Virginia Family Law Appeals

New Virginia family law legislation: the rest of the story

Over the past few days we've reported the new laws enacted in the areas of divorce, domestic violence, child abuse/neglect/dependency, and adoption. There were a few other bills passed, some affecting family law, others not in family law but still affecting what we family lawyers do in our practice. Here they are:

 

HB 1095 Qualified domestic relations order for enforcement of support. Provides that a court may enforce a support order by entering a qualified domestic relations order or other order designed to attach or garnish pensions and other deferred compensation or retirement plans governed by federal law.

 

SB 89 Garnishment; corrects form listing Exemptions from garnishment.  Corrects the form listing garnishment exemptions by replacing the reference to "rent or services of a laborer or mechanic" with "spousal or child support" to reflect amendments made in 1990 (Acts, Ch. 942) that were never incorporated into the form. This bill also contains technical amendments. This bill is a recommendation of the Committee on District Courts. It changes the § 8.01-512.4. Notice of exemptions from garnishment and lien Form to state that a homestead exemption cannot be claimed in a garnishment for child or spousal support.

 

HB 84 Child custody; judge shall communicate basis for decision, except in certain cases. Provides that the judge's required communication of the basis for his decision regarding child custody or visitation, except in cases of a consent order for custody or visitation, shall set forth the judge's findings regarding the relevant statutory factors used to determine the best interests of the child.

 

HB 229 Doctrine of necessaries; lien not to attach on residence held by spouses as tenants by entireties. Provides that a lien arising out of a judgment under the doctrine of necessaries shall not attach to the principal residence of a husband and wife that was held by the spouses as tenants by the entireties prior to the death of either spouse where the tenancy terminated as a result of such death.

 

 HB 761 Recording deeds; statement of preparation. Authorizes the circuit court clerk to reject for filing or recording a deed, except for deeds where a public service company, railroad, or cable system operator is either a grantor or grantee, unless it states on its first page that it was prepared either by the owner of the property or by an attorney licensed to practice in Virginia.

 

HB 101 / SB 94 Rules of Evidence; adoption of amendments or additions of Rules by Supreme Court of Virginia, etc. Provides that the Rules of Evidence (available here) that have been prepared and adopted by the Supreme Court of Virginia and approved by the Virginia Code Commission shall take effect on July 1, 2012. A rule derived from an evidentiary provision in the Code of Virginia shall note such Code section in the title of the rule. Subsequent amendments or additions to the Rules of Evidence must be adopted by the Supreme Court of Virginia by November 15 and shall become effective on July 1 of the following year unless the General Assembly modifies or annuls such amendments or additions by general law. As introduced, this bill was a recommendation of the Virginia Code Commission. This bill is identical to SB 94.

 

SB 59 Injunctions; requirement for bond. Requires a moving party to post bond only for temporary injunctions. Under current law, a bond is required for both temporary and permanent injunctions. The new version of the law reads:

§ 8.01-631. Injunction bond.  A. Except in the case of a fiduciary or any other person from whom in the opinion of the court awarding an injunction it may be improper or unnecessary to require bond, no temporary injunction shall take effect until the movant gives bond with security in an amount that the trial court considers proper to pay the costs and damages sustained by any party found to have been incorrectly enjoined, with such condition conditions as the trial court or judge may prescribe.

 

Court finds appeal completely frivolous, awards fees - Craven v. Williamson

APPEALS – FRIVOLOUS – FEE AWARD. A trial judge’s reduction of a father’s visitation after he injured, in anger, one of his four children was obviously so reasonable that appealing it was frivolous, the Court of Appeals held in Craven v. Williamson, unpublished, 26 VLW 934 (1/10/12). The father was obstreperous in his reaction at the trial level to the judge’s rulings, and the judge was not required to elaborate in detail about the reasoning of his decision, so long as the record shows that the father’s arguments were considered. Since the trial court “painstakingly” addressed each factor, and its ruling was quite clear, the Court awarded the mother her appellate fees and remanded for determination of the amount.

Video, psychologist evidence allowed to refute child molesting accusations

EVIDENCE – SELF-SERVING VIDEO OF PARENT-CHILD INTERACTION – DEFENSE AGAINST ABUSE ALLEGATIONS – FEE AWARDS AGAINST ABUSE-ALLEGING PARENT. The Court of Appeals rulings in the appeal of a Fairfax custody case would all be fairly interesting and instructive if it were not for the many Rule 5A:18 rulings in the disposition of this appeal. However, a couple of the remaining appellate rulings are worth summarizing for readers. This unpublished case, Jaouni v. Salah, 26 VLW 988 (1/24/12), turned upon denial of a protective order to the mother against her divorced husband, who had visitation rights. The mother had gone to the juvenile court for a protective order alleging that the father physically abused the 8-year-old daughter during visitation, beating her and touching her private parts, which he vehemently denied. And although there had been evaluations by a licensed clinical psychologist of both parents in a separate case, and the trial court allowed this psychologist testimony on the abuse issue, even though the witness was never qualified in this case as an expert. The psychologist testified that the daughter “overly identified with the mother and took responsibility for her happiness.” At the end of the trial in Circuit Court, the judge denied the protective order, ordered the mother to pay $14,000 of father’s attorney’s fees, and denied reconsideration. The Court states that the mother’s objection to the non-expert-qualified psychiatrist’s testimony came too late since it was near the end of the testimony. Moreover, the trial court did not abuse its discretion, it was held, in admitting it. Apparently, the mother’s objection to the psychologist testifying on the daughter’s credibility was overruled, and the appellate court does not interfere with that. The denial of the protective order was well within the trial judge’s discretion, and it certainly appeared that the mother failed to meet her burden of proving the alleged abuse. As for admitting the father’s prepared-for-litigation video tape, it was within the judge’s discretion, as it was relevant and admissible. As for its being self-serving, etc., is concerned, that was harmless since the court well knew that it had been prepared for litigation. The trial court had expressed concern over the mother’s “posturing the daughter for litigation,” and the fee award under §16.1-279.1(E) was not an abuse of discretion. However, the Court of Appeals did remand for an evaluation of the mother’s ability to pay fees, as required by §16.1-278.19.

Unwed father in In Vitro Fertilization isn't mere "sperm donor" - Va. Ct. App.

PARENTS’ RIGHTS – RIGHTS OF FATHER WHEN IN VITRO FERTILIZATION OCCURS DURING AN UNMARRIED COHABITATION RELATIONSHIP – RIGHT TO KNOW PARENTAGE – SPERM-DONOR STATUTE.  An inexcusable attempt to apply the commercial sperm-donor statute to a very, very different sort of illegitimate-birth case was the subject of Breit v. Mason & L.F., 59 Va. App. 322, 718 S.E.2d 482 (12/28/11).  Long story short the trial court went along with it, relying on unambiguous wording of an inapplicable statute, but the Court of Appeals did not. 

It all began like a typical idyllic story of 21^st Century lovebirds wanting a baby but not a marriage, but soured not long after the mother got the baby, and the natural father had been put on the birth certificate, the baby put on his health insurance, and a relationship established between father and daughter, plus the grandparents and friends.  The pre-litigation history that the Court of Appeals recited in its opinion was typical, but in the context of this litigation, quite extraordinary.  Listen to all this: First, because this came up as a dismissal upon a plea in bar, the facts in the plaintiff’s petition are accepted, as true, but if the parties then present evidence ore tenus, the Court’s fact findings are accorded the weight of a jury finding, so here the Court of Appeals had the following undisputed facts.  Mr. Breit and Miss Mason were cohabiting in a “long-term romantic relationship.”  She wanted to have a child, and they tried to conceive one the natural way, but unsuccessfully.  They sought help from an obstetrician-gynaecologist who started helping them try in vitro fertilization. The second attempt was successful, pregnancy ensued and Mr. Breit “was present for both rounds of egg retrieval, fertilization and transfer of the embryos” to where they needed to go.  Cohabitation lasted throughout the pregnancy, including June when they both entered a written “Custody and Visitation Agreement,” prepared by the mother’s attorney, giving the father “reasonable visitation.” 

On July 13^th little L.F. was born, and they both signed the acknowledgment of paternity, giving L.F. a hyphenated surname and naming them both as her parents on the birth certificate.  They mailed birth announcements to friends and family naming themselves as L.F.’s parents, and continued to cohabit for months afterward.  It was only in August of the next year when the little girl was just over a year old that the mother unilaterally ended all contact between father and daughter.  When the father filed in JDR court a custody petition under two sperm-donor statutes §20-158(A)(3) and 32.-§257(D), notwithstanding all the above, mother argued that §20-158(A)(3) says that a donor is not a parent unless he is the husband of the mother and under §32.1-257(D) “donors of sperm or ova shall not have any parental rights....”  The JDR Court dismissed “without prejudice,” and father appealed it to circuit court and filed a “Petition to Determine Parentage and Establish Custody and Visitation.”  He argued that the paternity acknowledgment document executed the day after the child was born created a final and binding parent-child relationship with him.  The circuit court consolidated the appeal and the petition, appointed the mother’s attorney as the guardian ad litem, and dismissed it all on a plea in bar. The judge admitted that there is “a strong argument” for construing the statutes the way the father wanted, but he felt it would make both statutes meaningless. He also denied the father’s motion for genetic testing, dismissing without prejudice the father’s Petition to Determine Parentage and to award him custody and visitation as a person with a legitimate interest. 

To the Court of Appeals, using the sperm donor statute against a natural father who the mother had acknowledged as such under oath was absurd.  Because this presented a question of law involving the trial court’s interpretation and application of the statutes, the Court of Appeals was able to review its judgment de novo.  It began by pointing out that §20-49.1 says that upon a sworn petition a child, a person claiming parentage, or even a person standing in loco parentis or a person having legal custody, can sue to determine parentage, and that when he or she does that determination will be governed by §§20-49.1 through .10.  Section 20-49.1(B)(2) provides that a parent-child relationship between a child and a man can be established by a voluntary written statement by the father and mother made under oath acknowledging his paternity, and it can’t be rescinded after 60 days and shall have the same legal effect as a judgment unless fraud, duress or material mistake of fact are later found.  The “Children of Assisted Conception” statute, §20-156 through -165, does provide that in determining the parentage of a child conceived through assisted conception the donor is not the parent unless married to the mother (§20-158(A)(3)), which mother argued was conclusive here.  She said that made the statutorily executed Acknowledgment of Paternity void ab initio as violating the General Assembly’s express intent to divest sperm donors of parental rights.  Father argued that all the statutes must be construed together to effectuate the real legislative intent, which is to assist infertile couples to use surrogate donors and keep anonymous sperm donors anonymous, and that the Legislature had no intention to divest fathers like him of parental rights, relationships or the right to establish parentage. The Legislature never intended to nullify parentage by a father like himself.  The Court of Appeals is not supposed to presume that the General Assembly intended to enact a “manifest absurdity,” and it should interpret statutes to avoid inconsistent results. Section 20-158(A)(3) must be read in conjunction with §20-49.1(B)(2).  Both the statutes, the Court of Appeals says, had as their primary purpose insuring legal parentage of a child by a known mother and known father, and neither statute intended to permanently bar a parentage action by a donor such as Mr. Breit.  That, it said, would be a manifest absurdity.  The intent of the Legislature to ensure that all children born in Virginia have a known legal mother and legal father was obvious to the Court of Appeals.  These statutes were primarily also concerned with ensuring that infertile marital couples would not be threatened with parentage claims from anonymous sperm and egg donors, and it intended that a chosen, unmarried donor, known by the unmarried natural mother, and intended to be the father of the resulting child, should never be placed in a position of being permanently barred from assuming parental rights and responsibilities simply because of his unmarried state at the time of conception. 

Switzer v. Fridley: Father's 11-year battle against non-parents' custody

CUSTODY – THIRD-PARTY CUSTODY – NATURAL-PARENT VISITATION –APPEALS – SPECIFICITY OF PLEADING – WAIVER OF ARGUMENTS – PERSISTENT PRO-SE LITIGANTS – SANCTIONS. The unfortunate Mr. Switzer, who had his child taken away to be placed with a (then) unmarried cohabiting couple, has managed to infuriate the trial and appellate judges again with his tenacious – some might say masochistic – persistence. The Court of Appeals, in Switzer v. Fridley, unpublished, 26 VLW 504 (9/27/11), with a level of wrath as well as frustration which must be fairly high by now, gives what appears to be a patient and orderly consideration to a great many of the legal issues that this pro se appellant determinedly continues to raise. (This father has been fighting the various custody, visitation and record-access decisions for the past 11 years. On May 29, 2010 the Augusta County Circuit Court issued an Order “ending all cases” and remanding everything to the juvenile court, and the current appeal challenges all aspects of that decision, as well as past decisions, most of which the appellate courts have already ruled upon.) The decision to allow the third parties to seek and obtain custody of his child was upheld against this father’s constitutional and statutory arguments, and that matter is res judicata. The same is true of Switzer’s appeal of the denial of his modification motions. The emergency protective order against release of the child’s academic or health records to the father was also upheld on a previous appeal by summary affirmance since Switzer had no transcript or statement of facts to provide a written record, and that is also res judicata. As for the appellant’s arguments that all of this constitutes a refusal to rule on valid constitutional questions, that too has been determined before. The trial court had turned down the father’s modification motions and petitions, inter alia, for failure to show a change of circumstances. Though he now argues on appeal that the trial court erred by using an improper date to determine what was new evidence and what was old evidence to show change of circumstances, the way the appellate argument came up (the last time he appealed this) the father was not arguing that the date was wrong, but rather, that it was unnecessary for him to prove a change of circumstances at all (citing a 1962 U.S. Supreme Court case, which the trial court and the appellate court held does not apply here.) This time, though, the Court of Appeals does go through the original facts of this custody decision against Mr. Switzer, showing the rather dubious factual picture which originally persuaded the trial court to make those orders and then deny the father anything but extremely limited visitation. These decisions were, however, within the discretion of the trial judges, and a closer look at the original (and evolving) facts does show the father being his own worst enemy in this unseemly drama. The trial court’s denial of his motions to change custody and visitation, after hearings in June and August of 2010, did not exceed the judge’s discretion. Mr. Switzer also argued that it was error and an abuse of discretion for the trial court to consider the amount of time his son had lived with the new custodians as a bar to his ever regaining custody. He elaborated on this by saying there were no expert opinions stating that the son would be harmed by a change of custody back to him. The trial court had found the father to be unfit, and nothing that the father cited showed that the trial court indeed had relied on the length of time involved. As to the lack of expert opinions, there had been no assignment of error, as such, about that. (Visitation supervision and grandparent visitation were really non-issues.) The trial court had declared in its opinion letter that it imposed a sanction in order to “limit his ability to continue to pursue this case” on matters already decided. It made a finding that he had abused the judicial system by asserting meritless claims and wasted valuable and limited resources in frivolous litigation, and harassing the other parties by dragging them into court. The sanction imposed was to order Switzer not to file anything without obtaining court permission for the filing. He argued on appeal that the previous Switzer ruling from the Supreme Court, Switzer v. Switzer, 273 Va. 326, 641 S.E.2d 80 (2007), forbids any trial court or Court of Appeals action that might compromise his rights of appeal, and that the court does not have jurisdiction to impose that kind of sanction. Quoting the statute, §8.01-271.1, the Court of Appeals explained that there really is no limit on what kind of “appropriate sanction” a judge is authorized to impose in order to accomplish the purposes stated in the statute. Sanction decisions are reversible only if judicial discretion in imposing the sanctions, or in the choice of sanction, was exceeded. The Supreme Court Switzer case held, not that the Court of Appeals lacked the authority to dismiss the appeal as a sanction, but only that dismissal under the circumstances was an unduly severe sanction, not properly tailored to correct the problem involved. In fact, when the Supreme Court reversed the Court of Appeals on this particular point as to Switzer, it specifically said that a trial court does not have to use “the ultimate sanction of dismissal” when the same might be accomplished by a lesser sanction such as pre-filing permission requirements. The Court of Appeals said this lesser sanction was justified given Switzer’s history of filing numerous documents for over a decade, most of which were frivolous or harassing.

Va. court: Mere "best interests" justifies non-consensual adoption

-- Although this is a case that probably would have turned out the same way under a stricter standard.

ADOPTION OVER OBJECTION – CONSTITUTIONAL STANDARD – NO “DETRIMENT” REQUIREMENT – BEST INTEREST TEST. Just as it took an uncharacteristically short time for Copeland v. Todd, 282 Va. ___, 715 S.E.2d 11 (2011), to be reported in the West’s Advance Sheets, the Virginia Court of Appeals loses no time whatever in applying it. In an unpublished opinion in a case called Eiseman v. Beaudoin, 26 VLW 642 (11/1/11) out of Gloucester County, the Court summarily affirmed a step-parent adoption over the natural father’s objection, expressly applying the new Supreme Court case. The trial court ruled that the adoption was in the best interests and in fact made some extra rulings about “harm” from continuation of the relationship with the natural father. The child was illegitimate, and of course step-parent adoption is governed by a different statute anyway. The child lived with the mother and step-father since 2006. The father steadfastly refused to consent, but in the years 2007 and 2008 he was convicted not only of drug charges, but of felony theft and forgery and driving on suspended license. He had been turning up every year “sporadically” to call and visit the child. The trial court considered all the factors in §63.2-1205 in determining best interest here and the record supports that determination of the requisite nine factual findings. Appellate attorneys’ fees to the mother were denied as the case raised substantial issues and reached the Court of Appeals without unnecessary delay.

Murphy v. Charlotte County – CUSTODY – PARENTAL SUCCESS AGAINST DSS – FEE AWARDS – SOVEREIGN IMMUNITY

 

Whether the statutes create an exception to sovereign immunity in cases where parents win their children back from DSS is no simple matter, according to the Virginia Court of Appeals in its explanation.  A successful father who got his kids back after DSS had used charges of abuse and neglect to seize them argued that Code §60.1-278.19 served to waive sovereign immunity in such cases because it provides that juvenile and domestic relations courts can award fees and costs to “any party” when appropriate considering the relative financial ability of both parties.  He admitted that this does not amount to an express waiver, but thought it was clearly implied.  But the Court of Appeals finds an analogous case in Ligon v. County of Goochland, ___ Va. ___, ___ S.E.2d ___, which concerned §8.01-216.8, and therefore the Court of Appeals held that only an “express and specific” statutory reference to state employees will do it.  In §16.1-238 there is no specific and express reference to employees of the Commonwealth either.  As the Court remarked in Murphy v. Charlotte County, ___ Va. App. ___, ___ S.E.2d ___, 25 VLW 1211 (3/22/11), if the General Assembly had meant that, it would have said so.  To Mr. Murphy’s further argument that there is a waiver under §17.1-600 and §17.1-629 where a party seeks costs, the Court points out that the court of record statutes do this father no good because they allow only costs, not fees, and his motion in fact did not seek such.  As for the argument that costs includes fees, the Court simply points out that it has ruled on that one before, and not favorably.  

Minor Child v. Ellis – CUSTODY, ETC. – STATE v. FAMILIES – CHINS – UNWARRANTED GAL PETITION.

 It seems there are still some counties in Virginia where a judge will recognize a case that should never have gone this far.  When a guardian ad litem’s successful CHINS petition was appealed to circuit, the circuit judge granted a motion to strike after hearing everything the GAL and GAL’s experts had to say.  Though the guardian ad litem of course appealed this dismissal, the Court of Appeals affirmed.  In this case the parents were separated and the mother had custody, and in the past the father, labeled “alcoholic and abusive,” had been subject to a protective order forbidding contact between the father and the child.  While the mother in the past had nevertheless allowed some contact, she has been prohibiting access recently.  The guardian ad litem’s evidence shows only that the child was an excellent student who did well in school and made good grades, was liked by the kids and the teachers, involved in extracurricular activities, and that the mother was doing very well at her own job.  At the time of separation the mother had taken the child to a “counselor,” because of concern about the child’s reaction to “the changes that the family was going through because of the Dad,” but nothing even suggested that anybody was abusing or neglecting this child.  Though one of the experts said there were “serious concerns,” this expert also admitted—on direct—to not having enough information to form an opinion.  Seen in the light most favorable to the GAL, the experts’ testimony included that the child had an “adjustment disorder,” which they characterized as “the lowest of all disorders,” which indicates that a specific situation is creating stress and “causing some impairment.”  “However,” the Court of Appeals noted, “the experts never explained what ‘impairment’ existed in the child’s life or the mother’s life.  They did not explain how this ‘impairment’ in the mother’s behavior endangered the child, except to say that the child needed counseling and that the mother did not want to take the child to the current counselor.”  The basis of the experts’ recommendation of further counseling was that the child had once been exposed to an alcoholic father and had witnessed abuse of the mother, but neither expert could point to any behavior by the child himself even that he needed more counseling.  No behavior suggested that the child was on a bad course through life. One expert explained that she had not done any testing because “there didn’t appear to be a need,” and the only advice of the experts was “based on the abstract literature in their fields – not on the application of those abstract recommendations to the particular facts in this case.”  The experts admitted they had not collected serious information to satisfy the statute or to illustrate any substantial dangers this child would face if the state was not allowed to intervene in his life. Section 16.1-228(I) defines a child in need of services as one who is engaged in behavior or conduct or has a condition, that “prevents or results in a serious threat to” the child’s well-being and physical safety.  The GAL to satisfy the statute needed to prove, in fact, a “clear and substantial danger to the child’s life or health,” and that the family or child was “in need of treatment, rehabilitation or services not presently being received,” and that intervention was “essential” to provide it.  Nobody got even close to satisfying this standard.  Minor Child v. Ellis, unpublished, 25 VLW 1156 (3/8/11).

Flanagan case: Unspecified, intuited sex abuse can be considered in custody decision.

SEX-ABUSE CHARGES IN CUSTODY FIGHTS — FUZZY FINDINGS — LONG-DELAYED TRIALS WHILE CHILD AGES WITHOUT VISITATION. Affirming a custody award to the mother, the Court of Appeals holds that a trial judge who expressly based it on Factor Number 9 (“any history of family abuse … or sexual abuse”) was not required to make any specific finding about acts of inappropriate sexual contact with the child since the finding that there was “sexual conduct” was “unequivocal.” In fact, the trial court expressly declined to make any specific factual findings to support the conclusion of the inappropriate sexual contact. After all, the trial court had explained expressly that it found that “it was more likely than not” that the alleged “inappropriate act or series of acts occurred.” This is because it’s clear that the court considered all of the §20-124.3 factors. The trial court’s exact words regarding a finding: “The Court is not in a position to be able to articulate what specific inappropriate conduct in the form of an act, or series of acts, might have occurred between [child] and her father,” and “what the Court does find that it is more likely than not that this inappropriate act or series of acts occurred … .” The argument of the father’s counsel had been that the trial court ruling was based on speculation and conjecture, since nothing about any specific act was found nor was there a finding that the father had any sexual deviant or prurient interest in engaging in such acts. And now, the rest of the story. This all began with a near-simultaneous filing of the DSS Abuse/Neglect Petition against the father when the child was three, the mother’s request for a custody order, and the father’s cross-filing for a custody order, and the consolidation of all this for JDR court trial, which resulted in an award of sole legal and physical custody to the mother, an order that father have no contact with the child, and a protective order. The father appealed this decision and almost a year later the trial court entered a nonsuit in the abuse and neglect case and then an order dissolving the protective order. By the time of the trial de novo on appeal from JDR court, it had been two years since the child had seen the father. Flanagan v. Flanagan, unpublished, 25 VLW 470 (9/28/10).

Huston v. Huston reiterates Lee v. Lee "be an obnoxious loser" rule

APPEALS – PROCEDURE – WAIVER – LEE v. LEE RULE – “NECESSARY PARTIES” – CUSTODY APPEALS – CHILD SUPPORT – IMPUTED INCOME.  Any lawyer who has any lingering doubt that, even after all the statutory vicissitudes, the rule of Lee v. Lee on waiver of appellate arguments still means everything it meant when it was first astoundingly articulated back in the 1990s, need have no more doubts, in view of an unpublished Court of Appeals opinion that will come as a surprise to some trial lawyers and a grim reminder to others.  A mother who lost a custody case did not, it turns out, preserve her claim against the trial court’s having an in camera interview with a child without a court reporter present.  No, she first noted her objection to this (on paper anyway), when filing her objections to the final decree.  Rule 5A:18 again.  The Court of Appeals did hold that there was nothing wrong with her failure to notify another losing party – an adult sibling – when she took her appeal.  That was because the custody petition filed by that relative had already been dismissed.  Finally, the appellate court holds that it was not error to impute minimum wage income for a 40-hour week to this mother, if there was sufficient evidentiary basis for the court’s finding that she was capable of working outside the home.  Huston v. Huston, unpublished, 25 VLW 556 (10/19/10).