                               COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Kelsey and Senior Judge Hodges


JUDY PAMELLA LWASA, A/K/A
 JUDY PAMELLA JOSEPH
                                                                MEMORANDUM OPINION*
v.     Record No. 1311-05-4                                         PER CURIAM
                                                                  NOVEMBER 8, 2005
STEVEN LWASA


                 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                               William D. Hamblen, Judge

                 (Catherine M. Reese; Andrea C. Weiss; The Law Office of Catherine
                 M. Reese, PLC, on briefs), for appellant.

                 (Mariam Ebrahimi; Leiser & Associates, PLLC, on brief), for
                 appellee.


       Judy Pamella Lwasa, appellant, appeals an order of the trial court declaring her marriage to

Steven Lwasa, appellee, was void ab initio. Appellant argues on appeal that the trial court erred by:

(1) finding the marriage was void ab initio, thereby denying her the remedy of an equitable

distribution hearing; and (2) awarding appellee attorney’s fees. Upon reviewing the record and

briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily

affirm the decision of the trial court. See Rule 5A:27.

       The parties were married on April 25, 1997. Appellee filed for divorce on January 18, 2005.

On April 20, 2005, appellee filed a motion to dismiss the divorce complaint and declare the

marriage void ab initio. The trial court held a hearing on the matters on April 26, 2005.

       Appellant did not appear at the hearing, however, her counsel was present. Appellant’s

counsel provided no explanation for appellant’s absence at the proceeding. At the hearing, appellee

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
introduced a divorce decree from the Circuit Court of Fairfax County dated March 2, 2000, which

ordered appellant’s divorce from another man. The written statement of facts does not indicate that

appellant’s counsel objected to the admission of the document into evidence or presented any

argument challenging the authenticity of the decree. The written statement of facts does not indicate

appellant’s counsel offered any evidence disputing the validity of the divorce decree. Based on this

document, which demonstrated that appellant was not divorced from a prior husband when she

married appellee and other evidence presented by appellee at the hearing, the trial court found the

parties’ marriage to be null and void. Appellant’s counsel endorsed the trial court’s order declaring

the marriage void ab initio as “Seen and Agreed.”

        The written statement of facts indicates that at the hearing, appellant’s counsel objected

orally to the court’s decision to award appellee attorney’s fees. After the hearing, appellee’s counsel

submitted to the court an affidavit of his attorney’s fees. By order entered on April 27, 2005, the

trial court declared the parties’ marriage void ab initio and awarded appellee $7,000 in attorney’s

fees.

        Appellant obtained new counsel and filed a “Motion to Stay, Reconsider and Vacate” the

trial court’s April 27, 2005 order. Appellant contended in her motion that her previous marriage

was dissolved on January 10, 1997 by the High Court of the Supreme Court of Judicature in Guyana

prior to her marriage to appellee, and she attached to her motion a copy of an order from that court.

The trial court denied the motion without a hearing.

        Appellant argues her due process rights were violated when the trial court declared her

marriage to appellee void ab initio.

        “Procedural due process guarantees a litigant the right to reasonable notice and a meaningful

opportunity to be heard.” Etheridge v. Medical Center Hospitals, 237 Va. 87, 97, 376 S.E.2d 525,

530 (1989). Appellant had both notice of the April 26, 2005 hearing and an opportunity to be heard.

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Whether she diligently exercised that opportunity was strictly a matter under her own control.

Appellant’s failure to appear, even if inadvertent, cannot be attributed to the fault of anyone other

than herself. Moreover, appellant’s interests were represented, as her counsel was present

throughout the hearing. Appellant appears to argue that her counsel did not represent her interests.

However, the record shows that the trial court did not enter the order granting counsel’s motion to

withdraw until the conclusion of the April 26, 2005 hearing. “Counsel of record shall not withdraw

from a case except by leave of court after notice to the client of the time and place of a motion for

leave to withdraw.” Rule 1:5.

        The record shows that appellant’s counsel presented no evidence or argument challenging

appellee’s evidence that appellant’s divorce was not final prior to the parties’ marriage. On this

record, we cannot say that appellant was denied any due process by the trial court’s decision or that

the trial court erred in its decision.

        Furthermore, the trial court did not violate appellant’s due process rights by denying her

motion for reconsideration without holding an evidentiary hearing. A motion to reconsider is

addressed to the sound discretion of the trial court. Morris v. Morris, 3 Va. App. 303, 307, 349

S.E.2d 661, 663 (1986). Appellant’s motion moved the trial court to revisit evidence and rulings

made at a hearing she failed to attend, although her interests were represented at the hearing by

counsel. The motion asserted for the first time her challenge to appellee’s evidence that she was not

divorced from a prior husband before she married appellee. As stated above, appellant had the

opportunity to present this evidence at the April 26, 2005 hearing. Accordingly, the trial court did

not abuse its discretion by denying the motion for reconsideration.

        In her opening brief, appellant argues that because the trial court erred by declaring the

parties’ marriage void, she has no remedy to assert her interests in property acquired jointly by the




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parties. She also asserts that the language of the order barring her contact with appellee violates her

due process rights. However, appellant did not present these arguments to the trial court.

        “The Court of Appeals will not consider an argument on appeal which was not presented

to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

See Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration of these questions on appeal.

                        Although Rule 5A:18 allows exceptions for good cause or
                to meet the ends of justice, appellant does not argue that we should
                invoke these exceptions. See e.g., Redman v. Commonwealth, 25
                Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
                oneself of the exception, a defendant must affirmatively show that a
                miscarriage of justice has occurred, not that a miscarriage might
                have occurred.” (emphasis added)). We will not consider, sua
                sponte, a “miscarriage of justice” argument under Rule 5A:18.

Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).

        Appellant contends the trial court abused its discretion by awarding appellee attorney’s fees.

        The decision to award attorney’s fees is left to the sound discretion of the trial court, and an

award will be overturned on appeal only if the trial court abused its discretion. Kane v. Szymczak,

41 Va. App. 365, 375, 589 S.E.2d 349, 354 (2003). “The key to a proper award of counsel fees is

reasonableness under all the circumstances.” Brooks v. Brooks, 27 Va. App. 314, 319, 498 S.E.2d

461, 463-64 (1998).

        The record indicates that the trial court heard evidence concerning appellee’s attorney’s fees

at the April 26, 2005 hearing, and appellant had notice of the hearing date. In addition, appellant’s

counsel attended the hearing and represented appellant’s interests, and she was provided with a copy

of the attorney’s fees affidavit prior to entry of the April 27, 2005 order. On this record, we cannot

say the trial court abused its discretion in awarding appellee attorney’s fees.

        Both parties request attorney’s fees and costs incurred in this appeal.

                The rationale for the appellate court being the proper forum to
                determine the propriety of an award of attorney’s fees for efforts
                expended on appeal is clear. The appellate court has the
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                opportunity to view the record in its entirety and determine
                whether the appeal is frivolous or whether other reasons exist for
                requiring additional payment.

O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Because we hold that

the appeal lacks merit, we grant appellee’s request for costs and remand to the trial court to assess a

reasonable attorney’s fee in favor of appellee.

        Accordingly, we summarily affirm the trial court’s decision.1

                                                                        Affirmed and remanded.




        1
       Appellee requests in his brief that we dismiss appellant’s appeal for her failure to
comply with the procedural rules of this Court. We deny appellee’s request.
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