COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Clements and Agee 

Argued at Richmond, Virginia 

YVETTE PEREZ 

 MEMORANDUM OPINION* BY 

v. Record No. 1501-01-4 JUDGE G. STEVEN AGEE 

 DECEMBER 27, 2001 

FAIRFAX COUNTY DEPARTMENT OF 

 FAMILY SERVICES 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Arthur B. Vieregg, Judge 

 Neal David Olesker for appellant. 

 Dennis R. Bates, Senior Assistant County 

Attorney (David P. Bobzien, County Attorney; 

Robert Lyndon Howell, Deputy County Attorney; 

Zaida C. Thompson, Assistant County Attorney, 

on brief), for appellee. 

 (Michael S. Arif; Martin, Arif, Petrovich & 

Walsh, on brief), Guardian ad litem for the 

minor child. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Yvette Perez appeals the Fairfax County Circuit Court's 

decision to not rule upon her motion to allow the filing of a 

late appeal. She contends the circuit court erroneously found 

it did not have jurisdiction to grant her the relief sought. 

For the following reasons, we must dismiss the appeal. 

 [O]n appeal the judgment of the lower 

court 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 

in the respect complained of. 

Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961) 

(citations omitted). Thus, the burden rests upon the appellant, 

the party alleging reversible error, to demonstrate to this 

Court "that reversal is the remedy to which he is entitled." 

Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d 857, 859 

(1992) (citation omitted). 

 "An appellate court must dispose of the case upon the 

record and cannot base its decision upon appellant's petition or 

brief, or statements of counsel in open court." Smith v. 

Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993) 

(citation omitted). Accordingly, "[w]e may act only upon facts

contained in the record" provided to us incident to an appeal. 

Id. (emphasis added). We are unable to undertake this task in 

the case at bar as the appellant has failed to provide us with a 

sufficient record in this case encompassing the issue raised on 

appeal. 

 Rule 5A:7 enumerates the requisite contents of a record on 

appeal. The record is to include "the transcript of any 

proceeding or a written statement of facts, testimony, and other 

incidents of this case." Rule 5A:7(a)(7). The appellant has 

failed to submit either of these materials. 

 The importance of the record is 

obvious, for it is axiomatic that an 

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appellate court's review of the case is 

limited to the record on appeal. The 

absence or late filing of the transcript [or 

written statement of facts], however, does 

nothing to diminish our jurisdiction. If 

the record on appeal is sufficient in the 

absence of the transcript [or written 

statement of facts] to determine the merits 

of the appellant's allegations, we are free 

to proceed to hear the case. See, e.g., 

Dominion Iron v. Vepco, 215 Va. 658, 660, 

212 S.E.2d 715, 718 (1975). . . . If, 

however, the transcript [or written 

statement of facts] is indispensable to the 

determination of the case, then the 

requirements for making the transcript [or 

written statement of facts] 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. Barrett v. Barrett, 1 Va. 

App. 378, 380, 339 S.E.2d 208, 209 (1985). 

 We must decide, therefore, whether the 

transcript [or written statement of facts] 

is necessary to the resolution of the issue 

presented in this case. If the issue can be 

decided without the transcript [or written 

statement of facts], we may proceed to do so 

in its absence. If we determine that the 

transcript [or written statement of facts] 

is indispensable and is not a part of the 

record before us for review, we must dismiss 

the appeal on the ground that the record on 

appeal is insufficient to fairly and 

accurately determine the issues presented. 

Turner v. Commonwealth, 2 Va. App. 96, 99, 341 S.E.2d 400, 402 

(1986). 

 Our review of the instant appeal clearly discloses that a 

written statement of facts, complying with Rule 5A:8(c), is 

indispensable to the determination of the issue in this case 

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and, therefore, the requirements for its inclusion in the record 

must be strictly adhered to. Id. "When the appellant fails to 

ensure that the record contains transcripts or a written 

statement of facts necessary to permit resolution of appellate 

issues, any assignments of error affected by such omission shall 

not be considered." Rule 5A:8(b); see Anderson v. Commonwealth, 

13 Va. App. 506, 508-09, 413 S.E.2d 75, 76-77 (1992). 

 For the foregoing reasons, we dismiss this appeal. 

Dismissed.

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