Songthara Omkar, Jr. v. Teresita C. Omkar
0820171
| Va. Ct. App. | Dec 19, 2017Background
- Appellant (Omkar) appealed an order enforcing the divorce decree allocation of his military retirement pay to appellee (Teresita Omkar).
- Appellant's original opening brief lacked record references required by Rule 5A:20(c); the court ordered an amended brief.
- Amended brief added four assignments of error and a single paragraph asserting preservation via a motion for reconsideration but did not cite record locations for preservation.
- Appellee moved to dismiss for noncompliance with Rule 5A:20(c). The trial court’s final order bore appellant’s endorsement "Seen and objected to" but the record contains no ruling or docketed hearing on his April 13 motion for reconsideration.
- The Court of Appeals held the motion for reconsideration did not demonstrate the trial court was given an opportunity to rule; therefore the preservation assertion did not satisfy Rule 5A:20(c), and the appeal was dismissed. The court also awarded appellee attorney’s fees and remanded to determine the amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant preserved issues for appeal via motion for reconsideration | Motion for reconsideration preserved assignments of error (citing Majorana) | Motion was not ruled on or placed on docket; record lacks ruling or notice to trial court | Not preserved; preservation must show trial court had opportunity to rule; dismissal for Rule 5A:20(c) noncompliance |
| Whether endorsement "Seen and objected to" preserved issues | Endorsement on final order preserved objection | Endorsement insufficient because it did not comply with Rule 5A:20(c) or show trial court ruled | Endorsement did not preserve issues under Rule 5A:20(c) |
| Whether failure to cite record locations in opening brief warrants dismissal | Appellant contended amended brief preserved issues via motion for reconsideration | Appellee moved to dismiss for lack of record citations under Rule 5A:20(c) | Dismissal appropriate where appellant failed to cure briefing defect |
| Whether appellee is entitled to attorney’s fees and costs on appeal | N/A (appellee requested fees) | Appellant offered no basis to deny fees after dismissal | Court granted appellee fees and remanded to trial court to determine amount |
Key Cases Cited
- Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521 (trial-court ruling on motion to reconsider can preserve issue for appeal)
- Juniper v. Commonwealth, 271 Va. 362 (failure to request ruling waives assignment of error)
- Brandon v. Cox, 284 Va. 251 (motion for reconsideration preserves issue only if record shows request for and receipt of ruling)
- Scialdone v. Commonwealth, 279 Va. 422 (objections must be specific and timely so trial court can address and rectify error)
- Brooks v. Commonwealth, 61 Va. App. 576 (dismissal appropriate when appellant fails to cure briefing defects)