Mary B. Giaquinto, n/k/a Mary B. Lincoln v. Nicholas A, Giaquinto ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges AtLee and Athey
UNPUBLISHED
Argued by videoconference
MARY B. GIAQUINTO, N/K/A
MARY B. LINCOLN
MEMORANDUM OPINION* BY
v. Record No. 0615-20-1 JUDGE CLIFFORD L. ATHEY, JR.
DECEMBER 15, 2020
NICHOLAS A. GIAQUINTO
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Stephen C. Mahan, Judge
Julie A. Currin (W. Ware Morrison, PLC, on briefs), for appellant.
M. Michelle P. McCracken (Fine, Fine, Legum & McCracken, LLP,
on brief), for appellee.
Assigning three errors, appellant Mary B. Giaquinto, n/k/a Mary B. Lincoln (“wife”)
appeals from a final decree of divorce (“final decree”) entered in the Circuit Court of the City of
Virginia Beach (“trial court”). First, wife contends that “the [trial court] abused its discretion
[by] denying [wife’s] repeated requests for a continuance on December 5, 2019.” Second, she
contends that “the [trial court] erred in not permitting any of [wife’s] evidence of discovery
abuses and/or her documents impacting equitable distribution, asset, and debt determinations.”
Third, she contends that “the [trial court’s] application of the pretrial order resulted in manifest
injustice for the pro se [wife] adequate to mandate reversal and remand.”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
Wife and appellee Nicholas A. Giaquinto (“husband”) married on July 21, 2000. On
April 24, 2018, wife filed a complaint for divorce based on cruelty and requested the equitable
distribution of all marital property, assets, debts, retirement, and other matters under Code
§ 20-107.3. Husband filed an answer and counterclaim, seeking a divorce based on wife’s
cruelty or, in the alternative, a divorce based on living separate and apart for over one year.
On May 31, 2019, the parties agreed to set the matter for trial on December 5, 2019.
Wife’s counsel endorsed the court’s pretrial order before being permitted to withdraw from
representation in the case. Wife chose to proceed pro se. The pretrial order advised both
husband and wife (collectively, “the parties”) of deadlines for filing and exchanging proposed
exhibits, pretrial briefs, and exhibit and witness lists. Wife failed to comply with the deadlines in
the pretrial order, which cautioned that “[a]ny exhibit or witness not so identified will not be
received in evidence” unless used for rebuttal, impeachment, “or unless the admission of such
exhibit or testimony of the witness would cause no surprise or prejudice to the opposing party
and the failure to list the exhibits or witness was through inadvertence.” The pretrial order
established that “[c]ontinuances of the trial date will only be granted by the court for good cause
shown.”
On the morning of the trial, wife made an ore tenus request for a continuance based on
good cause, citing her need for more time to investigate her husband’s alleged engagement in
identity fraud and hiding funds, an appointment for genetic testing on December 16, 2019, which
she later abandoned, and her desire to obtain an attorney despite the passage of six months since
1
Pursuant to familiar appellate principles, the evidence is summarized in the light most
favorable to the prevailing party at trial, husband in this matter. See Niblett v. Niblett, 65
Va. App. 616, 622 (2015).
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her former counsel withdrew. Husband objected to continuing the trial and to wife introducing
exhibits or witnesses because she failed to comply with the pretrial order.
After reviewing the parties’ file, the trial court noted that husband had submitted the
pretrial conference brief and an exhibit and witness list, but that wife had not—wife admitted
that she failed to file these documents. Wife added, however, that she did not have an attorney
and should therefore be allowed to present evidence. In the alternative, wife suggested that a
continuance would allow her time to obtain an attorney and “get the right thing done.”
The trial court found that wife “had lots of time to obtain an attorney if [she] wanted to
do so” and denied her continuance request because good cause for a continuance did not exist.
In doing so, the trial court found that wife had engaged in “a series of last-minute attempts to
delay or interfere with this proceeding going forward, all of which could have been addressed at
a prior occasion and should have been addressed at a prior occasion . . . .” The trial court then
ruled that any proposed exhibits not identified on the witness or exhibit list, as previously
ordered, would not be permitted.
When the trial court then asked wife if she wished to raise any other pretrial issues, wife
responded, “I’d like to just see if we could settle. I, I don’t think there’s anything to present.”
Husband subsequently agreed to discuss a settlement with her, and the trial court took a recess to
give them that opportunity.
After the recess, counsel for husband told the trial court that she was uncertain whether
wife agreed to waive any interest in husband’s retirement but that if wife agreed to that, she was
prepared to read the agreement into the record. While wife indicated that she did not wish to
waive this interest, she emphasized, “I don’t care, just settle it, please.” The trial court then
explained to wife as follows:
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I can’t . . . require you to agree to anything. And, I don’t want you
to agree to . . . anything that you don’t want to agree to. I want to
be clear to you. You are not being forced to agree to anything.
And, nobody’s pressuring you, at least, nobody from the Court’s
perspective is pressuring you to do anything that you have any
reservations about doing. And, as [a] matter of fact, the Court
would not accept an alleged agreement if the Court were under the
impression it really was not a free and voluntary act on the part of
both parties.
In response to a request to distinguish separate from marital property, the trial court defined the
terms and asked whether wife understood the distinction. Instead of responding to that question,
wife attempted to negotiate with husband in open court. Whereupon, the trial court explained
that the parties would not be permitted to negotiate in open court and took another recess for the
parties to further discuss the terms of a potential agreement.
When the parties returned, counsel for husband announced that the parties had reached an
agreement and offered to read it into the record. The trial court explained the procedure to the
parties, and counsel for husband read the agreement into the record. Husband agreed to its terms
and to affirm, ratify, and incorporate such agreement into the final decree.
Wife also assented to the terms of the agreement as recited on the record. When the trial
court asked wife whether she agreed to the terms as counsel recited, wife replied without
hesitation, “Yes, sir.” When the trial court asked wife whether she agreed to affirm, ratify, and
incorporate the agreement into the final decree, wife replied, “Yes.”
After husband and a witness testified to the grounds of divorce, the trial court granted a
no-fault divorce as husband requested, subject to the terms of the agreement read into the record
and affirmed by the parties under oath. The trial court entered the final decree on February 26,
2020.
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Counsel2 for wife signed the final decree as seen and objected to for “not conforming
with rules and equitable distribution law.” The trial court responded in writing that “[n]o
objection was previously raised by [wife,] and the Court has not had any opportunity to consider
or rule on any purported objections to what was, at the time of [the] hearing, an uncontested
divorce based upon an agreement affirmed under oath, on the record, by both parties.” Counsel
for wife then filed a notice and motion to rehear, which the trial court denied by order dated
April 16, 2020. This appeal followed.
STANDARD OF REVIEW
Our standard of review requires us to “‘discard the evidence’ of the appellant which
conflicts, either directly or inferentially, with the evidence presented by the appellee at trial.”
Congdon v. Congdon, 40 Va. App. 255, 258 (2003) (quoting Wactor v. Commonwealth, 38
Va. App. 375, 380 (2002)).
ANALYSIS
Request for Continuance and Admissibility of Evidence
Wife first assigns error to the trial court’s denial of her continuance requests. She also
assigns error to the trial court’s ruling that any documents not identified on the witness or exhibit
list, as previously ordered, would not be allowed as exhibits.
“Following the traditional doctrine of judicial restraint, [appellate courts] ‘decide cases
on the best and narrowest grounds available.’” Chaney v. Karabaic-Chaney, 71 Va. App. 431,
438 (2020) (quoting Levick v. MacDougall, 294 Va. 283, 302 (2017)). Because waiver is the
best and narrowest ground available here, we do not address the merits of wife’s first and second
assignments of error. By permitting counsel for husband to read a settlement agreement into the
2
Wife retained her current counsel, Julie A. Currin, on December 12, 2019.
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record and then agreeing with the terms of that settlement on the record, wife waived any right to
appeal the trial court’s rulings that good cause for a continuance did not exist and that any
documents not identified on the witness or exhibit list would not be allowed as exhibits.
Notwithstanding the enactment of the equitable distribution statute, parties to a divorce
may enter into an agreement regarding their property. See Code § 20-107.3(I) (“Nothing in this
section shall be construed to prevent the affirmation, ratification and incorporation in a decree of
an agreement between the parties pursuant to . . . [Code §] 20-109.1.”). The detailed provisions
of Code § 20-109.1 authorize the incorporation of a valid property settlement agreement into a
final decree, and Virginia courts recognize and enforce such agreements. See Code § 20-109.1
(authorizing courts to affirm, ratify, and incorporate by reference “any valid agreement between
the parties” into the final decree); Cooley v. Cooley, 220 Va. 749, 752 (1980) (finding that such
agreements “are favored in the law and such will be enforced unless their illegality is clear and
certain” (emphasis added)).
While Code § 20-149 instructs that a marital agreement shall generally be “in writing and
signed by both parties,” Code § 20-155 provides an exception to this requirement:
If the terms of such agreement are (i) contained in a court order
endorsed by counsel or the parties or (ii) recorded and transcribed
by a court reporter and affirmed by the parties on the record
personally, the agreement is not required to be in writing and is
considered to be executed.
When an agreement is “read or recited into the record in the presence of a court reporter and the
parties [] specifically and affirmatively manifest their assent to [its] terms on the record,” Code
§ 20-155 is satisfied. Gaffney v. Gaffney, 45 Va. App. 655, 670 (2005). We determine whether
wife specifically and affirmatively manifested her assent to those terms by considering her
intention, as shown by the reasonable meaning of her words and acts. See Lucy v. Zehmer, 196
Va. 493, 503 (1954).
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Here, the reasonable meaning of wife’s actions and words manifested her intention to
enter into the agreement on the record as permitted by Code §§ 20-107.3(I) and 20-155.
Notably, wife expressed her desire to settle and forgo presenting evidence when she stated, “I’d
like to just see if we could settle. I, I don’t think there’s anything to present.” Wife openly
disagreed with husband’s expressed reservations and insisted on trying to settle the matter. It
was in this context that husband finally agreed to a settlement discussion with wife. The trial
court then provided wife with a recess in which she further discussed the terms of a potential
agreement with counsel for husband.
Before wife accepted the agreement on the record, the trial court took great care to ensure
that she understood the law and procedure. As demonstrated by her statement, “I don’t care, just
settle it, please,” wife insisted on settling the matter instead of presenting evidence. The trial
court then explained to wife that she had the power to decide whether she wanted to accept any
agreement. The trial court further explained that it “would not accept an alleged agreement
if . . . it really was not a free and voluntary act on the part of both parties.” The trial court even
offered to take another recess to give wife additional time to discuss a potential settlement. Wife
accepted that offer and further negotiated the terms of the agreement with counsel for husband.
After the parties reached an agreement, counsel for husband recited its terms on the
record, and the trial court obtained husband’s assent. Then, the trial court asked wife whether
she agreed to the terms counsel recited, and she replied without hesitation, “Yes, sir.” The trial
court accepted this agreement as valid. The record shows that wife addressed the trial court
whenever she felt the need to do so, yet she never objected to the agreement and allowed the
hearing to conclude with this agreement intact.
Accordingly, we find that wife’s actions and words objectively manifested her intention
to end the litigation by entering into this agreement as permitted by Code §§ 20-107.3(I) and
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20-155, and the trial court accepted this agreement under Code § 20-109.1. By agreeing to the
settlement on the record, wife waived her ability to appeal the pretrial rulings and appeal this
otherwise valid agreement despite her decision to hire counsel after acceptance and despite her
refusal to sign the final order before moving to rehear the matter. When counsel for husband
recited the agreement into the record in the presence of a court reporter and the parties
specifically and affirmatively manifested assent to its terms on the record, these actions satisfied
Code § 20-155. We find no evidence in the record of clear and certain illegality, so the
agreement is valid and enforceable despite wife’s subsequent objection.
For all of these reasons, wife waived any right to appeal the pretrial rulings when she
objectively manifested her intention to enter into an agreement that the trial court accepted.
The Trial Court’s Application of the Pretrial Order
Wife also assigns error to “the [trial court’s] application of the pretrial order,” which she
claims “resulted in manifest injustice for the pro se [wife] adequate to mandate reversal and
remand.” In support, she claims that the trial court’s enforcement of the pretrial order deadline
for her exhibit and witness list “created oppressive circumstances and thus, an unconscionable
and inequitable agreement.” We disagree.
Because we “decide cases ‘on the best and narrowest grounds available,’” Chaney, 71
Va. App. at 438 (quoting Levick, 294 Va. at 302), and wife failed to preserve the third
assignment of error, we do not address it on the merits.
Under Rule 5A:18, “[n]o ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable th[is] Court . . . to attain the ends of justice.” “The bare
assertion that an award is ‘contrary to the law and the evidence’ is not sufficient to constitute a
question to be ruled upon on appeal.” Konefal v. Konefal, 18 Va. App. 612, 615 (1994) (quoting
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Rule 5A:18). Furthermore, “endorsing a decree ‘seen and objected to’ does not preserve an issue
for appeal unless the record further reveals that the issue was properly raised for consideration by
the trial court.” Id. (quoting Twardy v. Twardy, 14 Va. App. 651, 657 (1992) (en banc)). Rules
requiring specific and contemporaneous objections “promote orderly and efficient justice and are
to be strictly enforced except where the error has resulted in manifest injustice.” Redman v.
Commonwealth, 25 Va. App. 215, 220 (1997) (quoting Brown v. Commonwealth, 8 Va. App.
126, 131 (1989)).
Here, wife argues that the agreement was unconscionable for the first time on appeal.
When wife entered into the agreement with husband, she made no specific, contemporaneous
objection as required by Rule 5A:18. Endorsing the final decree as seen and objected to for “not
conforming with rules and equitable distribution law” was insufficient to preserve the issue
because this is a bare assertion that the award is contrary to the law. Such an endorsement
neither allowed husband nor the trial court an opportunity to intelligently consider her argument
that the agreement was unconscionable. Thus, wife cannot now complain that the agreement is
unconscionable because she failed to preserve this argument under Rule 5A:18.
Attorney’s Fees
Finally, husband requests an award of his costs and attorney’s fees incurred on appeal.
Whether we make such an award on appeal depends on the equities of the case and is
discretionary. See Rule 5A:30(b). After reviewing the record, the assignments of error, and the
parties’ arguments, we deny husband’s request for attorney’s fees.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
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