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Home / Family Law in Virginia / Preserving issues for appellate review in the Court of Appeals

Preserving issues for appellate review in the Court of Appeals

By Brandy M. Poss

aginglawyer1_mainIn most cases, a party’s objections will not be preserved for appeal if the order is simply endorsed “seen and objected to.” Likewise, it is not sufficient to state the trial court’s ruling is contrary to the law and evidence. Objections must be stated with specificity at the time of the trial court’s ruling.

Rule 5A:18

Rule 5A:18 of the Rules of Court statesm “No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty 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 requirements of Rule 5A:18 are applied in all cases – including divorce matters. Lee v. Lee12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991). In Lee, the Court of Appeals affirmed the trial court’s ruling in a divorce matter because the questions raised on appeal were not preserved for appellate review. On appeal, counsel for both parties agreed that it was their local practice not to object with specificity to a trial court’s final decision in a divorce case. Local practice also provided that counsel would not include specific objections in the final orderThe Court of Appeals explained the Rules of the Supreme Court may not be disregarded based upon local practice or the agreement of counsel. “Economy, both of litigation costs and of judicial time, requires that we enforce Rule 5A:18 in all cases.” Lee v. Lee, 394 S.E.2d 490, 491 (Va. Ct. App. Jun. 5, 1990), aff’d en banc Lee v. Lee12 Va. App. 512, 404 S.E.2d 736 (1991).

The purpose behind Rule 5A:18 is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary.” Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989). “The purpose of this rule is to allow correction of an error if possible during the trial, thereby avoiding the necessity of mistrials and reversals. To hold otherwise would invite parties to remain silent at trial, possibly resulting in the trial court committing needless error.” Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). “A perhaps more compelling reason for the rule is that it is unfair to the opposing party, who may have been able to offer an alternative to the objectionable ruling, but did not do so, believing there was no problem.” Lee v. Lee394 S.E.2d at 491.

In most cases, you can comply with the requirements of Rule 5A:18 by stating your objection at the time of the ruling; stating the objection in a motion to strike; stating the objection in closing argument; stating the objection in a motion to reconsider; or including the objection in the final order. See Lee, 12 Va. at 515-16, 404 S.E.2d at 738. However, objections to the admissibility of evidence must be made when the evidence is presented. “A litigant may not, in a motion to strike [the evidence], raise for the first time a question of admissibility of evidence. Such motions deal with the sufficiency rather than the admissibility of evidence.” Bitar V. Rahman, 272 Va. 130, 140, 630 S.E.2d 319, 325 (2006).

If you are presenting your objections through a motion to reconsider, you must make sure that the record reflects the trial court was aware of the objections and had an opportunity to rule on them before the 21-day time period of Rule 1:1 expires. Simply filing the motion to reconsider does not preserve your objections. You must obtain a timely ruling on the motion to preserve the issue for appealSee Brandon v. Cox, 284 Va. 251, 255-256, 736 S.E.2d 695, 697 (2012).

The imperfect objection

If you find yourself doubting that a certain objection has been property preserved, all hope may not be lost. One of the following exceptions or explanations may help.

Virginia Code § 8.01-384(A). “Formal exceptions to rulings or orders of the court shall be unnecessary; but for all purposes for which an exception has heretofore been necessary, it shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor.”

The contemporaneous objection exception in Virginia Code § 8.01-384(A) says, “[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him on motion for a new trial or on appeal.” Va. Code Ann. § 8.01-384. If a litigant, through no fault of his own, does not have an opportunity to object to a ruling when it is made, it is not necessary to file a motion to reconsider to preserve an issue for appellate review. See Commonwealth v. Amos, 287 Va. 301, 306-307, 754 S.E.2d 304, 307 (2014).

The rule further states, No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again in order to preserve his right to appeal, challenge, or move for reconsideration of, a ruling, order, or action of the court. No party shall be deemed to have agreed to, or acquiesced in, any written order of a trial court so as to forfeit his right to contest such order on appeal except by express written agreement in his endorsement of the order. Arguments made at trial via written pleading, memorandum, recital of objections in a final order, oral argument reduced to transcript, or agreed written statements of facts shall, unless expressly withdrawn or waived, be deemed preserved therein for assertion on appeal.

The Good Cause and Ends of Justice Exceptions. When an assignment of error is not preserved in the trial court, the appellant is required to state in his or her opening brief why the good cause and/or ends of justice exceptions apply. Va. Sup. Ct. R. 5A:20(e).

“The ends of justice exception is narrow and is to be used sparingly when an error at trial is clear, substantial and material. In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred, the appeal court stated in Michaels v. Commonwealth, 32 Va. App. 601, 608, 529 S.E.2d 822, 826 (2000).

The good cause exception applies when a party did not have the opportunity to object to an alleged error during the trial court proceedings. Flanagan v. Commonwealth, 58 Va. App. 681, 694, 714 S.E.2d 212, 218 (2011). It does not apply when a litigant had the opportunity to object but elected not to do so, Perry v. Commonwealth, 58 Va. App. 655, 667, 712 S.E.2d 765, 771 (2011) (citation omitted), was merely taken by surprise by the trial courts decision, Jones v. Commonwealth, 194 Va. 273, 280, 72 S.E.2d 693, 697 (1952), or failed to obtain a ruling from a trial court on a motion or objection asserted before, during,  or after trial. Nor does good cause exist when a litigant concludes an objection would be futile because the trial court had already considered the issue in dispute. Luck v. Commonwealth, 32 Va. App. 827, 834, 531 S.E.2d 41, 44 (2000).” Gudino v. Gudino, Unpublished, Record No., 2016-11-2, 2012 Va. App. LEXIS 195, *10-12, 2012 WL 2094058 (Va. Ct. App. June 12, 2012).

Seen and objected to. A statement of “seen and objected to” may be sufficient to satisfy the requirements of Rule 5A:18 if the trial court’s ruling was narrow enough that the basis for the appellant’s objection is obvious. See Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000).

Practice pointers

In addition to the requirements regarding contemporaneous and specific objections, there are a number of other appellate roadblocks of which the family law practitioner must be aware.

Objections to the Exclusion of Evidence. Virginia Code § 8.01-678 states, “When it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be arrested or reversed . . . For any other defect, imperfection, or omission in the record, or for any error committed on the trial. Even if a trial court errs in excluding evidence, the error will not serve as a basis to reverse the decision unless the decision to exclude the evidence prejudiced the appellant.

Accordingly, a trial court’s decision to exclude evidence cannot be addressed on appeal unless the record contains a proffer of the evidence. The Court of Appeals cannot determine if the trial court abused its discretion in excluding evidence if the Court does not know what the evidence would have been. A proffer allows the Court of Appeals to examine the admissibility of the proposed evidence and whether the exclusion of the evidence prejudiced the appellant. The proffer requirement ensures that, as required by Virginia Code § 8.01-678, an appellate court only reverses trial court error that actually prejudiced the appellant. See Ray v. Commonwealth, 55 Va. App. 647, 649-650, 688 S.E.2d 879, 880-881 (2010).

A Litigant’s Obligation to Obtain a Ruling. It is imperative that attorneys ensure the record from the trial court contains a ruling on the motions at issue on appeal. A party cannot argue on appeal that the circuit court erred in failing to grant a particular motion if the record does not contain a ruling on the motion. See Makoui v. Makoui, 2011 Va. App. LEXIS 360, *18 (Va. Ct. App. 2011) (“[S]ettled principles provide a party moving the court to take some action bears the burden of obtaining a ruling on that motion. When the party fails to do so, ‘there is no ruling for us to review.’”), citing Fisher v. Commonwealth, 16 Va. App. 447, 454-55, 431 S.E.2d 886, 890 (1993).

Motions to Strike.[A] defendant is barred on appeal from challenging the sufficiency of the evidence when he fails to renew his motion to strike the evidence after presenting his case.” Sylvestre v. Commonwealth, 10 Va. App. 253, 255, 391 S.E2d 336, 338 (1990). If a defendant introduces evidence on his own behalf after the trial court overrules his motion to strike at the conclusion of the plaintiff’s case in chief, the defendant “waives his right to stand upon such motion. Plaintiff’s case may be strengthened by defendant’s evidence. If thereafter a motion is made to strike the evidence or to set aside the verdict, the court must consider the entire record in reaching its conclusion.” Murillo-Rodriguez v. Commonwealth, 279 Va. 64, 73, 688 S.E.2d 199, 2014 (2010).

At the conclusion of all the evidence, the defendant must renew his motion to strike, “or in a bench trial, at the very least, he must reassert the issues raised in his original motion to strike in his closing argument in order to preserve the issues for appeal.” McDowell v. Commonwealth, 282 Va. 341, 342, 718, S.eE.2d 772, 774 (2011).

Assignments of Error. Even if an objection is properly preserved, the issue will be waived if not included in the appellant’s Assignments of Error. See Rule 5A:20(c); Fox v. Fox, 61, Va. App. 185, 202, 734 S.E.2d 662, 670 (2012).


possPrandy M. Poss

Is a graduate of Wake Forest University and the University of Richmond’s T.C Williams School of Law, where she earned her law degree, cum laude, in 2003. She was a senior staff member of the Law Review. She has published numerous articles on family law and presented CLE seminars on divorce and adoption, among other topics. She was named a Rising Star by Super Lawyers every year from 2009 to 2013 and she was named to Super Lawyers every year from 2014 to 2018.

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