Opinion
Record No. 2570-93-2
Decided: August 23, 1994
FROM THE CIRCUIT COURT OF HALIFAX COUNTY, Charles L. McCormick, III, Judge
Affirmed.
(John W. Carter, on brief), for appellant.
(Carol B. Gravitt; Gravitt Gravitt, on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Samuel Steele Adams (husband) appeals the circuit court's equitable distribution award to Joyce Thomas Daniel (wife). Husband raises the following issues: (1) whether the circuit court erred in failing to consider fault when making the equitable distribution award; (2) whether the evidence supports the circuit court's award; and (3) whether the circuit court properly considered the factors set out in Code Sec. 20-107.3(E). 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. Rule 5A:27.
In a bifurcated proceeding, the circuit court heard evidence ore tenus on the grounds for divorce, and referred the matter to a commissioner in chancery for the gathering of evidence on the issue of equitable distribution of the marital assets. The circuit court affirmed the commissioner's report.
The 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 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). "This rule applies with particular force to a commissioner's findings of fact based upon evidence taken in his presence but is not applicable to pure conclusions of law contained in the report." Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 296 (1984) (citation omitted). This Court must affirm the trial court's decision unless it is plainly wrong or without evidence to support it. McLaughlin v. McLaughlin, 2 Va. App. 463, 466-67, 346 S.E.2d 535, 536 (1986).
Consideration of Fault
When resolving issues of equitable distribution under Code Sec. 20-107.3(E) (5), the trial court must consider "the circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of Sec. 20-91(1)." However, "[f]ault in the dissolution of the marriage represents only one of the factors listed in Code Sec. 20-107.3 and should not be used to punish economically either of the parties to the marriage." Aster v. Gross, 7 Va. App. 1, 6, 371 S.E.2d 833, 836 (1988).
The trial judge granted a divorce on the ground that the parties had lived separate and apart for one year. The judge stated that "[wife] may be technically guilty of adultery," but noted that the evidence "indicated a marriage of long-suffering with problems on both sides." The judge was entitled to "use his sound discretion to select the appropriate grounds upon which . . . [to] grant the divorce." Zinkhan v. Zinkhan, 2 Va. App. 200, 210, 342 S.E.2d 658, 663 (1986).
Husband presented no evidence to the commissioner connecting wife's alleged adultery with any dissipation of marital assets. Neither the commissioner nor, upon review, the trial court, was required to consider "[c]ircumstances . . . [leading] to the dissolution of the marriage but [having] no effect upon marital property [or] its value" when equitably distributing the parties' marital assets. Astor, 7 Va. App. at 5-6, 371 S.E.2d at 836.
We therefore cannot say that the trial court's decision not to afford more weight to possible fault grounds made the equitable distribution award clearly erroneous or an abuse of the court's discretion.
Factual Determinations
Husband challenges the commissioner's application of the evidence to the provisions of Code Sec. 20-107.3(E). However, we find that credible evidence before the commissioner supports the factual determinations summarized in the commissioner's report.
After reviewing all the evidence, the commissioner found that this is a marriage of almost twenty years duration and . . . all the property owned by the parties is marital property. Further, there was no evidence presented . . . which would tend to indicate that either party is entitled to a greater percentage of the marital property. In fact . . . the assets accumulat[ed] during this marriage were accumulated as a direct result of the efforts of both parties and . . . based on the evidence . . . an equal division of the marital assets is appropriate.
According to the parties' testimony, both parties brought assets into the marriage, made contributions throughout the marriage, and retired certain marital debts after the marriage. Both parties participated in varying degrees in setting up and operating the parties' several businesses. Both parties contributed their income to acquiring marital assets.
Husband asserts the commissioner failed to credit him with approximately $14,000 in mortgage, insurance, and tax payments that he made following the separation and while he remained in the marital home. However, during the same period of time, wife retired marital debt in the amount of more than $12,300, which is also not specifically recited in the commissioner's report.
In addition, the parties each presented evidence valuing the marital assets and debts. Wife's evidence reflected a purchase price and a discounted value. Husband's exhibit purported to value inventory and home furnishings "at retail or worth," without any depreciation for use. The trial court was entitled to exercise its discretion in determining the reliability and credibility of the parties' valuation evidence.
The trial court's goal always is to obtain the most current and accurate information available which avoids inequitable results. The function of the Court is to arrive at a fair and equitable monetary award based upon the equities and the rights and interests of each party in the marital property. In order to accomplish this purpose, the Court must value the assets in a manner that is fair and equitable to both parties.
Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 (1987). Credible and competent evidence supports the commissioner's findings.
Therefore, we affirm the trial court's decision to accept the commissioner's report valuing and distributing the parties' marital assets.
Statutory Factors
Finally, pursuant to the decree referring the matter to the commissioner, the commissioner's report expressly addressed "any factors listed in [Code Sec. 20-107.3(E)] deemed relevant." Upon reviewing the statutory factors, the commissioner determined "based on the evidence that an equal division of the marital assets is appropriate."
Husband contends for the first time on appeal that the commissioner failed to consider the parties' contributions to the family's well-being, the parties' acquisition, care, and maintenance of the marital property, or the parties' age, mental, and physical condition. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
Accordingly, the decision of the circuit court is affirmed.
Affirmed.