Nancy W. Harrison v. W. Gordon Harrison, III

• Court: Court of Appeals of Virginia
• Decided: January 30, 1996
• Docket: 1280951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia

NANCY W. HARRISON

v. Record No. 1280-95-1 MEMORANDUM OPINION * BY JUDGE NELSON T. OVERTON W. GORDON HARRISON, III JANUARY 30, 1996

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge Jerrold G. Weinberg (Michael H. Wojcik; Weinberg & Stein, on briefs), for appellant.

Joseph L. Lyle, Jr. (Kaufman & Canoles, P.C., on brief), for appellee.

Nancy Harrison (wife) appeals the decision of the circuit

court setting the amount of spousal and child support to be paid

by Gordon Harrison (husband). Wife contends that the trial court

erred in rejecting the commissioner's recommendation to impute

$2,000 in additional monthly income to husband. We disagree and,

finding no error, we affirm the decision of the trial court.

Wife contends that the commissioner's recommendation to

impute $2,000 a month in additional income to husband was proper

and substantiated. Wife presented a provision of a trust created

by husband's grandmother which provided, in part, that the

trustee had the sole discretion to use the corpus of the trust

"at any time that my said daughters or grandchildren are in need

of an additional fund, properly to support, maintain or care for * Pursuant to Code § 17-116.010 this opinion is not designated for publication. them or any of them in the manner to which they have been

accustomed . . . ." Wife also presented a letter indicating that

the trust had a corpus of $1.3 million in 1987 and generated

$65,000 in income that year. Husband testified that he was one

of four contingent beneficiaries of the trust established for the

primary benefit of his mother and aunt. Upon the death of the

primary beneficiaries, the corpus of the trust could be

distributed. Upon these facts, the commissioner in chancery

found the trust to be a financial resource available to husband

and imputed the additional monthly income. The chancellor appoints a commissioner in chancery to aid

him or her in "the proper and expeditious performance of his [or

her] official duties." Haase v. Haase, 20 Va. App. 671, 678-79,

460 S.E.2d 585, 588 (1995) (alteration in original) (quoting

Raiford v. Raiford, 193 Va. 221, 226, 68 S.E.2d 888, 891 (1952)).

In doing so, the court does not delegate its judicial functions

to the commissioner, and the actions of the commissioner are not

binding upon the chancellor. Haase, 20 Va. App. at 679, 460

S.E.2d at 588. "The ultimate decision in the case is left to the

chancellor, who must review the evidence according to correct

principles of law and arrive at his or her own conclusions."

Cochran v. Cochran, 14 Va. App. 827, 831, 419 S.E.2d 419, 421

(1992).

In this case the chancellor, upon review of the facts,

rejected the commissioner's recommendation and ruled that

- 2 - insufficient evidence existed to impute additional income to

husband. The imputed income was speculative, impossible to

calculate without knowing the current status of the corpus,

yearly income, or beneficiaries. The judgment of the trial court

is presumed correct and its ruling will not be disturbed if

supported by credible evidence. Steinberg v. Steinberg, 11 Va.

App. 323, 329, 398 S.E.2d 507, 510 (1990).

We find that the evidence before the commissioner supports

the chancellor's decision. The decision of the trial court is

affirmed. Of course, the parties remain at liberty to petition

the circuit court for increases or decreases in the sums set for

spousal and child support, if they be so advised and if new facts

seem to justify such action. Affirmed.

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