802 S.E.2d 178
Va. Ct. App.2017Background
- Janine Browning (wife) and Larry Browning (husband) were married in 1967; wife filed for divorce in 2007. The case proceeded over many years with multiple judge-designates and multiple evidentiary hearings.
- Major evidentiary hearings occurred on November 19, 2012 and January 8, 2014; transcripts were produced and provided to counsel but the November 19, 2012 transcript was not filed with the trial court clerk until January 19, 2017.
- The trial court issued a letter opinion in July 2016 and a final decree on November 16, 2016, resolving divorce, equitable distribution, and spousal support (bifurcation had occurred earlier). Wife appealed on December 7, 2016.
- Wife’s appeal challenges equitable distribution, property classification, trust interpretation, division of personal property, attorney’s fees, and the spousal-support commencement date.
- Husband moved to dismiss or limit the appeal based on the appellant’s noncompliance with the Court of Appeals’ transcript-filing rules (Va. Sup. Ct. Rules 5A:7–5A:9), arguing the November 19, 2012 transcript was not part of the record.
Issues
| Issue | Plaintiff's Argument (Browning) | Defendant's Argument (Husband) | Held |
|---|---|---|---|
| Whether failure to file Rule 5A:8(b) notice merits sanction | Wife did not file the required notice of filing transcripts | Husband said lack of notice warrants striking transcripts or dismissal | No sanction: husband suffered no material prejudice from missing notice, so transcripts were not stricken for that reason |
| Whether November 19, 2012 transcript became part of the record under Rule 5A:8(a) | Transcript was timely (counsel and judge had copies; reporter provided transcript in 2013) | Transcript was not filed with the clerk within 60 days after final judgment, so it is not in the record | Held not part of the record: Rule requires filing in clerk’s office, not delivery to judge; transcript filed Jan 19, 2017 missed Rule 5A:8(a) deadline |
| Effect of an untimely transcript on appellate review | Inclusion would not prejudice husband; appellate resolution should consider the 2012 transcript | Untimely-filed transcript is excluded and assignments of error dependent on it are waived under Rule 5A:8(b)(4)(ii) | Assignments of error that are "indispensable" to resolution and depend on the missing transcript are waived; here the November 19, 2012 transcript was indispensable, so errors waived |
| Appropriateness of dismissing the appeal entirely | Wife implicitly opposed dismissal; sought review of merits | Husband sought dismissal of appeal due to record defects | Court declined dismissal of entire appeal but affirmed trial court because key assignments were waived for lack of a timely-recorded transcript |
Key Cases Cited
- Belew v. Commonwealth, 284 Va. 173 (interpretation of Rules de novo)
- Smith v. Commonwealth, 281 Va. 464 (transcript-filing requirement is procedural, non-jurisdictional)
- Shiembob v. Shiembob, 55 Va. App. 234 (untimely transcript: assignments of error waived when transcript indispensable)
- White v. Morano, 249 Va. 27 (onus on appellant to provide sufficient record; insufficient record leads to affirmance)
- Bajgain v. Bajgain, 64 Va. App. 439 (standards for viewing the evidence on appeal)
- Brandau v. Brandau, 52 Va. App. 632 (standard for awarding appellate attorney’s fees)
- GEICO v. Hall, 260 Va. 349 (expressio unius maxim applied in statutory/rule interpretation)