COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
DON RAY HUDGINS
MEMORANDUM OPINION * BY
v. Record No. 2527-96-1 JUDGE RICHARD S. BRAY
OCTOBER 28, 1997
KAREN C. HUDGINS
FROM THE CIRCUIT COURT OF MATHEWS COUNTY
John M. Folkes, Judge
Samuel R. Brown, II (Samuel R. Brown, II,
P.C., on brief), for appellant.
McClanahan Ingles (Martin, Ingles & Ingles,
Ltd., on brief), for appellee.
Don Ray Hudgins (husband) appeals from the trial court's
adjudication of numerous support, equitable distribution and
related issues in dispute between husband and his former wife,
Karen C. Hudgins (wife). Husband contends that the trial court
erroneously (1) ordered a lawnmower and weedeater returned to
wife, (2) refused to award him attorney's fees, (3) failed to
dismiss wife's request for sanctions and award him attorney's
fees incurred in the defense of such motion, (4) altered spousal
support fixed in the parties' separation agreement, (5) awarded
wife more spousal support than recommended by the "special
master" (master), (6) miscalculated husband's support arrearage,
and (7) fixed and ordered him to pay fees and costs of the
master. Finding appellate review of several issues procedurally
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
barred and no merit in husband's remaining arguments, we affirm
the decree.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I. PROCEDURAL ISSUES
It is well established that an appellant must have
previously presented all issues on appeal to the trial court,
thereby permitting its consideration and appropriate response.
See Rule 5A:18; Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736,
737 (1991) (en banc). Failure to raise timely and sufficient
objection bars appellate review of any attendant error. See Lee,
12 Va. App. at 515, 404 S.E.2d at 738.
On appeal, the judgment of the trial court "is presumed to
be correct[,] and the burden is on the appellant to present to us
a sufficient record from which we can determine whether the lower
court has erred." Justis v. Young, 202 Va. 631, 632, 119 S.E.2d
255, 256-57 (1961). When appellant recites in a notice of appeal
that a transcript will be filed and made a part of the record on
appeal, "[a]n appellee has a right to rely on . . . [that]
representation." Twardy v. Twardy, 14 Va. App. 651, 655, 419
S.E.2d 848, 850 (1992) (en banc). The transcript becomes a part
of the record on appeal only when filed with the clerk of the
trial court within 60 days after entry of the final judgment,
attended by the requisite notice. Rule 5A:8(a). Appellant must
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also timely file a statement of the questions presented on
appeal, and omission of an issue precludes our review of such
question. See Rule 5A:25(d); Wash v. Holland, 166 Va. 45, 53-54,
183 S.E. 236, 240 (1936).
Return of Lawn Equipment to Wife
The record does not establish preservation of this issue for
appeal. Although husband assigned error to the disputed ruling,
he failed to sufficiently preserve a related objection in the
final order. We recognize that a party may also save an
objection by argument before the trial court, see Lee, 12 Va.
App. at 515-16, 404 S.E.2d at 738, but a proper transcript of the
relevant proceedings is not a part of the record before us. See
Rules 5A:8; 5A:18.
Attorney's Fees
Husband contends that the trial court erred "in finding that
[husband] not be awarded any attorney's fees." This issue was
similarly not properly preserved for appeal. See Rule 5A:18.
Request for Sanctions and Related Attorney's Fees
Husband questioned "[w]hether the Court erred in not
entering an Order dismissing sanctions filed against . . .
[husband] and his counsel by Plaintiff's counsel and not awarding
. . . [husband's] counsel attorney's fees for having to respond."
However, he argues on brief that the court failed to rule on
husband's motion for sanctions against wife's counsel, an issue
not included in the original question presented. See Rule
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5A:25(d). Moreover, a transcript of the attendant proceeding,
necessary to consider the issue on appeal, is not properly a part
of the record. See Rule 5A:8(a).
II. ISSUES CONSIDERED ON THE MERITS
Spousal Support
"Jurisdiction in a divorce suit is purely statutory, and
does not encompass broad equitable powers not conferred by
statute." Boyd v. Boyd, 2 Va. App. 16, 19, 340 S.E.2d 578, 580
(1986) (citation omitted). Code § 20-79 provides the court with
jurisdiction to award spousal support in divorce proceedings
"when either party . . . so requests." See Code §§ 20-103,
20-107.1. However, if the parties file a stipulation or contract
before entry of the final decree, the court may award support
only in accordance with such agreement. Code § 20-109. When the
court "affirms, ratifies and incorporates" the agreement into a
decree, it becomes an enforceable order. Code § 20-109.1; see
Rodriguez v. Rodriguez, 1 Va. App. 87, 90, 334 S.E.2d 595, 597
(1985).
Here, the court properly incorporated the stipulation
agreement of the parties into a decree, thereby ordering husband
to pay spousal support of $350 per month, and expressly
permitting "wife [to] petition a court of competent jurisdiction"
for review of the award upon "a change of circumstances."
Husband's counsel subsequently agreed to $650 per month, prepared
a related decree, and presented it for entry by the court,
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endorsed by both counsel. Clearly, the preparation and
submission of the draft decree constituted a petition for
modification pursuant to the agreement, vesting the court with
jurisdiction to effect the disputed increase.
Deviation from Master's Recommendation
Because the transcripts of the hearings on exceptions to the
master's reports were not properly filed, we review only the
reports and related orders of the court. The master's
supplemental report recites changes in the parties' financial
circumstances since the initial hearing, resulting in a
recommendation that spousal support be reduced to $385 per month.
Despite a confusing reference by the master to a support
obligation of $500, the record discloses that the trial judge
correctly interpreted the recommendation. Although not expressly
acknowledging the inconsistency, the court confirmed the report
only "in part." It "order[ed] that the said spousal support
. . . [be] set at . . . [$500] per month . . . commencing June 1,
1996, but decline[d] to further reduce the said spousal support
beyond $500.00 per month after considering all factors required
in the Code of Virginia as well as the equities of this case."
Contrary to husband's argument, deviation by the court from
the master's recommendation was not an abuse of discretion.
Under settled principles,
[w]hile the report of a commissioner in
chancery does not carry the weight of a
jury's verdict, Code § 8.01-610, it should be
sustained unless the trial court concludes
that the commissioner's findings are not
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supported by the evidence. This rule applies
with particular force to a commissioner's
findings of fact based upon evidence taken in
his presence, but is not applicable to pure
conclusions of law contained in the report.
On appeal, a decree which approves a
commissioner's report will be affirmed unless
plainly wrong; but where the chancellor has
disapproved the commissioner's findings, this
Court must review the evidence and ascertain
whether, under a correct application of the
law, the evidence supports the findings of
the commissioner or the conclusions of the
trial court.
Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296 (1984)
(citations omitted).
In determining spousal support, the trial court must
consider the factors enumerated in Code § 20-107.1. See, e.g.,
Holmes v. Holmes, 7 Va. App. 472, 483, 375 S.E.2d 387, 394
(1988). Although this requirement
implies substantive consideration of the
evidence presented as it relates to all of
these factors[,] [t]his does not mean that
the trial court is required to quantify or
elaborate exactly what weight or
consideration it has given to each . . . .
It does mean, however, that the court's
findings must have some foundation based on
the evidence presented.
Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426
(1986). "When the record discloses that the trial court
considered all of the statutory factors, the court's ruling will
not be disturbed on appeal unless there has been a clear abuse of
discretion." Gamble v. Gamble, 14 Va. App. 558, 574, 421 S.E.2d
635, 644 (1992).
Here, the trial court expressly confirmed consideration of
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"all factors required in the Code of Virginia [Code § 20-107.1]
as well as the equities of this case." Our review of the record
and the award in issue discloses appropriate consideration of the
statutory factors and attendant evidence by the trial court and
suggests no abuse of discretion.
Calculation of Support Arrearage
Husband contends that the trial court erroneously calculated
the support arrearage, once noting an arrearage of $5,000, but
later finding a total of $6,500. Correspondence from the court
in the record clearly explains that its reference to $5,000 was a
"misstatement," corrected by subsequent order.
Order to Pay Fees and Costs of the Master
Although husband challenges on appeal the order requiring
him to pay all fees and costs of the master, he raised no timely
objection to the court's calculation, and review of this issue
is, therefore, also precluded on appeal. See Rule 5A:18. A
court of equity has discretion in the award of costs, see Code
§ 14.1-177; see Smith v. Woodlawn, 235 Va. 424, 431, 368 S.E.2d
699, 703 (1988), and our review of the record discloses no abuse
of discretion in requiring husband to pay the disputed fees and
costs in this instance.
Accordingly, for the foregoing reasons, we affirm the
decree.
Affirmed.
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