Opinion
Record No. 0836-93-1
Decided: November 22, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, Thomas R. McNamara, Judge
Affirmed.
William F. Burnside for appellant.
Anthony L. Montagna, Jr., for appellee.
Present: Judges Benton, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Charlyne Hampton, formerly Charlyne Murphy (wife), and Allen Murphy (husband) were divorced by decree of the trial court which included provisions for spousal support to wife and equitable distribution of the marital estate. Wife complains on appeal that the trial court erroneously declined to award her (1) a "monetary sum" and "retroactive" interest in husband's retirement benefit, (2) lump sum spousal support and adequate, periodic spousal support, and (3) attorney's fees. We disagree and affirm the decree.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issues on appeal.
This matter was referred by the trial court to a commissioner in chancery, who conducted several ore tenus hearings and filed a written report of his findings and recommendations with the court. Both parties timely excepted to the report in numerous particulars, and counsel apparently argued these differences ore tenus before the trial judge on two occasions. However, no transcripts of these proceedings are a part of the record.
Based upon recitations in the decree.
In its subsequent decree, the court partially sustained wife's exceptions but otherwise expressly confirmed the commissioner's report. Additionally, following a lengthy summary of relevant factual findings and related orders, the decree recites that the parties objected "[t]o all rulings which are adverse to their respective positions . . ., based on abuse of discretion." (Emphasis added.)
Wife's counsel endorsed the decree "Seen, objected, excepted [sic]."
Rule 5A:18 precludes appellate review of any "ruling of the trial court . . . unless the objection was stated together with the grounds therefor at the time of the ruling." Rule 5A:18. An "issue . . . not presented to the trial court" will not be considered "for the first time on appeal." Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). This rule ensures both the trial court and the opposing party an opportunity to consider, address, and, perhaps, resolve an objectionable ruling in a timely fashion, thereby minimizing appeals, retrials, and attendant delays. Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc). "Counsel may meet the mandates of Rule 5A:18 in many ways," id. at 515, 404 S.E.2d at 738; Code Sec. 8.01-384, but the record must establish that the issue was presented before the trial court to properly preserve it for appeal. Griffin v. Sprouse, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (August 30, 1994); Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991). Further, because "[t]he trial court's judgment is presumed to be correct," an appellant must provide a record on appeal sufficient to establish error. Twardy v. Twardy, 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992) (en banc).
Here, the decree plainly recites that all objections to "rulings" of the trial court were "based on abuse[s] of discretion." Clearly, wife's general exception to the entire decree, expressed in the endorsement of her counsel, did not challenge this finding or otherwise raise a specific objection, with attendant grounds, to the court. Therefore, without a transcript of the several proceedings before the trial court during which wife's exceptions to the commissioner's report were presumably argued, or other record of wife's contentions before the court, we are unable to find error in its limitation of her objections. As a result, our review of the decree must be confined to those issues which relate to discretionary rulings of the trial judge.
In undertaking this limited review, we assume, without deciding, that wife's written exceptions to the report combined with the recitations in the decree adequately preserve the discretionary rulings for appeal.
Wife contends the court abused its discretion in "not awarding . . . more spousal support." It is well established that "[d]ecisions regarding 'spousal . . . support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence.' " Konefal v. Konefal, ___ Va. App. ___ ___, 446 S.E.2d 153, 154 (1994) (quoting Floyd v. Floyd, ___ Va. App. ___, ___, 436 S.E.2d 457, 458 (1993)). In fixing the amount of spousal support, the court must consider those factors enumerated in Code Sec. 20-107.1, but the chancellor need not recite specific findings from the evidence relative to each factor or assign the weight accorded to it. Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986). We presume that a trial judge properly based his decision on the evidence presented. Mason v. Commonwealth, 219 Va. 1091, 1097-98, 254 S.E.2d 116, 120, cert. denied, 444 U.S. 919 (1979). Here, the record discloses substantial evidence pertaining to the statutory factors in support of the award, and it was not otherwise plainly wrong. See Gibson v. Gibson, 5 Va. App. 426, 435, 364 S.E.2d 518, 523 (1988).
A like standard of review governs our consideration of the court's refusal to award attorney's fees to wife. See Ingram v. Ingram, 217 Va. 27, 29, 225 S.E.2d 362, 364 (1976); Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). Again, the economic and other evidence reflected in the record provided ample support for the court's ruling and suggests no abuse of discretion.
Accordingly, we affirm the decree.
Affirmed.
Because I believe that the record adequately reflects that each of the issues on appeal was raised by the wife's exceptions to the commissioner's report, I would not hold that the appeal is procedurally defaulted or limited in any manner. See Code Sec. 8.01-384. I would, however, affirm the trial judge's rulings on each issue raised by the wife.
The record does not establish that the trial judge erred in his rulings concerning the monetary award or a lump sum spousal support award. The parties were married for only six and a half years before they separated. The financial and nonmonetary contributions of the parties to the marriage were virtually equal. None of the other factors in Code Sec. 20-107.3 demonstrate that the trial judge erred in awarding the wife 7.7% of the lump sum retirement distribution that husband received and 7.7% of the husband's monthly net disposable retirement pay. In addition to receiving those payments, the wife retained property titled in her name. The record does not demonstrate that the trial judge erred.
The record proved that the husband has retired. The wife is still employed. The wife's income is not significantly less than the husband's income. Although the trial judge did not order the husband to pay a lump sum spousal support award, the trial judge did order the husband to pay monthly spousal support. The record does not establish that any "special circumstances or compelling reasons" required a lump sum spousal support award. Blank v. Blank, 10 Va. App. 1, 6-7, 389 S.E.2d 723, 725 (1990).
For the reasons stated in the majority opinion, I agree that the trial judge did not otherwise abuse his discretion in setting the monthly spousal support payment and in refusing to award attorney fees. Therefore, for all of these reasons I too would affirm the judgment.