Robert Gordon Darden v Cynthia Lynn Darden

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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Lemons

ROBERT GORDON DARDEN
MEMORANDUM OPINION
Vv. Record No. 1274-98-1 PER CURIAM
JANUARY 26, 1999
CYNTHIA LYNN DARDEN

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
(Winston G. Snider, on brief), for appellant.

No brief for appellee.

Robert Gordon Darden (husband) appeals the decision of the
circuit court granting the exception of Cynthia Lynn Darden
(wife) to the report of the commissioner in chancery. The
circuit court found that husband failed to present sufficient
evidence supporting his equitable distribution claim. Husband
contends that the trial court erred by failing to (1) enter an
equitable distribution ruling, and (2) grant his motion to
re-refer the matter to the commissioner for an additional
evidentiary hearing. Upon reviewing the record and opening
brief, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the decision of the trial court.

See Rule 5A:27.
The evidence was heard by a commissioner in chancery.
While the report of a commissioner in

chancery does not carry the weight of a
jury's verdict, it should be sustained unless

"Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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the trial court concludes that the
commissioner's findings are not supported by
the evidence. 	This rule applies with
particular force to a commissioner's findings
of fact based upon evidence taken in his
presence, but is not applicable to pure
conclusions of law contained in the report.
Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 292, 296 (1984)
(citations omitted). 	"[D]ue regard [must be given] to the
commissioner's ability . . . to see, hear, and evaluate the
witness at first hand." 	Id. at 577, 318 S.E.2d at 297.
Equitable Distribution Claim
Husband contends that the trial court erred when it failed
to enter an equitable distribution decree. 	We disagree.
Virginia's statute "mandates" that trial
courts determine the ownership and value of
all real and personal property of the
parties. 	But, consistent with established
Virginia jurisprudence, the litigants have
the burden to present evidence sufficient for
the court to discharge its duty. 	When the
party with the burden of proof on an issue
fails for lack of proof, he cannot prevail on
that question.
Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987)
(citation omitted).
Husband presented no documentary evidence supporting his
equitable distribution claim. 	He opined that the marital
residence, which was titled solely in wife's name, was worth
$85,000, but failed to provide any supporting documentation or to
demonstrate that he had some basis for his opinion. 	He testified
that $50,000 was owed on the house, but admitted that his opinion
was based

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[j]ust from what I have seen going on through
here. 	I think the last time we -- it has
been brought up in here somewhere right
around that figure.
Husband admitted that he did not know the value of certain
unspecified tools purportedly in wife's possession.
The commissioner found that husband's unsubstantiated
testimony was insufficient evidence to support his claim. 	The
commissioner recommended no decision. 	The circuit court accepted
the commissioner's credibility determination. 	However, because
the issue of equitable distribution was raised but not proven by
husband, the court found that husband's claim was defeated. 	We
find no error in the circuit court's decision denying husband's
equitable distribution claim.
Additional Hearing
"The granting or denying of a motion to hear additional
evidence is within the sound discretion of the trial court."
Rowe v. Rowe, 24 Va. App. 123, 144, 480 S.E.2d 760, 770 (1997)
(citing Morris v. Morris, 3 Va. App. 303, 307, 349 S.E.2d 661,
663 (1986)). 	The record indicates that the parties held three
hearings before the commissioner. 	Husband failed to present
sufficient credible evidence supporting his claim. 	He did not
allege any underlying reasons justifying his failure to do so.
We find no abuse of discretion in the trial court's denial of
husband's request for an additional opportunity to present
evidence.

Accordingly, the decision of the circuit court is summarily
affirmed.

Affirmed.