SAUNDERS v. SAUNDERS




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SAUNDERS

v.

SAUNDERS


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Willis

Record No. 0393-03-2

DAVID EDWIN SAUNDERS

v.

ELEANOR MARIE SAUNDERS

 

MEMORANDUM OPINION[1]
PER CURIAM

NOVEMBER 4, 2003

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE

Walter J. Ford, Judge Designate

(Neal L. Walters; University of Virginia School of Law,
Appellate

Litigation Clinic, on brief), for appellant.

No brief for appellee.

David Edwin Saunders (husband) challenges the circuit court’s
final decree awarding

Eleanor Marie Saunders (wife) a divorce. On appeal, husband
contends (1) the decree "must be

reversed because the only evidence offered in support of the
claim for divorce was inadmissible,"

and (2) the ends of justice require that we address Issue 1
because he had no opportunity to

object to the evidence. Upon reviewing the record and opening
brief, we conclude that this

appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See

Rule 5A:27.

Procedural Background

Eleanor Marie Saunders (wife) filed a bill of complaint for
divorce in the trial court on

October 16, 2002. Wife’s bill contained seven numbered
statements. In statement 6 wife

indicated that she and husband separated on or before June 1,
2001, and in statement 7 wife

declared that husband "is incarcerated in the Rustburg
Correctional Center." Wife then requested

that "Thomas M. James be appointed as guardian ad litem for
husband and that she be granted a

divorce a vinculo matrimonii on the grounds of having
lived separate and apart for a period of

one year." Concomitant with her bill of complaint, wife
filed a motion to appoint Thomas James

as husband’s guardian ad litem. She also filed a
"Notice to Take Depositions," indicating her

intention to "give [her] deposition and to take depositions
of others" on November 27, 2002, "to

be read as evidence" in the divorce action.

By order dated October 18, 2002, the trial court appointed
Thomas James to act as

husband’s guardian ad litem. Thomas James signed the
order of appointment under the phrase

"Seen and agreed."

On October 29, 2002, the trial court filed a handwritten letter
from husband dated

October 25, 2002. Husband entitled it "Answer to Bill of
Complaint for Divorce" and in it, he

wrote:

This is my answer to my wife’s bill of complaint for a divorce.

What she stated on her bill of complaint is not true. I am

contesting this divorce. Mr. Thomas James has been appointed

Guardian ad litem for me. Mr. James told me he was going
to file

the necessary paperwork to preserve my rights since he didn’t
want

to deal with this case. I am just reassuring this court of my

intentions to contest this case and also file my cross-claim on
my

wife.

On October 30, 2002, James filed an answer to wife’s bill of
complaint on husband’s

behalf. In it, he included six numbered one-word responses. In
responses 1 through 4 and

number 6, the answer was "agree." The answer to number
5 was "DENY." The answer

concluded with the following statement:

WHEREFORE, the respondent [husband] has instructed the

Guardian ad litem to object to the basis for the Bill of
complaint

for Divorce as living separate and apart for a period of one
year

and states his intention to file a Bill of Complaint with
adultery as

the basis.

On January 21, 2003, wife filed a notice that on January 23,
2003 she would move the

trial court to enter a final decree of divorce. Wife’s attorney
certified that a copy of the notice

was mailed to James on January 15, 2003.

On January 23, 2003, the trial court heard and granted James’s
motion to withdraw. The

trial court then appointed Andrew L. Wilder to act as guardian ad
litem
.

On January 24, 2003, wife’s attorney filed another notice,
advising Wilder that she would

move for entry of the divorce decree on January 29, 2003. Wife’s
attorney certified that she

mailed a copy of that notice to Wilder on January 23, 2003.

On January 29, 2003, the trial court conducted a hearing on
wife’s motion to enter a

decree of divorce. It entered the decree that day. In it, the
trial court recited the following:

It appearing to the Court that the parties were married to each
other

on June 10, 1989 in the City of Charlottesville, Virginia; that
the

Complainant [wife] is an actual bona fide resident of and

domiciled in the state of Virginia and has been such for at
least six

months prior preceding the commencement of this suit; that both

parties are over the age of eighteen (18) years; that neither of
the

parties is a member of the Armed forces of the United States;
that

the parties last cohabited as husband and wife in the City of

Charlottesville, Virginia; that there was one child born of the

marriage, . . . born on July 22, 1992; that the parties
separated on

June 1, 2001, and have lived separate and apart without

cohabitation and without interruption since that date.

The trial court then decreed that "the parties be, and
hereby are, divorced on the grounds

of living separate and apart without cohabitation and without
interruption for more than one

year."

Wilder signed the January 29, 2003 order under the typed phrase,
"Seen and agreed."

On February 6, 2003, husband filed a pro se notice of
appeal appealing the divorce

decree entered on January 29, 2003.

Discussion

1. Admissibility and Use of Deposition Testimony

Rule 5A:18 states 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 Rule 5A:18 is to "afford[] ‘the trial court an opportunity to rule

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

Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4
(1991) (quoting Weidman v.

Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).

Rule 5A:18 "applies equally to both pro se litigants
and those who are represented by

counsel." Newsome v. Newsome, 18 Va. App. 22, 24-25, 441
S.E.2d 346, 347 (1994)

[A party] may meet the mandates of Rule 5A:18 in many ways.

For instance, [he] may make clear the ground for his objection
in a

motion to strike the evidence or in closing argument. [He] may

also state the grounds therefor during a motion to set aside the

verdict or a motion to reconsider. Likewise, [a party] 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 v. Lee, 12 Va. App. 512, 515-16, 404 S.E.2d 736, 738 (1991) (en
banc)
(citations omitted).

The record demonstrates that the trial court appointed a
guardian ad litem to represent

husband on October 18, 2002. The order was signed by wife’s
attorney and husband’s guardian

ad litem. On October 30, 2002, husband’s guardian ad
litem
filed an answer to 6 of the 7

numbered statements in wife’s bill of complaint, and noted
husband’s intention to file a

cross-claim alleging adultery. Husband’s guardian ad litem was
present at the hearings on

January 23, 2003, and on January 29, 2003. Despite evidence
establishing that appellant had a

guardian ad litem at all relevant times, husband, through
the guardian ad litem, made no

objections to using the depositions or to the trial court’s
January 29, 2003 order. In fact, he

endorsed the final decree "Seen and agreed."

Therefore, our review of this issue is barred by husband’s
failure to object to the

admission of this document in evidence. Rule 5A:18.

2. Ends of Justice Exception

Husband concedes no objections were made to the use of the
deposition transcripts,

however, he contends "these omissions on the part of the
guardian ad litem, particularly given

the specific factual context of this case, do not bar
consideration of the claim of insufficient

evidence in this case."

"[T]he ends of justice exception is narrow and is to be
used sparingly." Brown v.

Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989).
"In order to avail oneself of the

exception, a defendant must affirmatively show that a
miscarriage of justice has occurred."

Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269,
272 (1997) (citing Mounce

v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744
(1987)).

The procedural background of this case does not support
appellant’s contention that the

ends of justice should apply. Husband timely received notice of
entry of the final divorce decree

because on February 6, 2003, while the matter still remained
within the trial court’s jurisdiction,

husband, acting pro se, filed a notice of appeal. Thus,
husband passed up an opportunity to file,

personally or through his guardian ad litem, a motion to
reconsider entry of the decree and raise

the argument he now raises for the first time on appeal.

Husband relies, in part, upon the proscription in Rule 4(a)(6)
that "No deposition shall be

read in any action against a person under a disability unless it
be taken in the presence of the

guardian ad litem appointed or attorney serving pursuant to ?
8.01-9, or upon questions agreed

on by the guardian or attorney before the taking." In
Khanna v. Dominion Bank of Northern

Virginia, 237 Va. 242, 377 S.E.2d 378 (1989), defendant Khanna
contended "the trial court

improperly based entry of summary judgment on the original claim
upon discovery deposition

testimony in violation of [inter alia,] . . . Rule
4:7(e)." Id. at 246 n.[1],
377 S.E.2d at 381 n.[1].

Because "[t]his issue was not raised in the trial
court," the Supreme Court refused "to entertain it

for the first time on appeal." Id. Like Rule 4:7(a)(6),
Rule 4:7(e) contains an express prohibition

against the admission and use of depositions except under
certain circumstances.[2]Thus,
the

language in the Rule neither obviated the requirements of nor
prevented application of Rule

5A:18.

Although husband alerted the trial court in his October 29, 2002
answer that wife made

untrue statements in her bill of complaint and he intended to
file a cross-claim, husband failed to

advise the trial court or this Court what statements were untrue
and he failed to file a cross-bill to

show his basis for alleging adultery. Moreover, husband has
failed to explain how the

introduction of such evidence prejudiced him. See Doan v.
Commonwealth, 15 Va. App. 87,

94-95, 422 S.E.2d 398, 402 (1992) (refusing to address
defendant’s objection to admission of

transcript of codefendant’s statement, noting introduction of
such evidence did not prejudice

Doan). The sole objection raised by husband in the trial court
was contained in his October 30,

2002 answer filed by his guardian ad litem. In that
answer, husband objected to statement

number 5 in wife’s bill of complaint, by including the word
"DENY." This one-word denial

addressed the following statement in wife’s bill of complaint:
"That the parties are domiciled in

and have been actual bona fide residents of the State of
Virginia for more than six months next

preceding the commencement of this suit." On appeal,
however, husband does not contest the

truth of that statement, which objection was the only one he
raised in the trial court.

That husband sought to allege adultery had no effect on the
validity of wife’s request for a

divorce on no-fault grounds or on her assertion that the parties
have lived separate and apart for

the statutorily required length of time. Other than his
unsupported assertion, appellant presented

no evidence of adultery and no evidence to rebut the information
contained in the depositions by

wife and her witness. Thus, he has failed to demonstrate that
his rights were prejudiced or that a

miscarriage of justice occurred.

Husband failed to object to admission and use of the
depositions. He proffered no

argument or evidence demonstrating any basis for attacking the
deposition testimony.

Accordingly, neither "good cause" nor "the ends
of justice" exceptions to Rule 5A:18 require

consideration of the issue. See Mounce v. Commonwealth, 4 Va.
App. 433, 436, 357 S.E.2d

742, 744 (1987). Accordingly, we summarily affirm the trial
court.

Affirmed.

 

FOOTNOTES:

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

 

[2]Rule 4:7(e)
provides:

No motion for summary judgment in any action at law or to strike

the evidence shall be sustained when based in whole or in part

upon any depositions under Rule 4:5, unless such depositions are

received in evidence under Rule 4:7(a)(4) or all parties to the
suit

or action shall agree that such deposition may be so used.


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