                                           COURT OF APPEALS OF VIRGINIA
PUBLISHED


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


            JANINE HELEN ADELMAN BROWNING
                                                                                OPINION BY
            v.      Record No. 2012-16-3                                 JUDGE WESLEY G. RUSSELL, JR.
                                                                                JULY 25, 2017
            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.


                    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




        1
         Although the case remained a Washington County case, at least some of the hearings
were held at the Wythe County Circuit Court in Wytheville where the third judge designate
routinely sits.
        2
         The November 19, 2012 transcript eventually was filed with the Clerk of the Circuit
Court of Washington County. The transcript bears a clerk’s stamp indicating it was filed on
January 19, 2017.
                                            -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, 2016. Wife filed her notice of appeal with the clerk of the circuit court on December

7, 2016.

        In her appeal, wife argues that the trial court erred regarding equitable distribution, the

classification of certain pieces of property, in its interpretation of a trust agreement, in the division




                                                   -3-
of certain pieces of personal property, in failing to award her attorney’s fees, and regarding the

effective date selected for the commencement of spousal support payments.

        In response, husband not only addresses the merits of wife’s appeal, but moves to dismiss

the appeal based on alleged violations of Rule 5A:8. Specifically, husband argues that no notice of

filing transcripts has been filed regarding either the transcript of the November 19, 2012 hearing or

the transcript of the January 8, 2014 hearing as required by Rule 5A:8(b). Furthermore, husband

argues that the November 19, 2012 hearing transcript is not part of the record because it was not

filed with the clerk of the trial court within the time period specified in Rule 5A:8(a). In short,

husband requests that we find that these transcripts are not a part of the record and dismiss wife’s

appeal. We will address husband’s procedural arguments based on the Rules of Court in turn.

                                              ANALYSIS

                                        I. Standard of Review

        Husband’s motion to dismiss the appeal is premised on requirements imposed by the Rules

of the Supreme Court. Interpretation of the Rules is a legal question that we address de novo.

Belew v. Commonwealth, 284 Va. 173, 177, 726 S.E.2d 257, 259 (2012). Rules of statutory

construction apply equally to the interpretation of the Rules, so that “[i]n construing the language

of rules and statutes, ‘we must give effect to the [drafters’] intention[s] as expressed by the

language used unless a literal interpretation of the language would result in a manifest

absurdity.’” Muse Const. Group, Inc. v. Commonwealth Bd. of Contractors, 61 Va. App. 125,

130-31, 733 S.E.2d 690, 692 (2012) (alteration in original) (quoting Conyers v. Martial Arts

World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)). Thus, the Rules are

applied according to their plain language. Thornton v. Glazer, 271 Va. 566, 570, 628 S.E.2d

327, 328 (2006).




                                                  -4-
       Because husband seeks dismissal of the appeal, we note that, although we may dismiss an

appeal for non-compliance with the Rules, Rule 5A:1A, deficiencies in notice of filing and filing

of transcripts do not entitle appellees to dismissal of an appeal in every instance. See Smith v.

Commonwealth, 281 Va. 464, 468, 706 S.E.2d 889, 892 (2011) (holding transcript filing

requirement is non-jurisdictional procedural rule); Rule 5A:8(b)(4) (setting forth effect of

non-compliance with transcript filing requirements). Nevertheless, the failure to present a

complete record upon which this Court can make an effective determination of the issues may

bar our consideration of a party’s assigned errors. See, e.g., Shiembob v. Shiembob, 55 Va. App.

234, 246, 685 S.E.2d 192, 198-99 (2009); Rule 5A:8(b)(4)(ii).

                           II. Failure to File Notice of Filing Transcripts

       Rule 5A:8(b)(1) provides in pertinent part that

               [w]ithin 10 days after the transcript is filed or, if the transcript is
               filed prior to the filing of the notice of appeal, within 10 days after
               the notice of appeal is filed, counsel for appellant shall: (i) give
               written notice to all other counsel of the date on which the
               transcript was filed, and (ii) file a copy of the notice with the clerk
               of the trial court.

For cases involving multiple transcripts, Rule 5A:8(b)(2) provides that “the 10-day period for

filing the notice required by this Rule shall be calculated from the date on which the last

transcript is filed or from the date on which the notice of appeal is filed, whichever is later.”

       In this case, there is no dispute that wife failed to file the notice of filing transcripts

required by Rule 5A:8(b). Thus, the question before us is the sanction, if any, for that failure.

       The potential sanction for failure to file a notice of filing transcript is specified in Rule

5A:8(b)(4)(i), which provides that

               [a]ny failure to file the notice required by this Rule that materially
               prejudices an appellee will result in the affected transcripts being
               stricken from the record on appeal. For purposes of this Rule,
               material prejudice includes preventing the appellee from raising

                                                 -5-
                 legitimate objections to the contents of the transcript or misleading
                 the appellee about the contents of the record.

(Emphasis added). Thus, striking the subject transcripts from the record on appeal is the

appropriate sanction for failing to file a notice of filing transcript(s); however, such sanction is

imposed only if the appellee suffers material prejudice as a result of the failure to file the notice.

          Here, we discern no prejudice, material or otherwise, that husband has suffered as a result

of wife’s failure to file a notice of filing transcripts in this case. Husband timely received copies

of the transcripts at issue and does not allege that they contain any errors. Husband did not

allege in his motion or on brief that he suffered any prejudice from wife’s failure to file a notice

of filing transcripts, and, at oral argument, he conceded that he had suffered no prejudice as a

result of the violation of Rule 5A:8(b).3 Accordingly, no sanction is appropriate with respect to

wife’s failure to file a notice of filing transcripts.

                III. Failure to Timely File the November 19, 2012 Hearing Transcript

          Although a challenge under Rule 5A:8(b) can lead to the striking of transcripts that are

part of the record, husband argues that the November 19, 2012 transcript never became part of

the record because wife failed to timely file it with the clerk of the trial court. If the transcript is

not a part of the record on appeal, we cannot consider it or any references to it in addressing

wife’s arguments because “[a]n appellate court must dispose of the case upon the record and

cannot base its decision upon appellant’s petition or brief . . . . We may act only upon facts

contained in the record.” Smith v. Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6

(1993).

          The content of the record on appeal is delineated by Rule 5A:7. Rule 5A:7(a)(7) provides

that the record on appeal includes “the transcript of any proceeding . . . when made part of the


          3
         Husband had the burden of establishing prejudice. Rule 5A:8(b)(4)(i) (“The appellee
shall have the burden of establishing such prejudice . . . .”).
                                               -6-
record as provided in Rule 5A:8 . . . .” Rule 5A:8(a) directs that, for a transcript to become a part

of the record, it be “filed in the office of the clerk of the trial court within 60 days after entry of

the final judgment.”

        The trial court entered the final order in this case on November 16, 2016. Sixty days

after November 16, 2016 was January 15, 2017; however, January 15, 2017 was a Sunday.

Pursuant to Code § 1-210(B), “[w]hen the last day for performing an act during the course of a

judicial proceeding falls on a Saturday, Sunday, legal holiday . . . , the act may be performed on

the next day that is not a Saturday, Sunday, legal holiday . . . .” Monday, January 16, 2017, was

Martin Luther King, Jr., Day. See Code § 2.2-3300. Thus, to be a part of the record in the

ordinary course, the November 19, 2012 hearing transcript had to be filed with the clerk of the

trial court no later than January 17, 2017.

        Here, although the November 19, 2012 transcript was prepared by the court reporter and

provided to counsel for the parties and the trial judge in January 2013, it was not filed in the

office of the clerk of the trial court until January 19, 2017, two days after the Rule 5A:8(a)

deadline ran. Wife argues that husband suffers no prejudice from the inclusion of the November

19, 2012 transcript in the record.

        Wife may very well be correct that husband’s defense of the appeal has in no way been

prejudiced by the fact that the November 19, 2012 hearing transcript was first filed with the clerk

of the trial court a mere two days after the Rule 5A:8(a) deadline. After all, husband had been

aware of the transcript’s existence for literally years, had access to a copy, and was aware that

the trial judge had a copy and presumably had relied upon it in drafting his letter opinion. It is

hard to divine how husband’s ability to defend the appeal has been in any way prejudiced by

wife’s alleged failure to comply with Rule 5A:8(a).




                                                  -7-
        The sanction for failure to comply with Rule 5A:8(a) is governed by Rule 5A:8(b)(4)(ii),

which provides that “[w]hen the appellant fails to ensure that the record contains transcripts . . .

necessary to permit resolution of appellate issues, any assignments of error affected by such

omission shall not be considered.” (Emphasis added). Noticeably absent from Rule

5A:8(b)(4)(ii) is any mention of prejudice. The absence of a prejudice requirement is even more

significant given that Rule 5A:8(b)(4)(i), dealing with the failure to file a notice of filing

transcript, contains a very specific prejudice component. See supra. From the plain language of

the rule, it is clear that prejudice (or the lack thereof) is not a relevant inquiry regarding

compliance with Rule 5A:8(a); we are limited to determining whether the transcript was timely

filed or not and, if the transcript was not timely filed, what effect the absence of the transcript

from the record has on the appeal.

        Wife next argues that the transcript, in fact, was timely filed; it was just filed with the

trial judge as opposed to the clerk of the trial court. Once again, wife’s argument fails under the

plain meaning of the Rules.

        Rule 5A:8(a) makes no mention of the trial judge and, as noted above, requires that a

hearing transcript be “filed in the office of the clerk of the trial court . . . .” (Emphasis added).

Although the meaning of this phrase is readily apparent from the words themselves, any doubt as

to their specific meaning is removed by the definitions section of Part 5A of the Rules. Rule

5A:1(c)(9) defines “filed in the office of the clerk” to mean “deliver a paper to the clerk

specified[,]” here, the clerk of the trial court. Rule 5A:1(c)(1) defines “clerk of the trial court” as

the “clerk of the trial court from which an appeal is taken to the Court of Appeals, and shall

include a deputy clerk . . . when the context requires.” Applying these specific definitions, it is

clear that a transcript becomes part of the record only when it is delivered to the clerk of the trial




                                                  -8-
court or his deputy; delivery to anyone else, including the trial judge, does not make a transcript

a part of the record.

        The conclusion that delivery of a hearing transcript to the trial judge does not constitute

filing with the clerk of the trial court is further supported by other definitions in Rule 5A:1. Rule

5A:1(c)(7) defines “judge” as “judge of the trial court, unless the context otherwise requires, or if

he be not available, any judge authorized to act under Rule 5A:9 . . . ,” and Rule 5A:1(c)(10)

defines “trial court” as “the circuit court from which an appeal is taken to the Court of Appeals

. . . .” Because the Rules separately define “judge” and “clerk of the trial court” and use them

independently throughout the Rules, we cannot conclude that one can substitute for the other.4

Cf. GEICO v. Hall, 260 Va. 349, 355, 533 S.E.2d 615, 617 (2000) (applying the maxim

expressio unius est exclusio alterius, which “provides that mention of a specific item in a statute

implies that omitted items were not intended to be included within the scope of the statute”

(quoting Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992))); Zinone v. Lee’s

Crossing Homeowners Ass’n, 282 Va. 330, 337, 714 S.E.2d 922, 925 (2011) (“[W]hen the

General Assembly has used specific language in one instance, but omits that language or uses

different language when addressing a similar subject elsewhere in the Code, we must presume

that the difference in the choice of language was intentional.”). Accordingly, the court reporter

providing the November 19, 2012 transcript to the trial judge did not make it a part of the record.


        4
          In responding to the motion to dismiss, wife provided this Court with what purports to
be a January 2013 e-mail from the court reporter that indicates that the court reporter asked the
trial judge’s assistant where to send the original November 19, 2012 hearing transcript and that
the judge’s office replied that the trial judge’s “instructions are for me to send the original
transcript and original exhibit binder to him and he will mark each as received and filed, and that
was assuming that [wife’s counsel] wanted the original filed.” We first note that the e-mail is not
a part of the record, and therefore, is not properly before us. Smith, 16 Va. App. at 635, 432
S.E.2d at 6. Nevertheless, even assuming the e-mail were properly before us, nothing in the
purported instruction of the trial judge prohibited or prevented wife from filing a copy of the
transcript with the clerk of the trial court. By way of example, a copy of the January 8, 2014
hearing transcript was filed with the clerk of the trial court on March 10, 2014.
                                                  -9-
       Having concluded that the November 19, 2012 transcript is not a part of the record on

appeal, we must determine the effect of that conclusion. In his motion, husband seeks dismissal

of the appeal. Dismissal, however, is not the appropriate remedy for the absence of a transcript

because “the failure to timely file [a] transcript . . . [does] not deprive the Court of Appeals of its

active jurisdiction to proceed to judgment . . . .” Smith, 281 Va. at 470, 706 S.E.2d at 893.

Instead, consistent with the language of Rule 5A:8(b)(4)(ii), for any assignments of error for

which the arguments below are “contained within the untimely-filed transcript” and for which

the subject transcript is “indispensable to the determination of th[e] issue[s],” those assignments

of error are “waived on appeal.” Shiembob, 55 Va. App. at 246, 685 S.E.2d at 198-99.

       Here, it is clear that the November 19, 2012 hearing transcript is indispensable to our

consideration of wife’s assignments of error. The November 19, 2012 hearing was the main

hearing in the case regarding the issues of equitable distribution, valuation of assets,

classification of property, and spousal support. Without the transcript, we cannot know with

certainty the arguments made by the parties or the evidence that the trial judge could consider.

Wife, displaying credible candor, acknowledged at oral argument that we cannot resolve her

assignments of error without consideration of the November 19, 2012 hearing transcript.




                                                 - 10 -
Therefore, consistent with Rule 5A:8(b)(4)(ii), we must deem her assignments of error waived

and affirm the judgment of the trial court.5

       Although enforcing the Rules of Court may lead to harsh results in individual cases, it is

not unfair. Mayo v. Dep’t. of Commerce, 4 Va. App. 520, 522, 358 S.E.2d 759, 761 (1987)

(“[C]ompliance with [the Rules of Court] is necessary for the orderly, fair and expeditious

administration of justice.” (emphasis added) (citation omitted)); Turner v. Commonwealth, 2

Va. App. 96, 98, 341 S.E.2d 400, 401 (1986) (“[C]ompliance with the Rules of Court is essential

to the prompt and fair administration of justice[.]” (emphasis added)); see also, Reaves v.

Tucker, 67 Va. App. 719, 734, 800 S.E.2d 188, ___ (2017) (“‘[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 neutrally to every litigant . . .

everyone else knows exactly what is expected of them and, hopefully, will rise to the occasion.’”

(quoting Umana-Barrera v. Commonwealth, No. 141122, 2015 Va. Unpub. LEXIS 15, at *20-21

(Va. Aug. 21, 2015) (Kelsey, J. concurring))). The Rules of Court are published for the very

purpose of placing every litigant on notice of what is expected and required. Cf. Umana-Barrera,

2015 Va. Unpub. LEXIS 15, at *20 n.6 (Kelsey, J. concurring) (“The benign goal of procedural

default law, therefore, is to render itself harmless by being so well known.”). As we recently



       5
          We note that there were several avenues that wife could have utilized to avoid or
ameliorate this predicament. Initially, she could have filed the copy of the November 19, 2012
hearing transcript that she received in January 2013 with the clerk of the trial court as opposed to
relying on the actions of others to accomplish what, ultimately, is her responsibility. Once the
sixty-day deadline had passed, wife could have filed a motion with this Court seeking leave to
have the November 19, 2012 hearing transcript made part of the record. See Rule 5A:8(a) (The
deadline for filing transcripts “may be extended by a Judge of the Court of Appeals only upon a
written motion filed within 90 days after the entry of final judgment. Timely motions will be
granted only upon a showing of good cause to excuse the delay.”). She did not do so. Finally,
under the Supreme Court’s decision in Belew, 284 Va. 173, 726 S.E.2d 257, she, at any time
prior to the docketing of her appeal in this Court, could have moved the trial court to make the
transcript part of the record pursuant to Code § 8.01-428(B) and Rule 5A:9. She did not do so.
                                               - 11 -
recognized, “the Rules of the Supreme Court are rules and not suggestions; we expect litigants

before this Court to abide by them.” Eaton v. Dep’t of Soc. Servs., 66 Va. App. 317, 320 n.1,

785 S.E.2d 231, 233 n.1 (2016).

       The Rules and case law are clear: it is the responsibility of an appellant to provide us

with a record sufficient to allow us to reach his or her assignments of error. See, e.g., White v.

Morano, 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995) (“[T]the onus is upon the appellant to

provide the reviewing court with a sufficient record from which it can be determined whether the

trial court erred as the appellant alleges. If an insufficient record is furnished, the judgment

appealed from will be affirmed.”); Rule 5A:8(b)(4)(ii). Appellants who fail to do so proceed at

their own peril.

                                          CONCLUSION

       Because the November 19, 2012 hearing transcript is not part of the record and is

indispensable to our resolution of wife’s assignments of error, we must deem the assignments of

error waived, and therefore, we affirm the judgment of the trial court.6

                                                                                           Affirmed.




       6
          Both parties have requested that we award them their respective attorney’s fees on
appeal. We award appellate fees only in the unusual case where the arguments on appeal are
“not fairly debatable under any reasonable construction of the record or the governing legal
principles.” Brandau v. Brandau, 52 Va. App. 632, 642, 666 S.E.2d 532, 538 (2008). Given the
circumstances of this case, we decline to award either party their respective attorney’s fees on
appeal.
                                               - 12 -
