James Edward Germek v. Marsha K. Germek ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
JAMES EDWARD GERMEK
MEMORANDUM OPINION * BY
v. Record No. 2807-95-1 JUDGE SAM W. COLEMAN III
AUGUST 6, 1996
MARSHA K. GERMEK
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
John E. DeHardit, Judge Designate
Sydney K. L. West (Horne, West & McMurtrie,
on brief), for appellant.
Breckenridge Ingles (Martin, Ingles & Ingles,
Ltd., on brief), for appellee.
In this domestic relations appeal, James Edward Germek
(husband) contends that the chancellor erred in his final decree
by ordering Germek to pay the monthly premium of $195.93 on a
life insurance policy for the benefit of Germek's minor child.
Germek also contends that the amount of $400 per month in spousal
support awarded in accordance with the provisions of Code
§ 20-107.1 to Marsha K. Germek (wife) was excessive; that the
chancellor erred by failing to equitably distribute all the
marital property, specifically wife's civil service retirement
account; that wife was improperly awarded attorney's fees; and
that wife received a disproportionate share of the marital
property. For the following reasons, we reverse the chancellor's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
final decree as to the provision requiring husband to maintain
the life insurance policy; we affirm the chancellor's decision as
to the remaining issues; but we remand the case for further
proceedings as to the issues affected by the order to maintain
the life insurance policy, specifically child and spousal
support.
LIFE INSURANCE POLICY
In making his opening statement before the Commissioner in
Chancery, wife's counsel addressed the life insurance policy at
issue and requested that the spousal support award be sufficient
to maintain the life insurance policy for the benefit of the
parties' disabled daughter.
Mrs. Germek is very concerned about the life
insurance that would be available for the
daughter's benefit. There is, apparently, a
policy now with USAA. It's a whole life
policy in the amount of, it's either $150,000
or $250,000. They are joint owners of that
policy. It names the named insured as Mr.
Germek, and what we're going to ask the Court
to do is to order that Mr. Germek pay to Ms.
Germek enough money by way of alimony that
she can make the monthly life insurance
payment, that she can keep that policy in
effect.
At the evidentiary hearing, wife introduced a copy of the USAA
policy, and the commissioner acknowledged that he understood that
wife was "asking for support, for money to help keep this policy
in effect." On cross-examination, wife confirmed that she wanted
the life insurance policy to be continued.
The commissioner's report recommended awarding wife spousal
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support of $400 per month and child support of $375 per month.
However, the commissioner's report did not specifically mention
the life insurance policy and did not specify whether the $400
per month spousal support recommendation included an amount for
all or a part of the insurance premium, as the wife had
requested.
Both parties filed exceptions to the commissioner's report.
The husband asserted that the spousal support award was
excessive considering the parties' relatively equal earnings.
Wife raised six exceptions to the report, but she did not
specifically mention the life insurance policy in her objections.
However, wife objected "to the award of alimony of $400 as being
inadequate under the circumstances of the case," and "to the
Commissioner's failure to make a provision for the long term
health care needs of [the parties' child]." The parties orally
argued their exceptions to the commissioner's report before the
chancellor.
In the final decree of divorce, the chancellor overruled
wife's objections to the amount of spousal support and to the
failure of the commissioner to provide for the minor child's
long-term health care needs. The chancellor "approved, ratified
and incorporated by reference into [the] Decree" the
commissioner's report, and ordered the parties to comply with all
terms and conditions of the report as to all issues germane to
this appeal. Therefore, the chancellor affirmed the award of
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$400 per month in spousal support and $375 per month in child
support. However, the chancellor, without explanation, deviated
from the commissioner's report by ordering husband to maintain
the USAA life insurance policy.
Husband objected to the inclusion in the final divorce
decree of the requirement that he maintain the life insurance
policy, and he filed a motion to reconsider the final order. He
asserted that the chancellor had overruled the parties'
exceptions, had affirmed the commissioner's report, but then
entered a decree containing a provision not included in the
commissioner's report and inconsistent with the report. After
hearing argument on the matter, the chancellor denied the motion
and declined to vacate the divorce decree or to remand the matter
to the commissioner for a determination of whether the $400
spousal support included an allowance for the life insurance
premium.
On appeal, a decree which approves a
commissioner's report will be affirmed unless
plainly wrong, . . . but where the chancellor
has disapproved the commissioner's findings,
this Court must review the evidence and
ascertain whether, under a correct
application of the law, the evidence supports
the findings of the commissioner or the
conclusions of the trial court.
Sprott v. Sprott, 233 Va. 238, 240, 355 S.E.2d 881, 882 (1987)
(quoting Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 296-97
(1984) (citations omitted)).
A major problem that initially confronts us in reviewing the
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chancellor's decision is that on this record we cannot exclude
the probability that the commissioner's recommendation for an
award of $400 per month in spousal support included an amount for
the wife to pay all or a portion of the $195.53 per month life
insurance premium, as she had requested. Although Code
§ 20-108.1(D)(i) 1 authorizes the court, in determining child
support, to require a party to maintain a life insurance policy,
the wife requested an award and presented evidence on the issue
in support of her claim for spousal support. By affirming the
commissioner's report and overruling the parties' exceptions, the
chancellor was approving the commissioner's recommended awards
for both spousal support and child support, which may have
included an allowance for the insurance premium in the spousal
support award, but clearly contained no provision as part of
1
Code § 20-108.1. Determination of child or spousal
support.
* * * * * * *
D. In any proceeding under this title,
Title 16.1 or Title 63.1 on the issue of
determining child support, the court shall
have the authority to order a party to (i)
maintain any existing life insurance policy
on the life of either party provided the
party so ordered has the right to designate a
beneficiary and (ii) designate a child or
children of the parties as the beneficiary of
all or a portion of such life insurance for
so long as the party so ordered has a
statutory obligation to pay child support for
the child or children.
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child support that ordered husband to maintain the insurance
policy in accordance with Code § 20-108.1(D)(i). Moveover, the
chancellor's divorce decree is internally inconsistent in that it
purports to affirm the commissioner's report in all respects,
including the recommendation pertaining to child support, but
then contains a provision that exceeds and departs from the
commissioner's recommendation for child support, and may well
duplicate an allowance that the commissioner included, at wife's
request, for spousal support. Furthermore, the provision was
inexplicably inserted in the draft of the final decree prepared
and submitted by wife's counsel, even though prior to submission
of the decree the chancellor had made no ruling to that effect.
Although the commissioner's report did not mention the life
insurance policy, the record is clear that the maintenance of the
policy was raised at the hearing before the commissioner and that
wife requested an award of spousal support sufficient to continue
the policy. Thus, the logical inferences that flow from the
commissioner's report are that the commissioner rejected wife's
request to require husband to maintain the policy, or that the
commissioner intended that the spousal support award of $400 per
month was sufficient for wife to maintain the policy.
Nevertheless, despite specifically approving the commissioner's
award of spousal and child support, the chancellor implicitly
disapproved the commissioner's findings by ordering husband to
maintain the policy.
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The record offers no explanation for the chancellor's
decision to include in the final order the provision requiring
husband to continue to maintain the life insurance policy. In
fact, based on the chancellor's ruling, he did not intend to
include such a provision in the final decree. Even though a
court speaks only through its order, the court's order is
inconsistent in affirming the commissioner and deviating from the
commissioner. Although there is no transcript of the hearing
before the chancellor on the parties' exceptions to the
commissioner's report, husband asserted in his motion to
reconsider "[t]hat the [chancellor's] inclination at the hearing
was to refer the matter [of the life insurance policy] back to
the [commissioner] for clarification." Moreover, at oral
argument before this Court, wife's counsel conceded that the
chancellor instructed him at the hearing to draft a decree
confirming the commissioner's report and the chancellor did not
specifically direct that the decree include a provision requiring
husband to maintain the life insurance policy.
Code § 8.01-610 addresses the weight to be given to the
commissioner's report by the chancellor:
The report of a commissioner in chancery
shall not have the weight given to the
verdict of a jury on conflicting evidence,
but the court shall confirm or reject such
report in whole or in part, according to the
view which it entertains of the law and the
evidence.
Id. (emphasis added). In Gulfstream Bldg. Assocs., Inc. v.
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Britt, 239 Va. 178, 387 S.E.2d 488 (1990), the Supreme Court held
that Code § 8.01-610 "clearly gives the [chancellor] substantial
discretion in the manner in which it reviews the report of a
commissioner." Id. at 185, 387 S.E.2d at 492. However, the
Court further held in Britt that the chancellor could not decline
to confirm or reject the commissioner's findings on a particular
issue because "[t]his course of action is not recognized by Code
§ 8.01-610." Id. Similarly, we hold that the chancellor does
not have the authority under Code § 8.01-610 to both confirm and
reject the commissioner's findings on a particular issue.
It is well-established that the chancellor does not delegate
his judicial function to the commissioner and is not bound by the
commissioner's report. Raiford v. Raiford, 193 Va. 221, 229, 68
S.E.2d 888, 893 (1952); Lawrence v. Lawrence, 212 Va. 44, 47, 181
S.E.2d 640, 643 (1971); Haase v. Haase, 20 Va. App. 671, 679, 460
S.E.2d 585, 588 (1995). Furthermore, we do not suggest that the
chancellor is required to make detailed findings in support of
his decision to reject the commissioner's report. See Britt, 239
Va. at 183, 387 S.E.2d at 492 (holding that "[t]he report, or
portions of it, can be disposed of with very general language").
Nevertheless, the trial court must indicate clearly its approval
or disapproval of the commissioner's report and its reasons for
doing so because, on appeal, we "must review the evidence and
ascertain whether, under a correct application of the law, the
evidence supports the findings of the commissioner or the
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conclusions of the trial court." Sprott, 233 Va. at 240, 355
S.E.2d at 882 (quoting Hill, 227 Va. at 577, 318 S.E.2d at 296-97
(citations omitted)). Absent a clear indication of the
chancellor's approval or disapproval of the commissioner's
findings, we cannot accurately determine the factual and legal
basis for the chancellor's decision or, for that matter, the
commissioner's recommendation on the issue of the life insurance
policy, as it may have been included in the spousal support
recommendation.
Here, the divorce decree was erroneous on its face because
the chancellor both confirmed the recommendations for spousal and
child support, but then implicitly rejected the commissioner's
child support recommendation by adding the requirement that
husband maintain the life insurance policy. Accordingly, we
vacate the decree and remand the case for further proceedings.
On remand, the chancellor may conduct additional hearings, or
remand the matter to the commissioner for clarification of the
2
commissioner's findings.
SPOUSAL SUPPORT, EQUITABLE DISTRIBUTION, AND ATTORNEY'S FEES
Code § 8.01-615 provides, in pertinent part, that
[e]xceptions to the Commissioner's Report
shall be filed within 10 days after the
2
To the extent that the commissioner may have considered
the life insurance premium in recommending the amount of spousal
support, as wife requested, the recommendation is erroneous. The
sole authority for such an award is as child support for the
benefit of the parties' dependant children under Code
§ 20-108.1(D)(i) which, unlike spousal support, would continue
unaffected by the spouse's death or remarriage.
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report has been filed with the court, or for
good cause shown, at a later time specified
by the court.
Id. Here, the commissioner's report was filed with the trial
court on June 7, 1995. Husband filed exceptions to the report
challenging the amount of the spousal support award, the
classification and equitable distribution of the marital
property, and the amount of attorney's fees awarded wife.
However, husband filed his exceptions to the report on June 23,
1995, sixteen days after the report was filed with the trial
court, and the record contains no explanation for husband's
failure to file his exceptions within ten days of the date the
report was filed. Therefore, we hold that the chancellor did not
abuse his discretion by holding that husband's exceptions to the
commissioner's report were not timely filed.
For the foregoing reasons, we reverse the chancellor's order
in part, affirm it in part, and remand the case for further
proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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