Present: All the Justices

MONI HENDERSON
                                                                OPINION BY
v. Record No. 180772                                      JUSTICE CLEO E. POWELL
                                                               August 23, 2019
STEPHANIE P. COOK, TRUSTEE AND
CONSERVATOR FOR THOMAS E. NOOJIN




                  FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
                              Malfourd W. Trumbo, Judge



       In this appeal, we consider the effect of altered assignments of error and whether a circuit

court can delegate its authority to approve or deny final accountings submitted by a trustee and

conservator to the Commissioner of Accounts.

                                        I. BACKGROUND

       In 2011, upon petition of Moni Henderson, Stephanie P. Cook (“Trustee”) was appointed

Guardian and Conservator for Thomas E. Noojin, an incapacitated adult, and Trustee for the

Noojin Living Trust (“Trust”). Henderson is Thomas’s daughter and one of the beneficiaries of

the Trust. Her brother, Joseph E. Noojin, is the other Trust beneficiary.

       During the administration of the trust and conservatorship, the Trustee filed regular

fiduciary accountings with the Commissioner of Accounts for Botetourt County

(“Commissioner”) and he approved accountings one through six. Thomas died in 2015. On

June 21, 2017, the Circuit Court of Botetourt County (“circuit court”) entered an order providing

aid and guidance to the Trustee regarding the final administration of the Trust. On December 18,

2017, the Trustee notified the beneficiaries and the circuit court that she intended to present the
“Seventh and Final Accounting” as Conservator for the Estate and the “Seventh and Final

Accounting” as Trustee for the Trust (collectively, the “final accountings”) to the circuit court

and requested that the court dismiss the case from the docket. Judge Trumbo 1 heard the matter

on December 27, 2017, and had heard all related matters up until this date. A court-reporter was

not present for the December 27, 2017 hearing.

       The circuit court issued an order on December 29, 2017 in which it summarized the

Trustee’s actions taken on behalf of the trust. The circuit court directed the Trustee to file the

final accountings with the Commissioner after which “the approval of the Seventh and Final

Accounting . . . by the Commissioner of Accounts for Botetourt County, Virginia, shall be an

approval by this court and the beneficiaries, subject to specific written objections so

provided . . . .” The order also directed that, upon the approval of the final accountings by the

Commissioner, the trust would be closed and “this Order shall become final.”

       Henderson’s written objections were attached to the December 29 order. Henderson

objected to the procedure that the Trustee and the circuit court used because the final accountings

bypassed the initial submission to and approval by the Commissioner before the circuit court

ruled on the matter. There is no record demonstrating whether the circuit court considered

Henderson’s objections before issuing its December 29, 2017 order.

       On February 20, 2018, Henderson filed similar objections with the Commissioner,

including more detailed objections to the Trustee’s fees. On March 20, 2018, the Commissioner

issued his approval of the final accountings, noting “[h]owever, this Commissioner notes

objections have been filed by Sidney Kirstein on behalf of Moni Henderson.” Henderson filed

“Exceptions and Objections” to the March 20, 2018 report by the Commissioner in the circuit



       1
           Judge Trumbo retired at the end of 2017.


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court on April 3, 2018. Henderson objected to the failure of the Commissioner to hold a hearing

on the matter; to the award of legal fees and expenses to the Trustee; and to the Commissioner’s

authority to review the final accountings because the circuit court issued a final order on

December 29. The record does not demonstrate that any further action was taken as to the final

accountings by either the circuit court or the Commissioner.

       On March 8, 2018, Henderson requested a hearing for certification of her Written

Statement of Facts prepared in advance of her first appeal to this Court. There is no transcript of

this hearing, however, the circuit court entered an order on April 3, 2018. In the order, the

circuit court ruled that the December 29 order was not yet final, but would become so when the

Commissioner filed the approval of the final accountings with the clerk of the circuit court. The

circuit court notified the parties it reviewed both Henderson’s written statement and Cook’s

proposed written statement, filed in advance of the hearing, and signed both documents. Judge

Filson appended to the order copies of the signed written statements to which she had added

handwritten notes stating “the Judge is unable to fully reconcile the statements of fact filed by

opposing counsel. The parties were unable to agree in toto and the Judge who has heard this

matter over the years is retired and unavailable to determine the issue.”

       This Court dismissed Henderson’s first appeal without prejudice because the December

29 order was not a final, appealable order. Henderson appealed again on April 2, 2018 “from the

final order, decision and ruling of the Botetourt County Circuit Court embodied in its order dated

December 29, 2017 which states that it becomes ‘final’ by issuance of the order or report of the

Commissioner of Accounts which was issued March 20, 2018.”




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       On May 10, 2018, Henderson filed a revised statement of facts in preparation for a

second appeal and requested a hearing on the matter. After a hearing, the circuit court issued an

order pursuant to Rule 5:11(g), in which it incorporated the previously-filed written statements.

                                          II. ANALYSIS

                                    A. Assignments of Error

       The Trustee argues that Henderson made substantive changes to Assignments of Error 1,

2, and 3 2 on brief and that the appeal should be dismissed. In response, Henderson asserts that

the Court should address the merits of the case because the changes were non-substantive and

meant to simplify and focus the errors.

       The assignments of error contained in the granted Petition for Appeal were:

               1. As a matter of law, the circuit court erred by accepting a direct
               submittal of the fiduciary’s seventh and final accountings for the
               Noojin Living Trust and the Noojin estate and by delegating unto
               the commissioner of accounts the right to enter a final and
               unreviewable approval of the said accountings.

               2. The circuit court erred by adopting a procedure for the review
               and approval of the said accountings which deprived the
               beneficiaries of the trust and the estate any meaningful opportunity
               and due process to review and challenge the fiduciary’s billings set
               forth in said accountings.

               3. The circuit court’s procedural errors caused it to error [sic]
               substantively by awarding Ms. Cook legal fees for preforming [sic]
               non-legal administrative duties performed by Ms. Cook in her role
               as trustee and conservator.

The assignments of error contained in the opening brief are:

               1. As a matter of law, the circuit court erred by accepting a direct
               submittal of the seventh and final accountings from the trustee and
               conservator without requiring that the final Noojin fiduciary



       2
       Assignments of Error 4 and 5 are barred from review on appeal by Rule 5:27(d) because
Henderson provides no argument on brief.


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               accountings be first submitted to and ruled upon by the
               commissioner of accounts.

               2. As a matter of law, the circuit court then erred by approving and
               then referring the final accountings back to the commissioner via
               an order purporting to empower the commissioner of accounts, not
               the court, to issue a final, unreviewable order approving said
               accountings.

               3. Finally, the circuit court’s failure to require the
               trustee/conservator to submit her accountings to the customary
               statutory review procedures deprived the residuary beneficiaries of
               their due process rights to examine and challenge the propriety and
               amount of the legal and administrative fees sought by the
               fiduciary.

       Once again, we find ourselves revisiting the issue of how to dispose of a case where the

appellant has changed the assignments of error presented in the petition for appeal either in its

brief or in its argument. The Court is perplexed as to why this issue continues to arise. As we

have clearly stated on numerous occasions, “[i]t is improper for an appellant to change the

wording of an assignment of error from that which was presented to the Court at the petition

stage.” Allstate Ins. Co. v. Gauthier, 273 Va. 416, 418 n.* (2007). Accord Commonwealth v.

Herring, 288 Va. 59, 71 (2014) (“[O]nce this Court grants an assignment of error in a petition for

appeal, no party may thereafter alter the substance of that assignment of error without the

permission of this Court—be it in a brief or at oral argument.”); Northam v. Virginia State Bar,

285 Va. 429, 434 n.* (2013) (“It is well established that the Court will not consider assignments

of error as modified by an appellant’s opening brief, but only as granted by the Court.”); White v.

Commonwealth, 267 Va. 96, 103 (2004) (citation omitted) (“It is impermissible for an appellant

to change the wording of an assignment of error, ‘especially when the assignment is set forth in

the order of this Court awarding the appeal.’”); Santen v. Tuthill, 265 Va. 492, 497 n.4 (2003)

(“[A]n appellant may not change the wording of an assignment of error.”); Cardinal Holding Co.

v. Deal, 258 Va. 623, 629 (1999) (citation omitted) (“‘Appeals are awarded based on


                                                 5
assignments of error. Rule 5:17(c). The language of an assignment of error may not be

changed.’”); Black v. Eagle, 248 Va. 48, 57 (1994) (“Appeals are awarded based on assignments

of error and the language of the assignments may not be changed after the appeal is awarded.”);

Hamilton Dev. Co. v. Broad Rock Club, Inc., 248 Va. 40, 44 (1994) (“Appeals are awarded based

on assignments of error, a required part of every petition for appeal. Rule 5:17(c). The language

of an assignment of error may not be changed, especially when the assignment is set forth in the

order of this Court awarding the appeal.”).

       Indeed, Rule 5:17(c)(1)(i) provides that “[o]nly assignments of error assigned in the

petition for appeal will be noticed by this Court.” The reason for the Rule and the support for the

Rule found in this long line of cases was recently articulated in Forest Lakes Community Assoc.,

Inc. v. United Land Corp. of America, 293 Va. 113, 122-123 (2017), where we said:

               An assignment of error is not a mere procedural hurdle an
               appellant must clear in order to proceed with the merits of an
               appeal. Assignments of error are the core of the appeal. With the
               assignment of error, an appellant should “lay his finger” on the
               alleged misjudgment of the court below. Martin P. Burks,
               Common Law and Statutory Pleading and Practice § 425, at 827
               (T. Munford Boyd ed., 4th ed. 1952). . . . “An assignment of errors
               is in the nature of a pleading, and in the court of last resort it
               performs the same office as a declaration or complaint in a court of
               original jurisdiction.” Puckett v. Commonwealth, 134 Va. 574, 579
               (1922) (citation omitted). Like a well-crafted pleading,
               assignments of error set analytical boundaries for the arguments on
               appeal, provide a contextual backdrop for our ultimate ruling, and
               demark the stare decisis border between holdings and dicta.

Our case law could not be more clear: absent leave of Court, granted assignments of error

should not be altered on appeal either on brief or at oral argument for any reason.

       Despite the clarity of our rule, we continue to grapple with unapproved changes to

granted assignments of error, causing us to have to decide how to deal with the fact that the

litigant has not abided by our rule. In response to changes, our cases have held the following:



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“‘[w]hile it is improper for an appellant to alter the wording of a [granted] assignment of error

. . . non-substantive changes to an assignment of error . . . do not default the issue raised.’”

Northam, 285 Va. at 434 n.* (quoting Dowdy v. Commonwealth, 278 Va. 577, 590 n.14 (2009)).

Accord Escamilla v. Superintendent, 290 Va. 374, 379 n.4 (2015); Herring, 288 Va. at 71-72.

We have defined non-substantive alterations as those that “do not permit the appellant to argue a

different issue on appeal.” Northam, 285 Va. at 434 n.*. We do not, however, recognize any

unauthorized substantive alteration to the granted assignment of error. Herring, 288 Va. at 72.

       Our rulings have resulted in at least three approaches to the unauthorized alteration of an

assignment of error. When the alteration is non-substantive, i.e. it does not permit the litigant to

argue different issues on appeal, the Court may consider the modified assignments of error. In

Hudson v. Pillow, 261 Va. 296 (2001), we addressed the merits of an assignment of error 3

because “the modification of [the] assignment of error ha[d] not enabled the plaintiffs to argue

either a different question on appeal or an issue not presented to the chancellor.” Id. at 301-02.

We also refused to consider a different assignment of error 4 because on brief it was “entirely



       3
           The assignment of error set forth in the granted petition for appeal was:

                 The trial court erred in denying Appellants’ Bill of Complaint for
                 injunction relief seeking use of the Free Hollow road by holding
                 that the Appellants did not meet their burden of proof regarding (a)
                 abandonment by Appellants, (b) permissive use by Appellants or
                 (c) adverse possession by the Appellees of Appellants’ right of
                 way.

Hudson, 261 Va. at 301 n.7. The related assignment of error, that the Court addressed the merits
of on appeal, was set forth in the brief as: “The trial court erred in finding that the prescriptive
easement over Free Hollow Road has been abandoned.” Id.
       4
          The assignment of error set forth in Hudson’s granted petition for appeal was: “The
trial court erred in finding that the Appellants did not establish a right of way by necessity or
implication.” Hudson, 261 Va. at 301 n.7. The related assignment of error, that the Court
refused to address the merits of on appeal, was set forth in the brief as: “The trial court erred by


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different than the original assignment of error.” Id. at 302. More recently, in Escamilla, we

addressed the merits of the appeal “[b]ecause the re-sequencing of the language appearing in

Escamilla’s second assignment of error [was] non-substantive, in that it [did] not permit him to

argue different issues in [the] appeal, it [was] not defaulted.” 5 290 Va. at 379 n.4.

        We have also held that “[t]he improper modification of an assignment of error, however,

will not prevent the appellant from arguing and having his appeal considered on the issue

actually asserted in the trial court and for which an appeal was granted, provided that he has

adequately briefed that issue.” White, 267 Va. at 103. Under these circumstances, we will “limit

our consideration in [the] appeal to the narrow issue raised in [the] initial assignment of error,

disregarding any argument on and expressing no opinion with respect to the additional issue

interjected by the improper modification of that assignment of error in the opening brief.” Id.

We took this approach in White, where the original assignment of error was limited “to the

question whether the evidence was sufficient to prove that [White] was ‘in police custody at the

time of his flight.’” Id. at 102. We refused to address the modification to the assignment of error

contained in White’s brief where he “include[d] language asserting that his conviction was

barred because he was not in ‘custody on a charge or conviction of a felony.’” Id. (emphasis in

original).




making no finding whether the Appellants established a right of way by necessity or
implication.” Id.
        5
          “[I]n his petition for appeal, Escamilla stated the second assignment of error as follows:
‘The Circuit Court erred when it granted the Superintendent’s motion to dismiss for lack of
jurisdiction and ruled Escamilla’s petition was not timely.’” Escamilla, 290 Va. at 379 n.4. “In
his opening brief, however, the second assignment of error is stated in a different sequence: ‘The
Circuit Court erred when it ruled Escamilla’s petition was not timely and granted the
Superintendent’s motion to dismiss for lack of jurisdiction.’” Id.



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       We likewise considered the original wording of an assignment of error in Santen and did

not address an added phrase to the assignment of error on brief, noting that “an appellant may not

change the wording of an assignment of error.” 265 Va. at 497 n.4. In that case, Santen changed

the original assignment of error and added an entire phrase that raised an issue that was not

encompassed by the original assignment of error. 6 Similarly, in Hamilton Development Co., we

addressed the original assignment of error due to the “metamorphosis of [the] assignment [that]

enabled defendant to argue” an issue that was never raised at trial. 7 248 Va. at 44.

       In contrast to these cases, however, the Court refused to consider an assignment of error

on appeal in Cardinal Holding. We held the appellants “to the assignment of error as written”

which stated that “[t]he trial court erred in awarding any sanctions to the Jarretts when more

than 21 days elapsed after entry of the final order.” Cardinal Holding Co., 258 Va. at 629. The

appellants “maintained that the reference in the assignment of error to the Jarretts instead of to

Deal was a typographic error.” Id. The Court refused to allow appellants’ to change “the




       6
         The granted assignment of error from Santen’s petition for appeal read: “The Trial
Court Erred in Excluding the Testimony of Richard McGarry, Plaintiff’s Specially Retained
Expert, who was to Testify Regarding the Reliability of the Alcosensor used to Determine
Wilfong’s Blood Alcohol Content, and was to Testify how Defendant Glenn Wilfong’s Elevated
Blood Alcohol Content Affected his Ability to Control his Actions, and his Ability to Accurately
Recollect the Events of that Night.” Santen, 265 Va. at 497 n.4. On brief, Santen “added a
phrase that McGarry would testify ‘about the accuracy of the Preliminary Breath Test Device
and how much Vodka, Ingested Five Hours Earlier, would be Required to Result in a Blood
Alcohol Content of 0.209 Grams Per Liter of Breath in a person the Weight and Gender of
Wilfong.’” Id.
       7
          Hamilton Development “set forth in the petition for appeal and as recited in our
mandate awarding the appeal,” the assignment of error as: “The Circuit Court erred in allowing
evidence of Hamilton’s financial condition for the year after the alleged tresspass [sic] occurred.”
Hamilton Dev. Co., 248 Va. at 43. On brief, the assignment of error was changed to read: “The
Circuit Court erred in allowing evidence of Hamilton’s financial condition for the year after the
alleged tresspass [sic] occurred to be presented before the jury found Hamilton liable.” Id. at 44.


                                                 9
Jarretts” to “Deal” and held that “because [the granted assignment of error] fail[ed] to relate the

jurisdictional question to the sanctions awarded to Deal, we will not consider the question.” Id.

       In summary, while the Court continues to strongly discourage any alteration of granted

assignments of error, the Court has exercised its discretion to address the merits of cases where

the alteration appears substantive but “issues pertaining to appellant’s omitted assignments of

error are encompassed by the presented assignments of error and are sufficiently briefed.”

Northam, 285 Va. at 434 n.*.

       Finally, when there are substantive changes and the appellant has not adequately briefed

the granted issue(s), the matter will be deemed defaulted. Black, 248 Va. at 57 (“The assignment

of error does not sufficiently reach the issue argued, and we will not address it further.”).

       In this case, Henderson made extensive changes to the wording and organization of the

assignments of error. The original assignments of error within the petition for appeal encompass

the following issues: (1) acceptance by the circuit court of a direct submittal of the final

accountings, (2) delegation to the Commissioner of Accounts the power to enter a final approval

of the accountings, and (3) failure to follow statutory procedure thus denying the beneficiaries

their due process right to challenge the fiduciary’s billings. On brief, Henderson took the first

assignment of error from the petition and parsed it into two different assignments of error. These

reworded assignments of error argue that the circuit court erred (1) by accepting a direct

submittal of the fiduciary’s final accountings and, (2) by delegating to the Commissioner the

right to enter a final approval of the accountings. The original second and third assignments of

error are combined in the third assignment of error on brief, which argues that the circuit court

erred by failing to require that the Trustee submit her final accountings in accordance with the

statutory review procedures because it deprived the residuary beneficiaries of their due process




                                                 10
rights to examine and challenge the legal and administrative fees sought by the fiduciary. We

will assume without deciding, that the changes are substantive.

       Accordingly, we will revert to the original assignments of error granted in the petition for

appeal as they are adequately addressed on brief. However, we need only address the second

assignment of error as “[t]he doctrine of judicial restraint dictates that we decide cases ‘on the

best and narrowest grounds available.’” Commonwealth v. Swann, 290 Va. 194, 196 (2015)

(citation omitted).

                                  B. Commissioner of Accounts

       Henderson’s original Assignment of Error 2 asserted that the “circuit court erred by

adopting a procedure for the review and approval of the [final] accountings which deprived the

beneficiaries . . . of any meaningful opportunity and due process to review and challenge the

fiduciary’s billings set forth in said accountings.” In response, the Trustee argued that the

Commissioner considered and rejected the objections to the final accountings. The Trustee also

argued, in the alternative, that any error was harmless because the procedure used by the circuit

court was an effort in judicial economy because the circuit court tried to conclude the “lengthy

and adversarial proceeding” without having to bring in a new judge.

       To resolve this issue, we must look to the statutory provisions governing the procedures

for the approval of final accountings submitted by a trustee and conservator for an estate to a

Commissioner of Accounts and a circuit court. “[A]n issue of statutory interpretation is a pure

question of law which we review de novo.” Conyers v. Martial Arts World of Richmond, Inc.,

273 Va. 96, 104 (2007).

               When the language of a statute is unambiguous, we are bound by
               the plain meaning of that language. Furthermore, we must give
               effect to the legislature’s intention as expressed by the language
               used unless a literal interpretation of the language would result in a



                                                 11
               manifest absurdity. If a statute is subject to more than one
               interpretation, we must apply the interpretation that will carry out
               the legislative intent behind the statute.

Id. (citations omitted). Additionally, “[t]he plain, obvious, and rational meaning of a statute is

to be preferred over any curious, narrow, or strained construction.” Meeks v. Commonwealth,

274 Va. 798, 802 (2007) (citation and internal quotation marks omitted).

        The Commissioner of Accounts is an office established to support the circuit court and

aid in “the settlement of fiduciaries’ accounts and the distribution of estates.” Gray v. Binder,

294 Va. 268, 276 (2017). It has evolved from the Commissioner in Chancery, and is “one of the

most important known in the administration of justice,” however, “commissioners serve to assist

the court, not to supplant it.” Id. (quotations and citations omitted). “[F]rom the very necessity

of their appointment and the nature of their office, their work is subject to the review of the

court. It may accept or reject it, in whole or in part, as its judgment, upon such review, may

dictate, whether it be of law or fact.” Gray, 294 Va. at 276-77 (citation omitted) (alteration in

original).

        The General Assembly enacted Code § 64.2-1200 et seq., to govern Commissioners in

Virginia. The Trustee has an obligation to “account before the Commissioner of Accounts.”

Code § 64.2-1206. Henderson, as a beneficiary, has the right to object, or note “exceptions,” to

the Commissioner. Code § 64.2-1209. Once objections are filed, “the circuit court, after 15 days

from the time the report has been filed in its office, shall examine such exceptions that have been

timely filed . . . [and] shall certify in the order that it has made a personal examination of the

exceptions.” Code § 64.2-1212(B). The plain language of Code § 64.2-1212(B) demonstrates

that the General Assembly intended that the order of proceedings begin with the Commissioner

and end with the circuit court.




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       The opposite occurred in this case. The December 29 order conditioned the circuit

court’s final approval of the accountings on the Commissioner’s approval, “subject to specific

written objections.” Nothing in the record shows any ruling on Henderson’s objections and

exceptions. None of the orders contain the language required by Code § 64.2-1212(B) that the

circuit court certified “that it has made a personal examination of the exceptions.” As stated in

the December 29 order, when the Commissioner filed his final approval on March 20, 2018, the

circuit court’s December 29 order then became final as an approval of the final accountings. In

so ordering, the circuit court erroneously delegated final approval of the accountings to the

Commissioner without a certification “that it ha[d] made a personal examination of the

exceptions.” Code § 64.2-1212(B).

       For these reasons, we hold that the circuit court erred in delegating its final approval as

provided by statute and directing that the Commissioner conduct that approval of the final

accountings. While the circuit court’s reasons for doing so may have been expedient under the

facts of this case, we cannot agree with Cook that the error was harmless.

                                       III. CONCLUSION

       The best and narrowest ground for deciding this case is our conclusion that the circuit

court erroneously delegated its approval of the final accounts to the Commissioner without a

certification “that it ha[d] made a personal examination of the exceptions.” Code § 64.2-

1212(B). We will reverse the judgment of the circuit court and remand for proceedings

consistent with this opinion.

                                                                           Reversed and remanded.




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