Don't Miss

BROWN v. BROWN




NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.


BROWN

v.

BROWN


COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Kelsey and Senior Judge Hodges

Record No. 0580-03-2

LLOYD H. BROWN, SR.

v.

ROSALIND H. BROWN

 

MEMORANDUM OPINION[1]PER
CURIAM

OCTOBER 21, 2003

FROM THE CIRCUIT COURT OF HENRICO COUNTY

Catherine C. Hammond, Judge

(Reginald M. Barley, on briefs), for appellant.

(Barbara S. Picard; Cawthorn, Picard & Rowe, P.C., on
brief),

for appellee.

Lloyd H. Brown, Sr. (husband) raises four issues on appeal.[2]He
contends the trial court

erred: (1) in finding that wife "was entitled to a divorce
on the ground of cruelty and desertion and

abandonment"; (2) in refusing to grant husband a divorce on
the ground of willful desertion by wife;

(3) in equitably distributing the parties’ property; and (4) in
refusing to grant husband spousal

support and attorney’s fees. 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 trial court. See

Rule 5A:27.

BACKGROUND

On appeal, "we view the evidence and all reasonable
inferences in the light most

favorable to the prevailing party below . . . ." Lutes v.
Alexander, 14 Va. App. 1075, 1077, 421

S.E.2d 857, 859 (1992). So viewed, the evidence proved that the
parties were married on

September 24, 1971. They separated on or about November 8, 1998.
Four children were born of

the marriage, two of whom were emancipated at the time of
separation, the other two were

sixteen and seventeen at that time. On May 11, 2000, wife filed
a bill of complaint requesting,

inter alia, that she be granted a divorce on the basis of
husband’s cruelty, desertion and

abandonment. In the bill, wife alleged that husband hit her on
November 8, 1998, the date of

separation, and "verbally abused her" on November 8th
"and other times" using profane

language "in the presence of the then minor children."

On August 17, 2000, husband filed an answer and cross-bill. He
denied assaulting wife

and noted "that both parties verbally abused the
other." In his cross-bill, husband asked, inter

alia, that he be granted a divorce on the ground of wife’s
"willful desertion or abandonment."

By order dated November 3, 2000, the trial court granted
husband’s attorney’s motion to

withdraw and noted that Mr. Barley would be husband’s new
counsel. On February 12, 2001, the

trial court granted husband’s motion to amend his cross-bill and
seek, inter alia, temporary and

permanent spousal support and attorney’s fees.

By order dated March 15, 2001, the trial court denied husband’s
request for temporary

spousal support, ordered wife to maintain health insurance
coverage for husband and "decreed

that the court shall hear the issues of equitable distribution
on September 24, 2001."

By order dated July 16, 2001, the trial court found wife guilty
of contempt of court for

making "material, false and fraudulent representation[s] regarding marital debt."

On September 13, 2001, the trial court entered an order,
awarding husband pendente lite

spousal support.

On December 10, 2001, the trial court terminated husband’s
temporary spousal support

and ordered husband to make past due mortgage payments on, or
move out of, the marital

residence.

On March 28, 2002, husband filed a memorandum containing
proposed findings of fact

and conclusions of law. Wife filed a similar memorandum on April
2, 2002.

By opinion letter dated June 5, 2002, the trial court ruled that
"[a] divorce will be decreed

pursuant to Va. Code ? 20-91A(9)."[3]The
trial court further found that husband’s "cross-bill

claim of desertion or abandonment was not supported by the
evidence." The trial court also

identified and valued the parties’ marital assets and debts and
explained the manner in which it

planned to distribute them. It declined to award husband spousal
support "at this time." The trial

court directed wife’s attorney to "prepare the order,
preserving both parties’ objections and

making reference to this letter."

On February 10, 2003, the trial court entered a final decree
granting wife a divorce "on

the grounds of cruelty, and constructive desertion and
abandonment, as determined by the

Court’s June 5, 2002 opinion letter." The decree noted that
the trial court "heard evidence on

November 12, 2002 on motions to reconsider." Finally, the
trial court distributed property and

apportioned debts. It refused to award husband spousal support
"at this time."

ISSUES PRESERVED

Rule 5A:20 requires a party’s opening brief to contain, inter
alia
, "a statement of the

question presented with a clear and exact reference to the
page(s) of the transcript, written

statement, record, or appendix where each question was preserved
in the trial court
." (Emphasis

added.)

"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

main purpose of requiring timely specific objections is to
afford the trial court an opportunity to

rule intelligently on the issues presented, thus avoiding
unnecessary appeals and reversals."

Ohree v. Commonwealth, 26 Va. App. 299, 307, 494 S.E.2d 484, 488
(1998). When such

specific objections have not been made, this Court will not
consider an argument on appeal

which was not presented to the trial court. Id. at 308, 494
S.E.2d at 488.

In his brief, husband indicated that he preserved the issues on
appeal on pages 68 and 69

of the appendix. Those pages constitute the final two pages of
the final decree. The last

statement on Appendix page 68 reads as follows: "[I]t is
ADJUDGED, ORDERED and

DECREED that the objections of either party shall be preserved .
. . ." On appendix page 69, the

final page of the decree, husband’s attorney signed the decree
"Seen and Objected To except

paragraph 14." Paragraph 14 listed the parties’ current
monthly incomes.

The only transcripts cited in the appendix involved deposition
testimony taken at

husband’s attorney’s office. The record contains no transcripts
of court proceedings to show

whether husband raised the issues before the trial court.

ISSUE I: GROUNDS OF DIVORCE

In his brief, husband notes the discrepancy between the trial
court’s letter indicating a

no-fault divorce and the final decree which awarded wife a
divorce on the grounds of cruelty,

desertion and abandonment. He also points out several alleged
deficiencies in the evidence and

argues that "a single act of physical cruelty will not
constitute grounds for divorce."

The record fails to show that husband ever objected to the trial
court’s decision in the

final decree to award wife a divorce on a fault ground after
earlier indicating in the June 5, 2002

letter that the divorce would be based on Code ? 20-91(A)(9).
Consequently, we are barred from

considering those arguments for the first time on appeal.
Moreover, the final order indicated that

"the [trial] court heard evidence on November 12, 2002 on
motions to reconsider and a rule to

show cause." A transcript from that hearing was not made a
part of the record, therefore we

cannot determine what arguments and rulings were made at that
hearing. It is possible the trial

court reconsidered its earlier reference to Code ? 20-91(A)(9)
or corrected a possible

typographical error in its initial opinion letter. A trial court
speaks only through its written

orders, see Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d
770, 773 (1964), and evidence

in the record supports the trial court’s finding of cruelty.
Moreover, husband 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 does the record reflect any reason
to invoke the good cause or

ends of justice exceptions to the Rules.

ISSUE II: EQUITABLE DISTRIBUTION

In his brief, husband contends the "question on appeal in
this case is whether the trial

court’s order to sell all of the real estate and divide the
assets comported with the evidence." He

further claims the trial court credited wife with an amount of
payments not supported by the

evidence, and he claims the trial court failed to properly
credit him with "post-separation

payments."

The appendix pages referenced in husband’s brief do not refer to
arguments or objections

made to the trial court regarding this issue. See Rule 5A:20(c).
Therefore, the record fails to

show that husband preserved this issue for appeal. See Rule
5A:18; Konefal v. Konefal, 18 Va.

App. 612, 615, 446 S.E.2d 153, 154-55 (1994). Moreover, because
credible evidence supports

the manner in which the trial court distributed the parties’
marital property, the record does not

reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.

ISSUE III: SPOUSAL SUPPORT

Husband claims "there is no factual basis in the record of
this case for the trial court to

postpone or deny [him] an award of spousal support."

This issue was not preserved in the record at the places
designated by appendix

references in husband’s brief. See Rule 5A:20(c). Therefore, we
find that husband failed to

preserve this issue for appeal. See Rule 5A:18; Konefal, 18 Va.
App. at 615, 446 S.E.2d at

154-55. Moreover, the record does not reflect any reason to
invoke the good cause or ends of

justice exceptions to Rule 5A:18.

ISSUE IV: ATTORNEY’S FEES

Husband contends in his brief that he "does not have the
financial means to pay for

counsel" and that wife does, therefore, "the trial
court abused its discretion by refusing to order

[wife] to pay [his] attorney’s fees."

Although husband requested attorney’s fees in his March 28, 2002
memorandum filed

with the trial court, neither the June 5, 2002 opinion letter
nor the final decree contains a ruling

by the trial court on attorney’s fees.

If a party fails to obtain a ruling, there is no ruling for us
to review. Fisher v.

Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993).
Therefore, Rule 5A:18 bars

our consideration of this question on appeal. Moreover, because
the trial court had extensive

evidence relating to the parties’ financial condition, the
record reflects no reason to invoke the

exceptions to the rule.

Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.

Affirmed.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]The opening
brief contains ten questions presented. However, the questions presented

can be condensed to the four issues cited here.

 

[3]Code ?
20-91(A)(9)(a) provides that a divorce may be granted "[o]n the application
of

either party if and when the husband and wife have lived
separate and apart without any

cohabitation and without interruption for one year."


Scroll To Top