Montgomery R. Gochenour v. Kathleen M. Gochenour ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
MONTGOMERY R. GOCHENOUR
MEMORANDUM OPINION *
v. Record No. 0484-03-3 PER CURIAM
AUGUST 19, 2003
KATHLEEN M. GOCHENOUR
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
(Susan B. Read; Black, Noland & Read, P.L.C.,
on briefs), for appellant.
(Jessica L. Robinson; Nelson, McPherson,
Summers & Santos, L.C., on brief), for
appellee.
On appeal, Montgomery Gochenour (husband) contends the trial
court erred: (1) in upholding the commissioner's recommendation
and awarding wife seventy-five percent of the marital assets;
(2) in upholding the commissioner's refusal to grant him a
continuance; and (3) in awarding wife attorney's fees. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the decision of the trial court. See Rule 5A:27.
BACKGROUND
The parties were married in 1989. They had a child in
1990. On March 7, 1999, they separated.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On April 5, 1999, husband filed a bill of complaint
requesting, inter alia, that he be granted a divorce on the
basis of wife's constructive desertion.
On April 30, 1999, Kathleen Gochenour (wife) filed an
answer to husband's bill of complaint. She denied husband's
allegation of constructive desertion and requested, inter alia,
that she be granted a divorce on the grounds of husband's
cruelty and adultery.
On June 29, 1999, wife filed a request for production of
documents and interrogatories, and on July 9, 1999, husband
served first interrogatories and requested documents.
In March, April and May 2001, wife filed answers and
documents in response to all of husband's discovery requests.
On May 9, 2001, wife filed a motion to compel husband to
respond to interrogatories and comply with her request for the
production of documents.
On June 12, 2001, the trial court entered a decree of
reference, referring "issues of fault, spousal support, all
issues arising between the parties pursuant to § 20-107.3 . . .
and attorney's fees" to Commissioner in Chancery G. William
Watkins (the commissioner). The trial court authorized the
commissioner to "enter such pre-trial orders as may be necessary
to accomplish the purpose of this decree [of reference]."
By order entered on July 20, 2001, the commissioner advised
the parties that "[a]ll discovery shall be concluded not later
- 2 -
than August 31, 2001, and no response to discovery shall be
required of any person or party if the time for response under
the Rules of the Supreme Court expires after such date." The
commissioner scheduled hearings for October 25-26, 2001, and
ordered the parties to exchange all documents, witness lists and
exhibits by October 19, 2001. The commissioner scheduled a
pretrial telephone conference for August 28, 2001, "in order to
review the parties' preparations" for the October 2001 hearing.
Wife completed all of her discovery obligations by the August
31, 2001 deadline.
On September 4, 2001, wife moved to continue the October
25, 2001 hearing. Wife advised the commissioner that husband
"ha[d] not fully responded to discovery." She added that she
had scheduled a vacation for that date.
On September 28, 2001, the commissioner entered a second
notice extending the deadline for discovery to October 15, 2001,
and continued the hearing dates to November 29-30, 2001. The
commissioner advised the parties, inter alia, that the "failure
of any party to make complete and timely responses to discovery
requests shall give the party aggrieved by such failure
sufficient cause to obtain an award of attorney's fees and costs
incurred in the effort to obtain such responses."
On October 25, 2001, ten days after the discovery deadline,
wife filed another motion to compel husband to comply with
discovery. On October 26, 2001, husband's attorney filed a
- 3 -
motion to withdraw as counsel, alleging that, "[s]ince
representing [husband], counsel has had an extremely difficult
time obtaining documents in response to discovery requests."
Counsel explained in detail husband's numerous excuses and
continued failure to provide necessary and requested documents,
noting that the "original [July 2001] trial date could not be
complied with because outstanding discovery had not been
supplied by [husband]." Counsel further advised the trial court
of his belief that husband "has no intention of complying with
the discovery order."
On November 6, 2001, the trial court granted counsel's
request to withdraw.
On November 26, 2001, husband filed, pro se, a motion for a
continuance alleging that his former attorney "misstated in
writing to [him] the trial date set for this case." Husband
indicated that he "had provided [his] attorney with listed
objectives, outlined a course of action for achieving those
objectives, and produced discovery relative to the schedules and
timeline leading to the misstated trial date." Husband
contended that, "[f]ollowing the above listed chain of events,
it has come to bear that no action was taken with regard [sic]
pertinent filings, disclosure and transfer of information vital
to the progression of this case." Therefore, husband
"request[ed] a continuance of this case, pursuant to this
- 4 -
motion, and the confusion which exists over the proposed trial
date."
By letter dated November 27, 2001, 1 the commissioner
acknowledged receipt of husband's continuance request, however,
he noted that wife's attorney "advised Mr. Gochenour of the
November 29th hearing date by letter dated November 13, 2001."
Moreover, the commissioner recalled serving a document entitled
"Notice of Hearing on both parties, by counsel, on September 26,
2001." The commissioner pointed out that this "case has been
continued once because of the failure of [husband] and/or his
counsel to properly respond to discovery." Despite that
continuance, husband "remains in default under Rule 4:12."
Because wife opposed another delay, the commissioner refused "to
postpone the trial again . . . because of [husband's] continued
failure to heed and follow the hearing schedule and rules of
discovery." The commissioner acknowledged husband's attorney's
"misdirection" in erroneously advising appellant in an October
1, 2001 letter that the trial date was December 6-7, 2001;
however, husband "would not be in the position in which he finds
himself if he had not resisted responding to [wife's] reasonable
and routine discovery requests."
1
The date on the first page of the letter, October 22,
2001, is in conflict with the date contained on page two,
November 27, 2001. Because the letter discusses appellant's fax
of November 22, 2001, asking for a continuance, we assume the
letter was drafted on November 27, 2001.
- 5 -
On November 29, 2001, the commissioner conducted the
scheduled hearing at which the parties presented evidence. He
heard additional evidence on December 6, 2001. Husband appeared
pro se.
On September 16, 2002, the commissioner filed a detailed
twenty-three page report to the trial court. In it, he noted:
Notwithstanding the patient, but persistent
efforts of your Commissioner and [wife's]
counsel, including letters, court orders,
scheduling orders, motions to compel and
continuances, copies of which are returned
herewith, [husband] never fully complied
with discovery and failed to file any
schedules, exhibits or witness list as
required in the Notice of Hearing.
Accordingly, [wife] objected to most of
[husband's] proffered exhibits and your
Commissioner sustained her objections.
In the report, the commissioner summarized wife's testimony
of husband's physical abuse and found sufficient evidence of
cruelty "constituting at least one ground of divorce." The
commissioner also found sufficient evidence of adultery by
husband before and after separation "constituting a second
ground for divorce."
After determining fault, the commissioner classified and
valued the parties' personal and real property. He then
considered each factor in Code § 20-107.3(E) before making his
recommendations.
"After due consideration of all of the statutory factors,"
the commissioner concluded that
- 6 -
particular weight should be given to (i) the
nonmonetary contributions of each party to
the well-being of the family; (ii) the
contributions, monetary and nonmonetary, of
each party in the acquisition and care and
maintenance of the marital property of the
parties; and (iii) the circumstances and
factors which contributed to the dissolution
of the marriage.
The commissioner found that husband "benefited enormously from
the expenditure of marital funds to reduce his personal
indebtedness and make improvements to his separate property
during the marriage." Moreover, husband's "obsessive tendency
to stall and conceal information from his wife during the
marriage and from her counsel during discovery has added to the
difficulty of retracing these contributions and getting this
case to trial."
"Because of the significant marital contributions made by
the parties to increase the value of [husband's] separate
property and [husband's] almost single-handed destruction of the
parties' relationship over the course of the ten-year marriage,"
the commissioner found that wife "is entitled to a significantly
larger share of the marital property." Therefore, he
recommended "that 75% of the value of the marital property be
allocated to [wife]."
On October 8, 2002, the trial court conducted a hearing on
husband's exceptions to the commissioner's report. By letter
opinion of December 30, 2002, the trial court found "it would
have been inappropriate to continue" the November 29th hearing
- 7 -
"[g]iven [husband's] attitude towards the Court, the
commissioner and counsel for Ms. Gochenour." Rather than retain
new counsel, husband acted pro se in requesting the continuance.
Thus, the trial court ruled "[t]here was no reason for the
Commissioner to believe that Mr. Gochenour was dealing with him
in good faith." Regarding the 75/25 division of marital
property in favor of wife, the trial court also upheld the
commissioner's recommendation for the same reasons expressed in
the commissioner's report, namely, husband's conduct in bringing
about the dissolution of the marriage and husband's failure to
comply with discovery, thereby affecting the commissioner's
ability to properly classify all of the property and resulting
in a "disproportionately large amount of separate property for
him."
EQUITABLE DISTRIBUTION
"Fashioning an equitable distribution award lies within the
sound discretion of the trial judge and that award will not be
set aside unless it is plainly wrong or without evidence to
support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732,
396 S.E.2d 675, 678 (1990).
The commissioner's report is deemed to be
prima facie correct. The commissioner has
the authority to resolve conflicts in the
evidence and to make factual findings. When
the commissioner's findings are based upon
ore tenus evidence, "due regard [must be
given] to the commissioner's ability . . .
to see, hear and evaluate the witness at
first hand." Because of the presumption of
- 8 -
correctness, the trial judge ordinarily must
sustain the commissioner's report unless the
trial judge concludes that it is not
supported by the evidence.
Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990)
(citations omitted). "Unless it appears from the record that
the trial judge has not considered or has misapplied one of the
statutory mandates, this Court will not reverse on appeal."
Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630
(1989). "Virginia law does not establish a presumption of equal
distribution of marital assets." Matthews v. Matthews, 26
Va. App. 638, 645, 496 S.E.2d 126, 129 (1998). The trial court
is vested with broad discretion to divide equally the assets or
"to make a substantially disparate division of assets" pursuant
to Code § 20-107.3(E). Id.
The evidence supports the findings made by the
commissioner, which the trial court adopted. The commissioner's
report was a careful, ordered and complete recitation of the
steps taken in weighing the evidence and in deciding upon a fair
and equitable distribution of the marital estate accumulated
during the marriage. The commissioner attempted, as best he
could under the circumstances, to determine the legal title,
ownership, and value of the real and personal property. He
identified the marital and separate property and presented a
clear, concise, and cogent review and analysis of the evidence
and the statutory factors in Code § 20-107.3.
- 9 -
In recommending an unequal distribution, the commissioner
carefully considered all of the factors contained in Code
§ 20-107.3(E) and explained which of several factors he
attributed more weight. In approving the award, the trial court
agreed with the commissioner's reasoning and application of the
statutory factors in making the award. Husband's failure to
provide needed documentation affected the commissioner's ability
to classify, value and distribute the property. 2 The award was
not based solely on husband's fault, but rather on several
factors, including the parties' monetary and non-monetary
contributions, the parties' positive and negative non-monetary
contributions to the well-being of the family and husband's
noncompliance with discovery, which limited a thorough and
complete evaluation of all property. 3 Thus, the award was
supported by the evidence and was not plainly wrong.
Accordingly, the trial court did not abuse its discretion or
commit reversible error.
2
For example, the commissioner was unable to determine the
source of gain of the "little red house," which husband
purchased in July 1998 and sold to his parents in October 1998
because husband failed to produce, despite repeated demands,
attachments that might have explained the source of gain.
3
Code § 20-107.3(E)(10) directs the trial court to
consider, inter alia, "[s]uch other factors as the court deems
necessary or appropriate to consider in order to arrive at a
fair and equitable monetary award." Husband's dilatory and
incomplete discovery obfuscated the commissioner and affected
his ability to accurately identify and classify the property.
- 10 -
CONTINUANCE
"The decision whether to grant a continuance is a matter
within the sound discretion of the trial court. Abuse of
discretion and prejudice to the complaining party are essential
to reversal. In considering a request for a continuance, the
court is to consider all the circumstances of the case."
Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648
(1986) (citations omitted).
Husband's attorney withdrew three weeks past the October
15, 2001 discovery deadline. At the time husband moved for a
continuance, over two and one-half years had elapsed since he
filed for divorce. During that period, he failed to comply with
discovery, which negatively affected his credibility.
Although several weeks had passed since husband's attorney
withdrew because of husband's lack of cooperation, husband did
not retain another attorney to argue in support of a
continuance. Because the discovery deadline had passed long
before husband's attorney withdrew and before husband filed his
motion pro se, any undisclosed witnesses or evidence would have
been inadmissible in the continued action. See Rule 4:12(b)(2)
(listing sanctions for failure to comply with discovery).
Therefore, even if the fact finder believed that husband sought
a continuance in good faith so he could fully comply with
discovery, husband is unable to show prejudice from the refusal
- 11 -
to grant the continuance. Accordingly, the record supports the
decision not to allow the continuance.
ATTORNEY'S FEES
"An award of attorney's fees is a matter submitted to the
trial court's sound discretion and is reviewable on appeal only
for an abuse of discretion." Richardson v. Richardson, 30
Va. App. 341, 351, 516 S.E.2d 726, 731 (1999). We find no abuse
of discretion. "The key to a proper award of fees is
'reasonableness under all of the circumstances revealed by the
record.'" Ragsdale v. Ragsdale, 30 Va. App. 283, 297, 516
S.E.2d 698, 705 (1999) (quoting Westbrook v. Westbrook, 5
Va. App. 446, 458, 364 S.E.2d 523, 530 (1988)).
In February 2002, wife submitted an expense sheet showing
she had incurred $30,934 in legal fees as of that date. Based
on the commissioner's recommendation, the trial court awarded
her $20,000 of her legal fees. This case involved prolonged and
fruitless efforts by wife and the commissioner to obtain
husband's cooperation with discovery. Based on the length with
which the case lingered in court, the amount of legal fees
incurred by wife, husband's complete lack of cooperation and the
limited financial information available to the fact finder, the
trial court acted reasonably and properly exercised its
discretion in awarding wife a portion of her attorney's fees.
- 12 -
Accordingly, we summarily affirm the decision of the trial
court. See Rule 5A:27.
Affirmed.
- 13 -