Virginia Family Law Appeals

Prizzia case breaks ground on custody/support jurisdiction, property

This is the first part of our state bar Family Law News case note about Prizzia, the case about everything. Today we'll introduce the case and detail the holdings related to child custody and support. Tomorrow, the property-division parts of the case.

CUSTODY JURISDICTION — UCCJEA — CHILD SUPPORT JURISDICTION CREATED OUT OF CUSTODY — EVIDENCE AND PROCEDURE — TELEPHONIC TESTIMONY — FUGITIVE DISENTITLEMENT DOCTRINE — PROPERTY DIVISION — MARITAL AND SEPARATE, GIFTS — VISITATION COMPLIANCE AUTHORITY — CONDITIONING EQUITABLE DISTRIBUTION ON COMPLIANCE — PENSION DIVISION — MARITAL SHARE OF DBP AND DCP — CREDITS AGAINST CHILD SUPPORT OBLIGATION — GUIDELINE DEVIATIONS — WRITTEN FINDINGS REQUIREMENT — DAY CARE EXPENSES: SUFFICIENT EVIDENCE. The Court of Appeals in Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461 (4/12/11) made so many important legal rulings that all that can be done in this small space is to summarize them right at the outset, note a few curious matters raised and explain a little about the fact situation. It is not necessary, for such treatment, to attempt to describe in detail the tangled and unusual fact situation that gave rise to all these rulings. Readers are referred to the full court opinion, cited above, to get all that straight. Basically the wife, who did not want to return from a Christmas visit of the whole family to Hungary, stayed there with the child after the husband returned to Virginia and sued him for divorce and custody in the Hungarian courts. Husband then promptly sued for divorce and custody in Virginia, where the family had lived for the past year and a half, until the Christmas holidays. The trial court got around to ruling about eight months later that Hungary properly had jurisdiction over all issues but property, and declined to exercise whatever jurisdiction it might have. It set a hearing on property division and alimony to take place after Hungary had granted a final decree. What the Hungarian court decreed about two and a half months after that was a divorce and custody and visitation. When husband sought a ruling on all these issues in Henrico County, wife stayed away but the court let her testify by telephone deposition de bene esse. Sticking to its guns, though, the trial court dealt only with property division, child support and alimony. The resulting appellate rulings in this case include some real surprises, which will be news to many lawyers.

 

— UCCJEA: In fact, the Court of Appeals says, the trial court did have jurisdiction to make an initial custody determination, and its decision to decline and defer, even temporarily, to Hungary was inconsistent with the UCCJEA. Virginia was the home state when husband filed, under the “Recent Home State” rule: the child had been living in Virginia for some time, and was less than six months gone (§20-146.12(A)(1)). And for Hungary’s exercise of jurisdiction to be controlling here, it would have to have been “in substantial conformity” with the UCCJEA, and it was not, because it disregarded Virginia’s recent-home-state status. Nor could Virginia defer without having conducted the statutorily required forum non conveniens analysis under §§146.4(B) and 146.18.

— CUSTODY JURISDICTION PRODUCES SUPPORT JURISDICTION: Then, in a truly surprising bootstrapping move that throws into question everything that has been taught, since the first UCCJA, URESA, etc. came along, about custody jurisdiction and support jurisdiction being different animals, hermetically sealed compartments and never the twain shall meet, the Court of Appeals said that because the trial court had custody jurisdiction it therefore “had concomitant jurisdiction to order child support.” And not only that, but it also had “equity jurisdiction,” because the filing was originally one for divorce (citing §16.1-241(A)(3), the Juvenile Court Empowerment Statute). Yes, the Court nicely and patiently explains, when a filed divorce case includes custody and support issues, even if the same court does not end up exercising jurisdiction over the divorce itself, it retains jurisdiction to award child support as that is an “equitable concomitant” to custody jurisdiction. The suspension of jurisdiction’s exercise by the “decline and defer” decision of the trial court means that the wife’s support award couldn’t be retroactive, to the date wife filed in Hungary.

 

— CHILD SUPPORT REDUCTION CREDITS AND CHILD SUPPORT EVIDENCE (NO MERE TESTIMONY): And whilst on child support, it is incumbent on one to note some really important rulings the Court made about child support which had nothing to do with international issues. The husband had made some payments for private school and for English lessons, which the judge credited when setting his child support. And there was nothing wrong with that, the Court of Appeals explained when wife’s counsel argued that these were some of those highly-disfavored “non-conforming payments.” No, the Court of Appeals said, you can’t very well have non-conforming child support payments where there has been no child support order already in place for them to not conform to. He made these payments that he wanted credit for before all this support hearing business came on. And although wife wanted credit for her rather outrageous day care expenses, including a nanny who cost her more than her total earnings, the trial court didn’t have to count those because she didn’t produce sufficient credible evidence, which she has the burden to do. The fact that the statute says you shall include day care expenses in the calculation doesn’t mean a payee can throw any figure out there, and support it with nothing but her oral testimony. That’s right, wife’s mere testimony about her day care and nanny expenses was insufficient proof as to the amount, and certainly as to the reasonable and appropriate amount. In fact, she had an obligation to show whether the kids were attending the public school which provided free child care options, and if not, why not.

— APPEALS — FUGITIVE DISENTITLEMENT — EVIDENCE — TELEPHONE TESTIMONY: Now the wife wasn’t about to come back from Hungary to participate in her divorce litigation, and the trial court was asked by the husband’s counsel to apply some “fugitive litigant remedies,” and require that she appear in person to represent her interests, or even better, that her case be dismissed and she not be allowed to participate in any other way. But the trial court had discretion to allow her to appear and participate by telephone rather than in person, and the Court of Appeals upholds that. Insofar as there is a fugitive disentitlement doctrine, that remedy is a dismissal or a complete bar, but the doctrine is discretionary, and it doesn’t authorize courts to “erect a complex pyramid of varying degrees of particular sanctions” required for specific situations. Nor does it confer any right on the non-fugitive party, since the right belongs to the court itself, to vindicate its dignity and authority.

— PROPERTY DIVISION AND CUSTODY (VISITATION) ENFORCEMENT: Now the wife, staying safely in Hungary all this time, and taking her appeal to the Virginia courts, did not afford the father in Virginia his court-ordered visitation with the kids. But when the trial court got punitive about this, and decided it would condition the wife’s receipt of her share of the marital property on visitation compliance, it exceeded its authority, the Court of Appeals says. That’s right, though trial courts have discretion to determine how divorcing parties’ respective shares of the marital property will be paid out, they can’t mix custody law and property division law like this. Divorce jurisdiction is purely statutory, and if the General Assembly had wanted judges to be able to enforce visitation that way, they would have said so.

 

Left-behind parent coming to Va. for UCCJEA case can't get served here or incur Va. jurisdiction

CUSTODY – UCCJEA – CHILD-SNATCHING REMEDIES – “INCURRED PERSONAL JURISDICTION” CLAIMS – IMMUNITY FOR PLAINTIFF.  A wife coming from Belgium to get her wrongfully removed child back by invoking the UCCJEA in Harrison v. Harrison, 58 Va. App. 90, 706 S.E.2d 905 (4/5/11), had far better luck than did the father in Sasson v. Shenhar, who tried the same thing in the same local trial court, adding a Hague Convention claim as well, and was told he had incurred personal jurisdiction thereby, with all that that entails.  The Court of Appeals finds the matter simple enough in this case involving Americans residing in Belgium — a wife who decided she would like to stay there, and a father who came here, didn’t return the children after a visit when wife came to claim them, and served her here with Virginia divorce papers when she came here to litigate for a UCCJEA claim.  The fact situation was more complex than that, of course, with the children being registered for school in Belgium, numerous agreements having been signed on various aspects of this, wife’s trips back and forth to Virginia for husband’s benefit to arrange his new living situation, etc.  But stripped down to its simple elements, as the Court of Appeals views it this time, the case involved a litigant coming here to appear in court to get her children back after the other parent’s refusal to return them after a scheduled visit, and service of Virginia pleadings on her while she was here for purposes of that litigation.  That, the Court of Appeals declares, does not in any way confer personal jurisdiction upon Virginia over that litigant.  The Court points of course to the specific immunity section of the UCCJEA, Code §20-146.8, and it finds no support for husband’s claims to the contrary in the long-arm statute, §8.01-328.1(A)(9).  No doubt about the matter. The Court, in the unanimous opinion by Judge Alston, declares that the UCCJEA immunity provision means what it says:  That a party who comes here to enforce a custody order or take part in a child custody proceeding does not incur personal jurisdiction here simply by having done that, nor by being physically present for purposes of participating.  While some of the wife’s actions might have looked ambiguous, given the off-and-on vagaries of a couple’s emotional relationship, she was very careful never to do anything while here that might have indicated residing here or intending to do any official act here that would arguably take advantage of Virginia legal or governmental entities.  Wife’s motivations in all of this might not have been the purest, as it appears she had acquired a boyfriend over there, but the husband’s efforts to argue it was wrong to sustain relevancy objections to testimony about her marital relationships were of course unsuccessful.  That Wife deceived husband about her reasons for wanting to stay in Belgium was testimony that does not pass the long-established basic test for relevancy.

TERMINATION OF PARENTAL RIGHTS — PLACEMENT WITH RELATIVES — ABUSE VICTIMS AND ABDUCTORS NOT FIT GUARDIANS.

Who said the Court of Appeals doesn’t believe in parental alienation syndrome? Some very interesting social theories are adopted as law by the Court of Appeals in an unpublished parental rights termination case, Ange v. Chesapeake Department of Human Services, 12 VLW 1106 (2/3/98). This was a challenge to termination that turned upon the Code §16.1-238(A) requirement of duly considering placement with the father’s relatives before terminating his rights. The Court of Appeals holds that the DSS properly investigated these relatives and the court properly found that neither of them, the grandmother nor the aunt of the child, offered the required “beneficial alternatives.” First, although foster care would seem to be a temporary expedient from which children are supposed to be removed, and removed promptly, in this case a psychologist and a social worker opined that to remove this child from her foster home is such a horrible idea that it would cause “regression” and “mental decompensation” inducing “psychosis.” And while one social worker found the father’s sister’s home to be an appropriate placement, this social worker was shown not to have known the extent of the domestic abuse that this aunt had suffered at the hands of her estranged husband. Another very interesting ground, stated for finding another of the father’s sisters unworthy, is that she is a mother who had abducted her own children from their father’s care, and hid them for several weeks by moving them from hotel to hotel.