THE CIRCUIT COURT OF WASHINGTON COUNTY Josiah T. Showalter,
Jr., Judge Designate
P. Walk (Altizer, Walk and White, PLLC, on briefs), for
M. Galumbeck (Galumbeck and Kegley, Attorneys, on brief), for
Present: Judges Petty, Alston and Russell Argued at
G. RUSSELL, JR. JUDGE
Browning ("wife") appeals an order of the circuit
court regarding the equitable distribution of the marital
estate and the award of spousal support resulting from her
divorce from Larry Browning ("husband"). Because we
find a trial transcript that was not timely filed is
indispensable to our resolution of the issues raised on
appeal, we consider those issues waived and affirm the
judgment of the trial court.
appeal, we view the evidence in the light most favorable to
husband, the prevailing party below, and grant him 'all
reasonable inferences fairly deducible therefrom.'"
Bajgain v. Bajgain, 64 Va.App. 439, 443, 769 S.E.2d
267, 269 (2015) (quoting Anderson v. Anderson, 29
Va.App. 673, 678, 514 S.E.2d 369, 372 (1999)).
parties were married on January 27, 1967. The instant divorce
action was initiated on April 30, 2007, when wife filed a
complaint for divorce in the Circuit Court of Washington
25, 2007, husband filed his answer and cross-complaint. Both
parties sought a divorce and equitable distribution; wife
additionally requested temporary and permanent spousal
support and attorney's fees. Because husband, an
attorney, practiced regularly before the court, a judge
designate was appointed. Wife filed a motion for the judge
designate to recuse himself, which was denied, and the
designated judge for several years thereafter heard numerous
pendente lite and ancillary matters and entered
orders in accord with his rulings. Ultimately, however, after
wife again moved for recusal on alternative grounds, the
initial judge designate recused himself by order dated
October 7, 2011, nunc pro tunc to August 23, 2011. A
second judge designate was appointed, but then also recused
himself. Ultimately, a third judge designate, who entered the
order from which this appeal is taken, was appointed as judge
designate on November 18, 2011.
March 6, 2012, a scheduling order was entered setting the
matter for a two-day trial in July 2012. In lieu of trial in
July 2012, a hearing was held on the parties' intervening
motions. On October 16, 2012, the court entered an order
reflecting its rulings on those issues and resetting the
trial date for November 19, 2012. On that date, the court
conducted an evidentiary hearing on the issues related to the
grounds of divorce, equitable distribution, and spousal
support. Alleged marital agreements and other items were
offered into evidence.
after the November 19, 2012 hearing, the court reporter
produced a transcript of the hearing. Copies of the
transcript were provided to counsel for the parties and the
trial judge. No copy of the transcript was filed with the
clerk of the trial court at that time.
additional time was needed for wife's expert witness to
update his report on the valuation of husband's law
practice and the evidentiary hearing had lasted longer than
the time allotted, the case was carried over to February 26,
2013. Thereafter, the matter again was continued and
rescheduled for a July 9, 2013 hearing.
appears that in June 2013, wife sought a further continuance.
Husband objected and filed a renewed motion for bifurcation
of the divorce from the property and support issues. The
court granted both requests. By order dated August 15, 2013,
the court memorialized the bifurcation, granted the parties a
divorce on separation grounds, and continued the other issues
generally. The remaining issues were noticed for a hearing on
January 8, 2014. In addition to the evidence adduced on that
date ore tenus, the court permitted the parties to
submit their expert witness testimony via deposition and
offered an opportunity for them to call potential other
witnesses live at a future date.
transcript of the January 8, 2014 hearing was prepared and
received by counsel for the parties. A copy of the transcript
was filed with the clerk of the trial court on March 10,
further ore tenus evidentiary hearings were
conducted. The parties were permitted to submit for
consideration additional exhibits and post-hearing memoranda.
trial court issued a letter opinion on July 16, 2016. Both
parties presented draft orders memorializing the court's
rulings for the court to review, and a brief hearing was held
on the matter. Ultimately, the court entered its final decree
regarding spousal support and equitable distribution on
November 16, ...