assigned error in Virginia

2020“To satisfy the rule, ‘an objection must be made . . . at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.’” Scialdone v. Commonwealth, 279 Va. 422 , 437 (2010) (quoting Johnson v. Raviotta, 264 Va. 27, 22 (2002)). “[T]his Court has consistently focused on whether the trial court had the opportunity to rule intelligently on the assigned error.” Brandon v. Cox, 284 Va. 251, 255 (2012) (citing Scialdone, 279 Va. at 437 ).

2014“To satisfy the rule, ‘an objection must be made . . . at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.’” Scialdone v. Commonwealth, 279 Va. 422 , 437, 689 S.E.2d 716, 724 (2010) (quoting Johnson v. Raviotta, 264 Va. 27, 33 , 563 S.E.2d 727, 731 (2002)). “[T]his Court has consistently focused on whether the trial court had the opportunity to rule intelligently on the assigned error.” Brandon v. Cox, 284 Va. 251, 255 , 736 S.E.2d 695 , 696 (2012) (citing Scialdone, 279 Va. at 437, 6

2016Although this Court reviews judgments involving visitation and custody under an abuse of discretion standard, see O’Rourke v. Vuturo, 49 Va. App. 139, 151 , 638 S.E.2d 124, 129 (2006), where, as here, “the assigned error presents only a question of law, we will review the circuit court’s ruling de novo.” Johnston Memorial Hospital v. Bazemore, 277 Va. 308, 311 , 672 S.E.2d 858, 859-60 (2009).

2016Although this Court reviews judgments involving visitation and custody under an abuse of discretion standard, see O’Rourke v. Vuturo, 49 Va. App. 139, 151 , 638 S.E.2d 124, 129 (2006), where, as here, “the assigned error presents only a question of law, we will review the circuit court’s ruling de novo.” Johnston Memorial Hospital v. Bazemore, 277 Va. 308, 311 , 672 S.E.2d 858, 859-60 (2009).

2016Although this Court reviews judgments involving visitation and custody under an abuse of discretion standard, see O’Rourke v. Vuturo, 49 Va. App. 139, 151 , 638 S.E.2d 124, 129 (2006), where, as here, “the assigned error presents only a question of law, we will review the circuit court’s ruling de novo.” Johnston Memorial Hospital v. Bazemore, 277 Va. 308, 311 , 672 S.E.2d 858, 859-60 (2009).

2016Although this Court reviews judgments involving visitation and custody under an abuse of discretion standard, see O’Rourke v. Vuturo, 49 Va. App. 139, 151 , 638 S.E.2d 124, 129 (2006), where, as here, “the assigned error presents only a question of law, we will review the circuit court’s ruling de novo.” Johnston Memorial Hospital v. Bazemore, 277 Va. 308, 311 , 672 S.E.2d 858, 859-60 (2009).

2014“To satisfy the rule, ‘an objection must be made . . . at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.’” Scialdone v. Commonwealth, 279 Va. 422 , 437, 689 S.E.2d 716, 724 (2010) (quoting Johnson v. Raviotta, 264 Va. 27, 33 , 563 S.E.2d 727, 731 (2002)). “[T]his Court has consistently focused on whether the trial court had the opportunity to rule intelligently on the assigned error.” Brandon v. Cox, 284 Va. 251, 255 , 736 S.E.2d 695 , 696 (2012) (citing Scialdone, 279 Va. at 437, 6

2014“To satisfy the rule, ‘an objection must be made . . . at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.’” Scialdone v. Commonwealth, 279 Va. 422 , 437, 689 S.E.2d 716, 724 (2010) (quoting Johnson v. Raviotta, 264 Va. 27, 33 , 563 S.E.2d 727, 731 (2002)). “[T]his Court has consistently focused on whether the trial court had the opportunity to rule intelligently on the assigned error.” Brandon v. Cox, 284 Va. 251, 255 , 736 S.E.2d 695 , 696 (2012) (citing Scialdone, 279 Va. at 437, 6

2020“To satisfy the rule, ‘an objection must be made . . . at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.’” Scialdone v. Commonwealth, 279 Va. 422 , 437 (2010) (quoting Johnson v. Raviotta, 264 Va. 27, 22 (2002)). “[T]his Court has consistently focused on whether the trial court had the opportunity to rule intelligently on the assigned error.” Brandon v. Cox, 284 Va. 251, 255 (2012) (citing Scialdone, 279 Va. at 437 ).

2014“To satisfy the rule, ‘an objection must be made . . . at a point in the proceeding when the trial court is in a position, not only to consider the asserted error, but also to rectify the effect of the asserted error.’” Scialdone v. Commonwealth, 279 Va. 422 , 437, 689 S.E.2d 716, 724 (2010) (quoting Johnson v. Raviotta, 264 Va. 27, 33 , 563 S.E.2d 727, 731 (2002)). “[T]his Court has consistently focused on whether the trial court had the opportunity to rule intelligently on the assigned error.” Brandon v. Cox, 284 Va. 251, 255 , 736 S.E.2d 695 , 696 (2012) (citing Scialdone, 279 Va. at 437, 6

2026See, e.g., Gibson v. Commonwealth, 276 Va. 176, 180-81 (2008) - 13 - (holding that the issue presented in the appellant’s assignment of error “is not properly before [the Court] because the record reflects no ruling of the trial court” alleged by the appellant; the “assignment of error [was] based upon a faulty premise concerning what actually transpired in the trial court”). b.

2025Whether to grant such relief depends on the movant’s “ability to point out some error on the face of the record, or to show some legal excuse for his failure to present his full defense.” Id. (quoting Downing v. Huston, Darbee Co., 149 Va. 1, 9 (1927)).

2025As for the assigned error—whether the trial court erred in not considering “additional evidence . . . after trial”—the trial court did not abuse its discretion in denying wife’s motion to reconsider.3 Although the trial court did not provide its rationale for declining wife’s request, “it is an appellate court’s function to presume that the trial court made the requisite findings of fact to support its decision.” Commonwealth v. Holland, ___ Va. ___, ___ (Jan. 16, 2025). “[M]otions to reopen an evidentiary record or to reconsider a prior ruling involve matters wholly in the discretion of the t

2025Whether to grant such relief depends on the movant’s “ability to point out some error on the face of the record, or to show some legal excuse for his failure to present his full defense.” Id. (quoting Downing v. Huston, Darbee Co., 149 Va. 1, 9 (1927)).

2024Since, “on appeal, ‘we presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without evidence to support it,’” Stevens v. Commonwealth, 46 Va. App. 234, 248 (2005) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)), unless the majority found that no rational factfinder could have reached the conclusion in this case, “the jury’s verdict cannot be overturned on appeal,” id.

2024Since, “on appeal, ‘we presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without evidence to support it,’” Stevens v. Commonwealth, 46 Va. App. 234, 248 (2005) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)), unless the majority found that no rational factfinder could have reached the conclusion in this case, “the jury’s verdict cannot be overturned on appeal,” id.

2024See Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017) (“[W]here a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.” (quoting Sneed v. Bd. of Pro.

2024Since, “on appeal, ‘we presume the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without evidence to support it,’” Stevens v. Commonwealth, 46 Va. App. 234, 248 (2005) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)), unless the majority found that no rational factfinder could have reached the conclusion in this case, “the jury’s verdict cannot be overturned on appeal,” id.

2017Here, the appellant’s assignment of error expressly references only “subject matter jurisdiction.” As discussed in greater detail below, “there is a significant difference between subject matter jurisdiction and . . . other ‘jurisdictional’ elements.” Porter v. Commonwealth, 276 Va. 203, 228 , 661 S.E.2d 415, 426 (2008) (quoting Morrison v. Bestler, 239 Va. 166, 169 , 387 S.E.2d 753, 755 (1990)).

2017Here, the appellant’s assignment of error expressly references only “subject matter jurisdiction.” As discussed in greater detail below, “there is a significant difference between subject matter jurisdiction and . . . other ‘jurisdictional’ elements.” Porter v. Commonwealth, 276 Va. 203, 228 , 661 S.E.2d 415, 426 (2008) (quoting Morrison v. Bestler, 239 Va. 166, 169 , 387 S.E.2d 753, 755 (1990)).

2017Park Assocs., 244 Va. 99, 105 , 418 S.E.2d 874, 878 (1992) (declining under the Supreme Court’s similar Rule -3- 5:17(c)(1) to consider the appellant’s argument because it was “not within the scope of the assigned error”), cited with approval in Woodard v. Commonwealth, 287 Va. 276 , 280-81, 754 S.E.2d 309 , 312 (2014).

2017Park Assocs., 244 Va. 99, 105 , 418 S.E.2d 874, 878 (1992) (declining under the Supreme Court’s similar Rule -3- 5:17(c)(1) to consider the appellant’s argument because it was “not within the scope of the assigned error”), cited with approval in Woodard v. Commonwealth, 287 Va. 276 , 280-81, 754 S.E.2d 309 , 312 (2014).

2017Here, the appellant’s assignment of error expressly references only “subject matter jurisdiction.” As discussed in greater detail below, “there is a significant difference between subject matter jurisdiction and . . . other ‘jurisdictional’ elements.” Porter v. Commonwealth, 276 Va. 203, 228 , 661 S.E.2d 415, 426 (2008) (quoting Morrison v. Bestler, 239 Va. 166, 169 , 387 S.E.2d 753, 755 (1990)).

2017Here, the appellant’s assignment of error expressly references only “subject matter jurisdiction.” As discussed in greater detail below, “there is a significant difference between subject matter jurisdiction and . . . other ‘jurisdictional’ elements.” Porter v. Commonwealth, 276 Va. 203, 228 , 661 S.E.2d 415, 426 (2008) (quoting Morrison v. Bestler, 239 Va. 166, 169 , 387 S.E.2d 753, 755 (1990)).

2014Aubrey Huffman & Assocs., Ltd., 237 Va. 340, 345-47 , 377 S.E.2d 615, 619-20 (1989) (new trial on damages when the circuit court's error precluded the prejudiced party from presenting evidence pertaining to damages). 26 S.E.2d 325 , 328, 332 (2000); see Yarbrough v. Commonwealth, 258 Va. 347, 361 , 519 S.E.2d 602, 608 (1999) (recognizing that a circuit court has "inherent [judicial] authority to administer cases on its docket").

2014Aubrey Huffman & Assocs., Ltd., 237 Va. 340, 345-47 , 377 S.E.2d 615, 619-20 (1989) (new trial on damages when the circuit court's error precluded the prejudiced party from presenting evidence pertaining to damages). 26 S.E.2d 325 , 328, 332 (2000); see Yarbrough v. Commonwealth, 258 Va. 347, 361 , 519 S.E.2d 602, 608 (1999) (recognizing that a circuit court has "inherent [judicial] authority to administer cases on its docket").

2014The defendant must make the motion for mistrial before the jury retires or it "is untimely and properly refused." Cheng v. Commonwealth, 240 Va. 26, 39 , 393 S.E.2d 599, 606 (1990). 11 We have also specifically required an appellant who objects to an allegedly improper statement to do more than merely state his objection.

2014The defendant must make the motion for mistrial before the jury retires or it "is untimely and properly refused." Cheng v. Commonwealth, 240 Va. 26, 39 , 393 S.E.2d 599, 606 (1990). 11 We have also specifically required an appellant who objects to an allegedly improper statement to do more than merely state his objection.

2014Further, it is well-established that the Court will not consider a defendant's "assignments of error alleging that improper remarks were made by the prosecutor" unless he "has made a timely motion for a cautionary instruction or for a mistrial." Schmitt v. Commonwealth, 262 Va. 127, 148 , 547 S.E.2d 186, 200 (2001); see also Blount v. Commonwealth, 213 Va. 807, 811 , 195 S.E.2d 693, 696 (1973)(refusing to reach the assigned error because the defendant "did not ask that a cautionary admonition be given directing the jury to disregard [an] allegedly improper [remark in closing] argument, nor did

2014Further, it is well-established that the Court will not consider a defendant's "assignments of error alleging that improper remarks were made by the prosecutor" unless he "has made a timely motion for a cautionary instruction or for a mistrial." Schmitt v. Commonwealth, 262 Va. 127, 148 , 547 S.E.2d 186, 200 (2001); see also Blount v. Commonwealth, 213 Va. 807, 811 , 195 S.E.2d 693, 696 (1973)(refusing to reach the assigned error because the defendant "did not ask that a cautionary admonition be given directing the jury to disregard [an] allegedly improper [remark in closing] argument, nor did

2014Further, it is well-established that the Court will not consider a defendant's "assignments of error alleging that improper remarks were made by the prosecutor" unless he "has made a timely motion for a cautionary instruction or for a mistrial." Schmitt v. Commonwealth, 262 Va. 127, 148 , 547 S.E.2d 186, 200 (2001); see also Blount v. Commonwealth, 213 Va. 807, 811 , 195 S.E.2d 693, 696 (1973)(refusing to reach the assigned error because the defendant "did not ask that a cautionary admonition be given directing the jury to disregard [an] allegedly improper [remark in closing] argument, nor did

2014Further, it is well-established that the Court will not consider a defendant's "assignments of error alleging that improper remarks were made by the prosecutor" unless he "has made a timely motion for a cautionary instruction or for a mistrial." Schmitt v. Commonwealth, 262 Va. 127, 148 , 547 S.E.2d 186, 200 (2001); see also Blount v. Commonwealth, 213 Va. 807, 811 , 195 S.E.2d 693, 696 (1973)(refusing to reach the assigned error because the defendant "did not ask that a cautionary admonition be given directing the jury to disregard [an] allegedly improper [remark in closing] argument, nor did

2014See, e.g., Velocity Express Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 203 , 585 S.E.2d 557, 566 (2003) (new trial on damages when an assigned error pertained to an aspect of the trial which prejudiced only the damages calculation); Spainhour v. B.

2014See, e.g., Velocity Express Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 203 , 585 S.E.2d 557, 566 (2003) (new trial on damages when an assigned error pertained to an aspect of the trial which prejudiced only the damages calculation); Spainhour v. B.

2014Aubrey Huffman & Assocs., Ltd., 237 Va. 340, 345-47 , 377 S.E.2d 615, 619-20 (1989) (new trial on damages when the circuit court's error precluded the prejudiced party from presenting evidence pertaining to damages). 26 S.E.2d 325 , 328, 332 (2000); see Yarbrough v. Commonwealth, 258 Va. 347, 361 , 519 S.E.2d 602, 608 (1999) (recognizing that a circuit court has "inherent [judicial] authority to administer cases on its docket").

2014Aubrey Huffman & Assocs., Ltd., 237 Va. 340, 345-47 , 377 S.E.2d 615, 619-20 (1989) (new trial on damages when the circuit court's error precluded the prejudiced party from presenting evidence pertaining to damages). 26 S.E.2d 325 , 328, 332 (2000); see Yarbrough v. Commonwealth, 258 Va. 347, 361 , 519 S.E.2d 602, 608 (1999) (recognizing that a circuit court has "inherent [judicial] authority to administer cases on its docket").

2010Moreover, while the appendix should generally contain everything relevant to the questions presented, “[t]he Court of Appeals may ... consider other parts of the record.” Rule 5A:25(h); see also Tjan v. Commonwealth, 46 Va.App. 698 , 704 n. 2, 621 S.E.2d 669 , 672 n. 2 (2005).

2010Moreover, while the appendix should generally contain everything relevant to the questions presented, “[t]he Court of Appeals may ... consider other parts of the record.” Rule 5A:25(h); see also Tjan v. Commonwealth, 46 Va.App. 698 , 704 n. 2, 621 S.E.2d 669 , 672 n. 2 (2005).