                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia


JOSEPH S. KOST
                                      MEMORANDUM OPINION * BY
v.   Record No. 0116-99-1       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                        DECEMBER 14, 1999
ROBERTA E. KOST


                 FROM THE CIRCUIT COURT OF YORK COUNTY
                     N. Prentis Smiley, Jr., Judge

          Nancy J. Luchs (Furlong & Luchs, on brief), for
          appellant.

          No brief or argument for appellee.


     In this domestic relations case, Joseph S. Kost (husband)

appeals the trial court's equitable distribution order.     On

appeal, he contends the trial court erred:     (1) in making an

equitable distribution award based on the written proffers of

the parties and without properly considering the statutory

factors of Code § 20-107.3; (2) in awarding fifty-percent of the

marital property to wife and in making various other awards,

including in-kind marital property, distribution of IRA accounts

and permanent spousal support; (3) in its calculation of

pendente lite support; (4) in declining to postpone the

equitable distribution hearing until a court reporter arrived;


     *
       Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
(5) by including a "hold harmless" provision in the award of

real property to husband; (6) in requiring husband to maintain a

survivor benefit plan for wife under his military retirement;

and (7) in continuing pendente lite support after the entry of

the divorce decree and equitable distribution award. 1

                           I.    BACKGROUND

     On appeal, we construe the evidence in the light most

favorable to wife, the prevailing party below, granting to her

evidence all reasonable inferences fairly deducible therefrom.

See Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257

(1995) (citing McGuire v. McGuire, 10 Va. App. 248, 250, 391

S.E.2d 344, 346 (1990)).

     So viewed, the evidence established that the parties were

married October 23, 1971 in Devon, Pennsylvania.     Husband served

in the United States Air Force for approximately 26 years, and

he retired August 1, 1998.      Wife worked as an office manager for

approximately ten years.   The parties separated October 1, 1996.

     Following an initial pendente lite support hearing, husband

was ordered to pay wife temporary support in the amount of

$2,797 per month.   On August 5, 1998, husband moved the court to




     1
       In his opening brief, husband alleged fourteen assignments
of error. Some of his arguments are repetitive and, accordingly,
we have combined his arguments in this appeal.


                                  - 2 -
reduce the award of temporary spousal support. 2   Following the

direct examination of husband, the hearing was continued to

August 19, 1998 ("August hearing").

     At the August hearing, both husband and wife testified as

to their income and financial obligations.    Based upon the

evidence presented, the trial court reduced wife's award of

temporary support to $2,473 per month. 3   At that time, the trial

court also conducted a pretrial hearing, in which the parties

discussed the disputed issues and the trial court advised the

parties of its method of equitable distribution.

     The equitable distribution hearing was held on November 5,

1998 ("November hearing").   Adhering to the pretrial schedule,

the parties presented testimony and the trial court reviewed

their written proffers.   Throughout the hearing, the trial judge

made various oral rulings, to which husband did not object.    At

the conclusion of the November hearing, husband's counsel was

asked to prepare the order reflecting the trial court's

decisions.

     On December 15, 1998 ("December hearing"), the parties

appeared before the trial court to resolve undetermined issues,


     2
       Husband failed to file in the trial court the transcript of
the August 5, 1998 hearing and, therefore, we are unable to
determine what occurred at that hearing.
     3
       On September 21, 1998, the parties appeared before the
trial court because they disputed the previous pendente lite
support award. However, husband failed to include this transcript
in the Appendix.

                               - 3 -
including equitable distribution of life insurance policies,

husband's military pension, and various claims for personal

property.    Husband objected to the trial court's rulings from

the November hearing.    After considering arguments, the trial

court held that the objections were untimely and, therefore,

waived.

            Ms. Luchs, I'm baffled by your today's
            position. We went through -- and although
            this may be your first case in the Ninth
            Circuit, you certainly went through an
            educational process in September when we did
            our pretrial. The Court explained to you
            how that would happen.

             *      *      *      *      *      *      *

                  . . . And I have a note that there are
            no facts in dispute under the factors, and
            we would have resolved that on August 19,
            1998.

                 Ms. Luchs, in all due respect to you
            and your concern about the procedure of the
            Court, when there's no facts in dispute
            under the factors, there's nothing to try
            except what we set forth on other types of
            issues such as the classification issues,
            and we assign burdens of proof on those.
            . . . Everything else under classification
            was agreed.

             *      *      *      *      *      *      *

                 Now, we've spent an hour this morning
            discussing or retrying the case. The Court
            will enter an order of divorce, retain the
            matter on the docket for further
            determination as to . . . permanent support
            . . . .

In its decree entered December 15, 1998, the trial court granted

the parties a divorce.    The trial court "expressly retain[ed]"

                                - 4 -
its jurisdiction to determine the issue of permanent spousal

support and ordered that pendente lite support continue "until

further modified."    In a separate order, the trial court awarded

equitable distribution of the property.

                           II.   RULE 5A:18

     Rule 5A:18 provides that "[n]o ruling of the trial court

. . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the

time of the ruling, except for good cause shown or to enable the

Court of Appeals to attain the ends of justice."   Rule 5A:18;

see also Taylor v. Taylor, 27 Va. App. 209, 212, 212 n.1, 497

S.E.2d 916, 917, 917 n.1 (1998); Smith v. Smith, 18 Va. App.

427, 433, 444 S.E.2d 269, 273-74 (1994).

          The main purpose of requiring timely
          specific objections is to afford the trial
          court an opportunity to rule intelligently
          on the issues presented, thus avoiding
          unnecessary appeals and reversals. In
          addition, a specific, contemporaneous
          objection gives the opposing party the
          opportunity to meet the objection at that
          stage of the proceeding.

Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)

(citation omitted).

     The "ends of justice" exception is "narrow and is to be

used sparingly. . . ."    Patrick v. Commonwealth, 27 Va. App.

655, 660, 500 S.E.2d 839, 842 (1998) (citations omitted).   "In

order to avail oneself of the exception, a defendant must

affirmatively show that a miscarriage of justice has occurred,

                                 - 5 -
not that a miscarriage might have occurred."        Redman v.

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)

(emphasis in original).

     In the instant case, many of husband's assignments of error

were not properly preserved in the trial court proceedings and,

thus, Rule 5A:18 bars our consideration of them on appeal.

              III.    EQUITABLE DISTRIBUTION HEARING

                     A.   Use of Written Proffers

     Husband argues that the trial court erred in making an

equitable distribution award based on the submitted written

proffers of the parties and in limiting his presentation of

evidence.

     Husband did not request that he be allowed to call

witnesses on his behalf, and he failed to object to the trial

court's method of taking evidence at the November hearing.      It

was not until the conclusion of the December hearing that

husband made the following objection:    "[O]ne of my objections

is that I did not have an opportunity to conduct

cross-examination.   I don't see how Your Honor can make a ruling

on written proffers alone without eliciting testimony,

permitting cross-examination or argument of counsel." 4


     4
       In finding that the parties were given a reasonable
opportunity to present evidence, the trial court noted the
following: "And you had that opportunity . . . to reduce your
facts to writing, and the Court did a pretrial [conference] and
I asked what facts are legitimately in dispute so that we can
set those aside for ore tenus consideration."

                                 - 6 -
     Husband's objection was not timely made.    "In order to be

considered on appeal, an objection must be timely made and the

grounds stated with specificity."     McLean v. Commonwealth, 30

Va. App. 322, 329, 516 S.E.2d 717, 720 (1999) (en banc).

"To be timely, an objection must be made when the occasion

arises -- at the time the evidence is offered or the statement

made."   Id.

     Without a contemporaneous objection from counsel at the

time the evidence was offered by the parties, husband's argument

is procedurally barred on appeal.     See Crawley v. Commonwealth,

29 Va. App. 372, 375, 512 S.E.2d 169, 171 (1999) ("Because

appellant registered no hearsay objection to the admissibility

of the cards, he waived the right to contest their admissibility

on appeal."); Newton v. Commonealth, 29 Va. App. 433, 459-60,

512 S.E.2d 846, 858-59 (1999) (holding that defendant's

objection to the trial court's statement to the jury was

procedurally barred because he failed to contemporaneously

object at the time the statement was made); see also Woodson v.

Commonwealth, 211 Va. 285, 288-89, 176 S.E.2d 818, 821 (1970)

("A litigant may not, in a motion to strike, raise for the first

time a question of admissibility of evidence.").

     Next, husband argues that the trial court's method of

taking evidence denied him due process.    This claim is also

barred by Rule 5A:18 because "he failed to raise this argument

before the trial judge and, therefore, denied the judge the

                              - 7 -
opportunity to consider the question."       Yiaadey v. Commonwealth,

29 Va. App. 534, 546, 513 S.E.2d 446, 452 (1999); see Patrick,

27 Va. App. at 660, 500 S.E.2d at 842 ("Rule 5A:18 applies to

bar even constitutional claims.").       Additionally, the record

does not show affirmatively that a miscarriage of justice

occurred and, therefore, provides insufficient grounds for

invocation of the ends of justice exception.

                       B.    Statutory Factors

     Husband next contends that the trial court erred by failing

to consider the statutory factors of Code § 20-107.3 in

determining the equitable distribution award.      He argues that

the trial court "never considered each of the statutory factors

in any sort of one-by-one basis but only in the aggregate."

Husband did not object to the trial court's decision at the

conclusion of the November hearing and, in fact, was asked

without objection to prepare the equitable distribution order.

Having failed to properly preserve this issue, husband's

argument is barred.   See Rule 5A:18.      Additionally, the evidence

established that the trial court considered the statutory

factors.

                IV.   EQUITABLE DISTRIBUTION AWARD

                      A.    Division of Property

     Husband next argues that the trial court erred in dividing

the marital property equally, awarding a fifty-percent

distribution to each party.     He contends that the parties did

                                 - 8 -
not agree upon the percentage and that the trial court proceeded

on this mistaken assumption.

     At the November hearing, husband failed to timely object to

the fifty-percent division of marital property and agreed to an

equal split of the marital property.         At the conclusion of the

December hearing, the trial court asked counsel whether she had

previously objected to the fifty-percent division.

          COURT: Did you say that that wasn't
          correct?

          MS. LUCHS:      No, sir, I did not.

          COURT:    You did not dispute it?

          MS. LUCHS:      No, sir.

(Emphasis added).   Husband ultimately conceded that his

objection was untimely, stating the following:        "I did not make

at the time the objections that I should have made, and I admit

that quite readily." 5    We conclude that under these



     5
       When the trial court reconsidered counsel's argument, the
following colloquy took place:

          COURT: So we had an agreement to begin
          with, is that what it was?

          MR. WOOD:      That's the point.

          MS. LUCHS: No. As we addressed each issue,
          Your Honor ruled on that issue. That's
          throughout the transcript.

          COURT:    And it was 50 percent throughout?

          MS. LUCHS:     That was Your Honor's ruling.


                                     - 9 -
circumstances, having failed to timely object to the trial

court's use of a fifty-percent figure throughout the proceedings

when the division of property was made, husband waived any

objection to the award.      See Rule 5A:18.

                     B.   In-Kind Marital Property

     Husband argues that the trial court erred by making an

award of in-kind marital property.         At the time of the November

hearing, wife was in possession of the parties' china, crystal

and silverware.     After the parties separated, but prior to these

proceedings, wife gave husband a box containing jewelry.

Husband lost the jewelry and filed an insurance claim in the

amount of $6,943.    In its equitable distribution award, the

trial court awarded wife her marital share of the value of the

jewelry.   Additionally, the court ordered wife to appraise the


           COURT: And that was the agreement of the
           parties?

           MS. LUCHS: It was not the agreement of the
           parties, Your Honor.

           COURT: When you say "it was not the
           agreement," but you never made it an issue;
           is that correct?

           MS. LUCHS:     That is correct, Your Honor.

           COURT:    So you're making it an issue today?

           MS. LUCHS:     Yes, sir.

           COURT:    Overruled.   Too late.

(Emphasis added).


                                  - 10 -
parties' china, crystal and silverware and pay husband his

marital share of its value.

     At the November hearing, husband did not object to the

trial court's in-kind division of the china, crystal and

silverware.   In fact, husband's counsel implicitly agreed to the

disposition of this marital property, stating the following:

          MS. LUCHS: So you're physically awarding
          her these items?

          COURT: That is correct, marital property
          untitled. I believe the Court has the
          authority to award in-kind marital property
          which is untitled.

          MS. LUCHS: I'm not disputing the Court's
          authority, Your Honor. I just want to make
          sure I fully understanding your ruling, sir.

          COURT:    Okay.

               *       *       *      *      *    *   *

          COURT: Now, did you have another issue you
          wished to bring to mind?

          MS. LUCHS:       No, sir.

(Emphasis added).   Having failed to timely object to the trial

court's decision, husband's claim is barred on appeal.     See Rule

5A:18.

                             C.    IRA Accounts

     Husband contends that the parties did not discuss the

division of their respective IRA accounts and that the trial

court erred by including this property in the equitable

distribution award.    However, at both the November and December


                                    - 11 -
hearings these accounts were discussed by the parties.    The

record affirmatively establishes that the parties discussed the

inclusion of this property in the equitable distribution award

and, in fact, husband included both IRA accounts in his written

proffers:   "IRA: Husband, $69,315; Wife, $45,000."

     Additionally, at the December hearing the parties debated

at length the division of the IRA accounts.   The trial court

specifically asked husband's counsel what his position was on

this issue.   Counsel stated:

            I think each should benefit from their
            respective contributions. In fact, Mr. Kost
            made substantial contributions to Mrs.
            Kost's IRA. She's contributed to her own
            IRA through her employer. Mr. Kost has
            totally funded his own IRA. I don't see
            where she should benefit from those efforts
            on his behalf to fund his own IRA.

Contrary to counsel's assertion, this issue was clearly

addressed by the trial court.

     Additionally, husband offered no evidence that the deposits

into either of the parties' IRA accounts were his separate

property.   Absent credible evidence establishing the separate

nature of at least a portion of the funds, we cannot hold that

the trial court erred in classifying these accounts as marital

assets or in distributing them to the parties equally.    See

Luczkovich v. Luczkovich, 26 Va. App. 702, 715, 496 S.E.2d 157,

163 (1998); Marion v. Marion, 11 Va. App. 659, 670, 401 S.E.2d

432, 439 (1991) (holding that husband's IRA account was subject


                                - 12 -
to equitable distribution because it was purchased during

marriage, creating presumption of marital property, and no

evidence in record indicated that it was his separate property).

                   D.   Permanent Spousal Support

     Husband argues that the trial court erred in awarding, sua

sponte, permanent spousal support.      "Surely it is an abuse of

discretion to insert into a final order an issue which neither

party has asked the court to consider, . . . ."

     Because wife requested in her Answer to the Bill of

Complaint "that she be awarded temporary and permanent spousal

support," the issue of permanent spousal support was properly

before the trial court's consideration. 6    More importantly, the

record establishes that the trial court did not make an award of

permanent spousal support in the divorce decree.     Rather, it

"expressly retain[ed] jurisdiction to determine the issue of the

payment of spousal support" and its previous award of pendente

lite support was ordered to "remain in full force and effect

until further modified."

     Here, we conclude the trial court did not err in retaining

its jurisdiction to later consider the issue of permanent

spousal support.   See Rogers v. Damron, 23 Va. App. 708, 715,

479 S.E.2d 540, 543 (1997) (noting that the trial court may

reserve "consideration of support, custody, or property issues"


     6
       Husband did not include the Answer and Cross-Bill in the
Appendix.

                               - 13 -
to provide "the parties additional time to resolve their

differences" (emphasis added)); Zipf v. Zipf, 8 Va. App. 387,

390, 382 S.E.2d 263, 265 (1989) ("That order specifically

continued the cause, retaining jurisdiction to determine issues

of spousal support and maintenance, . . . .      By it's very

language, that order did not purport to dispose of all issues

remaining in the suit." (emphasis added)).

                      V.   PENDENTE LITE SUPPORT

                           A.   Imputed Income

     Husband asserts the trial court erred in finding that he

was "voluntary unemployed" and by imputing income to him for

purposes of determining pendente lite support.         At the

conclusion of the parties' evidence at the August 19, 1998

hearing for temporary support, the trial court made the

following findings:

          The Court finds that the income of the wife
          has changed. It is now $1,926. The Court
          finds that the income of the husband has
          changed to $4,213 per month but that the
          income is voluntary unemployment income.

           *      *         *       *      *       *       *

               Therefore, there has been a substantial
          change of circumstance. Pendente lite
          support will be pursuant to the Ninth
          Circuit guidelines, income of the wife
          $1,926, income of the husband $7,474.

Accordingly, the trial court awarded wife temporary support in

the amount of $2,473 per month.      Husband's counsel prepared the



                                  - 14 -
order, which was signed by the trial court and endorsed by both

parties.

     Husband did not object to the award of temporary support at

the August 19, 1998 hearing or when he endorsed the trial

court's pendente lite support order.    Indeed, at a later hearing

on September 21, 1998 to discuss the trial court's award of

temporary support, husband was given another opportunity to

object to the order, but failed to do so.   The trial court

stated the following:

           COURT: All right. If you'll make those
           changes. Ms. Luchs, I think you and Mr.
           Wood can probably resolve these issues based
           upon this discussion this morning, and I'd
           ask that you endorse the order. And you
           make your notes to whatever you object to
           relevant to that.

           MS. LUCHS:   Yes, sir.

           COURT: On the order, if in fact you have
           any objection. I think we may have resolved
           that for you. And I thank you for coming
           this morning. I'm sorry to put you to that
           trouble.

(Emphasis added).

     The record establishes that husband did not object at the

time of the trial court's ruling, at the time counsel was asked

to prepare the order, or at the time the trial court gave him

another opportunity to do so at the September 21, 1998 hearing.

Having failed to timely object to the trial court's award of

pendente lite support, his argument is barred on appeal.      See

Rule 5A:18.

                               - 15 -
                       B.   Overstated Income

     Husband also argues that the trial court erred in modifying

his income for purposes of determining pendente lite support.

He contends that when the trial court calculated the support

award, husband's income was "overstated."   Husband argues that

the trial court later recognized this error and at the August

19, 1998 hearing the court agreed to "credit the husband from

the April 29, 1998, order wherein the income was overstated."

     Our review of the record indicates that there is no trial

court order dated April 29, 1998.   Additionally, husband failed

to include a copy of the August 5, 1998 hearing transcript in

the Appendix, and it appears from the record that a copy of that

transcript was not filed in the trial court.    Accordingly, we

are unable to determine whether any income was "overstated" in a

previous order of the trial court and, therefore, we are unable

to properly decide this issue.    See Twardy v. Twardy, 14 Va.

App. 651, 654, 419 S.E.2d 848, 850 (1992) (en banc) ("[A]n

appellant has the primary responsibility of ensuring that a

complete record is furnished to an appellate court so that the

errors assigned may be decided properly."); Id. at 658, 419

S.E.2d at 852 ("The trial court's judgment is presumed to be

correct, and 'the burden is on the appellant to present to us a

sufficient record from which we can determine whether the lower

court has erred.'").



                               - 16 -
     Significantly, when husband's counsel prepared the order

for pendente lite support he did not object to the trial court's

calculations.    Even if the trial court mistakenly failed to

credit husband the claimed amount, husband agreed to and signed

the order without objection.      Accordingly, his argument is

barred on appeal.    See Rule 5A:18.

                           VI.   COURT REPORTER

     Husband argues that the trial court erred in declining to

postpone the November 5, 1998 hearing until a court reporter

arrived to transcribe the proceedings.      However, husband did not

object to the trial court's decision, and he conceded that no

substantive issues had been discussed during the ten-minute

absence of the court reporter.      When the parties discussed this

issue at the December 15, 1998 hearing, husband's counsel stated

the following:

           But, again, during that ten minutes, as I
           recall, no substantive issues were
           discussed, and that's probably reflected in
           your notes. Certainly, in the beginning of
           the transcript, Your Honor notified the
           court reporter of what had been discussed to
           the point of her arrival, . . . .

Accordingly, husband waived any objection to the absence of a

court reporter during the beginning of the November 5, 1998

hearing.   See Rule 5A:18.

                    VII.   HOLD HARMLESS PROVISION

     Husband argues that trial court's final order is flawed

under various federal bankruptcy provisions and laws.     In its

                                  - 17 -
order the trial court awarded husband real property located in

Blacksburg, Virginia, and ordered wife to execute a deed

conveying her marital interest in that property to husband.    The

trial court valued the Blacksburg property at $80,000, with a

debt of $72,048, resulting in an equity value of $7,951.

Accordingly, husband was ordered to pay wife $3,975, her marital

share of the equity value.

     In addition, the trial court noted that "[husband] shall

hold [wife] harmless for the mortgage payment on said property

and shall make a good faith effort to refinance the property

thereby relieving [wife] and the parties' daughter 7 of the debt."

On appeal, husband argues that this hold harmless provision

violates federal bankruptcy laws.

     Husband's claim of error is procedurally barred because he

failed to make a timely objection to the trial court's ruling.

See Rule 5A:18.   At the November hearing, husband testified that

he was going to refinance the Blacksburg property to get a lower

interest rate and to release his daughter from any liability as

a named party to the original deed.    Because the trial court did

not want to order husband to refinance the property if it was

not possible, the court only required that he make a "good faith




     7
       The evidence established that in addition to husband and
wife the parties' daughter was named in the original deed of the
Blacksburg property.


                              - 18 -
effort" to do so.   Additionally, the trial court ruled as

follows:

           COURT: And you will hold Mrs. Kost harmless
           from that debt. For instance, if it was
           foreclosed on and there was a deficiency and
           they came after both of you, it's your
           responsibility to hold her harmless on that
           debt.

           MR. WOOD: I would like the order to reflect
           that hold harmless to the extent that she
           would have to pay any of that debt, that
           would transfer into the nature of spousal
           support; and therefore, not dischargeable in
           bankruptcy.

           COURT:   So ordered.

Husband did not object to the trial court's ruling and,

therefore, his argument is barred on appeal.         See Rule 5A:18.

               VIII.   HUSBAND'S MILITARY RETIREMENT

     Lastly, husband argues that the trial court abused its

discretion by requiring him to maintain the survivor benefit

plan under his military retirement.        Husband did not object to

the court's decision at that time and, therefore, his argument

is barred on appeal.      Additionally, husband did not object at

the December hearing when the parties were discussing the

military pension.   Having failed to timely object, husband's

argument is barred on appeal.      See Rule 5A:18.

                    IX.    CONTINUATION OF SUPPORT

     Husband argues that the trial court erred in requiring him

to continue paying pendente lite support after the entry of the

divorce decree and equitable distribution award.        Husband did

                                  - 19 -
not raise this issue at any time during the proceedings and his

only objection was raised in his exceptions to the order.

     As noted above, the trial court expressly retained

jurisdiction to determine permanent spousal support and,

therefore, continued pendente lite support "until further

modified."    Because the trial court correctly reserved

jurisdiction to further consider the issue, we find no abuse of

discretion.    See Rogers, 23 Va. App. at 715, 479 S.E.2d at 543;

Zipf, 8 Va. App. at 390, 382 S.E.2d at 265.

     For the foregoing reasons, the order of the trial court

awarding equitable distribution of marital property and

retaining jurisdiction for consideration of permanent spousal

support is affirmed.

                                                           Affirmed.




                               - 20 -
