Samuel B. Davis, Jr. v. Louise B. Davis, now estate ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
SAMUEL BUNYAN DAVIS, JR.
MEMORANDUM OPINION *
v. Record No. 0271-00-1 PER CURIAM
SEPTEMBER 5, 2000
LOUISE BARCLAY DAVIS,
NOW THE ESTATE OF GLADYS LOUISE BARCLAY,
SUCCESSOR IN INTEREST
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
James C. Godwin, Judge Designate
(Samuel Bunyan Davis, Jr., pro se, on
briefs).
(Kenneth B. Murov; Matthew W. Smith; Jones,
Blechman, Woltz & Kelly, P.C., on brief), for
appellee.
Samuel Bunyan Davis, Jr., appeals the decision of the circuit
court distributing to the Estate of Gladys Louise Barclay certain
funds previously classified as a marital asset in the divorce
proceeding. Davis contends that the trial court erred by
reopening this case more than twenty-one days after entry of the
final decree to take additional evidence and by taking additional
evidence in the absence of fraud at a hearing purportedly held in
September 1998. Davis also questions whether this Court may
review this case, which he petitioned the United States Supreme
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Court to review. Finally, Davis seeks a remand for a hearing into
his allegations of fraud by counsel. 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
The evidence relating to equitable distribution was initially
heard by a commissioner in chancery in this divorce proceeding
between Davis and his now deceased former wife, Gladys Louise
Barclay Davis. In his report, the commissioner found the
following:
Virginia Real Estate Trust. This is a joint
marital asset. It is recommended that
[Davis] be ordered to file an accounting of
the monies received by the Virginia Real
Estate Trust from date of separation until
the present. As to any equitable
distribution, there is no present valuation
available, and accordingly, it is
recommended that the Court make no
disposition of same between the parties
until receipt of an accounting.
The trial court overruled Davis' objections to the commissioner's
report and "approved, ratified and confirmed in all respects" the
report in its final decree of divorce entered April 10, 1997.
Davis appealed the final decree. See Davis v. Davis, No.
1125-97-1 (Va. Ct. App. Nov. 18, 1997). A panel of this Court
found no merit in Davis' challenges to the sufficiency of the
service of process upon him or the trial court's equitable
distribution award. This Court awarded attorney's fees to Davis'
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former wife and remanded the case for a determination of a
reasonable fee.
After the death of Davis' former wife, the matter was
reinstated before the trial court by the estate in October 1998.
Davis was personally served with notice of the hearing held
October 5, 1998, but did not appear. By order entered November 9,
1998, the trial court ordered Davis to pay $670 in attorney's fees
pursuant to the previous order of this Court and granted other
relief. The trial court noted in its November 9, 1998 order that
"[t]his cause shall remain on the docket for such action as this
cause may require."
At a hearing on December 3, 1999, which Davis attended, the
estate presented evidence that the value of Davis' claim to the
Virginia Real Estate Trust was $96,959.17. The estate argued that
the trial court had continuing authority to distribute the fund,
which was previously found to be a marital asset. The trial court
agreed and, by order entered January 6, 2000, divided the asset
equally between the parties, with attorney's fees and costs
payable from the estate's portion. Davis appeals from that order.
Reopening Final Order
Davis contends, for various reasons, that the trial court
erred when it allowed the estate to reopen the case and move for
the distribution of the assets held under the name of the Virginia
Real Estate Trust. The record contains no indication that Davis
preserved any objection to the order from which he appeals. He
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did not list any objections on the January 6, 2000 order, file a
separate document with the court, or present any motion for
reconsideration. In the absence of any indication that Davis
noted his objections, we hold that he failed to preserve this
issue for appeal. See Rule 5A:18; Konefal v. Konefal, 18 Va. App.
612, 615, 446 S.E.2d 153, 154-55 (1994); see generally Lee v. Lee,
12 Va. App. 512, 404 S.E.2d 736 (1991) (en banc).
1998 Proceeding
Davis also appeals an order entered by the trial court on
November 9, 1998, following the October 5, 1998 evidentiary
hearing. Davis failed to preserve any objections to this order
before the trial court, and, therefore, we do not consider this
issue. See Rule 5A:18.
Supreme Court Review
Davis contends that the United States Supreme Court "has
acknowledged receipt" of his petition seeking its review. We
note, however, that issues of the trial court's underlying
jurisdiction were raised and resolved in the prior appeal. We
find no merit in Davis' current challenges to the jurisdiction of
the trial court or the appellate jurisdiction of this Court. See
generally Code § 17.1-405.
Request for Remand
Davis asks this Court to remand this matter so that the trial
court may hear his allegations of fraud by the estate's counsel.
Davis did not seek this remedy before the trial court during the
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most recent hearing. Moreover, when he raised similar issues at
the time of his earlier appeal, this Court found them to be
without merit. Therefore, we find neither procedural nor
substantive basis to grant this requested relief.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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