Ricky Parsons v. Diana Parsons ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Huff and Senior Judge Haley
UNPUBLISHED
RICKY PARSONS
v. Record Nos. 2184-12-4
DIANA PARSONS
MEMORANDUM OPINION *
RICKY PARSONS PER CURIAM
JUNE 4, 2013
v. Record Nos. 2352-12-4
DIANA PARSONS
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Brett A. Kassabian, Judge
(Marilyn Ann Solomon, on brief), for appellant.
(Gerald R. Curran; Curran Moher, P.C., on brief), for appellee.
These parties were before this Court last year. At that time, the Court reversed and
remanded some of the trial court’s rulings while affirming other rulings. Parsons v. Parsons,
No. 1051-11-4, 2012 Va. App. LEXIS 79 (Va. Ct. App. Mar. 20, 2012). The trial court has since
heard the matter on remand. Ricky Parsons (husband) appeals from the latest trial court rulings.
Husband argues that on remand, the trial court erred by (1) ordering the sale of his separate
property, namely the former marital residence; (2) awarding Diana Parsons (wife) $331,294 from
husband, when the award originally arose to compensate wife for husband’s encumbrance of marital
property for his separate purchases; and (3) assigning a value of $1,562,500 to the Utterback Store
Road property, when that value was over two years old, and the current fair market value is
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
$2,700,000. Upon reviewing the record and briefs of the parties, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the decision of the trial court. See Rule
5A:27.
BACKGROUND
On October 31, 1991, the parties entered into a premarital agreement, which addressed
property rights, support, debts, and obligations. The parties married on November 3, 1991 and
separated on March 11, 2009.
For three days, the parties presented evidence and argument regarding their
interpretations of the pre-marital agreement and how the parties’ property should be divided.
The trial court announced its rulings on March 3, 2011 and entered a final decree of divorce
incorporating those rulings on April 8, 2011. Husband filed a motion to reconsider, which the
trial court denied. Then, husband appealed the order to this Court.
On March 20, 2012, this Court affirmed the trial court’s ruling in part, reversed in part,
and remanded for further proceedings. The Court affirmed the trial court’s decision that the
Utterback Store Road property was subject to equitable distribution, but reversed the trial court’s
award of one-half of the equity in the property to wife. 1 The Court further found that husband
procedurally defaulted several issues, including his argument that the trial court erred in holding
him liable for the debt on the line of credit and ordering him to pay wife $331,294 and his
argument that the trial court erred in ordering the sale of the Utterback Store Road property.
On remand, the trial court reversed its ruling regarding the equitable distribution award of
the Utterback Store Road property. It held that wife had no interest in the Utterback Store Road
property, but would not modify the language in its prior order regarding the sale of the property
1
The Court also reversed the trial court’s ruling with respect to the UBS account, and on
remand, the trial court reversed its ruling regarding the UBS account. The UBS account is not
the subject of this appeal.
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because husband procedurally defaulted this issue on appeal. The trial court also determined that
since this Court found that husband procedurally defaulted on the issue of the line of credit, it
would not reconsider its prior ruling. The trial court issued its ruling from the bench on
November 7, 2012.
On November 13, 2012, husband filed a “Motion for Rehearing on the Sale of his
Separate Property” and a memorandum in support of his motion. A hearing was held on
November 16, 2012 for entry of the remand order, which was entered on that day. The trial court
subsequently entered an order denying the motion for rehearing regarding the sale of the real
estate on November 27, 2012.
On November 19, 2012, husband filed a “Motion for Rehearing due to Manifest
Injustice.” On January 4, 2013, the trial court informed counsel that this second motion for
rehearing was not brought to its attention within twenty-one days after the entry of the November
16, 2012 order. Therefore, the trial court held that it no longer had jurisdiction to consider the
motion.
ANALYSIS
Motion to Dismiss
On March 12, 2013, wife filed a motion to dismiss these appeals, to which husband filed
a response.
Wife argues that husband did not list the correct record number on his pleadings with the
Court. The confusion lies with the fact that husband filed a notice of appeal and an amended
notice of appeal. With each notice of appeal, the Court assigned a record number; therefore,
there were two record numbers assigned to this appeal. Assuming, without deciding, that
husband erroneously referred to an incorrect record number, or did not include a record number,
in any of his pleadings, we find that any potential deficiency is not fatal. Wife was aware of the
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issues being appealed and filed a brief on those issues. See Watkins v. Fairfax Cnty. Dep’t of
Family Services, 42 Va. App. 760, 771, 595 S.E.2d 19, 25 (2004) (citation omitted) (the “rules
have been designed to protect the appellee, not to penalize the appellant”).
The Court also rejects wife’s argument that husband’s notice of appeal was not timely.
On December 3, 2012, he filed a notice of appeal, which stated that he was appealing the “Final
Order of this Court entered on November 7, 2012.” On December 28, 2012, he filed an amended
notice of appeal, which stated that he was appealing “the Ruling of this Court on November 7,
2012, the Order of the Court on November 16, 2012, and the Rulings and/or Orders denying
Defendant’s Motion(s) to Reconsider entered on or about November 28, 2012.” Wife was placed
on notice of what husband was appealing. The fact that husband erroneously listed the date of
the oral ruling, as opposed to the date of the entry of the order, in his first notice of appeal does
not prejudice wife. Furthermore, husband timely noted his appeal of the order denying his
motion to reconsider the sale of the house.
In addition, wife argues that husband did not preserve his assignments of error because he
sent in his objections to the final order more than twenty-one days after the entry of the order. 2
We agree that we cannot consider the objections submitted to the trial court more than
twenty-one days after the entry of the final order. See Rule 1:1 (orders are final twenty-one days
after the entry of the order and are no longer subject to the trial court’s jurisdiction to modify,
vacate, or suspend). Rule 5A:18 states, “No ruling of the trial court . . . will be considered as a
basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
2
Husband argues that he submitted the objections to the trial court on November 16,
2012; however, the record does not include the objections submitted on that date. The record
reflects that husband’s objections were filed on December 11, 2012, which was more than
twenty-one days from the entry of the November 16, 2012 order.
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justice.” Although attaching objections to a final order is one way to preserve an argument for
appeal, it is not the only method. In a bench trial, an appellant can preserve his issues for appeal
in a motion to strike, in closing argument, in a motion to set aside the verdict, or in a motion to
reconsider. Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) (en banc). Here,
husband’s arguments were preserved in his closing argument and “Motion for Rehearing on the
Sale of his Separate Property.”
Upon consideration thereof, the motion to dismiss is denied. 3
Mandate – Assignments of error 1 and 2
On appeal, husband argues that the trial court erred in ordering the sale of the Utterback
Store Road property and awarding wife $331,294 based on the line of credit against the property.
Previously, this Court ruled on these exact issues. The Court held that husband waived the issue
that “the trial court abused its discretion in ordering the Utterback Store Road property to be
sold” because he failed to prove any argument on the issue in his brief. Parsons, 2012 Va. App.
LEXIS 79, at *22-23. In addition, the Court found that husband procedurally defaulted the issue
of whether “the trial court erred in holding him liable for the entire debt on the line of credit and
ordering him to pay wife $331,294” because he cited no legal authority in support of his
argument. Id. at *21. On remand, the trial court held that it could not address these issues
because it was “required to follow the mandate of the Court of Appeals” and the parties could
not relitigate the issues.
“When a case is remanded to a trial court from an appellate court, the refusal of the trial
court to follow the appellate court mandate constitutes reversible error.” Rowe v. Rowe, 33
Va. App. 250, 258, 532 S.E.2d 908, 912 (2000) (citations omitted).
3
Considering our denial of the motion to dismiss, we will not address husband’s
argument that wife failed to comply with Rule 5A:2(a)(1).
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“[T]he ‘mandate rule’ forecloses in the remand relitigation of matters decided expressly
or impliedly by the appellate court and relitigation of matters addressed by the trial court, but not
addressed on appeal.” West v. West, 59 Va. App. 225, 233, 717 S.E.2d 831, 834 (2011).
Husband is raising the same issues on appeal now that were addressed in the prior appeal.
This Court already held that husband waived the issues of the sale of the house and the payment
of the credit line. Therefore, the trial court was correct that husband could not relitigate those
issues because this Court had expressly decided them.
Ends of justice exception – Assignment of Error 2
Husband asks that this Court consider his argument regarding the $331,294 payment to
wife based on the ends of justice exception to Rule 5A:18. 4 He argues that he should not be
penalized for his prior attorney’s procedural error. As a result of the attorney’s procedural error,
husband contends wife will receive “an unjust windfall.”
The ends of justice exception applies to Rule 5A:18 and objections made at trial. It does
not apply to Rule 5A:20(e) and an attorney’s failure to cite to legal authorities to support an
argument. Accordingly, we will not reconsider his arguments.
Re-valuation – Assignment of Error 3
At the hearing on November 16, 2012, husband disagreed with the proposed remand
order, which stated that the Utterback Store Road property had a stipulated value of $1,562,500.
He explained that the stipulated value was approximately one and a half years old, and he did not
agree to the value. He alleged that the current value was $2,700,000, but offered no proof of the
current value. The trial court entered the proposed order as it was presented.
4
Rule 5A:18 states, “No ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except
for good cause shown or to enable the Court of Appeals to attain the ends of justice.”
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On appeal, husband contends the trial court erred by assigning the $1,562,500 value to
the Utterback Store Road property, as opposed to the current value of $2,700,000. Husband
relies on the holding in Rowe, 33 Va. App. 250, 532 S.E.2d 908, to support his argument.
In Rowe, the Court held:
Where an asset that is subject to equitable distribution is retained
by one of the parties for a period of time after valuation but before
the equitable division occurs and the asset significantly increases
or decreases in value during that time through neither the efforts or
fault of either party, neither party should disproportionately suffer
the loss or benefit from the windfall. Under those circumstances,
a trial court abuses its discretion by failing to re-value the
property when a party has made a timely motion to do so and is
prepared to present evidence on the issue.
Id. at 264-65, 532 S.E.2d at 915 (emphasis added). The Court in Rowe also cited Code
§ 20-107.3(A), which states, “Upon motion of either party made no less than twenty-one days
before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of
justice, order that a different valuation be used.”
Unlike the wife in Rowe, husband did not file a timely motion to re-value the Utterback
Store Road property. The Court issued its opinion on March 20, 2012, and on November 7,
2012, the trial court heard the case on remand. The trial court asked wife’s counsel to prepare an
order reflecting the stipulated value of the Utterback Store Road property. Husband did not
object. After issuing its ruling, the trial court ordered that the parties return on November 16,
2012 to present the remand order. On November 13, 2012, three days before the hearing for
entry of the order, husband filed a “Motion to Obtain Fair Market Value for the Sale Price of his
House.” 5 Husband made his argument to the trial court about the need for a current value for the
Utterback Store Road property at the hearing on November 16, 2012. He did not present any
5
Husband’s motion is not contained in the appendix pursuant to Rule 5A:25; however, it
is in the trial court’s record.
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evidence on the current value of the property, only his statement that “the current value is 2.7
million.”
Since husband did not file a timely motion and did not present evidence of the current
value, the trial court did not abuse its discretion by refusing to re-value the property.
Attorney’s fees
Both parties have requested an award of attorney’s fees incurred on appeal. See
O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Having reviewed
and considered the entire record in this case, we hold that wife is entitled to a reasonable amount
of attorney’s fees, and we remand for the trial court to set a reasonable award of attorney’s fees
incurred by wife in these appeals, including those fees incurred on remand for the determination
of appellate fees. We deny husband’s request for attorney’s fees.
CONCLUSION
For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.
We remand for the trial court to enter an order in accordance with this Court’s March 20, 2012
order concerning the Utterback Store Road property. We also remand this case to the trial court
for determination and award of the appropriate appellate attorney’s fees.
Affirmed and remanded.
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