Anthonette S. T. Pellegrino v. Joseph S. Pellegrino

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ANTHONETTE SHELDINE TRAINO PELLEGRINO
v. Record No. 1923-95-1 MEMORANDUM OPINION *
PER CURIAM
JOSEPH S. PELLEGRINO MARCH 12, 1996
FROM THE CIRCUIT COURT OF
THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
(Irene Sutton; Charles R. Hofheimer, P.C.,
on brief), for appellant.
(Paul M. Lipkin; Goldblatt, Lipkin & Cohen,
P.C., on brief), for appellee.
Anthonette Sheldine Traino Pellegrino appeals the equitable
distribution decision of the circuit court. She argues that the
trial judge abused his discretion in distributing the equity in
the marital home, in crediting the testimony of her husband,
Joseph S. Pellegrino, concerning a withdrawal from husband's
savings account, and in awarding costs and 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 trial judge's decision. Rule 5A:27.
Evidence was received ore tenus by the commissioner in
chancery. The trial judge's acceptance of the commissioner's
report must be reviewed upon the principle that "due regard [must
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
be given] to the commissioner's ability . . . to see, hear and
evaluate the witness at first hand." Hill v. Hill, 227 Va. 569,
577, 318 S.E.2d 292, 297 (1984). "The commissioner's report is
deemed to be prima facie correct." Brown v. Brown, 11 Va. App.
231, 236, 397 S.E.2d 545, 548 (1990). In addition, on our review
of the trial judge's decision, "[t]he decree confirming the
commissioner's report is presumed to be correct and will not be
disturbed if it is reasonably supported by substantial,
competent, and credible evidence." Brawand v. Brawand, 1 Va.
App. 305, 308, 338 S.E.2d 651, 652 (1985).
Equitable Distribution Award
Both parties presented to the commissioner proposals for the
distribution of the equity in the marital home. Both proposals
recognized that husband contributed $18,544.68 toward the total
purchase price of $88,919.50. Both parties agreed that the
home's current value was $168,000.00 and the equity portion of
that value was $118,961.47.
Under the provisions of Code § 20-107.3, the trial judge is
required to determine the title and value of the parties'
property, including retraceable separate property. Code
§ 20-107.3(A)(3)(d). Both parties presented a method by which
the commissioner could determine the portions of the value of the
residence attributable to the contribution of separate property.
The commissioner selected the husband's calculation for
determining the portion of the residence deemed marital property
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and the portion retraceable as separate property. We find no
error. The commissioner's chosen method of distributing the
equity in the marital home was supported by the evidence and
complied with the statutory requirements.
Wife asserts that the equitable distribution award
demonstrates that the trial court failed to consider wife's
greater nonmonetary contributions and husband's negative
contributions. We disagree.
"[T]he chancellor is necessarily vested with
broad discretion in the discharge of the
duties the statute [Code § 20-107.3] imposes
upon him. Unless it appears from the record
that the chancellor has abused his
discretion, that he has not considered or has
misapplied one of the statutory mandates, or
that the evidence fails to support the
findings of fact underlying his resolution of
the conflict in the equities, the
chancellor's equitable distribution award
will not be reversed on appeal."
Brown v. Brown, 5 Va. App. 238, 244-45, 361 S.E.2d 364, 368
(1987) (citation omitted). The commissioner heard the evidence
ore tenus and made the equitable distribution pursuant to
consideration of the provisions of Code § 20-107.3. The trial
judge reviewed the report and noted that the commissioner's
findings were supported by the facts and were not incorrect as a
matter of law. We cannot say that the record demonstrates an
abuse of discretion on the part of the trial judge or a failure
to consider the statute or the evidence.
The Savings Account
The commissioner heard the testimony of the parties and
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believed husband's testimony that he gave wife the $9,500 which
he withdrew from his savings account. Wife denied ever receiving
the funds. The trial judge deferred to the credibility
determination made by the commissioner. See Brown, 11 Va. App.
at 236, 397 S.E.2d at 548. The record contains no documentary
evidence to refute the finding. We cannot say that the finding
was unsupported by credible evidence or that the trial judge
erred in awarding the wife 35% of the balance remaining in the
account.
Attorney's Fees and Costs
Awards of costs and attorney's fees are matters submitted to
the sound discretion of the trial judge and are reviewable on
appeal only for an abuse of discretion. Graves v. Graves, 4 Va.
App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper
award of costs or counsel fees is reasonableness under all the
circumstances. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338
S.E.2d 159, 162 (1985).
The commissioner ordered husband to pay all costs and $1,500
in wife's attorney's fees following the first hearing. Wife
incurred approximately $3,000 in additional attorney's fees
during the year between the first and second commissioner's
hearings. At the time of the second hearing, husband's income
had dropped to $1,111, while wife earned $1,522. Based on the
number of issues involved and the respective abilities of the
parties to pay, we cannot say that the attorney's fees award of
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$300 and the sharing of costs was unreasonable or an abuse of
discretion.
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Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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