Opinion
Record No. 1919-06-4.
September 25, 2007.
Appeal From The Circuit Court Of Arlington County, Benjamin N.A. Kendrick, Judge.
Corey L. Poindexter (Law Offices of Owaiian M. Jones, on brief), for appellant.
Elaine M. Vadas (Grenadier, Anderson, Simpson, Starace Duffett, P.C., on brief), for appellee.
Present: Judges Benton, Elder and Beales.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Walter H.C. Drakeford (appellant) appeals from the issuance of a rule to show cause and a subsequent finding of contempt for failure to pay an installment of a court-ordered monetary property award. Appellant contends the trial court violated Rule 5A:8 when it adopted appellee's written statement of facts without first giving him adequate opportunity to file his objections. Appellant also contends that the issuance of the rule to show cause violated an automatic stay, entered pursuant to 11 U.S.C. § 362, in place at the time. We agree that the trial court erred by not allowing appellant fifteen days to file objections to appellee's written statement of facts, as required by Rule 5A:8, and we remand.
I.
Appellant filed a notice of appeal to this Court on August 4, 2006. On October 23, 2006, he filed and served upon appellee a written statement of facts and a notice of presentation to the trial judge scheduled for November 9, 2006. Appellee filed and served appellant with objections to those facts on October 27, 2006. Appellee, on November 7, 2006, sent a written statement of facts directly to the trial court without any prior notice to appellant. At the November 9, 2006 hearing, the trial court sustained appellee's objection to appellant's statement of facts and adopted verbatim her version of the written statement of facts.
Rule 5A:8(c) allows a written statement of facts to be made part of the record "in lieu of a transcript." But, "a written statement of facts becomes a part of the record only if all of the requirements of Rule 5A:8 are complied with by the parties and the trial judge." Mayhood v. Mayhood, 4 Va. App. 365, 368-69, 358 S.E.2d 182, 184 (1987) (emphasis added). Rule 5A:8(c)(1) requires a party filing a written statement to mail or deliver a copy "to opposing counsel accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing." Thereafter, "Any party may object to a transcript or written statement on the ground that it is erroneous or incomplete . . . within 15 days after the date the notice of filing the written statement . . . is filed in the office of the clerk of the trial court." Rule 5A:8(d).
We addressed facts similar to the case at bar in Jordan v. Jordan, 12 Va. App. 96, 402 S.E.2d 246 (1991). There,
Mr. Jordan complied with the provisions of Rule 5A:8. Thereafter, Mrs. Jordan filed her objections to the statement of facts submitted by Mr. Jordan and sent her counter-statement of facts directly to the trial judge without giving Mr. Jordan prior notice. . . . [W]ithout permitting Mr. Jordan the opportunity to file his objection to Mrs. Jordan's counter-statement of facts within the permitted fifteen days, the trial court adopted verbatim her written statement of facts.
Id. at 98, 402 S.E.2d at 247. We reversed and remanded, holding "we do not have the proper record before us and without a proper record, we cannot make a merit determination of the remaining issues raised in this appeal." Id.
Likewise, here appellant complied with Rule 5A:8 by filing and serving upon appellee a written statement of facts and a notice of presentation to the trial court. Appellee, like Mrs. Jordan, properly filed objections to appellant's written statement but improperly sent her written statement of facts directly to the trial judge two days before the scheduled hearing without giving appellant prior notice. Appellant, therefore, did not have the opportunity to file objections within the fifteen-day period afforded by Rule 5A:8, and the trial court, consequently, erred by adopting verbatim appellee's statement of facts without giving appellant the opportunity to file objections. As noted above, both the parties and the trial court must comply with the requirements of Rule 5A:8 if a written statement of facts is to become a part of the record on appeal. Mayhood, 4 Va. App. at 368-69, 358 S.E.2d at 184. Because appellee in this case did not comply with Rule 5A:8 and the trial court erroneously adopted her statement of facts without giving appellant adequate opportunity to file objections, we hold that we do not have a proper record before us, and accordingly, we cannot decide the remaining issues in this case.
II.
For the foregoing reasons, we remand this case for a written statement of facts to be entered (and any other relevant proceedings) consistent with this opinion. Remanded.
Appellant asks this Court to "find that the trial court's ruling on the show cause be and hereby [is] void," as its entry violated an automatic stay in place at the time. Despite the lack of a proper record to fully address this question, we recognize that at present, "Neither the Supreme Court nor the Fourth Circuit has squarely addressed whether a transfer in violation of the stay is void or voidable." Cooper v. GGGR Invs., LLC, 334 B.R. 179, 193 (2005). See also Winters v. George Mason Bank, 94 F.3d 130, 136 (4th Cir. 1996) (declining to address "whether it will follow those circuits who find the automatic stay renders actions void, or those circuits who find the automatic stay renders an action merely voidable"). Furthermore, this Court would be unable to fashion any other remedy for an alleged violation of an automatic stay (assuming a violation can be proven under federal bankruptcy law), as the proper forum for such relief is federal bankruptcy court. See 11 U.S.C. § 362(k)(1) (providing for damages resulting from a willful violation of an automatic stay). See also Meadows v. Comm'r, 405 F.3d 949, 954 (11th Cir. 2005) (per curiam) ("actions against creditors for violations of the automatic stay are to be brought in the bankruptcy court . . . it is clear that the bankruptcy court is more knowledgeable . . . about the scope and effect of the automatic stay and about appropriate remedies").