Barrett v. Barrett4/26/2005
also recommended that husband contribute $10,000 toward wife's attorney's fees incurred during the earlier divorce proceedings. Wife claimed those fees to be marital debt.
On February 11, 2004 and April 5, 2004, the trial court heard argument on husband's exceptions to the commissioner's report. On May 4, 2004, the trial court affirmed, ratified, and incorporated the commissioner's report in its final decree without modification, but reduced from $10,000 to $6,000 the amount that husband was ordered to pay directly to wife's attorney for fees wife incurred during the divorce proceedings. This appeal followed.
ANALYSIS
For the reasons that follow, we affirm the final decree of equitable distribution, with the exception of that part of the decree ordering husband to "contribute $6,000.00 toward the accumulated attorneys fees owed by the [wife], made payable to [wife's] former attorney . . . no later than one year from the date of the entry of the Decree . . . ."
"Fashioning an equitable distribution award lies within the sound discretion of the trial judge and that award will not be set aside unless it is plainly wrong or without evidence to support it." Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990). Where a trial court refers matters in an equitable distribution proceeding to a commissioner in chancery to receive and consider the evidence, and to make a report to the trial court with his recommendations based on his findings, we give "great weight" to the factual findings of the commissioner approved by the trial court. Cooper v. Cooper, 249 Va. 511, 518, 457 S.E.2d 88, 92 (1995). We will not reverse such findings on appeal unless they are plainly wrong, without credible evidence in the record to support them. Barker v. Barker, 27 Va. App. 519, 531, 500 S.E.2d 240, 246 (1998); Taylor v. Taylor, 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988).
Admissibility of Dubay's and Etherton's Testimony Husband contends that the trial court erred in considering the testimony of Hayden Dubay and of Scott Etherton. He contends that testimony should be excluded because wife failed to provide the names of witnesses she intended to call at the commissioner's hearing pursuant to the rules of discovery. Specifically, he argues that because she responded that she had "no plans to call any witnesses" to his discovery request for the names of her possible expert witnesses, the commissioner and the trial court should have excluded the testimony of Etherton and Dubay as an appropriate sanction for her failure to comply with discovery pursuant to Rule 4:12(b)(2)(B).
The exclusion of testimony as an appropriate sanction for abuse of discovery is within the sound discretion of the trial court. Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907 (2000); Virginia Elec. & Power Co. v. Dungee, 258 Va. 235, 258, 520 S.E.2d 164, 177 (1999). Assuming, without deciding, that wife improperly failed to supplement her earlier discovery response concerning calling of witnesses, the trial court, nevertheless, had broad discretion under Rule 4:12 in determining an appropriate sanction for that failure.
"Rule 4:12 gives the trial court broad discretion in determining what sanctions, if any, will be imposed upon a litigant who fails to respond timely to discovery." And a trial court's decision to admit evidence that is not timely disclosed, rather than impose the sanction of excluding it, will not be reversed unless the court's action amounts to an abuse of discretion.
Rappold v. Indiana Lumbermens Mut. Ins. Co., 246 Va. 10, 14-15, 431 S.E.2d 302, 305 (1993) (quoting Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d
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