Bernard Goldberg v Jane A. Goldberg

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Elder and Fitzpatrick
BERNARD GOLDBERG
v. 	Record No. 1217-95-1 	MEMORANDUM OPINION*
PER CURIAM
JANE A. GOLDBERG 	NOVEMBER 14, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
(Philip J. Geib; Bennett and Zydron, P.C., on brief),
for appellant.
(Michael A. Robusto; Slipow, Robusto & Kellam, P.C.,
on brief), for appellee.
Bernard Goldberg (husband) appeals the equitable
distribution decision of the circuit court. 	Husband argues that
the trial court erred in (1) valuing husband's business and in
awarding a twenty-five percent share to Jane A. Goldberg (wife),
(2) crediting husband with the cost of some post-separation home
repairs, and (3) finding that the evidence did not support
husband's claim of an outstanding $35,000 loan from his brother.
Upon reviewing the record and briefs of the parties, we conclude
that this appeal is without merit. 	Accordingly, we summarily
affirm the decision of the trial court. 	Rule 5A:27.
Standard of Review
"In reviewing an equitable distribution award on appeal,
we recognize that the trial court's job is a difficult one.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Accordingly, we rely heavily on the discretion of the trial judge
in weighing the many considerations and circumstances that are
presented in each case." 	Artis v. Artis, 4 Va. App. 132, 137,
354 S.E.2d 812, 815 (1987).
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).
Valuation and Distribution of Pet Shop Business
Husband testified that his ongoing pet store business was
worth $20,000 to $25,000, based upon the wholesale worth of his
inventory. 	Husband also alleged there was an outstanding debt of
$38,000 for a loan husband received from his mother and brother.
However, wife presented the testimony of an expert who valued
husband's business at $116,000. 	The expert witness explained his
methodology, which evaluated the business based upon past years'
earnings, weighted more heavily for more recent years. 	While
husband disagreed with the capitalization method used by the
expert, the expert testified that it was a method regularly used
in the valuation of businesses.
The commissioner heard the testimony of the parties and
wife's expert and had the opportunity to evaluate the merits of

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their evidence. 	The commissioner was not required to pick either
the value placed upon the ongoing business by husband or by the
expert witness. 	"[T]he finder of fact is not required to accept
as conclusive the opinion of an expert." 	Lassen v. Lassen, 8 Va.
App. 502, 507, 383 S.E.2d 471, 474 (1989). 	The commissioner
determined that the business was valued at $70,000, which was an
amount within the range of values supported by the evidence. 	We
cannot say the trial court's decision to accept the
commissioner's finding was an abuse of discretion.
Husband testified that wife worked at the pet store only the
first week the store was open, and that she never returned to the
store. 	Husband also testified that he had no idea what his wife
did during the days, that the children did all the house
cleaning, and that wife was out of the home much of the time.
However, other witnesses testified that wife provided substantial
care for the children, as husband always worked twelve hours a
day Monday through Saturday and six hours on Sunday. 	Wife
prepared dinner for the children before leaving the home and on
occasion brought husband dinner at the store.
The commissioner's report demonstrates that the commissioner
considered the statutory factors contained in Code § 20-107.3 in
reaching his decision. 	We cannot say the value attributed to the
pet shop is unsupported by the evidence, or that the award of
twenty-five percent to wife is an abuse of discretion.
Therefore, we affirm the trial court's award of $17,500 to wife

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as her share of the marital value of the pet store.
Repair Costs
Husband presented evidence that he had incurred costs of
$37,431.31 in home repairs and improvements. 	A substantial
amount of the alleged total cost was for work performed by
husband's son. 	No contemporaneous receipt was produced to
support the alleged work of the son. 	Additionally, husband
acknowledged he had no receipts for another portion of the
repairs and improvements, some of which were also performed by
husband's son. 	During the hearing, the parties agreed to amend
husband's list to remove certain pre-separation payments.
The commissioner allowed husband credit for all items for
which husband presented a receipt. 	Implicit in that
determination is an acknowledgement by the commissioner that
husband failed to produce credible evidence and carry his burden
of proving the non-receipted costs. 	As such, we cannot say as a
matter of law that husband proved that he incurred those costs.
Outstanding Loans
Husband argues that the trial court erred in refusing to
reduce the value of his business and the marital home by the
amount of two outstanding loans. 	Husband alleged that, in 1980,
his brother and mother lent him $38,000 for the purchase of the
pet store, and his brother lent him $35,000 for the purchase of
the home. 	Husband presented two promissory notes, signed by him,

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payable on demand to "Betty Goldberg/Arthur Allan" with interest
payable at six and one-half percent, as evidence of the loans.
Husband acknowledged that there was no lien against his residence
and that he had made no payment on either note. 	The commissioner
noted that, although the promissory notes were fifteen years old,
they looked "very fresh." 	The commissioner also noted that the
term "on demand" was added in different ink and different
writing.
The commissioner found, and the trial court agreed, that the
evidence did not support husband's claim that he receive credit
for these outstanding loans. 	On review, we cannot say as a
matter of law that the trial court's finding was in error.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.