Janice C Taylor v. Harry H Caccia ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
JANICE C. TAYLOR
MEMORANDUM OPINION * BY
v. Record No. 1733-02-2 JUDGE ROSEMARIE ANNUNZIATA
APRIL 22, 2003
HARRY H. CACCIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John R. Alderman, Judge
Augustus S. Anderson (Lieding & Anderson,
P.C., on briefs) for appellant.
Steven M. Marks for appellee.
Taylor appeals a final decree of divorce, which
incorporated an earlier separation agreement. She contends the
trial judge erred in ruling she waived any entitlement to her
husband's military pension benefits. For the reasons that
follow, we affirm.
The material facts underlying this appeal are not in
dispute. The parties were married in Ohio on January 23, 1959.
They adopted one child, Michael H. Caccia, who was born on
October 21, 1964. During the marriage, Caccia served as a
member of the United States Air Force.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On November 21, 1968, the parties entered into a separation
agreement ("agreement") in Maryland, which provided in part:
SIXTH: That the said Janice May Caccia
shall not claim any interest as wife; widow;
heir; next of kin; distributee or successor
in the real, personal or mixed property of
the said Harry Henry Caccia; and assigns to
hold or dispose of his property, free and
clear of all rights of hers, or which she
may have had except for this covenant.
* * * * * * * * *
NINTH: That in further consideration of the
premises, the parties hereto covenant and
agree that the property of the said Harry
Henry Caccia, real, personal and mixed, now
held by him absolutely, or subject to the
marriage rights of the said Janice May
Caccia, or which shall in any manner
hereafter devolve on him or the said Janice
May Caccia, in his right, shall be his sole
and separate property, wholly free from any
rights of the said Janice May Caccia, with
full power to him to convey, assign, charge
or will the same as if unmarried. And that
the said Janice May Caccia shall not, at any
time, claim any right in any of the property
as his wife, widow, heir, next of kin,
distributee or successor . . . .
Caccia filed a bill of complaint for divorce in Virginia on
March 9, 2001, on the ground that the parties had lived separate
and apart, without cohabitation, since their separation on
November 1, 1968. 1 Taylor filed a cross-bill of complaint on May
18, 2001 and an amendment to the cross-bill of complaint on
1
The trial judge found that Caccia purportedly obtained a
divorce in Alabama in 1969, that both parties agreed the Alabama
divorce was fraudulent, and that neither Caccia nor Taylor was a
participant in the fraud.
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July 10, 2001, alleging that Caccia's military pension should be
equitably distributed between the parties pursuant to Code
§ 20-107.3.
On July 23, 2001, the trial court entered an order stating
that Taylor was not entitled to a distribution of Caccia's
military pension, based on the separation agreement entered into
by the parties in 1968 and 10 U.S.C. § 1408. The court
incorporated the agreement into its order by reference. On June
11, 2002, the trial court entered a final divorce decree. No
objections were noted to the decree.
Analysis
On appeal, Taylor raises three arguments: 1) the plain
language of 10 U.S.C. § 1408 prohibited her from waiving an
interest in Caccia's military pension via the separation
agreement; 2) the agreement does not cover Caccia's military
pension because the pension was not Caccia's "property" when the
parties signed the agreement; and 3) Maryland law governs the
interpretation of the agreement because it was executed in
Maryland. Caccia contends each of Taylor's arguments is barred
procedurally by Rule 5A:18 because she failed to timely object
to the entrance of the order and final divorce decree at the
trial level. We agree the appeal is barred.
Rule 5A:18 states:
No ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
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grounds therefor at the time of the ruling,
except for good cause shown or . . . to
attain the ends of justice. A mere
statement that the award is contrary to the
law and the evidence is not sufficient to
constitute a question to be ruled upon on
appeal.
"The purpose of Rule 5A:18 is to allow the trial court to
correct in the trial court any error that is called to its
attention." Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736,
737 (1991). "A perhaps more compelling reason for the rule is
that it is unfair to the opposing party, who may have been able
to offer an alternative to the objectionable ruling, but did not
do so, believing there was no problem." Id. (citing Weidman v.
Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).
Code § 8.01-384 gives the following guidance for complying
with Rule 5A:18:
Formal exceptions to rulings . . . [are]
unnecessary; but for all purposes for which
an exception has heretofore been necessary,
it shall be sufficient that a party, at the
time the ruling or order of the court is
made or sought, makes known to the court the
action which he desires the court take or
his objections to the action of the court
and his grounds therefor.
An individual may satisfy the requirements of Rule 5A:18 and
Code § 8.01-384 in many ways. "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 514, 404 S.E.2d at 737
(citing Highway Comm'r v. Easley, 215 Va. 197, 207 S.E.2d 870- 4 -
(1974)); see also Campbell v. Commonwealth, 12 Va. App. 476,
480, 405 S.E.2d 1, 5 (1991) (en banc) (motion to strike the
evidence sufficient objection); McGee v. Commonwealth, 4
Va. App. 317, 321-22, 357 S.E.2d 738, 740 (1987) (motion to set
aside the verdict sufficient objection).
In the case at bar, Taylor made no objections to the trial
court's first order on July 23, 2001. The statement of facts
included in the record contains no indication that Taylor
presented her arguments to the trial court. Likewise, Taylor
did not "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 514, 404 S.E.2d at 737. The record is
devoid of any mention of the arguments Taylor now raises on
appeal.
Taylor contends that the trial court's order, reflecting
that counsel appeared and argued, and stating that it considered
the separation agreement and 10 U.S.C. § 1408, is sufficient to
satisfy Rule 5A:18. 2 We disagree. We cannot assume that, at the
hearing, counsel argued the same issues now raised on appeal and
simply did not include those arguments in the record.
Taylor further contends that we should invoke the "ends of
justice" and "good cause" exceptions to Rule 5A:18, on the
2
Taylor concedes in her opening brief to this Court that
the issues she raises on appeal were not preserved at the trial
level but later argues in her reply brief that the issues were
preserved.
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ground that the order and divorce decree denying her an interest
in Caccia's pension were void because they were not endorsed by
trial counsel. We disagree with Taylor's contention.
Rule 1:13 states:
Drafts of orders and decrees shall be
endorsed by counsel of record, or reasonable
notice of the time and place of presenting
such drafts together with copies thereof
shall be served . . . to all counsel of
record who have not endorsed them.
Compliance with this rule . . . may be
modified or dispensed with by the court in
its discretion.
As the Virginia Supreme Court noted, in Napert v. Napert,
261 Va. 45, 540 S.E.2d 882 (2001), there is no express
requirement that "a court must affirmatively state in its order
that it is exercising its discretion to take such action," in
order to modify or dispense with the requirements of Rule 1:13.
Id. at 47, 540 S.E.2d at 883.
Although a better practice would be for a
trial court to include a statement
reflecting its decision to exercise its
discretion, it properly exercised its
discretion to dispense with the Rule's
requirements. Courts are presumed to act in
accordance with the law and orders of the
court are entitled to a presumption of
regularity.
Id. at 47, 540 S.E.2d at 884 (citing Beck v. Semones' Adm'r, 145
Va. 429, 442, 134 S.E. 677, 681 (1926)). Thus, we presume the
trial court dispensed with the requirements of Rule 1:13 and
find that the absence of endorsements was not error.
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Taylor also argues that since she did not receive notice of
the entry of the final decree of divorce, we should hear her
appeal for "good cause" shown or to attain the "ends of
justice." Taylor does not support her argument with authority;
therefore, we need not consider it on appeal. See Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)
("Statements unsupported by argument, authority, or citations to
the record do not merit appellate consideration. We will not
search the record for errors in order to interpret appellant's
contention and correct deficiencies in a brief.").
Furthermore, the record clearly shows Taylor received
notice that the final divorce decree had been entered and thus
could have timely objected to it and to the failure, if any, to
send an earlier notice. The trial court entered its final
decree on June 11, 2002. On June 29, 2002, while the matter
remained within the trial court's jurisdiction, Taylor timely
filed her notice of appeal, evidencing that she received notice
of the final divorce decree. Thus, at that time, she also could
have made objections or exceptions to the decree and failed to
do so.
Accordingly, we affirm the decision of the trial court.
Affirmed.
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