Klein v. Klein

• Court: Virginia Court of Appeals
• Writing for the Court: DUFF
• Citation: Klein v. Klein, 396 S.E.2d 866, 11 Va.App. 155 (Va. App. 1990)
• Decision Date: 09 October 1990
• Docket Number: No. 1493-89-4,1493-89-4
• Parties: Randolph C. KLEIN v. Elizabeth Salomon KLEIN. Record

Page 866

396 S.E.2d 866

11 Va.App. 155

Randolph C. KLEIN v. Elizabeth Salomon KLEIN.

Record No. 1493-89-4.

Court of Appeals of Virginia.

Oct. 9, 1990.

George E. Tuttle, Jr. (Hoeting, Tuttle & Woehrle, on brief), for appellant.

James Ray Cottrell (Gannon, Cottrell & Ward, on brief), for appellee.

Present: KOONTZ, C.J., and DUFF and KEENAN, JJ.

DUFF, Judge.

Randolph C. Klein (husband) appeals from a final decree of divorce granted to Elizabeth Salomon Klein (wife) on the ground that the parties have continuously lived separate and apart, without interruption, for a period of more than one year. Various assignments of error were made and briefed, but the primary focus of the appeal is the husband's assertion that the chancellor erred in prohibiting him from introducing evidence, at the equitable distribution hearing, regarding the circumstances and factors leading to the dissolution of the marriage.

The wife contends that the Decree of Reference required the Commissioner in Chancery to state the circumstances and factors which contributed to the dissolution of the marriage, specifically including any grounds for divorce in those situations where either party intended to seek a monetary award, as she did in this case. She further contends that two hearings were held before the commissioner, at the first of which the husband presented his evidence regarding fault. However, that evidence, for whatever reason, was not transcribed and is not in the record before us. She further asserts that the only asset of concern is the marital home, and that there is no evidence in the record that the circumstances that led to the break-up of the marriage could have affected the value of the home. See Aster v. Gross, 7 Va.App. 1 371 S.E.2d 833, 836 (1988). The husband made no proffer of the factors and circumstances which he alleges the chancellor erred in excluding. Under the circumstances presented by the record, we agree with the wife's contentions and affirm.

The parties were married in 1970, and separated in February 1984. The husband lived in the basement until August 1984, when he moved to an apartment of his own. Two children were born of the marriage, Alexander in 1971 and Nycole in 1972.

At the time of the separation, the parties lived in rental property and leased the marital property out as an investment, with the husband managing the rental thereof. The record contains evidence that he intended to renew the tenant's lease, which the wife opposed. She employed an attorney in an effort to evict the tenants. Upon regaining possession of the home, she found it in a condition of severe neglect and was required to expend considerable funds and enlist the aid of friends and neighbors to repair the damage in order to make the house habitable. The wife and children then moved back into the house in September, 1986.

A Decree of Reference was entered by the court on September 6, 1984, directing the commissioner to "take the testimony and report on the same pursuant to the order heretofore entered applicable to all divorce suits in this Court." The prior order referred to in the Decree (entered September 21, 1983) directed the commissioner to state

The circumstances and factors which contributed to the dissolution of the marriage ... for those situations in which either party intends to seek a monetary award under the so-called equitable distribution provisions of the Code of Virginia.

After various amendments to the pleadings, the cause was heard before the Commissioner in Chancery on September 20, 1988. The parties represented on brief and in argument before us that at the hearing the husband put on evidence of fault on the part of the wife, and of the factors and circumstances which led to the dissolution of the marriage. However, the evidence taken at this hearing was not transcribed and is not in the record. At a second hearing before the commissioner, on May 11, 1989, the husband orally amended his pleadings under Code § 20-121.02 and presented evidence supporting the granting of a divorce on the ground of one year's separation. No evidence was introduced at that hearing as to the cause of the failure of the marriage. The commissioner filed his report noting that testimony regarding fault, offered at the September 20, 1988, hearing was not transcribed, and that fault testimony was not presented at the May 11, 1989 hearing. No exceptions were filed to this report.

On May 17, 1989, an equitable distribution hearing was held before the chancellor. During the hearing, the court refused to allow Mr. Klein to testify to the circumstances leading to the dissolution of the marriage. The court commented in the record that, "Referring to the Commissioner, they put on evidence of those circumstances, and apparently none was ever presented to the court by the commissioner."

The husband argues that Code § 20-107.3(E)(5) ¹ allowed him to introduce such evidence before the chancellor at the equitable distribution hearing. However, the statute does not expressly require the chancellor to hear such evidence ore tenus. Its mandate is that "the amount ... of any monetary award ... shall be determined by the court after consideration of [various] factors."

The Decree of Reference, by reference to a previously entered order, required the commissioner to state the circumstances and factors which contributed to the dissolution of the marriage. The commissioner did not state such circumstances because the transcript of the evidence was not prepared and the parties proceeded to amend the grounds for divorce to one year's separation. We must decide whether a party has an absolute right to present fault evidence before the chancellor, as distinguished from a commissioner in chancery who has been appointed by the court to hear the evidence.

The use of commissioners in chancery has been of long standing in Virginia. Code § 8.01-607 authorizes each circuit court to "appoint such commissioners in chancery as may be deemed necessary for the convenient dispatch of the business of the court." The question of when it is proper, or may be useful, to resort to the aid of a commissioner is one which addresses itself to the sound discretion of the court. Raiford v. Raiford, 193 Va. 221, 226-27, 68 S.E.2d 888, 892 (1952). Furthermore, a cause may be heard by the court upon a commissioner's report. Exceptions to a commissioner's report shall be filed within ten days after such report has been filed with the court. Code § 8.01-615. We find it entirely compatible with the practice and statutory law of the Commonwealth for a court to refer questions regarding the circumstances and factors which contributed to the dissolution of the marriage to a commissioner in chancery. The court's subsequent consideration of the commissioner's report, and any exceptions which might be filed to it, satisfy the mandate of Code § 20-107.3(E)(5).

A litigant does not have a right to have evidence of this type heard twice, once before the commissioner and once ore tenus before the court. Motions for an ore tenus hearing can be addressed to the court's sound discretion in cases where the nature of the issue might merit it.

In this instance, no objection was raised to the Decree of Reference...