Charles Michael Veliky v. Sara T. Veliky ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
CHARLES MICHAEL VELIKY
MEMORANDUM OPINION * BY
v. Record No. 1871-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 12, 2002
SARA T. VELIKY
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
James A. Luke, Judge
Thomas O. Bondurant, Jr., for appellant.
H. Benjamin Vincent (Vincent Law Firm, P.C.,
on brief), for appellee.
Charles Michael Veliky (husband) appeals a March 19, 2001
final decree granting Sara T. Veliky (wife) a divorce a vinculo
matrimonii on the ground that the parties had lived separate and
apart for more than one year. He contends that the trial court
erred in (1) allowing wife and a witness to invoke the privilege
against self-incrimination and in awarding her spousal support,
(2) finding that an apartment complex, purchased prior to
marriage by husband and his mother, was marital property, and
(3) ruling that a tour business was marital property, where the
tour business was a partnership and therefore not "marital
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
property." Because we find the issues were not properly
preserved, we affirm.
I. PROCEDURAL HISTORY
The evidence established that on June 23, 1997, wife served
husband with a bill of complaint seeking a divorce a vinculo
matrimonii on the ground that they had lived separate and apart
for more than one year. Husband filed an answer and cross bill
of complaint on the ground of adultery.
By decree dated March 16, 1998, the case was referred to
Chancellor Thomas H. Rose, Jr. (the commissioner) to determine,
inter alia: the cause of the separation of the parties, the
marital property of the parties and the value thereof, the
separate property of the parties, to whom the divorce should be
granted and for what reason, an award of spousal support, if
any, and how the marital property of the parties should be
equitably distributed.
The commissioner took evidence on the assigned issues on
July 29, 1998 and September 11, 1998. In response to questions
about an alleged sexual relationship, wife and Jeff Stephenson,
a witness, invoked their Fifth Amendment self-incrimination
privilege. Husband objected, and the commissioner overruled his
objection. After the conclusion of the evidentiary hearings
before the commissioner, husband requested the trial court to
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compel the answers. 1 By letter dated January 14, 1999, the trial
court upheld the commissioner's ruling. No specific objection
to this letter ruling is reflected in the record.
On November 30, 1999, the commissioner filed his report.
Husband filed eleven "exceptions" with his objections to each
being only that the findings were "contrary to the law and the
evidence." There was no specific objection to either the
commissioner's or the court's ruling on wife's and Stephenson's
invocation of their Fifth Amendment rights. Further, the
transcript reflects no specific objection to wife's interest in
the apartment complex.
Husband requested the trial court to rule on only "three
areas of disagreement" with the commissioner's report. 2
"Inquiry 10" concerned the role of fault and the award of $400 a
month spousal support to wife; "Inquiry 12" concerned husband's
claim that an apartment house was his separate property; and
"Inquiry 5" concerned the valuation of "store inventory." No
other exceptions were presented or argued to the trial court.
By letter dated September 26, 2000, the trial court ruled on the
three issues presented. In his brief for appeal, appellant
1
The record does not reflect how the request was made,
whether the trial court heard argument on the issue or whether
it was submitted only on the argument made to the commissioner.
2
We note that the record does not reflect how this request
was made; however, the trial judge ruled on three designated
areas.
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states that the issues he raises on appeal were preserved at
appendix page 173. However, this page reflects a blanket
objection to the final decree of divorce, stating only that it
is "seen and objected to for the reasons stated in the record,
in the briefs and the pleadings."
II. STANDARD OF REVIEW
"On appellate review, a divorce decree is presumed correct
and will not be overturned if supported by substantial,
competent, and credible evidence." Gottlieb v. Gottlieb, 19 Va.
App. 77, 83, 448 S.E.2d 666, 670 (1994). "A commissioner's
findings of fact which have been accepted by the trial court are
presumed to be correct when reviewed on appeal and are to be
given great weight by this Court. The findings will not be
reversed on appeal unless plainly wrong." Barker v. Barker, 27
Va. App. 519, 531, 500 S.E.2d 240, 245-46 (1998) (internal
citations omitted). "Because of the presumption of correctness,
the trial judge ordinarily must sustain the commissioner's
report unless the trial judge concludes that it is not supported
by the evidence." Brown v. Brown, 11 Va. App. 231, 236, 397
S.E.2d 545, 548 (1990) (citing Morris v. United Virginia Bank,
237 Va. 331, 337-38, 377 S.E.2d 611, 614-15 (1989)).
As a preliminary matter, husband concedes that his third
issue on appeal, that the tour business was a partnership and
therefore not marital property, was not presented to the trial
judge as one of his three specified exceptions. We hold that
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any exceptions to the commissioner's report which were not
presented to the trial court for ruling are waived. Thus, our
consideration of this issue is barred. The record does not
reflect any reason to invoke the good cause or ends of justice
exceptions. See Rule 5A:18.
III. FIFTH AMENDMENT
Additionally, husband failed to preserve his objection to
the witness' Fifth Amendment claim of privilege against
self-incrimination. The trial court ruled on the issue in its
January 14, 1999 letter, but no objection was noted to this
ruling or specifically preserved by the blanket objection to the
final decree.
No ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice. A mere statement that the judgment
or award is contrary to the law and the
evidence is not sufficient to constitute a
question to be ruled upon on appeal.
Rule 5A:18. "We will not search the record for errors in order
to interpret the [husband's] contention and correct deficiencies
in a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992).
IV. APARTMENT COMPLEX
Lastly, husband argues that the trial court erred in
affirming the commissioner's determination that the apartment
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complex, purchased by husband and his mother, was partly marital
property. In its September 26, 2000 letter, the trial court
addressed the apartment house as "Inquiry 12" and sustained the
commissioner's recommendation that wife be awarded a twenty-five
percent interest therein after tracing out the initial
contribution of husband and his mother, because of her part in
negotiating the purchase from her uncle and her work on the
property during the marriage. No specific objection was made to
this ruling before the commissioner, nor does the transcript
reflect any objection or argument on this issue. Moreover, the
record does not reflect any reason to invoke the good cause or
ends of justice exceptions. See Rule 5A:18. For the foregoing
reasons, we affirm the judgment of the trial court.
Affirmed.
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