COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
GINGER LYNN HEATH
OPINION BY
v. Record No. 0133-02-1 JUDGE ROBERT J. HUMPHREYS
AUGUST 20, 2002
JEFFREY BURTON HEATH
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Oldric J. LaBell, Jr., for appellant.
Douglas J. Walter (McDermott & Roe, on
brief), for appellee.
Ginger Lynn Heath ("wife") appeals the circuit court's
October 25, 2001 entry of the final decree of divorce. Wife
contends the chancellor erred (1) in holding that it was bound by
the commissioner in chancery's determination that no spousal
support should be ordered because wife filed no exception to the
report, and (2) in entering the final decree of divorce consistent
therewith. For the reasons that follow, we disagree and affirm
the judgment of the chancellor.
I. Background
Under familiar principles, "[w]e review the evidence in the
light most favorable to . . . the party prevailing below and grant
all reasonable inferences fairly deducible therefrom." 1 So
viewed, the facts below established that Jeffrey Burton Heath
("husband") initiated divorce proceedings against wife in the
Newport News circuit court on March 8, 2000. In her cross-bill,
wife sought custody of the parties' minor children, child support,
temporary and permanent spousal support, and equitable
distribution of the parties' marital property.
The case was referred to a commissioner in chancery on May
30, 2000, for a recommendation on various issues, as well as
"whether an order for support and maintenance of a spouse shall be
modified or vacated." Subsequently, the circuit court entered a
pendente lite order, directing husband to pay wife $500 per month
in temporary spousal support.
The hearing before the commissioner in chancery was held on
January 22, 2001. Husband attended the hearing, with counsel.
Wife did not attend the hearing, because of the parties' minor
child's medical appointment. However, wife's counsel attended the
hearing on her behalf and raised no objection to proceeding in
wife's absence. In addition, wife's counsel sought no permanent
award of spousal support.
In the commissioner's May 31, 2001 report, the commissioner
found, among other things, that wife failed to attend the hearing,
1
Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d
369, 372 (1999).
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that wife failed to subsequently provide medical evidence in
support of her absence, and that because wife sought no permanent
award of spousal support, during either the pretrial conference or
the hearing, no spousal support should be ordered.
Subsequent to the release of the commissioner's report, wife
obtained new counsel, who requested additional time to review the
report. The trial court granted wife's counsel's request,
granting wife additional time to review the report and a ten-day
extension of time to file any exceptions to the report. However,
no exceptions were filed within the extension period.
On October 25, 2001, the circuit court held a hearing on
husband's motion for entry of the final decree of divorce. The
proposed final decree stated, "because [wife] did not seek an
award of spousal support, none is ordered." Wife objected to the
entry of the proposed decree because of the denial of spousal
support. The chancellor overruled the objection and entered the
final decree containing no spousal support award, finding that it
was "legally bound by the recommendations and provisions of the
report relating to the matter because no exceptions to the
commissioner's report had been filed within the extended time
specified by the Court."
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II. Analysis
It is well settled that the chancellor has broad discretion
in awarding spousal support under Code §§ 20-107.1 and 20-107.3. 2
Such awards will not be set aside unless the record shows that
some injustice has been done.3 "The burden is on the party who
alleges reversible error to show by the record that reversal is
the remedy to which he is entitled." 4
Further, although the report of a commissioner in chancery
does not carry the weight of a jury's verdict, 5 "'an appellate
court must give due regard to the commissioner's ability, not
shared by the chancellor, to see, hear, and evaluate the witnesses
at first hand.'" 6 "A commissioner's findings of fact which have
been accepted by the trial court 'are presumed to be correct when
reviewed on appeal and are to be given "great weight" by this
2
Gibson v. Gibson, 5 Va. App. 426, 434, 364 S.E.2d 518, 523
(1988). See also Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d
728, 732 (1987) (superseded by statute on other grounds).
3
Id.
4
Lutes v. Alexander, 14 Va. App. 1075, 1077, 421 S.E.2d
857, 859 (1992).
5
See Code § 8.01-610.
6
Jarvis v. Tonkin, 238 Va. 115, 122, 380 S.E.2d 900, 904
(1989) (quoting Morris v. United Virginia Bank, 237 Va. 331,
337-38, 377 S.E.2d 611, 614 (1989)).
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Court. The findings will not be reversed on appeal unless plainly
wrong.'" 7
"The use of commissioners in chancery has been of long
standing in Virginia." 8 Specifically, we have found that there is
nothing improper about referring "questions . . . to a
commissioner in chancery," 9 as long as the trial court fulfills
its "duty to make factual determinations" by either "affirm[ing]
or reject[ing] the commissioner's report, in whole or in part,
according to the view the court entertains of the law and the
evidence." 10 By statute, "[e]xceptions to a commissioner's report
shall be filed within ten days after such report has been filed
with the court." 11
In this instance, the chancellor specifically stated in his
decree of reference that, pursuant to the parties' joint motion
under Code § 20-107.3, the parties were to present the
commissioner in chancery with evidence and testimony concerning
7
Barker v. Barker, 27 Va. App. 519, 531, 500 S.E.2d 240,
245-46 (1998) (quoting Rowe v. Rowe, 24 Va. App. 123, 140, 480
S.E.2d 760, 768 (1997) (quoting Pavlock v. Gallop, 207 Va. 989,
994, 154 S.E.2d 153, 157 (1967))).
8
Klein v. Klein, 11 Va. App. 155, 159, 396 S.E.2d 866, 869
(1990).
9
Id.; see also Code §§ 8.01-607 and 8.01-615.
10
Kaufman v. Kaufman, 7 Va. App. 488, 501-02, 375 S.E.2d
374, 381 (1988) (citing Code § 8.01-610).
11
Klein, 11 Va. App. at 160, 396 S.E.2d at 869 (citing Code
§ 8.01-615).
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various issues, including the amount of any monetary award to
either party, and:
(a) whether an order for support and
maintenance of a spouse shall be modified or
vacated, (b) whether any such maintenance
and support shall be made in periodic
payments or in a lump sum award, or both,
and (c) the amount or amounts [and] any
other provision(s) thereof, all pursuant to
criteria and subject restrictions set forth
in Section 20-107.1 . . . .
The decree also directed the parties to provide evidence
concerning "such other inquiry as may be agreed upon by the
parties or to the Commissioner shall seem meet."
Wife raised no objection to the decree of reference referring
the case to the commissioner. Further, wife had the opportunity
to request and present evidence on the issue of spousal support at
the hearing, but failed to do so.
Moreover, wife's claim that the letter sent to the parties by
the commissioner, describing the scope of the hearing, did not
"mention spousal support as a subject to be covered," as well as
her claim that the issue of spousal support was not "taken up at
the commissioner's hearing," simply demonstrates a lack of
diligence and/or carelessness in pursuing the issue. The court
specifically ordered the commissioner to consider the matter of
support, as well as any other matters deemed appropriate by the
parties and the commissioner, during their hearing, pursuant to
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their joint motion for dissolution of the marriage and
distribution of the parties' assets under Code § 20-107.3. 12
In addition, wife filed no exceptions to the commissioner's
report within the statutorily prescribed time limit, or within the
extension of time granted by the trial court. Accordingly, the
record provides no indication that wife properly raised in the
trial court her question presented. In making this ruling, we
note that any objection raised for the first time during the
hearing on husband's motion for final decree of divorce, raised
approximately four months past the ten-day deadline for filing
exceptions to the commissioner's report, was not timely raised and
was not properly before the chancellor. 13 It has long been
12
Wife's claim that Code § 20-107.3(F) "provides that after
a marital property award is made, the court '. . . shall, after
or at the time of such determination and upon the motion of
either party, consider whether an order for support and
maintenance of a spouse . . . shall be entered or if previously
entered whether such order shall be modified or vacated," is
also without merit and demonstrates an obvious misinterpretation
of the statute. Code § 20-107.3(D) gives the trial court
discretion to grant a monetary award. By its plain and
unambiguous language, subsection (F) directs the court to
"determine the amount of any such monetary award without regard
to maintenance and support awarded either party," and to
determine whether an award for spousal support should be entered
and/or modified or vacated "after or at the time of such
determination." Code § 20-107.3(F) (emphasis added). This is
precisely what the chancellor did in this situation, when it
ordered the parties to present evidence of any claim to a
monetary award, as well as spousal support, to the commissioner.
13
See Code § 8.01-615.
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settled that "[a] party who believes the commissioner's report to
be in error must except to the perceived error . . . ."14
Finally,
[t]he rule is that the parts of a report not
excepted to, are to be considered as
admitted to be correct — both as regards the
principles and the evidence upon which they
are founded: otherwise the opposite party
would be taken by surprise, and, in
consequence thereof, injustice might be
done. Exceptions partake of the nature of
special demurrers, and hence, as the
authorities say, the party excepting must
"put his finger on the error," that the
court may see what it has to decide. It is
too late, however, to do so for the first
time in the appellate court, unless the
report be erroneous on its face. 15
Here, "[n]o error appears on the face of the report of the
commissioner nor on the face of the decree of the chancellor.
Except as to such apparent errors, a report of a commissioner in
chancery is prima facie correct." 16 Thus, "[t]he conclusion of
the commissioner and the adjudication of the court, by the
decree complained of based thereon, . . . [were] final and
14
Matthews v. Matthews, 26 Va. App. 638, 649, 496 S.E.2d
126, 131 (1998) (citing McLaughlin v. McLaughlin, 2 Va. App.
463, 470, 346 S.E.2d 535, 539 (1986)).
15
Cralle v. Cralle, 84 Va. 198, 201, 6 S.E. 12, 13-14
(1887) (citing Simmons v. Simmons, 74 Va. 451 (33 Gratt.)
(1880); Morrison v. Householder, 79 Va. 627 (1884); Ashby v.
Bell, 80 Va. 811 (1885)).
16
Trotman v. Trotman, 148 Va. 860, 867-68, 139 S.E. 490,
494 (1927).
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conclusive upon [wife] and are not open to review in this
court." 17
Thus, we find no abuse of discretion on the part of the
chancellor in refusing to consider the spousal support issue on
the merits, for the first time, during the hearing on the motion
to enter the final divorce decree. For the foregoing reasons, the
judgment of the chancellor is affirmed.
Affirmed.
17
Id. at 868, 139 S.E. at 492 (citations omitted).
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