                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia


DAVID J. HOWELL
                                          MEMORANDUM OPINION * BY
v.   Record No. 0123-01-2                  JUDGE LARRY G. ELDER
                                              NOVEMBER 6, 2001
COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF SOCIAL SERVICES,
 DIVISION OF CHILD SUPPORT ENFORCEMENT,
 ex rel. LINDA FISHER


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                       Gary A. Hicks, Judge

          David J. Howell, pro se.

          Nicholas S. Murphy, Special Counsel (Mark L.
          Earley, Attorney General; Ashley L.
          Taylor, Jr., Deputy Attorney General;
          Robert B. Cousins, Jr., Senior Assistant
          Attorney General; Craig M. Burshem, Regional
          Special Counsel, on brief), for appellee.


     David J. Howell (appellant) appeals from an order

dismissing his de novo appeal in a proceeding arising from the

efforts of the Commonwealth's Department of Social Services,

Division of Child Support Enforcement (DCSE), to collect child

support owed for the minor child of appellant and Linda Fisher.

On appeal, appellant contends the court lacked jurisdiction over

DCSE's motion for issuance of a show cause summons, due in part

to the pendency of an appeal of the June 5, 2000 dismissal of a


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
previous show cause summons.   He also contends various other

prior orders of the district and circuit courts barred the

present show cause proceedings on grounds of res judicata,

collateral estoppel, due process, equal protection and double

jeopardy.    We hold that appellant failed to present a sufficient

record from which we may determine whether he preserved any of

these claimed errors for appeal. 1    Thus, we consider only the

non-waivable contention that the lower courts lacked

jurisdiction over the subject matter.     We conclude, from the

face of the record, that the district court had subject matter

jurisdiction to award child support and to punish appellant's

failure to pay support pursuant to that award and that the

circuit court had jurisdiction to entertain the appeal of that

determination.   Thus, we affirm.

                                 A.

             SUFFICIENCY OF RECORD FOR APPELLATE REVIEW

     Rule 5A:8 provides that "[t]he transcript of any proceeding

is part of the record when it is filed in the office of the

clerk of the trial court within 60 days after entry of the final

judgment."   A party may submit a written statement of facts in

lieu of a transcript, but only when the statement of facts has

been presented to and signed by the trial judge and filed by the


     1
       A defendant who elects to proceed without counsel is no
less bound by rules of procedure and substantive law than a
defendant who has counsel. Church v. Commonwealth, 230 Va. 208,
213, 335 S.E.2d 823, 826 (1985).

                                - 2 -
clerk of the trial court is it properly a part of the record for

purposes of appeal.    Rule 5A:8(c).

          If . . . the transcript [or statement of
          facts] is indispensable to the determination
          of the case, then the requirements for
          making the transcript [or statement of
          facts] a part of the record on appeal must
          be strictly adhered to. This Court has no
          authority to make exceptions to the filing
          requirements set out in the Rules.

Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402

(1986); see Anderson v. Commonwealth, 13 Va. App. 506, 508-09,

413 S.E.2d 75, 77 (1992) (statements of facts).

     Even taking as true appellant's representation that the

circuit court clerk refused to accept his proposed statement of

facts for the January 8, 2001 proceeding and that she did so

without justification, 2 it remained appellant's responsibility to

ask this Court to issue a writ of mandamus to ensure the

statement was filed.    See Richlands Med. Ass'n v. Commonwealth


     2
       Accepting as true appellant's allegation that the clerk
refused to file in this matter the transcripts of the district
and circuit court proceedings of November 14, 2000, the record
provides no indication that refusal was erroneous. Because the
January 8, 2001 circuit court proceeding was a de novo appeal,
the transcript of the previous district court proceeding on
November 14, 2000 was inadmissible. See Mahoney v. Mahoney, 34
Va. App. 63, 67 n.1, 537 S.E.2d 626, 628 n.1 (2000) (en banc).
The November 14, 2000 circuit court proceeding on a writ of
prohibition was assigned a different circuit court docket number
and was the subject of a separate appeal to this Court, assigned
Record No. 2846-00-2, which was transferred to the Virginia
Supreme Court by order of February 20, 2001. Thus, the only
transcript appellant could have made a part of the record in
this proceeding pursuant to Rule 5A:8 was a transcript of the
January 8, 2001 circuit court hearing if such a transcript had
been made.

                                - 3 -
ex rel. State Health Comm'r, 230 Va. 384, 386, 337 S.E.2d 737,

739 (1985); see also Code § 17.1-404.    The burden is on the

appellant to prove both the claimed error and the preservation

of that error for appeal.    See Twardy v. Twardy, 14 Va. App.

651, 658, 419 S.E.2d 848, 852 (1992); Lee v. Lee, 12 Va. App.

512, 516-17, 404 S.E.2d 736, 738-39 (1991) (en banc).     Here,

because no transcript or statement of facts was properly made

part of the record for purposes of appeal, we are unable to

determine whether appellant voiced any objections at the January

8, 2001 hearing, and appellant's endorsement of the dismissal

order as "SEEN AND OBJECTED TO:" was insufficient to preserve

his objections for appeal.    Mackie v. Hill, 16 Va. App. 229,

231, 429 S.E.2d 37, 38 (1993).    Appellant's filing of his

objections simultaneously with his notice of appeal was

insufficient to preserve the claimed errors for review by this

Court because the filing of the notice of appeal divested the

trial court of jurisdiction to consider the alleged errors.

See, e.g., Walton v. Commonwealth, 256 Va. 85, 95, 501 S.E.2d

134, 140 (1998).

     Nor does the ends of justice exception to Rule 5A:18

require us to consider the arguments appellant raises on appeal.

See Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8,

10-11 (1989).   Here, in regard to appellant's assignments of

error 2, 4, 6, 7 and 8, the record is not sufficiently complete

to establish an error that was "clear, substantial and material"

                                 - 4 -
as required by Brown because the record contains no order

indicating a previous stay or suspension of appellant's child

support obligation. 3   The record also fails to establish that

appellant presented to the trial court his claim that DCSE

"unlawfully" credited his support and purge payments or that the

court's rulings violated principles of res judicata, double

jeopardy, due process and equal protection or that the ends of

justice exception applies to excuse this failure to preserve the

claimed errors for appeal.    Finally, the ends of justice

exception does not require us to review the merits of the trial

court's ruling dismissing appellant's present appeal based on

his failure to post a sufficient bond.    An appellant may not

bifurcate a contempt determination from the related arrearage

determination for purposes of appeal.    See Mahoney v. Mahoney,

34 Va. App. 63, 66-67, 537 S.E.2d 626, 628 (2000) (en banc).

                                 B.

                    SUBJECT MATTER JURISDICTION

     Although a judgment rendered by a court lacking subject

matter jurisdiction is void from its inception, see, e.g., Rook


     3
       Although copies of one or more of the orders appellant
references may be contained in appellant's appendix, they were
not offered into evidence in the trial court. "We are not able
to peer surreptitiously [at documents that are] not part of the
record to satisfy our curiosity. To do so defies the uniform
application of our rules." Twardy, 14 Va. App. at 658, 419
S.E.2d at 852.
     We also note that appellant's assignments of error refer to
a writ of prohibition. That petition is not a part of these
proceedings. See supra note 2.

                                - 5 -
v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987), 4 a party

asserting a lack of subject matter jurisdiction must provide a

proper evidentiary record to support his claim, cf. Friedman v.

State, 249 N.E.2d 369, 374 (N.Y. 1969); 4 C.J.S. Appeal and

Error § 38, at 111-12 (1993).

     While an appeal of a child support order is pending, the

lower court may not modify but may enforce the existing order,

Decker v. Decker, 17 Va. App. 562, 564, 440 S.E.2d 411, 412

(1994); see Code § 20-68, unless execution of the award has been

suspended and an appropriate appeal bond filed, Code

§ 8.01-676.1(C), (D).    Here, the record contains no indication

the support award requiring appellant to pay $75 per week was

suspended during any of these proceedings.   Thus, the record

fails to establish, in the manner alleged by appellant, that the

district court lacked jurisdiction over the show cause

proceedings initiated by DCSE on August 29, 2000, from which the

instant appeal arises.   The record is valid on its face in that

the district court had subject matter jurisdiction under Chapter

11 of Title 16.1, which provided it with original jurisdiction

to award child support and to punish the failure of one ordered

to provide such support to comply with that obligation.    See,

e.g., Code §§ 16.1-241, 16.1-278.16.    Similarly, the circuit


     4
       To the extent appellant's assignments of error may be
construed as a challenge to personal jurisdiction, such a
challenge is barred. See, e.g., Gilpin v. Joyce, 257 Va. 579,
581-82, 515 S.E.2d 124, 125 (1999).

                                - 6 -
court had subject matter jurisdiction on appeal which derived

from the district court's jurisdiction.   See Code § 16.1-296.

To the extent any of the orders entered in the present or any

previous proceeding may have contained errors, those errors, if

any, rendered the orders voidable only and did not deprive this

Court or the circuit or district courts of subject matter

jurisdiction.   See Robertson v. Commonwealth, 181 Va. 520,

536-37, 25 S.E.2d 352, 359 (1943).

     For these reasons, we affirm the circuit court's order of

January 8, 2001 dismissing appellant's appeal.

                                                         Affirmed.




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