Gudino v. Gudino, Record No. 2016-11-2
| Decision Date | 12 June 2012 |
| Docket Number | Record No. 2016-11-2 |
| Court | Virginia Court of Appeals |
| Parties | SELENA GUDINO v. DENNIS GUDINO |
Present: Chief Judge Felton, Judges Frank and Kelsey
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
In this case, the circuit court entered an order compensating the guardian ad litem for her work in a custody case involving the children of Selena and Dennis Gudino. On appeal, Selena Gudino argues the court erred in several respects. The circuit court, however, did not address her objections to the award because they were filed after the entry of the order. Given the unique circumstances of this case, we hold good cause exists to excuse wife's procedural default. We remand this matter to the circuit court for reconsideration of its fee award.
The divorce of Selena and Dennis Gudino involved various cases litigated in the Chesterfield Circuit Court, including a divorce and equitable distribution case (No. CL10-2086) and several de novo appeals from the Chesterfield Juvenile and Domestic Relations District Court: namely, a custody dispute (No. CJ10C-12) and two cases involving support and attorneyfees (Nos. CL10J-339 and CL10J-2336). The circuit court appointed a guardian ad litem (GAL) for the parties' three children in the custody dispute and awarded fees to the GAL for her representation of the children. Wife appealed the circuit court's custody decision on various grounds, including the appointment of the GAL and the apportionment of her fees. In an unpublished opinion, we affirmed the circuit court. See Gudino v. Gudino, No. 0068-11-2, 2011 Va. App. LEXIS 327 (Nov. 1, 2011) (hereinafter Gudino I).
On August 22, 2011, while Gudino I was on appeal to us, the GAL attended an evidentiary hearing in the circuit court scheduled to address support, attorney fees, and equitable distribution — but not custody.1 Nothing in the record suggests the GAL gave written notice of her intention to appear. After a recess in the hearing, the GAL orally asked the circuit court to issue an order awarding fees arising out of the custody dispute (No. CJ10C-12). She proffered a fee statement seeking $39,978.62 in fees for her work in the JDR court and circuit court. See App. at 187 ().
At the hearing, wife was represented by different counsel than had represented her in the custody case involving the GAL. She appeared pro se regarding equitable distribution issues. When the GAL made her request for fees during the hearing, neither wife nor her counsel objected. Counsel, however, reminded the court that the custody dispute was then pending on appeal and that separate counsel represented wife in that matter.
Without further discussion, the trial judge stated from the bench, "the guardian ad litem is going to get paid." App. at 188. At the conclusion of the hearing, the GAL asked the court to"make a decision in terms of the guardian ad litem fees" and "determine which amounts will be paid by which party . . . ." Id. at 242. After learning from the court reporter that it would take three weeks to prepare a transcript, the circuit court advised the parties: "I will get you a decision, obviously, it's not going to be before the next 21 days." Id. at 244. The court directed the GAL to submit a draft order addressing her fee request. Id. at 247. The court stated the order should include a "Rule 1:13 waiver" of counsel endorsement. Id. 2 It is unclear from the court's remarks if the twenty-one-day delay period applied to all, or only some, of the orders to be issued after the hearing.
One week later, on August 29, the GAL forwarded to the court a draft order awarding her $42,866.12 in fees. The record reveals no reason for the variance from the $39,978.62 request made at the hearing a week earlier. The draft order waived the requirements of Rule 1:13 () and Rule 1:12 (). The caption of the draft order identified the custody dispute by the case number (No. CJ10C-12) and listed each of the children's names.
The GAL's cover letter to the court did not state that copies had been forwarded to wife pro se, her counsel in Gudino I, or her counsel at the August 22 hearing. The following day, August 30, the GAL sent the same letter and draft order to the court, the only change appearing to be the inclusion of a "cc" noting that copies had been mailed to counsel appearing at the August 22 hearing — but not to wife pro se or to counsel representing her in Gudino I.
On September 6, the circuit court entered the GAL's draft order — six days before the end of the twenty-one-day delay period noted by the court at the August 22 hearing. The orderentered by the court did not direct the clerk of court to forward copies of the entered order to the parties or their counsel, and the clerk apparently never did so.
On September 8, seventeen days after the hearing, wife filed objections to the GAL's fee request, unaware that the court had already entered an order awarding fees on September 6. Wife challenged the GAL's fee request on various grounds and asserted the circuit court had used an improper procedure to consider it. Wife initially filed her objections in the divorce case (No. CL10-2086), in which the GAL had appeared at the August 22 hearing. The next day, September 9, wife filed the same objections in the custody case (No. CJ10C-12), in which the GAL fees were incurred. Wife forwarded copies of her objections to the GAL and husband's counsel.
Sometime after wife filed her objections, she learned that the court had entered the GAL order on September 6, but had filed the order in one of the support cases, No. CL10J-339. The GAL had not been appointed in the support case, and her fee request was not related to that case. The entered order showed that the custody case number (No. CJ10C-12) had been crossed out and the support case number (No. CL10J-339) had been handwritten directly below it. On October 5, wife filed a notice of appeal in the support case (No. CL10J-339), in which the GAL order had been entered.
It appears someone — presumably in the office of the clerk of court — attempted to remedy the situation by crossing through the handwritten notation of the support case number (No. CL10J-339) and then reinserting by hand the custody case number (No. CJ10C-12). Wife thereafter amended her notice of appeal to include the custody case. The case now matures on appeal on the merits. Because the circuit court never ruled on any of the points wife raises on appeal, we directed the parties to address whether the appeal should be summarily denied on procedural default grounds.
"As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to preserve the issue on appeal." West v. West, 53 Va. App. 125, 131, 669 S.E.2d 390, 393 (2008) (citation omitted). Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh'g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005) (emphasis in original).
The contemporaneous objection rule enforces a litigant's "responsibility to afford a court the opportunity to consider and correct a perceived error before such error is brought to the appellate court for review." Williams v. Gloucester Sheriff's Dep't, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003). "Errors can usually be corrected in the trial court, particularly in a bench trial, without the necessity of appeal." Bazemore v. Commonwealth, 42 Va. App. 203, 218, 590 S.E.2d 602, 609 (2004) (en banc) (citation omitted).
In this case, wife filed her pro se objections to the GAL's fee request after the circuit court entered its order. Wife did not file a motion to reconsider, nor did she request a hearing on her objections.3 It is unclear whether the court was ever aware of wife's objections. Given that wife never requested a hearing to bring these objections to the court's attention, the court had no duty to act on the untimely objections4 and, understandably, did not do so. Cf. Smith v. Smith,18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994) ().
As a general rule, a circuit court should not be reversed on a ruling it never made.5 Rule 5A:18, therefore, precludes appellate review of the circuit court's GAL award unless wife shows "good cause" for her untimely objection or persuades us that the "ends of justice" are so compelling that the procedural default should be excused. On appeal, wife contends both the "good cause" and "ends of justice" exceptions apply. See Appellant's Suppl. Br. at 1, 5-8.6 We need not address the ends-of-justice exception7 because we agree with wife that good cause exists for lifting the procedural bar of Rule 5A:18.
The good cause exception applies when the litigant "did not have the opportunity to object to an alleged error during the proceedings below." Flanagan v. Commonwealth, 58 Va. App. 681, 694, 714 S.E.2d 212, 218 (2011) (citation omitted). It does not apply when alitigant "had the opportunity to object but elected not to do so," Perry v. Commonwealth, 58 Va. App. 655, 667, 712 S.E.2d 765, 771 (2011) (citation omitted), was merely "taken by surprise" by the trial court's decision, Jones v. Commonwealth, 194 Va. 273, 280, 72 S.E.2d 693, 697 (1952), or failed to obtain a ruling from a trial court on a motion or...
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