion on the merits of wife’s objections, except for her
9
The circuit court need not address the reasonableness of the $175 per hour counsel fee,
however, because wife withdrew this objection during oral argument on appeal. See Oral
Argument Audio at 13:56 to 14:52.
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assertion that admissible evidence must be offered in support of the fee request.10 The circuit
court should likewise make factual findings regarding the extent, if any, to which the fees
involve the GAL’s work during the appeal of Gudino I.11 The circuit court should also
determine whether Gudino I establishes the law of the case governing the proper apportionment
of all or a portion of the GAL’s fees.
Remanded.
10
See Greene v. Greene, 223 Va. 210, 212, 288 S.E.2d 447, 448 (1982) (reversing fee
award lacking “supporting evidence”); Westbrook v. Westbrook, 5 Va. App. 446, 458, 364
S.E.2d 523, 530 (1988) (reversing counsel fee award where there was “no evidence in the record
to explain or justify the amount of the award” (citing Robertson v. Robertson, 215 Va. 425,
429-30, 211 S.E.2d 41, 45 (1975))); see also Holmes v. LG Marion Corp., 258 Va. 473, 479, 521
S.E.2d 528, 533 (1999) (holding “the fact finder must determine from the evidence the amount of
reasonable fees under the facts and circumstances of each particular case” (emphasis added)
(citation and internal quotation marks omitted)); Tazewell Oil Co. v. United Va. Bank, 243 Va.
94, 112, 413 S.E.2d 611, 621 (1992) (holding expert testimony regarding reasonableness of
attorney fees “was not necessary because of the affidavits and detailed time records”).
11
At oral argument on appeal, the GAL stated the fee request may have included time
spent reviewing the appeal paperwork. Oral Argument Audio at 16:42 to 17:38. In her appellate
brief, however, the GAL appeared to suggest the contrary. See GAL Appellate Br. at 8; see also
App. at 187 (stating in the circuit court that the fee balance was “from both Juvenile Court and
the Circuit Court proceedings”).
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