COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
JOIE Y. CAMETAS
MEMORANDUM OPINION * BY
v. Record No. 2597-99-2 JUDGE JAMES W. BENTON, JR.
AUGUST 1, 2000
JOHN G. CAMETAS
FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
F. Ward Harkrader, Jr., Judge
Susan W. Allport (Rae H. Ely; Rae H. Ely and
Associates, on briefs), for appellant.
Murray J. Janus (Deanna D. Cook; Bremner,
Janus, Cook & Marcus, on brief), for
appellee.
John G. Cametas and Joie Y. Cametas were divorced by final
decree, entered March 29, 1994. The wife contends that the trial
judge committed the following eight errors: (1) refusing to
reopen the commissioner's hearing to allow new evidence
regarding the changes in value in the marital property from the
parties' separation in 1991 to the issuance of the
commissioner's report in 1998; (2) refusing to grant an
accounting of the marital assets and the growth and income
derived from those assets between 1991 and 1998; (3) adopting
the commissioner's valuation of a business based on the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
hypothetical assumption of a future sale of the business to a
non-physician; (4) finding that an income producing real
property had a debt of $1,125,189, allegedly given by the
husband from marital funds and then borrowed back from his
family; (5) determining the equity in the income producing real
property by applying a year-end 1991 mortgage balance against a
year-end 1993 value; (6) failing to provide the wife any of the
investment growth on her share of the pension and profit sharing
assets from 1991 to the date of distribution in 1999; (7)
finding that the wife should receive only $3,600 per month
spousal support; and (8) denying the wife's application for her
attorney's fees for services incurred after the filing of the
commissioner's report. The wife also asks that the husband be
required to pay attorney's fees, costs, and expenses necessary
to undertake this appeal and for all proceedings on remand.
Upon reviewing the record and briefs of the parties, we affirm
the judgment.
I.
The parties married on November 19, 1960, and separated in
October 1991. The husband is a physician and has worked in that
capacity since completing medical school. The wife has a
master's degree in education and worked as a school teacher
until the husband established his medical practice. The wife
then remained at home to raise their four children and was the
primary caretaker for the children. She contributed
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approximately $66,000 monetarily to the family during the
marriage. The husband contributed approximately $4,500,000
monetarily to the family during the marriage.
The husband filed a bill of complaint in 1993. A
commissioner's hearing, in which evidence was presented ore
tenus, occurred over five days between November 1, 1994 and
January 6, 1995. The commissioner filed his report more than
three years later in 1998. The trial judge ratified the
commissioner's report, rejected all of the wife's exceptions to
the report, and ordered the distribution of all marital property
on May 27, 1999.
II.
The husband contends the wife failed to preserve for appeal
objections to several of the issues she raises on appeal. We
agree. Rule 5A:18 provides that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice." As we have
repeatedly ruled, "[t]he purpose of Rule 5A:18 is to provide the
trial court with the opportunity to remedy any error so that an
appeal is not necessary." Knight v. Commonwealth, 18 Va. App.
207, 216, 443 S.E.2d 165, 170 (1994).
The wife contends she preserved her objection to the trial
judge's valuation of Pembroke Occupational Health, a company
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founded by the husband, based on the hypothetical assumption of
a future sale of the business to a non-physician. She refers to
paragraph three of her exceptions to the commissioner's report,
paragraph ten of her motion to strike the report of the
commissioner, and oral argument in the circuit court on June 23,
1998. Each of these objections, however, raises only the wife's
general objections that the commissioner's valuation of the
marital properties is out-of-date because it does not account
for the husband's use of the wife's assets from 1991 to 1998 and
that the commissioner "based his valuation on speculative
projections which given the passage of time were moot." Indeed,
the wife points to no place in the record where she timely
raised an objection that the commissioner based his findings on
a "hypothetical assumption of a speculative future sale to a
non-physician."
The record fails to support the wife's contention that she
preserved her objection to the commissioner's finding that the
income producing real property, known as the Lydall plant, had a
debt against it of $1,125,189, which the husband allegedly
created in favor of his family and then borrowed back from them.
The wife claims she preserved the objection in paragraph five of
her exceptions to the commissioner's report. That exception
only concerns a general objection that the commissioner's
findings were out-of-date, erroneous, and without the support of
a record.
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The record also fails to support the wife's claim that she
preserved, in paragraphs three and five of her exceptions to the
commissioner's report, her objection to the commissioner's
determination that the equity in the Lydall plant should be
measured by applying a year-end 1991 mortgage balance against a
year-end 1993 value. Those exceptions are general objections to
the values applied to marital property by the commissioner.
The wife further contends that her trial counsel preserved
objections to each of these issues when she included on the
final order the phrase, "[w]ith all earlier objections
preserved." Such an objection "does not preserve an issue for
appeal unless the record further reveals that the issue was
properly raised for consideration by the trial court." Twardy
v. Twardy, 14 Va. App. 651, 657, 419 S.E.2d 848, 851 (1992) (en
banc) (citation omitted). As we have indicated above, none of
these objections were properly raised at trial.
The record, therefore, provides no indication that the wife
properly raised in the trial court her third, fourth, and fifth
questions presented. In making this ruling, we note that any
objections raised for the first time in the wife's "Supplement
to Exceptions" filed almost eight months past the ten-day
deadline for filing exceptions to the commissioner's report were
not timely filed and were not properly before the trial judge.
See Code § 8.01-615. Although the trial judge granted the
parties an extension of time to file "memoranda in support of
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their [previously filed] respective exceptions to the
[commissioner's] report," he did not grant the wife leave to
file supplemental exceptions. The wife's "Supplement to
Exceptions" raised objections to the commissioner's report which
were far more specific than the original filing and went beyond
the scope of the trial judge's directive.
Upon our review, we find no reason in the record to invoke
the good cause or ends of justice exceptions to Rule 5A:18.
"[T]he ends of justice exception is narrow
and is to be used sparingly . . . ." "[I]t
is a rare case in which, rather than invoke
Rule [5A:18], we rely upon the exception and
consider an assignment of error not
preserved at trial. . . ." In order to
avail oneself of the exception, a defendant
must affirmatively show that a miscarriage
of justice has occurred, not that a
miscarriage of justice might have occurred.
The trial error must be "clear, substantial
and material."
Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269,
272 (1997) (emphasis in original) (citations omitted). The
evidence does not support application of the exception;
therefore, Rule 5A:18 bars our consideration of these issues on
appeal.
III.
"Although the report of a commissioner in chancery is not
given the same weight as a jury verdict, it must be sustained
unless the trial judge determines that the evidence does not
support the commissioner's findings." Robinson v. Robinson, 5
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Va. App. 222, 225, 361 S.E.2d 356, 357 (1987). "On appeal, a
decree which approves a commissioner's report will be affirmed
unless plainly wrong." Hill v. Hill, 227 Va. 569, 577, 318
S.E.2d 292, 296 (1984).
IV.
The wife contends the trial judge erred in refusing to
reopen the hearing to reconsider his decision to value the
marital property as of the date of separation in 1991, rather
than the date of the issuance of the commissioner's report in
1998. "Motions to reopen a hearing to take further evidence are
matters within the [trial judge's] discretion." Shooltz v.
Shooltz, 27 Va. App. 264, 269, 498 S.E.2d 437, 439 (1998)
(citation omitted). "Usually, such motions are based upon error
apparent on the face of the record, or for the purpose of
introducing after-discovered evidence." Kirn v. Bembury, 163
Va. 891, 901, 178 S.E. 53, 56 (1935).
In the present case, the trial judge declined to reopen the
hearing for consideration of the change in value of the marital
property after a delay in the release of the commissioner's
report. In view of the trial judge's finding "that the turnover
of [wife's] counsel in this case is probably the primary reason
for the delay in this case," we cannot say the trial judge
abused his discretion in deciding that a hearing was not
necessary. No evidence in the record indicates that his finding
was plainly wrong. Moreover, the trial judge noted that the
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wife never moved to "expedite the case [while it was pending]
before the Commissioner."
Under Code § 20-107.3(A), the trial judge acted within his
discretion to choose a valuation date other than the date of the
evidentiary hearing. The commissioner had recommended that the
assets be valued as of the separation date for the following
reasons:
From the evidence presented to the
Commissioner, it did not appear[] the
parties worked together as a partnership for
years before their separation, and in fact,
it appeared at time they barely spoke and
maintained separate lives. It further
appeared [the husband] not only ran a very
active medical practice, but additionally
worked long hours starting and operating
Pembroke Occupational Health.
The evidence further indicated [the wife]
enjoyed a very active social life with her
friends and often played tennis during the
day. The record further reveals [the wife]
made harassing phone calls to [the
husband's] employees, which interfered with
[the husband's] business and she was held in
contempt by the Court for interfering with
[his] business. Further, the parties
separated on October 6, 1991, and the
evidentiary hearing was not held until
November, 1994, approximately three (3)
years and one (1) month after the
separation. Your Commissioner finds to set
the valuation date as of the date of the
evidentiary hearing would not attain the
ends of justice.
The commissioner recommended, and the trial judge agreed,
that the real property in the marital estate, except the marital
residence and two lots owned as part of the husband's profit
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sharing and retirement plan, should be distributed to the
husband. The distribution of the real property was not based on
a percentage of the value of all the assets but, rather,
primarily on the role of the parties in the acquisition and
upkeep of the properties. Indeed, all of the properties awarded
to the husband were already solely in his name. The
appreciation or depreciation on the properties, therefore, was
irrelevant to the ultimate distribution. Moreover, following
his recommendation for distribution of assets, the commissioner
stated that "if [he] had found the value of the marital property
which [he] has recommended be transferred and distributed to
[the husband] to be of greater value, [he] would have
recommended that the additional value be transferred to [the
husband]." We hold that the trial judge's decision was not
plainly wrong. We, therefore, affirm the trial judge's decision
to value the property as of the date of separation.
V.
The wife contends that the trial judge erred in refusing to
order an accounting of the parties' marital assets. We
disagree.
"Under Virginia law, an accounting is a form of equitable
relief which is available upon Order of a court in equity
providing for an accounting of funds among those with a
partnership or other fiduciary relation." McClung v. Smith, 870
F. Supp. 1384, 1400 (E.D. Va. 1994). In McClung, the trial
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judge ordered an accounting because the husband was an attorney
and had mishandled the wife's finances while acting as a
fiduciary. See id. The parties in this case, however, are not
in a fiduciary relationship. Cf. Barnes v. Barnes, 231 Va. 39,
42, 340 S.E.2d 803, 804 (1986) (holding that "[i]f a husband and
wife separate and employ attorneys to negotiate an agreement in
settlement of their property rights, they become adversaries and
their former fiduciary or confidential relationship ends").
Moreover, all of the assets for which the wife requested an
accounting were titled only in the husband's name. For these
reasons, we affirm the trial judge's decision to deny the
request for an accounting.
VI.
The record fails to support the wife's claim, in its
entirety, that she preserved in paragraphs seven and eight of
her exceptions to the commissioner's report her objection to the
commissioner's finding that she is not entitled to any of the
investment growth on her share of the pension and profit sharing
assets from 1991 to the date of distribution in 1999. The
wife's exceptions are general objections to the commissioner's
valuations "as being out-of-date; as containing erroneous
conclusions and without the support of a record by which the
Court may review the findings and conclusions of the
Commissioner." In addition to that general objection, she did
note, however, a specific objection in the following argument:
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[W]here you have an Order that says a party
is entitled to forty percent of something,
and then gives a dollar value of what that
forty percent was in 1991 or 1994, I think
that's an issue that needs to be addressed.
Because let's say hypothetically there
was a two hundred thousand dollar gain on
the receiving spouse's part that was lost
because there was not an accounting.
Thus, we hold that the wife preserved her objection to the
finding of the commissioner concerning the cash portion of the
husband's profit sharing and retirement plan.
The commissioner recommended that the wife "receive . . .
($678,000) representing [forty percent] of the profit sharing
and retirement plan for Pembroke [Occupational Health] and
Henrico Family Physicians . . . [and that the wife] be given two
of the lots . . . with a total value of $476,000, plus
additional liquid funds in the amount of $202,000."
In Zipf v. Zipf, 8 Va. App. 387, 382
S.E.2d 263 (1989), we rejected limitation of
a pension award, payable in the future, to a
"present value calculation" because it
denied the benefit of "future earnings and
adjustments that are attributable to the
. . . deferred share" and its "future
appreciation. It is only fair that both
parties share in the increased value of the
pension," or one will be "receiving the
increase in value" over time which is
attributable to the other's marital
interest. Contrary to husband's view, such
enhancement is clearly a part of the "total
[pension] interest" component of the marital
share equation and obviously distinguishable
from a judicial award of interest on a
deferred share of a pension.
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Banagan v. Banagan, 17 Va. App. 321, 325-26, 437 S.E.2d 229, 231
(1993) (citations omitted).
In conceding that the wife was entitled to any appreciation
on the $202,000 cash portion of the 40% share the commissioner
recommended, the husband said the following:
[As regards] the $202,000, we would be
willing and I think the law would be
appropriate that if she would get any gain
or appreciation or loss on that from the
date of the hearing, . . . so if that has
appreciated, I think in retirement funds
she's entitled to it. She's not entitled to
any contributions made, but to any
appreciation.
We hold, therefore, that the wife is entitled to any
appreciation on the $202,000 cash portion of the profit sharing
and retirement plan for Pembroke Occupational Health and Henrico
Family Physicians.
VII.
"The determination whether a spouse is entitled to support,
and[,] if so[,] how much, is a matter within the discretion of
the [trial judge] and will not be disturbed on appeal unless it
is clear that some injustice has been done." Gottlieb v.
Gottlieb, 19 Va. App. 77, 84, 448 S.E.2d 666, 671 (1994)
(citation omitted). "[T]he amount of support is based on
current needs of the spouse . . . and the ability of the other
spouse . . . to pay from current assets." Williams v. Williams,
4 Va. App. 19, 24, 354 S.E.2d 64, 66 (1987).
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The wife contends that the trial judge erred in awarding
her spousal support of only $3,600. She argues that the
husband's income is approximately $700,000 per year and
justifies a greater award. The record establishes that the wife
submitted an income and expense report to the commissioner
listing monthly expenses of $5,964.50. The commissioner noted
that the wife "acknowledged during the hearing a number of the
items on the exhibit were not actual representations of expenses
she was incurring." He also noted that there are no mortgage
payments due on the residence and found the following expenses
unreasonable: "$900 per month for food; $200 per month support
for mother; approximately $265 per month for the support of an
adult daughter; the sum of $1,000 per month for entertainment
and vacation." The wife also admitted that because the husband
had taken care of all the expenses, he was in a better position
to estimate her monthly expenses.
The record further establishes that prior to the final
award, the husband paid $3,000 monthly in pendente lite spousal
support. During this time, the wife managed to save $7,000 out
of the spousal support. The commissioner also found "no
evidence of any physical reason why [the wife] would not be able
to be gainfully employed and contribute to her own support." On
this record, we cannot say the trial judge abused his discretion
awarding the wife $3,600 in monthly spousal support. Therefore,
we affirm the award.
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VIII.
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion. The key to a proper award of
counsel fees is reasonableness under all the circumstances."
Brooks v. Brooks, 27 Va. App. 314, 319, 498 S.E.2d 461, 463-64
(1998) (citations omitted). The wife contends, however, that
the trial judge erred in denying her request for attorney's fees
for services rendered after the filing of the commissioner's
report.
The trial judge found that because the husband had already
paid $13,500 in attorney and expert's fees, the parties should
be responsible for any of their own attorney's fees. Moreover,
because of the assets the wife received as part of the equitable
distribution, the evidence does not demonstrate that it would
create a hardship for the wife to pay her additional attorney's
fees. We, therefore, affirm the trial judge's order denying
attorney's fees for services rendered after the filing of the
commissioner's report.
IX.
The wife contends the husband should pay her attorney's
fees for this appeal and all proceedings on remand. The wife
offers no compelling reason why the husband should be required
to pay her attorney's fees. Accordingly, we deny this request.
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The husband contends that he is entitled to reimbursement
for his costs incurred in preparing the appendix for this
appeal. The husband designated, among other things, the entire
transcript of the five day hearing before the commissioner. The
wife properly informed the husband that she believed portions of
the record he designated were unnecessary for the determination
of the issues presented. See Rule 5A:25(f). Because the
husband refused to designate those portions of the record
germane to the issues on appeal, we deny his request for
reimbursement for his costs incurred in preparing the appendix.
For the foregoing reasons, we affirm the judgment, remand
to the trial judge for a further award to the wife for any
appreciation of the cash portion of the profit sharing and
retirement plan, deny the wife's request for attorney's fees,
and deny the husband's request for reimbursement for the costs
he incurred in preparing the appendix.
Affirmed and remanded.
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