Raiford v. Raiford

• Decision Date: 21 January 1952
• Docket Number: No. 3865,3865
• Citation: 68 S.E.2d 888,193 Va. 221
• Parties: ROBERT HARVEY RAIFORD v. LORRAYNE SPEAR RAIFORD. Record
• Court: Virginia Supreme Court

Page 888

68 S.E.2d 888

193 Va. 221

ROBERT HARVEY RAIFORD v. LORRAYNE SPEAR RAIFORD.

Record No. 3865.

Supreme Court of Appeals of Virginia

January 21, 1952.

W. L. Devany, Jr., for the appellant.

R. Stanley Hudgins, for the appellee.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Lorrayne S. Raiford instituted this suit for divorce charging her husband, Robert H. Raiford, with desertion. He filed an answer denying the material allegations of the bill. The court, pursuant to a rule of practice adopted by it in 1949, and over the objection of defendant, referred the cause to a commissioner in chancery. The case came on to be heard on the pleadings, the evidence, the commissioner's report and the exceptions taken to the report by both parties. The court sustained complainant's exception to the award of $50 per month alimony, increased the amount to $100 per month, and awarded her a divorce a mensa.

The parties will be designated as 'complainant' and 'defendant,' in accordance with the positions occupied by them in the lower court.

The important question presented is whether the trial court had power to adopt the following rule governing practice in suits for divorce:

'ORDER ESTABLISHING RULE OF PRACTICE TO BE OBSERVED IN DIVORCE SUITS AND SUITS FOR ANNULMENT OF MARRIAGE, ENTERED APRIL 11, 1949.

'In order to safeguard the public interest against litigants who may seek divorces or annulments of marriage in cases in which such litigants have not acquired the necessary residence and domicile as required by Section 5105 of the Code of Virginia, or where the grounds of venue as required by said Section do not exist, and to better determine whether there be legal cause for divorce or annulment in any given case the following rule of practice in this court is hereby established:

'All such suits shall, by appropriate decree, be referred to one of the Commissioners in Chancery of this court to ascertain and report whether or not the necessary grounds of jurisdiction and venue exist and, if so, whether said divorce or annulment should be granted, and upon all other matters raised by the pleadings and the evidence.

'All of the evidence in such cases shall be taken and transcribed before such Commissioner who shall have authority to direct the Clerk of this Court to issue subpoenas for witnesses and to make such investigation as may be proper and necessary to accomplish the purpose of this rule.

'The complainant shall pay the cost for issuance and service of such subpoenas and shall also pay to said Commissioner in advance of such hearing a fee of Twenty-Five Dollars to be taxed as part of the cost.

'This rule shall apply to all suits for divorce or suits to annul a marriage instituted on and after April 12, 1949.'

The general rule is that a court of general jurisdiction may adopt a rule of practice provided the subject is not regulated, or adequately provided for, by general law. Such a rule must be reasonable, must not contravene the Constitution or statutes, or affect substantive law. 21 C.J.S., Courts, sec. 172, p. 266; 14 Am. Jur., Courts, sec. 152, pp. 357-359.

It was held in Hall v. O'Brien, 97 W.Va. 77, 124 S.E. 507, that circuit '* * * courts have ample power to adopt reasonable rules for conduct and dispatch of business, including the power to interpret and apply them, unless they are in conflict with law and unreasonably oppressive, or obstructive of the rights of litigants.'

The rule is not forbidden by statute, nor is it in conflict with the Rules of the Supreme Court of Appeals governing practice and procedure in trial courts.

Promulgation of the rule by the Court of Law and Chancery of the City of Norfolk was not an isolated action of one court. The necessity for such a rule had been discussed at length by the bench and bar of the Commonwealth prior to its adoption. At the annual meeting of the Virginia State Bar in 1949 the Judiciary Committee, composed of Honorable Richard B. Spindle, Chairman, Honorable Lemuel F. Smith, Honorable J. Douglas Mitchell, Honorable Kennon C. Whittle, and Honorable Walter T. McCarthy, recommended the adoption of a rule referring all suits for divorce to a commissioner in chancery. The following is an excerpt taken from the minutes of that meeting showing approval of the report:

'There were enthusiastic expressions from the floor for the work and recommendations of the Committee, and, following some discussion, on motion duly made and seconded, the report of the Committee was approved by unanimous vote.'

The judge of the Third Judicial Circuit, on request of the bar of that circuit, adopted a rule of practice requiring certain issues in suits for divorce to be referred to a commissioner in chancery. We are informed that a similar rule has been adopted by a number of other courts, among them the courts of the Sixteenth and Thirty-fifth Judicial Circuits. The approval by so many distinguished members of the bench and bar who are compelled to conform to the practice, is sufficient to make out a prima facie case as to the reasonableness of the rule.

The rule does not affect a substantive right of defendant, even if it be regarded as a change in practice and procedure. Such change may affect the form of the remedy, but does not affect a vested or substantial right. Page v. Belvin, 88 Va. 985, 990, 14 S.E. 843; Jones v. Commonwealth, 86 Va. 661, 664, 10 S.E. 1005; Shickel v. Berryville Land, etc., Co., 99 Va. 88, 37 S.E. 813.

Defendant contends that the rule is contrary to well established practice and procedure in suits in equity. In support of this contention he relies on that part of Code, sec. 20-99 providing that 'Such suit (for divorce) shall be instituted and conducted as other suits in equity * * *.'

One of the distinguishing features between suits in equity and actions at law is the power of the chancellor, in his discretion, to refer questions in a suit in equity to a commissioner in chancery to prepare the cause and place it in a better position to enable the chancellor to decide it expeditiously and correctly.

There is a line of cases (many of them reviewed or cited in the recent case of Binkley v. Parker, 190 Va. 380, 57 S.E. (2d) 106) declaring that an order of reference should not be awarded to enable the plaintiff to make out his case. The cause should be so far developed by the pleadings and proof as to show the propriety of an order of reference for an accounting. Porter v. Young, 85 Va. 49, 6 S.E. 803; 1 Hogg's Equity Procedure, 3d ed., sec. 618, p. 764, and cases cited in the footnote. The two reasons given in support of this holding are the expense and delay incident to referring a cause to a commissioner before first determining whether an accounting is necessary. See Watkins v. Young, 31 Gratt. (72 Va.) 84, 94, where 2 Rob. Pract. (old), p. 359, is quoted to the same effect. These reasons were advanced when it was the custom for a commissioner in chancery to write the depositions and his report in longhand which necessarily took time. But in this modern age, when depositions are taken by an expert stenographer to whom the report is usually dictated, there should be little, if any, delay in preparing the record for final disposition.

Referring suits for divorce to a commissioner may increase, to some extent, the costs to the litigant, but such increase is infinitesimal when compared with the importance of maintaining inviolate the public policy of the Commonwealth as declared in the statutes hereinafter cited, and maintaining the sanctity of marital relations. No case is cited in the briefs, and we have found none, where the decree of the lower court was reversed solely on the ground that an order of reference was improperly made.

Defendant's main contention is that the rule is invalid because it authorizes the court to delegate its judicial functions to a commissioner in chancery.

A commissioner in chancery is an officer appointed by the chancellor to aid him in the proper and expeditious performance of his official duties. Originally such officer was called a 'Master Commissioner,' but now his usual designation is 'Commissioner in Chancery.'

Code, sec. 8-248, empowers every court having chancery jurisdiction, or the judge thereof in vacation, to 'appoint such commissioners in chancery as may be deemed necessary for the convenient dispatch of the business of such court. Such commissioner shall be removable at pleasure. ' Other statutes (8-249 to 8-262) deal with the procedure before the commissioner and the weight to be given his findings. These statutes do not limit or restrict the court as to the class of case that it may refer to a commissioner. The court, acting within its sound discretion, must determine when the convenient dispatch of business requires an order of reference.

'A good commissioner is the right arm of the court, and his services are indispensable to the due administration of justice. ' Hartman v. Evans, 38 W.Va. 669, 677, 18 S.E. 810.

'That the office of commissioner in chancery is one of the most important known in the administration of justice will be universally conceded. His duties are of a grave and responsible nature; he is the assistant to the chancellor. There is no question of law or equity, or of disputed fact, which he may not have to decide, or respecting which he may not be called upon to report his opinion to the court. ' Bowers v. Bowers, 29 Gratt. (70 Va.) 697, 700.

In Kraker v. Shields, 20 20 Gratt. (61 Va.) 377, 392, it is said:

'The question 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, and as to which a large latitude of discretion must be allowed to the court; though of course the court ought to exercise such discretion soundly, to prevent unnecessary expense or delay; which seem to be the chief, if not the only evils, of an improper reference. The court is...