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In Lee v. Lee, 394 S.E.2d 490 (1990) (rehearing en banc granted July 18, 1990), this Court determined that counsel's endorsement of the trial court's order as "seen and objected to" does not adequately preserve issues in a divorce proceeding for appellate review.
Summary of this case from Garland v. GarlandOpinion
Rehearing En Banc Granted July 18, 1990.
Charles B. Phillips (Phillips, Dohertys&s Swanson, Salem, on brief), for appellant.
David D. Walker, Salem, for appellee.
Before KOONTZ, C.J., and MOON and WILLIS, JJ.
MOON, Judge.
In this appeal, we must determine whether the issues were adequately preserved for appellate review. We hold that they were not and affirm. Four substantive issues were presented to this Court: (1) Whether an IRA was wrongfully classified as a marital asset; (2) whether an annuity was wrongfully classified as a marital asset; (3) whether the wife's Christmas club, automobile and cash were wrongfully classified as separate property; and (4) whether the trial court abused its discretion in making a marital award which heavily favored the wife.
Appellant admits that no objection was made to any relevant ruling or finding by the trial court. Appellant's counsel did, however, endorse the trial court's written order as "Seen and objected to." The written order was entered by the court approximately four months after the trial court's oral decision, made immediately after the evidence was heard. The transcript does not contain the closing argument of the parties but it is clear that no objection was stated at the time of the trial court's oral decision. In fact, the only objection that was raised during the trial was to the husband having to pay the wife's attorney's fees, an issue not appealed.
Rule 5A:18 provides in relevant 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. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.
The words "seen and objected to" over counsel's signature do not alert the trial judge to the nature of the alleged error, much less provide a statement of the grounds therefor. Cf. Carr v. Patram, 193 Va. 604, 70 S.E.2d 308 (1952). The purpose of Rule 5A:18 is to allow the trial judge to correct in the trial court any error that is called to his attention. See Head v. Commonwealth, 3 Va.App. 163, 167, 348 S.E.2d 423, 426 (1986). It has been argued that it is unfair to reverse the trial judge for an error which was not called to his attention in the trial court in time for him to take corrective action. R. Martineau, Modern Appellate Practice: Federal and State Civil Appeals § 3.2 (1983). A perhaps more compelling reason for the rule is that it is unfair to the opposing party, who may have been able to offer an alternative to the objectionable ruling, but did not do so, believing there was no problem. Cf. Hilton v. Fayen, 196 Va. 860, 866, 86 S.E.2d 40, 43 (1955). Appellees may thus needlessly be burdened with a costly appeal and new trial. The rule also prevents building error into the record, see Kercher's Adm'r v. Richmond, F.s&sP.R. Co., 150 Va. 108, 115, 142 S.E. 393, 395 (1928), and promotes efficient judicial administration because it results in fewer new trials. See Reid v. Baumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 780 (1977). In his treatise, Professor Robert J. Martineau states:
The reasons for this requirement go to the heart of the common law tradition and the adversary system. It affords an opportunity for correction and avoidance in the trial court in various ways: it gives the adversary the opportunity either to avoid the challenged action or to present a reasoned defense of the trial court's action; and it provides the trial court with the alternative of altering or modifying a decision or of ordering a more fully developed record for review.
R. Martineau, Modern Appellate Practice: Federal and State Civil Appeals § 3.2 (1983).
The requirements of Rule 5A:18 are applied to all cases, law and equity, including divorce. See Smith v. Smith, 4 Va.App. 148, 153, 354 S.E.2d 816, 819 (1987); see also Rochelle v. Rochelle, 225 Va. 387, 302 S.E.2d 59 (1983). Counsel for both parties agree that it is their local practice not to object with specificity to a trial judge's final decision in divorce matters or to include in the final order any objection to specific parts of the order. Judges in the locale apparently believe that "seen and objected to" preserves all issues for appeal. Local practice and consent of counsel provide no grounds to disregard the Rules of the Supreme Court. Cf. James v. Haymes, 160 Va. 253, 168 S.E. 333 (1933); Williams v. Commonwealth, 7 Va.App. 516, 375 S.E.2d 364 (1988). To do so would give those litigants in a locality that does not follow the rule greater access to the appellate courts than the litigants in a locality that does follow the rule. For the former, the appeals court would be correcting errors which Rule 5A:18 directs should be corrected, if possible, in the trial court. Economy, both of litigation costs and of judicial time, requires that we enforce Rule 5A:18 in all cases.
Accordingly, because the questions raised upon appeal were not properly preserved for appellate review as mandated by Rule 5A:18, the judgment appealed from is affirmed.
Affirmed.
KOONTZ, Chief Judge, dissenting.
While I agree with the majority's recital of the general principles explaining the purposes of Rule 5A:18, I respectfully disagree with the majority's application of the rule to this appeal. I dissent because I do not believe a mechanical application of the rule should defeat a merit review of appeals pursuant to Code § 17-116.05(3).
The trial court was called upon to apply the provisions of Code § 20-107.3 to the evidence produced by the parties. The admissibility of the evidence was not disputed. The appellant sought to have an IRA and an annuity classified as separate property; appellee sought to have these assets classified as marital. Appellant sought to have appellee's Christmas club, automobile and cash classified as marital property; appellee maintained that they were her separate property. Finally, both parties sought to persuade the court to their view of what would be an "equitable" award. The court made its determinations and gave its reasons for these determinations. These were incorporated into a final decree to which appellant noted his objection. Thus, we have before us a record which contains the evidence, the trial court's determinations, and its reasons for those determinations, all clearly outlined within the provisions of Code § 20-107.3.
In the context of Rule 5A:18, there was nothing more that appellant could call to the trial court's attention. Nor was there an alternate that could have been offered by the appellee to avoid an appeal. By the very nature of the proceeding, the trial court either correctly classified the property or it did not. The trial court was aware that this was the issue it was to determine and it was equally aware that by appellant's objection he disagreed with the court's resolution of the issue. I do not believe Rule 5A:18 requires a restatement of the obvious. Moreover, as applied to this case, in my view, the majority's application of Rule 5A:18 to this appeal defeats the legislative intent of Code § 17-116.05(3) to provide a merits review as a matter of right.
For these reasons, I would hold that Rule 5A:18 is not applicable and review the merits of the issues presented by appellant's appeal.
UPON A PETITION FOR REHEARING EN BANC
On June 15, 1990 came the appellant, by counsel, and filed a petition praying that the Court set aside the judgment rendered herein on June 5, 1990 and grant a rehearing en banc thereof.
On consideration whereof, two other judges have joined with the dissenting judge in voting to grant the rehearing petition. Accordingly, the petition for rehearing en banc is granted, the mandate entered herein on June 5, 1990 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court. Because the merits of this appeal were not addressed by the panel, on rehearing the full Court will limit its consideration to the issue of whether Rule 5A:18 is applicable to the procedural facts of this case.
The parties shall file briefs in compliance with Rule 5A:35.