Saeid Montakhabi v. Nayer Montakhabi ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
SAEID MONTAKHABI
MEMORANDUM OPINION*
v. Record No. 1531-04-4 PER CURIAM
JANUARY 18, 2005
NAYER MONTAKHABI
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
(Karen Leiser; Leiser & Associates, PLLC, on brief), for appellant.
Appellant submitting on brief.
No brief for appellee.
Saeid Montakhabi, husband, appeals a final decree of the trial court granting a divorce to the
parties. On appeal, husband argues the trial court erred by: (1) awarding Nayer Montakhabi, wife,
the marital home in its entirety; and (2) refusing to consider the parties’ pre-marital agreement
contained in their Iranian marriage certificate. In addition, husband asks as a question presented
whether the ruling of the trial judge can be upheld when the record is insufficient to review the trial
judge’s decision. We dismiss husband’s appeal, finding that he has not provided this Court with an
adequate record for us to determine the issues.
Husband contends the trial court erred by awarding wife the marital home in its entirety and
granting husband no comparable award.
“The judgment of the trial court is presumed correct and he who asserts the contrary is
required to overcome the presumption by record proof . . . .” Kaufman v. Kaufman, 7 Va. App.
488, 499, 375 S.E.2d 374, 380 (1988). The burden is on the party seeking reversal to submit to the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
appellate court a record that enables the court to determine whether there has been an error. See
Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993). “When the appellant fails
to ensure that the record contains transcripts or a written statement of facts necessary to permit
resolution of appellate issues, any assignments of error affected by such omission shall not be
considered.” Rule 5A:8(b); see Anderson v. Commonwealth, 13 Va. App. 506, 508-09, 413 S.E.2d
75, 76-77 (1992).
Here, a transcript or a written statement of facts complying with Rule 5A:8(c) is
indispensable to determining whether the trial court erred in making the equitable distribution
award. The record contains no transcripts of any court proceedings in this case. Husband included
in the appendix a copy of a written statement of facts which is not signed by the trial judge in
compliance with Rule 5A:8(c). However, the circuit court record includes a written statement of
facts which is signed by the trial judge. That statement of facts also contains a handwritten addition
initialed by the trial judge and consisting of a specific factual finding made by the judge that is
pertinent to the equitable distribution award. However, the copy of the written statement of facts
husband incorporated into the appendix does not contain this addition or the trial judge’s signature.
The appendix must include “any testimony and other
incidents of the case germane to the questions presented,” Rule
5A:25(c)(3), and “exhibits necessary for an understanding of the
case that can reasonably be reproduced,” Rule 5A:25(c)(6). “The
appendix is a tool vital to the function of the appellate process in
Virginia. . . . By requiring the inclusion of all parts of the record
germane to the issues, the Rules promote the cause of plenary
justice.” Thrasher v. Burlage, 219 Va. 1007, 1009-10, 254 S.E.2d
64, 66 (1979) (per curiam). Thus, the filing of an appendix that
complies with the Rules, is “essential to an informed collegiate
decision.” Id.
Patterson v. City of Richmond, 39 Va. App. 706, 717, 576 S.E.2d 759, 764-65 (2003).
Husband had the responsibility to provide this Court with an adequate record of the trial
proceedings to enable the Court to reasonably understand the nature of the appeal and the
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underlying facts upon which the appeal is based. Buchanan v. Buchanan, 14 Va. App. 53, 56,
415 S.E.2d 237, 239 (1992). An appellate court does not have the responsibility of scouring the
record to understand the facts necessary to support a party’s legal position. Id. Here, husband
has failed to provide us with an adequate appendix to enable us to address the issue he raises.
Because the appendix filed in this case does not contain a part of the record that is essential to
the resolution of the first issue before us, we will not decide the issue.
As his second question presented, husband asks, “Can the ruling of the trial court to
award wife the marital home be upheld on appeal when the record is insufficient to allow the
appellate court to review the correctness of the chancellor’s determination?” We addressed this
question above by finding that the record on appeal is inadequate to address husband’s first issue.
However, we also note that wife had no duty to provide a transcript or written statement of facts
in this appeal.
In his third question presented, husband asserts that the trial judge erred by refusing to
consider the parties’ pre-marital agreement when making the equitable distribution award. After
the trial court hearing in this case, husband filed a motion for reconsideration, contending that
the trial judge should reconsider its decision in light of a pre-nuptial agreement contained in the
parties’ Iranian marriage certificate, a copy of which husband obtained after the hearing.
However, the appendix contains no order from the trial judge denying a motion for
reconsideration, and without such an order, a transcript, or written statement of facts addressing
this issue, the record is inadequate for this Court to consider the issue. “The burden is upon the
appellant to provide us with a record which substantiates the claim of error. In the absence
thereof, we will not consider the point.” Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App.
1178, 1185, 409 S.E.2d 16, 20 (1991).
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For the foregoing reasons, husband’s appeal is dismissed.
Dismissed.
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