DARDEN v. DARDEN


DARDEN v. DARDEN

(unpublished)


JANUARY 26, 1999
Record No.
1274-98-1

ROBERT GORDON DARDEN

v.

CYNTHIA LYNN DARDEN

FROM THE CIRCUIT COURT OF
THE CITY OF NORFOLK

Charles E.
Poston, Judge

Present:
Judges Elder, Bumgardner and Lemons

MEMORANDUM
OPINION
[1] PER CURIAM
(Winston G.
Snider, on brief), for appellant.

No brief
for appellee.


Robert Gordon Darden
(husband) appeals the decision of the circuit court granting the
exception of Cynthia Lynn Darden (wife) to the report of the
commissioner in chancery. The circuit court found that husband
failed to present sufficient evidence supporting his equitable
distribution claim. Husband contends that the trial court erred
by failing to (1) enter an equitable distribution ruling, and (2)
grant his motion to re-refer the matter to the commissioner for
an additional evidentiary hearing. Upon reviewing the record and
opening brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.
See Rule 5A:27.

The evidence was heard by
a commissioner in chancery.

While the
report of a commissioner in chancery does not carry
the weight of a jury’s verdict, it should be
sustained unless the trial court concludes that the
commissioner’s findings are not supported by the
evidence. This rule applies with particular force to
a commissioner’s findings of fact based upon evidence
taken in his presence, but is not applicable to pure
conclusions of law contained in the report.

Hill v. Hill, 227
Va. 569, 576-77, 318 S.E.2d 292, 296 (1984) (citations omitted).
"[D]ue regard [must be given] to the commissioner’s ability
. . . to see, hear, and evaluate the witness at first
hand." Id. at 577, 318 S.E.2d at 297.

Equitable Distribution
Claim

Husband contends that the
trial court erred when it failed to enter an equitable
distribution decree. We disagree.

Virginia’s
statute "mandates" that trial courts
determine the ownership and value of all real and
personal property of the parties. But, consistent
with established Virginia jurisprudence, the
litigants have the burden to present evidence
sufficient for the court to discharge its duty. When
the party with the burden of proof on an issue fails
for lack of proof, he cannot prevail on that
question.

Bowers v. Bowers, 4
Va. App. 610, 617, 359 S.E.2d 546, 550 (1987) (citation omitted).

Husband presented no
documentary evidence supporting his equitable distribution claim.
He opined that the marital residence, which was titled solely in
wife’s name, was worth $85,000, but failed to provide any
supporting documentation or to demonstrate that he had some basis
for his opinion. He testified that $50,000 was owed on the house,
but admitted that his opinion was based

[j]ust from
what I have seen going on through here. I think the
last time we — it has been brought up in here
somewhere right around that figure.

Husband admitted that he
did not know the value of certain unspecified tools purportedly
in wife’s possession.

The commissioner found
that husband’s unsubstantiated testimony was insufficient
evidence to support his claim. The commissioner recommended no
decision. The circuit court accepted the commissioner’s
credibility determination. However, because the issue of
equitable distribution was raised but not proven by husband, the
court found that husband’s claim was defeated. We find no error
in the circuit court’s decision denying husband’s equitable
distribution claim.

Additional Hearing

"The granting or
denying of a motion to hear additional evidence is within the
sound discretion of the trial court." Rowe v. Rowe,
24 Va. App. 123, 144, 480 S.E.2d 760, 770 (1997) (citing Morris
v. Morris
, 3 Va. App. 303, 307, 349 S.E.2d 661, 663 (1986)).
The record indicates that the parties held three hearings before
the commissioner. Husband failed to present sufficient credible
evidence supporting his claim. He did not allege any underlying
reasons justifying his failure to do so. We find no abuse of
discretion in the trial court’s denial of husband’s request for
an additional opportunity to present evidence.

Accordingly, the decision
of the circuit court is summarily affirmed.

Affirmed.

 

 

FOOTNOTES:

[1]Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

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