                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia


ROBERT L. WIDGEON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1272-02-1                   JUDGE LARRY G. ELDER
                                              DECEMBER 17, 2002
SANDRA A. WIDGEON


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    A. Bonwill Shockley, Judge

             Victoria V. Humphreys for appellant.

             Cheshire I'Anson Eveleigh (Wolcott, Rivers,
             Wheary, Basnight & Kelly, P.C., on brief),
             for appellee.


     Robert L. Widgeon (husband) appeals from a decision of the

Virginia Beach Circuit Court (trial court) granting his former

wife, Sandra A. Widgeon (wife), a divorce and resolving issues

of child custody, equitable distribution, and attorney's fees

and costs.     On appeal, he contends the trial court erroneously

(1) denied his request for divorce on grounds of desertion; (2)

awarded primary physical custody of the parties' minor child to

wife; (3) failed to require wife to pay a portion of the balance

on the second mortgage on the marital residence; and (4) ordered

him to pay half the costs of the proceeding and denied his

request for attorney's fees.     He also contends the trial court's


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
decision failed to give proper deference to the credibility

determination made by the commissioner in chancery to whom the

case was referred.

     We hold that, regardless of the recommendations of the

commissioner in chancery, the evidence supported the trial

court's decision to grant the parties a no-fault divorce and to

refuse to require wife to pay any of the parties' second

mortgage obligation if husband chose to refinance the marital

home rather than sell it.   Finally, we conclude the trial court

based its award of primary physical custody of the parties'

child to wife on an erroneous factual finding.   Thus, we remand

to the trial court to consider anew, based on the evidence in

the record, the issues of child custody and attorney's fees, and

we affirm in all other respects.

                                I.

                                A.

            COMMISSIONER'S CREDIBILITY DETERMINATION

     "When a trial court refers a cause to a commissioner in

chancery, it does not delegate its judicial function to the

commissioner . . . ."   Kelker v. Schmidt, 34 Va. App. 129,

136-37, 538 S.E.2d 342, 346 (2000).   "[W]hen the commissioner's

finding[s] [are] specifically based on what the commissioner saw

and heard," i.e., credibility determinations based on "demeanor

and appearance," and "the commissioner [makes clear this

reliance by] describ[ing] such observations in his or her
                             - 2 -
report," "the commissioner is in a better position than the

trial judge to make factual findings on that basis," and the

chancellor must "give 'due regards' to the commissioner's

factual findings."     Id. at 139-40, 538 S.E.2d at 347-48.

     Conversely, "if the commissioner's determination is based

on the substance of the testimony and not upon the witness'

demeanor and appearance, such a finding is as determinable by

the trial judge as by the commissioner."     Id. at 139, 538 S.E.2d

at 347.   Thus, absent a clearly articulated credibility

determination by the commissioner, the chancellor is free to

reach a conclusion contrary to that of the commissioner, see

id., and on appeal, we affirm the chancellor's determination

unless it is plainly wrong, see, e.g., Snyder Plaza Props., Inc.

v. Adams Outdoor Advertising, Inc., 259 Va. 635, 641, 528 S.E.2d

452, 456 (2000).

     Here, the commissioner commented on wife's credibility

directly in making his recommendation on the custody issue and

indirectly in concluding wife's bill of complaint for divorce

was not filed in good faith.    However, in doing so, he referred

only to the fact that her testimony conflicted with the

testimony of others.    Because he made no clearly articulated

credibility determination based on wife's "demeanor and

appearance," the trial court was free to reject the

commissioner's assessment of wife's credibility and to

redetermine her credibility based on the record.
                             - 3 -
                                 B.

                        GROUNDS FOR DIVORCE

     On September 23, 1999, wife filed for divorce on grounds of

constructive desertion, based on "a course of" "cruel and

willful conduct" and "a general withdrawal from the marital

relationship."   Husband was served with the bill of complaint on

September 24, 1999.   Wife left the marital residence on

September 27, 1999.   On September 30, 1999, husband filed an

answer and cross-bill alleging actual desertion.

     Wife testified that husband physically abused her on four

separate occasions, including on Father's Day in 1994, when he

kicked her in the stomach.    She called the police but opted not

to file charges against husband.      Husband admitted pushing wife

during the 1994 Father's Day incident, saying wife was angry,

threw things at him, poured a drink on his head and called the

police.   No other evidence corroborated the remaining three

incidents of violence about which wife testified.

     Wife also testified, with corroboration, that in 1997

before the parties' child was born, husband physically left the

marital bedroom and did not return, a fact husband admitted.

     The commissioner found that the bill of complaint was "not

. . . filed in good faith."   He noted that wife had "not

corroborated her grounds of divorce" and that her "bill of

complaint ought to be dismissed."     He recommended that husband

be granted a divorce based upon wife's desertion.
                             - 4 -
     Wife excepted to the commissioner's recommendation that

husband was entitled to a fault-based divorce on the ground that

wife deserted him when she left the marital residence after

filing for divorce.   The trial court sustained wife's exception

and granted the parties a no-fault divorce based on a one-year

separation.

     A "long-established rule in Virginia [provides] . . . that

'one spouse is not guilty of legal desertion in separating from

the other after the institution of a suit for divorce or during

its pendency.'"   Byrd v. Byrd, 232 Va. 115, 119, 348 S.E.2d 262,

264 (1986) (quoting Alls v. Alls, 216 Va. 13, 14, 216 S.E.2d 16,

17 (1975)).   The Supreme Court has recognized, however, that

this rule ought not be applied "'where the original suit turns

out to be frivolous, a mere sham created in order to permit the

complaining [spouse] to desert the defendant [spouse] with

impunity.'"   Id. (quoting Roberts v. Roberts, 223 Va. 736, 741,

292 S.E.2d 370, 373 (1982)).

     The spouse claiming the original suit is frivolous bears

the burden of "establishing a set of facts warranting

application of [the] exception to the Alls rule."   Id. at

119-20, 348 S.E.2d at 264.   The Court has defined "'frivolous'

. . . '[as] having no basis in law or fact'" and has observed

that the complaining party's allegations may be "insufficient to

support [the] claim for divorce" but still "ha[ve] a basis in

law and fact and present a bona-fide, justiciable controversy."
                             - 5 -
Id. at 120, 348 S.E.2d at 265 (quoting Webster's Third New

International Dictionary 913 (1971)).      The absence of

corroboration, standing alone, does not compel the conclusion

that the suit is frivolous.    See id.    It is true that the Court

in Byrd contemplated a situation in which corroboration was

lacking because "no third person was present when [the alleged

acts] occurred."   Id.   Nevertheless, we hold a court is not

compelled to find a suit is frivolous or has been filed in bad

faith simply because the evidence implies that corroborating

witnesses exist but the complaining spouse ultimately does not

produce those corroborating witnesses.

     Here, husband admitted to the occurrence of at least a

portion of one of the incidents to which wife testified in

support of her claim for constructive desertion.     Wife's failure

to provide evidence from medical or law enforcement personnel to

corroborate husband's other alleged acts of violence against her

is not dispositive of the question.      Husband bore the burden of

proving wife's bill of complaint alleging constructive desertion

was frivolous, and the evidence supported the trial court's

finding that he failed to do so, despite the commissioner's

finding to the contrary. 1



     1
       Even when a fault ground for divorce has been proved, a
trial court retains the discretion to grant the parties a
no-fault divorce, see, e.g., Zinkhan v. Zinkhan, 2 Va. App. 200,
210, 342 S.E.2d 658, 663 (1986), and it is not compelled "to
give precedence to one proven ground of divorce over another,"
                             - 6 -
                                  C.

                  CUSTODY OF THE PARTIES' MINOR CHILD

     One child, a daughter, E.L., was born of the parties'

marriage, on July 2, 1997.    Each party sought primary physical

custody of E.L.

     The commissioner recommended joint legal custody of the

child with primary physical custody to father.    In making this

recommendation, he noted the following:

               I find that [wife's] credibility is
          less persuasive than that of [husband].
               . . . . Her testimony is contradicted
          and not supported by the child's teacher and
          daycare provider, while the father's
          testimony has not been.
               It appears to me that the father is the
          person who will most promote a relationship
          with the other parent and who will be more
          supportive of the child consistent with her
          best interests.

     Contrary to the commissioner's recommendation, the trial

court awarded primary physical custody of E.L. to wife.   In

doing so, it found husband was "a very good father" who

"certainly seems involved in both his child's upbringing, and

his stepson's upbringing."    It found "most of the criteria in

the statute, the ages of the part[ies] and those kind[s] of

things, are probably a wash," but that "[i]t . . . appear[ed,]

. . . before the situation escalated, . . . it was the mother

that was more involved with the day-to-day upbringing [of E.L.],


Robertson v. Robertson, 215 Va. 425, 426, 211 S.E.2d 41, 43
(1975).
                             - 7 -
doctor's appointments and things like that."   It observed

further that wife's son's specific testimony about E.L. and

"what goes on with [her]" permitted certain inferences about the

positive nature of the relationship between E.L. and her

stepbrother.   The court concluded that "the scale tips in the

mother's favor . . . [p]rimarily because of the way the child

reacts with the stepson[] and the fact that she sleeps with the

primary caretaker."   The trial court did, however, caution wife

against "doing anything to keep that child from a relationship

with the father" and indicated that such behavior could provide

grounds for a change in custody.

     In custody determinations, "the controlling consideration

is always the child's welfare . . . ."   Sutherland v.

Sutherland, 14 Va. App. 42, 43, 414 S.E.2d 617, 618 (1992).      In

determining what custodial arrangement serves the best interests

of a child, the court shall consider the factors enumerated in

Code § 20-124.3.   These factors include the relationship of the

child with each parent and "other important relationships

. . . , including but not limited to siblings, peers and

extended family members."   Code § 20-124.3(3), (4).

     Husband contends the evidence failed to support two of the

findings of fact upon which the trial court based its custody

decision.   In ruling that "the scale tips in the mother's

favor," the trial court relied "primarily" on "the way the child


                              - 8 -
reacts with the stepson, and the fact that she sleeps with the

primary caretaker."

       Evidence in the record supports the first of these

findings.   The commissioner stated in his report that the record

was devoid of "testimony as to the relationship between [the

parties' daughter and her stepbrother, wife's son from a

previous relationship]."   Although the trial court referred to

"the way the [parties'] child reacts with the stepson," it noted

that

            just listening to the stepson talk about the
            birthday parties and who organized which,
            that there is just some explicit information
            that you can take about the relationship of
            the two kids, just from the testimony, and
            his knowledge of what goes on with his
            younger sister, and the extent that he knows
            what happens with her.

We hold the inferences the trial court drew from this testimony

were not plainly wrong or without evidence to support them.

       The record, however, is devoid of any evidence to support

the trial court's statement that "[the parties' child] sleeps

with the primary caretaker."   Assuming the trial court's use of

the term, "primary caretaker," referred to wife, no one

testified that the parties' child physically slept in the same

bed or the same room with wife.   Further, no evidence

established that the child stayed overnight more frequently with

wife than husband under the visitation schedule then in effect.



                               - 9 -
     We are unable to conclude this factual error was harmless

under the specific facts and procedural posture of this case,

including the trial court's decision not to follow the custody

recommendation of the commissioner and the trial court's

statement that this erroneous finding was one of the

"[p]rimar[]y" facts upon which it relied in awarding custody.

Thus, we remand to the trial court to reconsider its custody

award based on the evidence in the record.

                                D.

                       THE MARITAL RESIDENCE

     The parties obtained a second mortgage in 1996 to pay the

debts of both parties, most of which were incurred separately

before the marriage.   Wife represented that about 40% of the

debt resulted from her premarital obligations.   Husband's

evidence indicated that approximately 48% of the debt resulted

from his premarital obligations, 43% of the debt resulted from

wife's, and 9% of the debt was incurred jointly by the couple

during the marriage.   Once the second mortgage debt was

incurred, the parties made payments on that mortgage in

proportion to the share of their respective premarital debt paid

off with mortgage proceeds.

     Husband sought to refinance the house in his name only and

to have wife held responsible for half the second mortgage.     The

commissioner found the marital equity to be $2,316.74.     He


                              - 10 -
recommended that husband be allowed to refinance the house and

purchase wife's interest in the property for $1,158.37.

     The trial court ruled that if the home were sold, any

remaining equity was to be divided evenly by the parties.    The

trial court found that the transaction would "become[] a wash"

if the home were refinanced by husband alone.   Husband did not

object to any of the figures the trial court used in its

calculations and contends only that he should not be required to

pay wife's premarital debt, which remained her separate

property.   We assume without deciding that wife's premarital

debt remained her separate obligation, even though it was

commingled with husband's separate property and marital property

and converted into a second mortgage on a marital asset.

Nevertheless, the evidence, viewed in the light most favorable

to wife, supported a finding that allowing husband to refinance

the house without awarding wife a share of any equity in the

property sufficiently compensated husband for wife's share of

the second mortgage.

     The trial court used the $101,000 appraisal figure for the

property rather than the $89,912 figure used for purposes of the

city's real estate tax assessment.   The outstanding balance on

the first mortgage was $86,398.26, leaving equity of $14,601.74,

not including the second mortgage balance.

     The balance on the second mortgage was $12,285--less than

the $14,601.74 equity remaining after satisfaction of the first
                             - 11 -
mortgage.   The evidence established that wife's separate share,

if any, of the parties' joint obligation on the second mortgage,

based upon the amount of her separate premarital debt, was no

greater than husband's separate share.   Thus, attributing both

half the $14,601.74 equity and half the second mortgage

obligation to each party, actual equity of $2,316.74 would

remain to be divided between the parties after satisfaction of

both mortgage obligations.   Although husband represented he

would have to "pay significantly" to refinance the property, he

offered no evidence of what his refinancing costs would be.    The

trial court also observed that husband "did end up with a truck

out of this," although evidence of the truck's value was

lacking.    Because the appraisal figure exceeded the first and

second mortgage balances and husband provided no evidence of

refinancing costs, we hold the trial court's ruling allowing

husband to refinance without paying wife for her share of any

equity in the property sufficiently compensated husband for

having to assume wife's share of the second mortgage obligation.

If husband felt the refinancing option resulted in financial

unfairness, he retained the option of having the house sold,

with any resulting equity or expenses to be divided evenly by

the parties.




                               - 12 -
                                E.

                     ATTORNEY'S FEES AND COSTS

     The commissioner recommended that wife reimburse husband

for $3,500 of his attorney's fees and that wife pay all costs.

The trial court held each party responsible for his or her own

attorney's fees and directed them to divide the costs equally.

     Whether to award attorney's fees and costs rests within the

sound discretion of the trial court.     See, e.g., Lightburn v.

Lightburn, 22 Va. App. 612, 621, 472 S.E.2d 281, 285 (1996).

Based on the trial court's rejection of the commissioner's

recommendation for a fault-based divorce and its finding that

both parties "probably did things they didn't need to," we hold

the trial court did not abuse its discretion in requiring the

parties to pay their own attorney's fees and to divide costs

evenly.   However, because we remand on the custody issue, we

direct the court to consider anew the issue of attorney's fees

and costs in light of its decision on the custody issue.

                                II.

     For these reasons, we hold the evidence supported the trial

court's decision to grant the parties a no-fault divorce and to

refuse to require wife to pay any of the parties' second

mortgage obligation if husband chose to refinance the marital

home rather than sell it.   Finally, we conclude the trial court

based its award of primary physical custody of the parties'

child to wife on an erroneous finding.    Thus, we remand to the
                             - 13 -
trial court to consider anew, based on the evidence in the

record, the issues of child custody and attorney's fees, and we

affirm in all other respects.

                                                Affirmed in part,
                                                 reversed in part
                                                    and remanded.




                                - 14 -
