Virginia Family Law Appeals

On remand, trial court CAN look at circumstances that changed during appeal

APPEALS – REMANDS – “MANDATE RULE” – CHANGE OF CIRCUMSTANCES IN CHILD SUPPORT LITIGATION.  The accommodation that the rigidities of the law, and particularly the law of appeals, must make, as common sense dictates, to the “change of circumstances” rule that makes custody and support issues ever modifiable, is helpfully elucidated by a case named West v. West, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 814 (12/13/11). The Court of Appeals explains that there is a “mandate rule,” that litigation, on remand, of decisions that the appellate court has made, is totally foreclosed on remand, as would be litigation of matters that the trial court addressed but nobody appealed, or matters that were never addressed by the original decree at all. So what happens, then, when the case shows up on remand and it concerns child support, and there have been substantial changes in circumstances?  Well, the Court of Appeals declared in this case where neither party wanted to re-try or re-argue on remand the issues that had been taken up on appeal in the first place -- but each asked the trial court now to determine what to do about the change in circumstances affecting child support -- dealing with those modification claims is exactly what the remand to the trial court should do.  The trial court erred when it held that it had no jurisdiction to hear those modification matters.

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.

 

Bergaust v. Flaherty: CHILD SUPPORT — ILLEGITIMATE PATERNITY — JURISDICTION — LONG-ARM STATUTE — "FATHERED IN VIRGINIA" CLAUSE — SEXUAL ACT ABROAD.

As most family lawyers probably know, Virginia’s long-arm statute, Code §8.01-328.1(A)(8), provides for asserting paternity and child support jurisdiction over an out-of-state “person” who “conceived or fathered a child” in Virginia.  Neither the circuit court nor the Court of Appeals had much trouble holding that this language did not apply to a case in which even the mother admits that both acts  — the father’s impregnation of her by the sexual act, and the mother’s conception of the child by becoming pregnant  — occurred in a foreign country.  And the Court of Appeals goes on to say that even in the more interesting theoretical case of a “fathering” offshore and the actual blessed event of conception taking place only after the mother gets to the U.S., its decision would be the same. That’s because the General Assembly’s use of the term “fathered” clearly applies only to the male parent’s initial act, and not to the more passive thing that happens slightly later.  The General Assembly, it says, used each individual word in a sense that is specific to the respective sexes.

Stiles v. Stiles: CHILD SUPPORT – MODIFICATION – PENDING AND ENDED CAUSES – “FINAL ORDER” – LONG-PENDING MODIFICATION CASES – RETROACTIVITY – LACHES - MALPRACTICE TRAPS.

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. 

Nordstrom v. Nordstrom: CHILD SUPPORT – JURISDICTION – INTERSTATE – UIFSA – MODIFICATION AFTER ALL LEAVE STATE – VOID ORDER -- REMEDY – REIMBURSEMENT OF CHILD SUPPORT PAID UNDER VOID ORDER.

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).

McKee v. McKee: ALIMONY — CLAIMED MONTHLY EXPENSES – ALIMONY AWARD EXCEEDING PAYOR INCOME BUT LEVELED BY TAX SAVING – ALIMONY-CHILD-SUPPORT RELATIONSHIP.

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.

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

21 VLW 1392 (4/10/07)
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.   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. 

JUVENILE COURTS -- APPEAL: Jones v. DCSE

The Department of Child Support Enforcement can appeal from a juvenile judge's decision to overturn their administrative support order.  However, a party or an attorney for the party -- not a non-lawyer DCSE bureaucrat -- must sign the appeal.  9 VLW 630 (11/8/94).

JUVENILE COURT APPEALS – BOND REQUIREMENT – SUPPORT CASES.

The perennial subject of bond requirements in juvenile court appeals, an area in which recently-discovered but draconian requirements bid fair to eliminate this kind of troublesome litigation from the circuit courts, is again clarified by the Court of Appeals.  In three consolidated cases, the fathers were trying to appeal JDR court orders to pay child support arrearage.  They claimed, however, that the jurisdictional appeal bond requirements to get into circuit court did not apply because what they were appealing was the contempt findings against them, and not the rulings as to monetary arrearages themselves.  Construing Virginia Code §16.1-296(H) again, the Court of Appeals reemphasized that it is absolutely mandatory that the juvenile court has to set an arrearage bond as big as the juvenile court's monetary judgment, and then has the discretionary ability to impose in addition an appearance bond or an accrual bond or both.   DCSE v. Hottinger, ___ Va. App. ___, ___ S.E.2d ___, 17 VLW 99 (6/19/02).

SEPARATION AGREEMENTS -- COLLEGE EXPENSES -- 2 cases

Reviews of Douglas v. Hammett and Jones v. Jones.