Opinion
Record No. 0409-94-4
Decided: December 6, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA, Donald H. Kent, Judge
Affirmed.
(Russell Edward Peverell, pro se, on brief).
No brief for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Russell Edward Peverell appeals from orders of the circuit court setting the amount of child support to be paid to his former spouse, Karen Fay (Conder) Eskew, and deciding certain other matters. He raises the following issues on appeal:
(1) whether the trial judge erred in not accepting father's Written Statement of Facts;
(2) whether the trial judge erred in entering final judgment without compelling the production of the medical records of the parties' children;
(3) whether the trial judge erred in inducing father's attorney to withdraw from the case;
(4) whether the trial judge erred in holding a hearing in the absence of father's attorney;
(5) whether the trial judge erred in finding father guilty of "abusive litigation" for subpoenaing mother's bank records;
(6) whether the trial judge erred in denying father's request for a decrease in child support; and
(7) whether the trial court discriminated against father on the basis of gender.
Upon reviewing the record and opening brief, we conclude that this appeal is without merit. Accordingly, we summarily affirm the orders of the trial judge. Rule 5A:27.
"The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991). Moreover, under "familiar principles we review the evidence in the light most favorable to the prevailing party below." Steinberg v. Steinberg, 11 Va. App. 323, 325, 398 S.E.2d 507, 508 (1990). "Where, as here, the court hears the evidence ore tenus, its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it." Pommerenke v. Pommerenke, 7 Va. App. 241, 244, 372 S.E.2d 630, 631 (1988).
Absence of Written Statement of Facts
Father asserts that the trial judge violated Rule 5A:8 by refusing to accept father's written statement of facts.
Rule 5A:8(c) states, in pertinent part, as follows:
In lieu of a transcript, a written statement of facts, testimony, and other incidents of the case . . . becomes a part of the record when:
(1) within 55 days after entry of judgment a copy of such statement is filed in the office of the clerk of the trial court. A copy must be mailed or delivered to opposing counsel accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing . . . .
The record indicates that the final order was entered on February 9, 1994. Father filed his written statement of facts on March 15, 1994, with a notice that it would be presented April 13, 1994. The trial judge refused to accept the written statement because it was not presented to the trial judge within the prescribed time frame. Father asserts that local rules for the circuit court prevent presentation on any day but the bi-weekly motions day.
We find no error in the trial judge's refusal to waive compliance with Rule 5A:8 and accept father's proposed written statement of facts. The statement was not timely presented. Although the statement is not properly before us, the record in this matter is substantial, and a statement of facts is not indispensable to our review of some of the additional issues raised in this appeal.
Failure to Compel Discovery of Medical Records
Father contends the trial court erred when it refused during the February 9, 1994 hearing to compel the production of his children's medical records. The written order from which father appeals does not refer to father's motion to compel. Neither the transcript of the February 9, 1994 hearing nor father's proposed written statement of facts is before this Court. Accordingly, the record is insufficient for this Court to address the merits of father's argument.
Withdrawal of Counsel and Holding Hearing in the Absence of Counsel
Father contends the trial judge induced his counsel to withdraw and then proceeded to conduct a significant hearing in the absence of counsel.
A review of the transcript of the January 10, 1994 hearing demonstrates that the issues outstanding between the parties on the question of child support were resolved upon the conclusion of that hearing. Father's counsel moved to withdraw. On February 9, 1994, the trial judge entered an order allowing father's counsel to withdraw. Father objected to the withdrawal "per reasons discussed with [father's counsel]." Those reasons were not included as part of the record.
Father has failed to point to anything in the record which supports his allegation that the trial judge induced his counsel to withdraw. In the absence of evidence in the record, we have no basis upon which to conclude that the trial judge erred in granting counsel's motion to withdraw.
The record demonstrates that father had repeatedly proceeded pro se prior to entry of the order granting his counsel's motion to withdraw. In fact, the substantive issues addressed at the February 9, 1994 hearing arose from father's efforts while he was acting pro se. Without the assistance of counsel he sought subpoenas duces tecum and also moved to compel responses. The record does not establish that the trial judge erred in allowing father to represent himself.
Sanctions against Father
A party's signature on a "pleading, motion, or other paper" constitutes a certification by that party that filing "is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Code Sec. 8.01-271. The trial judge may impose "an appropriate sanction" for violation of this rule. Id.
The transcript of the January 10, 1994 hearing demonstrates that the outstanding issues of child support and telephone contact were resolved during the January 10, 1994 hearing. No further discovery on the parties' income was required. Moreover, father faced criminal contempt charges on January 10, 1994, arising from his violations of previous court orders through abusive and deception contacts with mother's supervisors. Nevertheless, after the resolution of the support issue, father proceeded pro se to serve several subpoenas duces tecum upon banks holding mother's accounts.
The trial judge had ample cause to order father to pay mother's costs and attorney's fees incurred in quashing the subpoenas. Therefore, we find no error or abuse of discretion in the trial judge's levy of sanctions against father for "unnecessary litigation."
Denial of Motion to Decrease Child Support
Father alleges the trial judge erred by failing to grant his motion to decrease child support. He contends that the record is absent of evidence of mother's full financial information. The record establishes, however, that counsel for father accepted the evidence produced, including mother's testimony, and agreed to the calculation of child support under the Code Sec. 20-108.2 guidelines. Thus, the record contains sufficient evidence to support the trial judge's decision.
Discrimination on the Basis of Gender
Father alleges the trial judge's order denying his motion to reduce his child support payments amounted to a discrimination against him on the basis of gender, in violation of his rights under the Fifth and Fourteenth Amendments of the United States Constitution. This argument is raised for the first time on appeal and is barred by Rule 5A:18. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
Therefore, for the reasons stated above, the orders of the trial judge are affirmed.
Affirmed.