                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Malveaux and Senior Judge Frank
UNPUBLISHED


              Argued at Newport News, Virginia


              SONGTHARA OMKAR, JR.
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0820-17-1                                     JUDGE ROBERT P. FRANK
                                                                                DECEMBER 19, 2017
              TERESITA C. OMKAR


                                      FROM THE CIRCUIT COURT OF YORK COUNTY
                                                 Richard H. Rizk, Judge

                               Walter N. Thorp for appellant.

                               Cindy E. Upright (Lytle Law, P.C., on brief), for appellee.


                     Appellant appeals an order granting appellee’s motion to enforce the terms of the parties’

              final decree of divorce as it relates to appellant’s military retirement and appellee’s interest

              therein. On August 25, 2017, appellant filed an opening brief which did not include references

              to the record where his assignments of error were presented in the trial court, as required by Rule

              5A:20(c). Subsequently, this Court ordered appellant to file an amended opening brief to comply

              with that Rule. On September 22, 2017, appellant filed the amended opening brief, including

              four assignments of error. Appellant added a fifth paragraph to refer to where those issues were

              preserved and stated:

                               In accordance with Majorana v. Crown Cent. Petroleum Corp., 260
                               Va. 521, 525 n.1, 539 S.E.2d 426, 428 n.1 (2000), the following
                               assignments of errors were preserved with the trial court when
                               counsel for appellant filed its Motion for Reconsideration.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
There was no other reference to any portion of the record or appendix to conform with Rule

5A:20(c). Appellee filed a motion to dismiss, contending appellant did not comply with Rule

5A:20(c).

       Appellant filed his motion for reconsideration on April 13, 2017. The trial court entered

final judgment on May 12, 2017, wherein appellant endorsed the order, “Seen and objected to as

to division of disability retirement pay ruling based in part on parole evidence, denial of

Defendant’s attorney’s fees.”1 The final order did not mention the motion to reconsider.

       Appellant took no action to place his motion on the court’s docket for a hearing. There is

no order in the record to indicate that the trial court ruled on the motion.

       In Juniper v. Commonwealth, 271 Va. 362, 383, 626 S.E.2d 383, 398 (2006), the

Supreme Court of Virginia held that Juniper waived his assignment of error “because he was

required to request a ruling from the trial court and he failed to do so.” The Supreme Court of

Virginia noted that “the record reflects no request for a ruling or that the trial court was even

alerted to the existence of the Memorandum.” Id.

       While appellant, in his “Objection to Appellee’s Motion to Dismiss,” indicated that the

trial court was aware of the motion, he does not cite any reference in the record to support that

assertion.

       Under some circumstances, a motion to reconsider, if timely filed and timely ruled on,

can preserve issues raised in the motion. For example, in Brandon v. Cox, 284 Va. 251, 255, 736

S.E.2d 695, 697 (2012), the Supreme Court of Virginia noted that Brandon could have preserved

her argument for appeal through her motion to reconsider, but there was “no evidence in the

record that Brandon requested or received a ruling on her motion for reconsideration.” The

Supreme Court of Virginia examined Code § 8.01-384(A), which states in part:


       1
           Appellant does not argue this endorsement preserved the issues under Rule 5A:20(c).
                                                -2-
                 Arguments made at trial via written pleading, memorandum, recital
                 of objections in a final order, oral argument reduced to transcript,
                 or agreed written statements of facts shall, unless expressly
                 withdrawn or waived, be deemed preserved therein for assertion on
                 appeal.

Id. at 254, 736 S.E.2d at 696. It also examined Rule 5:25,2 which states that “[n]o ruling of the

trial court . . . will be considered as a basis for reversal unless an objection was stated with

reasonable certainty at the time of the ruling.” Id. “The statute and rule have been interpreted to

mean that ‘[a] party must state the grounds for an objection so that the trial judge may

understand the precise questions he is called upon to decide.’” Id. (quoting Scialdone v.

Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010)). “To satisfy the rule, an

objection must be made . . . at a point in the proceeding when the trial court is in a position, not

only to consider the asserted error, but also to rectify the effect of the asserted error.” Id. at

254-55, 736 S.E.2d at 696 (quoting Scialdone, 279 Va. at 437, 689 S.E.2d at 724).

                 Rule 5:25 exists ‘“to protect the trial court from appeals based
                 upon undisclosed grounds, to prevent the setting of traps on appeal,
                 to enable the trial judge to rule intelligently, and to avoid
                 unnecessary reversals and mistrials.’” Reid v. Boyle, 259 Va. 356,
                 372, 527 S.E.2d 137, 146 (2000) (quoting Fisher v.
                 Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988)).
                 Recognizing that the purpose of the rule is not ‘“to obstruct
                 petitioners in their efforts to secure writs of error, or appeals,’” this
                 Court has consistently focused on whether the trial court had the
                 opportunity to rule intelligently on the assigned error. Scialdone,
                 279 Va. at 437, 689 S.E.2d at 724 (quoting Kercher’s v.
                 Richmond, Fredericksburg & Potomac R.R. Co., 150 Va. 108, 115,
                 142 S.E. 393, 395 (1928)). The purpose of the rule is to “‘put the
                 record in such shape that the case may be heard in this [Court]
                 upon the same record upon which it was heard in the trial court.’”
                 Id.

Id. at 255, 736 S.E.2d at 696.




        2
            Rule 5:25 of the Supreme Court and our Rule 5A:18 are equivalent.
                                                -3-
       The Supreme Court of Virginia concluded:

               Because the purpose of Rule 5:25 is to ensure that the trial court
               has the opportunity to rule upon an argument, the record must
               affirmatively demonstrate that the trial court was made aware of
               the argument. ‘“If [the] opportunity [to address the issue] is not
               presented to the trial court, there is no ruling by the trial court on
               this issue, and thus no basis for review or action by this Court on
               appeal.”’ Scialdone, 279 Va. at 437, 689 S.E.2d at 724 (quoting
               Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d
               416, 420 (2006)).

Id. at 256, 736 S.E.2d at 697.

       Here, the record does not indicate that the trial court had the opportunity to consider or

rule on appellant’s motion to reconsider. Appellant’s reliance on Majorana is misplaced. Unlike

in the instant case, Majorana filed a motion to reconsider and the trial court ruled on that motion.

Majorana, 260 Va. at 525, 539 S.E.2d at 428. The Supreme Court of Virginia concluded that

because the trial court ruled, Majorana adequately preserved the issue on appeal. Id. at 525 n.1,

539 S.E.2d at 428 n.1.

       Thus, we conclude that appellant’s citation to his motion to reconsider fails to comply

with Rule 5A:20(c). We therefore dismiss the appeal for failure to comply with Rule 5A:20(c).

See Brooks v. Commonwealth, 61 Va. App. 576, 586, 739 S.E.2d 224, 229 (2013) (“Dismissal is

appropriate here where counsel for appellant, despite multiple opportunities to cure the defect in

his [opening brief], did not do so.”).

       We further grant appellee’s request for attorney’s fees and costs and remand to the trial

court for such a determination including fees and costs incurred on the remand.

                                                                            Dismissed and remanded.




                                                 -4-
