COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fe lton, Judges Frank and Powell Argued by teleconference

MATTHEW J. SHIEMBOB OPINION BY v. Record No. 0135-09-1 CHIEF JUDGE WALTER S. FELTON, JR. NOVEMBER 24, 2009 SUSAN WREN SHIEMBOB

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Dean W. Sword, Jr., Judge J. Roger Griffin, Jr. (Christie, Kantor, Griffin, Smith & Shepherd, P.C., on brief), for appellant. Diane Pomeroy Griffin (Diane Pomeroy Griffin, P.C., on brief), for appellee.

Matthew J. Shiembob (“husband” ) appeals from a judgment of the Portsmouth Circuit Court (“trial court”). He contends th e trial court erred in ruling that the funds he deposited during the marriage into Susan Wr en Shiembob’s (“wife”) investment account to replace funds he removed without her permission or knowle dge, was a gift between spouses and wife’s separate property; erred in ruling restricted stock shares receive d by husband in 2008 an d 2009 pursuant to the Restricted Stock Award Agreement with husband’s employer were marital property; erred in vacating a protective order against disclosure by either party of docum ents acquired during the divorce; erred in vacating its prio r order sealing the cour t file; and erred in aw arding wife $10,000 toward attorney’s fees and costs at trial. Wife also s eeks an award of her attorney’s fees and costs on appeal. For the following reason s, we affirm in part , reverse in part, an d remand for further proceedings consistent with this opinion.- 2 - BACKGROUND On appeal, “[w]e review the evidence in the light most fa vorable to wife, the party prevailing below and grant all reasonable inferences fair ly deducible therefrom.” Anderson v. Anderson , 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (19 99). The evidence established that the parties married on June 1 0, 1995 and separated on January 20, 200 7. Three children were born of the marriage, ages nine, fi ve, and one at the time the parties sepa rated. The parties agreed that wife would be the children’ s primary caregiver while husband su pported the family financially. Wife’s father and brother were financial advi sors employed by Scott and Stringfellow. In 1999, husband joined wife’s father and brother at Sc ott and Stringfellow as a financial advisor. Husband became a licensed financial advisor in February 2000. In February 2000, husband, unbeknown to wife or her father, named himself manager of wife’s personal investment account (“Raymond James account”). 1 At that time, wife’s account had a value of $61,807.11. In 2001, when wife learne d of the change in the management of her account, husband had depleted that fund to $1,495.89 as a result of his unsuccessful stock trading. In 2004, Towne Bank negotiated a contract with wife’s father, brot her, and husband to purchase their partnership. As a result of this purchase and pu rsuant to an employment contract with Towne Bank, they each received $450,000. For tax reasons, wife’s brother and husband negotiated with Towne Bank to receive their respec tive shares of the purch ase price in a partial cash payment, with payment of the balance in Towne Bank stock pursuant to the Restricted Stock Award Agreement. Under that agreement, husband received 12,264 shares of restricted stock in Towne Bank. The agreement provided that 2,452 shares would vest to husband on

1 Wife’s father started the Raymond James account for wife during her teenage years, prior to her marriage. The account was held at Scott and Stringfellow where wife’s father managed and continued to contribute to the account.- 3 - January 30, 2005, and for the next 4 years, 2,453 shar es would vest on each January 30th until the final vesting date of Janua ry 30, 2009. After the first shares vested, husband sold all 2,452 shares for approximately $75,000. In March 2006, wife discovered that husband he ld an undisclosed credit card. She also discovered he carried undisclosed charges on an additional credit card. He had a total balance due of approximately $34,000 on the two cards. Th ereafter, wife, husband, and wife’s brother met to assess the parties’ finances and to create a plan to pay down his credit card debt. During that meeting, wife learned that husband had lo st approximately $50,000 recei ved from his sale of the 2005 vesting of his Towne Bank stock “in the market.” Husband then informed her, for the first time, that he had joined a country cl ub, which had an initiation fee of $5,000, and a $334 monthly membership fee. Husband also to ld wife that he had $25,000 in a previously undisclosed personal checking account. The record does not reveal the source of the funds in that account. As a result of that meeting, husband agreed to take a leave of absence from the country club. The parties agreed to use the proceeds of the sale from the 2006 vesting of Towne Bank stock to pay off his credit card debt s. Husband also agreed to put $25,000 back into [wife’s] account as a way to kind of safeguard so he wouldn’t feel tempted to trade that money in the stock market or shuffle it around to pay credit card bills that [she] didn’t know about. So it was put away for safekeeping in an effort [for husband] to rebuild trust with [wife]. On May 2, 2006, husband deposited a total of $37,000 into wife’s Raymond James account. The $37,000 check was drawn on a Towne Bank account in husband’s name. Husband testified that $25,000 came out of a BB&T account held in his name and $12,000 from another unspecified

account.- 4 - Following the parties’ separation on Janua ry 20, 2007, wife learne d that husband had a separate post office box that he had maintained since 2003. She also discovered that he had obtained an unsecured loan from Towne Bank for $81,000 in April 2006. An ore tenus hearing was held on October 8- 9, 2008. The trial cour t entered its final decree of divorce on December 12, 2008. It “awarded” the Raymond James account to wife as her separate property, finding husband’s $37,000 deposit into that account consisted of marital funds and was a “gift.” It also ordered husband to pay $10,000 towa rd wife’s attorney’s fees and costs incurred at trial. It foun d all 12,264 shares of re stricted stock received as part of husband’s employment with Towne Bank to be marital property.
ANALYSIS On appeal, “[a] decision rega rding equitable distribution re sts within the sound discretion of the trial court and will not be disturbed unl ess it is plainly wrong or without evidence to support it.” Holden v. Holden , 31 Va. App. 24, 26, 520 S.E.2d 842, 844 (1999). “‘Unless it appears from the record that the trial judge ha s not considered or has misapplied one of the [equitable distribution] statutory mandates, this Court will not reverse on appeal.’” Id. at 27, 520 S.E.2d at 844 (quoting Ellington v. Ellington , 8 Va. App. 48, 56, 378 S.E.2d 626, 630 (1989)). I. Raymond James Account Husband contends the trial court erred “i n ruling that funds [h e] deposited in the Raymond James account as a gift between spouses during the marriage were [wife’s] separate property.” He further contends that the trial court erred in fi nding the $37,000 he deposited into that account was a gift because it is “contradictory to the statutory definiti ons of separate and marital property.” The trial court gave no basis for its determin ation that husband’s deposit, of what it found to be marital funds, into the Raymond James account was a gift. Moreover, the record is silent- 5 - as to whether husband retained any access to that account after he deposited the $37,000, or whether he intended to relinquish a ll title and interest to those f unds, or whether the transfer of those funds was unconditional. Husband testif ied that he deposited the $37,000 into wife’s separate pre-marital account “as a way to kind of safeguard so he wouldn’t feel tempted to trade that money in the stock market or . . . to pay credit card bills . . . [t hat] it was put away for safekeeping.” The record is unclear as to wh ether the trial court f ound the transfer of the $37,000 in marital funds into the Raymond James account transmuted the funds into wife’s separate property pursuant to Code § 20-107.3(A)(3 )(d), or found it to be marital property which it “awarded” to wife as part of its equitable distribution award. Accordingly, we remand to the trial cour t for clarification of whether it found the Raymond James account to be wife’s separate prop erty, not subject to equitable distribution, or whether it classified that account as marital property which it distributed to wife. The final decree simply reflects that the trial court “awarded” that account to wife. II. Towne Bank Stock Husband also contends the trial court erre d in finding that the 2008 and 2009 shares of Towne Bank stock were marital property. He c ontends those shares had not yet vested pursuant to his employment agreement at the time the part ies separated and, therefore, were his separate property. “Generally, the character of property at the da te of acquisition govern s its classification pursuant to Code § 20-107.3.” Stratton v. Stratton , 16 Va. App. 878, 881, 433 S.E.2d 920, 922 (1993). All property including that portion of pensions, profit-sharing or deferred compensation or retireme nt plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to- 6 - be marital property in the absence of satisfactory evidence that it is separate property. Code § 20-107.3(A)(2). The record shows that, as part of his agreement with Towne Bank, husband was to receive $450,000 from that financial institution. Rather than accepting the full amount in cash, he entered into a “Restricted Stock Award Agr eement” with the bank. That agreement awarded husband 12,264 shares of restricted stock. It specifi cally provided that the “[s]hares awarded . . . shall vest in annual increments beginning on January 30, 2005, in accordance with the following schedule (the first vesting date of January 30, 2005 and each subsequent January 30th up to and including January 30, 2009 shall be a Vesting Date . . . ).” The agreement also provided that, while husband could not transfer the shares until they “vested, ” he was entitled to receive dividends and had full voting rights as to those shares. However, the agreement provided that if husband’s employment was terminated “for any reas on other than retirement, death, or Disability . . . before the Vesting Dates . . . all Shares that are not then vested shall be forfeited.” Because the vesting of the 2008 and 2009 restricted stock shares were conditioned on husband’s continued employment, his right to these shares did not vest until after the parties’ separation on January 20, 2007. Accordingly, the tr ial court erred in determining those shares were marital property. See Code § 20-107.3(A)(2); Cirrito v. Cirrito , 44 Va. App. 287, 605 S.E.2d 268 (2004) (holding funds receiv ed by husband, consis tent with non-compet e agreement signed before marriage were marital fu nds because right to receive th ose funds was co ntingent on husband’s compliance with agreement whic h husband fulfilled while married). We conclude that the trial court erred in fi nding that, pursuant to the terms of the stock agreement, husband acquired all 12,264 shares of Towne Bank stock prior to the separation of the parties on January 20, 2007, and that the shares received in 2008 and 2009 were marital property.- 7 - III. Protective Order Husband also contends the trial court erred in its final decree in vacating its protective order, entered under Rule 4:9 to facilitate discovery, which prohibite d either party from divulging any information or documents provi ded during the divorce pr oceedings. Husband presents no legal authority in his brief to suppor t his argument that the trial court erred. The protective order was entered to facilitate the discovery process because husband refused to provide responses to discovery requests. Rule 5A:20(e) provides, in pa rt, that the opening brief shall include “[t]he principles of law, the argument, and the authorities relati ng to each question presented.” “‘Statements unsupported by argument, authorit y, or citations to the record do not permit appellate consideration.’” Parks v. Parks , 52 Va. App. 663, 664, 666 S.E.2d 547, 548 (2008) (quoting Cirrito , 44 Va. App. at 302 n.7, 605 S.E.2d at 275 n.7). The Supreme Court concluded that “when a party’s ‘failure to strictly adhere to the requirements of Rule 5A:20(e)’ is significant, ‘the Court of Appeals may . . . trea t a question presented as waived.’” Parks , 52 Va. App. at 664, 666 S.E.2d at 548 (quoting Jay v. Commonwealth , 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008)). “If the parties believed that the circuit c ourt erred, it was their duty to present that error to [the Court of Appeals] with legal authority to support their contention.” Fadness v. Fadness , 52 Va. App. 833, 851, 667 S.E.2d 857, 866 (2008). Because husband provides no legal authority in his brief to support his argument, his claim that the trial court erred in vacating its earlier order prohibiting either party from divulging informati on or documents acquired during the divorce is waived under Rule 5A:20(e). IV. Sealed Court Records Husband also contends the trial court erred in vacating its order sealing the trial court record to protect financial disclo sures of the parties made part of the record and the personal and- 8 - professional privacy of the parties. We find no erro r on the part of the tria l court in unsealing the trial record. Code § 17.1-208 provides, in part, “Except as otherwise provided by law, any records and papers of every circuit c ourt that are maintained by the clerk of the circuit court shall be open to inspection by any person.” Code § 20-124 provi des that upon motion of a party in a divorce action, a trial court may or der all or part of the record sequ estered. Husband argues that once the trial court sequestered the record pursuant to Code § 20-124, it must remain sealed except to the parties and to those designated by the trial court. He further contends that the trial court exceeded its powers under Code § 20-124 in vacati ng its own order but provides no authority for that proposition other than Boone v. City of Suffolk , 79 F. Supp. 2d 603 (E.D. Va. 1999) (involving unsealing settlement agreement under Federal Rules of Civil Procedure), which we conclude is inapplicable here. Husband argues that once the record is seal ed, it can only be unseal ed piecemeal pursuant to Code § 20-124. However, “the desire of the l itigants [to seal the reco rd of the trial court proceedings] is not sufficient reason to override the presumption of openness. Nor do we believe that risks of damage to profe ssional reputation, emotional damage, or financial harm, stated in the abstract, constitute sufficient re asons to seal judicial records.” Shenandoah Publishing House, Inc. v. Fanning , 235 Va. 253, 259, 368 S.E.2d 253, 256 (1988); see also Perreault v. Free
Lance-Star , 276 Va. 375, 392, 666 S.E.2d 352, 361 (2008) (holding records in wrongful death case should be unsealed where partie s’ fears of “emotional damage or financial harm when stated ‘in the abstract, [do not] constitu te sufficient reasons to seal j udicial records’” (alteration in original) (quoting Shenandoah Publishing , 235 Va. at 259, 368 S.E.2d at 256)). 2

2 However, sequestering portions of the reco rd containing social security numbers, account numbers, and sensitive information rela tive to children are common occurrences in divorce cases.- 9 - The order sealing the record recites the trial court did so after cons ideration of husband’s motion. However, wife’s written motion to vacate the order, made a part of the record, recites that she agreed to have the record sealed because husband refused to respond to discovery requests under Rule 4:9. Husband’s written resp onse to that motion recites that, because the record was sealed, he “conducted himself accordingly” during the discovery phase and trial. Here, the information husband does not want pub licly exposed relates to certain decisions made by him during his employment. Husba nd’s undefined concern for his professional reputation does not rebut the presumpti on of openness of judi cial records. See Perreault , 276 Va. at 391-92, 666 S.E.2d at 361; Shenandoah Publishing , 235 Va. at 259, 368 S.E.2d at 256. Other states have treated the presumption of ope nness attendant to court records similarly. See Burkle v. Burkle , 37 Cal. Rptr. 3d 805, 819 (Cal. Ct. App. 2006) (“Indeed, the issues distinguishing divorce cases from other civil cases–such as psyc hological evaluations in child custody disputes and the like–are often the subject of statutory ex ceptions to the general rule of public access, in which the Legislature has alrea dy engaged in the necessary bala ncing of privacy rights and public access rights. Nothing about these exceptions contradicts the conclusion that both historical tradition and the institutional value of open proceedings mandate a presumption of openness in divorce proceedings just as in other civil cases.”); In re Berg , 886 A.2d 980 (N.H. 2005) (sealing of children’s therapy records fr om father’s view in contentious custody proceeding warranted to prot ect welfare of children); Douglas v. Douglas , 772 A.2d 316, 318 (N.H. 2001) (holding trial court “properly balanced the parties’ competing interests during an in

camera hearing and ordered the financial affida vits be made public” by ordering certain information, i.e., social s ecurity numbers, redacted); Smith v. Smith , 879 A.2d 768, 774 (N.J. Super. Ct. Ch. Div. 2004) (holding “[ t]he desire of movants to pres erve their reputations, and to prevent the dissemination of what may prove at the end of trial to be unsupported innuendo, is- 10 - entirely understandable” but insufficient to ove rcome the “strong presumption of open judicial proceedings”); Thomas v. Thomas , 991 P.2d 7, 14 (N.M. Ct. App. 1999) (holding husband’s motion to seal failed to show that wife’s “ outrageous, unsubstantiated allegations” against him constituted an “extraordinary case” wa rranting sealing entire record); In re Marriage of Treseler , 187 P.3d 773, 776 (Wash. Ct. App. 2008) (holding husband failed to show compelling need for sealing record to overcome the presumption of ope nness because “‘[j]ustice in all cases shall be administered openly’” (alteration in original ) (quoting Wash. Const. art. I, § 10)), review denied , 203 P.3d 381 (Wash. 2009). Based on the record on appeal, we conclude the trial court did not abuse its discretion when it vacated its earlier orde r sealing the entire record. V. Attorney’s Fees in the Trial Court Husband contends the trial court erred in ordering him to pay a portion of wife’s attorney’s fees and costs incurr ed by her in the trial court. However, the only basis for his argument is contained in the transcript of the December 12, 2008 hearing that was not timely filed. Rule 5A:8(a) provides that [t]he transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of the final judgment. U pon a written motion filed within 60 days after entry of the final j udgment, a judge of the Court of Appeals may extend this time for good cause shown. “If . . . 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. This Court has no authority to make exceptions to the filing requirements set out in the Rules.” Turner v. Commonwealth , 2 Va. App. 96, 99, 341 S.E.2d 400, 402 (1986).- 11 - Here, husband did not request, nor did the Court grant, an extension of time for filing the transcript of the December 12, 2008 hearing. Because the arguments raised by husband are wholly contained within the untimely-filed transcript and are indispensable to the determination of this issue, this ques tion is waived on appeal. VI. Attorney’s Fees on Appeal Wife also seeks an award of her attorn ey’s fees and costs incurred on appeal. “The rationale for the appellate court being the proper forum to determine the propriety of an awar d of attorney’s fees for efforts expended on appeal is clear. The appellate court has the opportunity to view the record in its entirety and determine whether the appeal is frivolous or whether other reasons exist for requiring additional payment.” Rice v. Rice , 49 Va. App. 192, 204, 638 S.E.2d 702, 708 (2006) (quoting O’Loughlin v. O’Loughlin , 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996)). Here, husband substantially prevailed on appeal. We find no reason to award wife attorney’s fees and costs on appeal and deny her request.
CONCLUSION For the reasons set forth above, we reverse th e trial court’s equitable distribution award, concluding that it erred in determining that the 2008 and 2009 shares of restricted Towne Bank stock were marital property. We are unable to ascertain from the record the basis on which the trial court found husband’s deposit of $37,000 into wi fe’s pre-marriage account was a “gift,” and remand for clarification as to whether the tria l court found that the transfer of the $37,000 in marital funds into the Raymond James account tr ansmuted the funds into wife’s separate property pursuant to Code § 20-107.3(A)(3)(d), or if the trial court classified the account as part of the marital estate which it “awarded” to wife . As to husband’s additional grounds of appeal,- 12 - we affirm the trial court’s judgment for the reason s stated. We deny wife’s request for attorney’s fees and costs incurred on appeal. Affirmed in part, reversed in part, and remanded.