COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Frank and Clements 

MONTGOMERY R. GOCHENOUR 

 MEMORANDUM OPINION* 

v. Record No. 0484-03-3 PER CURIAM 

 AUGUST 19, 2003 

KATHLEEN M. GOCHENOUR 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 (Susan B. Read; Black, Noland & Read, P.L.C., 

on briefs), for appellant. 

 (Jessica L. Robinson; Nelson, McPherson, 

Summers & Santos, L.C., on brief), for 

appellee. 

 On appeal, Montgomery Gochenour (husband) contends the trial 

court erred: (1) in upholding the commissioner's recommendation 

and awarding wife seventy-five percent of the marital assets; 

(2) in upholding the commissioner's refusal to grant him a 

continuance; and (3) in awarding wife attorney's fees. Upon 

reviewing the record and briefs of the parties, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the decision of the trial court. See Rule 5A:27. 

BACKGROUND 

 The parties were married in 1989. They had a child in 

1990. On March 7, 1999, they separated. 

 

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

designated for publication.
 On April 5, 1999, husband filed a bill of complaint 

requesting, inter alia, that he be granted a divorce on the 

basis of wife's constructive desertion. 

 On April 30, 1999, Kathleen Gochenour (wife) filed an 

answer to husband's bill of complaint. She denied husband's 

allegation of constructive desertion and requested, inter alia, 

that she be granted a divorce on the grounds of husband's 

cruelty and adultery. 

 On June 29, 1999, wife filed a request for production of 

documents and interrogatories, and on July 9, 1999, husband 

served first interrogatories and requested documents. 

 In March, April and May 2001, wife filed answers and 

documents in response to all of husband's discovery requests. 

 On May 9, 2001, wife filed a motion to compel husband to 

respond to interrogatories and comply with her request for the 

production of documents. 

 On June 12, 2001, the trial court entered a decree of 

reference, referring "issues of fault, spousal support, all 

issues arising between the parties pursuant to § 20-107.3 . . . 

and attorney's fees" to Commissioner in Chancery G. William 

Watkins (the commissioner). The trial court authorized the 

commissioner to "enter such pre-trial orders as may be necessary 

to accomplish the purpose of this decree [of reference]." 

 By order entered on July 20, 2001, the commissioner advised 

the parties that "[a]ll discovery shall be concluded not later 

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than August 31, 2001, and no response to discovery shall be 

required of any person or party if the time for response under 

the Rules of the Supreme Court expires after such date." The 

commissioner scheduled hearings for October 25-26, 2001, and 

ordered the parties to exchange all documents, witness lists and 

exhibits by October 19, 2001. The commissioner scheduled a 

pretrial telephone conference for August 28, 2001, "in order to 

review the parties' preparations" for the October 2001 hearing. 

Wife completed all of her discovery obligations by the August 

31, 2001 deadline. 

 On September 4, 2001, wife moved to continue the October 

25, 2001 hearing. Wife advised the commissioner that husband 

"ha[d] not fully responded to discovery." She added that she 

had scheduled a vacation for that date. 

 On September 28, 2001, the commissioner entered a second 

notice extending the deadline for discovery to October 15, 2001, 

and continued the hearing dates to November 29-30, 2001. The 

commissioner advised the parties, inter alia, that the "failure 

of any party to make complete and timely responses to discovery 

requests shall give the party aggrieved by such failure 

sufficient cause to obtain an award of attorney's fees and costs 

incurred in the effort to obtain such responses." 

 On October 25, 2001, ten days after the discovery deadline, 

wife filed another motion to compel husband to comply with 

discovery. On October 26, 2001, husband's attorney filed a 

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motion to withdraw as counsel, alleging that, "[s]ince 

representing [husband], counsel has had an extremely difficult 

time obtaining documents in response to discovery requests." 

Counsel explained in detail husband's numerous excuses and 

continued failure to provide necessary and requested documents, 

noting that the "original [July 2001] trial date could not be 

complied with because outstanding discovery had not been 

supplied by [husband]." Counsel further advised the trial court 

of his belief that husband "has no intention of complying with 

the discovery order." 

 On November 6, 2001, the trial court granted counsel's 

request to withdraw. 

 On November 26, 2001, husband filed, pro se, a motion for a 

continuance alleging that his former attorney "misstated in 

writing to [him] the trial date set for this case." Husband 

indicated that he "had provided [his] attorney with listed 

objectives, outlined a course of action for achieving those 

objectives, and produced discovery relative to the schedules and 

timeline leading to the misstated trial date." Husband 

contended that, "[f]ollowing the above listed chain of events, 

it has come to bear that no action was taken with regard [sic] 

pertinent filings, disclosure and transfer of information vital 

to the progression of this case." Therefore, husband 

"request[ed] a continuance of this case, pursuant to this 

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motion, and the confusion which exists over the proposed trial 

date." 

 By letter dated November 27, 2001,1 the commissioner 

acknowledged receipt of husband's continuance request, however, 

he noted that wife's attorney "advised Mr. Gochenour of the 

November 29th hearing date by letter dated November 13, 2001." 

Moreover, the commissioner recalled serving a document entitled 

"Notice of Hearing on both parties, by counsel, on September 26, 

2001." The commissioner pointed out that this "case has been 

continued once because of the failure of [husband] and/or his 

counsel to properly respond to discovery." Despite that 

continuance, husband "remains in default under Rule 4:12." 

Because wife opposed another delay, the commissioner refused "to 

postpone the trial again . . . because of [husband's] continued 

failure to heed and follow the hearing schedule and rules of 

discovery." The commissioner acknowledged husband's attorney's 

"misdirection" in erroneously advising appellant in an October 

1, 2001 letter that the trial date was December 6-7, 2001; 

however, husband "would not be in the position in which he finds 

himself if he had not resisted responding to [wife's] reasonable 

and routine discovery requests." 

 1

 The date on the first page of the letter, October 22, 

2001, is in conflict with the date contained on page two, 

November 27, 2001. Because the letter discusses appellant's fax 

of November 22, 2001, asking for a continuance, we assume the 

letter was drafted on November 27, 2001. 

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 On November 29, 2001, the commissioner conducted the 

scheduled hearing at which the parties presented evidence. He 

heard additional evidence on December 6, 2001. Husband appeared 

pro se. 

 On September 16, 2002, the commissioner filed a detailed 

twenty-three page report to the trial court. In it, he noted: 

Notwithstanding the patient, but persistent 

efforts of your Commissioner and [wife's] 

counsel, including letters, court orders, 

scheduling orders, motions to compel and 

continuances, copies of which are returned 

herewith, [husband] never fully complied 

with discovery and failed to file any 

schedules, exhibits or witness list as 

required in the Notice of Hearing. 

Accordingly, [wife] objected to most of 

[husband's] proffered exhibits and your 

Commissioner sustained her objections. 

 In the report, the commissioner summarized wife's testimony 

of husband's physical abuse and found sufficient evidence of 

cruelty "constituting at least one ground of divorce." The 

commissioner also found sufficient evidence of adultery by 

husband before and after separation "constituting a second 

ground for divorce." 

 After determining fault, the commissioner classified and 

valued the parties' personal and real property. He then 

considered each factor in Code § 20-107.3(E) before making his 

recommendations. 

 "After due consideration of all of the statutory factors," 

the commissioner concluded that 

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particular weight should be given to (i) the 

nonmonetary contributions of each party to 

the well-being of the family; (ii) the 

contributions, monetary and nonmonetary, of 

each party in the acquisition and care and 

maintenance of the marital property of the 

parties; and (iii) the circumstances and 

factors which contributed to the dissolution 

of the marriage. 

The commissioner found that husband "benefited enormously from 

the expenditure of marital funds to reduce his personal 

indebtedness and make improvements to his separate property 

during the marriage." Moreover, husband's "obsessive tendency 

to stall and conceal information from his wife during the 

marriage and from her counsel during discovery has added to the 

difficulty of retracing these contributions and getting this 

case to trial." 

 "Because of the significant marital contributions made by 

the parties to increase the value of [husband's] separate 

property and [husband's] almost single-handed destruction of the 

parties' relationship over the course of the ten-year marriage," 

the commissioner found that wife "is entitled to a significantly 

larger share of the marital property." Therefore, he 

recommended "that 75% of the value of the marital property be 

allocated to [wife]." 

 On October 8, 2002, the trial court conducted a hearing on 

husband's exceptions to the commissioner's report. By letter 

opinion of December 30, 2002, the trial court found "it would 

have been inappropriate to continue" the November 29th hearing 

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"[g]iven [husband's] attitude towards the Court, the 

commissioner and counsel for Ms. Gochenour." Rather than retain 

new counsel, husband acted pro se in requesting the continuance. 

Thus, the trial court ruled "[t]here was no reason for the 

Commissioner to believe that Mr. Gochenour was dealing with him 

in good faith." Regarding the 75/25 division of marital 

property in favor of wife, the trial court also upheld the 

commissioner's recommendation for the same reasons expressed in 

the commissioner's report, namely, husband's conduct in bringing 

about the dissolution of the marriage and husband's failure to 

comply with discovery, thereby affecting the commissioner's 

ability to properly classify all of the property and resulting 

in a "disproportionately large amount of separate property for 

him." 

EQUITABLE DISTRIBUTION 

 "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). 

The commissioner's report is deemed to be 

prima facie correct. The 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 

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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). "Unless it appears from the record that 

the trial judge has not considered or has misapplied one of the 

statutory mandates, this Court will not reverse on appeal." 

Ellington v. Ellington, 8 Va. App. 48, 56, 378 S.E.2d 626, 630 

(1989). "Virginia law does not establish a presumption of equal 

distribution of marital assets." Matthews v. Matthews, 26 

Va. App. 638, 645, 496 S.E.2d 126, 129 (1998). The trial court 

is vested with broad discretion to divide equally the assets or 

"to make a substantially disparate division of assets" pursuant 

to Code § 20-107.3(E). Id. 

 The evidence supports the findings made by the 

commissioner, which the trial court adopted. The commissioner's 

report was a careful, ordered and complete recitation of the 

steps taken in weighing the evidence and in deciding upon a fair 

and equitable distribution of the marital estate accumulated 

during the marriage. The commissioner attempted, as best he 

could under the circumstances, to determine the legal title, 

ownership, and value of the real and personal property. He 

identified the marital and separate property and presented a 

clear, concise, and cogent review and analysis of the evidence 

and the statutory factors in Code § 20-107.3. 

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 In recommending an unequal distribution, the commissioner 

carefully considered all of the factors contained in Code 

§ 20-107.3(E) and explained which of several factors he 

attributed more weight. In approving the award, the trial court 

agreed with the commissioner's reasoning and application of the 

statutory factors in making the award. Husband's failure to 

provide needed documentation affected the commissioner's ability 

to classify, value and distribute the property.2 The award was 

not based solely on husband's fault, but rather on several 

factors, including the parties' monetary and non-monetary 

contributions, the parties' positive and negative non-monetary 

contributions to the well-being of the family and husband's 

noncompliance with discovery, which limited a thorough and 

complete evaluation of all property.3 Thus, the award was 

supported by the evidence and was not plainly wrong. 

Accordingly, the trial court did not abuse its discretion or 

commit reversible error. 

 2

 For example, the commissioner was unable to determine the 

source of gain of the "little red house," which husband 

purchased in July 1998 and sold to his parents in October 1998 

because husband failed to produce, despite repeated demands, 

attachments that might have explained the source of gain. 

3

 Code § 20-107.3(E)(10) directs the trial court to 

consider, inter alia, "[s]uch other factors as the court deems 

necessary or appropriate to consider in order to arrive at a 

fair and equitable monetary award." Husband's dilatory and 

incomplete discovery obfuscated the commissioner and affected 

his ability to accurately identify and classify the property. 

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CONTINUANCE 

 "The decision whether to grant a continuance is a matter 

within the sound discretion of the trial court. Abuse of 

discretion and prejudice to the complaining party are essential 

to reversal. In considering a request for a continuance, the 

court is to consider all the circumstances of the case." 

Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 

(1986) (citations omitted). 

 Husband's attorney withdrew three weeks past the October 

15, 2001 discovery deadline. At the time husband moved for a 

continuance, over two and one-half years had elapsed since he 

filed for divorce. During that period, he failed to comply with 

discovery, which negatively affected his credibility. 

Although several weeks had passed since husband's attorney 

withdrew because of husband's lack of cooperation, husband did 

not retain another attorney to argue in support of a 

continuance. Because the discovery deadline had passed long 

before husband's attorney withdrew and before husband filed his 

motion pro se, any undisclosed witnesses or evidence would have 

been inadmissible in the continued action. See Rule 4:12(b)(2) 

(listing sanctions for failure to comply with discovery). 

Therefore, even if the fact finder believed that husband sought 

a continuance in good faith so he could fully comply with 

discovery, husband is unable to show prejudice from the refusal 

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to grant the continuance. Accordingly, the record supports the 

decision not to allow the continuance. 

ATTORNEY'S FEES 

 "An award of attorney's fees is a matter submitted to the 

trial court's sound discretion and is reviewable on appeal only 

for an abuse of discretion." Richardson v. Richardson, 30 

Va. App. 341, 351, 516 S.E.2d 726, 731 (1999). We find no abuse 

of discretion. "The key to a proper award of fees is 

'reasonableness under all of the circumstances revealed by the 

record.'" Ragsdale v. Ragsdale, 30 Va. App. 283, 297, 516 

S.E.2d 698, 705 (1999) (quoting Westbrook v. Westbrook, 5 

Va. App. 446, 458, 364 S.E.2d 523, 530 (1988)). 

 In February 2002, wife submitted an expense sheet showing 

she had incurred $30,934 in legal fees as of that date. Based 

on the commissioner's recommendation, the trial court awarded 

her $20,000 of her legal fees. This case involved prolonged and 

fruitless efforts by wife and the commissioner to obtain 

husband's cooperation with discovery. Based on the length with 

which the case lingered in court, the amount of legal fees 

incurred by wife, husband's complete lack of cooperation and the 

limited financial information available to the fact finder, the 

trial court acted reasonably and properly exercised its 

discretion in awarding wife a portion of her attorney's fees. 

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 Accordingly, we summarily affirm the decision of the trial 

court. See Rule 5A:27. 

Affirmed.

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