Violation by a Fairfax trial judge of his court’s local rules and the Judge’s insufficient respect for his own Commissioner’s ruling, together with differing degrees of familiarity with, attachment to, and concern for those local rules, seems to confound the Court of Appeals and causes it to divide sharply in Morrill v. Morrill, ___ Va. App. ___, ___ S.E.2d ___, 19 VLW 306 (8/17/04). The majority reverses the trial judge, finding an abuse of discretion because he listened to a husband’s protestations that he left the marriage because of the wife’s $86,000 credit card fraud involving forgery. The judge committed the unpardonable sin of letting this person present this evidence at the ED trial after the Commissioner’s Hearing Report, and he went on to order the wife to indemnify the husband for the debt she created.
The majority says that this violated the local rule (General Decree) that refers the issues of grounds and §20-107.3 E (5) “factors and circumstances” irrevocably to Commissioners and forbids presenting evidence ore tenus on those matters after that. Letting the husband present E5 factor evidence, the majority says, amounted to letting him “reopen the Record.” Moreover, the majority says, it also violates Section Code §8.01-610, which requires trial courts to reject or affirm the Commissioner in Chancery’s report, in whole or in part, and not to confirm it and then “reopen” and re-try a matter. The majority says it also violates the “General Decree”, because that decree allows only the Commissioner to find the factors and circumstances and lets a trial court only determine the effects of the factors and circumstances. The majority says several times throughout the opinion that the Commissioner in Chancery specifically made a finding that the forgery did not occur, because the husband failed to carry his burden of proof as to that. Thus that became res judicata which the trial court had no right to tamper with. The majority cites Joynes v. Payne, 36 Va. App. 401 (2001), on this point. The majority thus vacated the whole equitable distribution award and fee award. Judge McClanahan, not being a Fairfax product, might be forgiven for not fully appreciating the subtleties of the Fairfax Circuit Court Rule, but in her dissent, she emphasizes that she does understand the majority’s analysis, but simply fails to agree. Her dissent does appear to say, however, that the issue of what effect the parties’ behavior had upon the marital estate and distribution was not a matter referred to this Commissioner, but one left to the trial court to try ore tenus. In her view, the Commissioner did not find that this forgery did not occur, but rather found that even if proved it would not have been a justification for deserting the marriage. Apparently regarding any violation of Fairfax County’s local rules as a matter for the circuit court to perceive, raise and remedy, rather than leaving it to the appellate courts to police, she states the view that the trial judge’s interpretation of this general decree was reasonable and was within the zone of latitude that trial courts should have in the interpretation of their own decrees. She finds no abuse of discretion in what this trial judge did. Some authorities opine that Morrill will have dire consequences for any attempt to continue use of the Commissioner system for trial of grounds and E (5) matters.