COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata 

Argued at Chesapeake, Virginia 

JOSEPH S. KOST

 MEMORANDUM OPINION* BY 

v. Record No. 0116-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 DECEMBER 14, 1999 

ROBERTA E. KOST 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

Nancy J. Luchs (Furlong & Luchs, on brief), for 

appellant. 

No brief or argument for appellee. 

 In this domestic relations case, Joseph S. Kost (husband) 

appeals the trial court's equitable distribution order. On 

appeal, he contends the trial court erred: (1) in making an 

equitable distribution award based on the written proffers of 

the parties and without properly considering the statutory 

factors of Code § 20-107.3; (2) in awarding fifty-percent of the 

marital property to wife and in making various other awards, 

including in-kind marital property, distribution of IRA accounts 

and permanent spousal support; (3) in its calculation of 

pendente lite support; (4) in declining to postpone the 

equitable distribution hearing until a court reporter arrived; 

 *

 Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
(5) by including a "hold harmless" provision in the award of 

real property to husband; (6) in requiring husband to maintain a 

survivor benefit plan for wife under his military retirement; 

and (7) in continuing pendente lite support after the entry of 

the divorce decree and equitable distribution award.1 

I. BACKGROUND 

 On appeal, we construe the evidence in the light most 

favorable to wife, the prevailing party below, granting to her 

evidence all reasonable inferences fairly deducible therefrom. 

See Donnell v. Donnell, 20 Va. App. 37, 39, 455 S.E.2d 256, 257 

(1995) (citing McGuire v. McGuire, 10 Va. App. 248, 250, 391 

S.E.2d 344, 346 (1990)). 

 So viewed, the evidence established that the parties were 

married October 23, 1971 in Devon, Pennsylvania. Husband served 

in the United States Air Force for approximately 26 years, and 

he retired August 1, 1998. Wife worked as an office manager for 

approximately ten years. The parties separated October 1, 1996. 

 Following an initial pendente lite support hearing, husband 

was ordered to pay wife temporary support in the amount of 

$2,797 per month. On August 5, 1998, husband moved the court to 

 1

 In his opening brief, husband alleged fourteen assignments 

of error. Some of his arguments are repetitive and, accordingly, 

we have combined his arguments in this appeal. 

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reduce the award of temporary spousal support.2 Following the 

direct examination of husband, the hearing was continued to 

August 19, 1998 ("August hearing"). 

 At the August hearing, both husband and wife testified as 

to their income and financial obligations. Based upon the 

evidence presented, the trial court reduced wife's award of 

temporary support to $2,473 per month.3 At that time, the trial 

court also conducted a pretrial hearing, in which the parties 

discussed the disputed issues and the trial court advised the 

parties of its method of equitable distribution. 

 The equitable distribution hearing was held on November 5, 

1998 ("November hearing"). Adhering to the pretrial schedule, 

the parties presented testimony and the trial court reviewed 

their written proffers. Throughout the hearing, the trial judge 

made various oral rulings, to which husband did not object. At 

the conclusion of the November hearing, husband's counsel was 

asked to prepare the order reflecting the trial court's 

decisions. 

 On December 15, 1998 ("December hearing"), the parties 

appeared before the trial court to resolve undetermined issues, 

 2

 Husband failed to file in the trial court the transcript of 

the August 5, 1998 hearing and, therefore, we are unable to 

determine what occurred at that hearing. 

3

 On September 21, 1998, the parties appeared before the 

trial court because they disputed the previous pendente lite

support award. However, husband failed to include this transcript 

in the Appendix. 

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including equitable distribution of life insurance policies, 

husband's military pension, and various claims for personal 

property. Husband objected to the trial court's rulings from 

the November hearing. After considering arguments, the trial 

court held that the objections were untimely and, therefore, 

waived. 

Ms. Luchs, I'm baffled by your today's 

position. We went through -- and although 

this may be your first case in the Ninth 

Circuit, you certainly went through an 

educational process in September when we did 

our pretrial. The Court explained to you 

how that would happen. 

* * * * * * * 

 . . . And I have a note that there are 

no facts in dispute under the factors, and 

we would have resolved that on August 19, 

1998. 

 Ms. Luchs, in all due respect to you 

and your concern about the procedure of the 

Court, when there's no facts in dispute 

under the factors, there's nothing to try 

except what we set forth on other types of 

issues such as the classification issues, 

and we assign burdens of proof on those. 

. . . Everything else under classification 

was agreed. 

* * * * * * * 

 Now, we've spent an hour this morning 

discussing or retrying the case. The Court 

will enter an order of divorce, retain the 

matter on the docket for further 

determination as to . . . permanent support 

. . . . 

In its decree entered December 15, 1998, the trial court granted 

the parties a divorce. The trial court "expressly retain[ed]" 

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its jurisdiction to determine the issue of permanent spousal 

support and ordered that pendente lite support continue "until 

further modified." In a separate order, the trial court awarded 

equitable distribution of the property. 

II. RULE 5A:18 

 Rule 5A:18 provides that "[n]o ruling of the trial court 

. . . will be considered as a basis for reversal unless the 

objection was stated together with the grounds therefor at the 

time of the ruling, except for good cause shown or to enable the 

Court of Appeals to attain the ends of justice." Rule 5A:18; 

see also Taylor v. Taylor, 27 Va. App. 209, 212, 212 n.1, 497 

S.E.2d 916, 917, 917 n.1 (1998); Smith v. Smith, 18 Va. App. 

427, 433, 444 S.E.2d 269, 273-74 (1994). 

The main purpose of requiring timely 

specific objections is to afford the trial 

court an opportunity to rule intelligently 

on the issues presented, thus avoiding 

unnecessary appeals and reversals. In 

addition, a specific, contemporaneous 

objection gives the opposing party the 

opportunity to meet the objection at that 

stage of the proceeding. 

Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991) 

(citation omitted). 

 The "ends of justice" exception is "narrow and is to be 

used sparingly. . . ." Patrick v. Commonwealth, 27 Va. App. 

655, 660, 500 S.E.2d 839, 842 (1998) (citations omitted). "In 

order to avail oneself of the exception, a defendant must 

affirmatively show that a miscarriage of justice has occurred, 

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not that a miscarriage might have occurred." Redman v. 

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) 

(emphasis in original). 

 In the instant case, many of husband's assignments of error 

were not properly preserved in the trial court proceedings and, 

thus, Rule 5A:18 bars our consideration of them on appeal. 

III. EQUITABLE DISTRIBUTION HEARING 

A. Use of Written Proffers 

 Husband argues that the trial court erred in making an 

equitable distribution award based on the submitted written 

proffers of the parties and in limiting his presentation of 

evidence. 

 Husband did not request that he be allowed to call 

witnesses on his behalf, and he failed to object to the trial 

court's method of taking evidence at the November hearing. It 

was not until the conclusion of the December hearing that 

husband made the following objection: "[O]ne of my objections 

is that I did not have an opportunity to conduct 

cross-examination. I don't see how Your Honor can make a ruling 

on written proffers alone without eliciting testimony, 

permitting cross-examination or argument of counsel."4

 4

 In finding that the parties were given a reasonable 

opportunity to present evidence, the trial court noted the 

following: "And you had that opportunity . . . to reduce your 

facts to writing, and the Court did a pretrial [conference] and 

I asked what facts are legitimately in dispute so that we can 

set those aside for ore tenus consideration." 

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 Husband's objection was not timely made. "In order to be 

considered on appeal, an objection must be timely made and the 

grounds stated with specificity." McLean v. Commonwealth, 30 

Va. App. 322, 329, 516 S.E.2d 717, 720 (1999) (en banc). 

"To be timely, an objection must be made when the occasion 

arises -- at the time the evidence is offered or the statement 

made." Id. 

 Without a contemporaneous objection from counsel at the 

time the evidence was offered by the parties, husband's argument 

is procedurally barred on appeal. See Crawley v. Commonwealth, 

29 Va. App. 372, 375, 512 S.E.2d 169, 171 (1999) ("Because 

appellant registered no hearsay objection to the admissibility 

of the cards, he waived the right to contest their admissibility 

on appeal."); Newton v. Commonealth, 29 Va. App. 433, 459-60, 

512 S.E.2d 846, 858-59 (1999) (holding that defendant's 

objection to the trial court's statement to the jury was 

procedurally barred because he failed to contemporaneously 

object at the time the statement was made); see also Woodson v. 

Commonwealth, 211 Va. 285, 288-89, 176 S.E.2d 818, 821 (1970) 

("A litigant may not, in a motion to strike, raise for the first 

time a question of admissibility of evidence."). 

 Next, husband argues that the trial court's method of 

taking evidence denied him due process. This claim is also 

barred by Rule 5A:18 because "he failed to raise this argument 

before the trial judge and, therefore, denied the judge the 

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opportunity to consider the question." Yiaadey v. Commonwealth, 

29 Va. App. 534, 546, 513 S.E.2d 446, 452 (1999); see Patrick, 

27 Va. App. at 660, 500 S.E.2d at 842 ("Rule 5A:18 applies to 

bar even constitutional claims."). Additionally, the record 

does not show affirmatively that a miscarriage of justice 

occurred and, therefore, provides insufficient grounds for 

invocation of the ends of justice exception. 

B. Statutory Factors 

 Husband next contends that the trial court erred by failing 

to consider the statutory factors of Code § 20-107.3 in 

determining the equitable distribution award. He argues that 

the trial court "never considered each of the statutory factors 

in any sort of one-by-one basis but only in the aggregate." 

Husband did not object to the trial court's decision at the 

conclusion of the November hearing and, in fact, was asked 

without objection to prepare the equitable distribution order. 

Having failed to properly preserve this issue, husband's 

argument is barred. See Rule 5A:18. Additionally, the evidence 

established that the trial court considered the statutory 

factors. 

IV. EQUITABLE DISTRIBUTION AWARD 

A. Division of Property 

 Husband next argues that the trial court erred in dividing 

the marital property equally, awarding a fifty-percent 

distribution to each party. He contends that the parties did 

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not agree upon the percentage and that the trial court proceeded 

on this mistaken assumption.

 At the November hearing, husband failed to timely object to 

the fifty-percent division of marital property and agreed to an 

equal split of the marital property. At the conclusion of the 

December hearing, the trial court asked counsel whether she had 

previously objected to the fifty-percent division. 

COURT: Did you say that that wasn't 

correct?

MS. LUCHS: No, sir, I did not.

COURT: You did not dispute it?

MS. LUCHS: No, sir.

(Emphasis added). Husband ultimately conceded that his 

objection was untimely, stating the following: "I did not make 

at the time the objections that I should have made, and I admit 

that quite readily."5 We conclude that under these 

 5

 When the trial court reconsidered counsel's argument, the 

following colloquy took place: 

COURT: So we had an agreement to begin 

with, is that what it was? 

MR. WOOD: That's the point. 

MS. LUCHS: No. As we addressed each issue, 

Your Honor ruled on that issue. That's 

throughout the transcript. 

COURT: And it was 50 percent throughout? 

MS. LUCHS: That was Your Honor's ruling. 

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circumstances, having failed to timely object to the trial 

court's use of a fifty-percent figure throughout the proceedings 

when the division of property was made, husband waived any 

objection to the award. See Rule 5A:18. 

B. In-Kind Marital Property 

 Husband argues that the trial court erred by making an 

award of in-kind marital property. At the time of the November 

hearing, wife was in possession of the parties' china, crystal 

and silverware. After the parties separated, but prior to these 

proceedings, wife gave husband a box containing jewelry. 

Husband lost the jewelry and filed an insurance claim in the 

amount of $6,943. In its equitable distribution award, the 

trial court awarded wife her marital share of the value of the 

jewelry. Additionally, the court ordered wife to appraise the 

 

COURT: And that was the agreement of the 

parties? 

MS. LUCHS: It was not the agreement of the 

parties, Your Honor. 

COURT: When you say "it was not the 

agreement," but you never made it an issue; 

is that correct?

MS. LUCHS: That is correct, Your Honor.

COURT: So you're making it an issue today? 

MS. LUCHS: Yes, sir. 

COURT: Overruled. Too late. 

(Emphasis added). 

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parties' china, crystal and silverware and pay husband his 

marital share of its value. 

 At the November hearing, husband did not object to the 

trial court's in-kind division of the china, crystal and 

silverware. In fact, husband's counsel implicitly agreed to the 

disposition of this marital property, stating the following: 

MS. LUCHS: So you're physically awarding 

her these items? 

COURT: That is correct, marital property 

untitled. I believe the Court has the 

authority to award in-kind marital property 

which is untitled. 

MS. LUCHS: I'm not disputing the Court's 

authority, Your Honor. I just want to make 

sure I fully understanding your ruling, sir.

COURT: Okay. 

* * * * * * * 

COURT: Now, did you have another issue you 

wished to bring to mind? 

MS. LUCHS: No, sir. 

(Emphasis added). Having failed to timely object to the trial 

court's decision, husband's claim is barred on appeal. See Rule 

5A:18. 

C. IRA Accounts 

 Husband contends that the parties did not discuss the 

division of their respective IRA accounts and that the trial 

court erred by including this property in the equitable 

distribution award. However, at both the November and December 

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hearings these accounts were discussed by the parties. The 

record affirmatively establishes that the parties discussed the 

inclusion of this property in the equitable distribution award 

and, in fact, husband included both IRA accounts in his written 

proffers: "IRA: Husband, $69,315; Wife, $45,000." 

 Additionally, at the December hearing the parties debated 

at length the division of the IRA accounts. The trial court 

specifically asked husband's counsel what his position was on 

this issue. Counsel stated: 

I think each should benefit from their 

respective contributions. In fact, Mr. Kost 

made substantial contributions to Mrs. 

Kost's IRA. She's contributed to her own 

IRA through her employer. Mr. Kost has 

totally funded his own IRA. I don't see 

where she should benefit from those efforts 

on his behalf to fund his own IRA. 

Contrary to counsel's assertion, this issue was clearly 

addressed by the trial court. 

 Additionally, husband offered no evidence that the deposits 

into either of the parties' IRA accounts were his separate 

property. Absent credible evidence establishing the separate 

nature of at least a portion of the funds, we cannot hold that 

the trial court erred in classifying these accounts as marital 

assets or in distributing them to the parties equally. See

Luczkovich v. Luczkovich, 26 Va. App. 702, 715, 496 S.E.2d 157, 

163 (1998); Marion v. Marion, 11 Va. App. 659, 670, 401 S.E.2d 

432, 439 (1991) (holding that husband's IRA account was subject 

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to equitable distribution because it was purchased during 

marriage, creating presumption of marital property, and no 

evidence in record indicated that it was his separate property). 

D. Permanent Spousal Support 

 Husband argues that the trial court erred in awarding, sua 

sponte, permanent spousal support. "Surely it is an abuse of 

discretion to insert into a final order an issue which neither 

party has asked the court to consider, . . . ."

 Because wife requested in her Answer to the Bill of 

Complaint "that she be awarded temporary and permanent spousal 

support," the issue of permanent spousal support was properly 

before the trial court's consideration.6 More importantly, the 

record establishes that the trial court did not make an award of 

permanent spousal support in the divorce decree. Rather, it 

"expressly retain[ed] jurisdiction to determine the issue of the 

payment of spousal support" and its previous award of pendente

lite support was ordered to "remain in full force and effect 

until further modified." 

 Here, we conclude the trial court did not err in retaining 

its jurisdiction to later consider the issue of permanent 

spousal support. See Rogers v. Damron, 23 Va. App. 708, 715, 

479 S.E.2d 540, 543 (1997) (noting that the trial court may 

reserve "consideration of support, custody, or property issues" 

 6

 Husband did not include the Answer and Cross-Bill in the 

Appendix. 

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to provide "the parties additional time to resolve their 

differences" (emphasis added)); Zipf v. Zipf, 8 Va. App. 387, 

390, 382 S.E.2d 263, 265 (1989) ("That order specifically 

continued the cause, retaining jurisdiction to determine issues 

of spousal support and maintenance, . . . . By it's very 

language, that order did not purport to dispose of all issues 

remaining in the suit." (emphasis added)). 

V. PENDENTE LITE SUPPORT 

A. Imputed Income 

 Husband asserts the trial court erred in finding that he 

was "voluntary unemployed" and by imputing income to him for 

purposes of determining pendente lite support. At the 

conclusion of the parties' evidence at the August 19, 1998 

hearing for temporary support, the trial court made the 

following findings: 

The Court finds that the income of the wife 

has changed. It is now $1,926. The Court 

finds that the income of the husband has 

changed to $4,213 per month but that the 

income is voluntary unemployment income. 

* * * * * * * 

 Therefore, there has been a substantial 

change of circumstance. Pendente lite 

support will be pursuant to the Ninth 

Circuit guidelines, income of the wife 

$1,926, income of the husband $7,474. 

Accordingly, the trial court awarded wife temporary support in 

the amount of $2,473 per month. Husband's counsel prepared the 

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order, which was signed by the trial court and endorsed by both 

parties. 

 Husband did not object to the award of temporary support at 

the August 19, 1998 hearing or when he endorsed the trial 

court's pendente lite support order. Indeed, at a later hearing 

on September 21, 1998 to discuss the trial court's award of 

temporary support, husband was given another opportunity to 

object to the order, but failed to do so. The trial court 

stated the following: 

COURT: All right. If you'll make those 

changes. Ms. Luchs, I think you and Mr. 

Wood can probably resolve these issues based 

upon this discussion this morning, and I'd 

ask that you endorse the order. And you 

make your notes to whatever you object to 

relevant to that.

MS. LUCHS: Yes, sir. 

COURT: On the order, if in fact you have 

any objection. I think we may have resolved 

that for you. And I thank you for coming 

this morning. I'm sorry to put you to that 

trouble. 

(Emphasis added). 

 The record establishes that husband did not object at the 

time of the trial court's ruling, at the time counsel was asked 

to prepare the order, or at the time the trial court gave him 

another opportunity to do so at the September 21, 1998 hearing. 

Having failed to timely object to the trial court's award of 

pendente lite support, his argument is barred on appeal. See

Rule 5A:18. 

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B. Overstated Income 

 Husband also argues that the trial court erred in modifying 

his income for purposes of determining pendente lite support. 

He contends that when the trial court calculated the support 

award, husband's income was "overstated." Husband argues that 

the trial court later recognized this error and at the August 

19, 1998 hearing the court agreed to "credit the husband from 

the April 29, 1998, order wherein the income was overstated." 

 Our review of the record indicates that there is no trial 

court order dated April 29, 1998. Additionally, husband failed 

to include a copy of the August 5, 1998 hearing transcript in 

the Appendix, and it appears from the record that a copy of that 

transcript was not filed in the trial court. Accordingly, we 

are unable to determine whether any income was "overstated" in a 

previous order of the trial court and, therefore, we are unable 

to properly decide this issue. See Twardy v. Twardy, 14 Va. 

App. 651, 654, 419 S.E.2d 848, 850 (1992) (en banc) ("[A]n 

appellant has the primary responsibility of ensuring that a 

complete record is furnished to an appellate court so that the 

errors assigned may be decided properly."); Id. at 658, 419 

S.E.2d at 852 ("The trial court's judgment is presumed to be 

correct, and 'the burden is on the appellant to present to us a 

sufficient record from which we can determine whether the lower 

court has erred.'"). 

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 Significantly, when husband's counsel prepared the order 

for pendente lite support he did not object to the trial court's 

calculations. Even if the trial court mistakenly failed to 

credit husband the claimed amount, husband agreed to and signed 

the order without objection. Accordingly, his argument is 

barred on appeal. See Rule 5A:18. 

VI. COURT REPORTER 

 Husband argues that the trial court erred in declining to 

postpone the November 5, 1998 hearing until a court reporter 

arrived to transcribe the proceedings. However, husband did not 

object to the trial court's decision, and he conceded that no 

substantive issues had been discussed during the ten-minute 

absence of the court reporter. When the parties discussed this 

issue at the December 15, 1998 hearing, husband's counsel stated 

the following: 

But, again, during that ten minutes, as I 

recall, no substantive issues were 

discussed, and that's probably reflected in 

your notes. Certainly, in the beginning of 

the transcript, Your Honor notified the 

court reporter of what had been discussed to 

the point of her arrival, . . . . 

Accordingly, husband waived any objection to the absence of a 

court reporter during the beginning of the November 5, 1998 

hearing. See Rule 5A:18. 

VII. HOLD HARMLESS PROVISION 

 Husband argues that trial court's final order is flawed 

under various federal bankruptcy provisions and laws. In its 

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order the trial court awarded husband real property located in 

Blacksburg, Virginia, and ordered wife to execute a deed 

conveying her marital interest in that property to husband. The 

trial court valued the Blacksburg property at $80,000, with a 

debt of $72,048, resulting in an equity value of $7,951. 

Accordingly, husband was ordered to pay wife $3,975, her marital 

share of the equity value. 

 In addition, the trial court noted that "[husband] shall 

hold [wife] harmless for the mortgage payment on said property 

and shall make a good faith effort to refinance the property 

thereby relieving [wife] and the parties' daughter7 of the debt." 

On appeal, husband argues that this hold harmless provision 

violates federal bankruptcy laws. 

 Husband's claim of error is procedurally barred because he 

failed to make a timely objection to the trial court's ruling. 

See Rule 5A:18. At the November hearing, husband testified that 

he was going to refinance the Blacksburg property to get a lower 

interest rate and to release his daughter from any liability as 

a named party to the original deed. Because the trial court did 

not want to order husband to refinance the property if it was 

not possible, the court only required that he make a "good faith 

 7

 The evidence established that in addition to husband and 

wife the parties' daughter was named in the original deed of the 

Blacksburg property. 

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effort" to do so. Additionally, the trial court ruled as 

follows: 

COURT: And you will hold Mrs. Kost harmless 

from that debt. For instance, if it was 

foreclosed on and there was a deficiency and 

they came after both of you, it's your 

responsibility to hold her harmless on that 

debt. 

MR. WOOD: I would like the order to reflect 

that hold harmless to the extent that she 

would have to pay any of that debt, that 

would transfer into the nature of spousal 

support; and therefore, not dischargeable in 

bankruptcy. 

COURT: So ordered. 

Husband did not object to the trial court's ruling and, 

therefore, his argument is barred on appeal. See Rule 5A:18. 

VIII. HUSBAND'S MILITARY RETIREMENT 

 Lastly, husband argues that the trial court abused its 

discretion by requiring him to maintain the survivor benefit 

plan under his military retirement. Husband did not object to 

the court's decision at that time and, therefore, his argument 

is barred on appeal. Additionally, husband did not object at 

the December hearing when the parties were discussing the 

military pension. Having failed to timely object, husband's 

argument is barred on appeal. See Rule 5A:18. 

IX. CONTINUATION OF SUPPORT 

 Husband argues that the trial court erred in requiring him 

to continue paying pendente lite support after the entry of the 

divorce decree and equitable distribution award. Husband did 

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not raise this issue at any time during the proceedings and his 

only objection was raised in his exceptions to the order. 

 As noted above, the trial court expressly retained 

jurisdiction to determine permanent spousal support and, 

therefore, continued pendente lite support "until further 

modified." Because the trial court correctly reserved 

jurisdiction to further consider the issue, we find no abuse of 

discretion. See Rogers, 23 Va. App. at 715, 479 S.E.2d at 543; 

Zipf, 8 Va. App. at 390, 382 S.E.2d at 265. 

 For the foregoing reasons, the order of the trial court 

awarding equitable distribution of marital property and 

retaining jurisdiction for consideration of permanent spousal 

support is affirmed. 

 Affirmed.

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