Karen Dee Allen v. William Dale Allen

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
KAREN DEE ALLEN
MEMORANDUM OPINION * BY
v. Record No. 0986-97-1 JUDGE NELSON T. OVERTON
FEBRUARY 24, 1998
WILLIAM DALE ALLEN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
(Dale Vernon Berning; Moody, Strople &
Kloeppel, Inc., on brief), for appellant. 1
Moody E. Stallings, Jr. (Kevin E.
Martingayle; Stallings & Richardson, P.C., on
brief), for appellee.
Karen Dee Allen (wife) appeals a final decree of divorce in
which the trial court refused to classify certain monies as
marital property and, thus, subject to equitable distribution.
Because the trial court's decision is not plainly wrong or
without evidence to support it, we affirm.
We view the evidence in the light most favorable to the
party prevailing below. See Derby v. Derby, 8 Va. App. 19, 26,
378 S.E.2d 74, 77 (1989). So viewed, the record indicates that
on December 17, 1994 wife filed a bill of complaint seeking
divorce a vinculo matrimonii from William Dale Allen (husband).
The matter was referred to a commissioner in chancery who heard
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Appellant waived the opportunity to present oral argument.
evidence on the sole issue presented by the parties; equitable
distribution of the couple's remaining personalty. During the
ore tenus hearing, wife testified that husband received a yearly,
six thousand dollar ($6,000) payment from the Department of the
Navy. She stated that Naval officers told her that the payment
was her husband's retirement pension. She presented no other
evidence on the matter.
In his report, the commissioner found that:
Military retirement benefits are payable
monthly, not yearly. I can not tell from the
evidence what the husband is receiving, but
it is not a retirement benefit as defined in
the Former Spouses Protection Act. I
therefore do not recommend an award to the
wife from these monies.
The trial court acted upon the commissioner's recommendation by
refusing to declare the payment a marital asset under Code
§ 20-107.3. Accordingly, the divorce decree of March 24, 1997
made no mention of the payment.
We lend great weight "to a commissioner's findings of fact
based upon evidence taken in his presence." Hill v. Hill, 227
Va. 569, 576, 318 S.E.2d 292, 296 (1984) (citations omitted).
"On appeal, a decree which approves a commissioner's report will
be affirmed unless plainly wrong." Id. In the instant case, the
trial court was not plainly wrong when it refused to distribute
the payments.
We have held that "the burden is always on the parties to
present sufficient evidence to provide the basis on which a
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proper determination can be made, and the trial court in order to
comply . . . must have the evidence before it . . . to grant or
deny a monetary award." Bowers v. Bowers, 4 Va. App. 610, 617,
359 S.E.2d 546, 550 (1987) (citing Hodges v. Hodges, 2 Va. App.
508, 517, 347 S.E.2d 134, 139 (1986)). The only evidence
regarding the payments was presented through wife's testimony,
which the commissioner himself commented upon when he warned
wife's counsel that "[y]our client is simply not being forthright
and not being honest."
With no credible evidence before it, the trial court could
have rightfully found that the payments were not shown to exist
at all. See Clements v. Clements, 10 Va. App. 580, 586, 397
S.E.2d 257, 260-61 (1990) (holding that an employment bonus
wasn't proven unless the proponent could show that it was
actually paid or received). The details of the commissioner's
report, however, indicate that he believed a payment had been
made to husband, but that it could not have been a military
pension due to its infrequency. Wife insisted, however, that the
yearly payment was a pension. Faced with conflicting evidence
regarding the character of the funds, the trial court concluded
that it could not be a military pension. Because the parties
presented no further evidence of the nature of this unidentified
money, the trial court determined it was not subject to equitable
distribution. See Gamer v. Gamer, 16 Va. App. 335, 346, 429
S.E.2d 618, 625 (1993); Lambert v. Lambert, 10 Va. App. 623,
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627-28, 395 S.E.2d 207, 209-10 (1990).
An appellate court has no better view of the evidence and
enjoys no better insight into the character of husband's
mysterious payments than did the trial court. Wife urges us to
reverse the trial court on the ground that her statements
constituted credible evidence that the money at issue was a
military retirement pension. "It is well established that the
trier of fact ascertains a witness' credibility, determines the
weight to be given to their testimony, and has the discretion to
accept or reject any of the witness' testimony." Street v.
Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en
banc) (citing Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 589, 601 (1986)). Because the trial court was free to
find wife's testimony not credible, and we cannot now reverse
that finding, we hold that the trial court's refusal to
distribute the funds was proper.
"'Parties should not be allowed to benefit on review for
their failure to introduce evidence at trial . . . . At some
point we must "ring the curtain down."'" Bowers, 4 Va. App. at
617, 359 S.E.2d at 550 (citations omitted). Accordingly, the
last act of this play is finished, and we affirm.
Affirmed.
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