COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Clements 

Argued at Richmond, Virginia 

SAUNDRA L. ASH 

 

v. Record No. 3043-01-2 

 

RAYMOND D. ASH MEMORANDUM OPINION* BY 

 JUDGE LARRY G. ELDER 

 JULY 23, 2002 

RAYMOND D. ASH 

v. RECORD No. 3072-01-2 

SAUNDRA L. ASH 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

John Richard Alderman, Judge 

 C. A. Barranger for Saundra L. Ash. 

 Jennifer E. Crossland (William H. 

 Parcell, III; Parcell, Webb & Wallerstein, 

P.C., on briefs), for Raymond D. Ash. 

Saundra L. Ash (wife) and Raymond D. Ash (husband) appeal 

from a final decree effecting the equitable distribution of 

their property following referral of the matter to a 

commissioner in chancery. On appeal, husband contends the trial 

court erred in considering wife's late-filed exceptions to the 

commissioner's report because the court made no finding of good 

cause for the late filing and, thus, lacked jurisdiction. Wife 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
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contends the trial court erroneously denied her motion to compel 

husband to provide information she requested in interrogatories 

regarding the severance package husband would receive following 

termination by his employer. She also contends the court 

erroneously classified the severance package as husband's 

separate property and various credit card debts as marital 

property.1

 We hold a finding of good cause was implicit in the trial 

court's consideration of wife's late-filed exceptions to the 

commissioner's report and that its consideration of the 

exceptions was not error. We also find that the trial court's 

classification of the challenged credit card debts as marital 

was not error. However, we hold that the court's failure to 

grant wife's motion to compel discovery deprived wife of the 

opportunity to obtain evidence relevant to whether any portion 

of husband's severance package was marital property. Thus, we 

reverse the trial court's equitable distribution award and 

remand for further proceedings consistent with this opinion. 

1

 Wife's assignments of error complain of the trial court's 

decision that the credit card debts "were marital debts to be 

divided equally by the parties." However, wife's analysis 

addresses only the classification of the property as marital, 

not the trial court's decision to divide it equally. Thus, on 

appeal, we do not consider the trial court's decision concerning 

the division of those debts. 
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I. 

FILING OF WIFE'S EXCEPTIONS TO COMMISSIONER'S REPORT 

 Code § 8.01-615 provides that when a cause is referred to a 

commissioner in chancery and the commissioner issues a report, 

"[e]xceptions to the commissioner's report shall be filed within 

ten days after the report has been filed with the court, or for 

good cause shown, at a later time specified by the court." 

 Although that code section uses the word "shall," it also 

expressly provides that the court may allow the filing of 

exceptions "at a later time" "for good cause shown." Id. The 

statute does not require a court to extend the time for filing 

exceptions before the ten-day deadline has expired, and Rule 1:9 

expressly provides that a court may extend "[t]he time allowed 

for filing pleadings . . . although the time fixed already has 

expired." Finally, the Supreme Court has held that a trial 

court abused its discretion in denying a motion of a party 

presenting good cause to extend the time for filing of 

exceptions to a commissioner's report, even though the extension 

request was made after the ten-day time for filing already had 

expired. Lannon v. Lee Connor Realty Corp., 238 Va. 590, 

592-94, 385 S.E.2d 380, 381-82 (1989). 

 Further, we hold that a finding of good cause was implicit 

in the trial court's ruling to permit the late filing of wife's 

exceptions. Cf., e.g., Harris v. Commonwealth, 258 Va. 576, 

582-84, 520 S.E.2d 825, 828-29 (1999) (holding that evidence 
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supported trial court's granting of nolle prosequi motion under 

Code § 19.2-265.3, which required finding of good cause). 

Wife's counsel represented her "belie[f] [that] the Court had 

been closed because of bad weather at that time." Although the 

clerk of court reported that the court was open on the day the 

exceptions were due but closed for two days following that date, 

the trial court expressly ruled at the hearing on July 10, 2000, 

that it would "allow [the exceptions] to be filed" "under the 

circumstances . . . given the snow days." Under the facts of 

this case, which include the absence of a showing of any 

prejudice to husband from the late filing, we perceive no abuse 

of the trial court's discretion in allowing wife's late filing 

and considering her exceptions. See Lannon, 238 Va. at 594, 385 

S.E.2d at 382. 

II. 

CLASSIFICATION ISSUES 

 "[A] commissioner in chancery . . . [is] 'an officer 

appointed by the chancellor to aid him [or her] in the proper 

and expeditious performance of his [or her] duties.' When a 

trial court refers a cause to a commissioner in chancery, it 

does not delegate its judicial function to the commissioner 

. . . ." Kelker v. Schmidt, 34 Va. App. 129, 136-37, 538 S.E.2d 

342, 346 (2000) (quoting Raiford v. Raiford, 193 Va. 221, 226, 

68 S.E.2d 888, 891 (1952)) (citations omitted). 
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"[W]hen the commissioner's finding[s] [are] specifically 

based on what the commissioner saw and heard," i.e., credibility 

determinations based on "demeanor and appearance," and "the 

commissioner [makes clear this reliance by] describ[ing] such 

observations in his or her report," "the commissioner is in a 

better position than the trial judge to make factual findings on 

that basis," and the chancellor must "give 'due regards' to the 

commissioner's factual findings." Id. at 139-40, 538 S.E.2d at 

347-48. Conversely, "if the commissioner's determination is 

based on the substance of the testimony and not upon the 

witness' demeanor and appearance, such a finding is as 

determinable by the trial judge as by the commissioner." Id. at 

139, 538 S.E.2d at 347. Under these circumstances, the 

chancellor's review of the commissioner's determination is akin 

to review of a conclusion of law. Thus, absent a clearly 

articulated credibility determination by the commissioner, the 

chancellor is free to reach a conclusion contrary to that of the 

commissioner, see id., and on appeal, we affirm the chancellor's 

determination unless it is plainly wrong, see, e.g., Snyder 

Plaza Props., Inc. v. Adams Outdoor Advertising, Inc., 259 Va. 

635, 641, 528 S.E.2d 452, 456 (2000) (noting that chancellor 

owes no deference to "pure conclusions of law contained in 

[commissioner's] report"). 

 Pursuant to Code § 20-107.3, a court dissolving a marriage, 

"upon request of either party, shall determine the legal title 
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as between the parties, and the ownership and value of all 

property" and classify that property as separate property, 

marital property, or part separate and part marital property. 

Code § 20-107.3(A). "The court shall also have the 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). 

 Marital property is all property titled in the names of 

both parties and all other property acquired by each party 

during the marriage which is not separate property, i.e., 

property received during the marriage by bequest, devise, 

descent, survivorship or gift from someone other than the 

spouse. See Code § 20-107.2(A). "All property . . . acquired 

by either spouse during the marriage . . . is presumed to be 

marital property in the absence of satisfactory evidence that it 

is separate property." Id. This presumption applies to the 

parties' assets as well as their debts. Cf. Stumbo v. Stumbo, 

20 Va. App. 685, 692-93, 460 S.E.2d 591, 595 (1995) (referring 

to "marital property" as defined in Code § 20-107.3 as including 

both assets and debts). 

A. 

CREDIT CARD DEBT 

 Wife contends the trial court erred in affirming the 

commissioner's conclusion that the balances owed on the MBNA, 
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First Union and Discover credit cards should be classified as 

marital property and in concluding sua sponte, contrary to the 

commissioner's report, that the balance owed on husband's GM 

credit card should also be classified as marital. 

We disagree. Because the commissioner's conclusion 

regarding the GM credit card was not based on specifically 

articulated credibility determinations, the trial court owed no 

deference to the commissioner's classification of the GM debt as 

separate. Further, the trial court had a duty to "reject [the 

commissioner's] report in whole or in part" if it was contrary 

to "the law and the evidence," Code § 8.01-610, and we are aware 

of no principle in the relevant statutes or case law which would 

prevent the court from doing so sua sponte, see, e.g., Cloutier 

v. Queen, 35 Va. App. 413, 420-21, 545 S.E.2d 574, 577-78 (2001) 

(holding in child custody dispute that court had authority under 

Rule 1:1 to modify its decree sua sponte where "chancellor, 

after reflection, determined that his initial decision was 

erroneous and timely corrected it in the same proceeding"). 

Finally, the evidence, viewed in the light most favorable 

to husband, the prevailing party below, supported the trial 

court's conclusion that the balances on all four cards should be 

classified as marital debt rather than as husband's separate 

debt. As set out above, the debts acquired by the parties 

during their marriage are presumed to be marital debts. Code 

§ 20-107.3; Stumbo, 20 Va. App. at 692-93, 460 S.E.2d at 595. 
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Wife bore the burden of proving that the disputed credit card 

debts were husband's separate property, and the evidence, viewed 

in the light most favorable to husband, proved those debts were 

marital. Although husband testified that he and wife made few 

directly marital purchases using those cards, his evidence 

established that the debts on those cards nevertheless were 

marital debts. Husband paid business expenses with those credit 

cards, received reimbursements from his company for those 

business expenses and, instead of applying all reimbursements to 

the balances on those credit cards, made the minimum payments 

and used the remaining expense money "just trying to keep the 

family going." Whether or not wife approved of this method of 

managing the family's finances, the trial court concluded the 

reimbursement funds became part of "the family budget," such 

that the credit card debt was marital. The evidence, viewed in 

the light most favorable to husband, supports this conclusion. 

B. 

HUSBAND'S SEVERANCE PACKAGE 

 Wife contends the trial court erroneously denied her motion 

to compel husband to provide certain information about his 

entitlement to a severance package following termination by his 

employer. We agree and hold that the trial court's ruling on 

the suppression motion was an abuse of discretion. Thus, we 

vacate its ruling classifying husband's severance package, if 
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one existed, as his separate property and remand for additional 

discovery. 

 Rule 4:1(b)(1) provides that "[p]arties may obtain 

discovery regarding any matter, not privileged, which is 

relevant to the subject matter involved in the pending action, 

whether it relates to the claim or defense of the party seeking 

discovery or the claim or defense of any other party . . . ." 

"[T]he granting or denying of discovery is a matter within the 

discretion of the trial court," but a discovery ruling may be 

reversed on appeal if "'the action taken was improvident and 

affected substantial rights.'" O'Brian v. Langley Sch., 256 Va. 

547, 552, 507 S.E.2d 363, 366 (1998) (quoting Rakes v. Fulcher, 

210 Va. 542, 546, 172 S.E.2d 751, 755 (1970)). 

Here, the commissioner's conclusion, adopted by the trial 

court, was that "a severance package, if paid, would be paid 

post-separation" and that wife "has duly received her share of 

husband's pension and savings plan from A&P [husband's former 

employer]." However, the mere fact that the severance package 

would have been received after the last separation of the 

parties was not dispositive of its classification. In 

classifying a severance package acquired by a party after the 

last separation, "the touchstone . . . is whether the severance 

package was intended to compensate the employee for efforts made 

during the marriage or to replace post-separation earnings." 

Luczkovich v. Luczkovich, 26 Va. App. 702, 708-09, 496 S.E.2d 
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157, 160 (1998). Because Code § 20-107.3 presumes that property 

acquired after the parties' last separation is separate 

property, a spouse claiming a severance package received after 

the parties' separation is marital property bears the burden of 

overcoming the presumption by showing the lump sum payment 

compensated the receiving spouse for services rendered during 

the marriage. 26 Va. App. at 710-11, 496 S.E.2d at 161. 

 In order to attempt to meet the burden of proof set out in 

Luczkovich, the non-owning spouse is entitled to discover all 

information bearing upon these issues, including whether or when 

a severance package has been or will be received and the nature 

of the severance package as described in any written or oral 

communications between the receiving spouse and his employer. 

Wife's interrogatory asked, "What has [husband] been told by his 

employer about his job including but not limited to how long he 

can expect to be employed, whether he will be able to transfer 

to another location, and what his severance package will be." 

This broadly worded interrogatory was likely to yield evidence 

relevant to classification of the severance plan under 

Luczkovich, and the court's refusal to compel the requested 

discovery deprived wife of information which "substantially 

affected [her] ability and right to litigate" the classification 

of husband's severance package if he received one. O'Brian, 256 

Va. at 552, 507 S.E.2d at 366. See id. at 551, 507 S.E.2d at 

365 (holding court abused discretion in refusing to compel 
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discovery about actual damages in contract dispute because party 

seeking discovery needed information to litigate the validity of 

contract's liquidated damages clause). Therefore, the trial 

court's denial of the motion to compel was an abuse of 

discretion.2

III. 

 For these reasons, we hold a finding of good cause was 

implicit in the trial court's consideration of wife's late-filed 

exceptions to the commissioner's report and that its 

consideration of the exceptions was not error. We also find 

that the trial court's classification of the challenged credit 

card debts as marital was not error. However, we hold that the 

court's failure to grant wife's motion to compel discovery 

deprived wife of the opportunity to obtain evidence relevant to 

whether any portion of husband's severance package was marital 

property. Thus, we reverse the trial court's equitable 

2

 Despite husband's argument to the contrary, wife's failure 

to attempt to obtain this information by subpoena from husband's 

employer is irrelevant to both (1) husband's duty to provide it 

in response to wife's interrogatory and (2) the trial court's 

error in refusing to compel same. Husband could have moved to 

quash a subpoena directed to his employer on the same grounds he 

asserted in his motion to have the severance package classified 

as separate property, and we presume the trial court would 

erroneously have granted the motion to quash for the same 

reasons it erroneously denied the motion to compel. 
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distribution award and remand for further proceedings consistent 

with this opinion. 

Affirmed in part, 

reversed in part and remanded.