ARMSTRONG, J.
¶1 Jerry Kilb alleges his employer discharged him for refusing to fire pro-union employees and pursue other anti-union tactics. Kilb sued in state court for wrongful discharge in contravention of Washington State public policy. The trial court dismissed his claim for lack of subject matter jurisdiction on the grounds that his claim was preempted by the National Labor Relations Act (Act), 29 U.S.C. §§ 151- 169, under San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). On appeal, Kilb argues that (1) as a supervisor he is not covered under the Act, (2) his state claim is distinct from that which he could bring under the Act, and (3) both recognized exceptions to Garmon apply and preclude preemption. Because Kilb's claim is essentially the same claim he could make under the Act, and neither Garmon exception applies, the trial court did not err in dismissing Kilb's claim; therefore we affirm.
FACTS
Because the case has not been litigated, we take the facts from Kilb's complaint. The respondent acknowledges Kilb's "allegations" for the purposes of addressing the jurisdiction issue.
¶2 In 2005, Jerry Kilb began working for First Student, managing First Student's Gresham, Oregon bus routes.
Respondents First Student Transportation, LLC; First Student, Inc.; and Firstgroup America, Inc., are collectively referred to as "First Student."
¶3 Kilb alleges that starting in 2006, management at First Student had concerns that its company bus drivers would unionize. Management became aware that national labor unions were specifically targeting bus drivers at the Gresham location. Kilb claims his superiors told him the company needed to take affirmative action to prevent the drivers from unionizing.
¶4 In 2007, the Gresham bus drivers voted on whether to unionize. The vote fell short of the number necessary to unionize. Following the vote, Kilb alleges that management presented him with a list of drivers perceived to be pro-union and instructed him to fire them as soon as possible. Kilb did not fire any of these drivers, and in October 2007, First Student terminated his employment. Kilb maintains he was fired for "refusing to commit the illegal acts of terminating pro-union employees and for not following the First Student management's directives regarding leading the anti-union efforts in the Gresham branch." Clerk's Papers at 6.
¶5 Kilb sued in Clark County Superior Court for wrongful discharge in violation of Washington State law. RCW 49.36.010; RCW 49.32.020. Kilb claimed his discharge violated the right of employees to organize and form unions, RCW 49.36.010, in contravention of Washington State's clearly established public policy against interfering with these rights, RCW 49.32.020. First Student moved to dismiss for lack of subject matter jurisdiction under CR 12(b)(1). First Student argued that Kilb's claim was preempted by federal law under the Garmon preemption doctrine. The trial court granted the motion and dismissed the case.
Kilb filed his claim in state court on June 27, 2008, eight months after his termination. Generally, a claim of unfair labor practices under the Act must be filed and served within six months after the date of the alleged statutory violation. Kelley v. Nat'l Labor Relations Bd., 79 F.3d 1238, 1244 (1st Cir. 1996).
ANALYSIS I. STANDARD OF REVIEW
¶6 Whether a trial court has subject matter jurisdiction is a question of law that we review de novo. Young v. Clark, 149 Wn.2d 130, 132, 65 P.3d 1192 (2003).
II. THE GARMON PREEMPTION DOCTRINE
¶7 In the Act, Congress centralized the administration of its labor policies by creating the National Labor Relations Board (Board) and giving it broad authority. Hume v. Am. Disposal Co., 124 Wn.2d 656, 663, 880 P.2d 988 (1994). The Act preempts a state law claim that is based on conduct arguably subject to sections 7 or 8 of the Act. Garmon, 359 U.S. at 244-45; Beaman v. Yakima Valley Disposal, Inc., 116 Wn.2d 697, 704, 807 P.2d 849 (1991). Section 7 of the Act guarantees the right of employees to organize and collectively bargain. 29 U.S.C. § 157. Section 8 prohibits employer interference with employees engaging in activities protected under section 7. 29 U.S.C. § 158(a)(1). To be preempted, a cause of action need only be "potentially subject to" sections 7 or 8 of the Act. Beaman, 116 Wn.2d at 704. The party asserting preemption must put forth sufficient evidence for the court to conclude that the conduct at issue is potentially subject to the Act. Int'l Longshoremen's Ass'n v. Davis, 476 U.S. 380, 396, 106 S. Ct. 1904, 90 L. Ed. 2d 389 (1986).
III. COVERAGE UNDER THE ACT
¶8 Kilb argues the trial court erred in dismissing his complaint. He claims that only employees, not supervisors, are protected under section 7 of the Act and are eligible to pursue administrative remedies before the Board. First Student responds that although a supervisor is not an "employee" as the Act defined it, Kilb's allegations of unfair labor practices are subject to the Board's exclusive jurisdiction.
¶9 Under the Act, supervisors are explicitly excluded from the definition of "employee." 29 U.S.C. § 152(3). Since section 7 details employees' rights, supervisors are not entitled to its protections. See Hotel Employees Rest. Employees, Local 8 v. Jensen, 51 Wn. App. 676, 685, 754 P.2d 1277 (1988). This allows an employer to insist on the loyalty of his supervisors and prevents a supervisor from engaging in protected employee activities, such as organizing and collective bargaining. Auto. Salesmen's Union Local 1095 v. Nat'l Labor Relations Bd., 229 U.S. App. D.C. 105, 711 F.2d 383, 386 (1983). There are, however, exceptions to the exclusion of supervisors under the Act. For example, where a supervisor is disciplined for refusing to commit an unfair labor practice, the employer's conduct violates section 8(a)(1) of the Act. Parker-Robb Chevrolet, Inc., 262 N.L.R.B. 402, 403 (1982), petition denied, Auto. Salesmen's Union Local 1095 v. NLRB, 111 F.2d 383. The underlying theory is that an employer who forces supervisors to engage in unfair labor practices necessarily interferes with employees' section 7 rights. Gerry's Cash Mkts., Inc. v. Nat'l Labor Relations Bd, 602 F.2d 1021, 1023 (1st Cir. 1979); see also Davis, 476 U.S. at 384 n. 4.
A number of federal circuit courts have adopted this rule. See, e.g., Russell Stover Candies, Inc. v. Nat'l Labor Relations Bd., 551 F.2d 204, 206 (8th Cir. 1977); Belcher Towing Co. v. Nat'l Labor Relations Bd., 614 F.2d 88, 91 (5th Cir. 1980); Nat'l Labor Relations Bd. v. Advertisers Mfg. Co., 823 F.2d 1086 (7th Cir. 1987); Nat'l Labor Relations Bd. v. Oakes Mach. Corp., 897 F.2d 84, 89 (2d Cir. 1990); USF Red Star, Inc. v. Nat'l Labor Relations Bd., 230 F.3d 102, 106 (4th Cir. 2000).
In his reply brief, Kilb argues that First Student has the burden of showing that his discharge directly interfered with the employees' rights. Under the case Kilb cites, Local 1095, 711 F.2d at 387-88, there is a distinction between cases where a supervisor's discharge is part of a "pattern of conduct" aimed at discouraging employees from exercising their rights and cases where a supervisor is discharged for refusing to commit unfair labor practices. See also Parker-Robb, 262 N.L.R.B. at 403. The Local 1095 court declined to extend a supervisor protection under the "pattern of conduct" theory where there is no direct evidence of employer interference with employees' rights. Local 1095, 711 F.2d at 387-88. But the court affirmed that the discharge of a supervisor for refusing to commit unfair labor practices directly interferes with the exercise of employees' section 7 rights. Local 1095, 711 F.2d at 387.
¶10 Kilb correctly argues that coverage under the Act depends on a party's status under Washington law. In Hotel Employees, Division One of our court held that only employers, employees, and labor organizations are subject to the Act. Hotel Employees, 51 Wn. App. at 686. But the court qualified this rule, noting that courts strain to find board jurisdiction in cases involving unfair labor practices even where it is unclear that all the parties are subject to the Act. Hotel Employees, 51 Wn. App. at 686-87 (holding that the definition of "employer" encompassed those who act in concert with an employer to commit an unfair labor practice). In justifying a departure from the general rule, the court acknowledged two United States Supreme Court cases where a state claim brought by a supervisor was preempted on the theory that harm to the supervisor directly affected employees covered by the Act. Hotel Employees, 51 Wn. App. at 687-88 (citing Local 962, Int'l Union of Operating Eng'rs v. Jones, 460 U.S. 669, 103 S. Ct. 1453, 75 L. Ed. 2d 368 (1983); Local 207, Int'l Ass'n of Bridge, Structural Ornamental Iron Workers Union v. Perko, 373 U.S. 701, 83 S. Ct. 1429, 10 L. Ed. 2d 646 (1963)). The court reasoned that preemption of claims involving unfair labor practices — even in cases where determining the parties' status is difficult — is consistent with policy in favor of developing uniform national labor standards. Hotel Employees, 51 Wn. App. at 689-90. We agree that while the party's status is unquestionably material to the determining preemption under the Act, there are circumstances where an excluded party may be covered in order to protect a covered party.
Kilb cites Hume for the proposition that Washington courts disfavor preempting claims based on Washington law. Hume does acknowledge a general prejudice against federal preemption but only to the extent that preemption requires clear congressional intent. Hume, 124 Wn.2d at 664.
¶11 Kilb also cites Davis, 476 U.S. at 396-98, Smith v. CIGNA Healthplan of Arizona, 203 Ariz. 173, 52 P.3d 205 (2002), and Pontiac Osteopathic Hosp., 284 N.L.R.B. 442 (1987), as examples of courts refusing to preempt state claims where the aggrieved party is a supervisor. In Davis, 476 U.S. at 384-85, the plaintiff supervisor was discharged for his direct participation in attempting to form a union. Because a supervisor engaging in such activities is not covered under the Act, there was no federal jurisdiction justifying preemption. Davis, 476 U.S. at 398. In Smith, 203 Ariz, at 178, where the plaintiff alleged wrongful termination for organizing a meeting to discuss working conditions, the court refused to apply the Garmon preemption doctrine because the employer failed to establish that the plaintiff's conduct was arguably subject to the Act. But even though the employer failed to meet its burden of proof in this instance, the court acknowledged grounds for preemption if an employer discharges a supervisor for refusing to commit an unfair labor practice. Smith, 203 Ariz, at 178 n. 1. And finally, in Pontiac, 284 N.L.R.B. at 443, the Board differentiated between discharging a supervisor for failing to commit an unfair labor practice and failing to support management's unfair labor practices. While the Act does not cover the latter conduct, the Board recognized coverage where a supervisor is discharged for refusing to commit an unfair labor practice. Pontiac, 284 N.L.R.B. at 443. Not only do these cases fail to support Kilb's contention, they under-mine his argument by recognizing situations where a supervisor may be covered.
¶12 Kilb alleges that he was discharged because he was not willing to terminate pro-union bus drivers and engage in management's anti-union efforts. An employer's discharge of a supervisor for refusing to commit unfair labor practices is, at least arguably, a violation of section 8(a)(1). Davis, 476 U.S. at 384 n. 4. Accordingly, the trial court did not err in concluding that the Act covered Kilb's claim.
Kilb argues that federal authority establishing this rule is nonbinding. But preemption law is federal law, and is controlling of this jurisdiction issue. Hue v. Farmboy Spray Co., 127 Wn.2d 67, 78, 896 P.2d 682 (1995) (under the supremacy clause of United States Constitution, state law that conflicts with federal law is without effect).
IV. STATE LAW
¶13 Next, Kilb argues that even if the Act covers his claim, the Garmon preemption doctrine does not apply because his state claim is not identical to the claim he would have presented to the Board. Kilb reasons that to be identical, the elements of the state and federal act claim must be the same. He contends that Washington's public policy against retaliating employers, at issue under state law, distinguishes his claim from a claim under the Act. We disagree.
¶14 For the Garmon preemption doctrine to apply, the controversy presented to the state court must be identical with that which could be presented to the Board. Beaman, 116 Wn.2d at 709. Preemption is designed to shield the system from conflicting regulation of conduct; it is therefore the conduct being regulated, not the legal standards, that courts focus on in deciding whether the Board's jurisdiction is exclusive. Amalgamated Ass'n of St., Elec. Rys. Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 292, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971). If the conduct relied on to prove an essential element of the state action is conduct that is arguably covered by the Act, the state claim is preempted. See Lumber Prod. Indus. Workers Local No. 1054 v. W. Coast Indus. Relations Ass'n, 775 F.2d 1042, 1049 (9th Cir. 1985).
¶15 Kilb relies on Brundridge v. Fluor Federal Services, Inc., 109 Wn. App. 347, 35 P.3d 389 (2001), to argue that his state claim is distinct from a claim of unfair labor practices under the Act. In that case, union members filed a state action alleging wrongful termination for refusing to install valves on a pipeline they believed to be unsafe. Brundridge, 109 Wn. App at 352. In holding that the state claim differed from any claim that could have been brought before the Board, the court reasoned that the workers' claim for wrongful discharge did not implicate collective bargaining or unionization and that claimed violations of Washington's health and safety laws are not even arguably unfair labor practices. Brundridge, 109 Wn. App at 361. That the plaintiffs were all members of the same union was not, as Kilb suggests, relevant to the court's analysis of their claim. Brundridge does not support Kilb's position.
¶16 That the legal elements of his state claim differ slightly from those under federal law does not help Kilb. In state court, he alleged that he was discharged for refusing to terminate pro-union employees and for engaging in anti-union activities in contravention of Washington State public policy. Before the Board, Kilb would have to prove that his employers discharged him for refusing to commit unfair labor practices, such as terminating pro-union employees. The essential element of proving the employer's prohibited conduct in state court is the very same conduct that the Board would consider in an unfair labor practice claim. See Hotel Employees, 51 Wn. App. at 684. Where, as here, the underlying conduct of both claims is the same, the state claim is preempted.
V. THE GARMON EXCEPTIONS
¶17 There are two exceptions to preemption under Garmon: (1) when the regulated activity under state law is merely a peripheral concern of the Act or (2) when the regulated activity touches an interest so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, there is no inference Congress intended to deprive the states of the power to act. Garmon, 359 U.S. at 243-44; see also Hume, 124 Wn.2d at 663-64. Kilb argues that both exceptions apply to his claim.
A. Peripheral Concern
¶18 Kilb maintains that the discharge of supervisors is a peripheral concern under the Act. He claims that if Congress had been concerned with protecting supervisors, it would have specifically included them in a class with protected employees.
¶19 As demonstrated above, courts have inextricably linked the discharge of supervisors for refusal to commit unfair labor practices with the section 7 rights of employees under the Act. In Parker-Robb, the Board explained:
[W]hen a supervisor is discharged for testifying at a Board hearing or a contractual grievance proceeding, for refusing to commit unfair labor practices, or for failing to prevent unionization, the impact of the discharge itself on employees' Section 7 rights, coupled with the need to ensure that even statutorily
excluded individuals may not be coerced into violating the law or discouraged from participating in Board processes or grievance procedures, compels that they be protected despite the general statutory exclusion.
Parker-Robb,
262 N.L.R.B. at 404. That supervisors do not fall under the definition of "employees" under the Act does not make them a peripheral concern. In many instances supervisors are the direct link between an employer's unfair labor practices and an employee's ability to exercise his or her rights. Kilb fails to convincingly argue the contrary.
¶20 The peripheral concern exception applies only in cases where the underlying conduct, even if arguably related to the Act, is a peripheral federal concern. See Hotel Employees, 51 Wn. App. at 679. State jurisdiction over tortious conduct, for example, is warranted where there is a state interest in regulation and the potential for interference with the federal regulatory scheme is minimal. Belknap, Inc. v. Hale, 463 U.S. 491, 512, 103 S. Ct. 3172, 77 L. Ed. 2d 798 (1983) (holding that misrepresentation and breach of contract claims in state court did not interfere with the Board's determination of related matters); see, e.g., Farmer v. Union Bhd. of Carpenters Joiners of Am., Local 25, 430 U.S. 290, 304-05, 97 S. Ct. 1056, 51 L. Ed. 2d 338 (1977) (rejecting the preemption of an action for intentional inflict of emotion distress even though the conduct was arguably an unfair labor practice); Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 61, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966) (holding that false statements in labor dispute that were injurious to reputation were actionable under state law). Here, Kilb's allegations are the very definition of unfair labor practices regulated under the Act. We cannot construe his claim as a peripheral matter that bars preemption.
B. Local Concern
¶21 Kilb also contends the "local concern" exception applies given Washington's express policy under RCW 49.32.020. Kilb relies on Hume, 124 Wn.2d at 665, and Bravo v. Dolsen Cos., 125 Wn.2d 745, 888 P.2d 147 (1995), to show that other courts have found Washington statutes to reflect a legitimate local concern rooted in articulated public policy. According to Kilb, the state courts, not federal ones, should oversee adjudication of claims implicating explicit Washington policy. Kilb is essentially asking us to presume a local concern sufficient to satisfy the Garmon exception where a Washington statute articulates applicable public policy. We decline to do so.
Bravo, 125 Wn.2d 745, is inapposite. There, the court did not address the issue of local concern in the context of Garmon preemption.
¶22 In Hume, four former employees brought an action alleging employer retaliation for demanding compensation for overtime. Hume, 124 Wn.2d at 660-61. The court found that the statute regulating employer retaliation touched a deeply rooted local concern and therefore fell under the local concern exception to the Garmon doctrine. Hume, 124 Wn.2d at 664. Differentiating between the state and federal claims, the court reasoned that the Board's inquiry would focus on whether overtime wage claims were a protected activity, while a state court would focus on whether the employees' discharge was retaliatory. Hume, 124 Wn.2d at 664-65. Thus, the court was able to rely on a clearly articulated local concern to preclude preemption without interfering with the federal regulatory scheme. Hume, 124 Wn.2d at 665. Other courts have likewise found that preemption is not required when state legislation rooted in local concern does not interfere with the federal regulation of collective bargaining and unionizing. See, e.g., Brundridge, 109 Wn. App at 361 (reasoning that the health and safety of Washington's workers and citizens is a legitimate local concern distinct from unfair labor practices) and Delahunty v. Cahoon, 66 Wn. App. 829, 839, 832 P.2d 1378 (1992) (acknowledging that Washington has a substantial interest in regulation of discriminatory employment practices, which does not interfere with the federal regulatory scheme as to unfair labor practices).
¶23 But even where a clear state public policy exists, a state claim will be preempted where Congress intended to deprive states of the power to act. Davis, 476 U.S. at 391; Garmon, 359 U.S. at 244. Washington State's public policy regarding labor regulation recognizes and protects a worker's right to associate, self-organize, designate representatives, negotiate terms and conditions of employment, and mandates that he shall be free from interference and restraint of these rights. RCW 49.32.020. Sections 7 and 8 of the Act similarly guarantee the right of employees to organize and collectively bargain and prohibit employer interference with these rights. 29 U.S.C. §§ 157, 158(a)(1). Unlike in Hume, where the court found differences between the state and the federal regulatory schemes, sections 7 and 8 of the Act clearly regulate the same conduct protected under RCW 49.32.020. "When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the [Act], or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield." Garmon, 359 U.S. at 244. Even though Kilb can reasonably argue that the Washington statute demonstrates a local concern, this is not sufficient to override congressional intent to confer exclusive federal jurisdiction. Because Kilb's challenge to federal preemption fails, the trial court did not err in dismissing his state claim.
¶24 Affirmed.
PENOYAR, C.J., and WORSWICK, J., concur.
elevant whether or not husband, in this case, remained competent during the one-year period. We are aware of no evidence that husband changed his mind or abandoned his intent to separate. It is uncontroverted that the parties did remain separate and apart for a period exceeding one year.
We therefore conclude that the evidence supports the trial court's finding that husband formed an intent to remain permanently separate and apart from wife on or about August 2006 and properly granted husband a divorce under Code § 20-91(9)(a).
ADMISSIBILITY
Appellant contends the trial court made two evidentiary errors: first, in not admitting a Veteran's Administration document filled out by Barbara, husband's co-guardian; and second, by admitting the guardian ad litem's report that contained multiple hearsay.
"`The admissibility of evidence is within the broad discretion of the trial court, and [its ruling thereon] will not be disturbed on appeal in the absence of an abuse of discretion.'"
Jones v. Commonwealth, 38 Va.App. 231, 236,
563 S.E.2d 364, 366 (2002) (quoting
Blain v. Commonwealth, 7 Va.App. 10, 16,
371 S.E.2d 838, 842 (1988)). However, "a trial court `by definition abuses its discretion when it makes an error of law.'"
Shooltz v. Shooltz, 27 Va.App. 264, 271,
498 S.E.2d 437, 441 (1998) (quoting
Koon v. United States, 518 U.S. 81, 100,
116 S.Ct. 2035, [2048],
135 L.Ed.2d 392 (1996)). "In determining whether the trial court made an error of law, we review the trial court's statutory interpretations and legal conclusions
de novo.'" Rollins v. Commonwealth, 37 Va.App. 73, 79,
554 S.E.2d 99, 102 (2001) (quoting
Timbers v. Commonwealth, 28 Va.App. 187, 193,
503 S.E.2d 233, 236 (1998)).
Auer v. Commonwealth, 46 Va.App. 637, 643, 621 S.E.2d 140, 142-43 (2005).
Veteran's Administration Form
As indicated in other sections of this opinion, the issue of whether husband had the mental capacity to form an intent to divorce was contested. Wife offered the Veteran's Administration form to prove husband had no such capacity because he was unable to fill out that form. In explaining why the exhibit was relevant, wife indicated it would show "who completed the forms and why."
On cross-examination, Barbara, the co-guardian, testified she did, in fact, fill out the forms at husband's request. Thus, through cross-examination, wife elicited the identical facts from Barbara as she would have from the admission of the form. The trial court allowed Barbara to identify the Veteran's Administration form, although it was not admitted into evidence.
We conclude that, if the trial court erred in refusing to admit the Veteran's Administration form, it was harmless error.
In Virginia, non-constitutional error is harmless "[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached." Code § 8.01-678.
"If, when all is said and done, [it is clear] that the error did not influence the [fact finder], or had but slight effect, . . . the judgment should stand But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. . . . If so, or if one is left in grave doubt, the [judgment] cannot stand."
Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32 (2001) (quoting
Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946)).
Also relevant to the harmless error analysis is whether the evidence admitted in error is merely "cumulative" of other, undisputed evidence. Brecht v. Abrahamson, 507 U.S. 619, 639, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). "Cumulative testimony is repetitive testimony that restates what has been said already and adds nothing to it. It is testimony of the same kind and character as that already given." Massey v. Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 758 (1985). Here, it is undisputed that Barbara filled out the Veteran's Administration form.
The proffered Veteran's Administration form, offered to show husband did not fill out the form, simply reiterated Barbara's testimony that she did, in fact, complete the form. We note that while wife also offered the exhibit to prove why husband did not complete the form, the form could not prove husband was incompetent, only that he did not fill it out. We therefore find error, if any, was harmless.
While husband did not argue harmless error in his brief, we are obligated to address harmless error.
Code § 8.01-678 makes "harmless error review required in
all cases."
Ferguson v. Commonwealth, 240 Va. ix, ix,
396 S.E.2d 675, 675 (1990) (emphasis in original and text in parenthetical to statutory citation);
Walker v. Commonwealth,
144 Va. 648, 652,
131 S.E. 230, 231 (1926) (holding that the harmless error statute "puts a limitation on the powers of this court to reverse the judgment of the trial court — a limitation which we must consider on every application for an appeal and on the hearing of every case submitted to our judgment").
Tynes v. Commonwealth, 49 Va.App. 17, 23 n. 3, 635 S.E.2d 688, 690 n. 3 (2006).
Report of the Guardian ad Litem
Wife next argues the trial court erred in admitting the guardian ad litem's report that was originally submitted in the earlier guardianship proceeding.
Wife's only citation for her hearsay argument is § 18-2, Charles E. Friend, The Law of Evidence in Virginia (5th ed. 2001). This section, entitled Reasons for the Hearsay Rule, offers no substantive law on her specific hearsay argument, only the rationale why hearsay is not admissible.
At the divorce hearing, wife's counsel cross-examined Barbara on husband's capacity to form an intent to divorce. Husband's counsel then offered husband's guardian ad litem in the guardianship proceedings, as a witness to testify as to husband's intent. Counsel proffered Exhibit 3 that was the guardian ad litem's report. He also proffered the guardian ad litem would testify that husband told him he wanted a divorce. The guardian ad litem was present in court at the divorce hearing. Wife objected to the introduction of the report, contending the report contained multiple hearsay.
Wife's counsel then examined the guardian ad litem regarding husband's statement of intent to divorce, particularly husband's capacity to form such an intent, relying on the statements contained in the guardian ad litem's report. Wife did not object to the guardian ad litem's testimony and in fact questioned him as to husband's statements made to the guardian ad litem.
Only one sentence of the report was offered and received by the court, "During our meeting [August 14, 2006], Mr. Andrews expressed his desire to be divorced from his wife and the fact that two of his male children had been physically abusive to him." The trial court indicated, "She's only offering for that particular sentence." While the trial court also said it received the "entire report," wife's counsel acknowledged the report was not admitted in full. The trial court responded, "It was admitted for that sentence, the one I just read."
The sentence referred to was husband's statement expressing his desire to be divorced.
From the totality of the record, the guardian ad litem's report was only admitted for that one sentence.
Appended to the guardian ad litem's report was a letter dated August 10, 2006, signed by husband which stated in part, "I need to divorce my wife, sell my home and live in safety and peace." Wife argues the report was inadmissible because it contained double hearsay.
Hearsay is "[a] statement other than one made by the declarant while testifying at trial — offered in evidence to prove the truth of the matter asserted." Black's Law Dictionary 649 (5th ed. 1979).
"Whether an extrajudicial statement is hearsay depends upon the purpose for which it is offered and received into evidence. If the statement is received to prove the truth [or falsity] of its content, then it is hearsay and, in order to be admissible, must come within one of the many established
exceptions to the general prohibition against admitting hearsay."
Brown v. Commonwealth, 25 Va.App. 171, 177, 487 S.E.2d 248, 251 (1997) (
en banc) (quoting
Hanson v. Commonwealth, 14 Va.App. 173, 187, 416 S.E.2d 14, 22 (1992)). "As a general rule, hearsay evidence is incompetent and inadmissible," and "the party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility."
Neal v. Commonwealth, 15 Va.App. 416, 420-21, 425 S.E.2d 521, 524 (1992).
The "state-of-mind" exception is one of these established hearsay exceptions. Clay v. Commonwealth, 33 Va. App. 96, 105-06, 531 S.E.2d 623, 627 (2000) ( en banc), aff'd, 262 Va. 253, 546 S.E.2d 728 (2001). If the declarant's state of mind is relevant to the case, then the declarations are admissible under this exception if they meet two additional conditions:
1. The statement must refer to a presently existing state of mind. Although the mental state o[r] emotion must exist at the time of the declaration, it may relate to matters occurring in the past or in the future;
2. There must be no obvious indication of falsification or contrivance[.]
Id. at 105 n. 4,
531 S.E.2d at 627 n. 4;
see also Charles E. Friend,
The Law of Evidence in Virginia § 18-18, at 789 (6th ed. 2003).
Here, husband's statement expressed a presently existing state of mind, i.e., his intent to divorce. Any conflict as to whether his statement was the product of falsification or contrivance was resolved by the fact finder who accepted those statements as true. Husband's state of mind was central to the proof of divorce and therefore highly relevant. "Intent in fact is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be shown by a person's conduct or by his statements." Hargrove v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974).
We conclude that the trial court did not err in admitting the guardian ad litem's report that was offered for the limited purpose of proving husband's intent to divorce wife. The guardian ad litem, on cross-examination, testified without objection as to husband's statements to him. Therefore, even if the trial court erred in admitting that portion of the report, it was harmless, see Code § 8.01-678; Clay, 262 Va. at 260, 546 S.E.2d at 731-32, and cumulative, Abrahamson, 507 U.S. at 639, 113 S.Ct. at 1722.
As previously stated, we are obligated to address harmless error despite the absence of such argument by appellee. Tynes, 49 Va.App. at 23 n. 3, 635 S.E.2d at 690 n. 3.
EQUITABLE DISTRIBUTION $55,000
Wife argues that the trial court erred in failing to make a monetary award or to give her credit for the $55,000 husband withdrew from marital funds and transferred into his own account in December 2005. Husband responds that he removed these funds from the joint account when he learned that his son was stealing from the account. He contends he properly used the remaining funds for both his and wife's needs.
Wife makes two arguments: First, she contends that the trial court failed to consider the statutory factors set forth in Code § 20-107.3(E). Next, she argues that when making the award, the trial court erroneously relied upon a previous ruling that the guardianship court never made.
In contending the trial court failed to consider the factors set forth in Code § 20-107.3(E), wife claims the trial court ignored the rights and interests of the parties in the $55,000, the length of marriage, wife's non-monetary contributions, and wife's financial needs.
However, the record belies these assertions. Prior to its equitable distribution ruling, the trial court reviewed and made factual findings as to each of the eleven factors of Code § 20-107.3(E).
The trial court indicated it further considered: The use and expenditure of all marital property by the parties for a non-marital separate person [sic] for the dissipation of such funds: That will be addressed separately with regard to the specifics of the equitable distribution.
Code § 20-107.3, which governs awards of equitable distribution, "is intended to recognize a marriage as a partnership and to provide a means to divide equitably the wealth accumulated during and by that partnership based on the monetary and non-monetary contributions of each spouse." Williams v. Williams, 4 Va.App. 19, 24, 354 S.E.2d 64, 66 (1987). "Where an equitable distribution is appropriate, then all of the provisions of Code § 20-107.3 must be followed." Artis v. Artis, 4 Va.App. 132, 136, 354 S.E.2d 812, 814 (1987).
On appeal, "[a] decision regarding equitable distribution rests within the sound discretion of the trial court and will not be disturbed unless 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) (citing McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994)). "Unless it appears from the record that the trial judge has not considered or has misapplied one of the statutory mandates, this Court will not reverse on appeal." Id. at 27, 520 S.E.2d at 844. Wife has not presented to us any basis for concluding the trial court abused its discretion in fashioning the equitable distribution award. See Kaufman v. Kaufman, 7 Va.App. 488, 499, 375 S.E.2d 374, 380 (1988).
The trial court had ample evidence to determine that wife was not entitled to contribution for the funds husband withdrew from the joint marital account.
At the divorce hearing, the trial court heard testimony from husband's daughter that husband used the money to pay his attorney's fees, the home equity line of credit, homeowner's insurance for the marital home where wife resided, and bills wife sent him for her living expenses. The trial court also had before it the transcript from the proceeding to appoint a guardian/conservator that described how two of the couples' sons took advantage of their parents and, in particular, how one son stole money from them. The trial court had ample evidence to determine that wife was not entitled to a credit or to an award for these funds.
Here, evidence indicated the parties' son was stealing money from them. This testimony was corroborated by testimony and factual findings in previous proceedings. Further, the daughter explained that while her father was protecting the marital funds by transferring them to his own account, he was not using the funds solely for his own benefit. Husband made payments on the equity line of credit on the marital residence, paid the homeowner's insurance, and paid bills associated with the home sent to him by wife. Additionally, the trial court fully considered the factors in Code § 20-107.3 in its determination that wife was not entitled to an award based on husband's withdrawing funds from the marital account.
Regarding wife's second contention, the trial court stated that it would not disturb a previous ruling of the guardianship court that there was no improper use of the $55,000 of marital funds by husband. We agree with wife that there was no such finding made previously by the guardianship judge.
In relying on the previous ruling that husband did not improperly make use of the funds, the trial court essentially ruled that husband did not commit waste. However, wife does not argue husband committed waste. "Dissipation occurs "where one spouse uses marital property for his own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.'" Clements v. Clements, 10 Va.App. 580, 586, 397 S.E.2d 257, 261 (1990) (quoting Hellwig v. Hellwig, 100 Ill.App.3d 452, 55 Ill.Dec. 762, 426 N.E.2d 1087, 1094 (1981)). "The funds necessarily must be considered marital assets held by the party guilty of waste. The trial judge then may consider that one party has wasted assets as a factor when the judge determines the amount of the award." Booth v. Booth, 7 Va.App. 22, 28, 371 S.E.2d 569, 573 (1988).
To the extent that wife contends the trial court erred in taking into consideration a ruling that husband did not commit marital waste, her contention fails. Although the trial court erroneously believed the guardianship trial judge found there was no improper use of the funds, any reliance by the trial court upon this ruling is irrelevant because wife does not argue husband committed waste.
Husband's Civil Service Pension
Wife next argues that the court erred in not awarding her a share of husband's civil service pension. She claims that because it was earned during the course of their very long marriage, she is entitled to a share of the pension.
Neither party challenges that the pension is marital property.
Again, we find wife has not presented any basis for us to conclude the trial court abused its discretion in fashioning the equitable distribution award. Kaufman, 7 Va.App. at 499, 375 S.E.2d at 380.
The trial court reviewed an opinion letter from wife's suit for separate maintenance that clearly illustrated the parties' relative financial positions. The opinion letter, issued November 9, 2007, stated that husband's monthly income at that time was marginally higher than his expenses, not including nearly $75,000 in outstanding bills. Additionally, the trial court heard testimony from husband's daughter that husband paid the home equity line of credit, homeowner's insurance for the marital home where wife resided, and the bills wife sent him for her living expenses.
In not awarding wife any share of husband's pension, the trial court ruled that the pension, which the trial court characterized as "de minimus," barely covered his full-time medical expenses.
The parties' arguments are limited to whether the court abused its discretion in making the equitable distribution award. They do not contend the trial court failed to consider all of the statutory factors in Code § 20-107.3.
The trial court concluded that husband "needs what little income he has . . . is almost de minimus for his on-going full-time medical care." It is apparent from the record that neither party has sufficient income to provide for their basic needs.
For the foregoing reasons, we affirm the trial court's award of equitable distribution regarding husband's pension.
SPOUSAL SUPPORT
Wife argues the trial court abused its discretion in not awarding her spousal support. Wife also contends the trial court erred in not considering the factors enumerated in Code § 20-107.1(E), not providing written findings identifying those factors that support its determination as required by Code § 20-107.1(F), and requiring wife to invade the principal of her estate and therefore depleting the only asset she received from the equitable distribution award.
We first address whether the trial court erred in not awarding any spousal support to wife. "In reviewing a spousal support award, we are mindful that the trial court has broad discretion in awarding and fixing the amount of spousal support. Accordingly, our review is limited to determining whether the trial court clearly abused its discretion." Miller v. Cox, 44 Va.App. 674, 679, 607 S.E.2d 126, 128 (2005) (citations omitted).
At the time of the divorce hearing, husband was ninety-three years old and wife was eighty-eight years old. They had been married for sixty-four years. Husband had the following monthly income: $1,920.41 government pension; $724 social security, and $6 VA benefits for a total monthly income of $2,650.41. The social security and VA payments are paid directly to the nursing home for husband's maintenance. From the monthly pension, husband pays health insurance for himself. A portion of husband's care is paid by Medicaid. The total monthly cost of the nursing home is $2,480.06, and the balance due as of June 9, 2009 was $2,508.60.
Wife received, monthly, $693 social security and SSI, $45 food stamps, and has Medicare and Medicaid benefits.
Other than an equity line balance of $19,000, there is no testimony of any other of wife's debts. Wife did not present an expense statement nor offer evidence of her needs. There was no evidence of housing expenses, utilities, food, insurance, other household expenses, or medical expenses. Thus, we can only speculate as to wife's needs. "A party seeking spousal support bears the burden of proving all facts necessary for an award including evidence of financial need. . . ." Robbins v. Robbins, 48 Va.App. 466, 484, 632 S.E.2d 615, 624 (2006). Here, wife failed to do so.
Wife next contends the trial court erred in not considering the factors enumerated in Code § 20-107.1(E) and in not providing written findings identifying those factors that support its determination pursuant to Code § 20-107.1(F). When making an award of spousal support, the trial court must consider all the factors enumerated in Code § 20-107.1(E) and set forth findings or conclusions identifying the statutory factors supporting that award. Robinson v. Robinson, 54 Va.App. 87, 91, 675 S.E.2d 873, 874 (2009); Code § 20-107.1(F).
Pursuant to Rule 5A:20(c), appellant designated her written exception to the final decree where she preserved these issues for appeal. Her exception stated:
Rule 5A:20(c) provided that the opening brief of appellant must contain "a statement of the questions presented with a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each question was preserved in the trial court."
[F]ailure of Court to award defendant Mary Helen Andrews any spousal support despite husband's income in an amount 400% greater than her own; her reliance on Social Security and SSI and food stamps for subsistence after 64 plus [sic] year marriage; Court's expectation that defendant will have
funds from distribution of proceeds from sale of marital residence for support.
And all other reasons stated in open Court on the record of this case.
We find that this sole statement noting her general exception to spousal support is not sufficient to satisfy the requirements of Rule 5A:18.
While appellant stated she was relying on statements made in open court to preserve this issue for appeal, she did not designate any other pages of the joint appendix as to where she preserved these issues. See Buchanan v. Buchanan, 14 Va.App. 53, 56, 415 S.E.2d 237, 239 (1992) ("We will not search the record for errors in order to interpret the appellant's contention and correct deficiencies in a brief.").
Rule 5A:18 is clear that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling. . . ." Indeed, "[i]n order to preserve an issue for appeal, `an objection must be timely made and the grounds stated with specificity.'" McDuffie v. Commonwealth, 49 Va.App. 170, 177, 638 S.E.2d 139, 142 (2006) (quoting Marlowe v. Commonwealth, 2 Va.App. 619, 621, 347 S.E.2d 167, 168 (1986)). The purpose of the rule is to ensure that any perceived error by the trial court is "promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. . . . Errors can usually be corrected in the trial court, particularly in a bench trial, without the necessity of appeal." Brown v. Commonwealth, 8 Va.App. 126, 131, 380 S.E.2d 8, 10 (1989). If a party fails to timely and specifically object, she waives her argument on appeal. Arlington v. Commonwealth, 53 Va.App. 635, 674 S.E.2d 554 (2009).
Rule 5A:18 was amended effective July 1, 2010 to state in relevant part that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated with reasonable certainty at the time of the ruling. . . . "
Wife has clearly raised these arguments for the first time on appeal. The general written exception propounded by appellant was insufficient to alert the trial court that she was objecting to the court's failure to consider the factors enumerated in Code § 20-107.1(E) and (F). Therefore, these arguments will not be considered here.
Wife acknowledges she did not raise the written findings argument below, but contends the ends of justice exception to Rule 5A:18 applies. We disagree.
Application of the ends of justice exception requires proof of an error that was "clear, substantial and material." Brown, 8 Va.App. at 132, 380 S.E.2d at 11. The record "must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred." Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997). "However, some procedures are so crucial that a court's failure to adhere to them constitutes error that is clear, substantial and material even in the absence of affirmative proof of error in the result." Herring v. Herring, 33 Va.App. 281, 287, 532 S.E.2d 923, 927 (2000). Such is not the case here. It is obvious from the record that neither party had sufficient income to support themselves and that the only asset available to generate income for their maintenance was the marital home. We conclude therefore that the trial court's failure to make written findings was not "clear, substantial and material." Therefore, this issue is waived.
Wife never argued we should invoke the ends of justice exception to her argument regarding Code § 20-107.1(E). We will not consider such an argument sua sponte. Edwards v. Commonwealth, 41 Va.App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc).
Finally, wife argues the trial court erred in requiring her to deplete her only asset received pursuant to the equitable distribution award. Rule 5A:20(c) requires us to find that the issue is waived because this argument is not part of appellant's questions presented. See Winston v. Commonwealth, 51 Va.App. 74, 82, 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented, the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31, 39 n. 4, 542 S.E.2d 785, 789 n. 4 (2001) (declining to consider an issue on appeal because it was not "expressly stated" in the questions presented). The only issue raised in wife's question presented is whether the trial court abused its discretion in refusing to award wife spousal support based upon wife's income and the length of the marriage. This question is limited to the propriety of not awarding support and does not address whether the court erred in requiring wife to deplete her only asset in order to support herself.
We find that this failure to comply with Rule 5A:20 is significant. Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008). Because appellant waived this issue, we will not consider it on appeal.
We, therefore, conclude the trial court did not abuse its discretion in failing to award spousal support to wife.
APPELLATE ATTORNEYS FEES
Husband asks for an award of fees and costs for this appeal. We decline to do so.
The rationale for the appellate court being the proper forum to determine the propriety of an award 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.
O'Loughlin v. O'Loughlin, 23 Va.App. 690, 695, 479 S.E.2d 98, 100 (1996). Upon consideration of the record, we find "the litigation addressed appropriate and substantial issues. . . ."
Estate of Hackler v. Hackler, 44 Va.App. 51, 75, 602 S.E.2d 426, 438 (2004).
CONCLUSION
For the foregoing reasons, we find the trial court did not err. In addition, we decline to make an award of appellate attorney's fees to husband.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.