Morrill v. Morrill

McCLANAHAN, Judge,

dissenting.

I disagree with the majoritys holding in this case and, for the reasons that follow, would affirm the judgment of the trial court.

“The Supreme Court has defined the authority of a commissioner in chancery in an equity proceeding as ‘an officer appointed by the chancellor to aid him in the proper and expeditious performance of his duties.’ ” Kelker v. Schmidt, 34 Va.App. 129, 136-37, 538 S.E.2d 342, 346 (2000) (quoting Raiford v. Raiford, 193 Va. 221, 226, 68 S.E.2d 888, 891 (1952)), see also Haase v. Haase, 20 Va.App. 671, 678-79, 460 S.E.2d 585, 588 (1995). The Fairfax County Circuit Court general decree directs a commissioner in chancery to find the grounds of divorce alleged in the pleadings. And, in those cases in which a party seeks equitable distribution, the commissioner is required to determine the circumstances and *632factors that may have contributed to the dissolution of the marriage. However, section 8A of the general decree specifically reserves to the trial court the findings relevant to any behavior on the part of the parties that affects the well-being of the family, its marital property and value. Those findings are to be made at the hearing on equitable distribution. Section 8A of the decree of reference makes it clear that hearings on the grounds of divorce and hearings on equitable distribution are separate and that findings at the divorce stage are not binding at the equitable distribution stage.

Upon a review of the record, it is clear that both the commissioner and chancellor understood that the commissioner’s scope of referral was limited to a finding on the issue of the grounds of divorce. The issue of how the parties’ behavior may have impacted the equitable distribution of the marital estate specifically was not referred to the commissioner, but reserved to the trial court. The commissioner found, and the chancellor affirmed, that even if husband had proven the credit card forgery allegations, they would not amount to legal justification for desertion of the marriage. The commissioner did not find that the forgery did not occur. Therefore the trial court was not precluded from hearing evidence on the forgery allegations as behavior that had an effect “upon the well-being of the family and/or the marital property and its value” as part of the equitable distribution hearing, as provided by section 8A of the general decree of reference.

The majority’s characterization of the evidence husband presented to the trial court as “additional evidence” subject to the test recited in Joynes v. Payne, 36 Va.App. 401, 551 S.E.2d 10 (2001), is misplaced. Joynes involved a situation where all of the issues in the divorce proceeding were referred to the commissioner in chancery. In the Joynes case, there was nothing left for the trial court to do but to hear exceptions to the commissioner’s report, either confirm or reject the report, and enter the final decree. In Joynes, this Court stated that it would not consider whether the request to present additional evidence was improperly denied, as the record did not disclose the nature of the evidence and the *633circumstances surrounding the request.3 In the case at bar, every issue in the proceeding, including the issue of equitable distribution, was reserved to the trial court, “other than the factors and circumstances contributing to the dissolution of [the] marriage; fault grounds to the extent pled or testified and the other statutory requirements to establish the jurisdiction of the court in the divorce proceeding.” (Transcript from commissioner’s hearing, February 14, 2008, p. 5, lines 10-15.) Therefore, because in this case, unlike in Joynes, there were issues left to the trial court that were not before the commissioner, the Joynes test for admission of additional evidence does not apply.

As the majority indicates, trial courts “have the authority to interpret their own orders.” Fredericksburg Constr. Co., Inc. v. J.W. Wyne Excavating, Inc., 260 Va. 137, 144, 530 S.E.2d 148, 152 (2000). However, on appeal, “ ‘when construing a lower court’s order, a reviewing court should give deference to the interpretation adopted by the lower court.’” Albert v. Albert, 38 Va.App. 284, 298, 563 S.E.2d 389, 396 (2002) (quoting Fredericksburg Constr. Co., 260 Va. at 144, 530 S.E.2d at 152; Rusty’s Welding Serv., Inc. v. Gibson, 29 Va.App. 119, 129, 510 S.E.2d 255, 260 (1999) (en banc)); see also Leitao v. Commonwealth, 39 Va.App. 435, 438, 573 S.E.2d 317, 319 (2002) (stating, “we defer to a trial court’s interpretation of its own order”); Smoot v. Commonwealth, 37 Va.App. 495, 500, 559 S.E.2d 409, 411 (2002). The trial court’s interpretive discretion, however, “must be exercised reasonably and not arbitrarily or capriciously.” Smoot, 37 Va.App. at 500, 559 S.E.2d at 412 (citation omitted). The analysis therefore, requires determining whether the trial court abused its discretion when interpreting its decree of reference to the commis*634sioner. That analysis does not allow this Court to substitute its own interpretation for the trial court’s interpretation, if the trial court’s construction is reasonable. I believe that the trial court’s interpretation of the decree of reference was reasonable and falls within the latitude we afford trial courts in the construction of their own decrees. For that reason, I would not find that the chancellor abused his discretion in hearing the forgery evidence for purposes of equitable distribution.

Moreover, “[wjhen a court refers a cause to a commissioner in chancery, it does not delegate its judicial functions to the commissioner and 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) (citing Lawrence v. Lawrence, 212 Va. 44, 47, 181 S.E.2d 640, 643 (1971)). Code § 8.01-610 provides: “The report of a commissioner in chancery shall not have the weight given to the verdict of a jury on conflicting evidence, but the court shall confirm or reject such report in whole or in part, according to the view which it entertains of the law and the evidence.”

The commissioner limited her discussion on the forgery issue to whether the evidence presented at the commissioner’s hearing satisfied the burden of proof, and only as to its effect on the desertion issue. The commissioner wrote,

Finally the evidence on this issue is in equipoise. With the testimony of one party in total contradiction of the other party, as clearly supported by the record here, and no evidence beyond the documents from which both parties are testifying, GRANT MORRILL did not meet his burden of proving by a preponderance of the evidence that NAHEED MORRILL forged his signature in the circumstances and for the purposes for which he has testified.

(Emphasis added.) The purpose for which husband was testifying was not equitable distribution, but grounds of divorce. The commissioner did not make a finding on the issue beyond *635whether husband had proven it for the purposes of legal justification for desertion.

Further, the commissioner did not make a specific finding that wife did not commit the forgery. The commissioner found the evidence to be in equipoise—neither proven nor disproven. The only finding that the commissioner made with regard to the forgery was to state, “However, even if true, the circumstances do not necessarily give rise to a finding of legal justification, as argued by him, or preclude the finding of desertion based on the evidence presented.” Such a statement does not rise to the level of a finding that wife did not commit the forgery. In fact, the statement leads to the conclusion that the commissioner did not need to make a finding on this issue, because it was not relevant to the purpose of the hearing, which was establishing the grounds of divorce.

The chancellor accepted and affirmed the commissioner’s report with regard to its findings on the issue of the grounds of divorce. The chancellor found no reason to grant husband’s exceptions because he agreed with the commissioner’s view that the wife’s forgery of credit card checks would not amount to legal justification for desertion of the marriage. However, affirmation of that finding on the grounds of divorce issue did not preclude the court from hearing evidence on the forgery allegations with regard to their effect on the equitable distribution award. The forgery allegations were a factor and circumstance that led to the dissolution of the marriage, even though not proven for that purpose. The sentence in section 8A of the general decree, which says, “However, the effect of that behavior upon the well-being of the family and/or the marital property and its value are to be presented at the equitable distribution hearing,” clearly indicates that the findings of the commissioner are not binding on the court in its equitable distribution hearing. The trial court was within its authority to examine evidence regarding the effect of the allegations on the marital property.

*636In this case, the commissioner was not authorized to make findings on equitable distribution; that task was left to the trial court. The commissioner made her findings on the grounds of divorce, and the trial court made its findings on equitable distribution, as required by section 8A of the decree of reference. As stated above, trial courts “have the authority to interpret their own orders.” Fredericksburg Constr. Co., Inc., 260 Va. at 144, 530 S.E.2d at 152. Therefore, I respectfully dissent. The trial court did not abuse its discretion in so interpreting the general decree.

. Additionally, in contradistinction to the majority’s view of the case, in Joynes, after the chancellor wholly affirmed the commissioner's report, it "awarded child support in a different amount than that recommended by the commissioner, presumably based upon the actual amount of private school tuition.” 36 Va.App. at 426 n. 5, 551 S.E.2d at 24 n. 5. That statement suggests that in order to make its determination of the child support amount, the trial court had evidence before it that was not before the commissioner.