COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Overton 

SEBERT FRANKLIN SKEENS 

 MEMORANDUM OPINION*

v. Record No. 1035-00-2 PER CURIAM 

 OCTOBER 3, 2000 

JOYCE ANN TOLER SKEENS 

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY 

W. Park Lemmond, Jr., Judge 

 (Jacqueline Waymack; Butterworth & Waymack, 

on brief), for appellant. 

 (Edward A. Robbins, Jr.; Timothy H. Louk; The 

Robbins Law Firm, P.C., on brief), for 

appellee. 

 Sebert Franklin Skeens (husband) appeals the decision of the 

circuit court granting a divorce and equitably distributing the 

parties' marital estate. He contends the trial court erred by (1) 

granting Joyce Ann Toler Skeens (wife) a divorce based on his 

fault; (2) dividing the marital property unequally between the 

parties; (3) permitting wife to satisfy the monetary lump sum 

award with the transfer of personal property; (4) designating wife 

as the irrevocable beneficiary of his military Survivor Benefit 

Plan; and (5) accepting the commissioner in chancery's decision on 

the value of the marital property. Upon reviewing the record and 

briefs of the parties, we conclude that this appeal is without 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
merit. Accordingly, we summarily affirm the decision of the trial 

court. See Rule 5A:27. 

BACKGROUND

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below, granting to her all reasonable 

inferences therefrom. See McGuire v. McGuire, 10 Va. App. 248, 

250, 391 S.E.2d 344, 346 (1990). On May 14, 1997 and December 9, 

1997, the commissioner in chancery conducted ore tenus hearings. 

He filed his report with the trial court on August 21, 1998, to 

which the parties excepted. The trial court entered the final 

decree on April 11, 2000. 

 Husband and wife were married in 1958 in West Virginia. The 

trial court found that husband "wilfully abandoned and deserted" 

wife. After having "carefully considered the evidence presented 

by the parties and the Commissioner's Report," the trial court 

ordered and decreed that wife would receive all personal property 

then in her possession, which had a value of $67,802.05. The 

trial court also decreed that wife would receive sole ownership 

and possession of the marital home valued at $54,000, the "Lake 

Gaston" property valued at $14,500, and the "Port Charlotte" 

property valued at $9,200. 

 The trial court ordered and decreed that husband would 

receive all personal property then in his possession, which had a 

value of $29,722.81, and sole ownership and possession of the 

property adjacent to the marital home valued at $10,100. 

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Additionally, the trial court required wife to pay husband 

$43,573.38. The trial court ruled that wife may satisfy the 

monetary award in favor of husband by conveying an equivalent 

amount of her interests in real and tangible personal property to 

him. Furthermore, the trial court deemed wife to be an 

irrevocable beneficiary of husband's Survivor’s Benefit Plan (SBP) 

and ordered husband "to execute all documents necessary to 

maintain [wife's] designation as a former spouse" and "to do 

nothing to reduce or eliminate that benefit to the" wife. 

DISCUSSION

[A] commissioner's report is deemed to be 

prima facie correct. [A] commissioner has 

the authority to resolve conflicts in the 

evidence and to make factual findings. When 

the commissioner's findings are based upon 

ore tenus evidence, "due regard [must be 

given] to the commissioner's ability . . . 

to see, hear and evaluate the witness at 

first hand." Because of the presumption of 

correctness, the trial judge ordinarily must 

sustain the commissioner's report unless the 

trial judge concludes that it is not 

supported by the evidence. 

Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990) 

(citations omitted). A decree which approves a commissioner's 

report will be affirmed unless plainly wrong. See Hill v. Hill, 

227 Va. 569, 577, 318 S.E.2d 292, 296 (1984). 

Desertion

 "Desertion occurs when one spouse breaks off marital 

cohabitation with the intent to remain apart permanently without 

the consent or against the will of the other spouse." Barnes v. 

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Barnes, 16 Va. App. 98, 101, 428 S.E.2d 294, 297 (1993). 

Desertion must be proven by a preponderance of the evidence. 

See Bacon v. Bacon, 3 Va. App. 484, 490, 351 S.E.2d 37, 40-41 

(1986). "It is well established that 'where dual or multiple 

grounds for divorce exist, the trial judge can use his sound 

discretion to select the grounds upon which he will grant the 

divorce.'" Williams v. Williams, 14 Va. App. 217, 220, 415 

S.E.2d 252, 253 (1992) (citation omitted). 

 From 1971 until 1988, husband determined "more or less" the 

marriage was over. During that time, husband slept "on the 

couch." He testified that he "left [wife on] April 22, [19]88." 

After moving out of the marital home in 1988, husband began 

"liv[ing] in a school bus" he and his son used for hunting. 

Wife denied asking or forcing husband to leave the marital home. 

 Evidence supported the ground on which the trial court 

granted the divorce. Therefore, we find no abuse of discretion 

in the trial court's decision to award wife a divorce on the 

ground of desertion. 

Unequal Division of Assets

 "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). Moreover, we will not reverse an 

award, "unless it appears from the record that the [trial court] 

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. . . has not considered or has misapplied one of the statutory 

mandates, or that the evidence fails to support the finding of 

fact underlying resolution of the conflict in the equities." 

Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987). 

Virginia's statutory scheme of equitable distribution does not 

have a presumption favoring an equal distribution of assets. 

See Papuchis v. Papuchis, 2 Va. App. 130, 132-33, 341 S.E.2d 

829, 830-31 (1986). 

 In fashioning an award, the trial court is required to 

consider the statutory factors set forth in Code § 20-107.3(E). 

See Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436 

(1991). Code § 20-107.3(E)(1) requires the court to consider 

the "monetary and nonmonetary" contributions "of each party to 

the well-being of the family." 

 "Based upon the evidence presented," the commissioner found 

that wife "contributed sixty percent (60%) of the nonmonetary 

factors . . . to the well-being of the family" and that husband 

"contributed forty percent (40%)." He based this finding on the 

fact that "[d]uring five of the thirty-five years of the 

marriage, [husband] was on overseas tour of duty with the U.S. 

Army; and the [wife,] of necessity, had to perform all of the 

non-monetary family contributions." The commissioner also found 

that, because both parties "worked throughout the marriage" and 

had "approximately equal" salaries, "each [party] contributed 

fifty percent (50%) of the monetary contributions." By adding 

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each party's respective percentages of nonmonetary and monetary 

contributions and dividing by two, the commissioner arrived at 

and recommended wife receive a fifty-five percent share of the 

marital assets. Because the trial court's distribution of 

assets was based upon the statutory factors and was supported by 

the evidence, we find no abuse of discretion. 

Property Transfer to Satisfy a Lump-Sum Award

 "The party against whom a monetary award is made may 

satisfy the award, in whole or in part, by conveyance of 

property, subject to the approval of the court." Code 

§ 20-107.3(D). The trial court expressly allowed wife to convey 

an equivalent amount of real and tangible personal property to 

husband in satisfaction of husband's monetary award. 

 Husband's arguments criticizing the relative values of 

wife's personal property have no bearing on the trial court's 

statutory authority to allow a party to satisfy an award by 

conveying property. See id. In exercising its authority, the 

trial court did not abuse its discretion or commit reversible 

error. 

Survivor Benefit Plan (SBP)

 Husband contends the trial court erred in designating wife 

as the irrevocable beneficiary of the SBP plan and allocating 

the monthly cost of the plan to husband "where neither the 

commissioner nor the judge specifically ruled on the issue." 

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 On page 17 of his report, the commissioner addressed the 

SBP. According to the commissioner, although husband "testified 

that it is his understanding that after the divorce is granted, 

he cannot cancel this coverage," the commissioner 

determined from reviewing information 

received from counsel . . . and from 

speaking to Army Retirement Services, the 

survivor benefits will be terminated once 

the Department of the Army has received the 

divorce decree unless (1) the [husband] is 

ordered by this Court to provide SBP 

coverage for [wife] or (2) the [husband] 

voluntarily elects such coverage within a 

year of entry of the final divorce decree. 

 In the final decree, the trial court decreed wife to be 

"deemed as the irrevocable beneficiary of the Survivor's Benefit 

Plan (SBP)" and ordered husband "to designate [wife] as a former 

spouse for said purposes, to timely execute all documents 

necessary to maintain [wife's] designation []as a former spouse 

for such purposes, and to do nothing to reduce or eliminate that 

benefit to [wife]." 

 "[T]he court may order a party to designate a spouse or a 

former spouse as irrevocable beneficiary . . . of all or a 

portion of any survivor benefit or annuity plan of whatsoever 

nature." Code § 20-107.3(G)(2). Also, "[t]he court, in its 

discretion, shall determine as between the parties, who shall 

bear the costs of maintaining such plan." Id. 

 As explained above, the commissioner noted that husband 

presently pays SBP coverage and that husband represented to him 

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that such coverage could not be canceled by him after the 

divorce was granted. Had husband's representation been 

accurate, wife would have received SBP coverage that husband 

could not have canceled. However, after researching the issue 

and discovering that wife's SBP coverage would be terminated 

unless some action is taken, the commissioner suggested two 

options for assuring continued, noncancelable SBP coverage 

consistent with husband's representation at the hearing. Those 

suggested courses of action represent alternative 

recommendations. The trial court opted to order husband to 

provide the coverage rather than rely on his voluntary election 

to do so. Therefore, contrary to husband's assertion, the 

record demonstrates that the commissioner addressed the issue, 

made a recommendation and the trial court specifically ruled on 

it. Moreover, the trial court had statutory authority to order 

husband to continue with the plan and to designate wife as the 

irrevocable beneficiary. See Code § 20-107.3(G)(2). 

Accordingly, the trial court did not abuse its discretion or 

otherwise err. 

Valuation Date

 At the May 14, 1997 ore tenus hearing, the commissioner 

admitted into evidence wife's Exhibit 5, a chart listing values 

for real and personal property. Some items had one valuation, 

others had dual valuations, one by wife and one by husband, and 

two items contained no valuation. The commissioner employed the 

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listed value where only one value was included, and he adopted 

the higher value where the values differed. The commissioner 

then asked husband's attorney if she was "in agreement with 

that, [and] would [she] stipulate that the other values that are 

shown on here are the agreed values between the parties, and the 

only thing we need to consider this morning would be the two 

items [for] which there is no value." Both parties agreed to 

stipulate, and the commissioner indicated the stipulation in 

writing on Exhibit 5. 

 During the hearing, the commissioner asked husband about 

wife's Exhibit 3, a list of personal property taken by husband 

containing values for each piece of property. Husband agreed 

that the figures reflected values as of the date of separation. 

Husband then contended there was no timely motion to use a 

valuation date different than the day of the hearing pursuant to 

Code § 20-107.3(A). The commissioner "assumed," however, the 

parties "were using the date of separation, because all the 

[both] of you have presented to me today here have been those 

dates. I think if we now try to change that and go to the 

current date, . . . we would have to reevaluate all of the 

evidence before us." 

 The following colloquy then took place: 

THE COMMISSIONER: Are you satisfied with 

the valuations as of the date of separation? 

[HUSBAND'S ATTORNEY]: Yes, sir. 

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BY [HUSBAND'S ATTORNEY TO HUSBAND]: 

Q: I guess maybe that's the question. Are you 

satisfied with those values? 

A: I accept it. 

 By stipulating to a valuation date other than the date of 

the hearing, husband cannot now complain about that date's use 

by the trial court. "'No litigant . . . will be permitted to 

approbate and reprobate--to invite error . . . and then to take 

advantage of the situation created by his own wrong.'" Manns v. 

Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992) 

(quoting Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 

46, 54 (1988)). Husband, "'having agreed upon the action taken 

by the trial court, should not [now] be allowed to assume an 

inconsistent position.'" Id. at 679, 414 S.E.2d at 615 (quoting 

Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792 

(1979)). Accordingly, the trial court did not err in valuing 

the parties' property according to their stipulations. 

 For the foregoing reasons, the decision of the trial court 

is summarily affirmed. 

Affirmed.

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