Fines L. Dishman, II v. Christina Dishman ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
FINES L. DISHMAN, II
MEMORANDUM OPINION *
v. Record No. 1965-99-3 PER CURIAM
MAY 16, 2000
CHRISTINA DISHMAN
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles B. Flannagan, II, Judge
(Fines L. Dishman, II, pro se, on brief).
(David L. Scyphers; Scyphers & Austin, P.C.,
on brief), for appellee.
Fines L. Dishman, II, (husband) appeals the decision of the
circuit court granting Christina Dishman (wife) a divorce on the
grounds that the parties lived separate and apart for a period
exceeding one year. Husband contends that the trial court erred
by (1) appointing a committee who failed to fulfill his
obligations under Code § 53.1-222; (2) entering the decree
although appellant was unable to appear to defend his case; and
(3) failing to afford him, as a person under legal disability, the
right to waive the appointed committee. Upon reviewing the record
and briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The record on appeal contains neither a transcript nor a
properly filed written statement of facts. See Rule 5A:8.
The importance of the record is obvious, for
it is axiomatic that an appellate court's
review of the case is limited to the record
on appeal. The absence or late filing of
the transcript, however, does nothing to
diminish our jurisdiction. If the record on
appeal is sufficient in the absence of the
transcript to determine the merits of the
appellant's allegations, we are free to
proceed to hear the case.
Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402
(1986). The record, including the final decree of divorce,
contains the trial court's factual findings, including specific
findings concerning husband's legal disability due to his
incarceration and his representation by a committee. See Code
§ 8.01-2(6)(a). The record therefore is sufficient for this
Court to address the merits of husband's appeal.
On appeal,
[u]nder familiar principles, we view the
evidence and all reasonable inferences in
the light most favorable to the prevailing
party below . . . . "The burden is on the
party who alleges reversible error to show
by the record that reversal is the remedy to
which he is entitled." We are not the
fact-finders and an appeal should not be
resolved on the basis of our supposition
that one set of facts is more probable than
another.
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859
(1992) (citations omitted).
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The record demonstrates that husband was incarcerated on
two felony charges after the final date of separation. The
trial court appointed an attorney to serve as guardian ad litem.
The guardian ad litem filed an answer to wife's bill of
complaint. Subsequently, the guardian ad litem filed a motion
to withdraw after husband expressed displeasure with his
services. The trial court appointed a new attorney to serve as
husband's committee, pursuant to Code § 53.1-222. The committee
filed an answer, attended the depositions, and endorsed the
final decree.
I.
The record does not support husband's contention that the
committee failed to fulfill his obligations pursuant to Code
§ 53.1-222. The committee appeared at the depositions and
cross-examined the deponents, filed pleadings, and endorsed the
decree. Husband concedes in his opening brief that he does not
contest the underlying grounds on which the divorce was entered.
Therefore, nothing in the record supports husband's allegation
that the committee failed to perform his duties.
II.
Similarly, there is no merit to husband's contention that
the trial court erred in entering the decree without his
endorsement. His committee endorsed the decree on his behalf.
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III.
Finally, we find no error in the trial court's failure to
allow husband to waive his committee and seek a second guardian
ad litem. Code § 8.01-9(A) grants the trial court discretionary
authority to remove a guardian ad litem and appoint another
"[w]henever the court is of the opinion that the interest of the
defendant so requires." In this case, issues of custody and
support were decided in a decree entered by the juvenile and
domestic relations district court in November 1997, prior to the
time of husband's incarceration. The trial court's decree found
that the parties had no real estate, that they divided their
personal property by agreement, and that they each agreed to be
responsible for their own debt. The trial court's findings are
supported by evidence in the record. While husband's
handwritten letter to the trial court alleged fault on the part
of wife, he presented no evidence and conceded on appeal the
adequacy of the evidence supporting the grounds of divorce. We
find no error or abuse of discretion in the trial court's
failure to remove the committee and appoint a new guardian ad
litem.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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