                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Elder, Bray and Senior Judge Overton


SEBERT FRANKLIN SKEENS
                                            MEMORANDUM OPINION *
v.   Record No. 1035-00-2                       PER CURIAM
                                              OCTOBER 3, 2000
JOYCE ANN TOLER SKEENS


           FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
                     W. Park Lemmond, Jr., Judge

           (Jacqueline Waymack; Butterworth & Waymack,
           on brief), for appellant.

           (Edward A. Robbins, Jr.; Timothy H. Louk; The
           Robbins Law Firm, P.C., on brief), for
           appellee.


      Sebert Franklin Skeens (husband) appeals the decision of the

circuit court granting a divorce and equitably distributing the

parties' marital estate.    He contends the trial court erred by (1)

granting Joyce Ann Toler Skeens (wife) a divorce based on his

fault; (2) dividing the marital property unequally between the

parties; (3) permitting wife to satisfy the monetary lump sum

award with the transfer of personal property; (4) designating wife

as the irrevocable beneficiary of his military Survivor Benefit

Plan; and (5) accepting the commissioner in chancery's decision on

the value of the marital property.   Upon reviewing the record and

briefs of the parties, we conclude that this appeal is without


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
merit.    Accordingly, we summarily affirm the decision of the trial

court.    See Rule 5A:27.

                               BACKGROUND

        On appeal, we view the evidence in the light most favorable

to the prevailing party below, granting to her all reasonable

inferences therefrom.    See McGuire v. McGuire, 10 Va. App. 248,

250, 391 S.E.2d 344, 346 (1990).    On May 14, 1997 and December 9,

1997, the commissioner in chancery conducted ore tenus hearings.

He filed his report with the trial court on August 21, 1998, to

which the parties excepted.    The trial court entered the final

decree on April 11, 2000.

        Husband and wife were married in 1958 in West Virginia.    The

trial court found that husband "wilfully abandoned and deserted"

wife.    After having "carefully considered the evidence presented

by the parties and the Commissioner's Report," the trial court

ordered and decreed that wife would receive all personal property

then in her possession, which had a value of $67,802.05.    The

trial court also decreed that wife would receive sole ownership

and possession of the marital home valued at $54,000, the "Lake

Gaston" property valued at $14,500, and the "Port Charlotte"

property valued at $9,200.

        The trial court ordered and decreed that husband would

receive all personal property then in his possession, which had a

value of $29,722.81, and sole ownership and possession of the

property adjacent to the marital home valued at $10,100.

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Additionally, the trial court required wife to pay husband

$43,573.38.   The trial court ruled that wife may satisfy the

monetary award in favor of husband by conveying an equivalent

amount of her interests in real and tangible personal property to

him.   Furthermore, the trial court deemed wife to be an

irrevocable beneficiary of husband's Survivor’s Benefit Plan (SBP)

and ordered husband "to execute all documents necessary to

maintain [wife's] designation as a former spouse" and "to do

nothing to reduce or eliminate that benefit to the" wife.

                             DISCUSSION

            [A] commissioner's report is deemed to be
            prima facie correct. [A] 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
            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).   A decree which approves a commissioner's

report will be affirmed unless plainly wrong.   See Hill v. Hill,

227 Va. 569, 577, 318 S.E.2d 292, 296 (1984).

                              Desertion

       "Desertion occurs when one spouse breaks off marital

cohabitation with the intent to remain apart permanently without

the consent or against the will of the other spouse."      Barnes v.

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Barnes, 16 Va. App. 98, 101, 428 S.E.2d 294, 297 (1993).

Desertion must be proven by a preponderance of the evidence.

See Bacon v. Bacon, 3 Va. App. 484, 490, 351 S.E.2d 37, 40-41

(1986).   "It is well established that 'where dual or multiple

grounds for divorce exist, the trial judge can use his sound

discretion to select the grounds upon which he will grant the

divorce.'"     Williams v. Williams, 14 Va. App. 217, 220, 415

S.E.2d 252, 253 (1992) (citation omitted).

     From 1971 until 1988, husband determined "more or less" the

marriage was over.    During that time, husband slept "on the

couch."   He testified that he "left [wife on] April 22, [19]88."

After moving out of the marital home in 1988, husband began

"liv[ing] in a school bus" he and his son used for hunting.

Wife denied asking or forcing husband to leave the marital home.

     Evidence supported the ground on which the trial court

granted the divorce.    Therefore, we find no abuse of discretion

in the trial court's decision to award wife a divorce on the

ground of desertion.

                      Unequal Division of Assets

     "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).    Moreover, we will not reverse an

award, "unless it appears from the record that the [trial court]

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. . . has not considered or has misapplied one of the statutory

mandates, or that the evidence fails to support the finding of

fact underlying resolution of the conflict in the equities."

Smoot v. Smoot, 233 Va. 435, 443, 357 S.E.2d 728, 732 (1987).

Virginia's statutory scheme of equitable distribution does not

have a presumption favoring an equal distribution of assets.

See Papuchis v. Papuchis, 2 Va. App. 130, 132-33, 341 S.E.2d

829, 830-31 (1986).

     In fashioning an award, the trial court is required to

consider the statutory factors set forth in Code § 20-107.3(E).

See Marion v. Marion, 11 Va. App. 659, 665, 401 S.E.2d 432, 436

(1991).   Code § 20-107.3(E)(1) requires the court to consider

the "monetary and nonmonetary" contributions "of each party to

the well-being of the family."

     "Based upon the evidence presented," the commissioner found

that wife "contributed sixty percent (60%) of the nonmonetary

factors . . . to the well-being of the family" and that husband

"contributed forty percent (40%)."       He based this finding on the

fact that "[d]uring five of the thirty-five years of the

marriage, [husband] was on overseas tour of duty with the U.S.

Army; and the [wife,] of necessity, had to perform all of the

non-monetary family contributions."      The commissioner also found

that, because both parties "worked throughout the marriage" and

had "approximately equal" salaries, "each [party] contributed

fifty percent (50%) of the monetary contributions."      By adding

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each party's respective percentages of nonmonetary and monetary

contributions and dividing by two, the commissioner arrived at

and recommended wife receive a fifty-five percent share of the

marital assets.   Because the trial court's distribution of

assets was based upon the statutory factors and was supported by

the evidence, we find no abuse of discretion.

          Property Transfer to Satisfy a Lump-Sum Award

     "The party against whom a monetary award is made may

satisfy the award, in whole or in part, by conveyance of

property, subject to the approval of the court."     Code

§ 20-107.3(D).    The trial court expressly allowed wife to convey

an equivalent amount of real and tangible personal property to

husband in satisfaction of husband's monetary award.

     Husband's arguments criticizing the relative values of

wife's personal property have no bearing on the trial court's

statutory authority to allow a party to satisfy an award by

conveying property.     See id.   In exercising its authority, the

trial court did not abuse its discretion or commit reversible

error.

                      Survivor Benefit Plan (SBP)

     Husband contends the trial court erred in designating wife

as the irrevocable beneficiary of the SBP plan and allocating

the monthly cost of the plan to husband "where neither the

commissioner nor the judge specifically ruled on the issue."



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       On page 17 of his report, the commissioner addressed the

SBP.   According to the commissioner, although husband "testified

that it is his understanding that after the divorce is granted,

he cannot cancel this coverage," the commissioner

            determined from reviewing information
            received from counsel . . . and from
            speaking to Army Retirement Services, the
            survivor benefits will be terminated once
            the Department of the Army has received the
            divorce decree unless (1) the [husband] is
            ordered by this Court to provide SBP
            coverage for [wife] or (2) the [husband]
            voluntarily elects such coverage within a
            year of entry of the final divorce decree.

       In the final decree, the trial court decreed wife to be

"deemed as the irrevocable beneficiary of the Survivor's Benefit

Plan (SBP)" and ordered husband "to designate [wife] as a former

spouse for said purposes, to timely execute all documents

necessary to maintain [wife's] designation []as a former spouse

for such purposes, and to do nothing to reduce or eliminate that

benefit to [wife]."

       "[T]he court may order a party to designate a spouse or a

former spouse as irrevocable beneficiary . . . of all or a

portion of any survivor benefit or annuity plan of whatsoever

nature."   Code § 20-107.3(G)(2).   Also, "[t]he court, in its

discretion, shall determine as between the parties, who shall

bear the costs of maintaining such plan."    Id.

       As explained above, the commissioner noted that husband

presently pays SBP coverage and that husband represented to him


                                - 7 -
that such coverage could not be canceled by him after the

divorce was granted.   Had husband's representation been

accurate, wife would have received SBP coverage that husband

could not have canceled.   However, after researching the issue

and discovering that wife's SBP coverage would be terminated

unless some action is taken, the commissioner suggested two

options for assuring continued, noncancelable SBP coverage

consistent with husband's representation at the hearing.    Those

suggested courses of action represent alternative

recommendations.   The trial court opted to order husband to

provide the coverage rather than rely on his voluntary election

to do so.   Therefore, contrary to husband's assertion, the

record demonstrates that the commissioner addressed the issue,

made a recommendation and the trial court specifically ruled on

it.   Moreover, the trial court had statutory authority to order

husband to continue with the plan and to designate wife as the

irrevocable beneficiary.   See Code § 20-107.3(G)(2).

Accordingly, the trial court did not abuse its discretion or

otherwise err.

                           Valuation Date

      At the May 14, 1997 ore tenus hearing, the commissioner

admitted into evidence wife's Exhibit 5, a chart listing values

for real and personal property.   Some items had one valuation,

others had dual valuations, one by wife and one by husband, and

two items contained no valuation.   The commissioner employed the

                               - 8 -
listed value where only one value was included, and he adopted

the higher value where the values differed.    The commissioner

then asked husband's attorney if she was "in agreement with

that, [and] would [she] stipulate that the other values that are

shown on here are the agreed values between the parties, and the

only thing we need to consider this morning would be the two

items [for] which there is no value."   Both parties agreed to

stipulate, and the commissioner indicated the stipulation in

writing on Exhibit 5.

     During the hearing, the commissioner asked husband about

wife's Exhibit 3, a list of personal property taken by husband

containing values for each piece of property.   Husband agreed

that the figures reflected values as of the date of separation.

Husband then contended there was no timely motion to use a

valuation date different than the day of the hearing pursuant to

Code § 20-107.3(A).    The commissioner "assumed," however, the

parties "were using the date of separation, because all the

[both] of you have presented to me today here have been those

dates.   I think if we now try to change that and go to the

current date, . . . we would have to reevaluate all of the

evidence before us."

     The following colloquy then took place:

           THE COMMISSIONER: Are you satisfied with
           the valuations as of the date of separation?

           [HUSBAND'S ATTORNEY]:   Yes, sir.


                                - 9 -
           BY [HUSBAND'S ATTORNEY TO HUSBAND]:

           Q: I guess maybe that's the question.      Are you
           satisfied with those values?

           A:   I accept it.

     By stipulating to a valuation date other than the date of

the hearing, husband cannot now complain about that date's use

by the trial court.   "'No litigant . . . will be permitted to

approbate and reprobate--to invite error . . . and then to take

advantage of the situation created by his own wrong.'"       Manns v.

Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992)

(quoting Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d

46, 54 (1988)).   Husband, "'having agreed upon the action taken

by the trial court, should not [now] be allowed to assume an

inconsistent position.'"       Id. at 679, 414 S.E.2d at 615 (quoting

Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784, 792

(1979)).   Accordingly, the trial court did not err in valuing

the parties' property according to their stipulations.

     For the foregoing reasons, the decision of the trial court

is summarily affirmed.

                                                             Affirmed.




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