Megan Bracaloni v. Joshua Edge, Jennifer Leslie Edge and Gregory Edge

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED
MEGAN BRACALONI
MEMORANDUM OPINION*
v. Record No. 1722-14-2 PER CURIAM
JUNE 2, 2015
JOSHUA EDGE, JENNIFER LESLIE EDGE
AND GREGORY EDGE
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Joseph J. Ellis, Judge
(Richard Camaur; Marzia Momen; The Camaur Law Firm, P.C., on
brief), for appellant.
(William C. Herbert, III; Gary D. Godman; Patricia Joshi, Guardian
ad litem for the minor child; Rappahannock Legal Services, Inc., on
brief), for appellee Joshua Edge.
(Thomas Woehrle; Rachel Bauer; Patricia Joshi, Guardian ad litem
for the minor child; Woerhle Franklin Dahlberg Jones PLLC, on
brief), for appellees Jennifer Leslie Edge and Gregory Edge.
Megan Bracaloni (mother) appeals an order affirming a custody and visitation agreement
between her and Joshua Edge (father), Jennifer Leslie Edge (paternal grandmother), and Gregory
Edge (paternal grandfather).1 Mother argues that the circuit court erred by “entering the parties’
purported agreement without considering whether the provisions of the agreement were in the
child’s best interest.” 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 circuit court. See
Rule 5A:27.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Paternal grandmother and paternal grandfather will be referred to collectively as the
paternal grandparents.
BACKGROUND
In July 2013, mother appealed a custody and visitation order from the Spotsylvania
County Juvenile and Domestic Relations District Court that granted custody of the minor child to
the paternal grandparents and visitation to mother and father.
The circuit court reappointed the guardian ad litem and set a trial date. At the request of
mother’s counsel, the trial date was continued from February 21, 2014 to August 15, 2014.
On August 11, 2014, all of the parties, their counsel, and the guardian ad litem negotiated
and signed a custody and visitation agreement. The parties agreed that mother and father would
have joint legal custody of their child and father would have primary physical custody. The
agreement included a visitation schedule for mother and the paternal grandparents. Mother was
represented by counsel during the negotiations and execution of the agreement. The parties filed
the agreement with the circuit court. On August 22, 2014, the circuit court entered an order
stating that the agreement was “made the Final Order in this case.”
On August 15, 2014, mother filed a pro se letter with the circuit court. She asked the
circuit court to “reconsider approving the signed settlement from August 11, 2014.” She stated
that she wanted “primary or sole custody” and felt that she was “under duress and forced to sign”
the agreement. The record does not indicate whether the circuit court saw this letter prior to its
entry of the August 22, 2014 order. On August 25, 2014, mother filed a second pro se letter with
the court. She again expressed concern about the terms of the agreement and stated that she was
“forced to sign” it.
The circuit court accepted mother’s two letters as a motion to reconsider, and a hearing
was scheduled for September 10, 2014, which was less than twenty-one days after the entry of
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the final order.2 See Rule 1:1. Mother retained new counsel on September 9, 2014, but counsel
was not available for the September 10, 2014 hearing. At the hearing, the circuit court denied
mother’s request for a continuance in order for her counsel to be present because the court
“would lose jurisdiction if the matter were to be continued to a date convenient to all counsel.”
Mother told the circuit court that “she felt pressured to sign the agreement” and had changed her
mind about the terms of the agreement. She admitted that she had counsel at the meeting and
had the opportunity to confer with counsel prior to signing the agreement. From the bench, the
circuit court denied mother’s request to reconsider its August 22, 2014 order. It found that there
was “no evidence of fraud or duress.” The circuit court also stated that “merely changing one’s
mind” was not a circumstance that warranted vacating the parties’ agreement.
On September 16, 2014, mother filed a notice of appeal of the August 22, 2014 order.
On September 23, 2014, mother filed a statement of objections to the August 22, 2014 order and
denial of her motion to reconsider. On September 29, 2014, the circuit court entered an order
denying mother’s motion to reconsider. Mother did not appeal the September 29, 2014 order.
ANALYSIS
The paternal grandparents and father argue that mother did not preserve her assignment of
error. We agree.
The circuit court entered the final order on August 22, 2014. Mother subsequently filed two
pro se letters with the circuit court. The circuit court considered these letters as a motion to
reconsider. Mother did not ask the circuit court to enter an order to stay, vacate, or suspend the
August 22, 2014 order.
2
The paternal grandparents filed a motion for attorney’s fees. This Court will not
address the motion, since the court’s ruling on the motion was not appealed.
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On September 10, 2014, within twenty-one days of the entry of the final order, the circuit
court held a hearing on mother’s motions. From the bench, the circuit court stated that it denied
mother’s motion to reconsider.
A trial court speaks through its written orders. See McMillion v. Dryvit Systems, Inc., 262
Va. 463, 469, 552 S.E.2d 364, 367 (2001); Anonymous B v. Anonymous C, 51 Va. App. 657, 672,
660 S.E.2d 307, 314 (2008).
The circuit court did not enter an order memorializing its ruling on mother’s motion to
reconsider until September 29, 2014, which was more than twenty-one days after the entry of the
August 22, 2014 order. Mother’s objections, filed on September 23, 2014, also were filed more
than twenty-one days after the entry of the August 22, 2014 order.
Rule 1:1 states that all orders become final twenty-one days after their entry. In School Bd.
of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989), the
Supreme Court of Virginia held:
Neither the filing of post-trial or post-judgment motions, nor the
court’s taking such motions under consideration, nor the pendency
of such motions on the twenty-first day after final judgment, is
sufficient to toll or extend the running of the 21-day period
prescribed by Rule 1:1 . . . . The running of time under [Rule 1:1]
may be interrupted only by the entry, within the 21-day period
after final judgment, of an order suspending or vacating the final
order.
This Court later stated:
“In order to toll the time limitations of Rule 1:1 . . . , it is not
sufficient for the trial judge merely to express a desire to consider
action or take the issue under advisement; rather, the trial judge
must issue an order modifying, vacating or suspending the [order]
within twenty-one days of the entry of [the order].”
Vokes v. Vokes, 28 Va. App. 349, 356, 504 S.E.2d 865, 869 (1998) (emphasis added in original)
(quoting D’Alessandro v. Commonwealth, 15 Va. App. 163, 167, 423 S.E.2d 199, 201 (1992)); see
also Cloutier v. Queen, 35 Va. App. 413, 420, 545 S.E.2d 574, 577 (2001).
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In this case, the circuit court did not enter an order with its ruling regarding the motion to
reconsider, nor did it enter an order that vacated or suspended the August 22, 2014 order, within
twenty-one days of its entry. The circuit court lost jurisdiction over the matter after September 12,
2014, which was the twenty-first day after the entry of the final order. Therefore, this Court will not
review the September 29, 2014 order and the circuit court’s ruling on the motion to reconsider.
Likewise, mother’s objections were not timely filed and will not be considered.
Mother indicated that her assignment of error was preserved in her motion to reconsider and
her statement of objections, which were not timely. Therefore, mother’s assignment of error was
not preserved and will not be considered.
Attorney’s fees and costs
The paternal grandparents ask this Court to award them attorney’s fees and costs incurred
on appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).
Having reviewed and considered the entire record in this case, we hold that they are entitled to a
reasonable amount of attorney’s fees and costs, and we remand for the circuit court to set a
reasonable award of attorney’s fees and costs incurred by them in this appeal.
CONCLUSION
For the foregoing reasons, the circuit court’s ruling is summarily affirmed.3 Rule 5A:27.
We remand this case to the circuit court for determination and award of the appropriate appellate
attorney’s fees and costs, which also should include any additional attorney’s fees and costs
incurred at the remand hearing.
Affirmed.
3
On April 28, 2015, the paternal grandparents filed motions to dismiss due to mother’s
failure to preserve her objections on the record and citation to material facts not in the record.
Considering our ruling, the motions to dismiss are denied.
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