                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia


LEROY SKEEN
                                          MEMORANDUM OPINION * BY
v.   Record No. 0801-00-3                  JUDGE RICHARD S. BRAY
                                               AUGUST 7, 2001
GLENDA NELL (PARSONS) SKEEN


              FROM THE CIRCUIT COURT OF WISE COUNTY
                     J. Robert Stump, Judge

          (John M. Lamie; Nicole Musgrave Price;
          Browning & Lamie, P.C.; MusgravePrice, P.C.,
          on briefs), for appellant.

          Robert M. Galumbeck (Dudley, Galumbeck,
          Necessary and Dennis, on brief), for
          appellee.


     Leroy Skeen (husband) appeals from a "Decree Regarding

Equitable Distribution" entered by the Wise County Circuit Court.

Husband contends the court erroneously (1) calculated the

"separate contributions" of his wife, Glenda Nell (Parsons) Skeen

(wife), to the "marital residence"; (2) included his "former

savings and investment plan in the marital estate"; and (3)

assigned a $25,000 value to "the business, Lee's Quick Lube."   As

a threshold issue, wife contends the husband failed to comply with

Rules 5A:8 and 5A:25 and urges us to dismiss the appeal.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                I.

     Wife filed a "Bill of Complaint" for divorce on April 26,

1994, alleging "mental and physical cruelty" and desertion.    In

response, husband denied such misconduct and, by "Cross-Bill of

Complaint," alleged adultery by wife and also prayed for divorce.

Thereafter, the parties noticed one another with the taking of

numerous depositions and submitted a plethora of motions to the

court, together with related briefs and arguments.    After

"consider[ing] the . . . pleadings, all depositions with exhibits

[and] counsel briefs," the trial court entered a final decree of

divorce on March 16, 1995, granting husband a divorce a vinculo

matrimonii on the ground of adultery pursuant to Code § 20-91(1),

"reserv[ing] for subsequent decision" the "issue of equitable

distribution."

     During the ensuing four years, the parties pursued additional

depositions 1 and, again, presented an array of motions and related

briefs and arguments to the court.     Thereafter, the court

"considered the evidence, the record, memoranda, and argument

. . ., as well as all of the factors set forth in § 20-107.3 of


     1
       The trial court file includes eight transcripts of
depositions of the parties and others, taken pursuant to notices
by counsel that specified either "to be read as evidence" or for
"discovery."

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the Code," and entered a "Decree Regarding Equitable Distribution"

on March 15, 1999.    However, upon motion of husband, the court

vacated the decree on April 5, 1999, and conducted a further

hearing on February 3, 2000.    Wife then moved the court to

"re-enter" the earlier decree, despite husband's objections.

Following additional argument presented through written memoranda

of counsel, the court, on March 30, 2000, entered the decree in

issue, and husband appeals.

                                  II.

             [O]n appeal the judgment of the lower court
             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
             in the respect complained of. If the
             appellant fails to do this, the judgment
             will be affirmed.

Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)

(citations omitted); see White v. Morano, 249 Va. 27, 30, 452

S.E.2d 856, 858 (1995) (citation omitted).    Thus, the burden

clearly rests upon the appellant, the party alleging reversible

error, to demonstrate "that reversal is the remedy to which he is

entitled."    Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d

857, 859 (1992) (citation omitted).

     "An appellate court must dispose of the case upon the

record and cannot base its decision upon appellant's petition or

brief, or statements of counsel in open court."     Smith v.

Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993)


                                 - 3 -
(citation omitted).   Accordingly, "[w]e may act only upon facts

contained in the record" provided to us incident to an appeal.

Id. (emphasis added).

     "The transcript of any proceeding is a 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," provided

appellant otherwise complies with Rule 5A:8.    Rule 5A:8(a).    "In

lieu of a transcript, a written statement of facts, testimony,

and other incidents of the case" becomes a part of the record

when filed and approved in accordance with Rule 5A:8(c).   Rule

5A:8(c).   Importantly, "[w]hen the appellant fails to ensure

that the record contains transcripts or a written statement of

facts necessary to permit resolution of appellate issues, any

assignments of error affected by such omission shall not be

considered."   Rule 5A:8(b); see Anderson v. Commonwealth, 13 Va.

App. 506, 508-09, 413 S.E.2d 75, 76-77 (1992); Turner v.

Commonwealth, 2 Va. App. 96, 99-100, 341 S.E.2d 400, 402 (1986).

     Our review of the instant appeal clearly discloses that

either transcripts of the proceedings below or, in the

alternative, a written statement of facts is "indispensable to

the determination of the case" by this Court.    Turner, 2 Va.

App. at 99, 341 S.E.2d at 402.    However, neither is properly a

part of the record before us and, therefore, "we must dismiss

the appeal on the ground that the record on appeal is



                                 - 4 -
insufficient to fairly and accurately determine the issues

presented."       Id.

     Husband's reliance upon Rule 5A:7 to support his argument

that the record includes "[t]ranscripts of depositions . . .

filed as a part of the record but before the final decree" is

without merit. 2        Rule 5A:7 provides that the "record on appeal

from the trial court" is comprised, in pertinent part, of

          (1) . . . any report of a commissioner in
          chancery and the accompanying depositions
          and other papers;

              *          *      *      *      *      *      *

          (3) each exhibit offered in evidence . . .
          and initialed by the trial judge . . .;

              *          *      *      *      *      *      *

          (6) any deposition and any discovery
          material encompassed within Part Four
          offered in evidence . . . at any proceeding; 3
          and

          (7) the transcript of any proceeding or a
          written statement of facts, testimony, and
          other incidents of the case when made a part
          of the record as provided in Rule 5A:8
          . . . .

The record before us discloses that no commissioner in chancery

was involved in the proceedings, numerous documentary proofs and

other "exhibits" attended the depositions but, like the related


     2
       Husband contends "there was no trial, . . . so [he] filed
no transcripts, . . ." thereby dispensing with the requirements
of Rule 5A:8.
     3
       "Depositions shall become a part of the record only to the
extent that they are offered in evidence." Rule 4:7(f).

                                     - 5 -
depositions, were not properly offered and received into

evidence, and no transcript or written statement of facts was

filed pursuant to Rule 5A:8.   Accordingly, Rule 5A:7 does not

contemplate inclusion of the transcripted depositions as a part

of the instant record on appeal.

     We, therefore, dismiss the appeal.

                                                   Dismissed.




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