Twardy v. Twardy

ON REHEARING EN BANC

Opinion

BARROW, J.

A rehearing en banc was granted in this appeal from a decision of a panel in which there was a dissent.1 The ap*653peal is from a judgment of the trial court requiring the husband to pay the wife an amount he had agreed to pay to satisfy a debt that the wife has since paid in full. We are unable, however, to address the issue fully because a transcript of a hearing before the trial court was not made a part of the record. The transcript is needed to support the wife’s contention that the trial court’s decision is correct. We hold that, because the husband represented in his notice of appeal that he would file the transcript and failed to do so, the appeal must be dismissed.

At trial, a provision of the parties’ separation agreement was at issue. The husband contended that his responsibility under the agreement to pay a second deed of trust was extinguished when the wife refinanced the debts underlying the second and first deeds of trust. The two deeds of trust encumbered the marital residence, which, under the terms of the agreement, the husband had conveyed to the wife. Under the agreement, the husband had agreed “to be responsible for the payment under the second deed of trust encumbering said property, to make payments directly to the lender, and to indemnify and hold wife harmless thereon.”2 After the husband conveyed his interest in the property to the wife, she refinanced both of the debts that were secured by the deeds of trust. Consequently, the debt secured by the second deed of trust for which the husband agreed to be responsible was satisfied. The *654husband argues that this relieved him of his responsibility to make the payments provided for in the agreement. However, the trial court disagreed and ordered the husband to pay the wife those sums of money that, according to the agreement, were to be paid directly to the lender under the second deed of trust.

The husband appealed, asserting that under the plain language of the agreement, the wife extinguished his liability by satisfying the debt. The wife, on the other hand, contends that evidence presented at an evidentiary hearing before the trial court supported a finding that she refinanced the debt “based on her husband’s representations that he would continue to make payments on the debt after the refinancing.” The transcript of this hearing was not timely filed with the clerk of the trial court and is not, therefore, a part of the record in this appeal. Rule 5A:8(a); see also Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986).

This court and the Supreme Court have recently addressed the allocation of responsibility for ensuring a complete record. In a decision by a panel, this court observed that “an appellant has the primary responsibility of ensuring that a complete record is furnished to an appellate court so that the errors assigned may be decided properly.” Ferguson v. Commonwealth, 10 Va. App. 189, 194, 390 S.E.2d 782, 785, aff'd in part, rev’d in part, 240 Va. ix, 396 S.E.2d 675 (1990). However, the panel’s opinion pointed out that an appellant “should not be required to anticipate [an appellee’s] defense to his claim of error and provide the record necessary to support [the appellee’s] claim.” Id. at 194-95, 390 S.E.2d at 785. The opinion recognized that an appellee “also has an obligation to ensure that the record contains the evidence supporting its contention.” Id. Nevertheless, the panel held that an appellee has the right to rely upon an appellant’s statement in its notice of appeal that a transcript will be made a part of the record and that the responsibility for failing to provide the transcript necessarily falls upon the appellant. Id.

The panel’s opinion discourages unnecessary delay and expense in the preparation of an appellate record. Record preparation is “one of the most time-consuming and expensive aspects of appellate procedure.” ABA Comm. on Standards of Judicial Review, Standards Relating to Appellate Courts 36 (1977). “Often, the entire transcript of proceedings in the trial court is unnecessary” *655and preparing one is “wasteful of both money and time.” R. Leflar, Internal Operating Procedures of Appellate Courts 17 (1976). Consequently, most court rules permit designation of only portions of the record in an appeal. R. Novak & D. Somerlot, Delay on Appeal 106 (1990). The panel’s opinion discourages unnecessary record preparation and remains consistent with our rules requiring an appellant to state “whether any transcript or statement of facts, testimony, and other incidents of the case will be filed,” Rule 5A:6, and permitting the filing of an abbreviated record, Rule 5A: 10(c). These requirements, however, presuppose sufficient communications between the appellant and the appellee to enable the appellee to learn the errors the appellant intends to assign and to arrange for the timely filing of any transcript or statement of facts necessary to support appellee’s position.

In reviewing our decision in Ferguson, the Supreme Court briefly addressed this issue. In a published order, it affirmed the decision of our court “insofar as it dismisses [the appellant’s] appeal for failure to comply with Rule 5A:8.” However, it also “reversed and vacated” the judgment of our court “insofar as it requires the [appellee] to file those portions of the record necessary to enable appellate courts to conduct harmless-error review, see Code § 8.01-678 (harmless-error review required in all cases).” Ferguson v. Commonwealth, 240 Va. ix, 396 S.E.2d 675, 675 (1990). This language suggests that an appellant has the responsibility in all cases to provide a complete record, including transcripts of all proceedings.

We need not determine the full implications of the Supreme Court’s decision because under the views expressed by this court and the Supreme Court, the husband should have filed a transcript of the hearing in question. Admittedly, the Supreme Court’s language in Ferguson may be read to require a full transcript of every hearing to be filed in every case. However, our decision does not extend that far, although the dissent incorrectly charges that it does. In deciding this appeal, we need go no further than the holding of our panel in Ferguson.

An appellee has a right to rely on an appellant’s representation in the notice of appeal that a transcript will be made a part of the record. Ferguson, 10 Va. App. at 194, 390 S.E.2d at 785. The husband in his notice of appeal represented that “[A] transcript will be filed.” The wife had a right to rely on this statement. See *656Id.

The husband contends that we do not need a transcript of the trial court hearing to decide this case. He argues that we may not address the issue of estoppel on appeal because the wife did not plead or otherwise raise the issue in the trial court. Therefore, he contends, this appeal may be decided solely on the basis of the separation agreement without going beyond it. We do not agree. If the issue of estoppel was presented to the trial court, we must go beyond the express provisions of the agreement to determine if the trial court’s decision is supported by sufficient evidence to permit a finding of estoppel. However, without a transcript, we cannot determine if estoppel was presented to the trial court or if sufficient evidence supported such a theory. Equitable estoppel need not have been pleaded, and the absence of the transcript prevents us from determining if the issue was otherwise presented to the trial court.

The issue of equitable estoppel was not pleaded, nor should it have been. This is a proceeding for divorce, not an action to enforce the separation agreement. The wife filed a bill of complaint seeking a divorce, spousal support, counsel fees, court costs and other relief. The husband responded with an answer and cross-bill, asserting that the wife was not entitled to support and asking that the separation agreement be incorporated into the final decree. The question of equitable estoppel, therefore, was not in issue until the husband sought to avoid incorporation into the decree of the provision in controversy. No opportunity to plead equitable estoppel was ever presented.

The husband relies on language in an early opinion of the Supreme Court that “mere equitable estoppel constitutes no defense to an action of ejectment . . . and when such defense is set up on the equity side of the court, it must be distinctly charged and clearly proved.” Newport News & Old Point Ry. & Elec. Co. v. Lake, 101 Va. 334, 344, 43 S.E. 566, 569 (1903). Later, however, the Supreme Court more clearly described when a specific defense needs be pleaded, holding that a defendant was entitled to rely on a specific defense (statute of frauds) even though the defense was not pled where the plaintiffs “notice of motion did not indicate the necessity or propriety of such a plea” and nothing of record suggested “that the statute of frauds would be involved until plaintiff introduced his evidence.” Lawson v. States Constr. Co., *657193 Va. 513, 521, 69 S.E.2d 450, 455 (1952). Similarly, in this case, until the husband sought to avoid incorporation of the provision relating to payments on the second deed of trust, nothing of record suggested that the issue of estoppel would be involved. The wife, therefore, was entitled to raise the issue even though she had not pled it because the pleadings had not brought it into issue.

Next, the husband contends that the question of estoppel was not raised in the trial court. We are not able, however, to determine if this is so because the transcript of the ore tenus hearing was not made a part of the record. The husband may not rely on his failure to file the transcript, which he represented would be filed, to contend that the record fails to show that this issue was raised at trial.

The husband relies on “the concepts and principles embodied in” our opinion in Lee v. Lee, 12 Va. App. 512, 404 S.E.2d 736 (1991) (en banc), to support his assertion that the issue of estoppel was not raised at trial. Lee held only that endorsing a decree “seen and objected to” does not preserve an issue for appeal unless the record further reveals that the issue was properly raised for consideration by the trial court. Lee, 12 Va. App. at 516-17, 404 S.E.2d at 738-39. Lee dealt with the contemporaneous objection rule embodied in Rule 5A:18. Lee, 12 Va. App. at 514, 404 S.E.2d at 737. The contemporaneous objection rule is not applicable to this case because the appellee is not seeking reversal of any part of the trial court’s judgment. Driscoll v. Commonwealth, 14 Va. App. 449, 451, 417 S.E.2d 312, 313 (1992); Mason v. Commonwealth, 7 Va. App. 339, 346, 373 S.E.2d 603, 607 (1988). Therefore, it is immaterial whether the wife actually raised the issue at trial. What is important, however, is whether the facts presented at the evidentiary hearing supported the trial court’s decision.

The “right for the wrong reason rule” is also not applicable in this case. This rule permits an appellate court to affirm the judgment of a trial court when it has reached the right result for the wrong reason. Driscoll v. Commonwealth, 14 Va. App. at 452, 417 S.E.2d at 313. This rule may not be used if “further factual resolution is needed before the right reason may be assigned to support the trial court’s decision.” Id. at 452, 417 S.E.2d at 314. In this case, the record does not reveal that the trial court gave any reason for its decision, either right or wrong. Furthermore, *658the record does not reveal the need for further factual resolution to support the trial court’s decision. Thus, we are not confronted with a task of supplying a correct reason for a wrong one in order to affirm a right result.

Instead, another rule applies. The trial court’s judgment 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); see also Lawrence v. Nelson, 200 Va. 597, 599, 106 S.E.2d 618, 620 (1959); Mick v. Bristol, 180 Va. 15, 20, 21 S.E.2d 758, 761 (1942); Tyree v. Blevins Funeral Home, 176 Va. 213, 215, 10 S.E.2d 571, 571 (1940).

If evidence was presented at the evidentiary hearing which would support a factual finding that the husband’s actions or representations justified the trial court in concluding that the wife was entitled to the judgment, we would be required to affirm it. Without a timely filed transcript of the hearing, we are unable to determine if such evidence was presented. We are not able to peer surreptitiously into a transcript that is not part of the record to satisfy our curiosity. To do so defies the uniform application of our rules. The absence of such a transcript as part of our record was not due to any action or lack of action by the wife. She was entitled to rely upon the assertion by the husband in his notice of appeal that he would file the transcript upon which she would need to rely. Unable to address fully the merits of the appeal, we must grant the motion to dismiss the appeal.

Dismissed.

Koontz, C.J., Duff, J., Moon, J., Willis, J., Elder, J., and Bray, J., concurred; Baker, J., concurred in the result.

The decision of the panel is unpublished (Record No. 1152-89-2, March 19, 1991).

The provision of the agreement at issue reads as follows:

The Wife agrees to assume the obligations of the first lien indebtedness thereon and to indemnify and to hold the husband harmless thereon. The Husband agrees to be responsible for the payment under the second deed of trust encumbering said property, to make payments directly to the lender, and to indemnify and hold Wife harmless thereon, and further agrees that this obligation shall not be dischargeable in bankruptcy.
The foregoing notwithstanding in the event the Wife enters into a bona fide contract with a third party for the sale of said real estate, the Husband shall be entitled to a right of first refusal to purchase property. ... In the event the Husband exercises his right of first refusal granted herein within the sixty (60) day period, the Wife agrees to allow him to assume the obligations for both the first and second deeds of trust encumbering the property, if no opposition appears from the lenders of said deeds of trust, as partial payment of the purchase price of the property. In the event the Husband declines to exercise his right of first refusal thereunder, the Wife agrees to pay all and satisfy in full the principal balance due and owing under the notes secured by both deeds of trust from the proceeds received by her from the sale of the property, unless the purchasing third party legally assumes the obligation of the first deed of trust, in which case only the second deed of trust must be satisfied in full by the Wife. (Emphasis added).