William H. Holloway v. Betty Holloway

• Court: Court of Appeals of Virginia
• Decided: June 2, 1998
• Docket: 2164973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

WILLIAM H. HOLLOWAY MEMORANDUM OPINION * v. Record No. 2164-97-3 PER CURIAM JUNE 2, 1998 BETTY HOLLOWAY

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY John J. McGrath, Jr., Judge

(Walter F. Green, IV; Green & O'Donnell, on brief), for appellant. (C. Lynn Lawson; Franklin, Denney, Ward & Lawson, on brief), for appellee.

Betty Holloway (wife) and William H. Holloway (husband) were

divorced by a decree a vinculo matrimonii entered November 3,

1989. The decree retained jurisdiction to decide the equitable

distribution issues. Husband appeals from the final order of the

circuit court deciding the remaining equitable distribution

issues. Pursuant to Rule 5A:21(b), wife presents additional

questions in her brief. Upon reviewing the record and briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court. See Rule 5A:27.

Husband contends that the trial court erred by materially

revising the division of property set out in the commissioner's

report in 1991. Wife contends that husband failed to raise his * Pursuant to Code § 17-116.010 this opinion is not designated for publication. question before the trial court, and failed to state why either

the good cause or ends of justice exceptions to Rule 5A:18 apply.

Wife also contends that the trial court erred in (1) overruling

her exception to the commissioner's recommendation that she

receive only thirty-five percent interest in the marital rental

property and rental income; and (2) overruling her exception to

the commissioner's recommendation that she receive only

forty-five percent of the equity in the marital home. A commissioner in chancery heard evidence on the equitable

distribution issues, and filed a report on November 15, 1991. By

letter opinion dated August 25, 1992, the trial court denied

wife's exceptions to the commissioner's report and confirmed the

report. No order incorporating the court's opinion was entered.

However, by order entered June 9, 1993, the trial court

indicated that the Court is of the opinion that the Commissioner's Report should be confirmed, however, the Court is further of the opinion that no judgment order in accordance with the Commissioner's Report should be entered until such time as [husband] has provided an accounting in accordance with the Commissioner's Report;

It is further ORDERED that this order shall not be considered a final order for appeal purposes until such time as the accounting has been completed and the exact amount of the judgment order, if any, has been ascertained as a result of the accounting by [husband].

The matter was continued. By order entered May 4, 1994, husband

was directed to complete the accounting by August 1, 1994, and

2 the matter was set for hearing on September 2, 1994.

By letter opinion dated April 2, 1996, the trial judge ruled

that husband should receive sixty-five percent of the rental

income, "as determined by this Court previously, confirming the

Commissioner in Chancery." Husband's request for compensation

for managing the rental properties and wife's request for rent

from husband were denied. Husband was ordered to pay the

accounting costs incurred by wife. No order was entered

incorporating these rulings. The court held a final hearing on

August 21, 1997, and entered a final order on August 29, 1997.

The final order retained the award of sixty-five percent of the

rental income to husband; divided the marital property pursuant

to wife's exhibit 2 introduced at the August 21, 1997 hearing,

using the values determined by the commissioner; and decided

additional issues not relevant to this appeal. Neither party endorsed the decree nor noted any objections

in writing. Husband did not specifically note his objections to

the court's order during the hearing.

Standard of Review

The commissioner in chancery heard the evidence, and the

trial court received supplemental evidence and argument at the

August 1997 hearing. On appeal, [t]he commissioner's report is deemed to be prima facie correct. The commissioner has the authority to resolve conflicts in the evidence and to make factual findings. When the commissioner's findings are based upon ore tenus evidence, "due regard [must be given] to the commissioner's ability . . . to

3 see, hear and evaluate the witness at first hand." Because of the presumption of correctness, the trial judge ordinarily must sustain the commissioner's report unless the trial judge concludes that it is not supported by the evidence.

Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)

(citations omitted). However, in this case, the trial court also

received evidence and ore tenus testimony. Furthermore, [w]hen a court refers a cause to a commissioner in chancery, it does not delegate its judicial functions to the commissioner, and it is not bound by the commissioner's recommendations. Rather, the court must review the evidence, apply the correct principles of law, and make its own conclusions as to the appropriate relief required.

Dukelow v. Dukelow, 2 Va. App. 21, 26-27, 341 S.E.2d 208, 211

(1986). "The judgment of a trial court sitting in equity, when

based upon an ore tenus hearing, will not be disturbed on appeal

unless plainly wrong or without evidence to support it." Box v.

Talley, 1 Va. App. 289, 293, 338 S.E.2d 349, 351 (1986).

Revised Distribution of Real Estate While husband framed his argument on appeal in broader

terms, he argues specifically that the trial court erred when it

revised the recommended division of the marital real estate. We

find no indication that husband noted this specific objection

before the trial court or preserved this objection for appeal.

While the transcript contains a brief exchange between counsel

and the court regarding the commissioner's report, it does not

reflect that husband objected to the trial court's specific

4 decision to modify the recommendation of the commissioner, per

wife's proposed exhibit, and to transfer all rental properties to

husband. The order was not endorsed by either counsel. Husband

did not file either written exceptions or a motion to reconsider.

Therefore, we find that husband failed to preserve this issue

for appeal. See Rule 5A:18; Lee v. Lee, 12 Va. App. 512, 404

S.E.2d 736 (1991) (en banc).

Award of Rental Property and Income to Wife Wife contends that the trial court erred by awarding her

only thirty-five percent interest in the rental property acquired

by the parties during the marriage. The commissioner concluded

that the parties' contributions were "markedly unequal." The

testimony of the parties at the August 1997 hearing further

demonstrated that husband, rather than wife, was extensively

involved in managing and maintaining the rental property.

Virginia's equitable distribution scheme does not provide "a

statutory presumption of equal distribution." Papuchis v. Papuchis, 2 Va. App. 130, 132, 341 S.E.2d 829, 830 (1986).

Because there is evidence to support the commissioner's factual

finding, as affirmed by the trial court, we find no error in the

court's decision to award husband sixty-five percent of the

rental property income.

Award of Interest in Marital Residence to Wife

Wife also contends that the trial court erred when it

affirmed the finding of the commissioner that the parties should

5 equally divide the marital property, but then awarded wife only

forty-five percent of the value of the marital residence. The

commissioner found that husband's efforts increased the value of

the marital residence and justified a greater award to him.

Because evidence in the record supports the commissioner's

factual finding, we find no error in the trial court's decision

accepting that recommendation.

Accordingly, the decision of the circuit court is summarily

affirmed.