Appointments

Commissioner in Chancery Services in Virginia

Joshua E. Bushman, Esq. | Bushman Law Group

Virginia circuit courts have long used Commissioners in Chancery to assist the court in resolving matters involving detailed factual inquiries, accountings, evidentiary proceedings, and other issues referred by the court.

Joshua E. Bushman, Esq., of Bushman Law Group, serves as a Commissioner in Chancery when appointed by a Virginia circuit court. In that capacity, Mr. Bushman acts pursuant to the authority granted by the court’s decree of reference, Virginia law, and the Rules of the Supreme Court of Virginia.

A Commissioner in Chancery does not replace the circuit court and does not enter the court’s final judgment. Rather, the Commissioner examines the matters referred by the court, receives and evaluates evidence as appropriate, makes findings of fact and conclusions of law, and submits a written report to the circuit court for its consideration. Virginia Code § 8.01-609 expressly provides that a commissioner examines and reports upon matters referred by the court.

When serving as a Commissioner in Chancery, Mr. Bushman acts as a neutral officer appointed by and responsible to the court. He does not represent either party to the proceeding.

What Is a Commissioner in Chancery?

A Commissioner in Chancery is appointed by a Virginia circuit court to examine and report upon particular matters referred to the Commissioner.

Under Virginia Code § 8.01-607, each circuit court may appoint commissioners in chancery as necessary for the convenient dispatch of the court’s business. The statute further provides that commissioners are removable at the pleasure of the appointing court.

The Commissioner’s authority in a particular case is principally defined by:

  • the court’s decree of reference;
  • Chapter 23 of Title 8.01 of the Code of Virginia, particularly §§ 8.01-607 through 8.01-619; and
  • Rule 3:23 of the Rules of the Supreme Court of Virginia.

The decree of reference is especially important because the Commissioner is charged with examining the particular questions and issues that the circuit court has referred for consideration.

Ultimately, however, the circuit court retains judicial authority over the case.

When May a Virginia Circuit Court Appoint a Commissioner?

Virginia law does not permit the routine appointment of commissioners in every circuit court case.

Under Virginia Code § 8.01-607(B), including in uncontested divorce cases, appointment may occur when:

  1. the parties agree to the appointment and the court concurs; or
  2. a party moves for appointment, or the court acts on its own motion, and the court finds good cause in the particular case.

Rule 3:23 contains essentially the same appointment framework.

Virginia law separately addresses accountings. Under Virginia Code § 8.01-608, accounts to be taken in a case are referred to a duly appointed Commissioner unless the interested parties agree, or the court deems it proper, to refer the accounting to another person.

Thus, the appointment of a Commissioner is a matter of judicial authority and court supervision, rather than a private engagement by one side to a dispute.

The Decree of Reference: Defining the Commissioner’s Assignment

The starting point in a Commissioner proceeding is the circuit court’s decree of reference.

The decree identifies the matters the Commissioner has been directed to investigate, determine, or report upon. Rule 3:23 expressly authorizes a Commissioner to require production of evidence concerning matters embraced within the decree of reference and requires the eventual report to address the matters submitted by that decree.

Depending upon the nature of the case and the decree entered by the circuit court, the Commissioner’s work may therefore involve:

  • reviewing pleadings and documentary evidence;
  • conducting hearings or meetings;
  • receiving testimony;
  • examining witnesses under oath;
  • considering financial records and accountings;
  • ruling upon evidentiary questions within the scope authorized by the court;
  • determining disputed factual issues;
  • analyzing applicable Virginia law; and
  • preparing findings of fact and conclusions of law for the circuit court.

The precise scope of every assignment depends upon the court’s decree of reference.

Powers of a Commissioner in Chancery

Virginia law gives a Commissioner significant authority to develop the evidentiary record necessary to carry out the court’s reference.

Production of Documents and Evidence

Under Rule 3:23, a Commissioner may require production of evidence concerning matters within the decree of reference, including:

  • books;
  • papers;
  • vouchers;
  • documents; and
  • other applicable writings.

This authority can be particularly important in cases involving financial transactions, ownership disputes, fiduciary matters, accountings, or other disputes in which resolution depends upon a detailed documentary record.

Witness Testimony

A Commissioner may call witnesses or parties to testify and may examine them under oath. Chapter 23 of Title 8.01 also addresses the Commissioner’s statutory authority relating to witnesses.

Evidentiary Rulings

Unless the decree of reference directs otherwise, Rule 3:23 authorizes the Commissioner to rule upon the admissibility of evidence.

When requested by a party, the Commissioner must also cause a record to be made of proffered evidence that the Commissioner excludes as inadmissible.

That provision is important because the Commissioner’s proceeding ultimately becomes part of a matter that remains subject to review by the circuit court.

Duties of the Commissioner

A Commissioner’s authority is accompanied by significant responsibilities to the court and the parties.

Reasonable Diligence

After entry of the decree of reference, and unless the decree directs otherwise, Rule 3:23 requires the Commissioner to promptly establish a time and place for the first meeting of the parties or their attorneys and provide the required notice.

The Commissioner must thereafter proceed “with all reasonable diligence to execute the decree of reference.”

Development of the Record

The Commissioner may receive documents, witness testimony and other evidence necessary to address the matters referred by the circuit court.

The particular procedure used in a proceeding may depend substantially upon the nature of the reference, the issues presented, and the circuit court’s directions.

Preparation of the Commissioner’s Report

One of the Commissioner’s most important responsibilities is preparation of the report to the circuit court.

Rule 3:23 requires the Commissioner to prepare a report containing the Commissioner’s:

  • findings of fact; and
  • conclusions of law

concerning the matters submitted through the decree of reference.

The report is filed with the clerk of court together with the exhibits admitted into evidence and the transcript of the proceedings and testimony. The Rule also requires written notice of the filing to counsel of record and unrepresented parties who have appeared, and establishes an additional report-copy requirement in divorce cases.

The Circuit Court Retains Final Authority

A Commissioner’s report is important, but it is not itself the final judgment of the court.

Virginia Code § 8.01-610 provides:

“The report of a commissioner in chancery shall not have the weight given to the verdict of a jury on conflicting evidence, but the court shall confirm or reject such report in whole or in part, according to the view which it entertains of the law and the evidence.”

Even so, a chancellor should sustain the report if the evidence supports the commissioner’s findings. Hill v. Hill, 227 Va. 569, 576–77, 318 S.E.2d 292, 296 (1984). That rule “applies with particular force to the report’s factual findings which are based on evidence heard by the commissioner.” It does not apply to “pure conclusions of law.” Chesapeake Builders, Inc. v. Lee, 254 Va. 294, 299, 492 S.E.2d 141, 144 (1997). The Court of Appeals has described the report as “deemed to be prima facie correct.” Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990). See also Jamison v. Jamison, 3 Va. App. 644 (1987).

The important practical distinction is that the Commissioner assists the court through fact-finding and legal analysis, but the circuit court remains the ultimate judicial decision-maker.

Exceptions to a Commissioner’s Report

The Commissioner’s report does not necessarily conclude the dispute.

Virginia Code § 8.01-615 establishes procedures concerning when a case may be heard upon the Commissioner’s report and exceptions to the report. Chapter 23 expressly addresses exceptions as part of the statutory Commissioner process.

This mechanism permits the parties to present objections to the circuit court before the court determines whether the Commissioner’s report should be confirmed, modified, or rejected.

Furthrmore, on appeal, a decree approving a commissioner’s report “will be affirmed unless plainly wrong or without evidence to support it.” Lim v. Choi, 256 Va. 167, 171, 501 S.E.2d 141, 143 (1998); Firebaugh v. Hanback, 247 Va. 519, 525, 443 S.E.2d 134, 137 (1994). As in the circuit court, this deference does not extend to pure conclusions of law. Daly v. Shepherd, 274 Va. 270, 273 (2007) (quoting Roberts v. Roberts, 260 Va. 660, 667 (2000)); Snyder Plaza Props., Inc. v. Adams Outdoor Adver., Inc., 259 Va. 635, 641, 528 S.E.2d 452, 456 (2000). The court is not bound to accept the commissioner’s findings. In Lim, the chancellor had a commissioner file a supplemental report expanding the findings, and the Supreme Court reversed the decree that confirmed it. In Branham v. Branham, 254 Va. 320, 491 S.E.2d 715 (1997), the trial court overturned a commissioner’s finding of fraud in a deed.

The judicial-review process is one of the important safeguards inherent in Virginia’s Commissioner in Chancery system: the Commissioner develops findings and recommendations within the assigned reference, while the circuit court retains authority over the ultimate disposition of the case.

Matters That May Be Appropriate for Referral

The subject of a Commissioner’s reference depends upon the particular litigation and the circuit court’s order.

Historically and under Virginia practice, Commissioner proceedings may arise in equity and other circuit court matters requiring substantial factual development. Depending upon the case and the court’s decree, issues may include:

Accountings

Financial and fiduciary accountings can involve extensive records, disputed transactions, tracing questions, credits, expenditures, distributions, and other factual issues.

Virginia Code § 8.01-608 specifically addresses the referral of accounts.

Real Estate and Property Disputes

Cases involving real property can present detailed questions concerning title, ownership interests, conveyances, liens, valuation, partition, sale proceeds, or related equitable issues.

Challenges to Deeds and Conveyances

A reference may require development of evidence concerning the validity or effect of a deed or other property transfer.

Fiduciary and Estate-Related Matters

Cases involving estates, trusts, fiduciaries, beneficiaries, or disputed financial transactions may present accounting and factual questions suitable for a reference when the statutory requirements for appointment are satisfied.

Domestic Relations Matters

Virginia Code § 8.01-607 expressly contemplates appointments in circuit court cases, including uncontested divorce proceedings, subject to the statute’s appointment requirements.

The issues actually presented to a Commissioner are controlled by the individual case and decree of reference, not simply the general category of litigation.

Joshua E. Bushman, Esq. as Commissioner in Chancery

When appointed by a Virginia circuit court to serve as Commissioner in Chancery, Joshua E. Bushman, Esq. brings substantial legal experience involving matters that frequently intersect with traditional equity practice, including real estate, fiduciary matters, estates, business disputes, and civil litigation.

His role as Commissioner, however, is fundamentally different from his role as an attorney representing a client.

When Serving as Commissioner

Mr. Bushman’s responsibility is to:

  • carry out the circuit court’s decree of reference;
  • conduct the proceeding fairly and impartially;
  • develop an appropriate evidentiary record;
  • consider the evidence and applicable law;
  • make findings within the scope of the court’s reference; and
  • provide the circuit court with the required report.

The Commissioner represents neither the plaintiff nor the defendant.

That distinction should remain clear throughout a Commissioner proceeding.

A Structured Process for Complex Virginia Circuit Court Matters

Commissioners in Chancery remain a useful part of Virginia’s judicial system because certain cases require careful development of extensive records and resolution of detailed factual questions.

The process permits a circuit court to refer defined matters for focused consideration while expressly reserving final judicial authority to the court. Virginia Code § 8.01-610 makes that division of responsibility clear.

For attorneys and litigants appearing before Joshua E. Bushman, Esq., Commissioner in Chancery, the controlling documents in any particular proceeding remain the circuit court’s decree of reference, the applicable provisions of the Code of Virginia, the Rules of the Supreme Court of Virginia, and any additional orders entered by the court.

Virginia Commissioner in Chancery Authority

Virginia Statutes

  • Va. Code § 8.01-607, Appointment and Removal
  • Va. Code § 8.01-608, Referral of Accounts
  • Va. Code § 8.01-609, Duties and Procedure
  • Va. Code § 8.01-609.1, Fees
  • Va. Code § 8.01-610, Weight Given to Commissioner’s Report
  • Va. Code §§ 8.01-611 through 8.01-616
  • Va. Code §§ 8.01-617 through 8.01-619

These provisions appear in Chapter 23 of Title 8.01 of the Code of Virginia.

Rules of Court

Rule 3:23, Rules of the Supreme Court of Virginia, addresses the use of Commissioners in Chancery and proceedings before them, including the Commissioner’s duties following entry of the decree of reference, obtaining evidence, examining witnesses, evidentiary rulings, and preparation and filing of the report.

Selected Virginia Cases

  • Daly v. Shepherd, 274 Va. 270 (2007)
  • Roberts v. Roberts, 260 Va. 660 (2000)
  • Snyder Plaza Properties, Inc. v. Adams Outdoor Advertising, Inc., 259 Va. 635 (2000)
  • Lim v. Choi, 256 Va. 167 (1998)
  • Chesapeake Builders, Inc. v. Lee, 254 Va. 294 (1997)
  • Branham v. Branham, 254 Va. 320 (1997)
  • Firebaugh v. Hanback, 247 Va. 519 (1994)
  • Hill v. Hill, 227 Va. 569 (1984)
  • Brown v. Brown, 11 Va. App. 231 (1990)
  • Jamison v. Jamison, 3 Va. App. 644 (1987)

Information for Counsel and Parties in Commissioner Proceedings

If Joshua E. Bushman, Esq. has been appointed Commissioner in Chancery in your case, counsel and parties should carefully review the circuit court’s decree of reference because it establishes the matters entrusted to the Commissioner.

Communications concerning scheduling, submissions, hearings, exhibits, transcripts, and other administrative matters relating to the reference should be handled in accordance with the Commissioner’s directions and any applicable court orders.

Bushman Law Group

Joshua E. Bushman, Esq.
Commissioner in Chancery

Commissioner proceedings are conducted pursuant to appointment and referral by a Virginia circuit court. Mr. Bushman’s service as Commissioner in Chancery is separate from the legal representation provided by Bushman Law Group. When serving as Commissioner, Mr. Bushman acts in a neutral capacity pursuant to the court’s appointment and does not represent any party to the proceeding.

I