Charles H. Crennel v Mildred L. Henderson Crennel

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
CHARLES HENRY CRENNEL
v. 	Record No. 2629-94-1 	MEMORANDUM OPINION* BY
JUDGE RICHARD S. BRAY
MILDRED L. HENDERSON CRENNEL 	SEPTEMBER 19, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
L. Cleaves Manning, Judge
B. Thomas Reed for appellant.
(Donald G. Wise, on brief), for appellee. 	Appellee
submitting on brief.
Charles Henry Crennel (husband) and Mildred L. Henderson
Crennel (wife) were divorced by decree of the trial court entered
on November 14, 1994. 	Husband complains on appeal that the court
erroneously classified as marital property certain "retirement
incentive pay" received by him and awarded wife a related "lump sum
payment." 	However, because of deficiencies in the record, we are
unable to properly consider this issue and affirm the decree.
Following an ore tenus hearing before a commissioner in
chancery, the commissioner reported to the trial court that the
disputed "separation pay" was "in lieu of wages," an "inducement"
for husband to "take early retirement," and, therefore, husband's
separate property. 	Wife's exception to this finding was argued by
counsel before the trial court and, "[u]pon consideration of the
. . . report and recommendations, the evidence and argument . . .,"
the trial judge concluded that the payment constituted "marital
*Pursuant 	to 	Code 	§ 	17-116.010 	this 	opinion 	is 	not 	designated
for publication.

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property . . . to be divided between the parties." 	No transcript
or written statement of these proceedings is before this Court.
See Rule 5A:8.
It is well established that an equitable distribution award
will not be reversed on appeal
[u]nless 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 . . . .
Robinette v. Robinette, 10 Va. App. 480, 486, 393 S.E.2d 629, 633
(1990) (citations omitted). 	The ruling of the trial court is
"presumed to be correct and the burden is on the appellant to
present to us a sufficient record from which we can determine
whether the . . . court . . . erred . . . . 	[Otherwise,] the
judgment will be affirmed." 	Justis v. Young, 202 Va. 631, 632, 119
S.E.2d 255, 256-57 (1961) (citations omitted); Smith v.
Commonwealth, 16 Va. App. 630, 635, 432 S.E.2d 2, 6 (1993).
Here, the record reflects that the trial court sustained
wife's exceptions to the commissioner's report and attendant
recommendations following an ore tenus hearing. 	This ruling is
presumably correct and, with no record of the related hearing, we
are unable to properly review the decree for error.1
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
1Husband's appellate counsel first appeared of record following
entry of the decree in contention.