Browning v. Browning

68 Va.App. 19

802 S.E.2d 178

Janine Helen Adelman BROWNING

v.Larry Grant BROWNING

Record No. 2012-16-3

Court of Appeals of Virginia, Lexington.

JULY 25, 2017

Thomas P. Walk (Altizer, Walk and White, PLLC, on briefs), Tazewell, for appellant.

Robert M. Galumbeck (Galumbeck and Kegley, Attorneys, on brief), for appellee.

Present: Judges Petty, Alston and Russell

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Janine Browning ("wife") appeals an order of the circuit court regarding the equitable distribution of the marital estate and the award of spousal support resulting from her divorce from Larry Browning ("husband"). Because we find a trial transcript that was not timely filed is indispensable to our resolution of the issues raised on appeal, we consider those issues waived and affirm the judgment of the trial court.

BACKGROUND

"On appeal, we view the evidence in the light most favorable to husband, the prevailing party below, and grant him ‘all reasonable inferences fairly deducible therefrom.’ " Bajgain v. Bajgain , 64 Va. App. 439, 443, 769 S.E.2d 267, 269 (2015)(quoting Anderson v. Anderson , 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999) ).

The parties were married on January 27, 1967. The instant divorce action was initiated on April 30, 2007, when wife filed a complaint for divorce in the Circuit Court of Washington County. On May 25, 2007, husband filed his answer and cross-complaint. Both parties sought a divorce and equitable distribution; wife additionally requested temporary and permanent spousal support and attorney's fees. Because husband, an attorney, practiced regularly before the court, a judge designate was appointed. Wife filed a motion for the judge designate to recuse himself, which was denied, and the designated judge for several years thereafter heard numerous pendente lite and ancillary matters and entered orders in accord with his rulings. Ultimately, however, after wife again moved for recusal on alternative grounds, the initial judge designate recused himself by order dated October 7, 2011, nunc pro tunc to August 23, 2011. A second judge designate was appointed, but then also recused himself. Ultimately, a third judge designate, who entered the order from which this appeal is taken, was appointed as judge designate on November 18, 2011.¹

On March 6, 2012, a scheduling order was entered setting the matter for a two-day trial in July 2012. In lieu of trial in July 2012, a hearing was held on the parties' intervening motions. On October 16, 2012, the court entered an order reflecting its rulings on those issues and resetting the trial date for November 19, 2012. On that date, the court conducted an evidentiary hearing on the issues related to the grounds of divorce, equitable distribution, and spousal support. Alleged marital agreements and other items were offered into evidence.

Shortly after the November 19, 2012 hearing, the court reporter produced a transcript of the hearing. Copies of the transcript were provided to counsel for the parties and the trial judge. No copy of the transcript was filed with the clerk of the trial court at that time.²

Because additional time was needed for wife's expert witness to update his report on the valuation of husband's law practice and the evidentiary hearing had lasted longer than the time allotted, the case was carried over to February 26, 2013. Thereafter, the matter again was continued and rescheduled for a July 9, 2013 hearing.

It appears that in June 2013, wife sought a further continuance. Husband objected and filed a renewed motion for bifurcation of the divorce from the property and support issues. The court granted both requests. By order dated August 15, 2013, the court memorialized the bifurcation, granted the parties a divorce on separation grounds, and continued the other issues generally. The remaining issues were noticed for a hearing on January 8, 2014. In addition to the evidence adduced on that date ore tenus , the court permitted the parties to submit their expert witness testimony via deposition and offered an opportunity for them to call potential other witnesses live at a future date.

A transcript of the January 8, 2014 hearing was prepared and received by counsel for the parties. A copy of the transcript was filed with the clerk of the trial court on March 10, 2014.

No further ore tenus evidentiary hearings were conducted. The parties were permitted to submit for consideration additional exhibits and post-hearing memoranda.

The trial court issued a letter opinion on July 16, 2016. Both parties presented draft orders memorializing the court's rulings for the court to review, and a brief hearing was held on the matter. Ultimately, the court entered its final decree regarding spousal support and equitable distribution on November 16, 2016. Wife filed her notice of appeal with the clerk of the circuit court on December 7, 2016.

In her appeal, wife argues that the trial court erred regarding equitable distribution, the classification of certain pieces of property, in its interpretation of a trust agreement, in the division of certain pieces of personal property, in failing to award her attorney's fees, and regarding the effective date selected for the commencement of spousal support payments.

In response, husband not only addresses the merits of wife's appeal, but moves to dismiss the appeal based on alleged violations of Rule 5A:8. Specifically, husband argues that no notice of filing transcripts has been filed regarding either the transcript of the November 19, 2012 hearing or the transcript of the January 8, 2014 hearing as required by Rule 5A:8(b). Furthermore, husband argues that the November 19, 2012 hearing transcript is not part of the record because it was not filed with the clerk of the trial court within the time period specified in Rule 5A:8(a). In short, husband requests that we find that these transcripts are not a part of the record and dismiss wife's appeal. We will address husband's procedural arguments based on the Rules of Court in turn.

ANALYSIS

I. Standard of Review

Husband's motion to dismiss the appeal is premised on requirements imposed by the Rules of the Supreme Court. Interpretation of the Rules is a legal question that we address de novo . Belew v. Commonwealth , 284 Va. 173, 177, 726 S.E.2d 257, 259 (2012). Rules of statutory construction apply equally to the interpretation of the Rules, so that "[i]n construing the language of rules and statutes, ‘we must give effect to the [drafters'] intention[s] as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity.’ " Muse Const. Group, Inc. v. Commonwealth Bd. f o r Contractors , 61 Va. App. 125, 130–31, 733 S.E.2d 690, 692 (2012) (alteration in original) (quoting Conyers v. Martial Arts World of Richmond, Inc. , 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) ). Thus, the Rules are applied according to their plain language. Thornton v. Glazer , 271 Va. 566, 570, 628 S.E.2d 327, 328 (2006).

Because husband seeks dismissal of the appeal, we note that, although we may dismiss an appeal for non-compliance with the Rules, Rule 5A:1A, deficiencies in notice of filing and filing of transcripts do not entitle appellees to dismissal of an appeal in every instance. See Smith v. Commonwealth , 281 Va. 464, 468, 706 S.E.2d 889, 892 (2011) (holding transcript filing requirement is non-jurisdictional procedural rule); Rule 5A:8(b)(4) (setting forth effect of non-compliance with transcript filing requirements). Nevertheless, the failure to present a complete record upon which this Court can make an effective determination of the issues may bar our consideration of a party's assigned errors. See, e.g. , Shiembob v. Shiembob , 55 Va. App. 234, 246, 685 S.E.2d 192, 198–99 (2009) ; Rule 5A:8(b)(4)(ii).

II. Failure to File Notice of Filing Transcripts

Rule 5A:8(b)(1) provides in pertinent part that

[w]ithin 10 days after the transcript is filed or, if the transcript is filed prior to the filing of the notice of appeal, within 10 days after the notice of appeal is filed, counsel for appellant shall: (i) give written notice to all other counsel of the date on which the transcript was filed, and (ii) file a copy of the notice with the clerk of the trial court.

For cases involving multiple transcripts, Rule 5A:8(b)(2) provides that "the 10–day period for filing the notice required by this Rule shall be calculated from the date on which the last transcript is filed or from the date on which the notice of appeal is filed, whichever is later."

In this case, there is no dispute that wife failed to file the notice of filing transcripts required by Rule 5A:8(b). Thus, the question before us is the sanction, if any, for that failure.

The potential sanction for failure to file a notice of filing transcript is specified in Rule 5A:8(b)(4)(i), which provides that

[a]ny failure to file the notice required by this Rule that materially prejudices an appellee will result in the affected transcripts being stricken from the record on appeal. For purposes of this Rule, material prejudice includes preventing the appellee from raising legitimate objections to the contents of the transcript or misleading the appellee about the contents of the record.

(Emphasis added). Thus, striking the subject transcripts from the record on appeal is the appropriate sanction for failing to file a notice of filing transcript(s); however, such sanction is imposed only if the appellee suffers material prejudice as a result of the failure to file the notice.

Here, we discern no prejudice, material or otherwise, that husband has suffered as a result of wife's failure to file a notice of filing transcripts in this case. Husband timely received copies of the transcripts at issue and does not allege that they contain any errors. Husband did not allege in his motion or on brief that he suffered any prejudice from wife's failure to file a notice of filing transcripts, and, at oral argument, he...