COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, AtLee and Malveaux Argued at Norfolk, Virginia

SCOTT ANTHONY OBERLANDER MEMORANDUM OPINION * BY v. Record No. 1817-17-1 JUDGE RICHARD Y. ATLEE, JR. JULY 31, 2018 PAMELA KAYE OBERLANDER

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY B. Elliott Bondurant, Judge 1 Steven D. Barnette (The Law Off ice of Steven D. Barnette, P.C., on brief), for appellant. Craig W. Sampson (Barnes & Die hl, P.C., on brief), for appellee

. Scott Oberlander (“husband” 2 ) appeals certain decisions of the Circuit Court of Gloucester County in favor of Pamel a Oberlander (“wife”). He a rgues that the circuit court erred when it misapplied the equitabl e distribution statute, and when it denied his motion to continue. We affirm.
I. BACKGROUND “Upon review, we consider the evi dence in the light most favora ble to the wife, the prevailing party.” G ray v. Gray, 228 Va. 696, 699, 324 S.E.2d 677, 679 (1985). Husband and wife married in 1989. They had thr ee children together. Until 2002, husband was in the United

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Judge B. Elliott Bondurant entered the final decree of divorce and several other accompanying orders. Judge Designate R. Bruce Long presided ov er the trial and made the substantive decisions at issue in the two assignments of error.

2 We use the designations “wife” and “husband” for clarity, reco gnizing that such terms actually describe the parties’ for mer, rather than current, leg al relationship.UNPUBLISHED- 2 - States Navy. In March 2007, husba nd was arrested and charged w ith committing violent sexual felonies against two of the pa rties’ children. Husband has not been at liberty since the date of his arrest. Later in 2007, he pled guilt y and was sentenced to an active period of 35 years in the penitentiary. As part of his sentence, husband was assessed $3 ,424 in court costs. After husband’s incarceration, w ife assumed sole responsibility for paying the parties’ pre-separation debt. Their de bts totaled $26,988, and there wa s a mortgage on the marital residence. During much of the time since husband’s conviction, wife worked multiple jobs as well as overtime, in order to k eep up with debts and to care fo r the parties’ children. In 2008, husband and wife executed a deed conveying the marital home from husband and wife to wife sole ly. Wife argued that, as a result of this deed, the home was her separate property. Husband argued that “the marital residence must be d eemed marital property for the purposes of the equitable distri bution of the marital estate.” The circuit court instructed the parties to brief the issue of the proper cl assification of the home. Ultimately, the circuit court ruled “that [husband] transferre d all of his inte rest in the fo rmer marital residence to [wife] post separation; and that the deed tra nsferring [husband]’s interest in the former marital residence to [wife] constitutes a marital agreement.” Thus, the circuit cou rt found, the home was wife’s separate property. At trial, the circuit court awar ded wife 50% of the marital sha re of husband’s military pension. Of the parties’ $26,988 in debt, the circuit court ap portioned 75% to husband, and the remaining 25% to wife. Finally, the circuit court ordered husb and to reimburse wife $3,424 for the court costs she paid on his behalf. 3

3 A lien in this amount was placed against the parties’ home. W ife ultimately borrowed money to pay this lien in order to refinance the house.- 3 - II. ANALYSIS “On appeal, we will not overturn a trial court’s monetary award of marital property unless we find an abuse of discre tion, misapplication or wrongf ul application of the equitable distribution statute , or lack of evidence to support the award. ” Fowlkes v. Fowlkes, 42 Va. App. 1, 7, 590 S.E.2d 53, 56 (2003). “We review ‘pure questions of law concerning statutory interpretation . . . de novo.’” A nthony v. Skolnick-Lozano, 63 Va. App. 76, 83, 754 S.E.2d 549, 552 (2014) (alteration in original ) (quoting Gilliam v. McGrady , 279 Va. 703, 708, 691 S.E.2d 797, 799 (2010)). “Virginia law does not establish a presumpti on of equal distribution of marital assets.” Matthews v. Ma tthews, 26 Va. App. 638, 645, 496 S.E.2 d 126, 129 (1998). A circuit court, therefore, n eed not start off at the 50-yard l ine and then look to the discretionar y factors of Code § 20-107.3(E) to move the ball marker up or down the sidelines. To follow such an approach would “undermine the legislature’s recognition of ‘marriage as a partnership to w hich each party contributes, albeit not always equally , to the well being of the family unit.’” Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 831 (1986) (emphasis in original) (quoting Report of Joint Subcommittee Studying Section 20 -107 of the Code of Virginia to the Governor and the General Asse mbly of Virginia, House Doc. No. 21, at 7 (1982) (expressly rej ecting “any presumption in fa vor of an equal distribution of marital property”)). Robbins v. Robbins, 48 Va. App. 466, 480-81, 632 S.E.2d 615, 62 2 (2006) (footnote omitted). A. Substantive Error Husband’s first assignment of error alleges that “[t]he trial c ourt erred in its application of the statutory factors in the e quitable distribution statute, Va . Code § 20-107.3, to divide the marital property and debts.” I n doing so, he alleges, the circ uit court “improperly employ[ed] the equitable distribution statute to punish [husband] economically for the break-up of the- 4 - marriage.” 4 Husband asserts that the specifi c errors the circuit court ma de in applying the equitable distribution statute w ere its “decision to treat the former marital residence as separate property of [wife],” its “appor tionment to [wife] of only 25 pe rcent of the joint marital debt even though she earned far more th an [husband] and owned 100 percent of the equity in the marital residence,” and its “award to [ wife] of a 50 percent marital sh are of [husband]’s Navy pension.” 5 As a threshold question, wife ask s that we declin e to consider husband’s appeal at all. She points out that Rules 5A: 6 and 5A:16 both require that “[a] party filing a notice of an appeal of right to the Cour t of Appeals shall simultaneously file in t he trial court an appeal bond in compliance with Code § 8.01-676.1” and that husband has never f iled any such bond. However, subsection (M) of Code § 8.01-676.1 cont ains the following exem ption to the general rule that security is required in appeals of right: “When an appeal is p roper to protect the estate of a decedent or person under disability, . . . no security for appe al shall be required.” We find that husband is a “person under a disa bility,” pursuant to the defin ition in Code § 8.01-2(6)(a). We further find that, while he does not prevail on appeal, husband ’s appeal nevertheless was “proper to protect [his] estate.” For these reasons, we will consider husband’s appeal. First we address the issue of the marital home , and second the issues of the par ties’ debt and husband’s military pension.

4 The argument that the circuit c ourt “improperly employ[ed] the equitable distribution statute to punish [husband] econo mically for the break-up of th e marriage” was never made to the circuit court. Rule 5A:18 r equires that objections be “sta ted with reasonable certainty at the time of the ruling.” Husband has not asked us to apply the “go od cause” or “ends of justice” exceptions to Rule 5A:18, nor do we find reason to do so. As s uch, we do not consider this portion of husband’s assignment of error.

5 As listed in his “Designati on of Contents of Appendix and Stat ement of Assignments of Error,” filed with this Court on January 4, 2018, husband’s fir st assignment of error originally contained an additional clause. T hat clause asse rted that the circuit court erred when it “den[ied] [husband] any marital share in [ wife]’s VRS pension.” In his o pening brief, however, husband omitted any reference to or argument supporting that clause. A s such, we do not address it. See Rule 5A:20(e).- 5 - 1. Marital Home Husband alleges that the circu it court erred when it classifie d “the former marital residence as separate property of [wife].” 6 In a letter opinion, the circ uit court framed the facts and issue this way: A deed labeled as a “Dee d of Gift” was dated May 9, 2008, executed by [husband], by his attorney in fact, on May 9, 2008, executed by [wife] on May 28, 2008, and recorded on June 2, 2008, all after the last separati on of the parties. The deed w as recorded as exempt from record ation taxes as a deed between husband and wife, not as a deed of gift. The question presented is whet her or not the deed operated to convert marital property into [ wife]’s separate property? We agree with the circuit court that the deed did operate to co nvert marital property into wife’s separate property. Code § 20-107.3(A)(2) states, in part: All property including that por tion of pensions, profit-sharing or deferred compensation or retirem ent plans of whatever nature, acquired by either spouse during th e marriage, and before the l ast separation of the parties, if at such time or thereafter at lea st one of the parties intends that the separation be permanent, is presum ed to be marital property in the absen ce of satisfactory evidence tha t it is separate property.

6 Although husband assigns error to t he circuit cour t’s “decisio n to treat the former marital residence as separate property of [wife],” and claims t hat he preserved his argument in his “Brief in Support of his Cont ention that the Marital Reside nce Should be Classified as Marital Property,” his openi ng brief contains no substantive ar gument in support of this portion of his assignment of error. Rule 5A:20(e) requires that an app ellant’s opening brief include “[t]he standard of review and the argument (including principle s of law and authorities) relating to each assignment of error.” We assume, without deciding, tha t husband’s reference to his “Brief in Support of hi s Contention that the Marital Residence Should be Classified as Marital Property” sufficed to preserve t his issue, notwithstanding his failure to offer argument in his opening brief.- 6 - Wife acquired the home by deed aft er the last separation of the parties, so the home is not presumed to be marital. Wife ar gued to the circuit court that the deed constituted a marital agreement. Code § 20-155 describes marital agreements: Married persons may enter into agreements with each other for t he purpose of settling the right s and obligations of either or bot h of them, to the same extent, with t he same effect, and subject to the same conditions, as provided in [Code] §§ 20-147 through 20-154 for agreements between prospective spouses, except that such marital agreements shall become effective immediately upon thei r execution. Code § 20-150(1) permits parties t o a premarital agreement to e nter into contracts with each other concerning “[t]he rights and obligations of each of the p arties in any of the property of either or both of them whenever a nd wherever acquired or locate d.” We agree that the deed, transferring the home from hus band and wife to wife only, was a marital agreement. See Shenk v. Shenk, 39 Va. App. 161, 170-72, 571 S.E.2d 896, 901-02 (2002 ) (finding that husband’s execution of an agreement assigni ng his interest in businesses he owned jointly with wife to wife alone constituted “a valid a m arital agreement under Code § 20- 155”).
2. Marital Debt and Husband’s Pension Husband alleges that the circu it court erred in its “apportion ment to [wife] of only 25 percent of the joint marital de bt even though she earned far mo re than [husband] and owned 100 percent of the equity in the mar ital residence” and its “award to [wife] of a 50 percent marital share of [husband]’s Navy pensi on.” At the time of the circuit court’s oral ruling, however, neither husband nor his guardian ad litem objected to the ruling concer ning the parties’ debts or- 7 - the award of 50% of the marital portion of husband’s pension. 7 At one point, husband’s guardian
ad litem said generally “Pleas e note our objection.” 8 Husband’s guardian ad litem endorsed the final decree of divorce “Have S een and Objected” without any fu rther specificity. Rule 5A:18 states: No ruling of the trial court . . . w ill be considered as a basi s for reversal unless an object ion was stated with reasonable certainty at the time of the ruling, except for good cause show n or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or a ward is contrary to the law and the evidence is not sufficient to pr eserve the issue for appellate review. Husband did not object “with reasonab le certainty at the time o f the ruling.” He has not asked us to apply the “good cause” or “ends of justice” exceptions to Ru le 5A:18, nor do we find such relief appropriate. For these r easons, we decline to consider this portion of husband’s first assignment of error.

7 Although husband mailed the circuit court his own multi-part, handwritten “Objection to Final Decree of Divorce,” this objection was not timely. Ru le 1:1 states, in part, that “[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court a nd subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longe r.” The circuit court sig ned the final decree of divorce in this case on October 19, 2017. Husband’s objection was not received by the circuit court until December 1, 2017, after the twent y-one-day period had expired.

8 The closest husband’s guardian ad litem came to offering a more specific objection was when he said “Mr. Oberlander is going to have nothing left per month, very little, if anything. About $700 is going to be paid to his wife out of what is left over from his military retirement, which is going to leave him about $200 a month.” However, husb and’s guardian ad litem made this argument in the specific context of objecting to the requi rement of an appeal bond. See also supra (explaining in more deta il issues surr ounding appeal bond ).- 8 - B. Denial of Motion to Continue Husband’s second assignment of error 9 alleges that the circuit court “erred in denying the motion for continuance filed by [ husband], where the denial had the effect of depriving [husband] of retained counsel of his choice and a fair opportun ity to call forth evidence in his favor.” A circuit court’s “deci sion to grant a motion for a co ntinuance is within the sound discretion of the circuit court and must be considered in view of the circumstances unique to each case.” Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007). Such a decision “will be rejected on appeal only u pon a showing of abuse of discretion and resulting prejudice to the movant.” Id. On May 25, 2017, husband moved to conti nue the case, which was set for June 1, 2017. In support of his motion, husba nd gave the following grounds: 1. [Husband] is currently incar cerated at the Greensville Correctional Center; 2. [Husband] desires to hire counsel of his own choosing in lie u of having a Guardian and is in the process of setting up meetings with potentia l attorneys to represent him in this matter; 3. Due to the location of his in carceration it is difficult to schedule times for [husband] tt o [sic] meet with potential counsels. The circuit court denied the m otion, which the parties argued b y telephone. No transcript of the argument appears in the appe ndix. At the June 1, 2017 hearing in this case, the judge observed:

9 Husband’s “Designation of Cont ents of Appendix and Statement o f Assignments of Error,” filed with this Court on January 4, 2018, listed three assignments of error. In his opening brief, however, husband omitted his previously-designated secon d assignment of error entirely. We therefore do not address that assignment of error. See Rule 5A:20(e) (stating, in part, that an appellant must include in his ope ning brief “[t]he standard of review and the argument (including principles of law and authoritie s) relating to each assignment of error”). Our reference to husband’s second assignment of err or thus refers to that assign ment of error originally designated in his “Designation of Contents of Appendix and Stat ement of Assignments of Error” as husband’s third assignment of error.- 9 - Your guardian ad litem . . . filed a motion with the [c]ourt about a week ago asking—I assume at your request, asking that you be given a continuance from today’s proceeding in order to hire new counsel. I had a telephone c onference with [both parties’ attorneys] about that matter and allowed them to present argume nt on the issue, and after hearing fro m them, I ruled against the continuance. I denied the moti on for a continuance. So we’re going to go forward today . . . . To this, husband’s guardian ad litem responded: “If the [c]ourt w ould note for the record my objection to the denial.” By or der entered the same day of the hearing, the circ uit court found: that [husband]’s interests are being protected by a very compet ent Guardian ad Litem; that [husband] has had sufficient time to obtain new counsel since his prior counsel was permitted to withdraw; that [husband], the party moving f or the continuance, initiated this divorce action over two years ago; that this matter was just recently continued from May 2, 2017, to June 1, 2017; and that the [c]ourt, in its discretion, has de termined that [husband] has n ot provided sufficient cause for th e [c]ourt to grant his motion f or a continuance. Husband’s guardian ad litem endorsed this order “S EEN AND OBJECTED.” Husband asserts that the circu it court’s denial of his motion t o continue was erroneous for two reasons. First, it “had the effect of depriving [husband] of retained counsel of his choice.” Second, it deprived husband of “a fair opportunity to call fort h evidence in his favor.” As to husband’s first reason, we disagr ee that the den ial of his moti on erroneously denied husband of his right to retain counsel of his choosing. As to husband’s s econd reason, we find that it was not presented to the circuit cour t, and pursuant to Rule 5A:18, we decline t o address it.
1. Denial of Counsel of Husband’s Choice Husband argues that the circuit court’s denial of his continua nce motion “had the effect of depriving [husband] of retain ed counsel of his choice.” We disagree. On March 7, 2017, the circuit court entered an order granting husband’s attorney leav e to withdraw as counsel of record. That same day, the circuit co urt appointed a guardian ad litem for husband- 10 - in accordance with Virginia Code § 8.01-9, in that the [husband ] is a person under a disability, as th at term is defined in Virgini a Code § 8.01-2(6)(a), and for appointment of a Committee, in accordan ce with Virginia Code § 53.1-221, et seq. , in that [husband] is currently in the custody of G reensville Co rrectional. One week prior to the sche duled June 1, 2017 trial, husband mov ed to continue, claiming that he wished “to hire counsel of his own choosing in lieu of having a Guardian and is in the process of setting up meetings with potential a ttorneys to represent him i n this matter” but that, “[d]ue to the location of his incarceration i t is difficult to schedule t imes for [husband] tt o [sic] meet with potential counsels.” Nearly three months had elapse d since the withdrawal of husban d’s previous attorney. The appendix contains no infor mation about why this was not eno ugh time to hire a new attorney. Nor does the appendix s how what efforts husband had undertaken to hire new counsel or how much additional time he w ould need to do so. Finally, h usband gave no explanation for why he waited until only one week be fore trial to move to conti nue. A decision denying a motion to continue “will be r ejected on appeal only upon a show ing of abuse of discretion and resulting prejudice to the movant.” Haugen, 274 Va. at 34, 645 S.E.2d at 265. Given the deficiencies underlying husband’ s motion, we find that the circ uit court did not abuse its discretion when it denied tha t motion. Finding no abuse of dis cretion, we need not address the prejudice prong of Haugen’ s conjunctive test.
2. Denial of A Fair Opportunity to Call Forth Evidence in Husband’s Favor Husband asserts that the denial of his continuance motion depri ved him of “a fair opportunity to call forth evidence in his favor.” However, thi s was not an argument he presented to the circuit court. As suc h, it violates Rule 5A:18. See su pra, part II.A.2. “When relief sought in a trial court invo lves alternative and a nalytically differen t legal theories, Rule 5A:18 requires a litigant to specifically assert in the trial court the le gal theory he seeks to raise o n appeal.”- 11 - Asfaw v. Commonwealth, 56 Va. App. 158, 165 n.4, 692 S.E.2d 261 , 265 n.4 (2010). Husband made no claim in his motion to con tinue that his ability to cal l forth evidence in his favor was jeopardized. Although there is no transcript of the telephone argument on the motion, the circuit court made no reference, in eithe r its written or der or its ora l summary of its ruling, to any claim by husband that denial of the motion jeopardized husband’s abil ity to call for evidence in his favor. Finally, husband never rais ed this argument, either in court or in his written objection on the face of the order. 10 For all of these reasons, we dec line to address whether the d enial of husband’s motion to continue depr ived him of “a fair opportunit y to call forth evidence in his favor.” 11
III. CONCLUSION The circuit court di d not abuse its discretion, either in its a pplication of Code § 20-107.3, or its denial of husband’s motion to continue. Affirmed.

10 Nor has husband ever proffered pr ecisely what evidence he was unable to “call forth.”

11 Husband has not invoked the “good cause” or “ends of justice” exceptions to this Rule, nor do we find such relief appropriate.