Virginia Family Law Appeals

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.

ALIMONY — EFFECT OF CUSTODY/CHILD SUPPORT CHANGE.

A mother’s loss of custody and child support was a material change of circumstances, but it cannot entitle her to alimony, the Court of Appeals says in Hall v. Hall, Unpublished, 12 VLW 1219 (3/10/98). The court explains that the child support she was getting, and the child support she now must pay, “is intended to benefit the child, not the custodial parent.” It does not serve the same function as alimony.

"NEGATIVE NON-MONETARY CONTRIBUTIONS" – QUITTING JOB – PRIVATE SCHOOL TUITION

ALIMONY – CHILD SUPPORT – IMPUTATION TO PAYEES – "NEGATIVE NON-MONETARY CONTRIBUTIONS" – QUITTING JOB – PRIVATE SCHOOL TUITION – CUSTODY. The Court of Appeals in a recent case, Joynes v. Payne, 35 Va. App. 646, 547 S.E.2d 530, 15 VLW 1422 (5/8/01), shows that it is no more thrilled with the idea of payee imputation than it ever has been, but continues to be quite fascinated by the idea of "negative non-monetary contributions" to marital property. This time the two arguments related to the same thing: the wife's quitting her part-time job as a lawyer in order to be a full-time mother. Our appellate courts can always be counted upon for surprises, and the analysis of these issues is utterly astonishing. While it's no surprise that they wouldn't let the trial judge impute income to a payee spouse, the reason the trial judge was wrong is that the husband had sought imputation because he and the wife in happier times had made this bizarre agreement that he would be the primary breadwinner and she would be the primary homemaker and child raiser, but would work part time. And thus, by imputing income to her when she quit, the judge was taking part in a private-agreement-between-spouses-touching-upon-matters-that-might-in-the-future-relate-to child-support, which as we all know is an unspeakable crime, a usurpation by non-judges of the Judicial Prerogative, and something that can't be countenanced in any way, shape or form. But wife’s breaking the same bargain (by quitting her job to take care of the kids) can be punished in property division as a "negative non-monetary contribution" -- a theory with a lot more marquee appeal. Probably what's the most disturbing is the terminology. The behavior sure sounds like a negative monetary contribution if it's anything. But if we have to look just at the conduct and not at the money, then apparently the awful thing that this wife did is to choose motherhood over a career, take one more talented woman out of the workforce, and set the negative and sanctionably incorrect example for her offspring that it's O.K. for females to be mothers at home rather than career professionals at the office. The Court of Appeals of course rejected husband's argument that while he was at it the trial judge should have monetarily punished wife’s non-monetary contribution dollar for dollar. Thus it wasn't wrong for the trier of fact to ignore the child care expenses that ceased when the wife quit work, and (you would think) blunted the financial effect of her shutting off her part of the family income stream. When we get to alimony, the trial judge apparently had not accepted the husband's argument that wife should be able to earn over $170,000 per year in full-time law-firm employment. Rejecting that argument was all right, if for no other reason, then because wife had never earned more than $94,430 per year, and that was in 1992 when she worked full time. It was, however, all right for the trial judge, by "upward deviation," to make the father pay for private school. Also affirmed are an award to wife of 45% of her fees. On custody, it was all right to give the wife the children, despite her aggressively anti-visitation position and the husband's arguments about the effects on child care of her bulimia, since she had been the caretaker since birth.

FEDERAL CHILD SUPPORT RECOVERY ACT — PERSONAL JURISDICTION — CRIMINAL.

The Uniform Interstate Family Support Act (UIFSA), for all of its broad reach, does not seek to give child support jurisdiction where there is no in personam jurisdiction over the payor, but the new Federal Child Support Recovery Act, 18 USC § 228 (1992), is something else again -- at least according to the U.S. Court of Appeals for the Fourth Circuit. In U.S. v. Murphy, ___ F 3d ___, 12 VLW 162 (6/26/97), a case in which the divorce was in Oklahoma and the father had never lived in Virginia, nor been ordered here to make any child support payments at all, a majority holds that he can be criminally prosecuted in the Western District because the mother and child have moved here. The majority explains that the father committed his crime of failure to pay support in Virginia because that is were the child to whom he owes the payments resides. This, will be remembered, was the theory of the California child support authorities which the U.S Supreme Court rejected in Kulko v. California Superior Court, 436 U.S. 84, 93 (1978) when it said in a civil context that a Father had created California in personam jurisdiction without ever coming to the state because he failed to stop his divorced wife and child from coming there. Concurring, Judge Williams says that the conviction should stand because venue is proper in the Western District of Virginia. He points out, however, that the CSRA does not purport to create venue wherever the child resides (yet its “designation for disbursement” creates proper venue here), and that a legislative purpose is not enough to overcome a constitutional requirement that venue should be where the crime was committed.