COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
ANTHONY CARL WOODSON
MEMORANDUM OPINION *
v. Record No. 1257-99-3 PER CURIAM
NOVEMBER 16, 1999
BERNADETTE ELIZA BANNISTER WOODSON
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
(Anthony Carl Woodson, pro se, on briefs).
(William C. Maxwell; Jolly, Place, Fralin &
Prillaman, P.C., on brief), for appellee.
Anthony Carl Woodson (husband) appeals from the final decree
of divorce entered by the Montgomery County Circuit Court (trial
court). Husband contends that the trial court (1) erred by
denying him a fair and impartial trial; (2) erred by granting
Bernadette Eliza Bannister Woodson (wife) a divorce based upon the
parties' separation for more than six months; (3) abused its
discretion in entering the pendente lite support order; (4) abused
its discretion in awarding excessive temporary and permanent
spousal support; (5) erred in granting wife an excessive
percentage of his police pension; (6) erred in finding that the
parties had amicably divided all marital personal property; and
(7) erred by setting the spousal support arrearage husband owed
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
where husband had declared bankruptcy, and by not coordinating the
arrearage issue with the bankruptcy court. Wife contends that the
appeal should be dismissed based on husband's failure to comply
with Rule 5A:8. Upon reviewing the record and the briefs, we find
the record inadequate to address issues three, four and seven and
dismiss those issues. We conclude that issues one, two, five and
six are without merit and summarily affirm the decision of the
trial court. See Rule 5A:27.
Wife filed her bill of complaint for divorce on April 10,
1996. Following a May 30, 1996 hearing, and without objection
from husband, the trial court entered an order setting the amount
of temporary spousal support husband was to pay wife. On
September 11, 1997, the trial court entered an order setting
husband's spousal support arrearage at $16,839.18. Counsel for
husband signed the order "Seen and objected to – The payment of
arrears is subject to, and contingent upon, the approval of the
Bankruptcy Court referenced in paragraph #1 above."
On March 4, 1999, after appellant relocated to South
Carolina, the trial court entered an order relieving husband's
attorney, and ordering that, in the future, all service upon
husband would be by first class United States mail to husband's
South Carolina address.
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On March 31, 1999, following an ore tenus hearing that
husband did not attend, 1 the trial court entered an amended order
setting husband's spousal support arrearage at $19,829.81. The
trial court waived the necessity of husband's signature on the
order, pursuant to Rule 1:13.
On April 8, 1999, wife sent husband a notice to take
depositions, which were conducted on April 23, 1999. Husband did
not appear for the depositions. On May 5, 1999, wife submitted a
final decree of divorce to the trial court, which the court signed
on May 12, 1999.
Husband concedes that he received a copy of the decree on
May 21, 1999. He did not file any objection to the decree with
the trial court, but instead, on June 3, 1999, filed a notice of
appeal. Husband mailed a statement of facts to the trial court on
July 27, 1999, but because he sent it to the wrong address, the
statement was not filed with the clerk's office until August 10,
1999.
The procedures for preparing a written statement of facts
for the appellate record are governed by Rule 5A:8. See Mayhood
v. Mayhood, 4 Va. App. 365, 368-69, 358 S.E.2d 182, 184 (1987).
Rule 5A:8(c)(1) requires that the statement of facts be filed in
the office of the clerk of the trial court within fifty-five
1
A copy of the notice for the hearing, which was held on
March 4, 1999, was mailed to husband's attorney on February 4,
1999.
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days of entry of the final order of judgment. This Court has
established a firm policy concerning the filing of transcripts
and statements of facts:
"If . . . the transcript [or statement of
facts] is indispensable to the determination
of the case, then the requirements for
making the transcript a part of the record
on appeal must be strictly adhered to. This
Court has no authority to make exceptions to
the filing requirements set out in the
Rules."
Anderson v. Commonwealth, 13 Va. App. 506, 508, 413 S.E.2d 75,
77 (1992) (quoting Turner v. Commonwealth, 2 Va. App. 96, 99,
341 S.E.2d 400, 402 (1986)).
"If we determine that the [statement of facts] is
indispensable and is not a part of the record before us for
review, we must dismiss the appeal on the ground that the record
on appeal is insufficient to fairly and accurately determine the
issues presented." Turner, 2 Va. App. at 99, 341 S.E.2d at 402.
The trial court entered the final decree on May 12, 1999.
Thus, the statement of facts had to be filed in the trial court's
clerk's office no later than July 6, 1999. Husband failed,
therefore, to comply with Rule 5A:8(c). Moreover, because husband
seeks to invoke the ends of justice exception to Rule 5A:18, and
because what transpired at the hearings pertaining to temporary
spousal support and the subsequent spousal support arrearages
might be relevant to such a determination, we conclude that the
record is insufficient to address issues three, four and seven.
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We conclude, however, that the statement of facts is not
indispensable to adjudicating the remaining issues husband raises
on appeal. No hearing was held in connection with the entry of
the final decree, and the evidence relied upon in entering the
decree was in the form of depositions, which are contained in the
record.
"We will not consider for the first time on appeal an issue
that was not preserved in the trial court." Martin v. Martin, 27
Va. App. 745, 752, 501 S.E.2d 450, 453 (1998). See Rule 5A:18.
Husband concedes that he did not preserve in the trial court
any of the issues he now seeks to raise on appeal. Instead of
seeking to convince the trial court to set aside the final decree,
husband elected to by-pass that court and file his notice of
appeal. Thus, Rule 5A:18 bars our consideration of issues one,
two, five and six. Moreover, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
Accordingly, the judgment of the trial court is summarily
affirmed.
Affirmed in part and dismissed in part.
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