Hoffman v. Hoffman

43 Va. Cir. 272, 1997 Va. Cir. LEXIS 371

• Court: Virginia Beach County Circuit Court
• Decided: August 26, 1997
• Docket: Case No. (Chancery) CH96-1706
• Status: Published

Opinion

By Judge Frederick B. Lowe

This case comes to the Court on Defendant’s exceptions to Commissioner in Chancery James A. Evans’ Report filed July 14, 1997 (the “Report"). Specifically, Defendant excepted to the Commissioner’s recommendation in paragraph 14 of the Report, which recommended that primary physical custody of die couple's children be with the Complainant.

The appropriate standard of review by this Court has been repeatedly and consistendy defined and applied by the Supreme Court of Virginia as follows:

While the report of a commissioner in chancery does not carry the weight of a jury’s verdict, Code of Virginia § 8.01-610, it should be sustained unless the trial court concludes that the commissioner’s findings are not supported by the evidence. This rule applies with particular force to a commissioner’s findings of fact based upon evidence taken in his presence but is not applicable to pure conclusions of law contained in the report. On appeal, a decree which approves a commissioner’s report will be affirmed unless plainly wrong....

Hill v. Hill, 227 Va. 569, 576-77 (1984) (citations omitted); see also Yeskolski v. Crosby, 253 Va. 148, 152-153 (1997); Jamison v. Jamison, 3 Va. App. 644, 645-646 (1987). The report of a Commissioner in Chancery who hears the evidence ore tenus, as he did in the case at bar, is entitied to great weight and should not be disturbed unless its conclusions are unsupported by the evidence. Bailey v. Pioneer Fed. Sav. & Loan Assn., 210 Va. 558, 562 (1970).

In die case before the Court, the transcript of the Commissioner’s hearing contains evidence to support the Commissioner’s recommendation that the parties share joint legal custody of die children with the Complainant having their primary physical care. The Commissioner’s recommendation that primary physical custody be granted to the Complainant was made after a hearing ore iemis that generated a 312 page transcript This transcript of the Commissioner’s hearing contains testimonial evidence — often contradictory — from twenty-five witnesses, including the parties themselves, their coworkers, relatives, and friends. Documentary evidence relating to various matters, including the parties’ financial, educational, and employment status was also taken by the Commissioner at the hearing. The testimonial evidence ranges from the alcohol and drug use of the parties to expert testimony from a child psychologist concerning the Defendant’s non-participation in die oldest child’s therapy.

It simply cannot be said that there is no evidence to support the Commissioner’s recommendation. Since die Commissioner was in the best position to observe the demeanor of the witnesses, and hence evaluate their relative credibility, he was consequendy in die best position to resolve conflicts in the evidence, such as the extent of the Defendant's alcohol use. (Tr. 273, 279.)

Since the Commissioner’s recommendation has evidentiary support, the Defendant’s exceptions are overruled, and the Report is confirmed.