COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

JUANITA V. GROVE 

 MEMORANDUM OPINION* BY 

v. Record No. 2075-95-1 JUDGE MARVIN F. COLE 

 JULY 9, 1996 

IRVING D. GROVE, SR. 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Thomas L. Gordon (Gordon, Dodson & Gordon, on 

brief), for appellant. 

 No brief or argument for appellee. 

 Juanita V. Grove (wife) appeals the equitable distribution 

decision of the circuit court. Wife raises three issues on 

appeal: (1) whether the trial court erred by allowing her only 

seven days to present evidence; (2) whether the trial court erred 

in its equitable distribution of the marital estate; and (3) 

whether the trial court erred in valuing the marital residence. 

We find that the trial court erred by failing to consider any 

evidence presented by wife. Therefore, we reverse the trial 

court's decision and remand. 

 Irving D. Grove, Sr. (husband) filed his bill of complaint 

in September 1993. Wife timely filed an answer and cross-bill. 

Husband proceeded with discovery. Wife's counsel withdrew 

pursuant to an order entered December 14, 1994, without taking 

 

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

designated for publication. 
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any evidence on behalf of wife. In January 1995, wife's new 

counsel requested thirty days within which to gather and present 

evidence for wife. By letter opinion ruling dated January 23, 

1995, the trial court denied wife's request. Subsequently, 

wife's counsel again sought an opportunity to "develop [wife's] 

position with reference to equitable distribution." Husband 

filed a motion to quash the proposed deposition of wife. By 

order dated May 2, 1995, the trial court denied the motion to 

quash and indicated it "allowed counsel for [wife] to take 

evidence" and that it "will allow counsel for [husband] to cross 

examine the [wife] if she is so deposed." Wife's deposition was 

taken on February 20, 1995. 

 By letter dated May 1, 1995, the trial court outlined the 

changes it would require to the proposed final decree submitted 

by husband. The final decree, issued June 21, 1995, indicated it 

was based "upon the depositions of [husband] and his witnesses." 

 The order did not reflect that the wife's evidence was 

considered. 

Limitation on Evidence

 Wife contends the trial court erred by limiting her to seven 

days within which to present evidence. Nothing in the record 

supports wife's claim that the court granted her only seven days 

within which to present evidence. 

 However, in its May 2, 1995 order, the trial court indicated 

that it allowed wife to take additional evidence. Nevertheless, 
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in the final decree, the trial court stated that its decision was 

based upon husband's evidence. Therefore, although the trial 

court ruled that it would allow wife's deposition, it did not 

consider any of wife's evidence when making the final equitable 

distribution decision. "Unless it appears from the record that 

the chancellor has abused his discretion or has failed to 

consider or has misapplied one of the statutory factors, his 

determination will not be reversed on appeal." Klein v. Klein, 

11 Va. App. 155, 161, 396 S.E.2d 866, 870 (1990). Because the 

record indicates that the trial court allowed wife to present 

evidence but then failed to consider any evidence she presented 

relevant to the factors set out in Code § 20-107.3, its ruling 

must be reversed. See Armistead v. Armistead, 228 Va. 352, 322 

S.E.2d 836 (1984). 

 Because the trial court failed to consider any of wife's 

evidence, on remand it must grant to her a reasonable opportunity 

to fully present her evidence in deposition form. Thereafter, 

husband shall be given a reasonable time to present in deposition 

form rebuttal evidence if he so desires. Upon agreement of 

counsel for both parties, the trial court may permit the evidence 

to be taken in open court or by reference to a commissioner. The 

trial court then shall enter an order deciding the case in 

accordance with Code § 20-107.3. Under this section, the trial 

court must follow a three-step procedure when ruling as to 

marital property. It must first ascertain the legal title to all 
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property of the parties and classify it as separate, marital 

property, or part separate and part marital. It must next 

determine the value of the property, both separate and marital, 

and determine the rights and interests of the parties in the 

marital property. Finally, it must determine whether a monetary 

award is warranted. Smoot v. Smoot, 233 Va. 435, 439-41, 357 

S.E.2d 728, 731 (1987); Brinkley v. Brinkley, 5 Va. App. 132, 

136-37, 361 S.E.2d 139, 140-41 (1987). 

 Accordingly, the decision of the trial court is reversed and 

remanded for further proceedings consistent with this opinion. 

 Reversed and remanded.