Jean A Gantt v. Barry Gantt ( 2003 )

COURT OF APPEALS OF Virginia
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
JEAN A. GANTT
MEMORANDUM OPINION *
v. Record No. 1973-02-3 PER CURIAM
MARCH 4, 2003
BARRY GANTT
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
(Jeffrey A. Ward; Paul A. Dryer; Franklin,
Denney, Ward & Lawson, PLC, on briefs), for
appellant.
(Danita S. Alt, on brief), for appellee.
Jean Gantt (wife) appeals rulings made by the trial court in
her divorce proceedings. On October 23, 2002, Barry Gantt
(husband) filed a motion in this Court to dismiss wife's appeal
for failure to file an appeal bond pursuant to Code § 8.01-676.1.
On October 25, 2002, husband filed an amended motion to dismiss on
the same ground. On November 7, 2002, wife moved for leave to
file the appeal bond and requested that the Court deny husband's
motion to dismiss. We grant wife's motion to file an appeal bond
and deny husband's motion to dismiss wife's appeal.
On appeal, wife contends the trial court erred: (1) in
considering post-separation adultery as a factor in establishing
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
spousal support; and (2) in imputing income to wife in calculating
spousal support. 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.
BACKGROUND
On April 19, 2002, the trial court heard evidence relating to
equitable distribution and spousal support. After hearing
testimony from most of the witnesses, the trial court indicated it
had another case scheduled and continued the matter. On May 30,
2002, the trial court heard testimony from wife's father and
additional testimony from wife, after which the parties presented
closing arguments.
After reviewing all of the evidence, the trial court
classified the parties' property and rendered an equitable
distribution award. In addition, the trial court indicated its
decision to award husband spousal support of $800 per month for a
period of nine years, explaining that it "considered all of the
evidence in light of the factors set out in [Code §] 20-107.1(E),"
including the circumstances and "factors which contributed to the
dissolution of the marriage." Code § 20-107.1(E). The trial
court noted that wife failed to submit any evidence supporting
her assertion that she was unable to work full-time. At the
conclusion of the hearing, the trial court directed husband's
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attorney to prepare an order reflecting its oral rulings. The
parties voiced no objections at that time.
The trial court signed and filed the final order on July 1,
2002. Husband's attorney signed it "Seen and agreed." In the
space for wife's signature, the trial judge wrote "Waived
[pursuant to] Rule 1:13" and initialed it. In the order, the
trial court directed the clerk to "certify copies of this order
to counsel of record."
On July 30, 2002, wife filed a "Notice of Respondent's
Objections to Final Order." In it, wife claimed she provided
husband's attorney with an order in which she objected to the
trial court's consideration of fault in awarding spousal support
and to its imputation of income to wife despite her inability to
work.
DISCUSSION
In her opening brief, wife refers to her July 30, 2002
"Notice of Respondent's Objections to Final Order" as indicating
where she preserved the issues for appeal. Although wife
included in that "Notice" the two issues she now raises, she
filed it twenty-nine days after entry of the July 1, 2002 final
decree.
In his brief, husband argues, inter alia, that wife failed
to timely preserve her issues for appeal.
Wife submitted a reply brief invoking the ends of justice
exception to Rule 5A:18. In it, she contends she "overnighted
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the [signed] order," which contained her objections, to
husband's attorney on June 28, 2002, "in time to present the
same to the court on July 1, 2002." She alleges that husband's
attorney "instead presented the original order [husband's
attorney] had prepared to the court for entry on July 1, 2002."
ANALYSIS
"All final judgments, orders, and decrees, irrespective of
terms of court, shall remain under the control of the trial
court and subject to be modified, vacated, or suspended for
twenty-one days after the date of entry, and no longer." Rule
1:1.
Wife filed her objections twenty-nine days after entry of
the final decree. Because the decree became final twenty-one
days after the date of entry, the trial court no longer had
jurisdiction over the case. See Rule 1:1.
Moreover, "Rule 5A:18 requires that objections to a trial
court's action or ruling be made with specificity in order to
preserve an issue for appeal." Collado v. Commonwealth, 33
Va. App. 356, 367, 533 S.E.2d 625, 631 (2000). The purpose of
Rule 5A:18 is to ensure that the trial court and opposing party
are given the opportunity to intelligently address, examine, and
resolve issues in the trial court, thus avoiding unnecessary
appeals and reversals. Kaufman v. Kaufman, 12 Va. App. 1200,
1204, 409 S.E.2d 1, 3-4 (1991); Lee v. Lee, 12 Va. App. 512,
514, 404 S.E.2d 736, 737 (1991) (en banc).
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Wife made no objections to the trial court orally or in
writing during the time within which the trial court had
jurisdiction.
Although wife suggests opposing counsel submitted the wrong
last page of the order, she never alleged fraud or explained why
she never timely filed objections after the order was submitted
and entered, and copies were sent to counsel.
Rule 1:13 allows the trial court to dispense with
endorsements on orders "in its discretion." "Courts are
presumed to act in accordance with the law and orders of the
court are entitled to a presumption of regularity." Napert v.
Napert, 261 Va. 45, 47, 540 S.E.2d 882, 884 (2001) (citing Beck
v. Semones' Adm'r, 145 Va. 429, 442, 134 S.E. 677, 681 (1926)).
Appellant failed to timely submit any objections, and when
she did so, the trial court no longer had jurisdiction over the
case. Therefore, Rule 5A:18 precludes us from addressing her
issues on appeal. Moreover, because appellant failed to
indicate why she waited so long to submit her objections and
because the decree is entitled to a presumption that the trial
court properly exercised its discretion in dispensing with
endorsement of the decree, the record does not reflect any
reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
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Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
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