COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Felton and Kelsey 

Argued at Richmond, Virginia 

AUBREY J. EL 

 MEMORANDUM OPINION* BY 

v. Record No. 3221-01-2 JUDGE ROBERT P. FRANK 

 DECEMBER 10, 2002 

COMMONWEALTH OF VIRGINIA, 

 DEPARTMENT OF SOCIAL SERVICES, 

 DIVISION OF CHILD SUPPORT ENFORCEMENT, 

ex rel. MARGO EL 

FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY 

Thomas B. Hoover, Judge 

 Aubrey J. El, pro se. 

 Drew A. Swank, Special Counsel (Jerry W. 

Kilgore, Attorney General; Craig M. Burshem, 

Senior Assistant Attorney General, on brief), 

for appellee. 

 The Division of Child Support Enforcement (appellee) issued 

an Order to Withhold and Deliver and served it on Aubrey J. El's 

(appellant) bank, thereby collecting $28,984.79 toward child 

support payments in arrears. Appellant requested an 

administrative hearing. He appealed the decision of that hearing 

to the juvenile and domestic relations district court under former 

Code § 63.1-268.1 (recodified at Code § 63.2-1943). He then 

appealed the juvenile court's decision to the circuit court for 

de novo review. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
 Appellant appeals the circuit court's order of October 30, 

2001 finding him in arrears on his child support payments in the 

amount of $1,065.36.1 He argues the trial court erred because it 

1) failed to grant his request for a continuance, 2) entered a 

final order that did not reflect the proceedings and granted 

relief that appellee did not request, 3) violated his right to due 

process, 4) granted appellee's motion in limine to limit the 

calculation of arrearages to dates after May 10, 1999, 5) found 

appellee properly seized money pursuant to the Order to Withhold 

and Deliver, 6) failed to credit prior child support payments, 7) 

found appellee did not owe a fiduciary duty to appellant, and 8) 

refused to follow the Rules of the Supreme Court regarding 

appellee's Statement of Facts.2 We affirm the trial court's 

ruling. 

 1

 We note that, while appellant is pro se, he is still 

required to follow the procedural and substantive rules of law. 

Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 656-57 

(1987) (proceeding pro se does not give a defendant license to 

ignore the procedural and substantive rules of law); Francis v. 

Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999) (pro 

se parties must comply with the rules of the court). 

2

 Appellant raises several additional issues on appeal, 

which he failed to brief as required by Rule 5A:20(e). He also 

fails to indicate where these issues are preserved under Rule 

5A:18, as required by Rule 5A:20(c) and (e). "Statements 

unsupported by argument, authority, or citations to the record 

do not merit appellate consideration. We will not search the 

record for errors in order to interpret the appellant's 

contention and correct deficiencies in a brief." Buchanan v. 

Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). 

Therefore, we will not consider these issues on appeal. The 

eight arguments listed here are the only ones briefed in 

appellant's "Argument" section. 

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I. Continuance 

 On October 17, 2001, the day of trial, appellant argued he 

should be granted a continuance "to acquire competent legal 

counsel." He explained he was unhappy with his attorney and had 

fired him the previous week. Appellant told the trial court, "I 

have adequate evidence to make my case. I just don't have it 

together." 

 "The decision whether to grant a continuance is a matter 

within the sound discretion of the trial court. Abuse of 

discretion and prejudice to the complaining party are essential 

to reversal. In considering a request for a continuance, the 

court is to consider all the circumstances of the case." 

Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 

(1986) (citations omitted). The trial court here considered 

several factors. First, appellant had presented the same case 

in the juvenile court on May 10, 2001, without the assistance of 

counsel.3 Second, the case originally was set for a trial court 

hearing on September 5, 2001 and was continued, through counsel, 

at the request of appellant. 

 Appellant did not argue he needed extra time to subpoena 

witnesses. He did not provide the court with information 

regarding his efforts to obtain new counsel. While appellant 

did proffer some information "because [he was] just not 

 3

 The juvenile court hearing involved an appeal from 

appellant's administrative hearing on February 12, 2001. 

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prepared," his proffer consisted mainly of argument. Any facts 

provided in the proffer could have been presented at the trial. 

The proffer did not explain why this information could not be 

presented that day. Nothing in the record suggests the trial 

court abused its discretion in denying appellant's motion for a 

continuance. 

II. The Final Order 

 Appellant contends the trial court's order of October 30, 

2001 makes several findings "not pleaded by the Appellees." He 

specifically refers to paragraphs four, six, and ten of the 

final order. He claims the order is void because these 

paragraphs are included. We disagree with appellant. 

 Paragraph four states the court's finding that appellee's 

account of the arrearages "is true and accurate." Paragraph six 

recites the court's finding that appellee properly employed an 

Order to Withhold and Deliver to "seize[] and credit[] to the 

arrears" the funds in appellant's bank account. Both these 

paragraphs relate factual findings the trial court made in 

response to issues raised by appellant. These findings are not 

"relief" for appellee, as appellant claims. Therefore, 

appellant's argument is meritless. The trial court properly 

made findings on these issues. 

 Appellant also argues the trial court erred by ordering in 

paragraph ten that his proffer "shall . . . not be considered as 

part of the record for any appeal purpose." While we agree with 

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appellant that the trial court cannot exclude portions of the 

legitimate trial transcript from the record on appeal, we find 

this error harmless. See Williams v. Commonwealth, 4 Va. App. 

53, 78-79, 354 S.E.2d 79, 93-94 (1987) (explaining harmless 

errors by a trial court, errors that did not affect the outcome 

of the case, do not provide a basis for overturning a court's 

finding). 

 At the conclusion of appellant's case, the following 

exchange occurred: 

THE COURT: Mr. El, any evidence you wish to 

present? 

MR. EL: Your Honor, I'd like to make a 

proffer for the record. 

THE COURT: All right. Regarding what? I'm 

asking you to present your evidence. 

MR. EL: Well, Your Honor, I have, like I 

stated earlier – I want to object, because 

I'm just not prepared, and in order to 

present the evidence, I would have to have 

my pleadings in order and my exhibits in 

order, none of which I have together. 

The only thing I can probably do is proffer 

for the record, and that's basically all I 

can do at this time, Your Honor. 

THE COURT: All right. Do the best you can. 

Go ahead. 

 The proffer, which the trial court characterized in the 

final order as "the closing statement or proffer," was not a 

true proffer of the evidence appellant would have adduced at 

trial. See, e.g., Durant v. Commonwealth, 35 Va. App. 459, 466, 

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546 S.E.2d 216, 220 (2001) (noting a proffer presents the 

"expected evidence" to the trial court). Instead, appellant 

presented argument. For example, he claimed the arrearage 

amount prior to 1999 was inaccurate,4 even though the trial court 

previously granted a motion in limine that excluded 

consideration of this period from the hearing. He also claimed 

appellee owed him a fiduciary duty that was breached. At the 

conclusion of this "proffer," the trial court explained: 

All right. Let the record show that I have 

permitted Mr. El to make his proffer on the 

record of what he claims his evidence would 

have been had the Court continued the case 

and admitted [sic] him additional time to 

prepare for trial. 

The Court is not accepting his proffer as 

evidence on the merits of the case. This 

proffer is not evidence in the case. It 

contains improper conclusions and 

speculations. 

Appellant did not object to this characterization of his 

"proffer."5 In the final order, the trial court found this 

statement by appellant "shall . . . not be considered as part of 

the record for any appeal purpose." 

 4

 Appellant did not offer any documents to the court nor did 

he testify under oath to any facts. 

5

 Appellee did not stipulate to the proffer, but instead 

objected to it as substantive evidence in the case. Therefore, 

we cannot review the proffer as evidence. See Wyche v. 

Commonwealth, 218 Va. 839, 842-43, 241 S.E.2d 772, 774-75 (1978) 

(discussing the use of proffers). 

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 The content of the record on appeal to this Court is 

controlled by Rule 5A:7, which includes a transcript of "any 

proceedings." An order of a trial court cannot change this 

rule. 

 In this case, however, contrary to the final order, the 

proffer is included in the transcript and is presented to us as 

part of the record. We accept it as a part of the transcript 

and, therefore, any error in the order is harmless. 

III. Due Process 

 Appellant argues his due process rights under Article I, 

§ 11 of the Virginia Constitution were violated "when the trial 

Court [sic] failed to have a trial on the merits." Appellant 

did not make this objection at trial; therefore, he has not 

preserved this argument for appeal. 

 Appellant objected "on due process grounds" to the court's 

denial of his motion to continue. He did not make this 

objection in relation to the hearing itself nor did he explain 

this objection more fully to the trial court, as required by 

Rule 5A:18. Appellant does not argue an exception should be 

made to attain the ends of justice or for good cause shown, as 

required by Rules 5A:18 and 5A:20(e), nor do we find any reason 

to waive these Rules. Therefore, we cannot consider his due 

process argument on appeal. Townes v. Commonwealth, 234 

Va. 307, 319, 362 S.E.2d 650, 656-57 (1987) (noting pro se

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parties must make the proper objections at trial, otherwise the 

argument is not preserved for appeal). 

 Additionally, the trial court heard evidence from appellee. 

Appellant cross-examined appellee's witness. The court gave 

appellant the opportunity to present his evidence. However, 

appellant chose not to do so. He was provided the opportunity 

to present his case; he simply did not present any evidence to 

the trial court. He had a trial on the merits. 

IV. Motion in Limine

 Appellant argues the trial court erred in granting 

appellee's motion in limine, which effectively limited his 

evidence to issues involving arrearages that accumulated after 

May 10, 1999. Appellee argues the principle of res judicata

supports the trial court's granting of the motion. We agree 

with appellee. 

 During the October 2001 hearing, the trial court described 

the hearing on the motion in limine: 

We heard evidence proffered by [appellant's] 

attorney and by [appellee's attorney]. We 

arrived at the fact that arrears were 

$35,000 as of May or June 1999. That's what 

both sides agreed to, and the Court accepted 

that. That's how we proceeded on the case. 

The earlier motion by [appellant] was that 

he wanted to re-litigate the amount of the 

child support arrears. I advised him that 

about a year or more ago, the Court had set 

the amount of arrears and the Court would 

not re-litigate the amount of arrears. We 

would add that amount and bring that forward 

to see if there were any credits that should 

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be credited to the account or payments made 

by [appellant] or any other payments that 

should be credited, and add to that amount 

of arrears any further unpaid support. 

 An earlier order of the trial court set the amount of child 

support in arrears as of May 1999. That order was not appealed, 

and twenty-one days had passed since the court entered the 

order. As a valid6 order set the amount owed prior to June 1999, 

the trial court no longer had jurisdiction to reconsider that 

amount. Rule 1:1. 

V. Order to Withhold and Deliver 

 Appellant argues the trial court erred in finding appellee 

"properly and timely applied the [Order to Withhold and Deliver] 

process when there was no evidence to support that conclusion." 

Appellant contends "there is no controversy as to [appellee's] 

failure to follow" the proper procedure under Code § 63.1-256(D) 

(recodified at Code § 63.2-1929). He refers to "admissions" 

made during a juvenile court hearing.7

 The trial court heard this case de novo. Code §§ 16.1-113, 

63.1-268.1 (recodified at Code § 63.2-1943). The evidence and 

the rulings of the juvenile court are not considered on de novo

appeal unless they are presented and accepted as evidence by the 

 6

 Appellant argues the order is void because of extrinsic 

fraud. We address that issue below in section VI. 

7

 The juvenile court found the seizure was proper, and 

appellant appealed that decision to the circuit court. The 

circuit court decision is reviewed in this appeal. 

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trial court. See Box v. Talley, 1 Va. App. 289, 292, 338 S.E.2d 

349, 350-51 (1986). 

 Appellee did not present argument to the trial court 

regarding the Order to Withhold and Deliver. In his brief on 

appeal, appellant does not explain what "process" appellee 

"failed to follow." Under Rule 5A:20(e), an appellant must 

provide an explanation and legal authority for an argument. We 

find nothing in appellant's brief that clarifies his position 

regarding the inadequate procedure allegedly used by appellee. 

An inadequately developed argument need not be addressed on 

appeal. See Theismann v. Theismann, 22 Va. App. 557, 572, 471 

S.E.2d 809, 816, aff'd, 23 Va. App. 687, 479 S.E.2d 534 (1996) 

(en banc). "We will not search the record for errors in order 

to interpret the appellant's contention and correct deficiencies 

in a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 

S.E.2d 237, 239 (1992). Therefore, we do not consider this 

argument on appeal. 

VI. Failure to Credit Payments 

 Appellant argues the trial court erred when it did not 

credit him for support payments made directly to the custodial 

parent. He argues he should be permitted to challenge the 1999 

order setting arrearages because appellee committed extrinsic 

fraud to arrive at that amount. However, the record does not 

support appellant's contention. 

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 Appellant did not present evidence on this issue during the 

trial court hearing. The only evidence presented to the court 

was the testimony of a senior accountant for the Division of 

Child Support Enforcement and two exhibits8 offered by appellee. 

This evidence supports the arrearages found by the trial court. 

 Although appellant attempted to present documents to the 

trial court after the hearing by means of a Motion for Stay and 

Reconsideration, these documents were not admitted as evidence 

and cannot be used to undermine the court's decision. Evidence 

must be presented at the time of the hearing, not afterward. 

Cf. Joynes v. Payne, 36 Va. App. 401, 418, 551 S.E.2d 10, 18 

(2001) (rehearing) (noting the requirements for acceptance of 

after-discovered evidence). The trial court is not obligated to 

reopen a case, especially after announcing its decision. Cf.

Chrisman v. Commonwealth, 3 Va. App. 371, 375-76, 349 S.E.2d 

899, 902 (1986) (explaining trial courts have discretion to 

reopen cases and take evidence after the parties have rested). 

The filing of the Motion for Stay and Reconsideration did not 

reopen the case. See Super Fresh Food Mkts. of Virginia, Inc. 

v. Ruffin, 263 Va. 555, 560-61, 561 S.E.2d 734, 737 (2002) 

(explaining a final order remains final unless the trial court 

enters a stay and allows further action in the case). 

 8

 Exhibit One was the 1999 order setting arrearages. 

Exhibit Two was an accounting of appellant's payments and 

accumulating debt. 

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 The evidence before the trial court did not prove appellee 

failed to credit appellant for child support payments, either 

through fraud or accounting error. The evidence appellant asks 

us to examine was not presented at the hearing. We cannot find 

a trial court erred based on evidence not before the court. 

VII. Fiduciary Duty 

 Appellant argues the trial court erred in failing to find 

appellee owed him a fiduciary duty to maintain accurate records 

of his support payments. He contends such a duty existed 

because the Code mandates appellee manage particular financial 

obligations of appellant, making it his agent. He argues 

appellee violated this duty by committing fraud. We hold the 

trial court correctly found no such duty existed and no fraud 

existed. 

 Fiduciary relationships generally develop where "[e]vidence 

of advice and counsel in business matters involving a certain 

degree of trust" is proved. Oden v. Salch, 237 Va. 525, 534, 

379 S.E.2d 346, 351 (1989). Appellee, however, is an agent of 

the Commonwealth of Virginia, established by the General 

Assembly, in part, to collect support payments. Code § 63.1-249 

(recodified at Code § 63.2-1901). Appellee does not advise or 

act on behalf of people obligated to pay child support. 

Appellee is not employed by such people, but instead appellee 

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enforces child support orders and collects the debt owed by such 

people.9 

 In Van Deusen v. Snead, 247 Va. 324, 330-32, 441 S.E.2d 

207, 211 (1994), the Supreme Court dealt with the issue of to 

whom real estate brokers owed a fiduciary duty, based on agency 

theory. The Court found an agent relationship and fiduciary 

duty where purchasers hired the realtors to assist them in 

buying a home. Id. at 331, 441 S.E.2d at 211. No similar 

relationship exists here. Appellant did not engage appellee and 

request that appellee act for him in the paying of his child 

support. Instead, appellee determined appellant owed the 

arrearages and took the money from him. We cannot find the 

trial court erred in failing to find a fiduciary relationship 

between the parties. 

 Additionally, even if a fiduciary relationship existed, 

appellant presented no evidence of breach of that duty, 

fraudulent or otherwise. Appellant claims appellee failed to 

credit him with child support payments and, thus, committed 

fraud. However, as discussed in section VI of this opinion, he 

did not present any evidence of this fraud at the hearing. The 

record supports the trial court's findings. 

 9

 Any relationship between appellant and appellee is based 

on appellant's failure to abide by a court order to pay child 

support. 

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VIII. Statement of Facts 

 Appellant claims he properly filed a "Statement of Facts" 

under Rule 5A:8(e), which the trial court refused to sign or 

amend. We find appellant did not file a statement of facts 

under the Rule. 

 Rule 5A:8(c) allows the filing of a written statement of 

facts "[i]n lieu of a transcript." The "Statement of Facts" 

appellant filed with the trial court, by his own admission, does 

not summarize the facts and arguments presented at trial. As 

appellant describes the statement, it "does not purport to be a 

representation of the incidence of the trial but represents a 

post[-]trial incident of the case." 

 In this case, appellant did not submit an erroneous or 

incomplete statement of what happened at trial. His "Statement 

of Facts" did not discuss any of the incidents of trial. 

Clearly, the trial court correctly refused to recognize this 

document, labeled a "Statement of Facts," as a statement of 

facts under Rule 5A:8(c). Since a statement of facts was not 

presented to the trial court, the letter opinion rejecting 

appellant's document was appropriate. 

 For the reasons stated above, we affirm the final order of 

the trial court. 

Affirmed. 

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