COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

MARY BETH BUNDSCHUH 

 MEMORANDUM OPINION* BY 

v. Record No. 2574-97-1 JUDGE RICHARD S. BRAY 

 JUNE 16, 1998 

WILLIAM P. BUNDSCHUH 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Edward W. Hanson, Jr., Judge 

 Irene Sutton (Law Offices of Charles 

Hofheimer, P.C., on briefs), for appellant. 

 Gregory K. Pugh (Bobby W. Davis, on brief), 

for appellee. 

 In the decree of divorce between Mary Beth Bundschuh (wife) 

and William P. Bundschuh (husband), the trial court, inter alia, 

affirmed the report of the commissioner in chancery which valued 

husband's stock in a medical practice at "zero." Wife appeals, 

arguing that the court erroneously relied upon the terms of the 

corporate bylaws to ascertain the worth of husband's interest. 

We disagree and affirm the decree. 

 The parties are fully conversant with the record and this 

memorandum opinion recites only those facts necessary to 

disposition of the appeal. 

 Under familiar principles, "we construe the evidence in the 

light most favorable to husband, the prevailing party below, 

granting to him all reasonable inferences fairly deducible 

 

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

designated for publication. 
- 2 - 

therefrom." Rogers v. Yourshaw, 18 Va. App. 816, 818, 448 S.E.2d 

884, 885 (1994) (citation omitted). "In all divorce cases in 

which equitable distribution issues are presented, fashioning the 

decree is left largely to the discretion of the trial court as 

empowered and instructed by Code § 20-107.3." McClanahan v. 

McClanahan, 19 Va. App. 399, 400, 451 S.E.2d 691, 692 (1994) 

(citation omitted). Absent an abuse of discretion, a departure 

from the mandate of statute, or findings unsupported by the 

record, the chancellor's award will not be reversed on appeal. 

Id. at 401, 451 S.E.2d at 692. "The burden is upon the party 

appealing to point out the error in the decree and to show how 

and why it is wrong," and "[t]he decree stands until that burden 

has been met." Kaufman v. Kaufman, 7 Va. App. 488, 499, 375 

S.E.2d 374, 380 (1988) (citation omitted). 

 The instant proceedings for divorce and equitable 

distribution were referred to a commissioner in chancery for 

hearing and report to the court. The value of husband's stock in 

Julius J. Snyder, M.D. & Associates, an incorporated 

anesthesiology practice, was a substantial issue between the 

parties. The evidence disclosed that husband's shares in the 

corporation were subject to a provision in the bylaws which 

established a formulaic "purchase or redemption price." Wife's 

expert, David P. Miller, testified that this approach to value 

was inapplicable and opted, instead, for the "capitalization of 

excess earnings" method, assigning a worth of $218,443 to 
- 3 - 

husband's interest. In contrast, husband's expert, H. Leon 

Hodges, deferred to the bylaws and, accordingly, found that the 

husband's stock was without value. 

 After acknowledging during the evidentiary hearing that he 

"d[id not] have to follow the value set up in the buy-sell 

agreement," the commissioner, nevertheless, concluded that "the 

parties are bound by the terms of the corporation's buy/sell 

agreement which restricts the amounts of money to be paid to a 

withdrawing stockholder" and fixed "the value of husband's 

interest [at] zero." Wife excepted, and, following a related 

hearing, the court noted that "each [expert] gave plausible 

testimony as to valuation," but reminded counsel that "it was up 

to the commissioner to make a determination as to the 

credibility . . . and weight to be placed upon their testimony." 

 Finding that the commissioner properly "made a determination 

based upon the evidence," the court affirmed the report. 

 On appeal, wife contends that "[b]ecause neither expert 

valued the practice under the other expert's set of assumptions, 

this appeal does not present a . . . question of fact," but, 

rather, an issue of law arising from the erroneous premise that 

value was controlled by the formula prescribed in the bylaws. In 

support of her argument, wife relies upon Bosserman v. Bosserman, 

9 Va. App. 1, 384 S.E.2d 104 (1989). In Bosserman, we held that 

"the sale price set by restrictive provisions on transfer" of 

stock was "not conclusive as to the value." Id. at 7, 384 S.E.2d 
- 4 - 

at 108. However, we recognized that such covenants affected 

value through impaired marketability and "must be considered when 

a trial court determines the value of stock for purposes of 

equitable distribution." Id. Indeed, quoting Bosserman, wife 

correctly acknowledges on brief that "a buy-sell agreement might 

be controlling in a particular case, if the agreement properly 

reflects 'the actual value of the stock to the shareholder.'" 9 

Va. App. at 7, 384 S.E.2d at 108. 

 Here, husband's expert testified that he regarded the 

agreement as the predominate factor in valuation, while wife's 

expert admitted that his approach did not "take into 

consideration the buy-sell agreement at all." In weighing this 

testimony, the record reflects that the commissioner considered 

the disparate approaches to value and other relevant evidence in 

determining the husband's stock to be worthless, a factual 

analysis consistent with Bosserman. On review, the trial court 

found that the commissioner had properly balanced the evidence, 

including the credibility of witnesses, in reaching a factual 

finding and confirmed and incorporated the report in the final 

decree. Thus, the record clearly reflects the resolution of a 

factual dispute in accordance with controlling principles of law. 

 "While the report of a commissioner in 

chancery does not carry the weight of a 

jury's verdict, Code § 8.01-610, it should be 

sustained unless 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 . . . ." 
- 5 - 

Jones v. Jones, 26 Va. App. 689, 694-95, 496 S.E.2d 150, 153 

(1998) (citation omitted). "Once the trial court has resolved 

conflicting evidence as to value and determined value, the 

decision whether to make a monetary award and the amount of the 

award is governed by the rights and equities of the parties and 

the factors designated in Code § 20-107.3(E)." Bosserman, 9 Va. 

App. at 5, 384 S.E.2d at 107 (citations omitted). "We will not 

disturb the trial court's finding of the value of an asset unless 

the finding is plainly wrong or unsupported by the evidence." 

Schooltz v. Schooltz, 27 Va. App. 264, 275, ___ S.E.2d ___, ___ 

(1998) (citations omitted). 

 The instant record discloses conflicting evidence of value 

in the opinions and related testimony of two expert witnesses. 

The factual predicates for both conclusions were before the 

commissioner and court and properly considered, together with 

other pertinent evidence, in finding that husband's stock had no 

value, a determination supported by the record which will not be 

disturbed on appeal. 

 Accordingly, we affirm the decree. 

 Affirmed.