                                COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Petty and Senior Judge Bumgardner


CATHERINE WU LAING
                                                                       MEMORANDUM OPINION *
v.      Record No. 2550-11-4                                               PER CURIAM
                                                                           MAY 15, 2012
ALEXANDER MARK LAING


                       FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                   Dennis J. Smith, Judge

                  (Catherine Wu Laing, pro se, on briefs).

                  (Cory Frederick Goriup; Surovell Isaacs Petersen & Levy, PLC, on
                  brief), for appellee.


        Catherine Wu Laing (wife) appeals a final order of divorce, which the trial court entered on

November 18, 2011. Wife argues that the trial court erred by (1) denying wife’s continuance

request because she was incapable of testifying at the hearing; (2) ruling that the former marital

residence was to be sold and ordering that the parties are to divide equally the costs of the repairs,

but not providing any specific deadlines or amounts; (3) holding that certain retirement assets were

Alexander Mark Laing’s (husband) separate property; and (4) awarding husband $4,690 for his

attorney’s fees and costs. Upon reviewing the record and briefs of the parties, we conclude that

this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. 1

See Rule 5A:27.



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
         On April 9, 2012, appellant filed a “Motion to Supplement Joint Appendix,” to which
appellee filed a response. Upon consideration whereof, the motion is denied.
       On April 26, 2012, appellant filed a “Motion for Emergency Restraining Order and
Continuance.” Upon consideration whereof, the motion is denied.
                                         BACKGROUND

       “When reviewing a trial court’s decision on appeal, we view the evidence in the light

most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”

Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).

       The parties married on October 13, 2002, separated on February 25, 2009, and divorced

on November 18, 2011. A final hearing was scheduled for November 2, 2011. The night before

the trial, husband’s counsel received an e-mail from wife who said that she could not attend the

hearing. Wife also sent a package via Federal Express explaining that she could not attend the

hearing for medical reasons and requested a continuance. On November 2, 2011, the trial court

noted wife’s absence and found that the documents she provided to support her request for a

continuance were not current. The trial court stated that the documents she provided did not

“indicate that she’s currently having any problem or difficulty, which would result in her

inability to be here today.” The trial court then denied wife’s request for a continuance.

       The trial court ruled the former marital residence was to be sold and the proceeds or

deficiency were to be divided equally. The trial court further held that wife’s IRA was marital

property to be divided equally. The marital share of husband’s 401K plan was to be divided

equally, and the remainder of husband’s 401K plan was husband’s separate property. Husband’s

IRA was his separate property. The trial court previously awarded husband $690 for his

attorney’s fees, and at the final hearing, the trial court awarded husband an additional $4,000 in

attorney’s fees.

       The trial court scheduled a hearing for November 18, 2011 for presentation of the final

decree. Wife appeared at the hearing and noted her objections to the final decree. The trial court

entered the order.




                                               -2-
       On December 7, 2011, wife timely filed a motion for reconsideration, but she did not

present or secure the entry of an order suspending the finality of the November 18, 2011 order,

which became final on December 9, 2011. Rule 1:1. On January 6, 2012, the trial court entered

an order denying the motion for reconsideration. That ruling is not appealed. Therefore, we

consider the case on the pre-decree record, the November 18, 2011 final order, and the

exceptions noted on that order.

                                           ANALYSIS 2

                                       Continuance Request

       Wife argues that the trial court erred in denying her continuance request due to her

inability to attend the November 2, 2011 hearing.

               The decision to grant a motion for a continuance is within the
               sound discretion of the circuit court and must be considered in
               view of the circumstances unique to each case. The circuit court’s
               ruling on a motion for a continuance will be rejected on appeal
               only upon a showing of abuse of discretion and resulting prejudice
               to the movant.

Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007).

       The day before the scheduled trial, wife requested a continuance. She submitted medical

documents to support her request. The trial court reviewed the documents and found that none

of them addressed her current medical situation nor did they confirm that she was unable to

attend the hearing. The trial court did not abuse its discretion in denying wife’s motion for a

continuance.




       2
         Aside from the four assignments of error, appellant raises numerous other issues in her
brief. Since the arguments were not presented as assignments of error pursuant to Rule
5A:20(c), nor were they preserved pursuant to Rule 5A:18, we will not consider them. Wife
acknowledges in her brief that she did not preserve all of her arguments. She requests that we
invoke the good cause and ends of justice exceptions to Rule 5A:18. We decline to do so. There
was no miscarriage of justice in this case, and neither exception applies.
                                                -3-
                                      Former Marital Residence

        Appellant argues that the trial court erred in its distribution of the former marital

residence.

        On appeal, “decisions concerning equitable distribution rest within the sound discretion

of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the

evidence.” McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing

Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)).

        Here, the trial court held that the former marital residence was to be sold and the net

proceeds, or deficiency, would be divided equally among the parties. The trial court also ruled

that “[e]ach party shall advance half of the necessary repair / fix-up costs when presented by the

realtor to each party.” Wife contends the trial court should have set a “specific amount and time”

to the repairs because she has to use her inheritance to pay for the repairs. Wife further questions

the value of the marital residence; however, the trial court did not award a specific dollar amount

to either party for their interest in the marital residence. Instead, the trial court ordered that the

marital residence be sold and the proceeds or deficiency divided equally.

        The trial court did not abuse its discretion in ordering the parties to divide the necessary

repairs to sell the home. Furthermore, the trial court did not abuse its discretion in ordering the

sale of the home.

                                          Retirement Assets

        As her third assignment of error, wife argues that the trial court erred in finding that

certain retirement accounts were husband’s separate property. However, in the argument section

of her brief, wife contends the trial court erred in its valuation of the retirement accounts. Wife

does not mention classification in the argument section of her brief. Therefore, we consider this

assignment of error waived. See Muhammad v. Commonwealth, 269 Va. 451, 478, 619 S.E.2d

                                                  -4-
16, 31 (2005) (“Failure to adequately brief an assignment of error is considered a waiver.”

(citation omitted)).

       We do not address wife’s argument regarding the trial court’s valuation of the retirement

assets because it was not included as an assignment of error pursuant to Rule 5A:20(c).

Furthermore, she did not preserve this argument in the trial court as required by Rule 5A:18

because it was not one of her objections to the final order.

       A pro se litigant appearing “is no less bound by the rules of procedure and substantive

law than a defendant represented by counsel.” Townes v. Commonwealth, 234 Va. 307, 319,

362 S.E.2d 650, 657 (1987); see also Francis v. Francis, 30 Va. App. 584, 591, 518 S.E.2d 842,

846 (1999) (“Even pro se litigants must comply with the rules of court.”).

                       Attorney’s Fees and Costs Awarded by the Trial Court

       Wife argues that the trial court erred in awarding husband $4,690 for his attorney’s fees

and costs.

       “‘[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion

and is reviewable on appeal only for an abuse of discretion.’” Richardson v. Richardson, 30

Va. App. 341, 351, 516 S.E.2d 726, 731 (1999) (quoting Graves v. Graves, 4 Va. App. 326, 333,

357 S.E.2d 554, 558 (1987)). “[T]he key to a proper award of counsel fees [is] reasonableness

under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1 Va. App. 272,

277, 338 S.E.2d 159, 162 (1985).

       Husband presented evidence that he incurred $13,720 in attorney’s fees and $629.33 in

costs, for a total of $14,349.33 as of November 2, 2011. Considering the circumstances of this

case, the trial court’s award of attorney’s fees in the amount of $4,690 is reasonable.




                                                -5-
                               Attorney’s Fees Incurred on Appeal

       Husband asks this Court to award him attorney’s fees incurred on appeal. See

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Having reviewed

and considered the entire record in this case, we hold that husband is entitled to a reasonable

amount of attorney’s fees, and we remand for the trial court to set a reasonable award of

attorney’s fees incurred by husband in this appeal.

                                         CONCLUSION

       For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.

We remand this case to the trial court for determination and award of the appropriate appellate

attorney’s fees.

                                                                          Affirmed and remanded.




                                               -6-
