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No transcript bars appeal of dismissed complaint

Virginia Lawyers Weekly//October 3, 2023

No transcript bars appeal of dismissed complaint

Virginia Lawyers Weekly//October 3, 2023//

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Claims arising from a contest between the decedent’s estate and his ex-wife concerning rights to a survivor annuity benefit cannot be heard on appeal because appellant, the estate executor, has not filed necessary transcripts of a circuit court hearing.


Ridley and Dr. Smith divorced in 1999. Their property settlement agreement provided that Ridley would relinquish her rights to Dr. Smith’s survivor annuity benefit.

“The PSA further provided that when Dr. Smith died, “Ridley would ‘permanently and irrevocably assign and direct the benefit and payment of this survivor annuity directly to’ their son, Smith [who is the executor of Dr. Smith’s estate].

“Ridley agreed to sign ‘any and all documents necessary’ to ensure that Smith received Dr. Smith’s survivor annuity during Ridley’s lifetime.”

After Dr. Smith died in April 2019, the “State of New Jersey Division of Pensions and Benefits notified Ridley in June 2019 that she was still the designated beneficiary of Dr. Smith’s retirement allowance, prompting Smith to file his complaint alleging unjust enrichment and breach of contract.

“Smith also filed a motion to enforce the court’s order. Ridley filed a demurrer to Smith’s complaint. …

“[T]he circuit court entered an order denying Smith’s motion to enforce the court’s order. The circuit court concluded that Dr. Smith’s retirement plan was governed by the laws of the State of New Jersey that ‘provide[d] for an exclusive means of designating the recipient of the survivor benefit.’

“The circuit court held that Smith may not intervene in the divorce proceeding between Dr. Smith and Ridley upon Dr. Smith’s death in order to change the designation of beneficiary to the retirement plan. In this same order, the circuit court overruled Ridley’s demurrer to both counts in the complaint. The circuit court continued the matter.”

Smith did not cooperate with Ridley’s discovery requests. After a hearing, the circuit court granted Ridley’s motion to compel and sanctioned Smith when he failed to comply.

“By separate order, the circuit court also granted Ridley’s motion for summary judgment thereby dismissing Smith’s complaint with prejudice. Smith appealed.”

No transcript

“Smith challenges the circuit court’s order dismissing his complaint with prejudice. Smith argues that he requested a jury trial, so the matter ‘cannot be dismissed or be replaced with a hearing’ without his consent.

“Smith further alleges that the circuit court erred in placing Ridley’s motions on the docket without providing him with timely and proper notice.

“The record on appeal is insufficient for this Court to reach the issues that Smith raises on appeal because he has failed to file a transcript or a written statement of facts in lieu of a transcript for the final hearing. …

“In the absence of a transcript or a written statement of facts in lieu of a transcript of the hearing, however, we are unable to consider what evidence and arguments the circuit court considered.

“Moreover, without a complete record of the arguments Smith made or the positions he took at the final hearing, we cannot know whether Smith presented the specific arguments to the circuit court that he now advances on appeal. …

“Since we also conclude that the transcript, or a written statement of facts in lieu of the transcript, from the final hearing is indispensable to a determination of Smith’s assignments of error, we are unable to consider the merits of Smith’s assignments of error, and therefore decline to do so.”


Smith, et al. v. Ridley, Record No. 1025-22-4, Sept. 12, 2023. CAV (unpublished opinion) (per curiam) From the Circuit Court of Fauquier County. (Plowman Jr.) (Edlyn Eldridge Smith, on brief), pro se. No brief for appellee. VLW 023-7-352, 6 pp.

VLW 023-7-352

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