COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Senior Judge Overton Argued at Chesapeake, Virginia

MARK ANTHONY GRETHEN MEMORANDUM OPINION * BY v. Record No. 3244-03-1 JUDGE ROBERT P. FRANK FEBRUARY 15, 2005 SANDRA LYNN GRETHEN

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Rodham T. Delk, Jr., Judge Mark Anthony Grethen, pro se . Sandra Lynn Kincaid, pro se.
Mark Anthony Grethen, husband, appeals th e final decree in a divorce action brought by Sandra Lynn Grethen, wife. On appeal, he noted a total of fifteen questions presented. Questions presented numbers 1, 3, 5 and 7 1 can be reduced to a si ngle issue, i.e., whethe r the trial court erred in not appointing a committee pursuant to Code §§ 53.1-221 to 53.1- 228.1. As e xplained herein, the remaining issues are procedurally defaulted. Because hu sband was a prison er and was entitled to a committee before the trial court awarded a distribution of property, we reverse and remand the portion of the decree distributin g the property of the parties.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 1. “Defendant was entitled to the appointment of a committee.” 3. “Failure to appoint a committee, directly or through a guardian ad litem , is both due process and jurisdictional defect.” 5. “Requirements of ‘Estate of Prisone rs’ codes are mandatory and jurisdictional.” 7. “Equitable distribution of prisoner’s estate can not occur prior to the appointment of committee (proper party).”- 2 - BACKGROUND Husband and wife had been married sin ce 1982 and had five children. In 2001, husband was convicted of six felonies, two of which involve d sexual assault of two of his minor children. He received a total sentence of twenty-six years. While husband was incarcerated for his fel ony convictions, wife filed a divorce suit against him. Wife filed a “Peti tion for Appointment of Guardian Ad Litem ,” seeking to appoint husband’s mother as guardian ad litem . The court so ordered. Husband separately filed a “Motion for Appointment of Guardian Ad Litem , Committee, or Conservator.” The court revoked its previous order and appoin ted a series of other guardians ad litem who represented husband throughout the litigation. Wi fe was represented by counsel. Husband then moved the court to dismiss the case. He argued in a “Memorandum of Law” that failing to appoint a committee prior to a monetary award violates Code § 53.1-223. The court denied husband’s motion to dismiss. The trial court entered a final decree of divorce on November 17, 2003 granting wife a divorce and custody of the children. As for the equitable distribution, the court awarded three parcels of real estate to wife. Husband’s guardian ad litem endorsed the final decree “Seen.” Husband noted his appeal. He filed no tran script or statement of facts as required by Rule 5A:8(C). His appendix contained none of th e pleadings, orders, te stimony or incidents of trial for the divorce action, as required by Rule 5A:25. With the exception of the committee issue, appellant did not properly refer to “the page (s) of the transcript, written statement, record or appendix where each question was preserved in the trial court” in violation of Rule 5A:20(C).- 3 - ANALYSIS On appeal, husband contends the trial court erred in not appointing a committee to protect his interests. He further mainta ins the appointment of a guardian ad litem was insufficient to satisfy the requirements of Code § 53.1-223. 2 “[W]e review the trial court’s statutor y interpretations and legal conclusions de novo .”
Navas v. Navas , 43 Va. App. 484, 487, 599 S.E.2d 479, 480 (2004) (citing Sink v. Commonwealth , 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)). Code § 53.1-223 provides: No action or suit on any claim or demand, except suits for divorce, actions to establish a parent and child relationship between a child and a prisoner and actions to esta blish a prisoner’s child support obligation, shall be instituted ag ainst a prisoner after judgment of conviction and while he is in carcerated, except through his committee. However, in any suit for divorce instituted against a prisoner, the court shall appoi nt a committee prior to any determination as to the propert y of the partie s under § 20-107.3. “A primary rule of statutory construction is that courts must look first to the language of the statute. If a statute is clear and unambiguous, a court will give the stat ute its plain meaning.” Loudoun County Dep’t of Social Servs. v. Etzold , 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993). “Generally, the words and phrases used in a statute should be gi ven their ordinary and usually accepted meaning unless a different intention is fairly manifest.” Woolfolk v. Commonwealth , 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994). By its clear terms, Code § 53.1-223 does not require the appointment of a committee for prisoners in divorce suits, unle ss there is a determination as to property under Code § 20-107.3. In the instant case, there was su ch a determination of property. The trial court awarded three parcels of real estate to wi fe as her monetary award. No committee had been appointed.

2 The Motion for Appointment of Comm ittee clearly preserves this issue.- 4 - We agree with husband that the appointment of a guardian ad litem 3 does not satisfy the mandate of § 53.1-223 since a committee’s responsibi lities toward a pris oner’s estate go beyond the particular litigation. The prisoner’s estate, both real a nd personal, is committed to the committee. Code § 53.1-221(A). The committee “shall allow . . . a sufficient maintenance . . . for the prisoner’s spouse and family . . . .” Code § 53.1-224. The committee must post a bond and be subject to the provisions of Title 26 [F iduciaries Generally]. Code § 53.1-221(C). The committee may sue and be sued. Code § 53.1-222. The property of the prisoner passes to the committee. Merchant’s Administrator v. Shry , 116 Va. 437, 442, 82 S.E. 106, 108 (1914). We thus conclude the co mmittee’s responsibilities are ongoing, beyond representing the prisoner in the civil ac tion whereas a guardian ad litem’s role is limited to the particular litigation. The language of Code §§ 53.1-221 through 53.1-224 is clear. A committee, not a guardian ad litem , must be appointed. If the legi slature had intended that a guardian ad litem would satisfy the requirements of Code §§ 53.1-221 through 53.1-228.1, it would have so indicated. Because of the substantial difference in the roles of a committee and that of a guardian ad litem , and the clear, express language of the statute, we will not, nor can we, by an act of interpretation, add “guardian ad litem ” to Code §§ 53.1-221 through 53.1-228.1.

3 Code § 8.01-9(A) in pert inent part states: A suit wherein a person under a disab ility is a party defendant shall not be stayed because of such disa bility, but the court in which the suit is pending, or the clerk thereo f, shall appoint a discreet and competent attorney-at-law as guard ian ad litem to such defendant, whether the defendant has been se rved with process or not. “A person convicted of a felony during the pe riod he is confined” is a “person under a disability.” Code § 8.01-2(6).- 5 - Husband also contends that a committee mu st be appointed prio r to the commencement of the divorce suit. We disagree. Husband mi sreads the last sentence of Code § 53.1-223, which requires the appointment of a comm ittee “prior to any determinati on as to the property . . . .” “‘Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holdi ng the legislature did not mean what it has actually expressed.’” Tazew ell County Sch. Bd. v. Brown , 267 Va. 150, 162, 591 S.E.2d 671, 676-77 (2004) (citation omitted). The Virginia Supreme Court has long held that “when analyzing a statute, we must assume that ‘the legislature chose, with care , the words it used . . . and we are bound by those words as we interpret the statute.’” City of Virginia Beach v. ESG Enters. , 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (quoting Barr v. Town and Country Properties , 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990)). Black’s Law Dictionary defines “prior” as “preceding in time or order.” Black’s Law Dictionary 1212 (7th ed. 1999). By the clear language of the statute, there is no require ment that the committee be appointed prior to the institution of the divorce action. Indeed, if there were no equitable distribution award, no committ ee would be required at all in a divorce action. We conclude that the trial court erred in not appointing a committee for husband prior to the equitable distribution de termination. The guardian ad litem representing appellant did not satisfy the mandates of Code §§ 53.1-221 to 53.1-228.1. 4

4 Appointment of a committee for a convict to defend a civil suit is a procedural requirement that can be waived. Dunn v. Terry , 216 Va. 234, 239, 217 S.E.2d 849, 854 (1975). The record reflects no specific waiver of the statut e requirement. In fact, appellant asked for the appointment of a committee.- 6 - DEFAULTED ISSUES Husband raises addition al issues on appeal. 5 They are all procedurally defaulted. Husband filed no transcript or written statement of facts as required by Rule 5A:8. While the absence of the transcript or statement of facts does not always depriv e this Court of jurisd iction, the Court will consider only those issues that ma y be decided without reference to a transcript or statement of facts. Because the judgment of the court below is presumed to be correct, the onus is upon the appe llant to provide the reviewing court with a sufficient record fr om which it can be determined whether the trial court erred as the appellant alleges. If an insufficient record is furnished, the judgment appealed from will be affirmed. White v. Morano , 249 Va. 27, 30, 452 S.E.2d 856, 858 (19 95) (citing Woods v. R. D. Hunt & Son,
Inc. , 207 Va. 281, 287, 148 S. E.2d 779, 783 (1966)). When a transcript is indispen sable to the determina tion of an issue, the absence thereof in the record is a jurisdictiona l defect and requires dism issal of the claim. See Goodpasture v. Goodpasture , 7 Va. App. 55, 57, 371 S.E.2d 845, 846 (1988) (holding th at the trial co urt’s opinion letter and order, along with othe r documents contained in the reco rd, sufficiently set forth the necessary facts to determine the is sues on appeal). He re, we cannot resolve the remaining issues without a transcript or writte n statement of facts. See Patterson v. City of Richmond , 39 Va. App.

5 2. “Plaintiff and family were entitl ed to support through defendant’s estate.”

4. “Defendant’s guardians ad litem were not knowledgeable of their duties.” 6. “Mandatory and jurisdictional ‘Estate of Prisoners’ code also protect others.” 8. “Appointment of unqualified parties as guardian ad litem violates the due process clause . . . .” 9. “Timely notice is required of all courts to all affected parties.” 10. “Delays in action on motions before the court can result in prejudice.” 11. “Duties of guardian ad litem exceed the scope of Code § 8.01-9.” 12. “Court has other means to award fees to guardian ad litem .” 13. “Untimely notice to ex parte vi olations can result in prejudice.” 14. “Business matters, when owned by divorcing parties, should be heard.” 15. “Social security numbers should not be contained within court documents.”- 7 - 706, 717, 576 S.E.2d 759, 765 (2003) (“Because the appendi x filed in this case does not contain parts of the record that are essen tial to the resolution of the issue before us, we w ill not decide the issue.”). Further, “[w]e will not search the record for errors in order to interpret the appellant’s contention and correct deficiencies in a brief.” Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Because of the lack of a transcript or wr itten statement, we cannot determine whether these issues were preserved purs uant to Rule 5A :18. We conclu de that Rule 5A:18 bars our consider ation of those issues.
CONCLUSION Finding husband was entitle d to the appointment of a committee for the equitable distribution component of the divorc e action, but not for th e divorce itself, we reverse the portion of the decree distributing the property of the par ties and remand for the tr ial court to appoint a committee for husband and determine any marital award under Code § 20-107. 3. All other aspects of the divorce decree remain in effect. Reversed and remanded.