Susan Engelbrecht v. Clyde Davenport ( 2014 )


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  •                                              COURT OF APPEALS OF VIRGINIA
    Present: Judges Frank, Huff and Senior Judge Haley
    UNPUBLISHED
    SUSAN ENGELBRECHT
    MEMORANDUM OPINION*
    v.     Record No. 1467-13-2                                               PER CURIAM
    MAY 27, 2014
    CLYDE DAVENPORT
    FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
    Thomas B. Hoover, Judge
    (Susan Lesley Engelbrecht, pro se, on brief).
    (Clyde C. Davenport, pro se, on brief).
    (J. Terry Osborne, on brief), Guardian ad litem for the minor
    children.
    Susan Engelbrecht (mother) appeals from the circuit court’s July 11, 2013 order denying her
    request for custody of, and visitation with, the parties’ two minor children. On appeal, mother lists
    the following as her assignments of error:
    [1.] The final court order states: the mother made false allegations
    against the father.
    [2.] The final order states: the mother’s request is frivolous.
    [3.] The final court order states that the father’s felony child abuse
    conviction, the mother’s parenting class certificate and [the
    child’s] letter (exhibits A, B, and C) are not sufficient Material
    Change of Circumstance.
    [4.] The final court order requires the mother to pay the Guardian
    ad litem although she can’t afford to pay her.
    [5.] The trial court erred by including false statements in the final
    order and not taking the indigency requirements into consideration.
    *
    Pursuant to Code § 17.1-413, this opinion is not designated for publication.
    Upon reviewing the record and briefs of the parties, we conclude this appeal is without
    merit. Accordingly, we summarily affirm the decision of the trial court.1 See Rule 5A:27.
    BACKGROUND
    The King William County Juvenile and Domestic Relations District Court denied
    mother’s motion seeking to change custody and visitation with the parties’ two minor children,
    alleging a material change in circumstances. Mother appealed the case to the circuit court. The
    circuit court heard evidence in several hearings and by order dated July 11, 2013, determined it
    was “in the best interest of both children to have no contact with” mother. The circuit court also
    prohibited mother from contacting or attempting to contact the children in any way, prohibited
    mother from going near the property of any King William County school or father’s residence,
    and required her to pay the entirety of the guardian ad litem’s fee. The trial court denied
    mother’s request for custody and visitation and granted father sole legal and physical custody of
    the children. The circuit court interviewed the teenaged children in camera, found the children
    “to be of sufficient age, ability and intellectual functioning to express their desires,” and noted “it
    is the desire of each child to NOT have contact with the mother . . . .” Mother appeals from that
    order.
    ANALYSIS
    “We have many times pointed out that on appeal the
    judgment of the lower court 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 in the
    respect complained of. If the appellant fails to do this, the
    judgment will be affirmed.”
    Smith v. Commonwealth, 
    16 Va. App. 630
    , 635, 
    432 S.E.2d 2
    , 6 (1993) (quoting Justis v.
    Young, 
    202 Va. 631
    , 632, 
    119 S.E.2d 255
    , 256-57 (1961)).
    1
    We also deny mother’s motion for an expedited hearing and the guardian ad litem’s
    motions to dismiss and to deny the appeal.
    -2-
    “When the appellant fails to ensure that the record contains transcripts or a written
    statement of facts necessary to permit resolution of appellate issues, any assignments of error
    affected by such omission shall not be considered.” Rule 5A:8(b)(4)(ii).
    Here, a transcript or a written statement of facts complying with Rule 5A:8(c) is
    indispensable to determining whether the trial court erred in making the custody and visitation
    determinations. See Anderson v. Commonwealth, 
    13 Va. App. 506
    , 508-09, 
    413 S.E.2d 75
    ,
    76-77 (1992); Turner v. Commonwealth, 
    2 Va. App. 96
    , 99-100, 
    341 S.E.2d 400
    , 402 (1986).
    The record contains no transcripts or written statement of facts of the court proceedings in this
    case.
    Mother had the responsibility to provide a complete record to the appellate court.
    Twardy v. Twardy, 
    14 Va. App. 651
    , 658, 
    419 S.E.2d 848
    , 852 (1992) (en banc). This Court
    “will not search the record for errors in order to interpret the appellant’s contention and correct
    deficiencies in a brief.” Buchanan v. Buchanan, 
    14 Va. App. 53
    , 56, 
    415 S.E.2d 237
    , 239
    (1992). Nor is it this Court’s “function to comb through the record . . . in order to ferret-out for
    ourselves the validity of [appellant’s] claims.” Fitzgerald v. Bass, 
    6 Va. App. 38
    , 56 n.7, 
    366 S.E.2d 615
    , 625 n.7 (1988) (en banc). “Even pro se litigants must comply with the rules of
    court.” Francis v. Francis, 
    30 Va. App. 584
    , 591, 
    518 S.E.2d 842
    , 846 (1999).
    Furthermore, the appendix filed by mother is deficient.
    The appendix must include “any testimony and other
    incidents of the case germane to the [assignments of error],”
    Rule 5A:25(c)(3), and “exhibits necessary for an understanding of
    the case that can reasonably be reproduced,” Rule 5A:25(c)(6).
    “The appendix is a tool vital to the function of the appellate
    process in Virginia. . . . By requiring the inclusion of all parts of
    the record germane to the issues, the Rules promote the cause of
    plenary justice.” Thrasher v. Burlage, 
    219 Va. 1007
    , 1009-10, 
    254 S.E.2d 64
    , 66 (1979) (per curiam). Thus, the filing of an appendix
    -3-
    that complies with the Rules, is “essential to an informed collegiate
    decision.” 
    Id.
    Patterson v. City of Richmond, 
    39 Va. App. 706
    , 717, 
    576 S.E.2d 759
    , 764-65 (2003).
    Mother failed to provide us with an adequate appendix to enable us to address her
    assignments of error. Because this case does not contain an appendix that includes parts of the
    record essential to the resolution of the issues before us, we affirm the judgment of the trial
    court.
    Additionally, mother’s amended opening brief fails to comply with the rules of this
    Court. Upon receiving mother’s opening brief, this Court instructed mother that her brief failed
    to comply with Rules 5A:4(b), 5A:4(d), 5A:20(c), 5A:20(d), 5A:20(e), and 5A:20(h), and
    instructed her to submit a replacement opening brief. Mother’s amended brief did not correct all
    of the deficiencies in the original opening brief.
    Rule 5A:20(c) requires “[a] statement of the assignments of error with a clear and exact
    reference to the page(s) of the transcript, written statement, record, or appendix where each
    assignment of error was preserved in the trial court.” Rule 5A:20(d) requires a “clear and
    concise statement of the facts that relate to the assignments of error, with references to the pages
    of the transcript, written statement, record, or appendix.”
    In her replacement opening brief, mother presents a limited narrative of the evidence
    viewed in the light most favorable to her contentions and cites no authority or precedent
    supporting the issues she raises on appeal. Under our standard of review, we view the evidence
    in the light most favorable to the prevailing party, here husband. White v. White, 
    56 Va. App. 214
    , 216, 
    692 S.E.2d 289
    , 290 (2010). Mother failed to provide any reference where each
    assignment of error was preserved in the trial court. See Rule 5A:20(c).
    Rule 5A:20(e) requires that an appellant’s opening brief to this Court contain “[t]he
    standard of review and the argument (including principles of law and authorities) relating to each
    -4-
    assignment of error.” Mere unsupported assertions of error “do not merit appellate
    consideration.” Buchanan, 14 Va. App. at 56, 
    415 S.E.2d at 239
    . Appellant’s brief does not
    comply with Rule 5A:20(e); it fails to include sufficient principles of law or any citation to legal
    authorities in support of the issues. A pro se litigant appearing “is no less bound by the rules of
    procedure and substantive law than a defendant represented by counsel.” Townes v.
    Commonwealth, 
    234 Va. 307
    , 319, 
    362 S.E.2d 650
    , 657 (1987).
    We find that mother’s failure to comply with the provisions of Rule 5A:20 is significant,
    so we will not consider her arguments. See Jay v. Commonwealth, 
    275 Va. 510
    , 520, 
    659 S.E.2d 311
    , 317 (2008).
    Accordingly, for the foregoing reasons, we summarily affirm without comment on the
    merits of the errors assigned on appeal. See Rule 5A:27.
    Affirmed.
    -5-