Seth A. Bailey v. Nettie L. Bailey

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McClanahan and Senior Judge Willis
Argued at Chesapeake, Virginia
SETH A. BAILEY
MEMORANDUM OPINION * BY
v. Record No. 2143-08-1 JUDGE ROBERT J. HUMPHREYS
JANUARY 12, 2010
NETTIE L. BAILEY
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Kim M. Crump for appellant.
No brief or argument for appellee.
Seth A. Bailey (“husband”) appeals the circuit court’s dismissal as untimely his motion to
designate as waste a second mortgage taken out by Nettie L. Bailey (“wife”) on their marital
residence. Husband contends that the circuit court had indicated at a previous hearing that it
would address the issue at a later time and therefore abused its discretion in holding the motion
as filed untimely. 1 For the following reasons, we disagree and affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant’s brief contains a second question presented:
Did the trial court err when it entered a decree of divorce a vinculo
matrimonii containing language stating that the parties had agreed
that if the Court were to find the “Contract of Marriage’ dated July
16, 1995 valid then the former marital residence would be awarded
to Defendant, even though the parties did not agree to such matter
as evidenced by motion and the Transcript of Proceedings on June
12, 2008?
Because the validity of the contract was determined in a separate appeal by the wife, we will not
address the issue in this appeal. See Bailey v. Bailey, 54 Va. App. 209, 677 S.E.2d 56 (2009).
“No ruling of the trial court . . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18. The
purpose of “‘Rule 5A:18 is to alert the trial judge to possible error so that the judge may consider
the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals,
reversals and mistrials.’” Neal v. Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521, 525
(1992) (quoting Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)).
In this case, the record fails to establish: (1) that husband objected to the dismissal of his
motion to designate as waste, and assuming he did, in fact, object to its dismissal (2) any grounds
husband relied upon in support of his motion. Furthermore, nothing in the final decree of
divorce indicates that husband’s motion to designate as waste was presented to, and dismissed
by, the circuit court during the August 8, 2008 hearing. Contrary to husband’s assertion that he
objected to the dismissal of his motion at the time the final decree of divorce was entered, the
circuit court’s order contains no indication that either he, or his counsel, made such an objection.
Moreover, in husband’s motion to reconsider, he admits that “[a]lthough the entered
divorce decree contains an objection to language within the decree it does not contain an
objection to the denial of the motion.” Husband also states in his motion to reconsider that “[a]
statement of facts would serve as a record for preservation of appeal regarding [husband’s]
objection to the denial of the motion” and “[w]ithout establishment of a statement of facts there
is no preservation of the record for appeal in regards to this issue.” The record contains
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transcripts of the evidentiary hearing and does not contain a statement of facts that conforms to
Rule 5A:8(c). 2
Based on the record before us, we find that husband failed to make a timely objection to
the dismissal of his motion at the time of the ruling. Therefore, the issue presented is
procedurally defaulted, and we affirm the circuit court.
Affirmed.
2
Appellant submitted a proposed written statement of facts to the trial court with respect
to the hearing at which the final order was entered. The trial court rejected the proposed
statement of facts as both inaccurate and unnecessary in view of the fact that no ore tenus
hearing was held at that time.
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