Opinion
Record No. 0851-93-1
November 30, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH KENNETH N. WHITEHURST, JR., JUDGE.
(William F. Burnside, on brief), for appellant.
(Henry M. Schwan, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27.
Cherry Carlton Ashley (wife) raises the following issues on appeal: (1) whether the trial court erred in denying her request for interest on $35,165.50 awarded to her in its initial decision on August 18, 1989; and (2) whether the trial court erred in granting Millard Doyle Ashley (husband) one-half the rental value of the marital residence for the period following the final divorce decree when wife was the sole occupant of the residence.
On appeal, we construe the evidence in the light most favorable to the prevailing party, granting that party all inferences fairly deducible therefrom. McGuire v. McGuire, 10 Va. App. 248, 250, 391 S.E.2d 344, 346 (1990). Evidence regarding the issues of equitable distribution and spousal support was heard by a commissioner in chancery. "The commissioner's report is deemed to be prima facie correct."Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990). "The decree confirming the commissioner's report is presumed to be correct and will not be disturbed if it is reasonably supported by substantial, competent, and credible evidence." Brawand v. Brawand, 1 Va. App. 305, 308, 338 S.E.2d 651, 652 (1985).
I.
Wife contends that she is entitled to interest on her equitable distribution monetary award from August 18, 1989, the date the circuit court issued its first opinion. However, the parties appealed portions of that decision to this Court, including the trial court's equitable distribution and spousal support awards. On appeal, we stated that our decision regarding the inclusion of husband's $10,000 inheritance in the marital estate "will necessarily change the size of the pool of marital property," and remanded the matter to the trial court "for further consideration in light of the final disposition of the parties' property." Ashley v. Ashley, Record Nos. 1479-89-1 and 1536-89-1, slip op. at 8 (Va.Ct.App. September 18, 1990).
Thus, the trial court's order of August 18, 1989, did not resolve the equitable distribution issue. It is irrelevant that, upon remand, the commissioner's report and the trial judge's decision awarded wife the same monetary amount of $35,165.50. Therefore, because the August 18, 1989 trial court decision was reversed on appeal, wife was not entitled to interest from that date.
The record does not reflect that wife sought interest on the award of April 1, 1993. Accordingly, Rule 5A:18 bars us from considering whether interest might be due.
II.
The trial judge found that husband was entitled to receive one-half the reasonable rental value of the marital home for the period from September 1, 1989, until the residence was sold on July 22, 1991. Husband was also required to pay one-half the maintenance and repair expenses and real estate taxes for this period.
Upon their divorce, the parties owned the marital residence as tenants in common. Code § 20-111. As the sole co-tenant in possession, wife had the benefit of her exclusive use of the property. See Gaynor v. Hird, 15 Va. App. 379, 381, 424 S.E.2d 240, 242 (1992). Code § 8.01-31 authorizes an accounting in equity by a tenant in common who receives more than his or her just share of the benefits of ownership. Moreover, as husband was required to bear his share of the financial burden of owning the property, "[i]t is only just that [he] should receive the corresponding benefit of that ownership." Gaynor, 15 Va. App. at 382, 424 S.E.2d at 242. The trial court did not abuse its discretion in awarding husband one-half of the reasonable rental value of the marital home for the period it was occupied exclusively by wife following their divorce.
Accordingly, we affirm the decision of the trial court.
Affirmed.