Opinion
Record No. 2178-92-4
November 23, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. BRUCE BACH, JUDGE.
Laurence A. Elgin (Kenneth P. Bergquist; Vail W. Pischke, on brief), for appellant.
William T. Irelan (Hewes, Morella, Gelband Lamberton, on brief), for appellee.
Present: Chief Judge Moon, Judges Elder and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Christine Gollehon appeals from the trial court's spousal support award, alleging an abuse of discretion, and the equitable distribution award, challenging the valuation of various items of property. Ronnie G. Gollehon presents three cross-assignments of error, all procedural in nature. Because the parties are familiar with the facts, we recite only those necessary to a disposition of this appeal. For the reasons set forth below, we affirm the judgment of the trial court.
We conclude that appellee's procedural cross-assignments of error are without merit. First, we hold that failure to comply with subsection (b) of Rule 5A:8 does not invalidate the filing of a transcript which complies with subsection (a). Appellee does not allege that appellant's failure to comply with subsection (b) prejudiced him in any way, and the record makes clear that appellee's counsel had the opportunity to review the transcript and to have a portion of it corrected. Second, failure timely to designate the contents of the appendix under Rule 5A:25(d) "is not ground for dismissal if an appellant includes in his appendix everything germane to the disposition of his appeal and the appellee has not been prejudiced by the failure." Wilcox v. Lauterbach Elec. Co., 233 Va. 416, 420, 357 S.E.2d 197, 199 (1987) (citing Rhoten v. United Virginia Bank, 221 Va. 222, 225, 269 S.E.2d 781, 782-83 (1980)) (decided under Rule 5:32, which contains almost identical requirements regarding designation of the contents of the appendix). Although appellee clearly had less time to prepare his reply brief and had to include a ten-page supplemental appendix, we have no reason to believe, based on our review of the record, that these facts significantly prejudiced his ability to defend this appeal. Third, we hold that appellant properly preserved her objection to the spousal support award. Although in response to the trial judge's request to notify him if he had "committed any error," counsel for appellant stated, "I do not think you have committed any error," he then proceeded to "note my exception to the amount of the spousal support award under Lee v. Lee . . . based upon the disparity of the income." For these reasons, we may reach all issues presented by appellant.
The bulk of appellant's assignments of error relates to the trial court's valuation of various items. In reviewing the equitable distribution, we are guided by the following principles:
The chancellor is necessarily vested with broad discretion in the discharge of the duties the statute [Code § 20-107.3] imposes upon him. Unless it appears from the record that the chancellor has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the chancellor's equitable distribution award will not be reversed on appeal.
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368 (1987) (quoting Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987)). After careful review of the record, we conclude that the trial court properly admitted all challenged testimony, properly classified all disputed property, and considered all the required statutory factors in fashioning the equitable distribution. We also conclude that the award as a whole — which, based on appellant's assertions concerning the trial court's valuations, results in an award of $151,884 to husband and $138,600 to wife — is reasonable and, therefore, constitutes no abuse of discretion. See Blank v. Blank, 10 Va. App. 1, 9, 389 S.E.2d 723, 727 (1990). Appellant conceded at oral argument that she failed to object at trial to the valuation date used to value the marital share of husband's pension. Consequently, we will not consider this issue on appeal. Rule 5A:18.
We affirm the spousal support award. As long as "the chancellor has given due consideration to [the factors set forth in Code § 20-107.1], his determination will not be disturbed on appeal except for a clear abuse of discretion." Collier v. Collier, 2 Va. App. 125, 129, 341 S.E.2d 827, 829 (1986) (citation omitted). Despite appellant's assertions, the record contains no evidence that the chancellor found wife to be underemployed, that he imputed income to her on that basis, or that he failed to include in husband's income any rents received from properties he owned. Finally, it was uncontested that appellee's monthly expenses exceeded his income by $728. We, therefore, cannot conclude that the chancellor abused his discretion in determining the amount of spousal support to be awarded.
For these reasons, we affirm the trial court's disposition of this case.
Affirmed.