                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Petty and Beales
PUBLISHED


            Argued at Richmond, Virginia


            JUDY KAY REAVES
                                                                                 OPINION BY
            v.     Record No. 1546-16-2                                     JUDGE WILLIAM G. PETTY
                                                                                 JUNE 13, 2017
            JAMES KELLY TUCKER


                           FROM THE CIRCUIT COURT OF KING AND QUEEN COUNTY
                                           Jeffrey W. Shaw, Judge

                           Brandy M. Poss (DeFazio Bal, P.C., on brief), for appellant.

                           Monique W. Donner (Breckenridge Ingles; Martin Ingles &
                           Hensley, Ltd., on brief), for appellee.


                   In this appeal, we conclude that the trial court was not required to stay the scheduled trial

            when one of the parties filed a notice of appeal to this Court in an attempt to appeal an

            interlocutory order that was not subject to appeal. We also conclude that the trial court’s

            enforcement of the pretrial scheduling order and the pretrial conference order was not an abuse

            of its discretion. We therefore affirm the trial court’s decisions.

                                                    I.  BACKGROUND

                   Judy Kay Reaves (wife) and James Kelly Tucker (husband) were married in 2009. The

            couple separated in 2014. In December of that year, husband filed a complaint seeking

            determination of his temporary support obligation, but not divorce. Wife counter-claimed for

            divorce.

                   A pretrial conference was held on June 29, 2015, when both parties were represented by

            counsel. To memorialize the stipulations and agreements made by the parties at the pretrial

            conference, the trial court entered two orders on August 24, 2015. A pretrial conference order
(conference order) established, among other things, the stipulations and burdens of proof

regarding equitable distribution and spousal support. The pretrial scheduling order (scheduling

order) established a trial date of March 17, 2016. It required wife to submit to husband by

October 27, 2015, appraisals of any property owned by husband prior to the marriage that wife

contended had increased in value during the marriage. Husband was required to submit to wife

by January 10, 2016, appraisals of any property for which husband contested the appraisal

submitted by wife. The scheduling order required both parties to file with the trial court fifteen

days prior to trial a list of exhibits and proposed witnesses. It warned, “Any exhibit or witness

not so identified and filed will not be received in evidence, except in rebuttal or for impeachment

. . . .” Additionally, the scheduling order provided, “Absent leave of court, any motion in limine

which requires argument exceeding five minutes shall be duly noticed and heard before the day

of trial.” Finally, it established, “Continuances will only be granted by the court for good cause

shown.” Neither party objected to either order.

              On January 8, 2016, the trial court granted wife’s counsel’s request to withdraw. On

February 25, 2016, the trial court denied wife’s request for a continuance. Wife, acting pro se,1

filed a notice of appeal on March 7, 2016, seeking review by this Court of the trial court’s order

denying her request for a continuance. Wife did not request this Court to stay the proceedings in

the trial court pending resolution of her appeal. This Court dismissed the appeal without

prejudice on March 22, 2016, because the appeal “ha[d] been filed prematurely as it was not a

final dispositive order entered in that case.”2 On March 17, 2016, which was the date set by the

scheduling order for trial, the trial court denied wife’s request to stay the trial on the basis of the

                                                            
              1
                  Wife is represented in this appeal by new counsel.
              2
        Wife does not assign error in this appeal to the trial court’s February 25, 2016 decision
denying her motion for continuance.

                                                               ‐ 2 -
pending appeal and denied her new motion for a continuance. The trial court granted husband’s

request to prohibit wife from calling witnesses or introducing exhibits that had not been

disclosed pursuant to the deadline imposed by the scheduling order. Although husband had

disclosed his list prior to the deadline, wife had made no disclosure. The trial court ruled,

however, that wife herself could testify and that she could present witnesses or exhibits in

rebuttal to or impeachment of husband’s evidence.

              Wife’s assignments of error essentially flow from the trial court’s enforcement of the

conference order and the scheduling order.

                                                               II. ANALYSIS

                     A. WIFE’S MOTION TO STAY TRIAL PENDING HER INTERLOCUTORY APPEAL 

              Wife argues that the trial court erred by denying her motion to stay, which she made at

the March 17, 2016 trial.3 Her assignment of error states,  

                             At the time of the March 17, 2016 hearing, an appeal was pending
                             in the Court of Appeals of Virginia regarding Wife’s appeal of the
                             trial court’s February 25, 2016 Order. Accordingly, the Court of
                             Appeals of Virginia had jurisdiction over the parties and the
                             subject matter of the suit. The trial court did not have jurisdiction
                             on March 17, 2016 to hear any evidence or make any decisions
                             regarding the parties’ divorce matter.  
                               
              We first note that wife concedes that this Court lacked subject matter jurisdiction to

address the merits of her appeal from the February 25, 2016 order. Wife nevertheless argues that

the mere filing of the notice of appeal transferred jurisdiction over the case to this Court, and

divested the trial court of jurisdiction to proceed until this Court dismissed the appeal. Simply



                                                            
              3
          The record does not show that wife expressly asked the trial court for a stay on the basis
that she had filed a notice of appeal to this Court. Wife’s argument before the trial court did not
distinguish between her request for a stay and her request for a continuance. Nevertheless, the
trial court treated her argument as both a motion for stay on the basis the trial court had lost
jurisdiction to proceed, which we address here, and a motion for continuance, which we address
infra at II.B.1.
                                                 ‐ 3 -
put, the issue before us is whether a trial court must stay all proceedings in a case when a party

files a notice of appeal regarding an interlocutory order over which this Court lacks subject

matter jurisdiction. 

              A challenge to a trial court’s jurisdiction is a question of law that is reviewed de novo on

appeal. Mayer v. Corso-Mayer, 62 Va. App. 713, 724-25, 753 S.E.2d 263, 268 (2014). 

              It is well-established that “[t]he orderly administration of justice demands that when an

appellate court acquires jurisdiction over the parties involved in litigation and the subject matter

of their controversy, the jurisdiction of the trial court from which the appeal was taken must

cease.” Greene v. Greene, 223 Va. 210, 212, 288 S.E.2d 447, 448 (1982) (emphasis added).

“When a party files a notice of appeal, that notice ‘effectively transfers jurisdiction from the

lower court to the appellate court and places the named parties within the jurisdiction of the

appellate court.’” McCoy v. McCoy, 55 Va. App. 524, 528, 687 S.E.2d 82, 84 (2010) (quoting

Watkins v. Fairfax Cty. Dep’t of Family Servs., 42 Va. App. 760, 771, 595 S.E.2d 19, 25

(2004)).

              However, “the Court of Appeals of Virginia is a court of limited jurisdiction. Unless a

statute confers jurisdiction to this Court, we are without power to review an appeal.”4 Prizzia v.

Prizzia, 45 Va. App. 280, 286, 610 S.E.2d 326, 329 (2005) (quoting Canova Elec. Contracting,



                                                            
              4

                             As pertinent to the case before us, the provisions of Code
                             § 17.1-405 grant subject matter jurisdiction to the Court of Appeals
                             over “[a]ny final . . . decree of a circuit court involving . . .
                             [a]ffirmance or annulment of a marriage; . . . divorce; [and] any
                             interlocutory decree . . . entered in [such] cases . . . adjudicating
                             the principles of a cause.” Code §§ 17.1-405(3)(a), (b)
                             and -405(4)(ii).

Lewis v. Lewis, 271 Va. 520, 525, 628 S.E.2d 314, 317 (2006) (alterations in original).
 
 
                                                               ‐ 4 -
Inc. v. LMI Ins. Co., 22 Va. App. 595, 599, 471 S.E.2d 827, 829 (1996)). “While a court always

has jurisdiction to determine whether it has subject matter jurisdiction, a judgment on the merits

made without subject matter jurisdiction is null and void.” Porter v. Commonwealth, 276 Va.

203, 228, 661 S.E.2d 415, 427 (2008) (quoting Morrison v. Bestler, 239 Va. 166, 170, 387

S.E.2d 753, 755-56 (1990)). Consequently, a notice of appeal cannot transfer to this Court

jurisdiction over the subject matter of a case if that subject matter is not within this Court’s

limited jurisdiction.5

              Here, wife appealed to this Court on March 7, 2016, the trial court’s February 25, 2016

order denying her motion for a continuance. This Court had jurisdiction to determine whether

the appeal fell within its subject matter jurisdiction. When this Court determined that the appeal

did not, we dismissed the appeal on March 22, 2016, because the appeal “ha[d] been filed

prematurely as it was not a final dispositive order entered in that case.” Contrary to wife’s

argument, this Court never acquired jurisdiction over the case because the order being appealed

did not fall within this Court’s subject matter jurisdiction.

              Wife’s reliance on Kotara v. Kotara, 55 Va. App. 705, 710, 688 S.E.2d 908, 910 (2010),

    for her argument that this Court gained jurisdiction over the litigation is misplaced. In Kotara,

this Court held that although we never acquired subject matter jurisdiction to hear the appeal, we



                                                            
              5
                   In contrast, when this Court does have subject matter jurisdiction over an appeal, “the
appellate court acquires jurisdiction over that case to the exclusion of the trial court, except to the
extent the trial court must act to enforce the order pending appeal.” Holden v. Holden, 35
Va. App. 315, 327, 544 S.E.2d 884, 889 (2001); see Walton v. Commonwealth, 256 Va. 85, 95,
501 S.E.2d 134, 140 (1998) (refusing to consider a purported “nunc pro tunc sentencing order”
signed by the trial court after defendant filed a notice of appeal “because the trial court was
divested of jurisdiction once the defendant filed his notices of appeal”); McCoy, 55 Va. App. at
528, 687 S.E.2d at 84 (addressing the merits of the appeal and concluding “the trial court did not
have jurisdiction to vacate that order once [appellant] noted his appeal to this Court”); Frazer v.
Frazer, 23 Va. App. 358, 380, 477 S.E.2d 290, 300 (1996) (addressing appeal of a final order on
the merits and concluding “the trial court had no jurisdiction to modify the child support award
without leave from this Court” once the notice of appeal was filed). 
                                                  ‐ 5 -
nonetheless had personal jurisdiction over the parties for purposes of awarding attorney’s fees

pursuant to Code § 20-99(5). Id. This Court concluded that “an appellant’s imprudent decision

to appeal a case prematurely” could cause “an appellee to incur significant attorney’s fees” and

that “equity and justice” permits this Court to award attorney’s fees even when we have no

subject matter jurisdiction to hear the appeal. Id. Kotara did not suggest that this Court gained

jurisdiction over the litigation at issue, nor that the trial court lost jurisdiction. 

        Here, because jurisdiction to address the merits of the appeal was never transferred to this

Court, the trial court never lost jurisdiction to adjudicate this case. Because wife did not request

this Court to stay the proceedings in the trial court during the appeal, the trial court did not abuse

its discretion by proceeding with the trial as scheduled.  

        As a practical matter, when a notice of appeal of an interlocutory order is filed, the trial

court proceeds at its own risk. As with any appeal, if this Court reverses the trial court’s decision

and remands the case back to the trial court, then any decision by the trial court subsequent to the

order being appealed that is in conflict with the resolution of the appeal by this Court will have

no force and effect. See McCoy, 55 Va. App. at 527, 687 S.E.2d at 83 (treating trial court’s

action to be of no effect where trial court purportedly vacated an order while that order was

being appealed to this Court). If the trial court has doubt whether the appellate court will reverse

its interlocutory order, “it may decline to act further until the purported appellee obtains

dismissal of the appeal in the court of appeals.” Ruby v. Sec’y of U. S. Navy, 365 F.2d 385, 389

(9th Cir. 1966) (en banc); see de Haan v. de Haan, 54 Va. App. 428, 444, 680 S.E.2d 297, 306

(2009) (noting trial court stayed the proceedings while this Court reviewed the interlocutory

appeal and determined what qualified as “principle of a cause”). In such a situation, a stay may

promote judicial efficiency in the administration of the litigation. In contrast, “[w]here the

deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference

                                                   ‐ 6 -
to a nonappealable order, is clear to the [trial] court, it may [exercise its discretion] . . . and

proceed with the case, knowing that it has not been deprived of jurisdiction.” Ruby, 365 F.2d at

389. 

        Here, the trial court reasoned that judicial efficiency would be served best by proceeding

with the case. The trial court noted,  

                As to the appeal to the Court of Appeals, it’s not for me to
                determine whether or not you can appeal the order of denying the
                continuance. It’s up to the Court of Appeals to determine what
                their jurisdiction is and what appeals they may hear. However,
                from my point of view I don’t believe that this would count as an
                authorized interlocutory appeal. For that reason, I’m going to deny
                any request to stay the hearing set on today’s date. 
                  
Because the trial court retained jurisdiction over the case, it had the discretion to decide whether

to stay the trial pending the appeal or to proceed with the trial. Having weighed the potential

judicial inefficiency of staying the trial with the potential judicial inefficiency of proceeding with

the trial, the trial court did not abuse its discretion when it chose to proceed.  

        In summary, the trial court was not required to stay its proceedings while wife attempted

to appeal a nonappealable interlocutory order. To conclude otherwise would “deliver into the

hands of each litigant the ability to freeze matters in the [trial] court simply by filing a notice of

appeal, no matter how frivolous.” Gucci Am. v. Gold Ctr. Jewelry, 997 F. Supp. 399, 402

(S.D.N.Y. 1998), reversed in part on other grounds, 158 F.3d 631 (1998).  

        Our conclusion is consistent with other jurisdictions that have addressed this issue. See,

e.g., In re Grand Jury Proceedings, 795 F.2d 226, 231 (1st Cir. 1986) (“While the filing of a

notice of appeal divests the district court of its control over those aspects of the case involved in

the appeal, an untimely, impermissible or frivolous appeal does not vest jurisdiction in the court

of appeals.” (internal citation and quotation marks omitted)); Yaeger v. Vance, 513 P.2d 688,

690 (Ariz. Ct. App. 1973) (“Since the order attempted to be appealed from was not appealable,

                                                  ‐ 7 -
the trial court did not err by continuing with its jurisdiction . . . .”); Illinois v. Benda, 464 N.E.2d

1268, 1271 (Ill. App. Ct. 2d Dist. 1984) (adopting the reasoning of “[s]everal Federal appellate

court opinions [that] have concluded that an appeal from a nonappealable order does not deprive

the trial court of jurisdiction”); Breuer v. Flynn, 496 A.2d 695, 700 (Md. Ct. Spec. App. 1985)

(“[Where] nonappealable interlocutory orders were appealed to [appellate] court, the [trial] court

was not divested of its jurisdiction to proceed with the trial of the case and resolve the issues

before it.”); Montana ex rel. Adamson v. District Court, 279 P.2d 691, 694 (Mont. 1955)

(reasoning that where there is no statutory support for the filing of a notice of appeal, “the lower

court and its judge did not thereby lose jurisdiction. Nor thereby did [the appellate c]ourt acquire

jurisdiction.”); New Mexico v. Lobato, 134 P.3d 122, 129 (N.M. Ct. App. 2006) (“Where a

non[appealable] order is improperly appealed, the trial court is not divested of jurisdiction.”);

Dalenko v. Peden Gen. Contrs., Inc., 676 S.E.2d 625, 630 (N.C. Ct. App. 2009) (“[A] trial court

is not divested of its jurisdiction to determine a case on its merits where the litigant appeals a

non-appealable interlocutory order. In such instances, the trial court is not required to stay the

proceedings . . . .” (citation omitted)).

        Our conclusion also comports with the General Assembly’s policy limiting interlocutory

appeals. Requiring a trial court to stay action every time an interlocutory order is appealed  

                would permit divorce litigants to appeal each order of the trial
                court adjudicating the divorce, custody, equitable distribution,
                child support, or spousal support. The resulting inefficiency would
                compel this Court to repeatedly entertain the same suit and
                significantly delay the progress of the case at the trial level as the
                case halted pending the appeal. . . . We do not believe the General
                Assembly intended these consequences.

de Haan, 54 Va. App. at 443, 680 S.E.2d at 305 (footnote omitted); see also United States v.

Mala, 7 F.3d 1058, 1061 (1st Cir. 1993) (“Were the rule otherwise, a litigant bent on vexation

could temporarily divest a trial court of jurisdiction at whim.”); Misquez v. Baca (In re Byrnes),

                                                  ‐ 8 -
54 P.3d 996, 1008 (N.M. Ct. App. 2002) (“An appeal from a manifestly non[appealable] order

cannot divest a court of jurisdiction. Otherwise, a litigant could temporarily deprive a court of

jurisdiction at any and every critical juncture.” (internal citations and quotation marks omitted)).

       We conclude the trial court did not abuse its discretion when it denied wife’s request to

stay the proceedings.

                    B. COMPLIANCE WITH THE PRETRIAL SCHEDULING ORDER

       Code § 8.01-4 provides, in relevant part, that trial courts “may prescribe certain docket

control procedures which shall not abridge the substantive rights of the parties nor deprive any

party the opportunity to present its position as to the merits of a case solely due to the

unfamiliarity of counsel of record with any such docket control procedures.” One such docket

control procedure is expressly created in Rule 1:18, which provides for the entry of a pretrial

scheduling order in civil cases. In order for Rule 1:18 scheduling orders to facilitate the orderly

administration of cases, however, they must be enforced by the trial courts. “There is little

point in issuing such orders if they amount to nothing more than a juristic bluff, obeyed faithfully

by conscientious litigants, but ignored at will by those willing to run the risk of unpredictable

enforcement.” Rahnema v. Rahnema, 47 Va. App. 645, 658, 626 S.E.2d 448, 455 (2006). “The

impartial, consistent enforcement of scheduling orders provides systemic benefits to litigants and

trial courts alike.” Id.; see also In re Graphics Processing Units Antitrust Litig., 540 F. Supp. 2d

1085, 1090 (N.D. Cal. 2007) (“Once the Court has entered a scheduling order, the liberal policy

favoring amendments no longer applies . . . [and] any modification must be based on a showing

of good cause.”).

       Here, the docket control procedures used by the trial court included a Rule 1:18

scheduling order and its related conference order. Wife was represented by counsel at the time

the two orders were entered. There is no indication in the record that wife’s counsel of record

                                                 ‐ 9 -
was unfamiliar with the pretrial conference procedures. See Code § 8.01-4. Moreover, wife did

not object to the orders when they were entered. Nevertheless, wife assigns multiple errors to the

trial court’s enforcement of the scheduling and conference orders.

                                  1. Wife’s Motions for More Time

       Wife argues that the trial court abused its discretion by denying wife’s motion to extend

the pretrial deadlines and by denying wife’s motion for a continuance on the day of trial. We

disagree.

       The rule in Virginia governing continuances is well-settled. “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.” Haugen v. Shenandoah Valley

Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007). “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.” Id. at 34, 645 S.E.2d at 265. The burden is on the party

seeking a continuance to show that it is likely that the extension of time will resolve the problem

on which the party based its request for the continuance. Chichester v. Commonwealth, 248 Va.

311, 322, 448 S.E.2d 638, 646 (1994).

       Here, wife contends the trial court erred in denying her October 23, 2015 motion to

extend the October 27, 2015 deadline set by the scheduling order for providing husband with

appraisals of certain contested property items. At a November 20, 2015 hearing on the motion,

where both parties were represented by counsel, wife cited health issues and difficulty in raising

funds for the appraisers as the good cause for the extension. Husband objected to the extension,

arguing he would be prejudiced by delay. Husband noted that wife had not yet hired the

appraisers and, with the holiday season, the appraisals would likely not be done by the proposed

extended deadline. Husband further noted that the proposed extended deadline would give him

                                               ‐ 10 -
little time to review wife’s submitted appraisals before the settlement conference, which had

already been scheduled for December 21, 2015. The trial court denied wife’s motion. The court

reasoned that wife testified she had “no reasonable prospect for getting the funds in order” to hire

appraisers by the proposed extended deadline. The trial court explained that it might have

granted the motion to extend the deadline if wife had testified that the appraisals had been started

or that she had secured the funds to hire the appraisers.

       We find no abuse of discretion in the trial court’s conclusion that wife’s arguments for

the extension did not amount to “good cause shown” as required by the scheduling order. Wife

suggests that because the trial court did not use the term “good cause” in its denial of her motion,

it did not evaluate her request based on that standard. However, “good cause” simply means “the

burden placed on a litigant (usu[ally] by court rule or order) to show why a request should be

granted or an action excused.” Good Cause, Black’s Law Dictionary (10th ed. 2014). The

scheduling order placed the burden on wife to show why her requested extension should be

granted. Wife failed to show that the requested extension would likely enable her to obtain the

appraisals; she accordingly failed to meet her burden. See Chichester, 248 Va. at 322, 448

S.E.2d at 646. The deadline for submission of wife’s appraisals was connected to the deadline

for husband to submit his own appraisals in response, to the scheduled settlement conference, to

the deadline for exchanging lists of exhibits and witnesses, and to the scheduled trial. The trial

court considered the request for extension in view of the unique circumstances of the case,

including the effect an extension would have on other scheduled parts of the litigation. See

Haugen, 274 Va. at 33, 645 S.E.2d at 264; see also Umana-Barrera v. Commonwealth, No.

141122, 2015 Va. Unpub. LEXIS 15, at *21 (Va. Aug. 21, 2015) (Kelsey, J. concurring)

(“[N]eutral procedural rules allow courts to set limits and mark off boundaries without regard to

which side stands to gain or lose. . . . When courts apply procedural rules dispassionately and

                                               ‐ 11 -
neutrally to every litigant . . . everyone else knows exactly what is expected of them and,

hopefully, will rise to the occasion.”). The trial court did not err in enforcing the deadlines in the

scheduling order, thereby keeping the litigation on track.

       Wife additionally argues the trial court abused its discretion by denying her request for a

continuance on the day of trial. Wife had already requested a continuance, which was denied by

the trial court on February 25, 2016. Then, during her opening statement at the March 17, 2016

trial, wife, appearing pro se, again requested a continuance. She stated that she had filed a bar

complaint against husband’s counsel, had filed an appeal of the February 25, 2016 order with

this Court, was appearing without counsel because she was indigent, and was under doctor’s

orders not to “go through two days of a trial of this nature.” In summary, wife said, “it would be

fruitless to hear anything today because I’m not—like I say, with the case of this magnitude I

should be represented by an attorney.” After explaining her difficulties in finding an attorney,

wife said, “So therefore, we’re wasting time today. We’re not prepared. So it’s going to be

[defense counsel’s] courtroom today, you know, if you go forward because I don’t have any

documents or any of the evidence that I need.” The trial court denied wife’s motion to continue,

reasoning, “The pretrial scheduling order, which set today’s hearing date, was entered by the

[c]ourt in August of 2015. So the deadline and what had to be done by today’s date has been in

writing for more than six months.”

       We find no abuse of the trial court’s discretion. Wife was aware more than six months

earlier that the scheduling order had set the trial for March 17, 2016. The scheduling order

stated, “Continuances will only be granted by the court for good cause shown.” Wife failed to

show the court why there was good cause for a continuance on March 17 even though there had

not been good cause on February 25. Although wife argued that she should be represented in a

“case of this magnitude,” her lack of representation was not a new circumstance. Her prior

                                                ‐ 12 -
attorney had withdrawn by court order entered January 8, 2016; wife elected to appear pro se on

March 17, 2016. Wife admitted she was unprepared for trial and had not brought the documents

or witnesses she needed. Wife did not argue to the court the length of continuance she was

requesting, nor did she give the court assurance that after the continuance she would be better

prepared to argue her case. The trial court’s impartial, consistent enforcement of terms agreed to

by the parties in the scheduling order facilitated the efficient resolution of the case. See

Rahnema, 47 Va. App. at 658, 626 S.E.2d at 455. It was not error for the trial court to proceed

with the trial on the day it was scheduled.

                                                     2. Enforcement of the Disclosure Deadline

              Wife argues that the trial court erred in granting husband’s “Motion in Limine,” which

asked the trial court to uphold the scheduling order by denying wife permission to present any

witnesses or exhibits that had not been disclosed prior to trial.6 Wife contends that, as a result of

granting husband’s motion, the “trial court erred by prohibiting Wife from calling any witnesses

to testify on her behalf and from introducing any exhibits on her behalf except in rebuttal or

impeachment.” We disagree.

              “Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound

discretion and will not be disturbed on appeal absent an abuse of discretion.’” Michels v.

                                                            
              6
          The record is not clear that wife specifically objected to the motion on the day of trial.
Wife’s response to husband’s motion was to reiterate that she desired a continuance, which had
already been denied, that she thought she should have an attorney, and that she was “making note
of this because [she was] sure [she would] be getting a copy of the court reporter’s notes to be
able to pass on to the Virginia Court of Appeals because [she did]n’t have knowledge of this.”
Nonetheless, the trial court expressly ruled on the motion in its final divorce decree.
Additionally, wife filed a post-trial motion to set aside the trial court’s ruling on husband’s
motion in limine, and to thereby vacate the final decree. Wife assigns error both to the trial
court’s grant of husband’s motion in limine and to the trial court’s denial of her post-trial motion
to set aside the granting of that motion. We assume for the purposes of analysis that wife
sufficiently preserved her argument for appeal.

 
                                                                       ‐ 13 -
Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006) (quoting Breeden v.

Commonwealth, 43 Va. App. 169, 184, 596 S.E.2d 563, 570 (2004)).

              On the day of trial, husband offered a “Motion in Limine”7 which requested the court to

enforce the language in the scheduling order, which stated, “Any exhibit or witness not so

identified and filed [fifteen days before trial] will not be received in evidence, except in rebuttal

or for impeachment . . . .” Contrary to wife’s contention, the trial court did not prohibit wife

from calling witnesses or introducing exhibits. Wife was free to present all exhibits and

witnesses that she had properly identified to husband prior to trial pursuant to the scheduling

order. Husband timely sent to wife his list of exhibits and witnesses; wife sent no list of exhibits

and witnesses to husband. Moreover, wife stated she had none to present. Before husband’s

motion was offered to the trial court, wife declared that she was not prepared and she “d[id]n’t

have any documents or any of the evidence that [she] need[ed].” Although both the scheduling

order and the express ruling on husband’s motion in limine preserved wife’s ability to present

rebuttal evidence and witnesses, she chose not to do so. Simply put, the record does not show,

nor does wife argue, that the court prohibited her from calling any particular witness nor from

introducing any particular exhibit. There was little reason for the trial court to enter the

scheduling order if it was nothing more than a juristic bluff, obeyed faithfully by husband who

filed his list of exhibits and witnesses by the deadline, but ignored by wife, who did not. See



                                                            
              7
          Although wife correctly points out that Rule 4:15 requires reasonable notice of motions
filed with the court, and reasonable notice is typically considered to be seven days, the
scheduling order specifically provided for motions in limine. The scheduling order specified,
“Absent leave of court, any motion in limine which requires argument exceeding five minutes
shall be duly noticed and heard before the day of trial.” Husband’s motion took less than five
minutes to argue and therefore was properly before the court on the day of trial. Wife, who was
represented by counsel when the scheduling order was entered, did not object to the motion in
limine provision.

 
                                                               ‐ 14 -
Rahnema, 47 Va. App. at 658, 626 S.E.2d at 455. The trial court did not abuse its discretion by

granting husband’s request that the provisions of the scheduling order be enforced.

                                                     C. WIFE’S OTHER ASSIGNMENTS OF ERROR

              Wife’s other assignments of error8 flow from the arguments addressed above. Wife

argues the trial court erred in its conclusions because the “court improperly prevented Wife from

developing and presenting the evidence she needed to meet her burden” and “erred in failing to

stay or continue the March 2016 trial.”9 Wife argues that, as a result, the trial court erred in

making, or declining to make, findings of fact regarding items of property and spousal support.

              As discussed above, the trial court did not err when it denied wife’s motion to stay and

motion to continue the case. Likewise, the trial court did not err in limiting the admission of

evidence in accordance with the scheduling order. Although the conference order stated the

issues for which wife bore the burden to prove the relevant facts, she chose to present no

evidence regarding the marital portion of the contested assets, to present no evidence regarding

the value of the marital assets,10 and to present no documentary evidence of her income and

                                                            
              8
          Wife argues that the trial court erred in “finding [certain] items were Husband’s
separate property and not subject to equitable distribution, and . . . by failing to equitably divide
[and] distribute the [] items”; “by finding it had insufficient evidence to determine if [certain]
items were subject to equitable distribution and by failing to equitably divide [and] distribute the
[] items of property”; and “in denying Wife’s request for an award of spousal support.”
              9
         Wife also mentions in her argument that the trial court quashed her subpoena for
husband’s financial records. Since wife did not appeal that action by the trial court, we do not
consider it here.
              10
           For those items which were classified in the conference order as marital, and for which
husband failed to meet his burden to show they were separate, the trial court concluded “no
evidence was presented as to the value of any of those items and the [c]ourt has insufficient
evidence to determine if they are subject to equitable distribution.” Wife argues the trial court
erred in failing to “equitably divide [and] distribute these items.” Pursuant to Code
§ 20-107.3(B), wife was “deemed to have rights and interests in the marital property.” These
interests, however, did not attach to the title but were “only to be used as a consideration in
determining a monetary award, if any.” Id. “[T]he burden is always on the parties to present
 
                                                                    ‐ 15 -
expenses as required to support her claim of spousal support. Wife chose not to present evidence

in rebuttal to the evidence presented by husband at trial, even though permitted by the trial court

to do so. On appeal, wife cannot now argue that her decision to present no evidence was the

basis of trial court error.

              Finally, wife argues the trial court erred in denying her request for attorney’s fees. “In

Virginia, ‘[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.” Coe v. Coe, 66 Va. App. 457, 477,

788 S.E.2d 261, 271 (2016) (quoting Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554,

558 (1987)). Here we find no abuse of the trial court’s discretion in deciding not to award

attorney’s fees to wife.




                                                            
sufficient evidence to provide the basis on which a proper determination can be made, and the
trial court in order to comply . . . must have the evidence before it . . . to grant or deny a
monetary award.” Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987)
(alterations in original) (quoting Hodges v. Hodges, 2 Va. App. 508, 517, 347 S.E.2d 134, 139
(1986)).

                             In order for the court to make a monetary award, the marital
                             property which is the subject of such award must have value.
                             When marital property has no value or no value above the amount
                             of a bona fide lien, the court has no authority to make a monetary
                             award based on that property. The determination of such value
                             must be based upon proper evidence in the record, and such
                             determination must go beyond mere guesswork. Although the
                             statute requires the trial court to make findings of the classification
                             of the property and the value thereof, the court has no duty to
                             independently determine such value. The law in Virginia is well
                             settled that the burden of proof is always on the parties to present
                             sufficient evidence to provide the factual basis for the
                             determination of such issues by the trial court.

Peter N. Swisher, Lawrence D. Diehl, & James R. Cottrell, Family Law: Theory, Practice, and
Forms § 11:3 (footnotes omitted) (2017 ed.). Because wife did not present evidence by which
the trial court could determine the value of the marital property, the trial court did not err in
declining to determine a monetary award.
                                                ‐ 16 -
                                        III. CONCLUSION

       The trial court did not err in refusing to stay wife’s appeal on the basis that she had filed a

notice of appeal with this Court of a nonappealable interlocutory order. The trial court never lost

jurisdiction of the case and had the discretion to proceed with the trial. The trial court did not err

in upholding its scheduling order by denying the motion for a continuance in the absence of good

cause shown. Moreover, the trial court did not err in enforcing the deadlines agreed to by the

parties in the scheduling order and in upholding the consequences of failure to meet those

deadlines. We deny wife’s request for attorney’s fees related to this appeal.

                                                                                            Affirmed.




                                                ‐ 17 -
