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Browning v. Browning

Court of Appeals of Virginia

July 25, 2017

JANINE HELEN ADELMAN BROWNING
v.
LARRY GRANT BROWNING

         FROM THE CIRCUIT COURT OF WASHINGTON COUNTY Josiah T. Showalter, Jr., Judge Designate

          Thomas P. Walk (Altizer, Walk and White, PLLC, on briefs), for appellant.

          Robert M. Galumbeck (Galumbeck and Kegley, Attorneys, on brief), for appellee.

          Present: Judges Petty, Alston and Russell Argued at Lexington, Virginia

          OPINION

          WESLEY G. RUSSELL, JR. JUDGE

         Janine 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.

         BACKGROUND

         "On 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)).

         The 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 County.

         On May 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.[1]

         On 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.

         Shortly 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.[2]

         Because 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.

         It 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.

         A 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, 2014.

         No further ore tenus evidentiary hearings were conducted. The parties were permitted to submit for consideration additional exhibits and post-hearing memoranda.

         The 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, ...


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