COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Ru ssell and Senior Judge Frank

GUY FERRANTE MEMORANDUM OPINION * v. Record No. 1997-14-4 PER CURIAM APRIL 28, 2015 MARY JO KRIST

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY John M. Tran, Judge (Guy Ferrante, pro se , on brief). (Bruce M. Blanchard; Leig h M. Winstead; Odin, Feldman & Pittleman, P.C. , on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication. Guy Ferrante appeals from two orders entered by the circuit court on May 23, 2014. The crucial one is a show cause order incarcerating him un til he paid Mary Jo Kris t’s attorney’s fees as directed in the circuit co urt’s November 1, 2013 and April 18, 2014 orders. Ferrante argues that the circuit court erred by (1) “adopting” Krist’s written statement of facts beca use it was “inaccurate, incomplete, and irrelevant to the instant appeal;” (2) imposing an “excessi ve” $5,000 sanction against Ferrante when he was hospitalized, which viol ated his due process rights; (3) “enforcing an illegally imposed $5,000 + sanction that wa s also on appeal to the Su preme Court at the time;” and (4) imposing and enforcing an additi onal sanction because “t he ostensibly ‘offen ding’ fourth motion included issues that had not been re solved . . ., as well as constitutional issues th at had not . . . been addressed in [the] . . . earlier proc eeding[s].” Upon reviewing the r ecord and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the circuit court. See Rule 5A:27.UNPUBLISHED- 2 - BACKGROUND On November 1, 2012, the circuit court entered a protective order agai nst Ferrante. Since the entry of the protective order, Ferrante filed four motions to di ssolve the protective order. The trial court denied each of his motions, and on November 1, 2013, it awarded $5,000 to Krist for her attorney’s fees and costs. Ferrante did not appeal the N ovember 1, 2013 order. On March 11, 2014, the circuit co urt issued a rule to show cause against Ferrante for his failure to pay the $5,000 sanctions imposed on November 1, 2013. On March 28, 2014, the circuit court granted the rule to show cause and continued the matter to April 18, 2014 for Ferrante to pay the $5,000 previously ordered. If he did not pay, then he would be ordered to pay Krist’s additional attorney’s fees and costs. On April 18, 2014, the parties appeared before the circuit court. Ferrante had not paid the $5,000 owed to Krist, so the trial court awarded Krist $2,244.50 for her attorney’s fees and co sts incurred in bringing forth the rule to show cause. The matter was continued to May 23, 2014 for Ferrante to purge himself. On May 23, 2014, the parties appeared before the circuit court. Ferrante still had not made any payments to Krist. The circuit cour t remanded Ferrante to the custody of the sheriff until he paid the $7,244.50 he was ordered to pay. This appeal followed. 1
ANALYSIS Assignment of error #1 Ferrante argues that the circuit court erre d by “adopting” Krist’s written statement of facts, as opposed to his statement of facts. On July 17, 2014, Ferrante filed his written statement of facts. On July 30, 2014, Krist filed her objecti ons to Ferrante’s statem ent of facts and filed her proposed written statement of facts. On August 6, 2014, Ferrante filed an objection to

1 On May 27, 2014, Ferrante purged himself by pa ying the ordered sum and was released from custody.- 3 - Krist’s statement of facts. On August 11, 2014, the circuit c ourt entered an order adopting Krist’s statement of facts and maki ng several corrections and additions. Ferrante acknowledges that he did not object to the circuit court’s written statement of facts. He states that he “had no opportunity to register a timel y objection because the trial court did not provide the notice and hear ing . . . before its wholesale s ubstitution of one Statement of Facts for another.” Rule 5A:18 states, “No ruling of the trial co urt . . . will be considered as a basis for reversal unless an objection was st ated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of App eals to attain the ends of justice.” “The good cause exception is applied when an appellant did not have the opportunity to object to an alleged error during the proceedings below.” Flanagan v. Co mmonwealth, 58 Va. App. 681, 694, 714 S.E.2d 212, 218 (2011). Code § 8.01-384(A) states, in relevant part, that “if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him . . . on appeal.” See also Commonwealth v. Amos, 287 Va. 301, 754 S.E.2d 304 (2014); Maxwell v. Commonwealth, 287 Va. 258, 754 S.E.2d 516 (2014). Assuming without deciding that the good cause exception applie s to Ferrante’s failure to object to the circuit court’s statement of facts, the circuit court did not err in adopting and modifying Krist’s statement of facts. Krist obje cted to Ferrante’s writte n statement of facts and proffered her own statement of facts. Ferrante submitted objections to Krist’s proposed statement of facts. Pursuant to Rule 5A:8(d), a party may object to the written statement of facts, and the trial court shall: (1) overrule the objection; or (2) make any corrections that the trial judge deems necessary; or (3) include any accurate additions to make the record complete; or- 4 - (4) certify the manner in which the record is incomplete; and (5) sign the transcript or written statement. The circuit court di d not err in sustaining Krist’s objections to Ferrante’s proposed statement of facts and adopting Krist’s proposed statement of facts with corrections and modifications. The trial court’s actions were within the authority granted it by subparts (2) and (3) of Rule 5A:8(d). Assignment of error #2 Ferrante argues that the circuit court a bused its discretion in imposing a $5,000 sanction against him in its November 1, 2013 order. Fe rrante contends he wa s unable to attend the November 1, 2013 hearing because he was recoveri ng from knee surgery. He asserts that the circuit court acted ex parte and violated his due process rights. However, Ferrante did not appeal the November 1, 2013 order. “All final judgments, orders, and decrees, irrespective of te rms of court, shall remain under the control of the trial c ourt and subject to be modifi ed, vacated, or suspended for twenty-one days after the date of entry, and no longer.” Rule 1:1. Since Ferrante did not appeal the November 1, 2013 order, that order is final and no longer subject to review. Assignment of error #3 Appellant argues that the circuit court e rred “by enforcing an illegally imposed $5,000+ sanction that was also on appeal to the Supr eme Court at the time.” On March 28, 2014, the circuit court granted Krist’s rule to show cause and ordered Ferrante to pay, within fifteen days, the $5,000 awarded to Krist in the Novemb er 1, 2013 order. The March 28, 2014 order specifically states that the “[ b]asis for today’s ruling was th at the Nov. 1, 2013, order was final- 5 - and appealable.” However, Ferrante did not ap peal the November 1, 2013 order. Thus, Rule 1:1 bars this Court’s consid eration of assignment of error 3. See Rule 1:1. 2 Assignment of error #4 Ferrante argues that the circuit court abused its discretion in imposing $2,058.58 in sanctions after it denied his f ourth motion. He contends he f iled the fourth motion because the court had not decided the merits of his arguments in prior motions. He asserts he was penalized for not prosecuting his cause when he was hospita lized and penalized again when he was able to come to court. The court ordered an additiona l $2,058.58 in attorneys’ fees as a sanction in its February 21, 2014 order. As mentioned above, Ferrante appealed that order to the Supreme Court of Virginia, which subsequently dismissed th e appeal for failure to timely file a petition for appeal. The order is final, and this Court wi ll not reconsider the i ssue. See Rule 1:1. Attorney’s fees and costs Krist asks this Court to award her attorney ’s fees and costs in curred on appeal. See O’Loughlin v. O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Having reviewed and considered the entire record in this case, we hold that Krist is entitled to a reasonable amount of attorney’s fees and costs, and we remand for the circuit cour t to set a reasonable award of attorney’s fees and costs incu rred by her in this appeal. CONCLUSION For the foregoing reasons, the circuit court’s ruling is summarily affirmed. Rule 5A:27. We remand this case to the circuit court for dete rmination and award of th e appropriate appellate

2 Ferrante appealed the February 21, 2014 order to the Supreme Court of Virginia. That February 21, 2014 order denied his fourth moti on to dissolve the protective order and awarded $2,058.58 in attorney’s fees to Krist. (The Supr eme Court of Virginia subsequently dismissed the appeal.) However, the circuit court’s March 28, 2014 order concerned the November 1, 2013 order—not the February 21, 2014 order that was on appeal to the Supreme Court.- 6 - attorney’s fees and costs, whic h also should include any additi onal attorney’s fees and costs incurred at the remand hearing. Affirmed and remanded.