                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


ANTHONY WELLS
                                         MEMORANDUM OPINION *
v.   Record No. 2601-96-4             BY JUDGE JOSEPH E. BAKER
                                          NOVEMBER 18, 1997
CYNTHIA NORTH WELLS


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                  William Shore Robertson, Judge
          Robin C. Gulick (Robin C. Gulick, P.C., on
          briefs), for appellant.

          Burke F. McCahill (Sevila, Saunders &
          McCahill, on brief), for appellee.



     Anthony Wells (husband) appeals from a decree of divorce

entered by the Circuit Court of Fauquier County (trial court)

that made equitable distribution and spousal support awards to

Cynthia North Wells (wife).   Husband contends that the trial

court failed to consider all the factors contained in Code

§ 20-107.3; erred in applying a formula that inflated wife's

equity in property known as "Log House Hollow" by failing to

include therein a second deed of trust; erred by failing to give

credit to husband for mortgage payments he made after the parties

separated; and erred in making the spousal support award without

imputing income to wife, thereby requiring husband to make

spousal support payments in excess of wife's needs.    Wife

contends that husband's acceptance of the benefit of the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
equitable distribution decree, under which he purchased wife's

interest in the marital residence, bars our review of this issue

on appeal.   In addition, she contends that all assignments of

error are barred by husband's failure timely to file transcripts

of the proceedings below.    For the reasons that follow, we affirm

the ruling of the trial court.

                        EQUITABLE DISTRIBUTION

     Wife moves to dismiss husband's appeal of the equitable

distribution award on the ground that it is barred by husband's

acceptance of a portion of the benefit of the award.   Wife points

to language in the final decree indicating that "counsel

conferred and reached agreement to modify the provisions of this

court's letter opinion in order to provide [two alternate

methods] . . . for the orderly disposition of this property."

She argues that husband's exercising one of those two methods by

purchasing wife's interest in Log House Hollow precludes the

relief husband seeks because the court lacks jurisdiction over

what is now husband's separate property.
     We disagree.   In essence, wife received a money judgment for

$132,595 that was secured by the marital residence.    The decree,

entered September 20, 1996, appointed the parties' attorneys as

special commissioners, and it provided that they would convey

title to husband upon his payment of the judgment amount but that

they would sell the residence if husband had not paid that amount

by December 20, 1996.    Husband would remain liable for any



                                 - 2 -
deficiency in the amount of the judgment after the sale.    Husband

registered specific written objections to the equitable

distribution provisions of the decree, thereby preserving his

right to appeal those issues, and noted his appeal on October 18,

1996.    Thereafter, on December 17, 1996, only three days prior to

the scheduled sale of Log House Hollow, husband satisfied the

judgment, and the special commissioners conveyed the residence to

husband.
        "The general rule is that the payment of a judgment deprives

the payor of the right of appeal only if payment was made

voluntarily."     Carlucci v. Duck's Real Estate, Inc., 220 Va. 164,

166, 257 S.E.2d 763, 765 (1979) (emphasis added).    In this case,

husband objected to the trial court's entry of judgment against

him and satisfied the judgment after he had properly noted his

appeal in order to avoid imminent judicial sale of the property.

Therefore, husband's payment was not voluntary and did not

constitute a waiver of his right of appeal.

        Wife also contends that husband failed timely to file

transcripts of the proceedings necessary to support the equitable

distribution claims.    When filing his notice of appeal, husband

notified the clerk and wife that "A transcript or statement of

facts, testimony and other instances of the case will be filed."
(Emphasis added).     When husband recited in his notice that a

transcript "will be filed," wife had a "right to rely on . . .

[that] representation."     See Twardy v. Twardy, 14 Va. App. 651,




                                 - 3 -
655, 419 S.E.2d 848, 850 (1992) (en banc).     The transcript

becomes a part of the record only when timely filed with the

clerk.     See Williams v. Commonwealth, 7 Va. App. 516, 518, 375

S.E.2d 364, 365 (1988); Rule 5A:8.
               The absence or late filing of the
          transcript, however, does nothing to diminish
          our jurisdiction. If the record on appeal is
          sufficient in the absence of the transcript
          to determine the merits of the appellant's
          allegations, we are free to proceed to hear
          the case. . . . If, however, the transcript
          is indispensable to the determination of the
          case, then the requirements for making the
          transcript a part of the record on appeal
          must be strictly adhered to.

See Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400,

402 (1986) (citation omitted).    This Court may extend the filing

deadline for "good cause," but only "[u]pon a written motion

filed within 60 days after entry of the final judgment."    Rule

5A:8(a).    No such motion was filed in this case.   Accordingly, we

find that the referenced transcripts are not a part of the record

on appeal.

     Husband complains that in making the equitable distribution

award, the trial court relied wholly on the so-called "magic

formula" to calculate the parties' equity in Log House Hollow and

failed to consider all the statutory factors, including husband's

monetary contributions to the marital residence.     The trial

court's judgment is presumed to be correct, and the burden is on

appellant to present us with a sufficient record from which we

can determine that the lower court has erred.     See Twardy, 14 Va.




                                 - 4 -
App. at 658, 419 S.E.2d at 852; see also Justis v. Young, 202 Va.

631, 632, 119 S.E.2d 255, 256-57 (1961).   Here, the transcripts

of the many proceedings below may not be considered because they

were not timely filed on appeal, and the trial court's letter

opinion and final decree, which are properly contained in the

record, state that the trial court considered all statutory

factors.   We see nothing in the portion of the record we may

consider indicating that the trial court failed properly to

consider those factors, and we affirm the trial court's ruling on

this issue.
     Husband also contends that the trial court misapplied the

magic formula, resulting in the miscalculation of the parties'

equity in Log House Hollow and a failure to credit husband for

post-separation mortgage reduction.    Again, the transcripts may

not be considered because they were not timely filed, but we

consider the court's letter opinion with attachments and the

final decree sufficient to permit our limited review.

     Despite husband's contention, we find no error in the

court's application of the magic formula to its calculation of

the parties' equity in Log House Hollow.   We cannot say the trial

court erred in concluding that wife was entitled to receive the

value of the appreciation in equity resulting from her initial

$150,000 contribution toward the purchase of Log House Hollow,

which was given in the form of a lien on Chesterfield.   We also

cannot conclude that it erred in refusing to subtract from the



                               - 5 -
total equity available for division the amount of the $150,000

note against Log House Hollow.    Evidence in the record shows the

parties stipulated that husband would convey the jointly-titled

Chesterfield property to wife free of encumbrances, thereby

assuming sole responsibility for that $150,000 lien against Log

House Hollow.   If the court were required to deduct that $150,000

from the value of the equity in Log House Hollow for purposes of

equitable distribution calculations, it would nullify the effect

of the parties' stipulations.
     We also cannot say that the trial court failed to credit

husband for his post-separation reduction in the mortgage

principal.   After husband brought this omission to the court's

attention, it explained very clearly in the final decree that it

was giving husband credit for these payments by permitting

husband to keep wife's share of the assets of TKC corporation,

marital property that it had previously misclassified as

husband's separate property.    Rather than revalue the corporation

as marital, it permitted husband to retain all corporate assets,

valued at $61,242.27, as credit for his post-separation reduction

in mortgage principal of no more than $12,182.12.   Therefore, the

record makes clear that husband has already received the credit

he now seeks.

     In light of the late filed transcripts and the record

properly before us on appeal, we cannot conclude that the trial

court erred in fashioning the equitable distribution award in




                                 - 6 -
this case.

                            SPOUSAL SUPPORT

     In a letter dated July 1, 1996, reciting that it had

considered the factors set forth in Code § 20-107.1, the trial

court made an award of spousal support of $3,600 monthly in favor

of wife beginning July 15, 1996.    Husband contends that the trial

court erred in failing to impute income to wife and in awarding

her more than her needs justified.
     We hold that the income imputation argument is barred by the

late filing of the transcripts.    Although husband objected to

entry of the final decree based on the court's failure to impute

income to wife, nothing in the record indicates that husband had

previously raised this issue to the trial court, and we have no

evidence before us on appeal showing that the failure to impute

income constitutes error.

     Also barred is husband's argument that the award exceeded

wife's justified needs, as compared to husband's ability to pay. 1

 The record contains the parties' income and expense sheets, but

due to the late filing of transcripts, it contains no evidence

supporting or disputing their respective incomes and expenses.

Given that wife's evidence shows uncontradicted monthly expenses

of $6,601.44 as compared to an award of $3,600, we simply cannot

say that the trial court erred in making such an award.

     Based on those portions of the record we may consider, we
     1
      Husband appears to concede this bar in his reply brief.




                                 - 7 -
cannot say that the trial court's equitable distribution or

spousal support awards were erroneous.   Accordingly, the judgment

of the trial court is affirmed.

                                                         Affirmed.




                              - 8 -
