                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, Chafin and Senior Judge Haley
UNPUBLISHED



              MEGAN BRACALONI
                                                                              MEMORANDUM OPINION*
              v.     Record No. 1722-14-2                                         PER CURIAM
                                                                                  JUNE 2, 2015
              JOSHUA EDGE, JENNIFER LESLIE EDGE
               AND GREGORY EDGE


                                FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                                                Joseph J. Ellis, Judge

                               (Richard Camaur; Marzia Momen; The Camaur Law Firm, P.C., on
                               brief), for appellant.

                               (William C. Herbert, III; Gary D. Godman; Patricia Joshi, Guardian
                               ad litem for the minor child; Rappahannock Legal Services, Inc., on
                               brief), for appellee Joshua Edge.

                               (Thomas Woehrle; Rachel Bauer; Patricia Joshi, Guardian ad litem
                               for the minor child; Woerhle Franklin Dahlberg Jones PLLC, on
                               brief), for appellees Jennifer Leslie Edge and Gregory Edge.


                     Megan Bracaloni (mother) appeals an order affirming a custody and visitation agreement

              between her and Joshua Edge (father), Jennifer Leslie Edge (paternal grandmother), and Gregory

              Edge (paternal grandfather).1 Mother argues that the circuit court erred by “entering the parties’

              purported agreement without considering whether the provisions of the agreement were in the

              child’s best interest.” 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 circuit court. See

              Rule 5A:27.


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Paternal grandmother and paternal grandfather will be referred to collectively as the
              paternal grandparents.
                                         BACKGROUND

        In July 2013, mother appealed a custody and visitation order from the Spotsylvania

County Juvenile and Domestic Relations District Court that granted custody of the minor child to

the paternal grandparents and visitation to mother and father.

        The circuit court reappointed the guardian ad litem and set a trial date. At the request of

mother’s counsel, the trial date was continued from February 21, 2014 to August 15, 2014.

        On August 11, 2014, all of the parties, their counsel, and the guardian ad litem negotiated

and signed a custody and visitation agreement. The parties agreed that mother and father would

have joint legal custody of their child and father would have primary physical custody. The

agreement included a visitation schedule for mother and the paternal grandparents. Mother was

represented by counsel during the negotiations and execution of the agreement. The parties filed

the agreement with the circuit court. On August 22, 2014, the circuit court entered an order

stating that the agreement was “made the Final Order in this case.”

        On August 15, 2014, mother filed a pro se letter with the circuit court. She asked the

circuit court to “reconsider approving the signed settlement from August 11, 2014.” She stated

that she wanted “primary or sole custody” and felt that she was “under duress and forced to sign”

the agreement. The record does not indicate whether the circuit court saw this letter prior to its

entry of the August 22, 2014 order. On August 25, 2014, mother filed a second pro se letter with

the court. She again expressed concern about the terms of the agreement and stated that she was

“forced to sign” it.

        The circuit court accepted mother’s two letters as a motion to reconsider, and a hearing

was scheduled for September 10, 2014, which was less than twenty-one days after the entry of




                                                -2-
the final order.2 See Rule 1:1. Mother retained new counsel on September 9, 2014, but counsel

was not available for the September 10, 2014 hearing. At the hearing, the circuit court denied

mother’s request for a continuance in order for her counsel to be present because the court

“would lose jurisdiction if the matter were to be continued to a date convenient to all counsel.”

Mother told the circuit court that “she felt pressured to sign the agreement” and had changed her

mind about the terms of the agreement. She admitted that she had counsel at the meeting and

had the opportunity to confer with counsel prior to signing the agreement. From the bench, the

circuit court denied mother’s request to reconsider its August 22, 2014 order. It found that there

was “no evidence of fraud or duress.” The circuit court also stated that “merely changing one’s

mind” was not a circumstance that warranted vacating the parties’ agreement.

        On September 16, 2014, mother filed a notice of appeal of the August 22, 2014 order.

On September 23, 2014, mother filed a statement of objections to the August 22, 2014 order and

denial of her motion to reconsider. On September 29, 2014, the circuit court entered an order

denying mother’s motion to reconsider. Mother did not appeal the September 29, 2014 order.

                                              ANALYSIS

        The paternal grandparents and father argue that mother did not preserve her assignment of

error. We agree.

        The circuit court entered the final order on August 22, 2014. Mother subsequently filed two

pro se letters with the circuit court. The circuit court considered these letters as a motion to

reconsider. Mother did not ask the circuit court to enter an order to stay, vacate, or suspend the

August 22, 2014 order.




        2
         The paternal grandparents filed a motion for attorney’s fees. This Court will not
address the motion, since the court’s ruling on the motion was not appealed.
                                                -3-
       On September 10, 2014, within twenty-one days of the entry of the final order, the circuit

court held a hearing on mother’s motions. From the bench, the circuit court stated that it denied

mother’s motion to reconsider.

       A trial court speaks through its written orders. See McMillion v. Dryvit Systems, Inc., 262

Va. 463, 469, 552 S.E.2d 364, 367 (2001); Anonymous B v. Anonymous C, 51 Va. App. 657, 672,

660 S.E.2d 307, 314 (2008).

       The circuit court did not enter an order memorializing its ruling on mother’s motion to

reconsider until September 29, 2014, which was more than twenty-one days after the entry of the

August 22, 2014 order. Mother’s objections, filed on September 23, 2014, also were filed more

than twenty-one days after the entry of the August 22, 2014 order.

       Rule 1:1 states that all orders become final twenty-one days after their entry. In School Bd.

of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989), the

Supreme Court of Virginia held:

               Neither the filing of post-trial or post-judgment motions, nor the
               court’s taking such motions under consideration, nor the pendency
               of such motions on the twenty-first day after final judgment, is
               sufficient to toll or extend the running of the 21-day period
               prescribed by Rule 1:1 . . . . The running of time under [Rule 1:1]
               may be interrupted only by the entry, within the 21-day period
               after final judgment, of an order suspending or vacating the final
               order.

       This Court later stated:

               “In order to toll the time limitations of Rule 1:1 . . . , it is not
               sufficient for the trial judge merely to express a desire to consider
               action or take the issue under advisement; rather, the trial judge
               must issue an order modifying, vacating or suspending the [order]
               within twenty-one days of the entry of [the order].”

Vokes v. Vokes, 28 Va. App. 349, 356, 504 S.E.2d 865, 869 (1998) (emphasis added in original)

(quoting D’Alessandro v. Commonwealth, 15 Va. App. 163, 167, 423 S.E.2d 199, 201 (1992)); see

also Cloutier v. Queen, 35 Va. App. 413, 420, 545 S.E.2d 574, 577 (2001).

                                                -4-
       In this case, the circuit court did not enter an order with its ruling regarding the motion to

reconsider, nor did it enter an order that vacated or suspended the August 22, 2014 order, within

twenty-one days of its entry. The circuit court lost jurisdiction over the matter after September 12,

2014, which was the twenty-first day after the entry of the final order. Therefore, this Court will not

review the September 29, 2014 order and the circuit court’s ruling on the motion to reconsider.

Likewise, mother’s objections were not timely filed and will not be considered.

       Mother indicated that her assignment of error was preserved in her motion to reconsider and

her statement of objections, which were not timely. Therefore, mother’s assignment of error was

not preserved and will not be considered.

                                      Attorney’s fees and costs

       The paternal grandparents ask this Court to award them attorney’s fees and costs 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 they are entitled to a

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

reasonable award of attorney’s fees and costs incurred by them in this appeal.

                                            CONCLUSION

       For the foregoing reasons, the circuit court’s ruling is summarily affirmed.3 Rule 5A:27.

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

attorney’s fees and costs, which also should include any additional attorney’s fees and costs

incurred at the remand hearing.

                                                                                              Affirmed.




       3
          On April 28, 2015, the paternal grandparents filed motions to dismiss due to mother’s
failure to preserve her objections on the record and citation to material facts not in the record.
Considering our ruling, the motions to dismiss are denied.
                                                -5-
