GELLETLY v. GELLETLY


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GELLETLY

v.

GELLETLY


AUGUST 7, 2001

Record No. 2563-00-2

Present: Judges Benton, Frank and Clements

Argued at Richmond, Virginia

 

EDWIN EUGENE GELLETLY, JR.

v.

ELANA H. GELLETLY

 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Melvin R. Hughes, Jr., Judge

Edwin Eugene Gelletly, Jr., pro
se.

Eileen A. Smith (Spinella,
Owings & Shaia, on brief), for appellee.

MEMORANDUM OPINION[1] BY JUDGE
JEAN HARRISON CLEMENTS

Edwin Eugene Gelletly, Jr., (husband) appeals
from a decision of the trial court denying his motion to
terminate or reduce spousal support. Elana H. Gelletly (wife)
cross-appeals the denial of her motion for sanctions and
attorney’s fees. On appeal, husband contends the trial court
erred (1) in failing to act upon wife’s intentionally false and
misleading testimony, (2) in finding the evidence insufficient to
support his motion, (3) in refusing to admit evidence of wife’s
bankruptcy and statements in discovery, and (4) in receiving
improper and direct contact by the wife. In her cross-appeal,
wife contends the trial court abused its discretion in denying
her motion for sanctions and attorney’s fees. Each party seeks an
award of attorney’s fees and costs on appeal. Finding appellate
review procedurally barred, we affirm the decision of the trial
court. Accordingly, we dismiss wife’s motion to exclude parts of
husband’s designation of the record and deny each party’s request
for attorney’s fees and costs.

As the parties are fully conversant with the
record in this case and because this memorandum opinion carries
no precedential value, this opinion recites only those facts and
incidents of the proceedings as necessary to the parties’
understanding of the disposition of this appeal.

Our review of an appeal is restricted to the
record. Turner v. Commonwealth, 2 Va. App. 96, 99,
341 S.E.2d 400, 401 (1986). "An appellate court must dispose
of the case upon the record and cannot base its decision upon
appellant’s petition or brief, or statements of counsel in open
court. We may act only upon facts contained in the record." Smith
v. Commonwealth
, 16 Va. App. 630, 635, 432 S.E.2d 2, 6
(1993). Furthermore, we do not presume on appeal that the trial
court has erred. Indeed,

"[w]e have many times
pointed out that on appeal the judgment of the
lower court is presumed to be correct and the
burden is on the appellant to present to us a
sufficient record from which we can determine
whether the lower court has erred in the respect
complained of. If the appellant fails to do this,
the judgment will be affirmed."

Id. (quoting Justis v. Young, 202
Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)).

The trial court’s record in this case is
voluminous. However, the appendix is only twenty-one pages and
lacks nearly all the documents pertinent to this appeal,
including the final order appealed from. Upon our review of the
briefs, the appendix, and the record, we conclude that the
parties have failed to provide us with an adequate appendix or
references to the record to enable us to address the factual
issues that have been raised by both parties and determine
whether the trial court erred. "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).

Furthermore, husband has raised various issues
for the first time on appeal and has requested for the first time
specific relief in the appellate court that was not requested in
the trial court. We "will not consider an argument on appeal
which was not presented to the trial court." Ohree v.
Commonwealth
, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1988).

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. In addition, a specific,
contemporaneous objection gives the opposing
party the opportunity to meet the objection at
that stage of the proceeding.

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

For these reasons, we are barred from
considering the issues before us. Accordingly, we affirm the
trial court’s judgment.

Affirmed.

FOOTNOTES:

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

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