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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.
In Jenkins v. Winchester Department of Social Services, 6 VLW 350, the Court of Appeals held that a mother's rights to her child could be terminated before she even had a chance to bring the child home from the hospital after birth, on the ground that the way she had neglected her other children, and the disorganized household she maintained, would necessarily constitute abuse and neglect, to which the child should not be subjected for any time at all.
In Cooke v. Cooke, 5 VLW 1195 (Va. Ct. App., 5/21/91) a trial court's refusal to award an immensely wealthy wife any of her attorney's fees was reversed. The Virginia Court of Appeals found it important that the wife was attempting to enforce her child's right to support, rather than her own right to alimony. The trial court, the Court of Appeals explained, had no right to deny a wife attorney's fees on the ground that she was absurdly rich. While her ability to retain counsel is certainly a factor, the Court says, it is an abuse of discretion to base denial of fees solely on that factor.
In Poliquin v. Poliquin, 406 S.E. 2d 401, 6 VLW 71 (6/18/91), the Court of Appeals apparently held that the husband's adultery causing the divorce was a permissible factor to take into account in setting counsel fees. As for fees awarded for work on the litigation in another state, the award was reversed, but only because counsel did not fully document how much of this work was necessary to the Virginia litigation.
In Re Ferrebee (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.
In another trip to the Court of Appeals for Mr. and Mrs. Kaufman, ___ Va. App. ___, ___ S.E. 2d ___, 6 VLW 349 it was held that a lump-sum award in addition to periodic spousal maintenance was no good in a case where the wife also got everything else. No special justification was shown.
A lump sum was considered all right in Poliquin v. Poliquin, 406 Va. App. 401, ___ S.E. 2d ___, 6 VLW 71, because of the number of special factors that the judge considered and listed as having been considered, but it was stressed that the judge had to also give a one-dollar reservation for future periodic alimony.
Another trip to the Court of Appeals for Mr. and Mrs. Westerberg (see 9 Va. App. 248, 386 S.E. 2d 115) resulted in a holding that the judge on remand was not authorized to make a lump-sum award of spousal support based only on evidence of the value of separate property that the other spouse held. ___ Va. App. ___, 405 S.E. 2d 638 (1991).
The Supreme Court reversed Antonelli v. Antonelli, 11 Va App 89, 396 SE2d 698 (1990), in which the Court of Appeals had finally found a case of good-faith job change. Though the father said he had changed from straight salary with one stockbroker to commission with another in order to better his children's future along with his own, and then lost heavily in the stock market crash, the Court severely lectured him that he had gambled and lost, and would get no reduction and have to pay all arrears on the original amount. See also Strailman v. Strailman , 6 VLW 438.
In the unpublished ruling on the case of Redskins owner and professional horse breeder Jack Kent Cooke (Cooke v. Cooke, 5 VLW 1195 (Va. Ct. App., 5/21/91)), some important rulings were made. The Court rejected the wife's argument that a child support award was not appropriate in view of the husband's enormous wealth and the baby's supposed entitlement to funds enabling her to preserve the standard of living to which she would like her to have become accustomed had the marriage survived. The Court observed that many of the expense items claimed for the baby daughter might well be appropriate in later years as the child matures and has social contacts and activities, but that child support awards must be based on current circumstances, being modifiable on the basis of future events.
The Virginia Court of Appeals held in Milligan v. Milligan, 6 VLW 195 (7/23/91), that the legislative adoption of tabular guidelines is in itself enough "change of circumstances" to justify upward modification of child support.
In Alexander v. Alexander, 406 S.E. 2d 666, 6 VLW 147, it was again emphasized how important it is that a trial court determine the "presumptive amount" from the guideline charts before determining anything else. The case was reversed for failure to resort to the guidelines before determining that the parties' recent written separation agreement controlled as to the amount of child support. Upon remand, the Court emphasized, the separation agreement provision may be a factor considered upon the decision whether or not to vary from the guideline amount.
However, from Scott v. Scott, 6 VLW 350, it looks like the agreement cannot even be a factor.
And yet in Watkinson v. Henley, 6 VLW 429, where a father was not invoking the SA to keep child support low, but seeking to escape a SA provision that tied him to a support figure above guideline, the trial judge was reversed for following the guideline rather than regarding the court as bound by the agreement.
Case summary by John Crouch
CRIMINAL LAW — CONSTITUTIONAL LAW — FORNICATION AND POSSIBLY ANY OTHER "INTIMATE RELATIONSHIP" PROTECTED. The Virginia Supreme Court struck down a statute making fornication a crime, citing Lawrence v. Texas, the U.S. Supreme Court decriminalizing sodomy. 607 S.E.2d 367 (1/14/05, 31 FLR 1137). The ruling did not come in a criminal prosecution, so the state was not involved. This was a suit for a tort of transmitting a sexual disease, and the defendant argued that the plaintiff could not recover because she had been engaged in the crime of fornication at the time the injury occurred, and in fact the injury was caused by her commission of that crime.
Continue reading "Martin v. Ziherl: Va. court decriminalizes fornication" »
There should be no surprises for anyone in the Court of Appeals Civil-Service retirement decision at 20 VLW 1530 (5/09/06). A decree gave a wife 50% of husband's "gross retirement annuity benefits (prior to any deduction therefrom)." When the ex-wife got less than that because before retirement his second wife didn't consent to doing without a survivor-benefit-plan election, the Court didn't have to get into a lot of OMB taxonomics and terminologies to divine that this order meant exactly what it said, and no matter what OMB felt like saying, husband's obligation was exactly that. Husband's argument that the SBP deduction was not actually a reduction (given that OMB apparently did not show the reduction on his paycheck stubs) was rejected, as was his argument that all he did was remarry and he shouldn't be punished for that. The trial judge when ordering him to pay up had full authority to do so under Code § 20-107.3(K)(4), to effectuate the intent of the 1996 Final Decree.
