Paul Robert Serrano v. Sarah McKinley Serrano ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
PAUL ROBERT SERRANO
MEMORANDUM OPINION *
v. Record No. 0934-00-4 PER CURIAM
JULY 25, 2000
SARAH McKINLEY SERRANO
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
(Paul Robert Serrano, pro se, on briefs).
(Sarah McKinley Serrano, pro se, on brief).
Paul Robert Serrano appeals from an order that the circuit
judge entered following a hearing on a petition to show cause for
contempt. On appeal, appellant contends that the trial judge
erred by (1) ordering him to pay attorney's fees for Sarah
McKinley Serrano, his former wife, without evidence of the
parties' ability to pay; (2) amending the statement of facts
without notice or a hearing; (3) having a bailiff prevent him from
detailing his objections on the order prior to its presentation to
the judge and thereby limiting the issues which he could raise on
appeal; and (4) disallowing appellant's verbal characterization of
his former wife. Upon reviewing the record and briefs of the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the order. See Rule 5A:27.
I.
Our standard of review is well established.
Under familiar principles, we view the
evidence and all reasonable inferences in
the light most favorable to [wife as] 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).
The record establishes that appellant's former wife filed a
petition to require appellant to show cause why he should not be
held in contempt for repeatedly failing to pay child support as
ordered. The petition referenced an order entered January 22,
1999, which recited that "if payment of child support is not
made on date due, [appellant] shall pay all attorney fees
incurred by [his former wife] in Court while pursuing
collection." In response, appellant denied that there was any
support arrearage and referred to a November 9, 1998 order
reducing the monthly child support payment from $529 to $523 as
of October 1, 1998. Following a hearing, the trial judge found
that no arrearage existed but that appellant had violated the
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order by habitually failing to timely pay child support. By
order entered January 28, 2000, the trial judge ordered
appellant "to make his child support checks payable to [his
former wife] and to send them directly to her in a manner
calculated to arrive by the 1st day of each month." The trial
judge also ordered husband to pay $200 in wife's attorney's
fees.
II.
An award of attorney's fees is a matter submitted to the
sound discretion of the trial judge and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va. App.
326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award
of attorney's fees is reasonableness under all the circumstances.
See McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162
(1985).
The trial judge found that appellant's tardy payments
violated the prior court order, which also provided for an award
of attorney's fees in the event appellant failed to make timely
payments. In view of the prior order's proscription, the trial
judge was not required to receive financial information from the
parties prior to ordering appellant to pay $200 in attorney's
fees. Based on the issues involved and the amount of the award,
the award was reasonable, and the trial judge did not abuse her
discretion in making the award.
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III.
A party who seeks to provide a written statement in lieu of a
transcript must mail a copy of the proposed statement to opposing
counsel "accompanied by notice that such statement will be
presented to the trial judge no earlier than 15 days nor later
than 20 days after such filing." Rule 5A:8(c). Although
appellant filed a proposed written statement of facts on March 23,
2000, certifying that a copy was mailed to his former wife's
counsel, he did not provide notice of a timely date of
presentation. See id. When appellant's former wife filed no
objections to the written statement, the trial judge corrected the
proposed statement.
By failing to notice a date for presentation of the written
statement to the trial judge, appellant failed to establish prima
facie compliance with the requirements of Rule 5A:8. Therefore,
unless the trial judge's action cured the defect, we are bound to
rule that appellant failed to make the written statement of facts
a part of the record on appeal, see Clary v. Clary, 15 Va. App.
598, 425 S.E.2d 821 (1993) (en banc); cf. Proctor v. Town of
Colonial Beach, 15 Va. App. 608, 425 S.E.2d 818 (1993) (en banc),
and dismiss the appeal. Significantly, however, unlike the
circumstances in Clary, the trial judge corrected and signed
appellant's proposed written statement.
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Although appellant complains that the trial judge failed to
provide notice and hold a hearing prior to making the corrections,
appellant may not be heard to complain that the trial judge erred
by correcting and signing the proposed statement. "The burden is
upon the appellant to provide us with a record which
substantiates the claim of error. In the absence thereof, we
will not consider the point." Jenkins v. Winchester Dep't of
Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991).
But for the trial judge's certification, the written statement
would not be included in the record because husband failed to
comply with Rule 5A:8(c) in making the written statement a part
of the record. Rule 5A:8(d) authorizes the trial judge to "make
any corrections that [she] deems necessary" in the proposed
written statement of facts. "The judge's signature on a
transcript or written statement, without more, shall constitute
[her] certification that the procedural requirements of this Rule
5A:8 have been satisfied." Rule 5A:8(d). Therefore, we hold
that appellant's challenge to the written statement of facts
lacks merit.
Appellant has requested this Court to accept his unmodified
written statement of facts or to refer the statement back to the
trial court. For the reasons stated above, we find no error in
the trial judge's modification of the written statement of
facts. We therefore deny the motion.
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IV.
Appellant contends he was prevented by the bailiff from
detailing his objections to the order prior to its presentation to
the judge, hampering his ability to preserve his objections on
appeal. The order includes a handwritten statement that "Bailiff
prevented me from completing this." The record contains no other
support for appellant's allegations. Indeed, appellant's proposed
statement of facts contains no reference to this complaint.
Timely objections to a court's order may be preserved in a
number of ways, of which handwriting objections on the face of the
order is only one option. See Lee v. Lee, 12 Va. App. 512,
515-16, 404 S.E.2d 736, 738 (1991) (en banc). For example, a
party may prepare a separate document containing objections to be
included in the record or file a motion for reconsideration.
Thus, assuming arguendo that the record supported appellant's
allegations that he was impeded in his effort to list all his
objections at the time the order was presented to the trial judge,
he retained other means by which he could preserve his exceptions
to the order. We find no indication he exhausted these other
alternatives, and we further note that appellant did not include
in his brief to this Court a statement of any objections he was
prevented from including on the order. Therefore, we find no
merit in this contention.
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V.
Appellant alleges that the trial judge erred by not
allowing him to characterize his wife as "crazy." Nothing in
the statement of facts suggests that the trial judge made such a
ruling or, if she did, the context in which such a ruling was
made. Moreover, the trial judge clearly has the discretionary
authority to determine the conduct of the trial. See Justus v.
Commonwealth, 222 Va. 667, 676, 283 S.E.2d 905, 910 (1981).
Appellant's claim that the trial judge committed reversible
error by refusing to allow him to use the word "crazy" to
characterize another person lacks merit.
Finally, appellant filed a motion seeking an extension of
time to include an additional document in the appendix. He has
failed to demonstrate that the document is relevant to the
matters raised in his appeal. See Rule 5A:25(g). On our
review, we have access to all documents that are part of the
record of the case. Therefore, the motion is denied.
Accordingly, the order of the circuit court is summarily
affirmed.
Affirmed.
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