COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
RICHARD PENN
MEMORANDUM OPINION *
v. Record No. 2403-99-1 PER CURIAM
APRIL 11, 2000
DIANE A. PENN
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
(Charles E. Haden, on brief), for appellant.
(Deborah S. Roe; McDermott & Roe, on brief),
for appellee.
Richard Penn appeals an equitable distribution decree
awarding certain payments to his wife, Diane A. Penn. He
contends that the trial court erred by (1) finding that he
received proper notice of the hearing before the commissioner in
chancery and the presentation of the final decree; (2) refusing
to consider his objections to the final decree because he filed
no exceptions to the commissioner's report; (3) entering the
final decree without providing his counsel an opportunity to
endorse the order or register his objections; (4) awarding the
wife as marital property a portion of his voluntary separation
incentive (VSI) payment despite the fact that the VSI payment
was partially based on his disability payments; (5) valuing the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Hawaii time-share property as $7,700 in the absence of evidence;
(6) refusing to hear his evidence concerning his continuing
medical disabilities and inability to pay spousal support; and
(7) awarding spousal and child support on the assumption that he
had resumed his normal earnings. 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. See Rule 5A:27.
On appeal, under familiar principles, we view the evidence
in the light most favorable to the wife as the party prevailing
below and we grant all reasonable inferences flowing from that
evidence. See Gamer v. Gamer, 16 Va. App. 335, 340, 429 S.E.2d
618, 622 (1993). "'The burden is on the party who alleges
reversible error to show by the record that reversal is the
remedy to which he is entitled.'" Lutes v. Alexander, 14 Va.
App. 1075, 1077, 421 S.E.2d 857, 859 (1992) (citation omitted).
Procedural History
The husband commenced this action by filing his bill of
complaint on August 24, 1995. The husband, through counsel,
sought several continuances because of medical treatment. By
order entered September 11, 1998, the trial judge ruled husband
in contempt for failing to comply with the terms of previous
court orders. On December 2, 1998, the trial court granted the
motion of the husband's counsel to withdraw. The husband did
not substitute new counsel and proceeded pro se.
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Mailing a notice to the husband at the address provided by
him, the commissioner notified the husband that depositions were
scheduled for May 26, 1999. Husband received the notice. In a
letter addressed to the commissioner dated May 21, 1999, the
husband asked the commissioner to consider several factors and
requested that the commissioner "be fair and with in [sic] the
law in whatever decision you make regarding this cause." On the
day of the commissioner's hearing, the husband faxed a letter to
the commissioner responding to an inventory of marital assets
and liabilities filed by the wife's counsel. The husband did
not appear or present other evidence. On July 20, 1999, the
commissioner mailed the husband a copy of his report. The
husband noted no exceptions to the report.
Wife's counsel notified the husband of the hearing
scheduled for the presentation of the final decree and sent
husband a draft decree. Although we find nothing in the record
before us to indicate whether the husband attended the hearing,
the parties agree that husband appeared at the hearing with
counsel. The trial court entered the final decree affirming the
commissioner's report on September 14, 1999. Neither the
husband nor his counsel endorsed the final decree, or noted any
objections.
Notice
The husband contends that the wife failed to properly
notify him of the commissioner's hearing and of the hearing for
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the presentation of the final decree. Husband did not challenge
the adequacy of the notice he received at any point in the
proceedings below. He did not contest that he received notice
of both the taking of depositions and the hearing for the
presentation of the final decree. By failing to raise this
issue below, the husband waived any error in the sufficiency of
the notice he received. See Rule 5A:18. Therefore, this
contention is without merit.
Preservation of Remaining Issues
Husband concedes that he failed to note any exceptions to
the commissioner's report and failed to note any objections to
the final decree. 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.
Husband received notice of the commissioner's hearing, but
elected not to appear. He presented no evidence. He filed no
exceptions to the commissioner's report and noted no objections
to the final decree. He did not file a motion for
reconsideration setting out his objections. Therefore, Rule
5A:18 bars us from reviewing the issues husband raises on
appeal.
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Although the husband asserts that good cause exists to
apply the exception to Rule 5A:18, he provides no support for
that assertion. "Even pro se litigants must comply with the
rules of court. '[T]he "right of self-representation is not a
license" to fail "to comply with the relevant rules of
procedural and substantive law."'" Francis v. Francis, 30 Va.
App. 584, 591, 518 S.E.2d 842, 846 (1999) (citations omitted).
Upon our review, we find no reason in the record to invoke the
good cause or ends of justice exceptions to Rule 5A:18.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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