Estil F. Davidson, Jr. v. Deborah Davidson Van Epps

COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
ESTIL F. DAVIDSON, JR.
MEMORANDUM OPINION * BY
v. Record No. 2222-99-2 JUDGE NELSON T. OVERTON
JUNE 6, 2000
DEBORAH DAVIDSON VAN EPPS
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Robert G. O'Hara, Jr., Judge
Lawrence D. Diehl for appellant.
Adrienne George-Eliades (Hill, Rainey &
Eliades, on brief), for appellee.
On appeal from a final order entered pursuant to Code
§ 20-109, Estil F. Davidson, Jr., contends that the trial court
erred in denying his motion to terminate or reduce monthly
spousal support to Deborah Davidson Van Epps. Deborah Davidson
Van Epps cross-appeals, contending that the trial court erred in
finding that she was cohabiting with another man in a
relationship analogous to a marriage. See Code § 20-109.
The record on appeal contains neither a transcript nor a
timely filed statement of facts. The final order denying
Davidson's motion was entered on August 26, 1999. No written
statement of facts was filed with the clerk of the trial court
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
within fifty-five days after entry of judgment, as required by
Rule 5A:8(c). On December 3, 1999, the trial court entered a
written statement of facts. On December 4, 1999, the trial
court entered an order nunc pro tunc October 20, 1999, granting
an extension of time within which to file the written statement
of facts.
This order was without effect.
An order entered nunc pro tunc cannot create
a fiction that an act not yet performed has
already occurred. Rather, the power of the
trial court to amend by nunc pro tunc order
is restricted to placing upon the record
evidence of judicial action which has
already been taken, but was earlier omitted
or misstated in the record.
Holley v. City of Newport News, 6 Va. App. 567, 568, 370 S.E.2d
320, 321 (1988) (citation omitted). The parties admit that the
untimely filing of the written statement of facts was neither
inadvertent nor a clerical omission.
The period of time within which the written statement of
facts could be made part of the record expired without that
statement being filed with the trial court and without an
extension of time granted. The written statement of facts
entered by the trial court, therefore, is not part of the record
on appeal. See Mayhood v. Mayhood, 4 Va. App. 365, 368-69, 358
S.E.2d 182, 184 (1987).
If . . . the [written statement of facts] is
indispensable to the determination of the
case, then the requirements for making [it]
a part of the record must be strictly
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adhered to. This Court has no authority to
make exceptions to the filing requirements
set out in the Rules.
Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402
(1986). See also Anderson v. Commonwealth, 13 Va. App. 506,
508-09, 413 S.E.2d 75, 77 (1992) ("Fairness and common sense
dictate that policies regarding transcripts and statements of
facts be reasonably analogous.").
The Court finds that the statement of facts is
indispensable to a determination of the issues raised on appeal.
Accordingly, this appeal is dismissed.
Dismissed.
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