Opinion
Record Nos. 1394-93-4 and 0499-94-4
Decided: July 12, 1994
FROM THE CIRCUIT COURT OF STAFFORD COUNTY, James W. Haley, Jr., Judge
Affirmed.
(Jeanne Swanick Lauer; Lauer Lauer, on brief), for appellant.
(David F. Peterson; Hicks, Baker and Peterson, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Albert Richard LeHere (husband) appeals the circuit court's equitable distribution and attorney's fees awards to Carol O. LeHere (wife). Upon reviewing the record and briefs of the parties, we conclude that these appeals are without merit. Accordingly, we summarily affirm the decisions of the trial court. Rule 5A:27.
Husband raises several issues on appeal: (1) whether the trial court erred in appointing a special commissioner to effectuate the transfer of certain real property and approving the special commissioner's report; (2) whether the trial court's equitable distribution award complied with Code Sec. 20-107.3; and (3) whether the trial court erred in awarding attorney's fees to wife.
As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Appointment of Special Commissioner
Under Code Sec. 20-107.3(C), as it read at the time this cause was filed, the trial court had authority to "order the division or transfer, or both, of jointly owned marital property, or any part thereof." Pursuant to this authority,
the court may (i) order the transfer of real or personal property or any interest therein to one of the parties, (ii) permit either party to purchase the interest of the other and direct the allocation of the proceeds, provided the party purchasing the interest of the other agrees to assume any indebtedness secured by the property, or (iii) order its sale by private sale by the parties, through such agent as the court shall direct, or by public sale as the court shall direct without the necessity for partition.
Code Sec. 20-107.3(C). Subsequently, the statute was amended to expressly provide for the appointment of a special commissioner "where a party refuses to comply with the order of the court to transfer such property." Code Sec. 20-107.3(K).
The record demonstrates that the Lake Monticello property was marital property. Thus, the statute expressly authorized the court to order husband to transfer his interest in the Lake Monticello property to wife. Cf. Lowe v. Lowe, 233 Va. 431, 434, 357 S.E.2d 31, 33 (1987) (prior to the amendment, a trial court lacked authority to order title conveyance). The record further reflects that husband objected to a transfer of his interest in the property to wife and a discussion was held concerning whether husband would willingly convey this property upon the court's order.
"On appeal, the judgment of the trial court is presumed correct. . . . The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991). The record before us indicates the trial court questioned whether husband would willingly comply with the trial court's order to transfer his interest to wife. In the absence of other evidence, we cannot say that husband has borne his burden to demonstrate that the trial court erred by its appointment of a special commissioner to execute the deed in husband's stead.
Moreover, the execution of the deed pursuant to the court's order was a purely ministerial act which did not constitute an ethical conflict of interest on the part of wife's counsel. Similarly, the court did not err in accepting the report of the special commissioner that the court's order had been carried out. Accordingly, we affirm the trial court's decision to appoint a special commissioner to execute the deed, and the court's acceptance of the commissioner's report confirming compliance with the court's order.
Equitable Distribution
Challenges to a trial court's equitable distribution award bear a substantial burden on appeal.
The chancellor is necessarily vested with broad discretion in the discharge of the duties the statute [Code Sec. 20.107-3] imposes upon him. Unless it appears from the record that the chancellor has abused his discretion, that he has not considered or has misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict in the equities, the chancellor's equitable distribution award will not be reversed on appeal.
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368 (1987) (citation omitted). A decree based upon depositions rather than evidence heard ore tenus nonetheless "is presumed correct and will not be overturned if supported by substantial, competent and credible evidence." Collier v. Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828 (1986) (citation omitted).
The evidence before the court consisted of the depositions of wife and a witness on wife's behalf. Husband elected not to appear at the depositions, although he was properly served with notice.
Under Code Sec. 20-107.3, the court must review the statutory factors in making its equitable distribution award. However, "the litigants have the burden to present evidence sufficient for the court to discharge its duty." Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987). While husband asserts the trial court erred in its application of the statutory factor, the record contains no evidence properly before the court supporting husband's contentions.
Therefore, because husband has failed to show that the trial court erred in either its application of the statute or its reliance upon the evidence, the trial court's equitable distribution award is affirmed.
Award of Attorney's Fees
"An award of attorney's fees to a party in a divorce suit is a matter for the exercise of the trial court's sound discretion after consideration of the circumstances and equities of the entire case." Davis v. Davis, 8 Va. App. 12, 17, 377 S.E.2d 640, 643 (1989). "[T]he key to a proper award of counsel fees . . . [is] reasonableness under all of the circumstances revealed by the record." McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). The record reflects husband's actions were in part responsible for adding unnecessary time and expense to the litigation. Therefore, we cannot say the trial court's award of $5,000.00 in attorney's fees was an abuse of its discretion.
Accordingly, the decisions of the circuit court are affirmed.
Affirmed.