Opinion
Record No. 0425-93-2
March 8, 1994
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG OLIVER A. POLLARD, JR., JUDGE.
Theresa Rhinehart (Conner Associates, Ltd., on brief), for appellant.
Samuel P. Johnson, III (White, Hamilton, Wyche Shell, P.C., on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellant, Dorleen Tedesco, appeals a decree entered in the Circuit Court of the City of Petersburg that bifurcated the divorce issue from the property and spousal support issues pursuant to Code § 20-107.3. She contends that the trial court erred in holding that the bifurcation was clearly necessary because of the poor health of the husband and the complexities of the parties' property interests.
In lieu of a transcript, appellant filed a written statement of facts, testimony and other incidents of the case, which is made a part of the record pursuant to Rule 5A:8.
From the record, we find that on December 14, 1992, the plaintiff (husband) filed a Bill of Complaint praying that he be 30, 1980 property settlement agreement between the parties be affirmed, ratified and incorporated into the provisions of any decree entered in the case. On December 30, 1992, the defendant (wife) filed an Answer and Cross-bill alleging that the agreement, dated December 30, 1980, was signed by her under duress, without adequate consideration and without competent legal advice. She requested that the Bill of Complaint be dismissed and that she be granted a divorce from the bonds of matrimony.
On February 2, 1993, husband filed a motion to bifurcate the divorce issue from the property and support issues pursuant to Code § 20-107.3. He alleged that he had cancer and argued that a delay in obtaining the divorce might affect his ability to protect his interests. He further alleged that, because the wife had raised issues concerning property rights between the parties, there would be a substantial delay in their ultimate resolution.
On February 4, 1993, a conference call was arranged to hear evidence on the motion. According to the court's decrees entered on February 12, 1993, neither party was present, but both were represented by counsel. Although Dr. James P. Neifeld, M.D., testified, we do not have a record of his testimony. Two decrees were signed by the chancellor and entered in the record. In one, he explained:
[A]fter consideration of the Motion, testimony of James P. Neifeld, M.D., and the arguments of counsel, the Court did determine that the action requested in the Motion is clearly necessary because of the poor health of the plaintiff and the complexities of the parties' property interests, and it is accordingly decreed as follows:
1. The divorce and property issues in these proceedings are hereby bifurcated. The Court will retain jurisdiction in the final Decree of divorce to adjudicate property issues, and spousal support.
The other decree awarded husband a divorce and retained jurisdiction to adjudicate property issues and spousal support. Counsel for the wife objected to both decrees on the basis that anticipated death does not constitute a "clearly necessary" reason to bifurcate a cause.
Code § 20-107.3 provides in pertinent part:
The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.
In reviewing an award under Code § 20-107.3, we are guided by the following principles:
The chancellor is necessarily vested with broad discretion in the discharge of the duties the statute [Code § 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.
Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).
On appeal, we view the evidence in the light most favorable to the prevailing party in the trial court, in this case, the husband, granting to such evidence all reasonable inferences properly deducible therefrom. Martin v. Pittsylvania County Dep't of Social Servs., 3 Va. App. 15, 348 S.E.2d 13 (1986). "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 evidence presented during the teleconference pertaining to the husband's health was that he had cancer and was expected to live three to six months. The record is silent concerning the extent that husband's condition affected his physical and mental capacity.
The evidence pertaining to the complex issues involved was equally limited. We have no information what the complex issues were; however, we can infer from the pleadings that one issue was the legality of the 1980 contract between the parties, which the wife claimed to be void for various reasons. Moreover, in the statement of facts, wife's attorney conceded that "the complexities of the parties' property interests would delay the resolution of the property issues in these proceedings."
Because the statute vests the trial court with discretionary power to bifurcate the divorce and property issues, its judgment will not be reversed on appeal unless it is plainly wrong or unsupported by the evidence. Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986). Discretion has been abused when the record discloses that the court acted arbitrarily rather than with due regard to conscientious judgment.Slayton v. Commonwealth, 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946).
Based upon the record that is before us, we cannot find that the trial judge abused his discretion in granting the bifurcation. Accordingly, the judgment of the trial court is affirmed.
Affirmed.