COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

ANTHONY WELLS 

 MEMORANDUM OPINION*

v. Record No. 2601-96-4 BY JUDGE JOSEPH E. BAKER 

 NOVEMBER 18, 1997 

CYNTHIA NORTH WELLS 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

William Shore Robertson, Judge 

 Robin C. Gulick (Robin C. Gulick, P.C., on 

briefs), for appellant. 

 Burke F. McCahill (Sevila, Saunders & 

McCahill, on brief), for appellee. 

 Anthony Wells (husband) appeals from a decree of divorce 

entered by the Circuit Court of Fauquier County (trial court) 

that made equitable distribution and spousal support awards to 

Cynthia North Wells (wife). Husband contends that the trial 

court failed to consider all the factors contained in Code 

§ 20-107.3; erred in applying a formula that inflated wife's 

equity in property known as "Log House Hollow" by failing to 

include therein a second deed of trust; erred by failing to give 

credit to husband for mortgage payments he made after the parties 

separated; and erred in making the spousal support award without 

imputing income to wife, thereby requiring husband to make 

spousal support payments in excess of wife's needs. Wife 

contends that husband's acceptance of the benefit of the 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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equitable distribution decree, under which he purchased wife's 

interest in the marital residence, bars our review of this issue 

on appeal. In addition, she contends that all assignments of 

error are barred by husband's failure timely to file transcripts 

of the proceedings below. For the reasons that follow, we affirm 

the ruling of the trial court. 

EQUITABLE DISTRIBUTION

 Wife moves to dismiss husband's appeal of the equitable 

distribution award on the ground that it is barred by husband's 

acceptance of a portion of the benefit of the award. Wife points 

to language in the final decree indicating that "counsel 

conferred and reached agreement to modify the provisions of this 

court's letter opinion in order to provide [two alternate 

methods] . . . for the orderly disposition of this property." 

She argues that husband's exercising one of those two methods by 

purchasing wife's interest in Log House Hollow precludes the 

relief husband seeks because the court lacks jurisdiction over 

what is now husband's separate property. 

 We disagree. In essence, wife received a money judgment for 

$132,595 that was secured by the marital residence. The decree, 

entered September 20, 1996, appointed the parties' attorneys as 

special commissioners, and it provided that they would convey 

title to husband upon his payment of the judgment amount but that 

they would sell the residence if husband had not paid that amount 

by December 20, 1996. Husband would remain liable for any 
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deficiency in the amount of the judgment after the sale. Husband 

registered specific written objections to the equitable 

distribution provisions of the decree, thereby preserving his 

right to appeal those issues, and noted his appeal on October 18, 

1996. Thereafter, on December 17, 1996, only three days prior to 

the scheduled sale of Log House Hollow, husband satisfied the 

judgment, and the special commissioners conveyed the residence to 

husband. 

 "The general rule is that the payment of a judgment deprives 

the payor of the right of appeal only if payment was made 

voluntarily." Carlucci v. Duck's Real Estate, Inc., 220 Va. 164, 

166, 257 S.E.2d 763, 765 (1979) (emphasis added). In this case, 

husband objected to the trial court's entry of judgment against 

him and satisfied the judgment after he had properly noted his 

appeal in order to avoid imminent judicial sale of the property. 

 Therefore, husband's payment was not voluntary and did not 

constitute a waiver of his right of appeal. 

 Wife also contends that husband failed timely to file 

transcripts of the proceedings necessary to support the equitable 

distribution claims. When filing his notice of appeal, husband 

notified the clerk and wife that "A transcript or statement of 

facts, testimony and other instances of the case will be filed." 

 (Emphasis added). When husband recited in his notice that a 

transcript "will be filed," wife had a "right to rely on . . . 

[that] representation." See Twardy v. Twardy, 14 Va. App. 651, 
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655, 419 S.E.2d 848, 850 (1992) (en banc). The transcript 

becomes a part of the record only when timely filed with the 

clerk. See Williams v. Commonwealth, 7 Va. App. 516, 518, 375 

S.E.2d 364, 365 (1988); Rule 5A:8. 

 The absence or late filing of the 

transcript, however, does nothing to diminish 

our jurisdiction. If the record on appeal is 

sufficient in the absence of the transcript 

to determine the merits of the appellant's 

allegations, we are free to proceed to hear 

the case. . . . If, however, the transcript 

is indispensable to the determination of the 

case, then the requirements for making the 

transcript a part of the record on appeal 

must be strictly adhered to. 

See Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 

402 (1986) (citation omitted). This Court may extend the filing 

deadline for "good cause," but only "[u]pon a written motion 

filed within 60 days after entry of the final judgment." Rule 

5A:8(a). No such motion was filed in this case. Accordingly, we 

find that the referenced transcripts are not a part of the record 

on appeal. 

 Husband complains that in making the equitable distribution 

award, the trial court relied wholly on the so-called "magic 

formula" to calculate the parties' equity in Log House Hollow and 

failed to consider all the statutory factors, including husband's 

monetary contributions to the marital residence. The trial 

court's judgment is presumed to be correct, and the burden is on 

appellant to present us with a sufficient record from which we 

can determine that the lower court has erred. See Twardy, 14 Va. 
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App. at 658, 419 S.E.2d at 852; see also Justis v. Young, 202 Va. 

631, 632, 119 S.E.2d 255, 256-57 (1961). Here, the transcripts 

of the many proceedings below may not be considered because they 

were not timely filed on appeal, and the trial court's letter 

opinion and final decree, which are properly contained in the 

record, state that the trial court considered all statutory 

factors. We see nothing in the portion of the record we may 

consider indicating that the trial court failed properly to 

consider those factors, and we affirm the trial court's ruling on 

this issue. 

 Husband also contends that the trial court misapplied the 

magic formula, resulting in the miscalculation of the parties' 

equity in Log House Hollow and a failure to credit husband for 

post-separation mortgage reduction. Again, the transcripts may 

not be considered because they were not timely filed, but we 

consider the court's letter opinion with attachments and the 

final decree sufficient to permit our limited review. 

 Despite husband's contention, we find no error in the 

court's application of the magic formula to its calculation of 

the parties' equity in Log House Hollow. We cannot say the trial 

court erred in concluding that wife was entitled to receive the 

value of the appreciation in equity resulting from her initial 

$150,000 contribution toward the purchase of Log House Hollow, 

which was given in the form of a lien on Chesterfield. We also 

cannot conclude that it erred in refusing to subtract from the 
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total equity available for division the amount of the $150,000 

note against Log House Hollow. Evidence in the record shows the 

parties stipulated that husband would convey the jointly-titled 

Chesterfield property to wife free of encumbrances, thereby 

assuming sole responsibility for that $150,000 lien against Log 

House Hollow. If the court were required to deduct that $150,000 

from the value of the equity in Log House Hollow for purposes of 

equitable distribution calculations, it would nullify the effect 

of the parties' stipulations. 

 We also cannot say that the trial court failed to credit 

husband for his post-separation reduction in the mortgage 

principal. After husband brought this omission to the court's 

attention, it explained very clearly in the final decree that it 

was giving husband credit for these payments by permitting 

husband to keep wife's share of the assets of TKC corporation, 

marital property that it had previously misclassified as 

husband's separate property. Rather than revalue the corporation 

as marital, it permitted husband to retain all corporate assets, 

valued at $61,242.27, as credit for his post-separation reduction 

in mortgage principal of no more than $12,182.12. Therefore, the 

record makes clear that husband has already received the credit 

he now seeks. 

 In light of the late filed transcripts and the record 

properly before us on appeal, we cannot conclude that the trial 

court erred in fashioning the equitable distribution award in 
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this case. 

SPOUSAL SUPPORT

 In a letter dated July 1, 1996, reciting that it had 

considered the factors set forth in Code § 20-107.1, the trial 

court made an award of spousal support of $3,600 monthly in favor 

of wife beginning July 15, 1996. Husband contends that the trial 

court erred in failing to impute income to wife and in awarding 

her more than her needs justified. 

 We hold that the income imputation argument is barred by the 

late filing of the transcripts. Although husband objected to 

entry of the final decree based on the court's failure to impute 

income to wife, nothing in the record indicates that husband had 

previously raised this issue to the trial court, and we have no 

evidence before us on appeal showing that the failure to impute 

income constitutes error. 

 Also barred is husband's argument that the award exceeded 

wife's justified needs, as compared to husband's ability to pay.1

 The record contains the parties' income and expense sheets, but 

due to the late filing of transcripts, it contains no evidence 

supporting or disputing their respective incomes and expenses. 

Given that wife's evidence shows uncontradicted monthly expenses 

of $6,601.44 as compared to an award of $3,600, we simply cannot 

say that the trial court erred in making such an award. 

 Based on those portions of the record we may consider, we 

 

 1Husband appears to concede this bar in his reply brief. 
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cannot say that the trial court's equitable distribution or 

spousal support awards were erroneous. Accordingly, the judgment 

of the trial court is affirmed. 

 Affirmed.