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
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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
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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
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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
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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.
Affirmed.
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