The Court of Appeals upholds a refusal to reconsider a ruling based on after-discovered evidence which was not offered to the court properly, nor stipulated to -- the wife's lawyer said he had documents in front of him, but did not hand them up. And the descriptions he gave of their contents were too iffy and speculative to prove that they would be material evidence that would change the result of the trial. Henderson v. Henderson, 5/15/2018, Record No. 1402-17-2. (A separate opinion issued the same day, with a different case number, addressed husband's appeal of various rulings.) The opinion in "1407" addressed so many different issues that I am describing them in separate posts.
Proffering after-discovered evidence:
In order for after-discovered evidence to be admissible, the record must establish that: (1) the evidence [was] discovered after the record was closed; (2) it could not have been obtained prior to the closing of the record through the exercise of reasonable diligence; (3) it is not merely cumulative, corroborative, or collateral; and (4) it is material, and as such, should produce an opposite result. Joynes v. Payne, 36 Va. App. 401, 418, 551 S.E.2d 10, 18 (2001).
The party seeking to reopen the record bears the burden of proof. Williams v. People’s Life Ins. Co., 19 Va. App. 530, 533, 452 S.E.2d 881, 883 (1995). Whether to grant such a motion rests within the sound discretion of the circuit court. Shooltz v. Shooltz, 27 Va. App. 264, 269, 498 S.E.2d 437, 439 (1998). ... when the circuit court denies such a motion, “the aggrieved party must make a proper proffer of the [evidence] to preserve the ruling for appellate review.” Klein v. Klein, 11 Va. App. 155, 160, 396 S.E.2d 866, 869 (1990). Such a proffer “may consist of a unilateral representation of counsel, if unchallenged, or a mutual stipulation of the proffered [evidence]. Absent such representation of counsel, or stipulation, the ruling will not be considered on appeal.” Id.
Preserving error for appeal:
Raising this issue in a written motion and oral argument, while the court still had jurisdiction to do something about it, was sufficient to preserve the issue for appeal.