Phillip S. Griffin, II v. Kathryn O. Griffin, n/k/a Kate Obenshain ( 2012 )

  •                                COURT OF APPEALS OF VIRGINIA
    Present: Judges Humphreys, Petty and McCullough
    Argued at Lexington, Virginia
                                                                  MEMORANDUM OPINION * BY
    v.     Record No. 1791-11-4                                  JUDGE ROBERT J. HUMPHREYS
                                                                        MAY 29, 2012
                                Thomas A. Fortkort, Judge Designate
                     Walter C. Jacob for appellant.
                     William E. Shmidheiser, III (Lenhart Obenshain, PC, on brief), for
           Phillip S. Griffin (“husband”) appeals the August 11, 2011 final order of the Circuit
    Court of the City of Winchester (“circuit court”) related to his divorce from Kathryn O. Griffin
    (“wife”). 1 On appeal, husband contends that the circuit court erred (1) in not awarding the wife’s
    two IRAs to the husband given that the husband made all contributions to both accounts, there
    was no evidence that the husband gifted these contributions to the wife, and the wife admitted
    that she received no gifts, (2) in dividing the SEP IRA equally in that it committed the same error
    previously reversed by the Court of Appeals by dividing the SEP IRA equally and not giving the
    husband credit for the rollover account or any separate contributions and the circuit court having
    ruled in 2008 that this SEP IRA was the husband’s separate property and reversed itself in the
    ruling of 2011, notwithstanding that this issue had never been raised by the wife in the previous
               Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               Kathryn has since changed her name to Kate Obenshain.
    appeal, (3) in failing to properly calculate child support by imputing more income to the husband
    for child support purposes than the amount previously imputed, by basing calculations on
    husband’s gross income and wife’s net income, by failing to utilize the shared custody guidelines
    in calculating child support, and by failing to make written findings as to why the shared
    guidelines were not utilized, (4) by failing to include in its order any reference whatsoever to the
    division of the personal property of the parties and failing to properly and equitably divide the
    personal property of the parties, (5) in ordering the parties, post-divorce, to pay the mortgage
    payments for both 318 and 312 West Leicester Street, in equal amounts from October 2008 until
    August 2011 and thereafter failing to give husband credit for the larger payment that the husband
    was required to make when ordering the division of the two properties, (6) in failing to order that
    the marital debts be divided equally and requiring the husband to pay 100% of the joint marital
    debts without giving him credit for same, and (7) in failing to give the husband full credit for the
    down payments made on both 312 and 318 West Leicester Street. For the reasons that follow,
    we affirm the judgment of the circuit court.
                                                 I. Background
              Since the parties are familiar with the record in this case and this is an unpublished
    memorandum opinion that has no precedential value, we do not recite all of the facts of this case.
    However, we feel compelled to address the extensive pattern of failures on behalf of both parties
    to comply with the Rules of the Court of Appeals of Virginia in connection with this appeal.
    This is the second time this case has reached this Court. The preparation of the case for the first
    appeal was so poor that we held that husband had defaulted several of the issues on appeal and
                     “Despite the willingness of the [husband] to file motion after
                     motion in the trial court, [he was] apparently unwilling to expend
                     the effort required to research several of the issues that [he raises]
                     in this appeal . . . . The ‘throw everything at the wall and hope
                   something sticks’ approach utilized in this appeal is as
                   unappreciated as it is ineffective. If [husband was] unable to find
                   legal support for [his] questions presented . . . [he] should not have
                   included those questions presented in [his] brief.
                   Appellate courts are not unlit rooms where attorneys may wander
                   blindly about, hoping to stumble upon a reversible error. If the
                   [husband] believed that the circuit court erred, it was [his] duty to
                   present that error to us with legal authority to support [his]
    Griffin v. Griffin, No. 2810-08-4 (Va. Ct. App. Dec. 29, 2009) (quoting Fadness v. Fadness, 
    52 Va. App. 833
    , 850, 
    667 S.E.2d 857
    , 866 (2008)). Despite this admonishment, the level of
    appellate advocacy has not improved for the instant appeal. The emotionally draining nature of
    this case and the protracted nature of the litigation, due in no small part to the many frivolous
    claims made by husband, has no doubt left the parties and their lawyers exhausted, but this does
    not excuse the failure to comply with the Rules of Court. This failure has not only affected our
    ability to reach the merits of several of the issues, but it has a negative impact on the operation of
    our judicial system as a whole. “In order to give fair consideration to those who call upon us for
    justice, we must insist that parties not clog the system by presenting us with a slubby2 mass of
    words rather than a true brief. Hence we have briefing rules.” N/S Corp. v. Liberty Mut. Ins.
    127 F.3d 1145
    , 1146 (9th Cir. 1997).
           Husband, as appellant in this appeal, is obligated to structure his brief in accordance with
    Rule 5A:20. He failed to do so. Specifically, husband’s brief fails to comply with Rule
    5A:20(d) that requires the appellant to include a “clear and concise statement of the facts that
    relate to the assignments of error, with references to the pages of the transcript, written
             Webster’s Dictionary defines a “slub” as “a muddy or slushy mess” or “a soft uneven
    section in yarn caused accidentally by knotting during winding or by the inclusion of lint during
    spinning or intentionally by the twisting of two or more strands at different speeds or by the
    inclusion of short fibers during spinning.” Webster’s Third New International Dictionary 2147
    (1993). Although it is unclear which definition the Ninth Circuit was referencing in that case, we
    think that both definitions are fitting in this instance.
    statement, record, or appendix.” The rule goes on to require that, “[w]hen the facts are in
    dispute, the brief shall so state.” Id. The statement of facts is laced with argument improper for
    that section of the brief, presents a woefully inadequate account of the factual development
    below, and represents numerous “facts” which were very much in dispute during the proceedings
    below without recognizing that fact.
           Husband’s brief also fails to conform to Rule 5A:20(e), which requires the appellant’s
    brief to include “[t]he standard of review and the argument (including principles of law and
    authorities) relating to each assignment of error.” Husband does reference the standard of review
    on brief; however, he does so by simply citing to cases, often unpublished, 3 instead of noting
    what the standard actually is in his brief. The standard of review for a case of this nature has
    been cited in countless published opinions, and we find it troubling that husband could not
    muster the time or effort to locate and recite binding authority for such basic propositions.
           However, husband’s poorly crafted brief was only the tip of the procedural iceberg in this
    case. The appendix, which the appellant must file under Rule 5A:25, consisted of seven
    volumes, spanning over two thousand pages. While the appendix contained countless pages of
    testimony and documents that were not germane to this appeal, see Rule 5A:25(g), it failed to
    include many relevant documents, 4 including the previous opinion of this Court that was
    essential to this appeal, since it was the reason the case was remanded. See Rule 5A:25(c)(2).
    Furthermore, while the appendix included a multitude of transcripts from the many hearings in
             We note that while Rule 5A:1(f) permits citing unpublished cases “as informative,” they
    “shall not be received as binding authority.” See also Kidder v. Va. Birth-Related Neurological
    Injury Comp. Program, 
    37 Va. App. 764
    , 775 n.3, 
    560 S.E.2d 907
    , 912 n.3 (2002) (“We are not
    bound by prior unpublished decisions of this Court.”).
             It appears that many of the documents were admitted in what amounts to a “document
    dump” without any foundation or explanation that would provide a context for their relevance to
    particular issues.
    this case, many of them, including the transcripts of the hearings on remand, consisted entirely of
    piecemeal compilations of testimony taken out of context. This resulted in several instances
    where it was confusingly unclear who was even testifying. See Rule 5A:25(c)(5). The end result
    was an appendix that was so bloated, yet at the same time incomplete and disjointed, that we
    were unable to fully consider a number of the issues on appeal.
                                               II. Analysis
            We first review the merits of those assignments of error that are not procedurally
    defaulted. We begin our analysis where husband should have, by noting the applicable standard
    of review: “[a] decision involving the equitable distribution of marital property ‘rests within the
    sound discretion of the trial court,’ and can be overturned only by a showing of an abuse of that
    discretion.” Owens v. Owens, 
    41 Va. App. 844
    , 853, 
    589 S.E.2d 488
    , 493 (2003) (quoting Mir
    v. Mir, 
    39 Va. App. 119
    , 125, 
    571 S.E.2d 299
    , 302 (2002)). “‘[A] trial court by definition abuses
    its discretion when it makes an error of law.’” Id. (quoting Shooltz v. Shooltz, 
    27 Va. App. 264
    498 S.E.2d 437
    , 441 (1998)). Thus, a court “abuses its discretion by failing ‘to consider the
    statutory factors required to be part of the decisionmaking process.’” Id. (quoting Congdon v.
    40 Va. App. 255
    , 262, 
    578 S.E.2d 833
    , 836-37 (2003)).
                                               A. SEP IRA
            Husband contends that the circuit court erred in dividing his SEP IRA equally and not
    giving him credit for his contributions of separate property. Because wife did not appeal the
    circuit court’s finding that the SEP IRA was separate property in the original final order, husband
    argues that the circuit court was prevented from changing the classification of the property on
    remand under the “law of the case” doctrine. However, husband misinterprets the application of
    this legal doctrine.
           In Miller-Jenkins v. Miller-Jenkins, 
    276 Va. 19
    661 S.E.2d 822
     (2008), the Supreme
    Court explained the “law of the case” doctrine:
                   The “law of the case doctrine” is well established in the courts of
                   this Commonwealth. Under this doctrine, “[when] there have been
                   two appeals in the same case, between the same parties, and the
                   facts are the same, nothing decided on the first appeal can be
                   re-examined on a second appeal. Right or wrong, it is binding on
                   both the trial court and the appellate court, and is not subject to
                   re-examination by either. For the purpose of that case, though only
                   for that case, the decision on the first appeal is the law.”
    Id. at 26, 661 S.E.2d at 826 (quoting Steinman v. Clinchfield Coal Corp., 
    121 Va. 611
    , 620, 
    93 S.E. 684
    , 687 (1917)).
           It is clear that the “law of the case” doctrine does not apply to the facts of this case. Here,
    husband appealed the circuit court’s equitable distribution to the Court of Appeals. In this
    Court’s December 29, 2009 opinion, we “reverse[d] the trial court’s equitable distribution
    determination in whole. We [did] so because the equitable distribution order, which [was] part
    of the final decree of divorce, [was] so unclear that we [could not] determine from its four
    corners how precisely the marital estate was classified, valued, or distributed.” Griffin, No.
    2810-08-4 (emphasis added). Because we reversed the equitable distribution determination in
    whole, the SEP IRA was no longer classified as separate property, and the circuit court was free
    to reclassify it as marital property on remand.
                                             B. Child Support
           Husband argues that the circuit court erred in calculating the child support obligation,
    because it failed to use the shared custody guidelines despite having done so in the final decree
    of divorce. However, this argument is without merit.
           Because we previously reversed the spousal support obligation on appeal, the child
    support obligation needed to be recalculated on remand. Husband argues that the circuit court
    was obligated to use the shared custody guidelines on remand, because that was what the circuit
    court used in the final decree of divorce. Furthermore, husband contends that the shared custody
    guidelines must be used regardless, because he gets 125 days of visitation, thus bringing him
    under the shared custody statute. However, husband’s calculation is incorrect, as the record
    reflects that he does not exceed the 90 days of visitation required under Code § 20-108(G)(3) to
    qualify for shared custody support. It is clear from the final order in the case that wife was
    awarded sole custody of the children. In fact, we affirmed that decision previously on appeal.
    See Griffin, No. 2810-08-4. Therefore, the circuit court was not required to use the shared
    custody guidelines for child support on remand.
           Husband also argues that the circuit court erred in its child support calculation, because it
    used the gross income of husband and the net income of wife. The circuit court stated that it
    would use the gross income for both parties based on their tax returns. While the appendix
    includes husband’s tax returns, it does not include wife’s tax return, and husband fails to cite to
    any part of the record where it is contained. On appeal, it is husband’s burden to provide a
    record upon which this Court can establish that the circuit court erred, see Lawrence v. Nelson,
    200 Va. 597
    , 598-99, 
    106 S.E.2d 618
    , 620 (1959), and based on the poor quality of the record
    provided, it is impossible for us to discern any error. Therefore, we cannot say that the circuit
    court’s determination was plainly wrong or without evidence to support it.
                                            C. Personal Property
           Husband next alleges that the circuit court “abused its discretion by failing to rule upon
    the personal property of the parties.” In fact, the record indicates that the circuit court did rule
    upon the disposition of the personal property of the parties. The circuit court made an oral ruling
    from the bench, recorded in a written transcript and referenced in the final order, which stated in
    pertinent part:
                      Mr. Griffin removed from the marital abode one half of the marital
                      property and his separate property. The personal property left in
                    the house was estimated to be a bit over $7,000 according to
                    Appraiser Heatwole.
                    The testimony of Mrs. Griffin, that is, Phil Griffin’s mother, that
                    Phil Griffin had several valuable antiques prior to the marriage
                    doesn’t help set any values. The only property that Phil Griffin
                    claimed was his separate property was turned over by Ms.
                    Obenshain as a result of a prior finding in this case.
                    The grandparents were indeed generous with many gifts to the
                    couple and particularly their children. The evidence is clear that
                    Phil Griffin meticulously divided the marital property, down to
                    separating candlestick sets, dishes, pots and other relatively minor
                    assets of the marriage.
                    Ms. Obenshain had to seek the aid of friends to bring her
                    furnishings back to normal after Phil’s removal of various items
                    from the marital home. The testimony of his mother as to
                    expensive wedding gifts was too general to assess values and did
                    not include the wear and tear of this relatively long-term marriage.
                    The observation of the guardian that the home of Ms. Obenshain
                    and her children was well appointed is of no value. It is the
                    position of the Court that the personal property of the parties was
                    equitably divided and no further decision is warranted.
    “On appeal, we view the evidence in the light most favorable to the prevailing party.” Ranney v.
    45 Va. App. 17
    , 31, 
    608 S.E.2d 485
    , 492 (2005). Further, “the trial court’s
    classification of property is a finding of fact, [so] that classification will not be reversed on
    appeal . . . [because] it is [not] plainly wrong or without evidence to support it.” Id. at 31-32,
    608 S.E.2d at 492.
            Husband also argues that the “court failed to consider the testimony and documents
    submitted to the court and ignored [his] evidence substantiating to [sic] personal property.” 5
    Husband again misstates the facts. As shown above, the circuit court did consider his evidence.
             In support of his assertion, husband cites only to Didio v. Didio, No. 0204-07-2 (Va. Ct.
    App. Dec. 18, 2004), an unpublished opinion from this Court. As we have previously noted,
    “[w]e are not bound by prior unpublished decisions of this Court.” Kidder, 37 Va. App. at 775
    n.3, 560 S.E.2d at 907 n.3.
    However, the circuit court simply did not find it credible over the evidence submitted by wife.
    See Ware v. Ware, 
    203 Va. 189
    , 195, 
    123 S.E.2d 357
    , 361 (1962) (“We have many times said
    that upon a hearing before a judge sitting without a jury, his finding upon the credibility of the
    witnesses and the weight to be given their testimony stands on the same footing as the verdict of
    a jury and should not be disturbed on appeal unless plainly wrong or without evidence to support
                                    D. Post-Divorce Mortgage Payments
             Husband next asserts that the circuit court erred in failing to award him credit for
    post-divorce mortgage payments towards what the parties refer to as “the 318 house.” Husband
    cites to Gaynor v. Hird, 
    15 Va. App. 379
    424 S.E.2d 240
     (1992), in support of his argument. In
    Gaynor, this Court found that a circuit court was in error when it declined to award a wife rent
    from her husband when he continued to reside in the formal marital residence to the exclusion of
    the wife despite the fact that they owned the residence as tenants in common. Id. at 381, 424
    S.E.2d at 242. However, that case does not apply to the case at bar. In this case, the context of
    the issue arose during equitable distribution, which was not the case in Gaynor. As such, there
    are other factors to consider, which is exactly what the circuit court did.
             The circuit court expressly declined to award husband a credit for the payments,
    reasoning that “[b]oth parties benefited by the closeness of the houses because it made visitation
    and contact with the children an easy transition. The prior Court ruling was to maintain the
    status quo of the real property pending final resolution of the case.” This is perfectly acceptable
    under Code § 20-107.3(E)(10) which “allows the court to consider ‘[t]he use or expenditure of
    marital property by either of the parties for a nonmarital separate purpose or the dissipation of
    such funds, when such was done . . . after the last separation of the parties.’” McIlwain v.
    52 Va. App. 644
    , 653-54, 
    666 S.E.2d 538
    , 543 (2008) (emphasis in original) (quoting
    Code § 20-107.3(E)(10)). Thus, the circuit court was merely factoring the payments into the
    overall distribution of the marital estate.
                                                  E. Marital Debt
            Husband next argues that the circuit court erred in failing to award him credit for marital
    debts he paid for after the parties separated. His argument is again premised on the application
    of the “law of the case” doctrine. However, as discussed in Section II.A of this opinion, the law
    of the case doctrine does not apply to this case, because we remanded the equitable distribution
    in whole. As such, on remand the circuit court was free to distribute the marital debts as it found
    to be equitable.
                              F. Procedurally Defaulted Assignments of Error
            Finally, we decline addressing the merits of husband’s remaining assignments of error, as
    husband has defaulted them due to his failure to comply with the Rules and procedures of this
    Court. 6 It is well established that “‘[a]bsent clear evidence to the contrary in the record, the
    judgment of a trial court comes to us on appeal with a presumption that the law was correctly
    applied to the facts.’” Caprino v. Commonwealth, 
    53 Va. App. 181
    , 184, 
    670 S.E.2d 36
    , 37-38
    (2008) (quoting Yarborough v. Commonwealth, 
    217 Va. 971
    , 978, 
    234 S.E.2d 286
    , 291 (1977)).
    Therefore, “[a]n appellant who seeks the reversal of a decree on the ground that it is contrary to
    the law and the evidence has the primary responsibility of presenting to this court, as a part of the
    printed record, the evidence introduced in the lower court, or so much thereof as is necessary and
              Specifically, we do not address husband’s assignment of error that “[t]he trial court
    erred in not awarding the wife’s two IRAs to the husband given that the husband made all
    contributions to both accounts, there was no evidence that the husband gifted these contributions
    to the wife, and the wife admitted that she received no gifts.” Husband failed to provide an
    adequate appendix from which this Court can fully consider the merits of the assignment of
    error. As this issue is highly factual in nature, husband’s failure to provide us with an adequate
    appendix is so substantial as to default this assignment of error on appeal. Likewise, we are
    unable to consider husband’s assignment of error that “[t]he trial court erred in failing to give the
    husband full credit for the down payments made on both 312 and 318 West Leicester Street.”
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    sufficient for us to give full consideration to the assignment of error.” Lawrence, 200 Va. at
    598-99, 106 S.E.2d at 620.
           Rule 5A:25, as discussed in Section I of this opinion, requires appellant to file an
    appendix that “should generally contain everything relevant to the questions presented [now
    assignments of error].” Reid v. Commonwealth, 
    57 Va. App. 42
    , 49, 
    698 S.E.2d 269
    , 272
    (2010). While “‘[t]he Court of Appeals may . . . consider other parts of the record,’” id. at 49,
    698 S.E.2d at 272 (quoting Rule 5A:25(h)), the Court is under no obligation to do so, and we
    have not hesitated, when appropriate, to hold that an appellant has defaulted his argument when
    an appendix is woefully deficient. See Thrasher v. Burlage, 
    219 Va. 1007
    , 1009-10, 
    254 S.E.2d 64
    , 66 (1979); Patterson v. City of Richmond, 
    39 Va. App. 706
    , 718, 
    576 S.E.2d 759
    , 765
    (2003). This is because
                   The appendix is a tool vital to the function of the appellate process
                   in Virginia. Without it, the [judges] of this Court would have to
                   pass the original record from one to the other. Much of the
                   contents, though material at trial, may be utterly irrelevant to the
                   issues posed on appeal. By requiring the publication and
                   distribution of an appendix which excludes all irrelevancies, the
                   Rules of Court expedite the adjudication of the appeal and reduce
                   the costs. By requiring the inclusion of all parts of the record
                   germane to the issues, the Rules promote the cause of plenary
    Thrasher, 219 Va. at 1009-10, 254 S.E.2d at 66. We have also noted that this Court “will not
    search the record for errors in order to interpret [husband’s] contention and correct deficiencies
    in a brief.” Buchanan v. Buchanan, 
    14 Va. App. 53
    , 56, 
    415 S.E.2d 237
    , 239 (1992). Nor is it
    this Court’s “function to comb through the record . . . in order to ferret-out for ourselves the
    validity of [husband’s] claims.” Fitzgerald v. Bass, 
    6 Va. App. 38
    , 56 n.7, 
    366 S.E.2d 615
    , 625
    n.7 (1988) (en banc).
           In this case, the record consisted of four boxes filled with thousands of pages of
    documents. The nature of the record in a case like this increases the difficulty of dealing with
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    the logistics of sharing the record among three judges of this Court. Thus, it was critical that
    husband file an appendix that “contain[ed] everything relevant to the questions presented [now
    assignments of error]” in this case. Reid, 57 Va. App. at 49, 698 S.E.2d at 272. As husband
    failed to do so, and the result had a substantial impact on our ability to rule on the merits of the
    remaining arguments, we hold that he has defaulted his remaining arguments.
                                             G. Attorneys’ Fees
           Both husband and wife request attorneys’ fees on appeal. We decline husband’s request
    as he did not prevail on appeal. Further, we decline wife’s request, as the quality of her
    advocacy on appeal does not warrant such an award.
           Just as Rule 5A:20 governs appellants’ briefs, Rule 5A:21 provides certain requirements
    for the briefs of appellees. Rule 5A:21(b) requires “[a] statement of the case if the appellee
    disagrees with the statement presented by the appellant,” and Rule 5A:21(c) requires “[a]
    statement of the facts necessary to correct or amplify the statement in the brief of appellant with
    appropriate references to the pages of the transcript, written statement, record, or appendix.”
    wife’s statement of facts states general assertions that the facts presented by husband are
    incorrect but provide no references to the record where verification of her statements can be
    found. Moreover, wife combines her statement of facts with argumentative assertions and
    proceeds to lay out an entire argument that the issues on appeal are moot as a preface. This is
    not a statement of the case or facts and should be presented in the argument section of her brief.
    Furthermore, wife’s statement of the facts recounts numerous facts that are not relevant to any of
    the issues in this appeal, including a full inventory of every hearing that the circuit court held in
    this proceeding detailing the date and every person who testified at each hearing.
           Wife’s statement of the facts also includes a lengthy discussion about matters entirely
    outside the appendix and record in this case concerning the circuit judge who presided over the
                                                    - 12 -
    proceedings below. This discussion questions the circuit judge’s commitment to efficiently
    resolving the case. Such an accusation is needless and inappropriate to include on brief unless it
    is relevant to an actual issue on appeal, which was certainly not the case here.
            Wife’s brief also fails to comply with Rule 5A:21(d), which requires the appellee to
    include “[t]he standard of review and the argument (including principles of law and authorities)
    relating to each assignment of error.” Instead of providing the appropriate standard of review for
    each assignment of error, wife simply quotes a portion of the previous opinion this Court handed
    down in this case. However, that opinion was unpublished, and thus suffers from the same
    problem as many of the authorities relied upon in husband’s brief. In addition, wife’s brief fails
    to point us to the specific portions of the appendix that support the trial court’s factual findings
    and legal conclusions relevant to the issues raised by husband. Wife often fails to cite to any
    cases or statutes to support her argument. Finally, the certificate required by Rule 5A:21(g)
    provided by wife does not contain all of the information required under that Rule.
            For all of these reasons we do not find it appropriate to award appellate attorney’s fees to
                                               III. Conclusion
            For the reasons stated, we cannot conclude that the circuit court erred in its equitable
    distribution and child support rulings, and we therefore affirm the judgment below.
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