Twardy v. Twardy

Decision Date09 June 1992
Docket NumberNo. 1152-89-2,1152-89-2
Citation419 S.E.2d 848,14 Va.App. 651
PartiesEdward S. TWARDY v. Merri Lee TWARDY. Record
CourtVirginia Court of Appeals

C. Ridgeway Schuyler, III, Somerset (Rae H. Ely, Rae H. Ely & Associates, Louisa, on brief), for appellee.

Present: KOONTZ, C.J., and BAKER, BARROW, BENTON, COLEMAN, DUFF, MOON, WILLIS, ELDER and BRAY, JJ.

UPON REHEARING EN BANC

BARROW, Judge.

A rehearing en banc was granted in this appeal from a decision of a panel in which there was a dissent. 1 The appeal is from a judgment of the trial court requiring the husband to pay the wife an amount he had agreed to pay to satisfy a debt that the wife has since paid in full. We are unable, however, to address the issue fully because a transcript of a hearing before the trial court was not made a part of the record. The transcript is needed to support the wife's contention that the trial court's decision is correct. We hold that, because the husband represented in his notice of appeal that he would file the transcript and failed to do so, the appeal must be dismissed.

At trial a provision of the parties' separation agreement was at issue. The husband contended that his responsibility under the agreement to pay a second deed of trust was extinguished when the wife refinanced the debts underlying the second and first deeds of trust. The two deeds of trust encumbered the marital residence, which, under the terms of the agreement, the husband had conveyed to the wife. Under the agreement the husband had agreed "to be responsible for the payment under the second deed of trust encumbering said property, to make payments directly to the lender, and to indemnify and hold wife harmless thereon." 2 After the husband conveyed his interest in the property to the wife, she refinanced both of the debts that were secured by the deeds of trust. Consequently, the debt secured by the second deed of trust for which the husband agreed to be responsible was satisfied. The husband argues that this relieved him of his responsibility to make the payments provided for in the agreement. However, the trial court disagreed and ordered the husband to pay the wife those sums of money that, according to the agreement, were to be paid directly to the lender under the second deed of trust.

The husband appealed, asserting that under the plain language of the agreement the wife extinguished his liability by satisfying the debt. The wife, on the other hand, contends that evidence presented at an evidentiary hearing before the trial court supported a finding that she refinanced the debt "based on her husband's representations that he would continue to make payments on the debt after the refinancing." The transcript of this hearing was not timely filed with the clerk of the trial court and is not, therefore, a part of the record in this appeal. Rule 5A:8(a); see also Turner v. Commonwealth, 2 Va.App. 96, 99, 341 S.E.2d 400, 402 (1986).

This court and the Supreme Court have recently addressed the allocation of responsibility for ensuring a complete record. In a decision by a panel, this court observed that "an appellant has the primary responsibility of ensuring that a complete record is furnished to an appellate court so that the errors assigned may be decided properly." Ferguson v. Commonwealth, 10 Va.App. 189, 194, 390 S.E.2d 782, 785 (1990), aff'd in part, rev'd in part, 240 Va. ix, 396 S.E.2d 675 (1990). However, the panel's opinion pointed out that an appellant "should not be required to anticipate [an appellee's] defense to his claim of error and provide the record necessary to support [the appellee's] claim." Id. 10 Va.App. at 194-95, 390 S.E.2d at 785. The opinion recognized that an appellee "also has an obligation to ensure that the record contains the evidence supporting its contention." Id. Nevertheless, the panel held that an appellee has the right to rely upon an appellant's statement in its notice of appeal that a transcript will be made a part of the record and that the responsibility for failing to provide the transcript necessarily falls upon the appellant. Id.

The panel's opinion discourages unnecessary delay and expense in the preparation of an appellate record. Record preparation is "one of the most time-consuming and expensive aspects of appellate procedure." ABA Comm. on Standards of Judicial Review, Standards Relating to Appellate Courts 36 (1977). "Often, the entire transcript of proceedings in the trial court is unnecessary" and preparing one is "wasteful of both money and time." R. Leflar, Internal Operating Procedures of Appellate Courts 17 (1976). Consequently, most court rules permit designation of only portions of the record in an appeal. R. Novak & D. Somerlot, Delay on Appeal 106 (1990). The panel's opinion discourages unnecessary record preparation and remains consistent with our rules requiring an appellant to state "whether any transcript or statement of facts, testimony, and other incidents of the case will be filed," Rule 5A:6, and permitting the filing of an abbreviated record, Rule 5A:10(c). These requirements, however, presuppose sufficient communications between the appellant and the appellee to enable the appellee to learn the errors the appellant intends to assign and to arrange for the timely filing of any transcript or statement of facts necessary to support appellee's position.

In reviewing our decision in Ferguson, the Supreme Court briefly addressed this issue. In a published order it affirmed the decision of our court "insofar as it dismisses [the appellant's] appeal for failure to comply with Rule 5A:8." However, it also "reversed and vacated" the judgment of our court "insofar as it requires the [appellee] to file those portions of the record necessary to enable appellate courts to conduct harmless-error review, see Code § 8.01-678 (harmless-error review required in all cases)." Ferguson v. Commonwealth, 240 Va. ix, 396 S.E.2d 675, 675 (1990). This language suggests that an appellant has the responsibility in all cases to provide a complete record, including transcripts of all proceedings.

We need not determine the full implications of the Supreme Court's decision because under the views expressed by this court and the Supreme Court the husband should have filed a transcript of the hearing in question. Admittedly, the Supreme Court's language in Ferguson may be read to require a full transcript of every hearing to be filed in every case. However, our decision does not extend that far, although the dissent incorrectly charges that it does. In deciding this appeal, we need go no further than the holding of our panel in Ferguson.

An appellee has a right to rely on an appellant's representation in the notice of appeal that a transcript will be made a part of the record. Ferguson, 10 Va.App. at 194, 390 S.E.2d at 785. The husband in his notice of appeal represented that "[A] transcript will be filed." The wife had a right to rely on this statement. See Id.

The husband contends that we do not need a transcript of the trial court hearing to decide this case. He argues that we may not address the issue of estoppel on appeal because the wife did not plead or otherwise raise the issue in the trial court. Therefore, he contends, this appeal may be decided solely on the basis of the separation agreement without going beyond it. We do not agree. If the issue of estoppel was presented to the trial court, we must go beyond the express provisions of the agreement to determine if the trial court's decision is supported by sufficient evidence to permit a finding of estoppel. However, without a transcript, we cannot determine if estoppel was presented to the trial court or if sufficient evidence supported such a theory. Equitable estoppel need not have been pleaded, and the absence of the transcript prevents us from determining if the issue was otherwise presented to the trial court.

The issue of equitable estoppel was not pleaded, nor should it have been. This is a proceeding for divorce, not an action to enforce the separation agreement. The wife filed a bill of complaint seeking a divorce, spousal support, counsel fees, court costs and other relief. The husband responded with an answer and cross-bill, asserting that the wife was not entitled to support and asking that the separation agreement be incorporated into the final decree. The question of equitable estoppel, therefore, was not in issue until the husband sought to avoid incorporation into the decree of the provision in controversy. No opportunity to plead equitable estoppel was ever presented.

The husband relies on language in an early opinion of the Supreme Court that "mere equitable estoppel constitutes no defense to an action of ejectment ... and when such defense is set up on the equity side of the court, it must be distinctly charged and clearly proved." Newport News and Old Point RW and Elec. Co. v. Lake, 101 Va. 334, 344, 43 S.E. 566, 569 (1903). Later, however, the Supreme Court more clearly described when a specific defense needs be pleaded, holding that a defendant was entitled to rely on a specific defense (statute of frauds) even though the defense was not pled where the plaintiff's "notice of motion did not indicate the necessity or propriety of such a plea" and nothing of record suggested "that the statute of frauds would be involved until plaintiff introduced his evidence." Lawson v. States Constr. Co., 193 Va. 513, 521, 69 S.E.2d 450, 455 (1952). Similarly, in this case, until the husband sought to avoid incorporation of the provision relating to payments on the second deed of trust, nothing of record suggested that the issue of estoppel would be involved. The wife, therefore, was entitled to raise the issue even though she had not pled it because the pleadings had not brought it into...

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