Lawrence Williams v. Barbara H. Williams

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Willis
LAWRENCE A. WILLIAMS
MEMORANDUM OPINION*
v. Record No. 1127-07-3 PER CURIAM
NOVEMBER 20, 2007
BARBARA H. WILLIAMS
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
(Melvin L. Hill; Ware & Hill, L.L.P., on brief), for appellant.
(Barry M. Tatel; Neil E. McNally; Key, Tatel & McNally, P.C., on
brief), for appellee.
Lawrence A. Williams (“husband”) appeals from the circuit court’s April 27, 2007 order
denying his motion for a reduction in or termination of his spousal support obligation owed to
Barbara H. Williams (“wife”). On appeal, husband contends the trial court (1) abused its discretion
in not terminating spousal support, and (2) erred in not making written findings and conclusions
identifying the factors in Code § 20-107.1 which supported the refusal to terminate spousal support.
Wife seeks attorney’s fees and costs associated with this appeal. Upon reviewing the record and
briefs, we conclude that this appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
I. and II.
Husband’s counsel endorsed the court’s order “Seen and Objected to:” and did not
particularize the basis for his objection. The written statement of facts, filed in lieu of a
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
transcript pursuant to Rule 5A:8(c), did not recite husband’s arguments or any objections he
made to the trial court’s rulings.
Rule 5A:18 provides that “[n]o 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.” The purpose of the rule is to allow the
trial court to cure any error called to its attention, thereby avoiding
unnecessary appeals and retrials. See, e.g., Lee v. Lee, 12
Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc).
Ordinarily, endorsement of an order “Seen and objected to” is not
specific enough to meet the requirements of Rule 5A:18 because it
does not sufficiently alert the trial court to the claimed error. See
id. at 515, 404 S.E.2d at 738. Such an endorsement is sufficient to
satisfy Rule 5A:18 only if “the ruling made by the trial court was
narrow enough to make obvious the basis of appellant’s objection.”
Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E.2d 37, 38 (1993).
Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000).
The written statement does not mention any motions or arguments made by counsel. It
does not even note husband’s general exception to the trial court’s ruling. The signed
endorsement of the final order indicates husband “[o]bjected to” the ruling, but does not set forth
specifically the contested issues.
Counsel may meet the mandates of Rule 5A:18 in many
ways. For instance, counsel may make clear the ground for his
objection in a motion to strike the evidence or in closing argument.
Counsel may also state the grounds therefor during a motion to set
aside the verdict or a motion to reconsider. Likewise, counsel
may, if he or she has previously failed to do so, include an
objection and reasons therefor in the final order or at least tender
such an order to the trial judge.
Lee, 12 Va. App. at 515-16, 404 S.E.2d at 738 (citations omitted).
Husband chose not to produce a transcript of the hearing. He did not file any motions
arguing his position. Thus, the record before us fails to set forth the issues raised below.
We cannot assume that appellant’s objection and reasons
were proffered but not made a part of the record. Rule 5A:8
requires appellant to present a complete transcript for this Court to
-2-
consider his or her issues on appeal. Even assuming that the same
issues were raised at trial as on appeal, we do not know if counsel
stated legal reasons to support his theory or merely argued the
weight of the evidence.
Id. at 516-17, 404 S.E.2d at 738-39. We cannot be certain of the basis on which husband
objected to this ruling.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See e.g., Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might
have occurred.” (emphasis added)). We will not consider, sua
sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
Finding the issues raised before this Court are procedurally defaulted under Rule 5A:18,
we affirm the judgment of the trial court.
III.
Wife requests this Court award attorney’s fees and costs incurred on appeal.
Upon a review of this appeal, we find that the husband’s case presented questions that
were not supported by law or evidence. See Gottlieb v. Gottlieb, 19 Va. App. 77, 95, 448 S.E.2d
666, 677 (1994). Therefore, we award attorney’s fees to wife and remand this case to the trial
court for determination of attorney’s fees and costs incurred in responding to this appeal,
including any attorney’s fees and costs incurred at the remand hearing, and any reasonable
attorney’s fees and costs of collection, if necessary.
Affirmed and remanded.
-3-