Robbins v. Robbins

• Decision Date: 01 August 2006
• Docket Number: Record No. 2333-05-1.
• Citation: 632 S.E.2d 615,48 Va. App. 466
• Parties: Debra Diane Scranton ROBBINS v. Joseph Allen ROBBINS.
• Court: Virginia Court of Appeals

632 S.E.2d 615

48 Va. App. 466

Debra Diane Scranton ROBBINS v. Joseph Allen ROBBINS.

Record No. 2333-05-1.

Court of Appeals of Virginia, Chesapeake.

August 1, 2006.

COPYRIGHT MATERIAL OMITTED

Barry Dorans (Cheshire I'Anson Eveleigh, John F. Sawyer, Wolcott Rivers Gates, P.C., on briefs), Virginia Beach, for appellant.

Lawrence D. Diehl, Hopewell, for appellee.

Present: FRANK, HUMPHREYS and KELSEY, JJ.

D. ARTHUR KELSEY, Judge.

Appealing a final divorce decree, Debra D.S. Robbins argues that the circuit court abused its discretion in accepting a commissioner's recommendations on equitable distribution and spousal support.¹ The commissioner, she contends,

• failed to revalue the marital home closer to the date of distribution,

• mistakenly classified stock in husband's professional corporation as nearly all separate property,

• erroneously divided the equitable distribution assets on a 65/35 ratio in favor of husband, and

• incorrectly calculated the spousal support award.

We reject wife's challenge to the 65/35 division ratio, finding it well within the discretionary authority of the circuit court. To varying degrees, however, we agree with the remaining challenges to the final decree. We thus affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

Debra D.S. Robbins and Joseph A. Robbins married in 1977. Husband was starting his medical career as a cardiologist, while wife worked as a nurse. He became a shareholder in Cardiovascular Associates Ltd. ("CVAL") in 1986 by purchasing a 16.6% interest in the medical practice for $26,675. Over the years, several doctors entered and exited the medical practice, requiring husband to buy or sell his shares to accommodate the fluctuation in equity interests.

During their 23-year marriage, the Robbinses raised four children. In 1990, wife went back to school to obtain a master's degree in social work and, in 1995, began work as a licensed clinical social worker. She relied on au pairs to care for their children for about five years while training to be a social worker. The family lived in a waterfront home in Virginia Beach. During the marriage, the Robbinses accumulated more than $3.5 million in assets.

At wife's insistence, the parties separated in October 2000. She filed for divorce the following year. The circuit court referred the case to a commissioner in chancery in May 2002. After extensive discovery and evidentiary hearings, the commissioner filed his report to the circuit court in December 2003. The report found that wife's "romantic" relationship with a co-worker was "a major contributing factor and the precipitating event in her decision not to continue the marriage." The report also found that both wife and husband committed post-separation adultery. The commissioner, however, recommended a no-fault divorce under Code § 20-121.02.

The commissioner also suggested that the chancellor order a 65/35 split of marital assets in favor of husband. The commissioner determined the value of the marital home based upon an August 2002 appraisal. The report recommended a spousal support award of $2,800 per month to wife and a child support award of $1,389 to wife for the care of their only remaining minor child.

In circuit court, the parties agreed that the commissioner made a mathematical error in calculating wife's spousal support award. Husband argued that the matter be returned to the commissioner so that he may take additional evidence on the subject. Wife objected to a re-referral, arguing that the error could be corrected easily enough by the circuit court. Wife also asserted that, if the evidentiary record were reopened, she should be allowed to present evidence of the current value of the marital home — which, counsel proffered, had nearly doubled since the earlier 2002 appraisal.

In August 2004, the circuit court referred the case back to the commissioner for a "reconsideration of the issue of spousal support and all issues relating thereto." The circuit court left it for the commissioner to decide whether additional evidence concerning the home revaluation should be received. Wife objected to the court's decision on the ground that "if an evidentiary hearing is to be allowed, the commissioner should hear evidence as to the current value of the marital home which has greatly increased in value."

At the commissioner's hearing, wife again proffered that the marital home value had "increased in value substantially, close to a million dollars at this point." The commissioner, however, held that he had no discretion to receive additional evidence on the increase in value in the marital home. The law-of-the-case doctrine, the commissioner reasoned, precluded him from reexamining the value of the marital home.

After additional hearings, the commissioner issued a supplemental report in June 2005 that recalculated the spousal and child support awards. Both parties filed objections to the commissioner's report and contested the various other recommendations made by the commissioner to the circuit court. The circuit court denied all objections, accepted the commissioner's recommendations in full, and entered final judgment on August 30, 2005.

II.

A. DATE OF VALUATION OF MARITAL HOME

Wife challenges the circuit court's use of a 2002 appraisal of the marital home in the face of her proffer that the value had nearly doubled by the time of the final decree in 2005. This type of decision ordinarily involves a judgment call by the factfinder, one to which we defer absent an abuse of discretion. See Thomas v. Thomas, 40 Va. App. 639, 647, 580 S.E.2d 503, 506 (2003). Even so, the circuit court's discretionary authority to revalue should be exercised in light of our admonition that when a marital asset "subject to equitable distribution" is

retained by one of the parties for a period of time after valuation but before the equitable division occurs and the asset significantly increases or decreases in value during that time through neither the efforts or fault of either party, neither party should disproportionately suffer the loss or benefit from the windfall. Under those circumstances, a trial court abuses its discretion by failing to re-value the property when a party has made a timely motion to do so and is prepared to present evidence on the issue.

Rowe v. Rowe, 33 Va.App. 250, 264, 532 S.E.2d 908, 915 (2000); see also Holden v. Holden, 35 Va.App. 315, 325, 544 S.E.2d 884, 888 (2001).

In this case, however, there was no exercise of discretion to which we can defer. The commissioner concluded, as a matter of law, that he could not address the issue because of the law-of-the-case doctrine. We disagree. This doctrine precludes parties from relitigating, after an appeal, matters that were either (i) not raised on appeal, but should have been, or (ii) raised on appeal, but expressly rejected by the appellate court. See generally Lockheed Info. Mgmt. Systems Co. v. Maximus, Inc., 259 Va. 92, 108, 524 S.E.2d 420, 429 (2000). The law-of-the-case doctrine has no binding effect on a trial court prior to an appeal.²

In other words, a trial court may modify or rescind interlocutory orders "at any time before final judgment," Freezer v. Miller, 163 Va. 180, 197 n. 2, 176 S.E. 159, 165 n. 2 (1934) (citation omitted), and can, to put it plainly, "change its mind while the matter is still pending." Pinkard v. Pinkard, 12 Va.App. 848, 853, 407 S.E.2d 339, 342 (1991); see also Bennett v. Commonwealth, 33 Va.App. 335, 344, 533 S.E.2d 22, 27 (2000) (recognizing even after the entry of a final order "judges can change their minds" within the Rule 1:1 period). We have made just this point in the context of reevaluations of assets subject to equitable distribution. See Rowe, 33 Va.App. at 265-66, 532 S.E.2d at 916.

All the more, the law-of-the-case doctrine does not govern the advisory relationship of a commissioner and chancellor. The commissioner does not make final, dispositive rulings subject to appellate review by the circuit court. The commissioner makes recommendations to the circuit court — the court alone must exercise the ultimate judicial function:

When a court refers a cause to a commissioner in chancery, it does not delegate its judicial functions to the commissioner, and it is not bound by the commissioner's recommendations. Rather, the court must review the evidence, apply the correct principles of law, and make its own conclusions as to the appropriate relief required.

Morrill v. Morrill, 45 Va.App. 709, 714-15, 613 S.E.2d 821, 823 (2005) (en banc) (citations omitted). A commissioner serves only as "an officer appointed by the chancellor to aid him in the proper and expeditious performance of his duties." Raiford v. Raiford, 193 Va. 221, 226, 68 S.E.2d 888, 891 (1952). Given this relationship, the preclusive effect of the law-of-the-case doctrine plays no role.

An abuse of discretion occurs when a decisionmaker uses "an improper legal standard in exercising its discretionary function" because the decisionmaker "by definition abuses its discretion when it makes an error of law." Congdon v. Congdon, 40 Va.App. 255, 262, 578 S.E.2d 833, 836 (2003) (citations and internal quotation marks omitted); see also Owens v. Owens, 41 Va.App. 844, 853, 589 S.E.2d 488, 493 (2003). By relying on a legally inapplicable doctrine to preclude any consideration of the revaluation request, the commissioner abused his discretion. By not correcting this error, the circuit court did as well.³

We reverse the equitable distribution award and remand with instructions to revalue the marital home using "the most current and accurate information available which avoids inequitable results." Rowe, 33 Va. App. at 263, 532 S.E.2d at 915 (citation omitted); see also Holden, 35 Va.App. at 324-25, 544 S.E.2d at 888; Wagner v. Wagner, 16 Va.App. 529, 531-32, 431 S.E.2d 77, 78-79 (1993) (en banc).

B. CLASSIFYING CVAL SHARES & TRACING SEPARATE...