                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Felton
Argued at Chesapeake, Virginia


TIMOTHY MARTIN BARRETT
                                                               MEMORANDUM OPINION* BY
v.      Record No. 1123-04-1                                   JUDGE WALTER S. FELTON, JR.
                                                                      APRIL 26, 2005
VALERIE JILL RHUDY BARRETT


                FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               Edward W. Hanson, Jr., Judge

                  Timothy M. Barrett, pro se.

                  Dorinda Parkola (Legal Aid Society of Eastern Virginia, Inc., on
                  brief), for appellee.


        Timothy Martin Barrett (husband) appeals from the final decree of equitable distribution

arising out of his divorce from Valerie Jill Rhudy Barrett (wife). On appeal, husband contends that

the trial court erred by relying on the testimony of witnesses wife did not identify in the discovery

order; by failing to properly consider the parties’ marital debts; and by ordering him to pay $6,000

toward wife’s attorney’s fees incurred during the parties’ prior divorce proceeding. For the

reasons that follow, we reverse and vacate that part of the trial court’s judgment ordering husband to

pay $6,000 of attorney’s fees incurred by wife after the separation of the parties, but otherwise

affirm the judgment of the trial court.

                                           BACKGROUND

        On appeal from an equitable distribution award, we view the evidence in the light most

favorable to the party prevailing below, “and grant all reasonable inferences fairly deducible


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
therefrom.” Anderson v. Anderson, 29 Va. App. 673, 678, 514 S.E.2d 369, 372 (1999). So

viewed, the evidence establishes that husband and wife were married on July 28, 1990. During

the eleven years of marriage, six children were born to the parties, namely: J.H. born in March

1992; A.E., in August 1993, E.E., in May 1995; E.G., in April 1997; W.A., in February 1999;

and K.N. born in February 2001, just five months before the parties separated. On July 21, 2001,

as a result of husband’s mistreatment and out of concern for her health, wife left the marital

residence in Virginia Beach with the six children and moved to Grayson County where her

parents resided.1 She subsequently filed for divorce alleging husband’s cruelty as grounds for

divorce.

        On August 16, 2002, the trial court entered a final decree granting wife a divorce on the

amended grounds that the parties had lived separate and apart without interruption for more than

a year. Code § 20-91(A)(9)(a). It awarded wife custody of the six children, then ranging in age

from sixteen months to nine years, child support, and temporary spousal support. As a result, in

part, of husband’s aggressive and harassing behavior during the divorce proceedings, wife

incurred substantial attorney’s fees, of which approximately $29,500 remained unpaid.2 In its

final decree of divorce, the trial court did not award attorney’s fees to wife, and did not reserve to

her the right to seek attorney’s fees at a later date. In the final decree, the trial court released

each party’s attorney from further representation of their respective clients. Wife’s attorney did


        1
         During the birth of the parties’ last child, wife suffered serious medical complications.
However, husband insisted that wife bear more children and that, if she would not, he would
consider taking an additional wife.
        2
          Wife was represented in the divorce proceedings by an attorney who attended law
school with husband, and with whom husband had an ongoing acrimonious relationship. During
the period between the entry of the final decree of divorce and the commencement of this
proceeding, husband threatened to file a $5 million lawsuit against wife and her lawyer for
defamation, suggesting that if wife would agree to his terms for settling the equitable
distribution, he would not file the suit.

                                                  -2-
not object to the decree and did not appeal the fee issue. The decree of divorce deferred any

additional determination of spousal support and equitable distribution until a later proceeding.

       Husband, a licensed Virginia attorney appearing pro se, filed pleadings on September 9,

2002, twenty-four days after entry of the final decree of divorce, requesting that the trial court

determine spousal support and equitable distribution of the parties’ marital estate. He filed

multiple discovery requests, including numerous interrogatories and requests for admission, and

gave notice that he would take wife’s deposition in Virginia Beach. At the time, wife was unable

to afford counsel as she and the six small children were receiving public assistance. Husband

was in arrears in payment of both the court-ordered child support and spousal support.3 Wife

subsequently obtained counsel through the Legal Aid Society of Eastern Virginia, Inc., which

provides legal aid for indigent persons. On husband’s motion, the trial court established July 21,

2001, the date the parties separated, as the valuation date for the marital estate. It referred the

matter to a commissioner in chancery “to take testimony and report his findings to the

Court . . . on the issues of spousal support and equitable distribution.”4

       On May 12, 2003 and June 3, 2003, the commissioner received evidence pursuant to the

decree of reference. During the proceedings, at which both parties were present and testified,

husband continued to act pro se, examining witnesses, and presenting evidence in his own

behalf. The commissioner heard testimony from Scott Etherton, a lawyer who had known



       3
         On August 14, 2002, husband was found guilty of contempt for failing to pay spousal
and child support awarded by the court pendente lite. At the time of the entry of the final decree
of divorce, the court found husband to be in arrears of child and spousal support in the amount of
$4,204. On March 24, 2003, husband was found in contempt for failing to pay child support,
with arrearages exceeding $7,500.
       4
         Because the parties chose not to present evidence on the issue of spousal support, the
commissioner recommended, “that the spousal support remain as set forth in the final divorce
decree.” On December 6, 2002, all matters pertaining to spousal support were transferred to the
Grayson County Juvenile and Domestic Relations District Court.
                                               -3-
husband and wife during their marriage, regarding the parties’ marriage at the time of their

separation and the success of husband’s law practice. He also heard testimony from Hayden

Dubay, husband’s former employer at the Injury Law Center of H.I. Dubay, P.C. Dubay testified

that he terminated husband’s employment with the firm for misconduct, namely, for having an

inappropriate relationship with one of the firm’s female employees, and for viewing pornography

on his computer at work. Dubay stated that when husband was fired, he took with him numerous

case files on which he had been the responsible attorney. Dubay, with twenty-three years’

experience as a personal injury lawyer, also testified as an expert, estimating the likely fees to be

gained from the case files husband took from his firm ranged between $80,000 and $160,000.

Husband did not contest Dubay’s qualifications as an expert to value the case files in issue or

husband’s law practice. He did object, however, to Dubay’s being allowed to testify in any

manner, arguing that wife had violated discovery rules, i.e., that she had not identified Dubay as

an expert to be called in response to his specific discovery request. The commissioner permitted

Dubay’s testimony, finding that it would aid him in making recommendations to the trial court as

to the value of the marital estate.

        During the two hearings, the commissioner received multiple exhibits from the parties

relating to their claims of marital debts and assets. From the evidence, the commissioner found

that, during the eleven-year marriage, wife was the primary caregiver for the parties’ infant

children and that she made substantial non-monetary contributions to the well-being of the

family. He found that wife had received an undergraduate degree in education, had taken

graduate level courses in education, but had never worked as a teacher and had never acquired a

teaching certificate. He also found that wife assisted husband in establishing his practice,

working as his secretary and meeting with clients in their home. He found that during the

marriage, husband attended law school, during which time he also worked part-time as an

                                                -4-
investigator for the Dubay firm. After graduation, husband was employed for three years as an

attorney in the Dubay firm until he was fired for misconduct. Thereafter, husband established a

separate personal injury law practice, operating as The Injury Institute of Virginia, P.L.C.

Among the exhibits received by the commissioner was a detailed listing, compiled by husband, of

the parties’ debts and assets and their respective values as of July 21, 2001, the agreed valuation

date.

        The commissioner filed his report, including the exhibits and transcripts of the testimony,

with the trial court on July 11, 2003. Based on evidence he obtained from the parties, and

considering the factors set out in Code § 20-107.3(E), “especially, husband’s negative

non-monetary contributions,” the commissioner recommended that husband be apportioned all of

the marital debt without monetary contribution from wife, that the tangible personal property in

possession of each party be retained as the separate property of the party possessing it, and that

no monetary adjustments be awarded for any difference in value. He also recommended that

husband contribute $10,000 toward wife’s attorney’s fees incurred during the earlier divorce

proceedings. Wife claimed those fees to be marital debt.

        On February 11, 2004 and April 5, 2004, the trial court heard argument on husband’s

exceptions to the commissioner’s report. On May 4, 2004, the trial court affirmed, ratified, and

incorporated the commissioner’s report in its final decree without modification, but reduced from

$10,000 to $6,000 the amount that husband was ordered to pay directly to wife’s attorney for

fees wife incurred during the divorce proceedings. This appeal followed.

                                             ANALYSIS

        For the reasons that follow, we affirm the final decree of equitable distribution, with the

exception of that part of the decree ordering husband to “contribute $6,000.00 toward the




                                                 -5-
accumulated attorneys [sic] fees owed by the [wife], made payable to [wife’s] former

attorney . . . no later than one year from the date of the entry of the Decree . . . .”

        “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). Where

a trial court refers matters in an equitable distribution proceeding to a commissioner in chancery to

receive and consider the evidence, and to make a report to the trial court with his recommendations

based on his findings, we give “great weight” to the factual findings of the commissioner

approved by the trial court. Cooper v. Cooper, 249 Va. 511, 518, 457 S.E.2d 88, 92 (1995). We

will not reverse such findings on appeal unless they are plainly wrong, without credible evidence in

the record to support them. Barker v. Barker, 27 Va. App. 519, 531, 500 S.E.2d 240, 246 (1998);

Taylor v. Taylor, 5 Va. App. 436, 444, 364 S.E.2d 244, 249 (1988).

                          Admissibility of Dubay’s and Etherton’s Testimony

        Husband contends that the trial court erred in considering the testimony of Hayden

Dubay and of Scott Etherton. He contends that testimony should be excluded because wife

failed to provide the names of witnesses she intended to call at the commissioner’s hearing

pursuant to the rules of discovery. Specifically, he argues that because she responded that she

had “no plans to call any witnesses”5 to his discovery request for the names of her possible


        5
            Question 15 of husband’s February 2004 Interrogatories asked wife to:

                 State the name, address, profession, educational and employment
                 background of any expert you will or may call to testify in this
                 case as to any manner presently or hereafter at issue in these
                 proceedings, and set forth the subject matter on which the expert is
                 expected to testify, the substance of facts and opinions to which he
                 is expected to testify, and a summary of the grounds of each
                 opinion.


                                                    -6-
expert witnesses, the commissioner and the trial court should have excluded the testimony of

Etherton and Dubay as an appropriate sanction for her failure to comply with discovery pursuant

to Rule 4:12(b)(2)(B).

       The exclusion of testimony as an appropriate sanction for abuse of discovery is within the

sound discretion of the trial court. Walsh v. Bennett, 260 Va. 171, 175, 530 S.E.2d 904, 907

(2000); Virginia Elec. & Power Co. v. Dungee, 258 Va. 235, 258, 520 S.E.2d 164, 177 (1999).

Assuming, without deciding, that wife improperly failed to supplement her earlier discovery

response concerning calling of witnesses, the trial court, nevertheless, had broad discretion under

Rule 4:12 in determining an appropriate sanction for that failure.

               “Rule 4:12 gives the trial court broad discretion in determining
               what sanctions, if any, will be imposed upon a litigant who fails to
               respond timely to discovery.” And a trial court’s decision to admit
               evidence that is not timely disclosed, rather than impose the
               sanction of excluding it, will not be reversed unless the court’s
               action amounts to an abuse of discretion.

Rappold v. Indiana Lumbermens Mut. Ins. Co., 246 Va. 10, 14-15, 431 S.E.2d 302, 305 (1993)

(quoting Woodbury v. Courtney, 239 Va. 651, 654, 391 S.E.2d 293, 295 (1990)).

       Here, the record establishes the commissioner, after hearing husband’s arguments to

exclude Dubay’s and Etherton’s testimony, concluded that the testimony of each was relevant to

his inquiry directed by the decree of reference and that husband would not be prejudiced by

taking their testimony. The record reflects that husband was fully familiar with Dubay, his

competency to value husband’s legal practice, and the likelihood that he would be called as a

witness. Prior to the commissioner’s hearing, husband had filed a motion to quash wife’s



       Wife responded:

               I presently have no plans to call any witnesses. Not applicable. I
               reserve the right to call witnesses in the future if I obtain counsel
               and if my counsel so advises.

                                                -7-
subpoena duces tecum of Dubay’s records related to the case files husband took with him when

Dubay fired him for misconduct. Husband and Dubay had previously engaged in a financial

dispute over compensation that husband claimed Dubay owed to him, and over the value of the

cases husband took with him. The commissioner determined that Dubay’s testimony was

necessary to aid him in the valuation of the marital estate.6 Moreover, husband did not object to

Dubay’s qualifications as an expert either as to valuation of the case files husband took with him,

or in the valuation of husband’s law practice. We conclude that the trial court did not err in

failing to exclude the testimony of Dubay.

       Husband also argues that the trial court erred in relying on Dubay’s expert opinion on

valuation because he did not establish that it was “held by him to within a reasonable degree of

probability or certainty.” See Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421

(1980) (requiring expert opinions to be “brought out of the realm of speculation and into the

realm of reasonable probability”). We will not substitute form over substance by requiring an

expert to use the magic words “to a reasonable degree of certainty,” when the opinion expressed

by the expert is in the realm of reasonable probability. See Island Creek Coal v. Breeding, 6

Va. App. 1, 11-12, 365 S.E.2d 782, 788 (1988).

       Reasonable degree of certainty requires only that Dubay’s valuation of the files and

husband’s law practice “is at least more probable than not.” Piedmont Mfg. Co. v. East, 17

Va. App. 499, 506, 438 S.E.2d 769, 774 (1993) (citation omitted) (emphasis in original).

Valuation of property must be based on more than speculation or “mere guesswork.” Bosserman

       6
           Code § 8.01-401.3(A) provides that:

                In a civil proceeding, if scientific, technical, or other specialized
                knowledge will assist the trier of fact to understand the evidence or
                to determine a fact in issue, a witness qualified as an expert by
                knowledge, skill, experience, training, or education may testify
                thereto in the form of an opinion or otherwise.
                                                 -8-
v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107 (1989). Expert opinion is not speculative if

it is “based upon facts within [the expert’s] knowledge or established by other evidence.”

Gilbert v. Summers, 240 Va. 155, 160, 393 S.E.2d 213, 215 (1990). Where there is conflicting

evidence given as to value, as occurred here, the trier of fact may choose that evidence which it

finds more credible and probable. See Reid v. Reid, 7 Va. App. 553, 563, 375 S.E.2d 533, 539

(1989) (commissioner may find one of several conflicting expert appraisals more credible so

long as credible evidence supports selected appraisal).

        Here, the commissioner and the trial court determined that Dubay’s opinion as to the

value of the case files in issue and of husband’s legal practice was based on an accurate

understanding of the relevant facts, was not speculative, and was more probable than not. The

record reflects that Dubay based his expert opinion on his twenty-three years of experience as a

personal injury attorney, his experience in evaluating personal injury cases, and on his specific

knowledge of the cases husband took from his firm. In rebuttal to Dubay’s valuation testimony,

appellant testified that his law practice had a negative value on the valuation date. The trial court

was not required to reject Dubay’s valuation merely because husband believed his “evidence

might be more accurate, convincing, desirable, or persuasive.” Bowers v. Bowers, 4 Va. App.

610, 618, 359 S.E.2d 546, 551 (1987); see also Zipf v. Zipf, 8 Va. App. 387, 395, 382 S.E.2d

263, 268 (1989). From the record in this case, we conclude that Dubay’s testimony met the

required standard for expert testimony for valuation of husband’s law practice and of the case

files in question.

        Finally, we find that the trial court did not err in affirming the commissioner’s decision to

permit Etherton to testify and in considering that testimony in arriving at its equitable

distribution award. Wife did not call Etherton as an expert and was under no obligation to list




                                                -9-
him in her response to husband’s interrogatory requesting only the names of experts she intended

to call. The trial court did not abuse its discretion by refusing to strike his testimony.

       We conclude that the commissioner did not abuse his discretion in receiving, and that the

trial court did not err in considering, the testimony of Dubay and Etherton, either as to the

valuation of husband’s law practice and the case files in issue, or as to matters relating to the

parties’ marriage.

                                Equitable Distribution of Marital Debt

       In his opening brief and at oral argument, husband asserted, “that the marital debts are the

crux of this case” and that “the value of the marital assets was insignificant relative to the

enormous amount of the marital debts.”7 He contends that the trial court failed to determine the

parties’ specific marital debts and assets, and to thereafter equitably apportion them after

considering all the factors of Code § 20-107.3(E). Nothing in the record before us supports

husband’s claim that the trial court failed to consider the matters contained in the commissioner’s

report, or the factors in Code § 20-107.3(E) in fashioning the equitable distribution award.

               The requirement that the trial court consider all of the statutory
               factors necessarily implies substantive consideration of the
               evidence presented as it relates to all of these factors. This does
               not mean that the trial court is required to quantify or elaborate
               exactly what weight or consideration it has given to each of the
               statutory factors.

Woolley v. Woolley, 3 Va. App. 337, 345, 349 S.E.2d 422, 426 (1986).

       The commissioner’s report included the exhibits filed by the parties detailing their claims, as

well as the transcripts of the proceedings before him, including the testimony of the various

witnesses. The trial court affirmed, ratified, and incorporated the commissioner’s report in its final



       7
          At the commissioner’s hearing, husband presented an exhibit listing the marital debt of
the parties to be in excess of $325,000. In argument to the trial court, he stated the parties’ total
debt to be $215,451.84.
                                               - 10 -
decree of equitable distribution, considered and overruled each of husband’s exceptions to the

report, and reduced the amount that husband was ordered to pay to wife’s former attorney from

$10,000 to $6,000.

        In determining its equitable distribution award, the trial court must consider the “debts

and liabilities of each spouse [and] the basis for such debts and liabilities.” Code

§ 20-107.3(E)(7). Once it has determined the debts and liabilities of the parties, it has “authority

to apportion and order the payment of the debts of the parties, or either of them, that are incurred

prior to the dissolution of the marriage, based upon the factors listed in subsection E.” Code

§ 20-107.3(C).

        Here, the record reflects that the apportionment of the parties’ marital debt was largely

determined on “the basis for such debts and liabilities,” including the costs of husband’s law school

education and establishment of his law practice after he was fired from his previous employment for

misconduct, and on husband’s negative and wife’s positive “nonmonetary” contributions to the

well-being of the family. Code § 20-107.3(E)(7), (1). Moreover, under the equitable distribution

award, husband retained his interest in his law firm, the only substantial marital asset, and retained

the marital residence, which was titled solely in his name.

        From our review of the record, we cannot say the trial court’s judgment as to the

apportionment of marital debt to the husband, except as noted below, is plainly wrong or without

credible evidence to support it. See Taylor, 5 Va. App. at 444, 364 S.E.2d at 249.

                                           Attorney’s Fees

        Husband contends that the trial court erred “by awarding attorney’s fees from another

case,” referring to attorney’s fees wife incurred during the ended divorce proceedings.

Generally, an award of attorney’s fees to a party in a divorce proceeding is a matter within the




                                                 - 11 -
sound discretion of the trial court and is reviewable on appeal only for an abuse of discretion.

Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987).

        Wife’s counsel in the divorce proceedings filed an amended bill of complaint, requesting

an award of “attorney’s fees and court cost expended in this [divorce] suit.” However, the final

decree of divorce did not award attorney’s fees to wife, nor did it reserve to wife the right to seek

attorney’s fees in the deferred proceedings for equitable distribution and spousal support.

Moreover, wife’s counsel did not file any exceptions to the final decree of divorce asserting error

on the part of the trial court for failure to award attorney’s fees to wife or to reserve to her the

right to seek those fees at a later proceeding. That divorce decree, having become final

twenty-one days after its entry, could not thereafter be modified to award attorney’s fees to wife.

Rule 1:1. Nevertheless, the commissioner recommended in his report that the trial court require

husband to contribute $10,000 toward the accumulated attorney’s fees incurred by wife in the

divorce proceedings,8 implicitly categorizing the wife’s attorney’s fees as marital debt. The trial

court agreed, but it subsequently reduced the amount of the award to $6,000.

        Husband contends that the trial court erred in adopting the commissioner’s classification

of wife’s attorney’s fees as marital debt, and in ordering him to pay $6,000 of that debt. He

asserts that wife incurred these fees after the parties separated on July 21, 2001, which is also the

date the court set for valuation of the parties’ marital estate. He argues that pursuant to Code

§ 20-107.3(A)(2), attorney’s fees incurred by wife after the parties separated cannot be classified

as marital debt. We agree.

        “All property . . . of whatever nature, acquired by either spouse during the marriage, and

before the last separation of the parties, if as such time or thereafter at least one of the parties


        8
         At the commissioner’s hearing, wife presented a bill from the attorney who earlier
represented her in the divorce proceedings showing a balance of $29,500 owed. That bill was
included in the exhibits made part of the commissioner’s report.
                                              - 12 -
intends that the separation be permanent, is presumed to be marital property . . . .” Code

§ 20-107.3(A)(2) (emphasis added). Here, it is clear from the record that the wife’s attorney’s

fees were incurred after the parties separated and, therefore, not properly included in the marital

estate as marital debt. The trial court has “authority to apportion and order the payment of the

debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage,

based upon the factors listed in subsection E.” Code § 20-107.3(C). However, it is without

statutory authority to classify any debt incurred by either party after their separation, as marital

debt.

        This Court has previously held that unpaid attorney’s fees may constitute debt when

incurred in anticipation of divorce or separation, and it is not error for the trial court to consider

that separate debt when fashioning its equitable distribution award. Booth v. Booth, 7 Va. App.

22, 29, 371 S.E.2d 569, 573 (1988). However, in classifying property as marital or separate, the

trial court must consider “when property is acquired, and, similarly, when debt is incurred . . . .”

Stumbo v. Stumbo, 20 Va. App. 685, 692, 460 S.E.2d 591, 595 (1995). Unlike in Booth, wife

here incurred attorney’s fees after the separation of the parties and after the agreed valuation date

set by the trial court.

        We conclude the trial court erred in classifying wife’s attorney’s fees, incurred in the

divorce proceedings and after the parties separated, as marital debt. The record reflects that the

parties separated on July 21, 2001 and did not thereafter live together as husband and wife. All

property, including debt of either party, acquired after July 21, 2001, is presumed to be separate

property. Code § 20-107.3(A)(2); Stumbo, 20 Va. App. at 692-93, 460 S.E.2d at 595. Wife

conceded that she only incurred the fees to her divorce attorney after the parties separated on

July 21, 2001.




                                                 - 13 -
        If the trial court intended to make a monetary award, it did not say so, and even if did so

intend, it would be error to order husband to pay it directly to a third party. In Woolley, this

Court made clear that Code § 20-107.3 does not authorize a trial court to make equitable

distribution of marital property to a non-party. 3 Va. App. at 341 n.1, 349 S.E.2d at 425 n.1. We

conclude that the trial court erred in classifying wife’s attorney’s fees as marital debt, having

incurred them after the July 21, 2001 separation date, and in ordering husband to pay $6,000 of that

debt directly to wife’s former attorney.

                                            CONCLUSION

        We find that the trial court did not abuse its discretion in receiving and considering the

testimony of Hayden Dubay and Scott Etherton, or in its equitable distribution of the parties’ assets

and apportioning the parties’ marital debt, except as to its classification of wife’s attorney’s fees as

marital debt. We hold that the trial court erred in classifying wife’s attorney’s fees, incurred after

July 21, 2001, as marital debt and in apportioning $6,000 of that debt to husband for payment.

Accordingly, we vacate and dismiss that portion of the final decree of equitable distribution

ordering husband to “contribute $6000.00 toward the accumulated attorneys [sic] fees owed by

[wife], made payable to [wife’s] former attorney . . . no later than one year from the date of the entry

of the Decree of Equitable Distribution” but otherwise affirm the judgment of the trial court.

                                                                                   Affirmed, in part, and
                                                                                        reversed, in part.




                                                  - 14 -
