COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
EDDIE FRANKLIN BROCK
MEMORANDUM OPINION *
v. Record No. 1613-96-1 BY JUDGE JOSEPH E. BAKER
APRIL 15, 1997
LORNA R. COGGIN
FROM THE CIRCUIT COURT OF SURRY COUNTY
Robert G. O'Hara, Jr., Judge
John B. Gaidies (Joynes & Bieber, P.C., on
brief), for appellant.
Sterling H. Weaver, Sr., for appellee.
Eddie Franklin Brock (appellant) appeals from a decree
entered on May 28, 1996 by the Circuit Court of Surry County
(trial court) that denied his motion to require Lorna R. Coggin
(appellee), his former wife, to repay monies he asserts were
overpayment of child support he previously had been ordered by
the trial court to pay appellee.
On July 19, 1994, appellant moved the Juvenile and Domestic
Relations District Court of Surry County (lower court) to modify
a previous order of that court that required appellant to pay
$615 per month to appellee for the support of two children. In
addition, appellant moved that court to order appellee to pay
Metropolitan Insurance Company the sum of $5,000 that she had
received from the Social Security Administration for the benefit
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
of the parties' two children. Appellant was dissatisfied with
the judgment of the lower court and appealed the judgment to the
trial court.
By decree entered on May 28, 1996, the trial court ordered
that the "child support obligation of [appellant] shall cease
retroactively to July 1, 1994 . . . ." However, by that same
decree, the trial court found that it had no authority to order
appellee to refund any sums paid appellee by Social Security on
behalf of the children of the parties which were in excess of
appellant's child support obligation. Therefore, it denied
appellant's request for the refund.
Appellee contends that because appellant failed to timely
file a transcript or written statement of facts, this matter
should be dismissed without further consideration pursuant to
Rule 5A:8. See Rule 5A:8; Barrett v. Barrett, 1 Va. App. 378,
339 S.E.2d 208 (1986).
On October 2, 1996, the Court of Appeals of Virginia issued
an order to appellant to show cause why this appeal should not be
dismissed. Appellant did not challenge the fact that a
transcript or written statement of facts was not timely filed.
Instead, he asserts that the record sufficiently states the
factual merits and legal issues for a determination of this
1
case.
1
We note that appellant's formal motion alleges that the
"lump sum award" ($5,000) belongs to Metropolitan Insurance
Company, and the prayer of the motion is for "the entry of an
order requiring the [appellee] to reimburse Metropolitan
- 2 -
Judgments of the trial court are presumed correct, Dodge v.
Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986), and may
not be set aside unless plainly wrong. Code § 8.01-680; Carter
v. Carter, 223 Va. 505, 508-09, 291 S.E.2d 218, 220 (1982). We
have reviewed the record and, without a transcript or written
statement of facts, we find that we cannot determine whether the
trial court's findings require that we reverse its decree.
We hold that a transcript or written statement of facts is
indispensable to a determination of the issues raised, including
whether the decree appealed from must be reversed. Rule 5A:8
instructs as to the time within which a statement of facts must
be filed. On this record, failure to timely file a statement of
facts is jurisdictional and therefore requires that appellant's
appeal be dismissed, see Jordan v. Price, 3 Va. App. 672, 353
S.E.2d 168 (1987); Barrett v. Barrett, 1 Va. App. 378, 339 S.E.2d
208 (1986), and that the judgment of the trial court be affirmed.
Affirmed.
Insurance Co. for the sums rightfully due it."
- 3 -