Aubrey J El v. Dept of Social Servs, etc

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
AUBREY J. EL
MEMORANDUM OPINION * BY
v. Record No. 3221-01-2 JUDGE ROBERT P. FRANK
DECEMBER 10, 2002
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF SOCIAL SERVICES,
DIVISION OF CHILD SUPPORT ENFORCEMENT,
ex rel. MARGO EL
FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY
Thomas B. Hoover, Judge
Aubrey J. El, pro se.
Drew A. Swank, Special Counsel (Jerry W.
Kilgore, Attorney General; Craig M. Burshem,
Senior Assistant Attorney General, on brief),
for appellee.
The Division of Child Support Enforcement (appellee) issued
an Order to Withhold and Deliver and served it on Aubrey J. El's
(appellant) bank, thereby collecting $28,984.79 toward child
support payments in arrears. Appellant requested an
administrative hearing. He appealed the decision of that hearing
to the juvenile and domestic relations district court under former
Code § 63.1-268.1 (recodified at Code § 63.2-1943). He then
appealed the juvenile court's decision to the circuit court for
de novo review.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Appellant appeals the circuit court's order of October 30,
2001 finding him in arrears on his child support payments in the
amount of $1,065.36. 1 He argues the trial court erred because it
1) failed to grant his request for a continuance, 2) entered a
final order that did not reflect the proceedings and granted
relief that appellee did not request, 3) violated his right to due
process, 4) granted appellee's motion in limine to limit the
calculation of arrearages to dates after May 10, 1999, 5) found
appellee properly seized money pursuant to the Order to Withhold
and Deliver, 6) failed to credit prior child support payments, 7)
found appellee did not owe a fiduciary duty to appellant, and 8)
refused to follow the Rules of the Supreme Court regarding
appellee's Statement of Facts. 2 We affirm the trial court's
ruling.
1
We note that, while appellant is pro se, he is still
required to follow the procedural and substantive rules of law.
Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 656-57
(1987) (proceeding pro se does not give a defendant license to
ignore the procedural and substantive rules of law); Francis v.
Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999) (pro
se parties must comply with the rules of the court).
2
Appellant raises several additional issues on appeal,
which he failed to brief as required by Rule 5A:20(e). He also
fails to indicate where these issues are preserved under Rule
5A:18, as required by Rule 5A:20(c) and (e). "Statements
unsupported by argument, authority, or citations to the record
do not merit appellate consideration. We will not search the
record for errors in order to interpret the appellant's
contention and correct deficiencies in a brief." Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).
Therefore, we will not consider these issues on appeal. The
eight arguments listed here are the only ones briefed in
appellant's "Argument" section.
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I. Continuance
On October 17, 2001, the day of trial, appellant argued he
should be granted a continuance "to acquire competent legal
counsel." He explained he was unhappy with his attorney and had
fired him the previous week. Appellant told the trial court, "I
have adequate evidence to make my case. I just don't have it
together."
"The decision whether to grant a continuance is a matter
within the sound discretion of the trial court. Abuse of
discretion and prejudice to the complaining party are essential
to reversal. In considering a request for a continuance, the
court is to consider all the circumstances of the case."
Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648
(1986) (citations omitted). The trial court here considered
several factors. First, appellant had presented the same case
in the juvenile court on May 10, 2001, without the assistance of
counsel. 3 Second, the case originally was set for a trial court
hearing on September 5, 2001 and was continued, through counsel,
at the request of appellant.
Appellant did not argue he needed extra time to subpoena
witnesses. He did not provide the court with information
regarding his efforts to obtain new counsel. While appellant
did proffer some information "because [he was] just not
3
The juvenile court hearing involved an appeal from
appellant's administrative hearing on February 12, 2001.
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prepared," his proffer consisted mainly of argument. Any facts
provided in the proffer could have been presented at the trial.
The proffer did not explain why this information could not be
presented that day. Nothing in the record suggests the trial
court abused its discretion in denying appellant's motion for a
continuance.
II. The Final Order
Appellant contends the trial court's order of October 30,
2001 makes several findings "not pleaded by the Appellees." He
specifically refers to paragraphs four, six, and ten of the
final order. He claims the order is void because these
paragraphs are included. We disagree with appellant.
Paragraph four states the court's finding that appellee's
account of the arrearages "is true and accurate." Paragraph six
recites the court's finding that appellee properly employed an
Order to Withhold and Deliver to "seize[] and credit[] to the
arrears" the funds in appellant's bank account. Both these
paragraphs relate factual findings the trial court made in
response to issues raised by appellant. These findings are not
"relief" for appellee, as appellant claims. Therefore,
appellant's argument is meritless. The trial court properly
made findings on these issues.
Appellant also argues the trial court erred by ordering in
paragraph ten that his proffer "shall . . . not be considered as
part of the record for any appeal purpose." While we agree with
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appellant that the trial court cannot exclude portions of the
legitimate trial transcript from the record on appeal, we find
this error harmless. See Williams v. Commonwealth, 4 Va. App.
53, 78-79, 354 S.E.2d 79, 93-94 (1987) (explaining harmless
errors by a trial court, errors that did not affect the outcome
of the case, do not provide a basis for overturning a court's
finding).
At the conclusion of appellant's case, the following
exchange occurred:
THE COURT: Mr. El, any evidence you wish to
present?
MR. EL: Your Honor, I'd like to make a
proffer for the record.
THE COURT: All right. Regarding what? I'm
asking you to present your evidence.
MR. EL: Well, Your Honor, I have, like I
stated earlier – I want to object, because
I'm just not prepared, and in order to
present the evidence, I would have to have
my pleadings in order and my exhibits in
order, none of which I have together.
The only thing I can probably do is proffer
for the record, and that's basically all I
can do at this time, Your Honor.
THE COURT: All right. Do the best you can.
Go ahead.
The proffer, which the trial court characterized in the
final order as "the closing statement or proffer," was not a
true proffer of the evidence appellant would have adduced at
trial. See, e.g., Durant v. Commonwealth, 35 Va. App. 459, 466,
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546 S.E.2d 216, 220 (2001) (noting a proffer presents the
"expected evidence" to the trial court). Instead, appellant
presented argument. For example, he claimed the arrearage
amount prior to 1999 was inaccurate, 4 even though the trial court
previously granted a motion in limine that excluded
consideration of this period from the hearing. He also claimed
appellee owed him a fiduciary duty that was breached. At the
conclusion of this "proffer," the trial court explained:
All right. Let the record show that I have
permitted Mr. El to make his proffer on the
record of what he claims his evidence would
have been had the Court continued the case
and admitted [sic] him additional time to
prepare for trial.
The Court is not accepting his proffer as
evidence on the merits of the case. This
proffer is not evidence in the case. It
contains improper conclusions and
speculations.
Appellant did not object to this characterization of his
"proffer." 5 In the final order, the trial court found this
statement by appellant "shall . . . not be considered as part of
the record for any appeal purpose."
4
Appellant did not offer any documents to the court nor did
he testify under oath to any facts.
5
Appellee did not stipulate to the proffer, but instead
objected to it as substantive evidence in the case. Therefore,
we cannot review the proffer as evidence. See Wyche v.
Commonwealth, 218 Va. 839, 842-43, 241 S.E.2d 772, 774-75 (1978)
(discussing the use of proffers).
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The content of the record on appeal to this Court is
controlled by Rule 5A:7, which includes a transcript of "any
proceedings." An order of a trial court cannot change this
rule.
In this case, however, contrary to the final order, the
proffer is included in the transcript and is presented to us as
part of the record. We accept it as a part of the transcript
and, therefore, any error in the order is harmless.
III. Due Process
Appellant argues his due process rights under Article I,
§ 11 of the Virginia Constitution were violated "when the trial
Court [sic] failed to have a trial on the merits." Appellant
did not make this objection at trial; therefore, he has not
preserved this argument for appeal.
Appellant objected "on due process grounds" to the court's
denial of his motion to continue. He did not make this
objection in relation to the hearing itself nor did he explain
this objection more fully to the trial court, as required by
Rule 5A:18. Appellant does not argue an exception should be
made to attain the ends of justice or for good cause shown, as
required by Rules 5A:18 and 5A:20(e), nor do we find any reason
to waive these Rules. Therefore, we cannot consider his due
process argument on appeal. Townes v. Commonwealth, 234
Va. 307, 319, 362 S.E.2d 650, 656-57 (1987) (noting pro se
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parties must make the proper objections at trial, otherwise the
argument is not preserved for appeal).
Additionally, the trial court heard evidence from appellee.
Appellant cross-examined appellee's witness. The court gave
appellant the opportunity to present his evidence. However,
appellant chose not to do so. He was provided the opportunity
to present his case; he simply did not present any evidence to
the trial court. He had a trial on the merits.
IV. Motion in Limine
Appellant argues the trial court erred in granting
appellee's motion in limine, which effectively limited his
evidence to issues involving arrearages that accumulated after
May 10, 1999. Appellee argues the principle of res judicata
supports the trial court's granting of the motion. We agree
with appellee.
During the October 2001 hearing, the trial court described
the hearing on the motion in limine:
We heard evidence proffered by [appellant's]
attorney and by [appellee's attorney]. We
arrived at the fact that arrears were
$35,000 as of May or June 1999. That's what
both sides agreed to, and the Court accepted
that. That's how we proceeded on the case.
The earlier motion by [appellant] was that
he wanted to re-litigate the amount of the
child support arrears. I advised him that
about a year or more ago, the Court had set
the amount of arrears and the Court would
not re-litigate the amount of arrears. We
would add that amount and bring that forward
to see if there were any credits that should
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be credited to the account or payments made
by [appellant] or any other payments that
should be credited, and add to that amount
of arrears any further unpaid support.
An earlier order of the trial court set the amount of child
support in arrears as of May 1999. That order was not appealed,
and twenty-one days had passed since the court entered the
order. As a valid 6 order set the amount owed prior to June 1999,
the trial court no longer had jurisdiction to reconsider that
amount. Rule 1:1.
V. Order to Withhold and Deliver
Appellant argues the trial court erred in finding appellee
"properly and timely applied the [Order to Withhold and Deliver]
process when there was no evidence to support that conclusion."
Appellant contends "there is no controversy as to [appellee's]
failure to follow" the proper procedure under Code § 63.1-256(D)
(recodified at Code § 63.2-1929). He refers to "admissions"
made during a juvenile court hearing. 7
The trial court heard this case de novo. Code §§ 16.1-113,
63.1-268.1 (recodified at Code § 63.2-1943). The evidence and
the rulings of the juvenile court are not considered on de novo
appeal unless they are presented and accepted as evidence by the
6
Appellant argues the order is void because of extrinsic
fraud. We address that issue below in section VI.
7
The juvenile court found the seizure was proper, and
appellant appealed that decision to the circuit court. The
circuit court decision is reviewed in this appeal.
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trial court. See Box v. Talley, 1 Va. App. 289, 292, 338 S.E.2d
349, 350-51 (1986).
Appellee did not present argument to the trial court
regarding the Order to Withhold and Deliver. In his brief on
appeal, appellant does not explain what "process" appellee
"failed to follow." Under Rule 5A:20(e), an appellant must
provide an explanation and legal authority for an argument. We
find nothing in appellant's brief that clarifies his position
regarding the inadequate procedure allegedly used by appellee.
An inadequately developed argument need not be addressed on
appeal. See Theismann v. Theismann, 22 Va. App. 557, 572, 471
S.E.2d 809, 816, aff'd, 23 Va. App. 687, 479 S.E.2d 534 (1996)
(en banc). "We will not search the record for errors in order
to interpret the appellant's contention and correct deficiencies
in a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992). Therefore, we do not consider this
argument on appeal.
VI. Failure to Credit Payments
Appellant argues the trial court erred when it did not
credit him for support payments made directly to the custodial
parent. He argues he should be permitted to challenge the 1999
order setting arrearages because appellee committed extrinsic
fraud to arrive at that amount. However, the record does not
support appellant's contention.
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Appellant did not present evidence on this issue during the
trial court hearing. The only evidence presented to the court
was the testimony of a senior accountant for the Division of
Child Support Enforcement and two exhibits 8 offered by appellee.
This evidence supports the arrearages found by the trial court.
Although appellant attempted to present documents to the
trial court after the hearing by means of a Motion for Stay and
Reconsideration, these documents were not admitted as evidence
and cannot be used to undermine the court's decision. Evidence
must be presented at the time of the hearing, not afterward.
Cf. Joynes v. Payne, 36 Va. App. 401, 418, 551 S.E.2d 10, 18
(2001) (rehearing) (noting the requirements for acceptance of
after-discovered evidence). The trial court is not obligated to
reopen a case, especially after announcing its decision. Cf.
Chrisman v. Commonwealth, 3 Va. App. 371, 375-76, 349 S.E.2d
899, 902 (1986) (explaining trial courts have discretion to
reopen cases and take evidence after the parties have rested).
The filing of the Motion for Stay and Reconsideration did not
reopen the case. See Super Fresh Food Mkts. of Virginia, Inc.
v. Ruffin, 263 Va. 555, 560-61, 561 S.E.2d 734, 737 (2002)
(explaining a final order remains final unless the trial court
enters a stay and allows further action in the case).
8
Exhibit One was the 1999 order setting arrearages.
Exhibit Two was an accounting of appellant's payments and
accumulating debt.
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The evidence before the trial court did not prove appellee
failed to credit appellant for child support payments, either
through fraud or accounting error. The evidence appellant asks
us to examine was not presented at the hearing. We cannot find
a trial court erred based on evidence not before the court.
VII. Fiduciary Duty
Appellant argues the trial court erred in failing to find
appellee owed him a fiduciary duty to maintain accurate records
of his support payments. He contends such a duty existed
because the Code mandates appellee manage particular financial
obligations of appellant, making it his agent. He argues
appellee violated this duty by committing fraud. We hold the
trial court correctly found no such duty existed and no fraud
existed.
Fiduciary relationships generally develop where "[e]vidence
of advice and counsel in business matters involving a certain
degree of trust" is proved. Oden v. Salch, 237 Va. 525, 534,
379 S.E.2d 346, 351 (1989). Appellee, however, is an agent of
the Commonwealth of Virginia, established by the General
Assembly, in part, to collect support payments. Code § 63.1-249
(recodified at Code § 63.2-1901). Appellee does not advise or
act on behalf of people obligated to pay child support.
Appellee is not employed by such people, but instead appellee
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enforces child support orders and collects the debt owed by such
people. 9
In Van Deusen v. Snead, 247 Va. 324, 330-32, 441 S.E.2d
207, 211 (1994), the Supreme Court dealt with the issue of to
whom real estate brokers owed a fiduciary duty, based on agency
theory. The Court found an agent relationship and fiduciary
duty where purchasers hired the realtors to assist them in
buying a home. Id. at 331, 441 S.E.2d at 211. No similar
relationship exists here. Appellant did not engage appellee and
request that appellee act for him in the paying of his child
support. Instead, appellee determined appellant owed the
arrearages and took the money from him. We cannot find the
trial court erred in failing to find a fiduciary relationship
between the parties.
Additionally, even if a fiduciary relationship existed,
appellant presented no evidence of breach of that duty,
fraudulent or otherwise. Appellant claims appellee failed to
credit him with child support payments and, thus, committed
fraud. However, as discussed in section VI of this opinion, he
did not present any evidence of this fraud at the hearing. The
record supports the trial court's findings.
9
Any relationship between appellant and appellee is based
on appellant's failure to abide by a court order to pay child
support.
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VIII. Statement of Facts
Appellant claims he properly filed a "Statement of Facts"
under Rule 5A:8(e), which the trial court refused to sign or
amend. We find appellant did not file a statement of facts
under the Rule.
Rule 5A:8(c) allows the filing of a written statement of
facts "[i]n lieu of a transcript." The "Statement of Facts"
appellant filed with the trial court, by his own admission, does
not summarize the facts and arguments presented at trial. As
appellant describes the statement, it "does not purport to be a
representation of the incidence of the trial but represents a
post[-]trial incident of the case."
In this case, appellant did not submit an erroneous or
incomplete statement of what happened at trial. His "Statement
of Facts" did not discuss any of the incidents of trial.
Clearly, the trial court correctly refused to recognize this
document, labeled a "Statement of Facts," as a statement of
facts under Rule 5A:8(c). Since a statement of facts was not
presented to the trial court, the letter opinion rejecting
appellant's document was appropriate.
For the reasons stated above, we affirm the final order of
the trial court.
Affirmed.
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