COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Cole man and Willis

PAUL ROBERT SERRANO MEMORANDUM OPINION * v. Record No. 09 34-00-4 PER CURIAM JULY 25, 2000 SARAH McKINL EY SERRANO

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Leslie M. Al den, Judge (Paul Robert Serrano, pro se , on briefs). (Sarah McKinley Serrano, pro se , on brief).

Paul Robert Serran o appeals from an order that the circuit judge entered foll owing a hearing on a petition to show cause for contempt. On ap peal, appellant contends that the trial judge erred by (1) ordering him to pay attorney's fees for Sarah McKinley Serrano, hi s former wife, withou t evidence of the parties' ability to pay; (2) am ending the statement of facts without notice or a hearing; (3) having a bailiff preven t him from detailing his obje ctions on the or der prior to its presentation to the judge and ther eby limiting the issues which he could raise on appeal; and (4) di sallowing appe llant's verbal char acterization of his former wife. Upon reviewing the record and briefs of the

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.- 2 - parties, we conc lude that this appeal is withou t merit. Accordingly, we summarily affirm the order. See Rule 5A:27.

I. Our standard of review is well established. Under familiar principles, we view the evidence and all reasonable inferences in the light most favorable to [wife as] the prevailing party below. "The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." We are not the fact-finders and an appeal should not be resolved on the basis of our supposition that one set of facts is more probable than another. Lutes v. Alexander , 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 (1992) (citations omitted). The record establishes that appellant's former wife filed a petition to require appellant to show cause why he should not be held in contempt for repeatedly failing to pay child support as ordered. The petition referenced an order entered January 22, 1999, which recited that "if payment of child support is not made on date due, [appellant] shall pay all attorney fees incurred by [his former wife] in Court while pursuing collection." In response, appellant denied that there was any support arrearage and referred to a November 9, 1998 order reducing the monthly child support payment from $529 to $523 as of October 1, 1998. Following a hearing, the trial judge found that no arrearage existed but that appellant had violated the- 3 - order by habitually failing to timely pay child support. By order entered January 28, 2000, the trial judge ordered appellant "to make his child support checks payable to [his former wife] and to send them directly to her in a manner calculated to arrive by the 1st day of each month." The trial judge also ordered husband to pay $200 in wife's attorney's fees.

II. An award of attorney's fees is a matter su bmitted to the sound discreti on of the trial ju dge and is review able on appeal only for an abuse of discretion. See Graves v. Graves , 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1 987). The key to a proper award of attorney's fees is reasonableness under al l the circum stances. See McGinnis v. McGinnis , 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). The trial judge fo und that appellant' s tardy payments violated the prior cour t order, which also pr ovided for an award of attorney's fees in the event appe llant failed to make timely payments. In view of the prior order's proscrip tion, the trial judge was not requ ired to receive financial inform ation from the parties prior to orderi ng appellant to pay $200 in attorney's fees. Based on the is sues involved and the amount of the award, the award was re asonable, and th e trial judge did not abuse her discretion in ma king the award.- 4 - III. A party who seek s to provide a wr itten statement in lieu of a transcript must ma il a copy of th e proposed statem ent to opposing counsel "accom panied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after su ch filing." Rule 5A:8(c). Although appellant filed a proposed written statemen t of facts on March 23, 2000, certifyi ng that a copy was mailed to his former wife's counsel, he di d not provide no tice of a time ly date of presentation. See id. When appellant's fo rmer wife filed no objections to th e written statemen t, the trial judg e corrected the proposed statement. By failing to notice a date for presenta tion of th e written statement to the tria l judge, appellant fa iled to establish prima facie compliance with the requirements of Rule 5A:8. Therefore, unless the trial judge' s action cured the defe ct, we are bound to rule that appell ant failed to ma ke the written st atement of facts a part of the re cord on appeal, see Clary v. Clary , 15 Va. App. 598, 425 S.E.2d 821 (1993) ( en banc ); cf. Proctor v. Town of Colonial Beach , 15 Va. App. 608, 42 5 S.E.2d 818 (1993) ( en banc ), and dismiss the appeal. Significantly, however, unlike the circumstances in Clary , the trial judge co rrected an d signed appellant's prop osed written st atement.- 5 - Although appellant complains that the tr ial judge fa iled to provide notice and hold a hearing prio r to making th e corrections, appellant may not be heard to complain th at the trial judge erred by correcting and signing the proposed statement. "The burden is upon the appellant to provide us with a record which substantiates the claim of error. In the absence thereof, we will not consider the point." Jenkins v. Winchester Dep't of
Soc. Servs. , 12 Va. App. 1178, 1185, 409 S.E.2d 16, 20 (1991). But for the tria l judge's certif ication, the wr itten statement would not be included in the record because husband failed to comply with Rule 5A:8(c) in making the written statement a part of the record. Rule 5A:8(d) authorizes the trial judge to "make any corrections that [she] deems necess ary" in th e proposed written statemen t of facts. "The ju dge's signat ure on a transcript or wr itten statemen t, without more, shall constitute [her] certificat ion that the procedural re quirements of this Rule 5A:8 have been satisfied." Rule 5A:8(d). Therefore, we hold that appellant's challenge to the written statement of facts lacks merit. Appellant has requested this Court to accept his unmodified written statement of facts or to refer the statement back to the trial court. For the reasons stated above, we find no error in the trial judge's modification of the written statement of facts. We therefore deny the motion.- 6 - IV. Appellant cont ends he was pr evented by the bailiff from detailing his obje ctions to the or der prior to its presentation to the judge, hampering hi s ability to preserve his object ions on appeal. The order incl udes a handwritten stat ement that "Bailiff prevented me from completing this." The re cord contains no other support for appell ant's allegati ons. Indeed , appellant' s proposed statement of facts cont ains no refere nce to this co mplaint. Timely objections to a court's order ma y be preserved in a number of ways, of which handwritin g objections on the face of the order is only one option. See Lee v. Lee , 12 Va. App. 512, 515-16, 404 S. E.2d 736, 73 8 (1991) ( en banc ). For ex ample, a party may prepare a separate docume nt containing ob jections to be included in the record or file a motion for reconsid eration. Thus, assuming arguendo that the record su pported ap pellant's allegations th at he was impede d in his effort to list all his objections at th e time the order was presented to the trial judge, he retained other mean s by which he could pr eserve his exceptions to the order. We fi nd no indication he exhausted th ese other alternatives, and we further note that appellant did not include in his brief to this Court a statemen t of any object ions he was prevented from includin g on the order. Ther efore, we find no merit in this contention.- 7 - V. Appellant alleges that the trial judge erred by not allowing him to characterize his wife as "crazy." Nothing in the statement of facts suggests that the trial judge made such a ruling or, if she did, the context in which such a ruling was made. Moreover, the trial judge clearly has the discretionary authority to determine the conduct of the trial. See Justus v. Commonwealth , 222 Va. 667, 676, 283 S.E.2d 905, 910 (1981). Appellant's claim that the trial judge committed reversible error by refusing to allow him to use the word "crazy" to characterize another person lacks merit. Finally, appellant filed a motion seeking an extension of time to include an additional document in the appendix. He has failed to demonstrate that the document is relevant to the matters raised in his appeal. See Rule 5A:25(g). On our review, we have access to all documents that are part of the record of the case. Therefore, the motion is denied. Accordingly, the order of th e circuit court is summarily affirmed. Affirmed.