Virginia Family Law Appeals

APPEALS – EVIDENCE – STANDARD OF REVIEW – STANDARD OF PROOF – SUFFICIENCY OF EVIDENCE – MOTION TO STRIKE/APPEAL DISTINCTION.

Klein v. Klein, 49 Va. App. 478, 642 S.E.2d 313 (3/27/07).
An opinion bristling with technical abstractions in the unsuccessful appeal of a family law case does not really make family law, but it does send a woeful message to appellants clear across the spectrum. If they don’t do their homework, cudgel their brains, reflect, cogitate, and talk like a pettifogging casuist, they had better not attempt appellate litigation. It reinforces the received wisdom that the law is still a learned profession with extremely intelligent gatekeepers who know how to separate the wheat from the chaff, the sheep from the goats, and laid-back lawyers need not apply. The issue at trial was, originally, whether the husband was owed a management fee, payable by the wife, under the terms of their separation agreement. What was appealed was whether the trial judge should have granted a motion to strike that claim. The appeal was dismissed and remanded because the appellant husband’s “Question Presented” failed to preserve the issues of applicable standard and sufficiency of evidence.

JUVENILE AND CIRCUIT – CONTINUED EXISTENCE OF JDR PENDENTE LITE SUPPORT ORDER – NONSUIT IN CIRCUIT COURT — THE RESULT OF DIVORCE NONSUIT – §20-79 CONSTRUED.

The concurrent-jurisdiction overlap between juvenile and circuit courts is always good for tangled procedural situations and lengthy appellate-court analyses. In one of those cases in which the circuit court grants a divorce saying that it leaves the matters of child custody, child support and alimony alone so that the juvenile court can handle them, the Court of Appeals has a number of instructive things to say. In Ipsen v. Moxley, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 1392 (4/10/07), it was held that the support order from the juvenile court that was shoved aside when divorce proceedings were filed persisted. On this appeal the Court of Appeals held that the nonsuit of the divorce case “restores authority” to the JDR court support order that existed before the divorce case was filed.

EVIDENCE – WITNESSES – CONSTITUTIONAL RIGHT TO CROSS-EXAMINE – VIOLATION BY TIME LIMITS – SEPARATION AGREEMENTS – APPEALS – WAIVER AND SAVING OF POINTS – EXCEPTION TO RULE REQUIRING PROFFERS.

A case in which an expert witness testified as to the genuineness of a handwritten separation agreement that the wife offered in evidence gave rise to quite an important ruling on trial practice matters by the Court of Appeals. The wife had a handwriting expert to back up her document when she offered it as controlling in an equitable distribution trial, and the husband’s lawyer wanted to cross-examine that expert and another of wife’s witnesses. Whether this agreement had in fact been signed by the husband was, the Court of Appeals said, the single most relevant fact in dispute, and cross-examination is a fundamental right. Accordingly, the trial court abused its discretion by refusing to allow any cross-examination. Apparently the court did this as a matter of time limitations to allow an exceedingly short E.D. trial. The Court of Appeals seems to say that the husband was not deprived of a constitutional right, but that an error of this type can never be harmless as it was arbitrary limitation of the right to cross examine on a relevant matter. These are fundamental common law and statutory procedural rights basic to the adversary system, and for that reason the husband’s error was saved even though he did not make a proffer of the anticipated testimony, and it is not necessary to make a finding of prejudicial error. This was abuse of trial court discretion as a matter of law. Campbell v. Campbell, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 1393 (4/10/07).

EVIDENCE – CRIMINAL ISSUES – EXPERT WITNESSES – LICENSED PROFESSIONAL COUNSELOR – PSYCHOLOGICAL DIAGNOSIS.

The Fitzgerald v. Commonwealth case, at 48 Va. App. 271, 630 S.E.2d 337 (2006), was upheld on appeal by the Virginia Supreme Court at ___ Va. ___, ___ S.E.2d ___, 21 VLW 1147 (4/20/07). The Supreme Court agreed with the Court of Appeals that a “licensed professional counselor” testifying as an expert witness in a criminal trial on §18.2-370.1 and §18.2-67.2, for taking indecent liberties while in a custodial relationship, can give a psychological diagnosis that a victim of child molesting is suffering from post-traumatic disorder. The objections that only a psychiatrist or psychologist can give such expert diagnoses about mental disorders and the DSM-IV was again rejected.

PATERNITY AND CHILD SUPPORT LIABILITY – BEYOND THE GRAVE – EXHUMATION FOR DNA TESTING – ILLEGITIMATE CHILD’S RIGHT TO PROVE DESCENT FOR CLAIM AGAINST ESTATE.

Martin v. Howard, ___ Va. ___, ___ S.E.2d ___, 21 VLW 1449 (4/20/07). The Supreme Court admits that the 1997 statute, §32.1-286(C), was passed for the express purpose of reversing its holding in Garrett v. Majied, 252 Va. 46 (1996), that courts had no jurisdiction to order bodies dug up so an illegitimate child could prove paternity. Since the statute is there, it mandates exhumation when the illegitimate child or mother of same demands it. The trial court thought that it had discretion to deny such orders, but there is no such discretion in the statute. The petitioner is a “party attempting to prove” parentage for §64.1-5.1 and 5.2 inheritance purposes, that is all there is to it. Thus a woman who sued for exhumation of her supposed father’s body so as to seek a share of his estate had an absolute right to get that result.