Opinion
Record No. 1815-92-2
April 6, 1993
FROM THE CIRCUIT COURT OF ORANGE COUNTY LLOYD C. SULLENBERGER, JUDGE.
(Sarah C. Honenberger; Shackelford, Honenberger, Thomas Willis, on brief), for appellant.
No brief for appellee.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and opening brief, we conclude that the appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Milton F. Semer (husband) petitioned the trial court to modify spousal support paid to his former wife, Charlene Semer (wife). The court, following an evidentiary hearing, reduced husband's support payment from $300 to $200 per month. Husband presents the following arguments on appeal:
I. Spousal support should be reduced (with reservations for later court review upon a material change of circumstances) when husband has retired and wife works full-time and earns more than husband.
II. Spousal support should be reduced when the passage of years for payment equals or exceeds the length of the marriage.
III. Where an agreement and final decree provide for court review and modification of spousal support, the court has the authority to order a modification to zero.
IV. Spousal support should be modified when the husband pays for the support of a critically ill adult child.
V. Income from retirement funds earned after the marriage should not be available for spousal support because the use of such income violates the equitable distribution statute.
VI. Income from a party's share of marital property should not be considered in a spousal support calculation because the use of such income violates the doctrine of res judicata.
Wife has filed with this Court a Motion for Summary Disposition, arguing that "[t]he record fails to establish that the issues appealed by Appellant were raised in the trial court by an objection with a statement of the reasons therefor, or by any other generally accepted method for preserving an assignment of error." We agree that Semer did not preserve these issues for appellate review.
Rule 5A:18 provides in pertinent part: "No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." Here, the only objection recorded by husband is his counsel's endorsement of the final decree under the phrase "Seen and Objected to." We have held that such an endorsement, without more, fails to meet the requirements of Rule 5A:18. Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) (reh'g en banc).
Husband opposes the motion for summary disposition, alleging that he raised all the issues in closing argument, thereby adequately preserving them for appeal. See Fortune v. Commonwealth, 14 Va. App. 225, 227, 416 S.E.2d 25, 27 (1992).Fortune is not controlling here, however, as the record contains neither a transcript of any part of the proceedings nor a description of the closing argument in the written statement of facts. Husband argues that it would be burdensome to require a written statement of facts to include a summary of counsel's closing arguments. This notion, even if accepted, does not excuse non-compliance with the rules. "We cannot assume that appellant's objection and reasons were proffered but not made a part of the record. Rule 5A:8 requires appellant to present a complete transcript for the Court to consider his . . . issues on appeal." Lee, 12 Va. App. at 516, 404 S.E.2d at 738.
Husband argues that wife must file her brief before such a motion can be considered, that wife should not have waited to make the motion until after husband had gone to the expense of filing his brief and appendix, and that wife acted improperly in adding items to the appendix if she intended to move for summary affirmance on this ground. We do not accept these arguments. Rule 5A:27 does not require appellee to file a brief; the sanction for an appellee's failure to file a brief is the loss of the right to oral argument. Rule 5A:26. Additionally, wife could not know what issues husband would raise on appeal before reviewing his brief, and could not be sure that the case would not proceed on its merits at the time she designated appendix items.
Rule 5A:18 allows this Court to consider a question not preserved "for good cause shown or to enable the Court of Appeals to attain the ends of justice." Our review of the record fails to indicate that invocation of either exception is appropriate. Accordingly, we affirm the decision of the trial court.
Affirmed.