The cases are Boyles v. DSS 1997, Shull v. Commonwealth 1993, DFS v. v. Nordel 1999, Duncan v. Commonwealth 2003, and its reversal, Commonwealth v. Duncan 2004, Jackson v. Marshall 1995, McBeth v. Commonwealth 1999, DSS v. Kennedy 1998, Beardsley v. Clary 1997.
Continue reading "Nine cases on child abuse/neglect law and procedure" »
Six older case notes on how bankruptcy interacts with support, property division, agreement enforcement, and college tuition for children. Case notes on In Re Dill, Webb v. Craighead, Carter v. Carter, In Re Crosby, Lawson v. Lawson, and In Moseley v. Moseley follow:
APPEALS. Some of the confusion about the intricate rules that apply on appeal was perhaps alleviated by the Court’s opinion in Jacob v. Jacob, 6 VLW 1149 (1992). As to the “damages” and costs payable by a losing party, the Court pointed out that there is a statute making it mandatory (§ 8.01-682), but that that is only in certain cases. Sometimes there is interest on them and sometimes not. When the judgment on appeal is “not for payment of any money, except costs,” then it is limited to $100. Attorneys’ fees for this purpose do not constitute costs.
APPEALS--TRANSCRIPT REQUIREMENT--MALPRACTICE TRAP. Lawyers handling appeals found out in June with the announcement of Twardy v. Twardy, VLW 66 (6/9/92) that if counsel signs a statement in the notice of appeal that a transcript will be furnished, then the appellant must furnish and file the entire transcript. Addressing an awkward mechanical problem that has bedeviled appellees on occasion, the court explained that the appellee has a right to rely on that statement as an assurance that the appellee will find an entire transcript in the record from which to designate the parts appellee wants.
APPEALS. The draconian rule of Lee v. Lee, 404 SE2d 736, was apparently fudged to some degree in Kaufman v. Kaufman, 6 VLW 349, where the appeal was allowed despite now-familiar types of procedural "defaults," but without any express acknowledgement that the Court was backing off from the Lee v. Lee rule. For those who have always wondered what happens to the money represented by an alimony award that is reversed on appeal, the question was answered in the second trip to the Court of Appeals of Reid v. Reid, 6 VLW 349. When the husband sued to get his alimony back on remand, the Court of Appeals held that alimony once paid, even though under an invalid trial court decree, is forever lost and cannot be reclaimed.
An ambiguous decree which stated in one place that wife's alimony would end upon her remarriage, and in another place that it would end upon husband's remarriage, was ambiguous enough to deserve correction of this conflict as a "clerical error," nunc pro tunc, the Court of Appeals found in White v. White, 17 VLW 48 (6/11/02).
Continue reading "White v. White: DECREES – CORRECTION OF ERRORS. " »
A lawyer who signed a pleading with a name of another law firm and explained in court that she drafted a Title VII complaint only as a favor to a lawyer in that firm, cannot say now that she did not represent the plaintiff, and it doesn’t matter what she says the Virginia State Bar Ethics Hotline told her, the U.S. District Court for the Eastern District of Virginia at Alexandria says.
When does a judge have a general equitable common-law discretion to award attorneys' fees in post-divorce support modification litigation? Well one time he surely does not have it is when the ex-wife seeks an alimony increase and there is a separation agreement which lets her do that, but it specifically provides for attorneys fees in two named instances: in the divorce, and in the event of a breach. The Court of Appeals acknowledges that earlier decisions interpreting §20-109 have not been consistent in their wording, but the Court says in Rutledge v. Rutledge, 45 Va. App.56, 608 S.E.2d 504, 19 VLW 919 (2/1/05), that it has never even hinted that Subsection C gives a judge any kind of discretionary power to deviate from the express terms of the agreement and assume a discretionary fee-award authority. Fees in the event of breach is one thing, but the Court sees no term in this agreement that allows fee awards when either party seeks to modify support. It was the wording of the separation agreement that gave this woman the right to be in court at all, and the wording of the agreement controls.
Since the therapist privilege statute relating to custody cases was first passed in 2002, some lawyers have noticed with alarm (and sometimes with glee, depending on whom they represent) that the statute allows either party in a custody case an absolute veto over the therapist testifying. It has nothing to do with who is the patient: it matters not that the child is the patient, or that the psychologist is eager to testify. It simply allows each party the right to object and keep the testimony out. Now the Court of Appeals has noticed this too, because a mother who was charged with violating the anti-disparagement provisions of the custody order after a psychologist was allowed to testify over objection about her hateful approach to the father appealed. The Court of Appeals pointed out that this does not involve §8.01-399, which gives the patient or client of any practitioner of the hearing arts a right to object to the use of confidential communications coming in. Rather, it is an amendment to §20-124.3:1. The Court of Appeals points out that the language of this new statute is plain and has no exceptions allowing it to be overridden by considerations of best interests of the child. The court is not allowed, under that statute, to admit testimony concerning a parent that was obtained during the course of therapy. Schwartz v. Schwartz, 46 Va. App. 145, 616 S.E.2d 59, 20 VLW 260 (7/26/05).
NOTE: THE STATUTE WAS REPEALED IN 2008.
The weird and disturbing pronouncement in Street v. Street, 24 Va. App. 2, 480 SE2d 112, 11 VLW 801, 17/2 FLN 22 (1997), that a trial judge’s decision had to be controlled by expert testimony, whatever it said, because it was “uncontradicted,” has been reversed upon rehearing en banc.
Continue reading "Street v. Street: "Uncontradicted" expert does not speak ex cathedra" »
A husband successfully appealed a number of errors in an E.D. case, none of which appear to make significant law, in Taylor v. Taylor, 19 Va. App. 761, 454 SE2d 744, 9 VLW 1076 (2/28/95). The trial court approved a concededly wrong figure by the commissioner for the balance on a mortgage, used a business valuation figure not supported by any of the evidence, charged the husband twice for certain property and then on remand did it again, charged him 54 vice 25 months' rental value, and may have charged him with maintenance costs by mistake.
(No. 90-22926-T, U.S.B.C. at Norfolk), 6 VLW 224. The United States Bankruptcy Court for the Eastern Division of Virginia held that the agreement between the debtor husband and his former wife in their separation agreement to hold one another harmless for the debts each had assumed is non-dischargeable in bankruptcy, because it is "in the nature of alimony." The Court found it clear that the parties intended this mutual hold-harmless obligation to be non-dischargeable, and their agreement can be said to have characterized the obligation as one of maintenance. Though these characterizations in agreements are not necessarily dispositive, this one certainly is.
Many a court clerk will look at anything that says “Final Order,” or “And This Order Is Final,” and treat it as an ended cause, with all that that entails. But what about a final order that disposes of only one claim, by one party, when another claim, by the other party, is still pending? The fact that the judge issued what she called a “final order” gratifying the ex-husband’s petition to eliminate alimony for cohabitation that did not mean that the mother’s simultaneously-pending petition to increase child support (because husband had received a lot of money) was also killed off.
Do Virginia judges make orders about what grade school a kid should go to when the parents don't agree? A Fairfax judge did, and the Court of Appeals affirms. The parents had joint custody, but the judge decided that father was wrong in enrolling the son in a school in his neighborhood when mother's local school got higher test scores, she had the "primary residence," and they had agreed before separation on that school. The trial judge apparently saw this as a contempt matter for enforcement of the prior custody decree. But even though the trial judge erred in calling her current school-choice order a "sanction," what she was really doing in Armstrong v. Hoover, unpublished, 20 VLW 1530 (4/11/06) was exercising her modification authority under Code § 20-108, the Court of Appeals says.
A Virginia Beach judge probably got more than he bargained for when he gamely plunged into the divorce of a couple of Iranians. Among the many seldom-seen issues it brought up were what to do when one spouse files a bigamy charge just before the final equitable distribution hearing (O.K. to reject it), and how much a judge is obligated to let grossly questionable evidence in just because the other party doesn’t properly object to it.
A trial judge refused to give a husband credit for his post-separation payments on the second mortgage on the former marital home, and the Court of Appeals affirmed, in Noce v. Noce, unpublished, 20 VLW 1530 (4/11/06). The reasons given were (a) that the husband never showed that what he had used after separation to discharge this mortgage liability were not marital funds, (b) that he had used the property exclusively himself after separation, and (c) that his records for the payments were inadequate. As to grounds, the Court of Appeals also affirmed the trial court’s judgment that the man’s adultery proof against his wife was insufficient. It was this: that after he discovered he had genital herpes, and confronted his wife, she said that she “didn’t know he had it,” and husband inferred that the “he” referred to was her boy friend. His only other evidence was proof that after separation the wife had met another man in her apartment more than once. This, the trial court said, does not rise above the level of mere suspicion and conjecture.
The perennial question of whether a post-trial order improperly tries to modify a final decree beyond the 21-day deadline, or only enforces it, was reviewed in the context of a Prince William judge’s extending the deadline he had set for a husband to buy the marital home from the wife. It is true that the court granted this extension on May 25 after a March 15 decree. Apparently the extension was only put into the formal new decree on July 15, but it was all right to extend that deadline retroactively when the judge realized his oversight. It still was not a modification but only an enforcement, because this extension was the only way to preserve the rights that had been decreed in the original decree and ensure compliance. Williams v. Williams, unpublished, 20 VLW 1504 (4/11/06).
PROPERTY DIVISION – VALUATION – APPEALS – UPDATE ON REMAND. In an unpublished opinion in Harris v. Harris, 20 VLW 1155 (2/21/06), the Court of Appeals held that it was reversible error for a trial court to refuse to revise the valuation of jointly-owned real estate when the case was back on remand after appeal. Using the valuation proved at the original trial date was an abuse of discretion, since that valuation was over three years old, and all of that time the asset had been in the hands of one of the parties, in a greatly raising market.
The Court of Appeals in Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615, 21 VLW 265 (8/1/06), revisited a subject that has been kicked around several times before, the re-valuation of real estate that has increased dramatically in value while the litigation went on. In doing so it provided welcome clarification on just what the “law of the case doctrine” is and is not.
A criminal statute against sodomy, §18.2-361(A), is constitutional when applied to acts involving children aged 16 and 17, the Court of Appeals holds in an opinion by Judge Haley in McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754, 21 VLW 67 (6/13/06). The defendant, aged 45, argued that the teenagers involved were adults under the definitions implied by Code §18.2-63, which prohibits carnal knowledge of a child 13 or 14 years old, and §18.2-371, which makes sex between people over 18 and children between 15 and 17 a misdemeanor. However, the Court recognizes no variation in the definition of “adult,” which it says is defined in Code §1-203, §1-204 and §1-207 as a person 18 years or older except where a statute specifically uses a different definition. It notes that the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003) “made quite clear that its ruling did not apply to sexual acts involving children.”
The much-publicized dispute between two lesbians joined in a Vermont civil union, over the child one of them bore by artificial insemination, was decided by the Virginia Court of Appeals in an opinion that is economical, straightforward, focused and direct, which concentrates on the PKPA issue. In Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 87, 637 SE2d 330, 21 VLW 746 (11/28/06), the appellate court reversed the trial court determination that one woman was the sole parent because that Virginia trial court lacked child custody jurisdiction under the federal Parental Kidnapping Prevention Act, 28 U.S.C. §1738A, and was required to accord full faith and credit to the Vermont custody decision giving one woman custody and the other visitation.
The lawyer who may have been wise to take his case to the three-judge circuit court still had three of the disciplinary charges upheld, and thus he appealed to the Virginia Supreme Court in Barrett v. VSB, 634 S.E.2d 341, 212 VLW 472 (9/15/06). The first certified charge concerned the lawyer’s own divorce suit against his wife, and a subpoena he issued to her former employer because her earning capacity was an issue. He sent two letters to the employer concerning the inconvenience and expense that appearing in court would mean, and offered to drop the subpoena if the employer would withdraw a claim for an attorney’s lien that somehow this employer had against him. The holding that this violated Rules 4.4 and 8.4(b) was affirmed. The second charge was that the lawyer called the wife’s counsel as a witness because the lawyer, Barrett, was charging that wife’s counsel had a romantic relationship with her. Apparently, as soon as opposing counsel denied this, Mr. Barrett abandoned his attempt to call his opponent as a witness. The decision that this violated Rules 3.1 and 3.4(j) was affirmed. The lawyer’s argument that a lawyer who is representing himself cannot be held to legal ethics standards of conduct was rejected, with the explanation that when a lawyer represents himself he is still acting as a lawyer and the disciplinary rules still apply. The third and most difficult issue concerned charges of incompetent representation that the Bar chose to prosecute notwithstanding that it had already been the subject of malpractice litigation. Barrett first claimed that he was immune from liability because he practiced as a PLLC. The PLLC statute, however, specifically declares PLLC-member attorneys personally liable. The Rule 1.1 charge of providing incompetent representation was not found to be that simple. The lawyer admitted that his failure to file his client’s personal injury suit within the statute of limitations was negligent. But, the Supreme Court points out, that is not per se a Rule 1.1 disciplinary violation. Nor is legal research that results in a wrong conclusion enough, in itself, to violate Rule 1.1. No attorney error, standing alone, is per se clear and convincing evidence of incompetent representation. Also charged was the lawyer’s failure to read responsive pleadings timely enough and his delay in withdrawing his special plea of immunity, but the Supreme Court finds that those do not support the finding of incompetent representation here. Nor was the statute of limitations error a Rule 3.1 violation. It is not the same thing as taking a frivolous position.
How much discretion do parents have to see to their own children’s discipline, reform and protection when something embarrassing and inappropriate happens within the home? Apparently absolutely zero, according to two Court of Appeals criminal cases – unpublished but with dissents – involving a mother and father who got the book thrown at them for not immediately inviting the social workers, etc., into their home when two boys sexually abused their younger sister.
CHILD SUPPORT – JURISDICTION – INTERSTATE – UIFSA – MODIFICATION AFTER ALL LEAVE STATE – VOID ORDER -- REMEDY – REIMBURSEMENT OF CHILD SUPPORT PAID UNDER VOID ORDER. If there is one elementary and cardinal principle, even under the pumped-up personal jurisdiction provisions of the Uniform Interstate Family Support Act (UIFSA, 20-88.32--.82), it is that personal jurisdiction over the obligor is required in order to do anything but enforce a support order, and thus an increase-seeking payee must sue where there is continuing exclusive jurisdiction or in the payor’s own state. And another cardinal rule under UIFSA is surely that when everyone leaves the state, jurisdiction no longer continues, but ends. The Fairfax County Circuit Court disregarded both these rules and granted a no-longer-resident obligee an upward modification of support. The Court of Appeals reversed that, but the majority refused to give this payor an order reimbursing child support collected under this void ultra vires order. Dissenting Judge Benton urged that this was wrong, in that an order made without jurisdiction is void ab initio, and a party deprived of property under such an order has a right to be restored to the prior position and made whole. He argues that Reid v. Reid, 245 Va. 409, 429 S.E.2d 208 (1993), offers no rationalization for the majority’s position because the order in that case was not void, but just erroneous and merely voidable. Nordstrom v. Nordstrom, 50 Va. App. 257, 649 S.E.2d 200 (8/21/07).
In what would seem on the surface to be a fairly common-sense case, the Court of Appeals reversed a trial judge who (A) ordered the husband to pay the mortgage on a house husband owned while wife and child were occupying it and credited those payments against the child support he had ordered, but then (B) failed to change this order after the house was damaged by fire and could no longer be occupied. What exactly the judge did in Stewart-Payne v. Payne, 22 VLW 1061 (unpublished, 1/28/08), was to order the husband to keep paying the mortgage on the uninhabitable home and receive a credit toward his child support for doing so – thus not paying in cash the full amount of child support to the wife. (This arrangement was part of a pendente lite consent order.)
The high-earning doctor in McKee v. McKee, 22 VLW 1061 (unpublished, 1/29/08), then had the nerve to argue that the wife’s other claimed expenses were way too high. He was challenging particularly a $627 car payment, $750 for savings, repairs that were supposed to be taken care of by the refinancing, $950 groceries with $300 meals out, $345 gasoline, $186 cable and $60 for financial advice. The court majority said that wife has the burden of supporting the figures she claims and she presented insufficient evidence to support any of these expenses, so it was error to grant alimony based on them.
The Court of Appeals in McKee v. McKee, 22 VLW 1061 (unpublished, 1/29/08), faced an abuse-of-discretion issue: whether the alimony amount was beyond wife’s need and above husband’s ability to pay. And under this heading there’s an immensely interesting discussion of the issue, never quite resolved in the Gamble case (14 Va. App. 558, 421 S.E.2d 635 (1992)) in any truly understandable way, of whether a spouse can receive real estate in a property division and then come in and ask for alimony to pay the debt on it – i.e., the ongoing mortgage payments. The Court of Appeals majority cuts through the ambiguities and contradictions and forthrightly declares that the crucial wording in Gamble means exactly what it says. A court can’t award a double-dip by awarding the house as property and then taking the mortgage payments into account when fixing a level of spousal support. One who takes property takes the debt on it as well.
For those who are convinced, after reading and taking seriously a number of published opinions from past years, that payee imputation is just not ever going to happen, the Court of Appeals astounds and amazes again. In a remarkable unpublished opinion of 22 pages with a dissent, the appellate court, reversing a trial court, is either remarkably mean to the mother or extraordinarily fair to the father, depending on how you see these things.
An unpublished case that reversed an alimony award demonstrates how income imputation has become such a minefield not only for lawyers but for trial judges (who at least can’t be sued for malpractice, but only be reversed), with its shifting burdens and standards of proof – not the same thing remember – that one wonders sometimes why counsel even undertake it any more.
When deterioration of a parent-child relationship is cited as the reason for a custody decision pushing that parent even farther out of the child’s life, does it matter if the degradation of the relationship is in significant part attributable to the parent who benefits by the change? Maybe so, maybe not, as all custody cases are indisputably fact-tied and individually different. With that said, an unpublished case called Sirney v. Sirney, 22 VLW 1011 (12/27/07) is enormously instructive. To sum up with brutal brevity, the trial court held that the mother, living on the opposite end of the country, had other distractions and failed to “put her children first.”
. In Florio v. Clark, 22 VLW 679 (10/30/07), one of those unpublished opinions that has a dissent, and one which has now had rehearing granted on 12/4/07, the Court of Appeals majority appeared to have forgotten entirely that you can’t give away people’s children and award them to somebody better just because it might be in the child’s best interests.
Continue reading "Florio v. Clark: CUSTODY – THIRD PARTIES – MERE “BEST INTERESTS” STANDARD. " »
A custody decision that might look like a curious concatenation of bootstrappings to some was upheld by the Court of Appeals. In D’Ambrosio v. Fowler, unpublished, 22 VLW 1114 (2/19/08), the parties had shared custody, which was apparently a joint-custody arrangement, from the 15th month of the child’s life until the obtaining of “school age” (whatever that means today), even though the mother lived in New York and the father in Virginia. When the mother said she now wanted primary physical custody, the trial court of course reviewed and gave due regard to all the statutory criteria before holding that the child’s starting a religious school in New York (both the New York and Virginia schools being held equal), along with the relationship with a ten-year old sister, and the mother’s “superior ability to assess the child’s needs” by looking at the child-custody dispute more accurately and reasonably, justified granting her what she wanted.
In Thomas v. Thomas, 22 VLW 1012 (1/15/08), unpublished, the Court of Appeals explains that it was all right for a trial judge to reject as insufficient the husband’s evidence of repairs he had made, after separation, to the former marital home. Though one wonders how a real-world spouse could come up with some of the kinds of evidence that it appears are required, a trial judge here would have no business accepting husband’s mere testimony to his expenditures without any invoices or receipts, and with no proof of exactly how these expenditures added value to the house before its sale.
You can certainly learn some things from an unpublished opinion in Barrett v. Gibbs-Barrett, 22 VLW 1145 (2/26/08). You can probably learn that the law is not at all what you thought it was. A man paid mortgage payments for 15 years after separation, but was it error for a trial court to refuse to consider those payments (principal-debt-retirement part only, of course), separate property? No indeed, the Court of Appeals tells us, because it was paid under some sort of agreement – not a written agreement, to be sure, but an agreement.
Who knew there was a rule on this? And who would have known that this was the rule? In a case that brings to mind The Return Of Martin Guerre, or the American knockoff known as Somersby, set right here in old Virginia, or better yet, the two mothers swearing before King Solomon that each is the real one, a circuit court last year had a really unusual situation before it. A husband and a wife each came in carrying a signed separation agreement, of which one had to be genuine and one a fraud.
A wife who left her husband and came to court on a theory of “constructive desertion” did not manage to sell her theory to either the trial court or the Court of Appeals, and the divorce granted to the husband on grounds of her desertion was affirmed in Allen v. Allen, 22 VLW 677, unpublished (10/23/07). The wife’s theory, when she got to the stage of final argument at trial, was that husband had sexually abused a minor family member, and the thought of that made her so sick that she could not continue to live with him without endangering her life and health. The first problem with that theory, as an opinion by Judge Clements of the Court of Appeals points out, was that she learned of the abuse allegation and lived with her husband for the next seven years in a state of full marital cohabitation, and thus whatever husband did was condoned.
No matter how many times the Legislature tries to legislate away that capriciously sadistic malpractice trap, the rule of Lee v. Lee, 12 Va. App. 512, 404 S.E. 2d 736 (1991), the Court of Appeals constantly reminds us that it’s still there. An appealing wife thought she had assured compliance with Rule 5A:18 by endorsing the decree “Seen and Objected To For Reasons Previously Stated.” However, as all of us know who read the appellate reports, that just won’t do. This was a matter of common sense in this case: though she might have previously stated these objections somewhere, she made the almost-always-fatal mistake of not having a transcript of the Commissioner’s hearing, nor of the oral argument made to the trial court when she took Exceptions to the Commissioner’s decision. As she had failed to preserve the issues, her appeal was denied in the unpublished opinion Williams v. Williams, 22 VLW 677 (10/9/07).
A husband’s interesting argument in McKee v. McKee, 22 VLW 1061 (unpublished, 1/29/08), that a spousal support award was largely based on expenses that were included in the child support award was thrown out under Rule 5A:18 and Rule 5A:20(e). Most frighteningly of all, the Court of Appeals adds that husband waived his rights under Rule 5A:18 even though he stated the child-support-alimony overlap question clearly and at some length in his objections to the final decree, because he then “did not elaborate” (“failed to specify any basis for his objection,” and did not re-raise it in a Motion to Reconsider). The twenty-one words of his objection on this point are dismissed as “bare notation of an objection.”
CHILD SUPPORT ENFORCEMENT — CIVIL RIGHTS ACT SUITS – DCSE LAY-EMPLOYEE PETITIONS – UNAUTHORIZED LAW PRACTICE – ABSTENTION – STATE GOVERNMENT IMMUNITY. The federal Civil Rights Act Suit claiming that it was unconstitutional for the Virginia Department of Child Support Enforcement to file contempt motions, signed by non-lawyer employees rather than attorneys, against alleged deadbeat parents, was thrown out by the Western District in Briggman v. Commonwealth, 22 VLW 949 (12/21/07).
CHILD SUPPORT – REDUCTION PETITION – IMPUTATION TO PAYOR – VOLUNTARY UNDEREMPLOYMENT – NEED TO RETAIN CUSTODY AS PAYOR’S EXCUSE – REDUCTION PETITION. The Court of Appeals handed down an important and unusual payor-imputation case known as Broadhead v. Broadhead, 51 Va. App. 170, 655 S.E.2d 748, 22 VLW 1033 (1/29/08). It is remarkable for several things, one being that a trial court holding of “voluntary underemployment” of a payor was reversed.
Any case in which the Supreme Court reverses the Court of Appeals is news, and this criminal case is included because it involves a testing process that family lawyers often relate has been used in their custody and other civil cases which involve, with disturbing frequency, child sex abuse claims. In Billips v. Commonwealth, 48 Va. App. 278, 630 S.E.2d 340 (2006), the Court of Appeals had upheld a conviction of criminal solicitation and forcible sodomy, all relating to a child under the age of 13 years. The circuit court had considered a pre-sentence report which contained a “psychosexual evaluation” under §19.2-300, as to which the defense counsel had objected as it included the testimony of a “licensed clinical social worker” who presented the report as based in part on inadmissible polygraph test results and on testing by a device which its purveyors call the “Plethysmograph” – which is usually called in family law circles by a name the lawyers know how to pronounce.
After some Virginia appellate opinions approving belated alimony as a remedy when the other spouse defaults on an obligation to cover a marital debt assumed in exchange for some quid pro quo in a separation agreement, most Virginia practitioners assumed they knew just what to do when a bankruptcy discharge of that same assumed obligation is then sought: go immediately into court to seek a belated spousal support award as a remedy. But they would all be wrong, according to the recent opinion of the Court of Appeals in Rogers v. Rogers, 51 Va. App. 261, 656 S.E.2d 436, 22 VLW 1082 (2/12/08). What’s wrong with it now? If the husband (as it was in this case) has not yet actually received a discharge of the debt, then it would be speculative to assume he would get it – even though the debt specifically assumed by and assigned to him has still never been paid, bankruptcy has been filed for, and that debt specifically listed by the debtor.
When it comes to the intersection of divorce law and inheritance law in Virginia, you can learn some things you never knew, and probably never even suspected, from a recent remarkable Supreme Court opinion in Purce v. Patterson, 654 S.E.2d 885 (1/11/08). It was a hard case. It did not involve a widow, but it certainly involved a widower, and he did not come off very well. This was one of those Statement of Fact cases, and according to the judge’s Statement of Fact, this Westmoreland County husband had been a thorough rotter, making nothing but negative contributions to the marriage. In a unanimous seven-judge opinion by Senior Justice Lacy, the Supreme Court went into the nature of desertion and abandonment in divorce law and in inheritance law, analyzed each, and found them to be markedly different. This served to justify upholding the trial judge’s decision to disqualify this widowed husband from having his statutory share of his late wife’s estate under §64.1-16.3(A) on grounds that he abandoned her.
