COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons ∗
AMOS F. KYHL
OPINION BY
v. Record No. 3000-98-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 21, 2000
BETTY C. KYHL
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
William Shore Robertson, Judge
(Paul A. Morrison; Howard, Morrison &
Howard, on brief), for appellant. Appellant
submitting on brief.
(Thomas G. Smith, on brief), for appellee.
Appellee submitting on brief.
Amos F. Kyhl ("appellant") appeals an order of the Circuit
Court of Fauquier County reducing the amount of appellant's
spousal support to Betty C. Kyhl ("appellee") rather than
terminating it. Preliminarily, appellant contends that the
inability of the trial court to certify an authoritative record
of the facts it relied upon in making its order requires remand
for a new trial. He also claims that the trial court's entry of
an order reducing but not terminating spousal support
constituted abuse of discretion. For the reasons that follow,
∗
Justice Lemons participated in the decision of this case
prior to his investiture as a Justice of the Supreme Court of
Virginia.
we vacate the order of the trial court and remand for a new
trial.
BACKGROUND
There is no transcript in this appeal, and the written
statement of facts provided by the trial court is limited.
By order of the Circuit Court of Fauquier County dated
August 25, 1994, appellant was required to pay $500 per month in
spousal support. On July 31, 1998, appellant petitioned the
trial court for termination of spousal support based upon
material change in circumstances. The court heard appellant's
motion argument on October 22, 1998, and entered an order on
November 28, 1998 reducing appellant's monthly support
obligation from $500 to $266.25. No court reporter was present
at the hearing.
Appellant filed a notice of appeal to this Court on
December 18, 1998. He subsequently filed a written statement of
facts in lieu of transcript, to which appellee objected.
Appellee filed a counter-statement of facts, to which appellant
objected. Because of the parties' inability to agree on the
facts presented to, and relied upon by, the trial court in
entering its order of November 28, 1998, the trial court filed a
signed "Certification of Written Statements of Facts, Testimony,
and Other Incidents of the Case" ("Certification") pursuant to
Rule 5A:8(c) and (d). The court stated in its Certification
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that it based its decision to reduce but not terminate spousal
support upon the income and expense statements of the parties
and "all of the evidence" at the October 22, 1998 hearing. The
court also considered a supplemental verification of annuity
filed on October 27, 1998. The court stated that it believed
"the record on appeal and the corrections and additions stated
. . . will provide the Court of Appeals with a sufficient record
upon which this matter may be decided on appeal." The court
conceded that "the passage of time and the lack of a transcript
or other memoranda or notes prevent the [c]ourt even with the
assistance of counsel from stating further incidents of trial."
The court also acknowledged that if the Court of Appeals should
determine that a more complete record is necessary for proper
adjudication of the appeal, the case could be remanded for a new
trial.
ANALYSIS
Proctor v. Town of Colonial Beach, 15 Va. App. 608, 425
S.E.2d 818 (1993), governs the outcome of this case. In
Proctor, we observed that Rule 5A:8(c) imposes three
requirements for a written statement of facts to be included in
the record of a case on appeal: 1) it must be filed in the
office of the clerk of the trial court within fifty-five days
after entry of judgment; 2) a copy of the statement must be
mailed or delivered to opposing counsel along with a notice that
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the statement will be presented to the trial judge between
fifteen and twenty days after filing; and 3) the trial judge
must sign the statement, and the signed statement is to be filed
in the office of the clerk. 1 See Proctor, 15 Va. App. at 610,
425 S.E.2d at 819. Once an appellant has complied with the
first two steps, he or she has established prima facie
compliance with the requirements of the Rule. See id. at 610,
425 S.E.2d at 820. The trial judge must then either sign the
statement, correct it and sign the corrected statement, or, if
the judge cannot in good faith recall or accurately reconstruct
the relevant proceedings, order a new trial. See id. at 611,
425 S.E.2d at 820.
1
Rule 5A:8(c) states, in pertinent part:
In lieu of a transcript, a written statement
of facts, testimony, and other incidents of
the case . . . become a part of the record
when: (1) within 55 days after entry of
judgment a copy of such statement is filed
in the office of the clerk of the trial
court. A copy must be mailed or delivered
to opposing counsel accompanied by notice
that such statement will be presented to the
trial judge no earlier than 15 days nor
later than 20 days after such filing; and
(2) the statement is signed by the trial
judge and filed in the office of the clerk
of the trial court. The judge may sign the
statement forthwith upon its presentation to
him if it is signed by counsel for all
parties, but if objection is made to the
accuracy or completeness of the statement,
it shall be signed in accordance with
subsection (d) of this Rule.
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In Proctor, the trial judge failed to sign the written fact
statement. Because of this omission by the trial court, we
remanded the case with instructions for the judge to either sign
the statement, correct it and sign it, or, if he could not
accurately recall or reconstruct the facts of the case, order a
new trial. See id.; cf. Harris v. Woodby, Inc., 203 Va. 946,
948, 128 S.E.2d 278, 281 (1962) 2 (when judge is unable to certify
accuracy of statement of facts, or make sufficient emendations
to render it accurate, judge should order a new trial so that a
proper transcript or statement of facts can be prepared).
In this case, the judge admitted in the Certification that
he could not recall or reconstruct all of the facts presented at
trial and which served as the basis for his order. Although the
trial judge stated that those facts included in the
Certification should be sufficient to determine the outcome of
the appeal, we cannot say the record before us supports that
conclusion.
In setting forth the facts underlying its decision, the
court's Certification makes general reference to "material
changes in the parties' circumstances" and notes that the court
"considered the income and expense statements of the parties and
2
Our decision in Proctor comports with the Supreme Court's
case law construing Rule 5:11, which corresponds to Rule 5A:8.
See Barrett v. Barrett, 1 Va. App. 378, 380, 339 S.E.2d 208, 209
(1986).
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all of the evidence at [the] hearing together with a
supplemental verification of annuity about which the plaintiff
had testified . . . ." These factors for determining awards of
spousal support are among those enumerated in Code § 20-107.1.
However, in their opposing statements of fact, the parties
differed over such basic issues as the value of realty owned by
appellant, the medical conditions of both parties, their
respective incomes, and facts supporting a claim for imputed
income. Thus, reading together the Certification and the
parties' proposed statements of fact in light of the trial
court's admitted inability to fully recall the facts established
at the hearing, we conclude that the facts set forth in the
Certification do not constitute a complete and accurate record
of the proceedings pertinent to this appeal. Accordingly, we
remand the case for a new trial. See Proctor, 15 Va. App. at
611, 425 S.E.2d at 820. 3
We find no merit to appellee's argument that ordering a new
trial in this instance violates the doctrine of res judicata.
3
The facts of this case distinguish it from the result in
White v. Morano, 249 Va. 27, 452 S.E.2d 856 (1995). In Morano,
the Virginia Supreme Court held that when a court reporter is
present at trial and has recorded the proceedings, but appellant
fails to submit a transcript of those proceedings to the
reviewing court, the decision of the trial court will be
affirmed. See id. at 31, 452 S.E.2d at 858. However, the
Supreme Court further noted in Morano that when an insufficiency
of the record is the result of the trial judge's inability to
fully recall the proceedings and no reporter was present, the
rule of Harris, 203 Va. 946, 128 S.E.2d 278, applies. See id.
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Although she correctly cites AMP, Inc. v. Ruebush, 10 Va. App.
270, 275, 391 S.E.2d 879, 882 (1990), for the proposition that
"public policy considerations which favor certainty in the
establishment of legal relations[ ] demand an end to litigation,
and seek to prevent harassment of the parties," such
considerations are irrelevant to this appeal. "Res judicata
precludes the re-litigation of a claim or issue once a final
determination on the merits has been reached by a court having
proper jurisdiction over the matter." Gottlieb v. Gottlieb, 19
Va. App. 77, 81, 448 S.E.2d 666, 669 (1994) (citing Commonwealth
ex rel. Gray v. Johnson, 7 Va. App. 614, 617-18, 376 S.E.2d 787,
788 (1989)). "[A] judgment is not final for the purposes of res
judicata . . . when it is being appealed . . . ." Faison v.
Hudson, 243 Va. 413, 419, 417 S.E.2d 302, 305 (1992). On
appeal, appellant contends the trial judge violated Rule 5A:8
when he signed the statement of facts, despite the trial judge's
admission that he was unable to certify all of the facts
established at the hearing. As held in Faison, res judicata
does not bar an appeal of a trial court's interpretation of the
law.
Finally, because the factual record in this appeal is
incomplete, we do not reach appellant's claim that the trial
court abused its discretion by refusing to terminate spousal
support. Records of cases on appeal must be "'accurate [and]
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complete to the degree necessary to adjudicate the appeal.'"
Williams v. Commonwealth, 7 Va. App. 516, 522, 375 S.E.2d 364,
367 (1988) (en banc) (Benton, J., dissenting) (quoting Turner v.
Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986));
see also Lamb v. Commonwealth, 222 Va. 161, 163 n.2, 279 S.E.2d
389, 391 n.2 (1981). In the absence of a complete factual
record, we decline to address appellant's second claim.
For the foregoing reasons, we vacate the order of the trial
court and remand for a new trial.
Vacated and remanded.
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