COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
SEBERT FRANKLIN SKEENS
MEMORANDUM OPINION *
v. Record No. 1035-00-2 PER CURIAM
OCTOBER 3, 2000
JOYCE ANN TOLER SKEENS
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
W. Park Lemmond, Jr., Judge
(Jacqueline Waymack; Butterworth & Waymack,
on brief), for appellant.
(Edward A. Robbins, Jr.; Timothy H. Louk; The
Robbins Law Firm, P.C., on brief), for
appellee.
Sebert Franklin Skeens (husband) appeals the decision of the
circuit court granting a divorce and equitably distributing the
parties' marital estate. He contends the trial court erred by (1)
granting Joyce Ann Toler Skeens (wife) a divorce based on his
fault; (2) dividing the marital property unequally between the
parties; (3) permitting wife to satisfy the monetary lump sum
award with the transfer of personal property; (4) designating wife
as the irrevocable beneficiary of his military Survivor Benefit
Plan; and (5) accepting the commissioner in chancery's decision on
the value of the marital property. Upon reviewing the record and
briefs of the parties, we conclude that this appeal is without
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
merit. Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
BACKGROUND
On appeal, we view the evidence in the light most favorable
to the prevailing party below, granting to her all reasonable
inferences therefrom. See McGuire v. McGuire, 10 Va. App. 248,
250, 391 S.E.2d 344, 346 (1990). On May 14, 1997 and December 9,
1997, the commissioner in chancery conducted ore tenus hearings.
He filed his report with the trial court on August 21, 1998, to
which the parties excepted. The trial court entered the final
decree on April 11, 2000.
Husband and wife were married in 1958 in West Virginia. The
trial court found that husband "wilfully abandoned and deserted"
wife. After having "carefully considered the evidence presented
by the parties and the Commissioner's Report," the trial court
ordered and decreed that wife would receive all personal property
then in her possession, which had a value of $67,802.05. The
trial court also decreed that wife would receive sole ownership
and possession of the marital home valued at $54,000, the "Lake
Gaston" property valued at $14,500, and the "Port Charlotte"
property valued at $9,200.
The trial court ordered and decreed that husband would
receive all personal property then in his possession, which had a
value of $29,722.81, and sole ownership and possession of the
property adjacent to the marital home valued at $10,100.
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Additionally, the trial court required wife to pay husband
$43,573.38. The trial court ruled that wife may satisfy the
monetary award in favor of husband by conveying an equivalent
amount of her interests in real and tangible personal property to
him. Furthermore, the trial court deemed wife to be an
irrevocable beneficiary of husband's Survivor’s Benefit Plan (SBP)
and ordered husband "to execute all documents necessary to
maintain [wife's] designation as a former spouse" and "to do
nothing to reduce or eliminate that benefit to the" wife.
DISCUSSION
[A] commissioner's report is deemed to be
prima facie correct. [A] 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 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). A decree which approves a commissioner's
report will be affirmed unless plainly wrong. See Hill v. Hill,
227 Va. 569, 577, 318 S.E.2d 292, 296 (1984).
Desertion
"Desertion occurs when one spouse breaks off marital
cohabitation with the intent to remain apart permanently without
the consent or against the will of the other spouse." Barnes v.
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Barnes, 16 Va. App. 98, 101, 428 S.E.2d 294, 297 (1993).
Desertion must be proven by a preponderance of the evidence.
See Bacon v. Bacon, 3 Va. App. 484, 490, 351 S.E.2d 37, 40-41
(1986). "It is well established that 'where dual or multiple
grounds for divorce exist, the trial judge can use his sound
discretion to select the grounds upon which he will grant the
divorce.'" Williams v. Williams, 14 Va. App. 217, 220, 415
S.E.2d 252, 253 (1992) (citation omitted).
From 1971 until 1988, husband determined "more or less" the
marriage was over. During that time, husband slept "on the
couch." He testified that he "left [wife on] April 22, [19]88."
After moving out of the marital home in 1988, husband began
"liv[ing] in a school bus" he and his son used for hunting.
Wife denied asking or forcing husband to leave the marital home.
Evidence supported the ground on which the trial court
granted the divorce. Therefore, we find no abuse of discretion
in the trial court's decision to award wife a divorce on the
ground of desertion.
Unequal Division of Assets
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732,
396 S.E.2d 675, 678 (1990). Moreover, we will not reverse an
award, "unless it appears from the record that the [trial court]
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. . . has not considered or has misapplied one of the statutory
mandates, or that the evidence fails to support the finding of
fact underlying resolution of the conflict in the equities."
Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).
Virginia's statutory scheme of equitable distribution does not
have a presumption favoring an equal distribution of assets.
See Papuchis v. Papuchis, 2 Va. App. 130, 132-33, 341 S.E.2d
829, 830-31 (1986).
In fashioning an award, the trial court is required to
consider the statutory factors set forth in Code § 20-107.3(E).
See Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436
(1991). Code § 20-107.3(E)(1) requires the court to consider
the "monetary and nonmonetary" contributions "of each party to
the well-being of the family."
"Based upon the evidence presented," the commissioner found
that wife "contributed sixty percent (60%) of the nonmonetary
factors . . . to the well-being of the family" and that husband
"contributed forty percent (40%)." He based this finding on the
fact that "[d]uring five of the thirty-five years of the
marriage, [husband] was on overseas tour of duty with the U.S.
Army; and the [wife,] of necessity, had to perform all of the
non-monetary family contributions." The commissioner also found
that, because both parties "worked throughout the marriage" and
had "approximately equal" salaries, "each [party] contributed
fifty percent (50%) of the monetary contributions." By adding
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each party's respective percentages of nonmonetary and monetary
contributions and dividing by two, the commissioner arrived at
and recommended wife receive a fifty-five percent share of the
marital assets. Because the trial court's distribution of
assets was based upon the statutory factors and was supported by
the evidence, we find no abuse of discretion.
Property Transfer to Satisfy a Lump-Sum Award
"The party against whom a monetary award is made may
satisfy the award, in whole or in part, by conveyance of
property, subject to the approval of the court." Code
§ 20-107.3(D). The trial court expressly allowed wife to convey
an equivalent amount of real and tangible personal property to
husband in satisfaction of husband's monetary award.
Husband's arguments criticizing the relative values of
wife's personal property have no bearing on the trial court's
statutory authority to allow a party to satisfy an award by
conveying property. See id. In exercising its authority, the
trial court did not abuse its discretion or commit reversible
error.
Survivor Benefit Plan (SBP)
Husband contends the trial court erred in designating wife
as the irrevocable beneficiary of the SBP plan and allocating
the monthly cost of the plan to husband "where neither the
commissioner nor the judge specifically ruled on the issue."
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On page 17 of his report, the commissioner addressed the
SBP. According to the commissioner, although husband "testified
that it is his understanding that after the divorce is granted,
he cannot cancel this coverage," the commissioner
determined from reviewing information
received from counsel . . . and from
speaking to Army Retirement Services, the
survivor benefits will be terminated once
the Department of the Army has received the
divorce decree unless (1) the [husband] is
ordered by this Court to provide SBP
coverage for [wife] or (2) the [husband]
voluntarily elects such coverage within a
year of entry of the final divorce decree.
In the final decree, the trial court decreed wife to be
"deemed as the irrevocable beneficiary of the Survivor's Benefit
Plan (SBP)" and ordered husband "to designate [wife] as a former
spouse for said purposes, to timely execute all documents
necessary to maintain [wife's] designation []as a former spouse
for such purposes, and to do nothing to reduce or eliminate that
benefit to [wife]."
"[T]he court may order a party to designate a spouse or a
former spouse as irrevocable beneficiary . . . of all or a
portion of any survivor benefit or annuity plan of whatsoever
nature." Code § 20-107.3(G)(2). Also, "[t]he court, in its
discretion, shall determine as between the parties, who shall
bear the costs of maintaining such plan." Id.
As explained above, the commissioner noted that husband
presently pays SBP coverage and that husband represented to him
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that such coverage could not be canceled by him after the
divorce was granted. Had husband's representation been
accurate, wife would have received SBP coverage that husband
could not have canceled. However, after researching the issue
and discovering that wife's SBP coverage would be terminated
unless some action is taken, the commissioner suggested two
options for assuring continued, noncancelable SBP coverage
consistent with husband's representation at the hearing. Those
suggested courses of action represent alternative
recommendations. The trial court opted to order husband to
provide the coverage rather than rely on his voluntary election
to do so. Therefore, contrary to husband's assertion, the
record demonstrates that the commissioner addressed the issue,
made a recommendation and the trial court specifically ruled on
it. Moreover, the trial court had statutory authority to order
husband to continue with the plan and to designate wife as the
irrevocable beneficiary. See Code § 20-107.3(G)(2).
Accordingly, the trial court did not abuse its discretion or
otherwise err.
Valuation Date
At the May 14, 1997 ore tenus hearing, the commissioner
admitted into evidence wife's Exhibit 5, a chart listing values
for real and personal property. Some items had one valuation,
others had dual valuations, one by wife and one by husband, and
two items contained no valuation. The commissioner employed the
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listed value where only one value was included, and he adopted
the higher value where the values differed. The commissioner
then asked husband's attorney if she was "in agreement with
that, [and] would [she] stipulate that the other values that are
shown on here are the agreed values between the parties, and the
only thing we need to consider this morning would be the two
items [for] which there is no value." Both parties agreed to
stipulate, and the commissioner indicated the stipulation in
writing on Exhibit 5.
During the hearing, the commissioner asked husband about
wife's Exhibit 3, a list of personal property taken by husband
containing values for each piece of property. Husband agreed
that the figures reflected values as of the date of separation.
Husband then contended there was no timely motion to use a
valuation date different than the day of the hearing pursuant to
Code § 20-107.3(A). The commissioner "assumed," however, the
parties "were using the date of separation, because all the
[both] of you have presented to me today here have been those
dates. I think if we now try to change that and go to the
current date, . . . we would have to reevaluate all of the
evidence before us."
The following colloquy then took place:
THE COMMISSIONER: Are you satisfied with
the valuations as of the date of separation?
[HUSBAND'S ATTORNEY]: Yes, sir.
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BY [HUSBAND'S ATTORNEY TO HUSBAND]:
Q: I guess maybe that's the question. Are you
satisfied with those values?
A: I accept it.
By stipulating to a valuation date other than the date of
the hearing, husband cannot now complain about that date's use
by the trial court. "'No litigant . . . will be permitted to
approbate and reprobate--to invite error . . . and then to take
advantage of the situation created by his own wrong.'" Manns v.
Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992)
(quoting Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d
46, 54 (1988)). Husband, "'having agreed upon the action taken
by the trial court, should not [now] be allowed to assume an
inconsistent position.'" Id. at 679, 414 S.E.2d at 615 (quoting
Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792
(1979)). Accordingly, the trial court did not err in valuing
the parties' property according to their stipulations.
For the foregoing reasons, the decision of the trial court
is summarily affirmed.
Affirmed.
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