Payne v. Simmons , 232 Va. 379 ( 1986 )

COMPTON, J.,

dissenting.

In a recent decision, we reiterated the basic rule of appellate procedure applicable to cases like this in which the trial court has heard testimonial evidence and made findings upon disputed facts. In Rochelle v. Rochelle, 225 Va. 387, 302 S.E.2d 59 (1983), we said

“The record shows that the chancellor gave the evidence . . . and arguments full and patient consideration. In these circumstances, we cannot substitute our conclusions for those drawn from the evidence by the trier of fact. A chancellor’s finding on conflicting evidence, heard ore tenus, will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.” 225 Va. at 393, 302 S.E.2d at 63.

The majority in the present case, while saluting the foregoing principle, disregards it. Indeed, the Court actually redetermines the facts on appeal in the process of concluding that actual fraud was committed.

A review of this record convinces me that the trial court thoroughly considered the evidence, drew proper inferences from the facts, and reached proper conclusions supported by that evidence. In a five-page written opinion, the chancellor carefully articulated his findings.

In my view, there is credible evidence to support the chancellor’s judgment which was based, in part, on his observation of the witnesses as they testified, an advantage no member of this Court enjoyed. Consequently, I would affirm the decision below, not because I would have come to the same conclusion as the trial judge had I been presiding at trial. Rather, I would affirm because I feel bound by the salutary rule quoted above.