COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

JAMES EDWARD GERMEK 

 MEMORANDUM OPINION* BY 

v. Record No. 2807-95-1 JUDGE SAM W. COLEMAN III 

 AUGUST 6, 1996 

MARSHA K. GERMEK 

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY 

John E. DeHardit, Judge Designate 

 Sydney K. L. West (Horne, West & McMurtrie, 

on brief), for appellant. 

 Breckenridge Ingles (Martin, Ingles & Ingles, 

Ltd., on brief), for appellee. 

 In this domestic relations appeal, James Edward Germek 

(husband) contends that the chancellor erred in his final decree 

by ordering Germek to pay the monthly premium of $195.93 on a 

life insurance policy for the benefit of Germek's minor child. 

Germek also contends that the amount of $400 per month in spousal 

support awarded in accordance with the provisions of Code 

§ 20-107.1 to Marsha K. Germek (wife) was excessive; that the 

chancellor erred by failing to equitably distribute all the 

marital property, specifically wife's civil service retirement 

account; that wife was improperly awarded attorney's fees; and 

that wife received a disproportionate share of the marital 

property. For the following reasons, we reverse the chancellor's 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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final decree as to the provision requiring husband to maintain 

the life insurance policy; we affirm the chancellor's decision as 

to the remaining issues; but we remand the case for further 

proceedings as to the issues affected by the order to maintain 

the life insurance policy, specifically child and spousal 

support. 

LIFE INSURANCE POLICY

 In making his opening statement before the Commissioner in 

Chancery, wife's counsel addressed the life insurance policy at 

issue and requested that the spousal support award be sufficient 

to maintain the life insurance policy for the benefit of the 

parties' disabled daughter. 

 Mrs. Germek is very concerned about the life 

insurance that would be available for the 

daughter's benefit. There is, apparently, a 

policy now with USAA. It's a whole life 

policy in the amount of, it's either $150,000 

or $250,000. They are joint owners of that 

policy. It names the named insured as Mr. 

Germek, and what we're going to ask the Court 

to do is to order that Mr. Germek pay to Ms. 

Germek enough money by way of alimony that 

she can make the monthly life insurance 

payment, that she can keep that policy in 

effect. 

At the evidentiary hearing, wife introduced a copy of the USAA 

policy, and the commissioner acknowledged that he understood that 

wife was "asking for support, for money to help keep this policy 

in effect." On cross-examination, wife confirmed that she wanted 

the life insurance policy to be continued. 

 The commissioner's report recommended awarding wife spousal 
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support of $400 per month and child support of $375 per month. 

However, the commissioner's report did not specifically mention 

the life insurance policy and did not specify whether the $400 

per month spousal support recommendation included an amount for 

all or a part of the insurance premium, as the wife had 

requested. 

 Both parties filed exceptions to the commissioner's report. 

 The husband asserted that the spousal support award was 

excessive considering the parties' relatively equal earnings. 

Wife raised six exceptions to the report, but she did not 

specifically mention the life insurance policy in her objections. 

 However, wife objected "to the award of alimony of $400 as being 

inadequate under the circumstances of the case," and "to the 

Commissioner's failure to make a provision for the long term 

health care needs of [the parties' child]." The parties orally 

argued their exceptions to the commissioner's report before the 

chancellor. 

 In the final decree of divorce, the chancellor overruled 

wife's objections to the amount of spousal support and to the 

failure of the commissioner to provide for the minor child's 

long-term health care needs. The chancellor "approved, ratified 

and incorporated by reference into [the] Decree" the 

commissioner's report, and ordered the parties to comply with all 

terms and conditions of the report as to all issues germane to 

this appeal. Therefore, the chancellor affirmed the award of 
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$400 per month in spousal support and $375 per month in child 

support. However, the chancellor, without explanation, deviated 

from the commissioner's report by ordering husband to maintain 

the USAA life insurance policy. 

 Husband objected to the inclusion in the final divorce 

decree of the requirement that he maintain the life insurance 

policy, and he filed a motion to reconsider the final order. He 

asserted that the chancellor had overruled the parties' 

exceptions, had affirmed the commissioner's report, but then 

entered a decree containing a provision not included in the 

commissioner's report and inconsistent with the report. After 

hearing argument on the matter, the chancellor denied the motion 

and declined to vacate the divorce decree or to remand the matter 

to the commissioner for a determination of whether the $400 

spousal support included an allowance for the life insurance 

premium. 

 On appeal, a decree which approves a 

commissioner's report will be affirmed unless 

plainly wrong, . . . but where the chancellor 

has disapproved the commissioner's findings, 

this Court must review the evidence and 

ascertain whether, under a correct 

application of the law, the evidence supports 

the findings of the commissioner or the 

conclusions of the trial court. 

Sprott v. Sprott, 233 Va. 238, 240, 355 S.E.2d 881, 882 (1987) 

(quoting Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 296-97 

(1984) (citations omitted)). 

 A major problem that initially confronts us in reviewing the 
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chancellor's decision is that on this record we cannot exclude 

the probability that the commissioner's recommendation for an 

award of $400 per month in spousal support included an amount for 

the wife to pay all or a portion of the $195.53 per month life 

insurance premium, as she had requested. Although Code 

§ 20-108.1(D)(i)1

 authorizes the court, in determining child 

support, to require a party to maintain a life insurance policy, 

the wife requested an award and presented evidence on the issue 

in support of her claim for spousal support. By affirming the 

commissioner's report and overruling the parties' exceptions, the 

chancellor was approving the commissioner's recommended awards 

for both spousal support and child support, which may have 

included an allowance for the insurance premium in the spousal 

support award, but clearly contained no provision as part of 

 1 Code § 20-108.1. Determination of child or spousal 

support. 

* * * * * * * 

 D. In any proceeding under this title, 

Title 16.1 or Title 63.1 on the issue of 

determining child support, the court shall 

have the authority to order a party to (i) 

maintain any existing life insurance policy 

on the life of either party provided the 

party so ordered has the right to designate a 

beneficiary and (ii) designate a child or 

children of the parties as the beneficiary of 

all or a portion of such life insurance for 

so long as the party so ordered has a 

statutory obligation to pay child support for 

the child or children. 
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child support that ordered husband to maintain the insurance 

policy in accordance with Code § 20-108.1(D)(i). Moveover, the 

chancellor's divorce decree is internally inconsistent in that it 

purports to affirm the commissioner's report in all respects, 

including the recommendation pertaining to child support, but 

then contains a provision that exceeds and departs from the 

commissioner's recommendation for child support, and may well 

duplicate an allowance that the commissioner included, at wife's 

request, for spousal support. Furthermore, the provision was 

inexplicably inserted in the draft of the final decree prepared 

and submitted by wife's counsel, even though prior to submission 

of the decree the chancellor had made no ruling to that effect. 

 Although the commissioner's report did not mention the life 

insurance policy, the record is clear that the maintenance of the 

policy was raised at the hearing before the commissioner and that 

wife requested an award of spousal support sufficient to continue 

the policy. Thus, the logical inferences that flow from the 

commissioner's report are that the commissioner rejected wife's 

request to require husband to maintain the policy, or that the 

commissioner intended that the spousal support award of $400 per 

month was sufficient for wife to maintain the policy. 

Nevertheless, despite specifically approving the commissioner's 

award of spousal and child support, the chancellor implicitly 

disapproved the commissioner's findings by ordering husband to 

maintain the policy. 
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 The record offers no explanation for the chancellor's 

decision to include in the final order the provision requiring 

husband to continue to maintain the life insurance policy. In 

fact, based on the chancellor's ruling, he did not intend to 

include such a provision in the final decree. Even though a 

court speaks only through its order, the court's order is 

inconsistent in affirming the commissioner and deviating from the 

commissioner. Although there is no transcript of the hearing 

before the chancellor on the parties' exceptions to the 

commissioner's report, husband asserted in his motion to 

reconsider "[t]hat the [chancellor's] inclination at the hearing 

was to refer the matter [of the life insurance policy] back to 

the [commissioner] for clarification." Moreover, at oral 

argument before this Court, wife's counsel conceded that the 

chancellor instructed him at the hearing to draft a decree 

confirming the commissioner's report and the chancellor did not 

specifically direct that the decree include a provision requiring 

husband to maintain the life insurance policy. 

 Code § 8.01-610 addresses the weight to be given to the 

commissioner's report by the chancellor: 

 The report of a commissioner in chancery 

shall not have the weight given to the 

verdict of a jury on conflicting evidence, 

but the court shall confirm or reject such 

report in whole or in part, according to the 

view which it entertains of the law and the 

evidence. 

Id. (emphasis added). In Gulfstream Bldg. Assocs., Inc. v. 
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Britt, 239 Va. 178, 387 S.E.2d 488 (1990), the Supreme Court held 

that Code § 8.01-610 "clearly gives the [chancellor] substantial 

discretion in the manner in which it reviews the report of a 

commissioner." Id. at 185, 387 S.E.2d at 492. However, the 

Court further held in Britt that the chancellor could not decline 

to confirm or reject the commissioner's findings on a particular 

issue because "[t]his course of action is not recognized by Code 

§ 8.01-610." Id. Similarly, we hold that the chancellor does 

not have the authority under Code § 8.01-610 to both confirm and 

reject the commissioner's findings on a particular issue. 

 It is well-established that the chancellor does not delegate 

his judicial function to the commissioner and is not bound by the 

commissioner's report. Raiford v. Raiford, 193 Va. 221, 229, 68 

S.E.2d 888, 893 (1952); Lawrence v. Lawrence, 212 Va. 44, 47, 181 

S.E.2d 640, 643 (1971); Haase v. Haase, 20 Va. App. 671, 679, 460 

S.E.2d 585, 588 (1995). Furthermore, we do not suggest that the 

chancellor is required to make detailed findings in support of 

his decision to reject the commissioner's report. See Britt, 239 

Va. at 183, 387 S.E.2d at 492 (holding that "[t]he report, or 

portions of it, can be disposed of with very general language"). 

 Nevertheless, the trial court must indicate clearly its approval 

or disapproval of the commissioner's report and its reasons for 

doing so because, on appeal, we "must review the evidence and 

ascertain whether, under a correct application of the law, the 

evidence supports the findings of the commissioner or the 
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conclusions of the trial court." Sprott, 233 Va. at 240, 355 

S.E.2d at 882 (quoting Hill, 227 Va. at 577, 318 S.E.2d at 296-97 

(citations omitted)). Absent a clear indication of the 

chancellor's approval or disapproval of the commissioner's 

findings, we cannot accurately determine the factual and legal 

basis for the chancellor's decision or, for that matter, the 

commissioner's recommendation on the issue of the life insurance 

policy, as it may have been included in the spousal support 

recommendation. 

 Here, the divorce decree was erroneous on its face because 

the chancellor both confirmed the recommendations for spousal and 

child support, but then implicitly rejected the commissioner's 

child support recommendation by adding the requirement that 

husband maintain the life insurance policy. Accordingly, we 

vacate the decree and remand the case for further proceedings. 

On remand, the chancellor may conduct additional hearings, or 

remand the matter to the commissioner for clarification of the 

commissioner's findings.2

SPOUSAL SUPPORT, EQUITABLE DISTRIBUTION, AND ATTORNEY'S FEES

 Code § 8.01-615 provides, in pertinent part, that 

 [e]xceptions to the Commissioner's Report 

shall be filed within 10 days after the 

 

 2 To the extent that the commissioner may have considered 

the life insurance premium in recommending the amount of spousal 

support, as wife requested, the recommendation is erroneous. The 

sole authority for such an award is as child support for the 

benefit of the parties' dependant children under Code 

§ 20-108.1(D)(i) which, unlike spousal support, would continue 

unaffected by the spouse's death or remarriage. 
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report has been filed with the court, or for 

good cause shown, at a later time specified 

by the court. 

Id. Here, the commissioner's report was filed with the trial 

court on June 7, 1995. Husband filed exceptions to the report 

challenging the amount of the spousal support award, the 

classification and equitable distribution of the marital 

property, and the amount of attorney's fees awarded wife. 

However, husband filed his exceptions to the report on June 23, 

1995, sixteen days after the report was filed with the trial 

court, and the record contains no explanation for husband's 

failure to file his exceptions within ten days of the date the 

report was filed. Therefore, we hold that the chancellor did not 

abuse his discretion by holding that husband's exceptions to the 

commissioner's report were not timely filed. 

 For the foregoing reasons, we reverse the chancellor's order 

in part, affirm it in part, and remand the case for further 

proceedings consistent with this opinion. 

Affirmed in part,

reversed in part,

and remanded.