Nancy W. Harrison v. W. Gordon Harrison, III

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
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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.
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