Opinion
Record No. 1814-92-3
October 12, 1993
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY DUNCAN M. BYRD, JR., JUDGE.
William H. Cleaveland (Rider, Thomas, Cleaveland, Ferris Eakin, on briefs), for appellant.
William A. Parks, Jr. (Parks Vaught, on brief), for appellee.
Present: Judges Koontz, Elder and Fitzpatrick.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This case arises out of a divorce proceeding filed October 19, 1990 by the appellant, Katherine Dora Nolf Humphries ("the wife"), and a subsequent cross-bill for divorce filed by Carrol Eugene Humphries ("the husband"). The initial complaint alleged constructive desertion by the husband. The cross-bill alleged actual desertion by the wife. The Circuit Court of Alleghany County granted a divorce a vinculo matrimonii on August 19, 1992 on the ground of the wife's actual desertion. The decree included a determination and division of marital property and further stated that the wife had no right to spousal support. From these findings the wife now appeals. Because the wife failed in her duty as appellant to provide this Court with a complete record of the proceedings below, we affirm the action of the chancellor without reaching the merits of the case.
The principal issue in this appeal centers on whether the chancellor excluded evidence of the value of the husband's business interests and pension rights in a final hearing, thereby prejudicing the wife's rights in determining equitable distribution and spousal support. During the course of litigation, significant disputes arose as to the valuation of marital property, especially with respect to the value of the husband's business as an independent agent for the State Farm Insurance group. On April 21, 1992, by letter to counsel for both parties, the chancellor stated that "this matter is mature for a final decision." He stressed that in the final hearing the court would not entertain further argument on adding items, specifically mentioning the value of the husband's business, to the valuation and classification schedules. This hearing occurred on June 5, 1992.
As noted above, the chancellor determined in the final decree that the wife should not receive spousal support and terminated a temporary support order. The final decree also contained a valuation of separate and marital property, with a division of the latter.
The wife filed an objection to the final decree, noting exceptions to the failure of the court to consider classification and valuation of the husband's business and objecting to the ground of divorce and the failure to award spousal support. Thereafter, the wife filed this appeal. The wife failed to file transcripts of the proceedings or a statement of facts with the trial court within the time allotted time in Rule 5A:8.
The wife contends that the transcript of the June 5, 1992 hearing is not essential to the determination of the issues presented in this appeal. We disagree. Although the record suggests that the chancellor would limit the purpose of the June 5 hearing, we do not know what actually occurred at that hearing without a transcript or reliable statement of facts.Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992). At the very least, we need to know that the wife proffered the evidence that she now claims the chancellor refused to receive. It may be that no proffer was made; it may be that the evidence was, in fact, received.
The wife further argues that the husband's failure to assert that events at the June 5 hearing resolved the questions of valuation of the marital and separate property relieves her of the duty to make the record complete. We disagree. "[T]he burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred."Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). Without that record, we will presume the actions of the chancellor to be proper. Twardy, 14 Va. App. at 658, 419 S.E.2d at 852.
If evidence presented at the June 5 hearing would support the actions of the chancellor in concluding that the wife was not entitled to a greater or different valuation or classification of the husband's property, we would be required to affirm it.Id. Without a timely filed transcript of the hearing or statement of facts, we are unable to determine if such evidence was presented. The absence of such a transcript as part of our record was not due to any action or lack of action by the husband. He was entitled to rely upon the assertion by the wife in her notice of appeal that she would file the transcript upon which she would need to rely. See id.
Review of the other issues raised by the wife is equally hindered by the lack of a complete record. See Barnes v. City of Newport News, 9 Va. App. 466, 469, 389 S.E.2d 481, 483 (1990). Unable to address fully the merits of the appeal, we must affirm the chancellor's decision. Affirmed.
Arguably, the record contains sufficient information for the Court to address one of the wife's issues. The wife asserts that the chancellor erred in awarding the husband a divorce based on actual desertion. The wife contends that she was justified in leaving the marital home and held a good faith belief that the husband's actions constituted a constructive abandonment. Apart from the fact that any deficit in the record limits our ability to fully review the issue on the merits, those facts disclosed in the incomplete record support the chancellor's finding. Although it is true that the desire to separate, even to terminate the marriage, is not synonymous with an intent to desert the marriage, Dexter v. Dexter, 7 Va. App. 36, 43, 371 S.E.2d 816, 819 (1988), the facts here show that the wife had already filed for divorce at the time she claims the couple arrived at a mutual agreement to separate. Moreover, her claim that the husband's treatment of her constituted constructive abandonment, justifying her desertion of the marriage, is not supported by the testimony of her own children from a former marriage. We will not set aside the chancellor's judgment unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it. Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986).