James Edward Germek v. Marsha K. Germek

• Court: Court of Appeals of Virginia
• Decided: August 6, 1996
• Docket: 2807951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Bray Argued at Norfolk, Virginia

JAMES EDWARD GERMEK MEMORANDUM OPINION * BY v. Record No. 2807-95-1 JUDGE SAM W. COLEMAN III AUGUST 6, 1996 MARSHA K. GERMEK

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY John E. DeHardit, Judge Designate

Sydney K. L. West (Horne, West & McMurtrie, on brief), for appellant.

Breckenridge Ingles (Martin, Ingles & Ingles, Ltd., on brief), for appellee.

In this domestic relations appeal, James Edward Germek

(husband) contends that the chancellor erred in his final decree

by ordering Germek to pay the monthly premium of $195.93 on a

life insurance policy for the benefit of Germek's minor child.

Germek also contends that the amount of $400 per month in spousal

support awarded in accordance with the provisions of Code

§ 20-107.1 to Marsha K. Germek (wife) was excessive; that the

chancellor erred by failing to equitably distribute all the

marital property, specifically wife's civil service retirement

account; that wife was improperly awarded attorney's fees; and

that wife received a disproportionate share of the marital

property. For the following reasons, we reverse the chancellor's

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. final decree as to the provision requiring husband to maintain

the life insurance policy; we affirm the chancellor's decision as

to the remaining issues; but we remand the case for further

proceedings as to the issues affected by the order to maintain

the life insurance policy, specifically child and spousal

support.

LIFE INSURANCE POLICY

In making his opening statement before the Commissioner in

Chancery, wife's counsel addressed the life insurance policy at

issue and requested that the spousal support award be sufficient

to maintain the life insurance policy for the benefit of the

parties' disabled daughter. Mrs. Germek is very concerned about the life insurance that would be available for the daughter's benefit. There is, apparently, a policy now with USAA. It's a whole life policy in the amount of, it's either $150,000 or $250,000. They are joint owners of that policy. It names the named insured as Mr. Germek, and what we're going to ask the Court to do is to order that Mr. Germek pay to Ms. Germek enough money by way of alimony that she can make the monthly life insurance payment, that she can keep that policy in effect.

At the evidentiary hearing, wife introduced a copy of the USAA

policy, and the commissioner acknowledged that he understood that

wife was "asking for support, for money to help keep this policy

in effect." On cross-examination, wife confirmed that she wanted

the life insurance policy to be continued.

The commissioner's report recommended awarding wife spousal

- 2 - support of $400 per month and child support of $375 per month.

However, the commissioner's report did not specifically mention

the life insurance policy and did not specify whether the $400

per month spousal support recommendation included an amount for

all or a part of the insurance premium, as the wife had

requested.

Both parties filed exceptions to the commissioner's report.

The husband asserted that the spousal support award was

excessive considering the parties' relatively equal earnings.

Wife raised six exceptions to the report, but she did not

specifically mention the life insurance policy in her objections.

However, wife objected "to the award of alimony of $400 as being

inadequate under the circumstances of the case," and "to the

Commissioner's failure to make a provision for the long term

health care needs of [the parties' child]." The parties orally

argued their exceptions to the commissioner's report before the

chancellor. In the final decree of divorce, the chancellor overruled

wife's objections to the amount of spousal support and to the

failure of the commissioner to provide for the minor child's

long-term health care needs. The chancellor "approved, ratified

and incorporated by reference into [the] Decree" the

commissioner's report, and ordered the parties to comply with all

terms and conditions of the report as to all issues germane to

this appeal. Therefore, the chancellor affirmed the award of

- 3 - $400 per month in spousal support and $375 per month in child

support. However, the chancellor, without explanation, deviated

from the commissioner's report by ordering husband to maintain

the USAA life insurance policy.

Husband objected to the inclusion in the final divorce

decree of the requirement that he maintain the life insurance

policy, and he filed a motion to reconsider the final order. He

asserted that the chancellor had overruled the parties'

exceptions, had affirmed the commissioner's report, but then

entered a decree containing a provision not included in the

commissioner's report and inconsistent with the report. After

hearing argument on the matter, the chancellor denied the motion

and declined to vacate the divorce decree or to remand the matter

to the commissioner for a determination of whether the $400

spousal support included an allowance for the life insurance

premium. On appeal, a decree which approves a commissioner's report will be affirmed unless plainly wrong, . . . but where the chancellor has disapproved the commissioner's findings, this Court must review the evidence and ascertain whether, under a correct application of the law, the evidence supports the findings of the commissioner or the conclusions of the trial court.

Sprott v. Sprott, 233 Va. 238, 240, 355 S.E.2d 881, 882 (1987)

(quoting Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 296-97

(1984) (citations omitted)).

A major problem that initially confronts us in reviewing the

- 4 - chancellor's decision is that on this record we cannot exclude

the probability that the commissioner's recommendation for an

award of $400 per month in spousal support included an amount for

the wife to pay all or a portion of the $195.53 per month life

insurance premium, as she had requested. Although Code

§ 20-108.1(D)(i) 1 authorizes the court, in determining child

support, to require a party to maintain a life insurance policy,

the wife requested an award and presented evidence on the issue

in support of her claim for spousal support. By affirming the

commissioner's report and overruling the parties' exceptions, the

chancellor was approving the commissioner's recommended awards

for both spousal support and child support, which may have

included an allowance for the insurance premium in the spousal

support award, but clearly contained no provision as part of

1 Code § 20-108.1. Determination of child or spousal support.

* * * * * * *

D. In any proceeding under this title, Title 16.1 or Title 63.1 on the issue of determining child support, the court shall have the authority to order a party to (i) maintain any existing life insurance policy on the life of either party provided the party so ordered has the right to designate a beneficiary and (ii) designate a child or children of the parties as the beneficiary of all or a portion of such life insurance for so long as the party so ordered has a statutory obligation to pay child support for the child or children.

- 5 - child support that ordered husband to maintain the insurance

policy in accordance with Code § 20-108.1(D)(i). Moveover, the

chancellor's divorce decree is internally inconsistent in that it

purports to affirm the commissioner's report in all respects,

including the recommendation pertaining to child support, but

then contains a provision that exceeds and departs from the

commissioner's recommendation for child support, and may well

duplicate an allowance that the commissioner included, at wife's

request, for spousal support. Furthermore, the provision was

inexplicably inserted in the draft of the final decree prepared

and submitted by wife's counsel, even though prior to submission

of the decree the chancellor had made no ruling to that effect. Although the commissioner's report did not mention the life

insurance policy, the record is clear that the maintenance of the

policy was raised at the hearing before the commissioner and that

wife requested an award of spousal support sufficient to continue

the policy. Thus, the logical inferences that flow from the

commissioner's report are that the commissioner rejected wife's

request to require husband to maintain the policy, or that the

commissioner intended that the spousal support award of $400 per

month was sufficient for wife to maintain the policy.

Nevertheless, despite specifically approving the commissioner's

award of spousal and child support, the chancellor implicitly

disapproved the commissioner's findings by ordering husband to

maintain the policy.

- 6 - The record offers no explanation for the chancellor's

decision to include in the final order the provision requiring

husband to continue to maintain the life insurance policy. In

fact, based on the chancellor's ruling, he did not intend to

include such a provision in the final decree. Even though a

court speaks only through its order, the court's order is

inconsistent in affirming the commissioner and deviating from the

commissioner. Although there is no transcript of the hearing

before the chancellor on the parties' exceptions to the

commissioner's report, husband asserted in his motion to

reconsider "[t]hat the [chancellor's] inclination at the hearing

was to refer the matter [of the life insurance policy] back to

the [commissioner] for clarification." Moreover, at oral

argument before this Court, wife's counsel conceded that the

chancellor instructed him at the hearing to draft a decree

confirming the commissioner's report and the chancellor did not

specifically direct that the decree include a provision requiring

husband to maintain the life insurance policy. Code § 8.01-610 addresses the weight to be given to the

commissioner's report by the chancellor: The report of a commissioner in chancery shall not have the weight given to the verdict of a jury on conflicting evidence, but the court shall confirm or reject such report in whole or in part, according to the view which it entertains of the law and the evidence.

Id. (emphasis added). In Gulfstream Bldg. Assocs., Inc. v.

- 7 - Britt, 239 Va. 178, 387 S.E.2d 488 (1990), the Supreme Court held

that Code § 8.01-610 "clearly gives the [chancellor] substantial

discretion in the manner in which it reviews the report of a

commissioner." Id. at 185, 387 S.E.2d at 492. However, the

Court further held in Britt that the chancellor could not decline

to confirm or reject the commissioner's findings on a particular

issue because "[t]his course of action is not recognized by Code

§ 8.01-610." Id. Similarly, we hold that the chancellor does

not have the authority under Code § 8.01-610 to both confirm and reject the commissioner's findings on a particular issue.

It is well-established that the chancellor does not delegate

his judicial function to the commissioner and is not bound by the

commissioner's report. Raiford v. Raiford, 193 Va. 221, 229, 68

S.E.2d 888, 893 (1952); Lawrence v. Lawrence, 212 Va. 44, 47, 181

S.E.2d 640, 643 (1971); Haase v. Haase, 20 Va. App. 671, 679, 460

S.E.2d 585, 588 (1995). Furthermore, we do not suggest that the

chancellor is required to make detailed findings in support of

his decision to reject the commissioner's report. See Britt, 239

Va. at 183, 387 S.E.2d at 492 (holding that "[t]he report, or

portions of it, can be disposed of with very general language").

Nevertheless, the trial court must indicate clearly its approval

or disapproval of the commissioner's report and its reasons for

doing so because, on appeal, we "must review the evidence and

ascertain whether, under a correct application of the law, the

evidence supports the findings of the commissioner or the

- 8 - conclusions of the trial court." Sprott, 233 Va. at 240, 355

S.E.2d at 882 (quoting Hill, 227 Va. at 577, 318 S.E.2d at 296-97

(citations omitted)). Absent a clear indication of the

chancellor's approval or disapproval of the commissioner's

findings, we cannot accurately determine the factual and legal

basis for the chancellor's decision or, for that matter, the

commissioner's recommendation on the issue of the life insurance

policy, as it may have been included in the spousal support

recommendation. Here, the divorce decree was erroneous on its face because

the chancellor both confirmed the recommendations for spousal and

child support, but then implicitly rejected the commissioner's

child support recommendation by adding the requirement that

husband maintain the life insurance policy. Accordingly, we

vacate the decree and remand the case for further proceedings.

On remand, the chancellor may conduct additional hearings, or

remand the matter to the commissioner for clarification of the 2 commissioner's findings. SPOUSAL SUPPORT, EQUITABLE DISTRIBUTION, AND ATTORNEY'S FEES

Code § 8.01-615 provides, in pertinent part, that [e]xceptions to the Commissioner's Report shall be filed within 10 days after the 2 To the extent that the commissioner may have considered the life insurance premium in recommending the amount of spousal support, as wife requested, the recommendation is erroneous. The sole authority for such an award is as child support for the benefit of the parties' dependant children under Code § 20-108.1(D)(i) which, unlike spousal support, would continue unaffected by the spouse's death or remarriage.

- 9 - report has been filed with the court, or for good cause shown, at a later time specified by the court.

Id. Here, the commissioner's report was filed with the trial

court on June 7, 1995. Husband filed exceptions to the report

challenging the amount of the spousal support award, the

classification and equitable distribution of the marital

property, and the amount of attorney's fees awarded wife.

However, husband filed his exceptions to the report on June 23,

1995, sixteen days after the report was filed with the trial

court, and the record contains no explanation for husband's

failure to file his exceptions within ten days of the date the

report was filed. Therefore, we hold that the chancellor did not

abuse his discretion by holding that husband's exceptions to the

commissioner's report were not timely filed. For the foregoing reasons, we reverse the chancellor's order

in part, affirm it in part, and remand the case for further

proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded.

- 10 -