Falah v. Falah

Decision Date06 July 2021
Docket NumberRecord No. 1415-20-4
CourtVirginia Court of Appeals
PartiesFRED FAROUQ FALAH v. NASIMA FALAH

UNPUBLISHED

Present: Judges Huff, Malveaux and Senior Judge Annunziata

Argued by videoconference

MEMORANDUM OPINION* BY JUDGE GLEN A. HUFF

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY

Jeanette A. Irby, Judge

Elizabeth Jean Lancaster (Whitbeck Bennett, PLLC, on brief), for appellant.

Daniel B. Schy (Curran Moher Weis, PC, on brief), for appellee.

Nasima Falah ("wife") obtained a divorce from Fred Farouq Falah ("husband") on grounds of willful desertion in the Circuit Court for Loudoun County (the "trial court"). Prior to the trial court's granting of that relief, the case had been continued three times—twice on husband's motion and once on the trial court's own motion. On the day trial took place, husband had technical difficulties when attempting to join the trial through an online videoconferencing service. Although he was able to observe the proceedings, those participating in the trial were unable to see or hear him. Husband's technical difficulties prompted husband's trial counsel to move for another continuance, but the trial court denied the motion and proceeded to trial.

Husband now challenges the trial court's denial of his motion to continue on appeal, arguing that the trial court's ruling was an abuse of discretion and a violation of his constitutional right to due process and to call for evidence in his favor. Because husband's constitutionalarguments are procedurally defaulted under Rule 5A:18, this Court does not consider them. And even assuming without deciding that the trial court's denial of husband's motion to continue was otherwise an abuse of discretion, this Court nonetheless affirms because husband has not made any showing of prejudice resulting from the trial court's ruling.

I. BACKGROUND

On appeal, this Court views the evidence in the light most favorable to wife, the prevailing party below, and does not "retry the facts or substitute [its] view of the facts for [that] of the trial court." Congdon v. Congdon, 40 Va. App. 255, 266 (2003) (internal citations and quotation marks omitted). Viewed through this lens, the evidence shows the following:

On April 12, 2018, wife filed a complaint for divorce on the grounds that she and husband had lived separate and apart for twelve months or more; in the alternative, she alleged grounds of willful desertion. Husband filed a counterclaim for divorce on May 14, 2018, on the grounds that he and wife had lived separate and apart for twelve months or more and on alternative grounds that wife had actually or constructively deserted the marriage.

The trial court initially set a trial covering issues of divorce, spousal support, and equitable distribution for July 17, 2019. Husband filed a motion to continue on May 16, 2019, citing an inability to resolve discovery matters prior to trial due to a change in trial counsel. The trial court granted husband's motion and rescheduled the trial for March 19, 2020. On February 3, 2020, husband filed a second motion to continue, noting that the parties had agreed a continuance was appropriate given another change in husband's trial counsel. The trial court granted that motion as well and rescheduled trial for April 23, 2020.

During the early stages of the COVID-19 pandemic, the trial court continued the matter sua sponte and rescheduled trial for November 2, 2020. At the pretrial scheduling conference which took place on October 13, 2020, husband moved to continue the matter again, arguing inpart that there was some concern that husband would have technical difficulties if the parties were required to participate in trial through a virtual medium. For reasons not apparent from the record, the trial court denied that motion to continue.1

At trial, conducted through the online videoconferencing service WebEx, husband experienced technical difficulties. Although husband was able to see the courtroom on his computer screen, neither the trial court nor counsel could see or hear him. Subsequent attempts to fix the issue proved unsuccessful, which prompted husband's counsel to move to continue the case. Husband's counsel did not make any constitutional arguments in that motion and instead reasserted the arguments made in support of the motion that had been made at the pretrial conference. Wife's counsel objected, arguing that a continuance was inappropriate given the numerous delays that had already occurred and given the uncontested evidence that husband was approximately $9,000 in arrears for court-ordered pendente lite support.

The trial court ultimately denied husband's motion, and the matter proceeded to trial. Both parties stipulated to the admission of each other's exhibits, and husband's trial counsel made no proffer as to what testimony, if any, husband would have given had he been able to fully connect to the proceedings online. At the conclusion of trial, the trial court found that husband willfully deserted the marriage and granted wife a divorce on those grounds. On November 20, 2020, the trial court entered a written order memorializing its prior divorce ruling, as well as its other rulings related to spousal support, equitable distribution, and attorney's fees. On the same day, husband noted his objections on the written divorce decree, raising a due process objection for the first time. Husband also simultaneously filed a motion to stay entry of the trial court's written divorce decree based on his due process argument, and on December 2, 2020, he filed a memorandum in support of the motion. In that memorandum, husband did notmake any reference to the constitutional right to call for evidence in his favor, but argued that by proceeding to trial after denying his motion to continue, the trial court violated his due process rights by depriving him a reasonable opportunity to be heard. The record is silent, however, on whether husband obtained a ruling from the trial court on his motion to stay.

This appeal followed.

II. ANALYSIS
A. Husband's Due Process Argument is Waived

Husband contends that the trial court's denial of his motion to continue and its holding of a trial without him visibly present violated his constitutional right to due process by effectively denying him the opportunity to be heard.2 But husband did not make any due process claim contemporaneously with his motion for a continuance of the trial. Although he did attach a due process objection to the final divorce decree and filed a motion to stay entry of the decree on those grounds, it does not appear from the record that the trial court ruled on husband's motion. As such, "'there is no ruling for [this Court] to review' on appeal, and [husband's] argument is waived under Rule 5A:18." Williams v. Commonwealth, 57 Va. App. 341, 347 (2010) (quoting Fisher v. Commonwealth, 16 Va. App. 447, 454 (1993)).

Notwithstanding husband's failure to obtain a ruling on his due process argument in the trial court, he asks this Court to consider his argument pursuant to the "ends of justice" exception of Rule 5A:18. This Court declines to do so.

"The ends of justice exception is narrow and is to be used sparingly, and applies only in the extraordinary situation where a miscarriage of justice has occurred." Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (internal citations and quotation marks omitted). "The burden of establishing a manifest injustice is a heavy one, and it rests with the appellant." Brittle v. Commonwealth, 54 Va. App. 505, 514 (2009).

To meet that burden, an appellant must show that "the error clearly had an effect upon the outcome of the case." Brown v. Commonwealth, 8 Va. App. 126, 131 (1989). In other words, the party relying on the ends of justice exception "must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage of justice might have occurred." Redman v. Commonwealth, 25 Va. App. 215, 221 (1997) (emphasis added) (citing Mounce v. Commonwealth, 4 Va. App. 433, 436 (1987)). "These principles govern [this Court's] application of the 'ends of justice' exception in all claims on appeal, including those based on due process grounds."3 M. Morgan Cherry & Assocs., Ltd. v. Cherry, 37 Va. App. 329, 340-41 (2002) (emphasis added) (citations omitted).

Here, husband has not affirmatively demonstrated that the trial court's denial of his motion to continue "clearly had an effect upon the outcome of the case." See Brown, 8 Va. App. at 131. He points to no evidence in the record that shows that his partial absence from the proceedings did materially change the outcome of the case. Instead, he merely alleges that had the trial court granted his motion to continue, such a continuance "may have materially changed" the trial court's rulings on divorce grounds, spousal support, and attorney's fees.

But an allegation that a miscarriage of justice "might have occurred" is categorically insufficient to successfully invoke the ends of justice exception. Redman, 25 Va. App. at 221 (citing Mounce, 4 Va. App. at 436). Absent sufficient evidence affirmatively demonstrating that a grave injustice resulted from husband's partial absence from trial, this Court "can only speculate" as to what effect, if any, it had on the trial court's rulings on divorce, spousal support, and attorney's fees. See Cherry, 37 Va. App. at 341-42. Given husband's failure to meet his burden to show that the trial court's alleged error clearly had an effect on the outcome of the case, this Court holds that the ends of justice exception does not apply and must "presume the trial court to be correct" in its decision. Id. at 342. Consequently, this Court does not consider the merits of husband's due process arguments in this appeal.

B. Husband Has Not Shown that the Trial Court's Denial of his Motion to ContinueResulted in Prejudice to Him
1. Standard of Review

"The decision to grant [or deny] a motion for a continuance is within the sound discretion of the [trial] court...

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