Barrett v. Barrett
| Decision Date | 25 January 2011 |
| Docket Number | Record No. 0753-10-3 |
| Court | Virginia Court of Appeals |
| Parties | TIMOTHY M. BARRETT v. VALERIE JILL RHUDY BARRETT |
Present: Judges Frank, Humphreys and Senior Judge Bumgardner Argued at Salem, Virginia
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
Timothy M. Barrett, pro se.
Maria Timoney (Jonathon M. Venzie, Guardian ad litem for the minor children; Southwest Virginia Legal Aid Society, on brief), for appellee.
Timothy M. Barrett ("father") appeals a ruling of the Circuit Court of Grayson County ("the circuit court") relating to his motion to amend custody of his six children1 with Valerie Jill Rhudy Barrett ("mother"). On appeal, father argues the following questions presented2: (I) Did the circuit court err in applying the "best interests" test of Code § 20-124.3 when the uncontested evidence was that the mother was unfit; (II) did the circuit court violate the father's fundamental, natural, and constitutional rights; (III) did the circuit court err in the way it received the testimony of the children; (IV) did the circuit court err in basing its decision as to custody on background information and not on the contemporary circumstances of the children and an application of the best interests of the child standard; (V) was the circuit court impermissibly biased against the father; (VI) did the circuit court utterly fail to consider the best interests of the children, (VII) did the circuit court fail to properly consider the statutory factors in rendering its custody letter opinion; (VIII) did the circuit court fail to consider all the evidence; (IX) did the circuit court err in making a decision that lacked a foundation based on the evidence and was, in fact, contrary to the evidence; (X) did the circuit court err by failing to adequately communicate the basis for its decision to the parties as required by Code § 20-124.3; and (XI) did the circuit court lack jurisdiction to impose transportation costs on the father? For the following reasons, we affirm.3
Rule 5A:18 provides, in pertinent part, that "[n]o 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."4 Therefore, "in order to preserve an issue for appeal, 'an objection must be timely made and the grounds stated with specificity.'" Kovalaske v. Commonwealth, 56 Va. App. 224, 229, 692 S.E.2d 641, 645 (2010) (quoting McDuffie v. Commonwealth, 49 Va. App. 170, 177, 638 S.E.2d 139, 142 (2006)). "To be timely, anobjection must be made when the occasion arises--at the time the evidence is offered or the statement made." Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d 167, 168 (1986) (citing Ingram v. Commonwealth, 1 Va. App. 335, 341, 338 S.E.2d 657, 660 (1986)). Put another way, "[t]o satisfy the rule, 'an objection must be made... at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.'" Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (quoting Johnson v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002)).
"[T]he main purpose of the rule is to ensure the trial court can 'consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.'" Kovalaske, 56 Va. App. at 230, 692 S.E.2d at 645 (quoting Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)). "'In addition, a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.'" West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 279 (2004) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)). Rule 5A:18 is violated when the record does not demonstrate the circuit court had the opportunity to rule on the objections and arguments made below. Lee v. Lee, 12 Va. App. 512, 515-17, 404 S.E.2d 736, 738-39 (1991) (en banc).
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993). "[O]n appeal the judgment of the lower court is presumed to be correct and the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of." Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). "In the absence [of a sufficient record], we will not consider thepoint." Jenkins v. Winchester Dep't of Soc. Servs., 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991) (citation omitted). More specifically, "[w]e cannot review the ruling of a lower court for error when the appellant does not bring within the record on appeal the basis for that ruling or provide us with a record that adequately demonstrates that the court erred." Prince Seating Corp. v. Rabideau, 275 Va. 468, 470-71, 659 S.E.2d 305, 307 (2008). Where we do not have the benefit of a transcript of the proceedings, we can consider only that which is contained in the written statement signed by the trial judge. Jenkins, 12 Va. App. at 1185, 409 S.E.2d at 20.
The record in this case consists of the circuit court's letter opinions and final orders, a written statement of facts, the circuit court's corrections and/or additions to the statement of facts, and father's amended objections to the trial court's final order and incidents of trial ("amended objections"). In presenting his questions on brief, father cites to the amended objections for support that each question was properly preserved for appeal. However, in turning to the amended objections, we must first note the difference between objections that are incidents of trial, which must be supported by evidence in the record as to their timeliness during trial, and those objections that are related to the final order and properly attached to the final order.
As noted above, objections "must be made when the occasion arises--at the time the evidence is offered or the statement made." Marlowe, 2 Va. App. at 621, 347 S.E.2d at 168 (citing Ingram, 1 Va. App. at 341, 338 S.E.2d at 660). In order for incidents of trial to be properly preserved, a written statement of facts must reflect that objections were made, and the grounds therefor stated, when the occasion arose. The contemporaneous objection requirement of Rule 5A:18 is not satisfied when a party summarily includes his objections as part of the objections to a final order at a later date. With regard to a final order, "counsel may, if he or she has previously failed to do so, include an objection and reasons therefor in the final order or at least tender such an order to the trial judge." Lee, 12 Va. App. at 516, 404 S.E.2d at 737 (citing Highway Comm'r v. Easley, 215 Va. 197, 207 S.E.2d 870 (1974)) (permitting counsel to amend the final order which reflected no objections, to properly state that the objections had been made during trial and the trial court had addressed them). The holding of Lee does not, however, imply that any and all objections are preserved merely by their inclusion in the final order. The record, in whatever form it takes, must affirmatively reflect that any objections were made at a point in time when the trial court could properly act upon them.
In this case, father attempts to include all of his objections, regardless of their timeliness, in the amended objections to the final order. He then cites to the amended objections for support that the issues were properly presented to the circuit court and preserved for appeal. However, the mere recitation of the objections in an attachment to the final order without an indication of their timeliness and without the reasons advanced to the circuit court in support of those objections does not properly preserve the issues. Neither the final order nor the statement of facts contains any mention of the arguments made by counsel, objections to the circuit court's rulings or letter opinions, or the judge's rulings on those objections. Further, the statement of facts merely recites that father filed motions to reconsider after the circuit court issued each letter opinion, but it does not provide what was included in each motion to reconsider. Because there is no evidence in the record that the questions presented II, III, V, and IX and their subparts were timely objected to in the circuit court with the specific grounds or reasons therefor and that the circuit court ruled on them, we do not consider the merits of them on appeal.
"'On appeal, the judgment of the trial court is presumed correct, ' Wymer v. Commonwealth, 12 Va. App. 294, 296, 403 S.E.2d 702, 704 (1991), and it is incumbent upon 'the party alleging trial court error to show... that the judgment was erroneous.'" Carter v. Thornhill, 19 Va. App. 501, 509-10, 453 S.E.2d 295, 301 (1995) (quoting Steinberg v. Steinberg, 11 Va. App. 323, 326, 398 S.E.2d 507, 508 (1990)). This Court views the facts, and all reasonable inferences from those facts, in the light most favorable to the party prevailing below. Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003).
"In matters of custody, visitation, and related child care issues, the court's paramount concern is always the best interests of the child." Farley v. Farley, 9 Va. App. 326, 327-28, 387 S.E.2d 794, 795 (1990) (citing Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d 10, 12 (1986)). "When a trial court has entered a final custody and visitation order, it cannot be modified absent (i) a showing of changed circumstances under Code § 20-108 and (ii) proof that the child's...
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