COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

ROBERT GORDON DARDEN 

 MEMORANDUM OPINION*

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

affirmed. 

 Affirmed.