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Nancy W. Harrison v. W. Gordon Harrison, III ( 1996 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Bray and Overton
    Argued at Norfolk, Virginia
    NANCY W. HARRISON
    v.          Record No. 1280-95-1          MEMORANDUM OPINION * BY
    JUDGE NELSON T. OVERTON
    W. GORDON HARRISON, III                      JANUARY 30, 1996
    FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    Thomas S. Shadrick, Judge
    Jerrold G. Weinberg (Michael H. Wojcik; Weinberg &
    Stein, on briefs), for appellant.
    Joseph L. Lyle, Jr. (Kaufman & Canoles, P.C., on
    brief), for appellee.
    Nancy Harrison (wife) appeals the decision of the circuit
    court setting the amount of spousal and child support to be paid
    by Gordon Harrison (husband).      Wife contends that the trial court
    erred in rejecting the commissioner's recommendation to impute
    $2,000 in additional monthly income to husband.     We disagree and,
    finding no error, we affirm the decision of the trial court.
    Wife contends that the commissioner's recommendation to
    impute $2,000 a month in additional income to husband was proper
    and substantiated.    Wife presented a provision of a trust created
    by husband's grandmother which provided, in part, that the
    trustee had the sole discretion to use the corpus of the trust
    "at any time that my said daughters or grandchildren are in need
    of an additional fund, properly to support, maintain or care for
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    them or any of them in the manner to which they have been
    accustomed . . . ."   Wife also presented a letter indicating that
    the trust had a corpus of $1.3 million in 1987 and generated
    $65,000 in income that year.   Husband testified that he was one
    of four contingent beneficiaries of the trust established for the
    primary benefit of his mother and aunt.   Upon the death of the
    primary beneficiaries, the corpus of the trust could be
    distributed.   Upon these facts, the commissioner in chancery
    found the trust to be a financial resource available to husband
    and imputed the additional monthly income.
    The chancellor appoints a commissioner in chancery to aid
    him or her in "the proper and expeditious performance of his [or
    her] official duties."   Haase v. Haase, 
    20 Va. App. 671
    , 678-79,
    
    460 S.E.2d 585
    , 588 (1995) (alteration in original) (quoting
    Raiford v. Raiford, 
    193 Va. 221
    , 226, 
    68 S.E.2d 888
    , 891 (1952)).
    In doing so, the court does not delegate its judicial functions
    to the commissioner, and the actions of the commissioner are not
    binding upon the chancellor.   Haase, 20 Va. App. at 679, 460
    S.E.2d at 588.   "The ultimate decision in the case is left to the
    chancellor, who must review the evidence according to correct
    principles of law and arrive at his or her own conclusions."
    Cochran v. Cochran, 
    14 Va. App. 827
    , 831, 
    419 S.E.2d 419
    , 421
    (1992).
    In this case the chancellor, upon review of the facts,
    rejected the commissioner's recommendation and ruled that
    - 2 -
    insufficient evidence existed to impute additional income to
    husband.    The imputed income was speculative, impossible to
    calculate without knowing the current status of the corpus,
    yearly income, or beneficiaries.   The judgment of the trial court
    is presumed correct and its ruling will not be disturbed if
    supported by credible evidence.    Steinberg v. Steinberg, 11 Va.
    App. 323, 329, 
    398 S.E.2d 507
    , 510 (1990).
    We find that the evidence before the commissioner supports
    the chancellor's decision.   The decision of the trial court is
    affirmed.   Of course, the parties remain at liberty to petition
    the circuit court for increases or decreases in the sums set for
    spousal and child support, if they be so advised and if new facts
    seem to justify such action.
    Affirmed.
    - 3 -
    

Document Info

Docket Number: 1280951

Filed Date: 1/30/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021