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WOODSON v. WOODSON



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


WOODSON

v.

WOODSON


NOVEMBER 16, 1999

Record No. 1257-99-3

ANTHONY CARL WOODSON

v.

BERNADETTE ELIZA BANNISTER WOODSON

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY

Ray W. Grubbs, Judge

Present: Judges Bray, Annunziata and Frank

MEMORANDUM OPINION* PER CURIAM

(Anthony Carl Woodson, pro se, on
briefs).

(William C. Maxwell; Jolly, Place, Fralin &
Prillaman, P.C., on brief), for appellee.


Anthony Carl Woodson (husband) appeals from the
final decree of divorce entered by the Montgomery County Circuit
Court (trial court). Husband contends that the trial court (1)
erred by denying him a fair and impartial trial; (2) erred by
granting Bernadette Eliza Bannister Woodson (wife) a divorce
based upon the parties’ separation for more than six months; (3)
abused its discretion in entering the pendente lite
support order; (4) abused its discretion in awarding excessive
temporary and permanent spousal support; (5) erred in granting
wife an excessive percentage of his police pension; (6) erred in
finding that the parties had amicably divided all marital
personal property; and (7) erred by setting the spousal support
arrearage husband owed where husband had declared bankruptcy, and
by not coordinating the arrearage issue with the bankruptcy
court. Wife contends that the appeal should be dismissed based on
husband’s failure to comply with Rule 5A:8. Upon reviewing the
record and the briefs, we find the record inadequate to address
issues three, four and seven and dismiss those issues. We
conclude that issues one, two, five and six are without merit and
summarily affirm the decision of the trial court. See Rule
5A:27.

Wife filed her bill of complaint for divorce on
April 10, 1996. Following a May 30, 1996 hearing, and without
objection from husband, the trial court entered an order setting
the amount of temporary spousal support husband was to pay wife.
On September 11, 1997, the trial court entered an order setting
husband’s spousal support arrearage at $16,839.18. Counsel for
husband signed the order "Seen and objected to – The
payment of arrears is subject to, and contingent upon, the
approval of the Bankruptcy Court referenced in paragraph #1
above."

On March 4, 1999, after appellant relocated to
South Carolina, the trial court entered an order relieving
husband’s attorney, and ordering that, in the future, all service
upon husband would be by first class United States mail to
husband’s South Carolina address.

On March 31, 1999, following an ore tenus
hearing that husband did not attend,
[1] the trial court entered an amended order setting
husband’s spousal support arrearage at $19,829.81. The trial
court waived the necessity of husband’s signature on the order,
pursuant to Rule 1:13.

On April 8, 1999, wife sent husband a notice to
take depositions, which were conducted on April 23, 1999. Husband
did not appear for the depositions. On May 5, 1999, wife
submitted a final decree of divorce to the trial court, which the
court signed on May 12, 1999.

Husband concedes that he received a copy of the
decree on May 21, 1999. He did not file any objection to the
decree with the trial court, but instead, on June 3, 1999, filed
a notice of appeal. Husband mailed a statement of facts to the
trial court on July 27, 1999, but because he sent it to the wrong
address, the statement was not filed with the clerk’s office
until August 10, 1999.

The procedures for preparing a written
statement of facts for the appellate record are governed by Rule
5A:8. See Mayhood v. Mayhood, 4 Va. App. 365,
368-69, 358 S.E.2d 182, 184 (1987). Rule 5A:8(c)(1) requires that
the statement of facts be filed in the office of the clerk of the
trial court within fifty-five days of entry of the final order of
judgment. This Court has established a firm policy concerning the
filing of transcripts and statements of facts:

"If . . . the transcript [or statement of
facts] is indispensable to the determination of the case, then
the requirements for making the transcript a part of the record
on appeal must be strictly adhered to. This Court has no
authority to make exceptions to the filing requirements set out
in the Rules."

Anderson v. Commonwealth, 13 Va. App.
506, 508, 413 S.E.2d 75, 77 (1992) (quoting Turner v.
Commonwealth
, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986)).

"If we determine that the [statement of
facts] is indispensable and is not a part of the record before us
for review, we must dismiss the appeal on the ground that the
record on appeal is insufficient to fairly and accurately
determine the issues presented." Turner, 2 Va. App.
at 99, 341 S.E.2d at 402.

The trial court entered the final decree on May
12, 1999. Thus, the statement of facts had to be filed in the
trial court’s clerk’s office no later than July 6, 1999. Husband
failed, therefore, to comply with Rule 5A:8(c). Moreover, because
husband seeks to invoke the ends of justice exception to Rule
5A:18, and because what transpired at the hearings pertaining to
temporary spousal support and the subsequent spousal support
arrearages might be relevant to such a determination, we conclude
that the record is insufficient to address issues three, four and
seven.

We conclude, however, that the statement of
facts is not indispensable to adjudicating the remaining issues
husband raises on appeal. No hearing was held in connection with
the entry of the final decree, and the evidence relied upon in
entering the decree was in the form of depositions, which are
contained in the record.

"We will not consider for the first time
on appeal an issue that was not preserved in the trial
court." Martin v. Martin, 27 Va. App. 745, 752, 501
S.E.2d 450, 453 (1998). See Rule 5A:18.

Husband concedes that he did not preserve in
the trial court any of the issues he now seeks to raise on
appeal. Instead of seeking to convince the trial court to set
aside the final decree, husband elected to by-pass that court and
file his notice of appeal. Thus, Rule 5A:18 bars our
consideration of issues one, two, five and six. Moreover, the
record does not reflect any reason to invoke the good cause or
ends of justice exceptions to Rule 5A:18.

Accordingly, the judgment of the trial court is
summarily affirmed.

Affirmed in part and dismissed in part.

* Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.

 

FOOTNOTES:

[1] A copy of the notice for the
hearing, which was held on March 4, 1999, was mailed to husband’s
attorney on February 4, 1999.

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