COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
ROBERT L. WIDGEON
MEMORANDUM OPINION * BY
v. Record No. 1272-02-1 JUDGE LARRY G. ELDER
DECEMBER 17, 2002
SANDRA A. WIDGEON
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Victoria V. Humphreys for appellant.
Cheshire I'Anson Eveleigh (Wolcott, Rivers,
Wheary, Basnight & Kelly, P.C., on brief),
for appellee.
Robert L. Widgeon (husband) appeals from a decision of the
Virginia Beach Circuit Court (trial court) granting his former
wife, Sandra A. Widgeon (wife), a divorce and resolving issues
of child custody, equitable distribution, and attorney's fees
and costs. On appeal, he contends the trial court erroneously
(1) denied his request for divorce on grounds of desertion; (2)
awarded primary physical custody of the parties' minor child to
wife; (3) failed to require wife to pay a portion of the balance
on the second mortgage on the marital residence; and (4) ordered
him to pay half the costs of the proceeding and denied his
request for attorney's fees. He also contends the trial court's
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
decision failed to give proper deference to the credibility
determination made by the commissioner in chancery to whom the
case was referred.
We hold that, regardless of the recommendations of the
commissioner in chancery, the evidence supported the trial
court's decision to grant the parties a no-fault divorce and to
refuse to require wife to pay any of the parties' second
mortgage obligation if husband chose to refinance the marital
home rather than sell it. Finally, we conclude the trial court
based its award of primary physical custody of the parties'
child to wife on an erroneous factual finding. Thus, we remand
to the trial court to consider anew, based on the evidence in
the record, the issues of child custody and attorney's fees, and
we affirm in all other respects.
I.
A.
COMMISSIONER'S CREDIBILITY DETERMINATION
"When a trial court refers a cause to a commissioner in
chancery, it does not delegate its judicial function to the
commissioner . . . ." Kelker v. Schmidt, 34 Va. App. 129,
136-37, 538 S.E.2d 342, 346 (2000). "[W]hen the commissioner's
finding[s] [are] specifically based on what the commissioner saw
and heard," i.e., credibility determinations based on "demeanor
and appearance," and "the commissioner [makes clear this
reliance by] describ[ing] such observations in his or her
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report," "the commissioner is in a better position than the
trial judge to make factual findings on that basis," and the
chancellor must "give 'due regards' to the commissioner's
factual findings." Id. at 139-40, 538 S.E.2d at 347-48.
Conversely, "if the commissioner's determination is based
on the substance of the testimony and not upon the witness'
demeanor and appearance, such a finding is as determinable by
the trial judge as by the commissioner." Id. at 139, 538 S.E.2d
at 347. Thus, absent a clearly articulated credibility
determination by the commissioner, the chancellor is free to
reach a conclusion contrary to that of the commissioner, see
id., and on appeal, we affirm the chancellor's determination
unless it is plainly wrong, see, e.g., Snyder Plaza Props., Inc.
v. Adams Outdoor Advertising, Inc., 259 Va. 635, 641, 528 S.E.2d
452, 456 (2000).
Here, the commissioner commented on wife's credibility
directly in making his recommendation on the custody issue and
indirectly in concluding wife's bill of complaint for divorce
was not filed in good faith. However, in doing so, he referred
only to the fact that her testimony conflicted with the
testimony of others. Because he made no clearly articulated
credibility determination based on wife's "demeanor and
appearance," the trial court was free to reject the
commissioner's assessment of wife's credibility and to
redetermine her credibility based on the record.
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B.
GROUNDS FOR DIVORCE
On September 23, 1999, wife filed for divorce on grounds of
constructive desertion, based on "a course of" "cruel and
willful conduct" and "a general withdrawal from the marital
relationship." Husband was served with the bill of complaint on
September 24, 1999. Wife left the marital residence on
September 27, 1999. On September 30, 1999, husband filed an
answer and cross-bill alleging actual desertion.
Wife testified that husband physically abused her on four
separate occasions, including on Father's Day in 1994, when he
kicked her in the stomach. She called the police but opted not
to file charges against husband. Husband admitted pushing wife
during the 1994 Father's Day incident, saying wife was angry,
threw things at him, poured a drink on his head and called the
police. No other evidence corroborated the remaining three
incidents of violence about which wife testified.
Wife also testified, with corroboration, that in 1997
before the parties' child was born, husband physically left the
marital bedroom and did not return, a fact husband admitted.
The commissioner found that the bill of complaint was "not
. . . filed in good faith." He noted that wife had "not
corroborated her grounds of divorce" and that her "bill of
complaint ought to be dismissed." He recommended that husband
be granted a divorce based upon wife's desertion.
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Wife excepted to the commissioner's recommendation that
husband was entitled to a fault-based divorce on the ground that
wife deserted him when she left the marital residence after
filing for divorce. The trial court sustained wife's exception
and granted the parties a no-fault divorce based on a one-year
separation.
A "long-established rule in Virginia [provides] . . . that
'one spouse is not guilty of legal desertion in separating from
the other after the institution of a suit for divorce or during
its pendency.'" Byrd v. Byrd, 232 Va. 115, 119, 348 S.E.2d 262,
264 (1986) (quoting Alls v. Alls, 216 Va. 13, 14, 216 S.E.2d 16,
17 (1975)). The Supreme Court has recognized, however, that
this rule ought not be applied "'where the original suit turns
out to be frivolous, a mere sham created in order to permit the
complaining [spouse] to desert the defendant [spouse] with
impunity.'" Id. (quoting Roberts v. Roberts, 223 Va. 736, 741,
292 S.E.2d 370, 373 (1982)).
The spouse claiming the original suit is frivolous bears
the burden of "establishing a set of facts warranting
application of [the] exception to the Alls rule." Id. at
119-20, 348 S.E.2d at 264. The Court has defined "'frivolous'
. . . '[as] having no basis in law or fact'" and has observed
that the complaining party's allegations may be "insufficient to
support [the] claim for divorce" but still "ha[ve] a basis in
law and fact and present a bona-fide, justiciable controversy."
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Id. at 120, 348 S.E.2d at 265 (quoting Webster's Third New
International Dictionary 913 (1971)). The absence of
corroboration, standing alone, does not compel the conclusion
that the suit is frivolous. See id. It is true that the Court
in Byrd contemplated a situation in which corroboration was
lacking because "no third person was present when [the alleged
acts] occurred." Id. Nevertheless, we hold a court is not
compelled to find a suit is frivolous or has been filed in bad
faith simply because the evidence implies that corroborating
witnesses exist but the complaining spouse ultimately does not
produce those corroborating witnesses.
Here, husband admitted to the occurrence of at least a
portion of one of the incidents to which wife testified in
support of her claim for constructive desertion. Wife's failure
to provide evidence from medical or law enforcement personnel to
corroborate husband's other alleged acts of violence against her
is not dispositive of the question. Husband bore the burden of
proving wife's bill of complaint alleging constructive desertion
was frivolous, and the evidence supported the trial court's
finding that he failed to do so, despite the commissioner's
finding to the contrary. 1
1
Even when a fault ground for divorce has been proved, a
trial court retains the discretion to grant the parties a
no-fault divorce, see, e.g., Zinkhan v. Zinkhan, 2 Va. App. 200,
210, 342 S.E.2d 658, 663 (1986), and it is not compelled "to
give precedence to one proven ground of divorce over another,"
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C.
CUSTODY OF THE PARTIES' MINOR CHILD
One child, a daughter, E.L., was born of the parties'
marriage, on July 2, 1997. Each party sought primary physical
custody of E.L.
The commissioner recommended joint legal custody of the
child with primary physical custody to father. In making this
recommendation, he noted the following:
I find that [wife's] credibility is
less persuasive than that of [husband].
. . . . Her testimony is contradicted
and not supported by the child's teacher and
daycare provider, while the father's
testimony has not been.
It appears to me that the father is the
person who will most promote a relationship
with the other parent and who will be more
supportive of the child consistent with her
best interests.
Contrary to the commissioner's recommendation, the trial
court awarded primary physical custody of E.L. to wife. In
doing so, it found husband was "a very good father" who
"certainly seems involved in both his child's upbringing, and
his stepson's upbringing." It found "most of the criteria in
the statute, the ages of the part[ies] and those kind[s] of
things, are probably a wash," but that "[i]t . . . appear[ed,]
. . . before the situation escalated, . . . it was the mother
that was more involved with the day-to-day upbringing [of E.L.],
Robertson v. Robertson, 215 Va. 425, 426, 211 S.E.2d 41, 43
(1975).
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doctor's appointments and things like that." It observed
further that wife's son's specific testimony about E.L. and
"what goes on with [her]" permitted certain inferences about the
positive nature of the relationship between E.L. and her
stepbrother. The court concluded that "the scale tips in the
mother's favor . . . [p]rimarily because of the way the child
reacts with the stepson[] and the fact that she sleeps with the
primary caretaker." The trial court did, however, caution wife
against "doing anything to keep that child from a relationship
with the father" and indicated that such behavior could provide
grounds for a change in custody.
In custody determinations, "the controlling consideration
is always the child's welfare . . . ." Sutherland v.
Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992). In
determining what custodial arrangement serves the best interests
of a child, the court shall consider the factors enumerated in
Code § 20-124.3. These factors include the relationship of the
child with each parent and "other important relationships
. . . , including but not limited to siblings, peers and
extended family members." Code § 20-124.3(3), (4).
Husband contends the evidence failed to support two of the
findings of fact upon which the trial court based its custody
decision. In ruling that "the scale tips in the mother's
favor," the trial court relied "primarily" on "the way the child
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reacts with the stepson, and the fact that she sleeps with the
primary caretaker."
Evidence in the record supports the first of these
findings. The commissioner stated in his report that the record
was devoid of "testimony as to the relationship between [the
parties' daughter and her stepbrother, wife's son from a
previous relationship]." Although the trial court referred to
"the way the [parties'] child reacts with the stepson," it noted
that
just listening to the stepson talk about the
birthday parties and who organized which,
that there is just some explicit information
that you can take about the relationship of
the two kids, just from the testimony, and
his knowledge of what goes on with his
younger sister, and the extent that he knows
what happens with her.
We hold the inferences the trial court drew from this testimony
were not plainly wrong or without evidence to support them.
The record, however, is devoid of any evidence to support
the trial court's statement that "[the parties' child] sleeps
with the primary caretaker." Assuming the trial court's use of
the term, "primary caretaker," referred to wife, no one
testified that the parties' child physically slept in the same
bed or the same room with wife. Further, no evidence
established that the child stayed overnight more frequently with
wife than husband under the visitation schedule then in effect.
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We are unable to conclude this factual error was harmless
under the specific facts and procedural posture of this case,
including the trial court's decision not to follow the custody
recommendation of the commissioner and the trial court's
statement that this erroneous finding was one of the
"[p]rimar[]y" facts upon which it relied in awarding custody.
Thus, we remand to the trial court to reconsider its custody
award based on the evidence in the record.
D.
THE MARITAL RESIDENCE
The parties obtained a second mortgage in 1996 to pay the
debts of both parties, most of which were incurred separately
before the marriage. Wife represented that about 40% of the
debt resulted from her premarital obligations. Husband's
evidence indicated that approximately 48% of the debt resulted
from his premarital obligations, 43% of the debt resulted from
wife's, and 9% of the debt was incurred jointly by the couple
during the marriage. Once the second mortgage debt was
incurred, the parties made payments on that mortgage in
proportion to the share of their respective premarital debt paid
off with mortgage proceeds.
Husband sought to refinance the house in his name only and
to have wife held responsible for half the second mortgage. The
commissioner found the marital equity to be $2,316.74. He
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recommended that husband be allowed to refinance the house and
purchase wife's interest in the property for $1,158.37.
The trial court ruled that if the home were sold, any
remaining equity was to be divided evenly by the parties. The
trial court found that the transaction would "become[] a wash"
if the home were refinanced by husband alone. Husband did not
object to any of the figures the trial court used in its
calculations and contends only that he should not be required to
pay wife's premarital debt, which remained her separate
property. We assume without deciding that wife's premarital
debt remained her separate obligation, even though it was
commingled with husband's separate property and marital property
and converted into a second mortgage on a marital asset.
Nevertheless, the evidence, viewed in the light most favorable
to wife, supported a finding that allowing husband to refinance
the house without awarding wife a share of any equity in the
property sufficiently compensated husband for wife's share of
the second mortgage.
The trial court used the $101,000 appraisal figure for the
property rather than the $89,912 figure used for purposes of the
city's real estate tax assessment. The outstanding balance on
the first mortgage was $86,398.26, leaving equity of $14,601.74,
not including the second mortgage balance.
The balance on the second mortgage was $12,285--less than
the $14,601.74 equity remaining after satisfaction of the first
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mortgage. The evidence established that wife's separate share,
if any, of the parties' joint obligation on the second mortgage,
based upon the amount of her separate premarital debt, was no
greater than husband's separate share. Thus, attributing both
half the $14,601.74 equity and half the second mortgage
obligation to each party, actual equity of $2,316.74 would
remain to be divided between the parties after satisfaction of
both mortgage obligations. Although husband represented he
would have to "pay significantly" to refinance the property, he
offered no evidence of what his refinancing costs would be. The
trial court also observed that husband "did end up with a truck
out of this," although evidence of the truck's value was
lacking. Because the appraisal figure exceeded the first and
second mortgage balances and husband provided no evidence of
refinancing costs, we hold the trial court's ruling allowing
husband to refinance without paying wife for her share of any
equity in the property sufficiently compensated husband for
having to assume wife's share of the second mortgage obligation.
If husband felt the refinancing option resulted in financial
unfairness, he retained the option of having the house sold,
with any resulting equity or expenses to be divided evenly by
the parties.
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E.
ATTORNEY'S FEES AND COSTS
The commissioner recommended that wife reimburse husband
for $3,500 of his attorney's fees and that wife pay all costs.
The trial court held each party responsible for his or her own
attorney's fees and directed them to divide the costs equally.
Whether to award attorney's fees and costs rests within the
sound discretion of the trial court. See, e.g., Lightburn v.
Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996).
Based on the trial court's rejection of the commissioner's
recommendation for a fault-based divorce and its finding that
both parties "probably did things they didn't need to," we hold
the trial court did not abuse its discretion in requiring the
parties to pay their own attorney's fees and to divide costs
evenly. However, because we remand on the custody issue, we
direct the court to consider anew the issue of attorney's fees
and costs in light of its decision on the custody issue.
II.
For these reasons, we hold the evidence supported the trial
court's decision to grant the parties a no-fault divorce and to
refuse to require wife to pay any of the parties' second
mortgage obligation if husband chose to refinance the marital
home rather than sell it. Finally, we conclude the trial court
based its award of primary physical custody of the parties'
child to wife on an erroneous finding. Thus, we remand to the
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trial court to consider anew, based on the evidence in the
record, the issues of child custody and attorney's fees, and we
affirm in all other respects.
Affirmed in part,
reversed in part
and remanded.
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