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Barrett v. Barrett4/26/2005
suasive." Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d 546, 551 (1987); see also Zipf v. Zipf, 8 Va. App. 387, 395, 382 S.E.2d 263, 268 (1989). From the record in this case, we conclude that Dubay's testimony met the required standard for expert testimony for valuation of husband's law practice and of the case files in question.
Finally, we find that the trial court did not err in affirming the commissioner's decision to permit Etherton to testify and in considering that testimony in arriving at its equitable distribution award. Wife did not call Etherton as an expert and was under no obligation to list him in her response to husband's interrogatory requesting only the names of experts she intended to call. The trial court did not abuse its discretion by refusing to strike his testimony.
We conclude that the commissioner did not abuse his discretion in receiving, and that the trial court did not err in considering, the testimony of Dubay and Etherton, either as to the valuation of husband's law practice and the case files in issue, or as to matters relating to the parties' marriage.
Equitable Distribution of Marital Debt In his opening brief and at oral argument, husband asserted, "that the marital debts are the crux of this case" and that "the value of the marital assets was insignificant relative to the enormous amount of the marital debts." He contends that the trial court failed to determine the parties' specific marital debts and assets, and to thereafter equitably apportion them after considering all the factors of Code § 20-107.3(E). Nothing in the record before us supports husband's claim that the trial court failed to consider the matters contained in the commissioner's report, or the factors in Code § 20-107.3(E) in fashioning the equitable distribution award.
The requirement that the trial court consider all of the statutory factors necessarily implies substantive consideration of the evidence presented as it relates to all of these factors. This does not mean that the trial court is required to quantify or elaborate exactly what weight or consideration it has given to each of the statutory factors.
Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).
The commissioner's report included the exhibits filed by the parties detailing their claims, as well as the transcripts of the proceedings before him, including the testimony of the various witnesses. The trial court affirmed, ratified, and incorporated the commissioner's report in its final decree of equitable distribution, considered and overruled each of husband's exceptions to the report, and reduced the amount that husband was ordered to pay to wife's former attorney from $10,000 to $6,000.
In determining its equitable distribution award, the trial court must consider the "debts and liabilities of each spouse the basis for such debts and liabilities." Code § 20-107.3(E)(7). Once it has determined the debts and liabilities of the parties, it has "authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the factors listed in subsection E." Code § 20-107.3(C).
Here, the record reflects that the apportionment of the parties' marital debt was largely determined on "the basis for such debts and liabilities," including the costs of husband's law school education and establishment of his law practice after he was fired from his previous employment for misconduct, and on husband's negative and wife's positive "non-monetary" contributions to the well-being of the family. Code § 20-107.3(E)(7), (1). Moreover, under the equitable dist
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