Virginia Family Law Appeals

Agreement wasn't specific enough to automatically reduce support when 1 child aged out.

CHILD SUPPORT – NO CHANGE IF CHILD AGES OUT – SEPARATION AGREEMENTS. How dare people try to keep their cases out of court by putting something they don’t disagree about and don’t want to fight about into an express written agreement?  That seems to be judicial attitude demonstrated in a case called Virostko v. Virostko, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 1223 (3/20/12), where a couple (and probably their lawyers), proceeded on an unwarranted assumption about what lay people, and probably most non-Virginia judges and lawyers, doubtless regard as the most self-evident proposition in all family law: the ability of obligors to regard a child support obligation as ended when the child in question becomes an adult at age 18 (or 19…, etc.). Of course they only gave the Court of Appeals another chance to pontificate on how they surely ought to know that child support termination upon attainment of majority “is not self-executing.” Well O.K., so it’s not. But these foolish people felt that they were agreeing on child support amounts, and that if you put how the child support is going to diminish in your separation agreement, in writing, maybe then it can “self-execute,” can’t it?  Of course not, the voices from on high intoned. It’s a job for judges -- and not common folk -– to make decisions about. Now of course we, who labor in these stony vineyards all the time, know full well how you can’t chip away at this judicial discretion that’s seen as such a sacred trust, and so long as Best Interest is part of the law of child support, it won’t change. Still devilishly counter-intuitive for the naive bumpkins who pay and receive it. But what of that? The Court of Appeals does, however, provide some prescriptive criticism about just how this incredibly acrobatic and otherwise-unthinkable feat can (supposedly) be performed. An incorporated final decree under §20-109.1 permissibly incorporates a valid such provision on three conditions: (1) Before approving incorporation, the trial judge at the time of the divorce must review the reduction-formula provisions for consistency with Virginia statutory public policy and the particular child’s best interests; (2) There has to be language added making clear that this doesn’t preclude some judge in the future from exercising the sovereign power to modify all this; and (3) The parties can’t, by invoking this agreement, terminate a supporting parent’s duty to pay support for that child. (Uh,……… yeah.) Of course if this is supposed to prevent an obligor from receiving that nasty shock we all know about when his child ages out, it’s clearly a safety net so full of holes that these parties and their counsel are likely to throw up their hands and give up on the effort. But wait, the Court says more. If none of the above three things would seem to do the trick, the Court of Appeals explains that the provision involved here merely said the parties would either agree upon a new amount based on the father’s then income, or assume that they cannot agree and return to court.  That provision does not provide an “objective standard by which the parties could determine a new amount.” That makes it nothing but an agreement to try to agree, and if you have a self-executing agreement, it can’t be one of those.(Let’s see. First full moon after majority obtained? That’s objective.) Thus the trial court’s ruling that self-execution did not happen here is affirmed. 

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.

No alimony cutoff if boyfriend doesn't actually cohabit - Va.Ct.App.

CHILD SUPPORT – GUIDELINE CALCULATION – ALIMONY AS WIFE’S INCOME – ALIMONY CUTOFF FOR COHABITATION. The Court of Appeals decided two issues in a case called Cranwell v. Cranwell, 59 Va. App. 155, 717 S.E.2d 797 (12/6/11). One was on the oft-raised issue of how much it takes to prove the “cohabiting in a situation analogous to marriage” element of the alimony cutoff statute, §20-109.1 A. (The opinion never mentions the statute because this case concerned the application of agreement language tracking the statutory wording.) On the child support calculation question, the ruling was simple and straightforward: that the calculation statute means what it says. §20-108.2 C requires that the calculation begin with the parties’ gross income, and that that includes alimony. Wife’s counsel had argued, and the trial judge had apparently agreed, that husband’s payment of the alimony had been spotty or irregular, and the trial judge said he did not think alimony should be included in the wife’s income. This ruling, the Court of Appeals says, was simply wrong. The fact that performance has been spotty or irregular, the appeals court explained, does not make a difference, because it does not say that in the statute. On the alimony cutoff question, this was one of those cases where ex-wife and her boy friend had carried on their sexual relationship without actually moving in with each other. So this issue was fairly easily determined too. The boy friend testified that he didn’t even have a key to the ex-wife’s house, and kept only “incidental items” there. Whether this went on for over a year or not, it did not establish marital cohabitation. As it has explained endless times, a mere sexual relationship, even a long-term one, will not do the trick because more is required -- like living together, for one (and only one) thing. It also includes “carrying out the mutual responsibilities of the marital relationship.”

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.

 

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).

Hamilton: CHILD SUPPORT – MODIFICATION AND CONTEMPT – WILLFULNESS ELEMENT – PAYEE IMPUTATION.

In a rare opinion that combines downward modification and payee imputation as to child support, the Court of Appeals says a couple of things which, were it not an unpublished opinion, would raise some doubt about the time-honored, if draconian, rules in this area.  In Hamilton v. Hamilton, unpublished, 23 VLW 527 (10/7/08), the Court of Appeals said it was all right for a Fairfax Circuit Court to impute income to the mother, who had retired from the Navy and obtained (you might say) another job paying $24.55 per hour but then had (sort of) quit that and gone to work as a part-time social worker at $14.71 per hour.  The only reason the mother gave for the job change was that she wanted to “work with troubled youth.”  As for the mother’s interesting objection that the trial court had no business reducing the father’s support when he was in arrears or in some respect non-compliant with the existing order (in fact, he unilaterally halved his payments when a child aged out), the trial court’s reasoning was that he was not in contempt of the old order, because — listen up — because the element of willfulness hadn’t been proved, and the Court of Appeals affirms that. 

Hamilton: CHILD SUPPORT – MODIFICATION AND CONTEMPT – WILLFULNESS ELEMENT – PAYEE IMPUTATION.

In a rare opinion that combines downward modification and payee imputation as to child support, the Court of Appeals says a couple of things which, were it not an unpublished opinion, would raise some doubt about the time-honored, if draconian, rules in this area.  In Hamilton v. Hamilton, unpublished, 23 VLW 527 (10/7/08), the Court of Appeals said it was all right for a Fairfax Circuit Court to impute income to the mother, who had retired from the Navy and obtained (you might say) another job paying $24.55 per hour but then had (sort of) quit that and gone to work as a part-time social worker at $14.71 per hour.  The only reason the mother gave for the job change was that she wanted to “work with troubled youth.”  As for the mother’s interesting objection that the trial court had no business reducing the father’s support when he was in arrears or in some respect non-compliant with the existing order (in fact, he unilaterally halved his payments when a child aged out), the trial court’s reasoning was that he was not in contempt of the old order, because — listen up — because the element of willfulness hadn’t been proved, and the Court of Appeals affirms that. 

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. 

Robbins v. Robbins: PROPERTY DIVISION – VALUATION – RIGHT TO REAPPRAISAL AND RE-VALUATION – MARITAL AND SEPARATE – SOURCE OF FUNDS – TRACING – SUFFICIENT EVIDENCE OF SOURCE AND OF DEPOSIT-WITHDRAWAL RATIOS – ALIMONY – RELATIONSHIP TO CHILD

The Court of Appeals in Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615, 21 VLW 265 (8/1/06), revisited a subject that has been kicked around several times before, the re-valuation of real estate that has increased dramatically in value while the litigation went on. In doing so it provided welcome clarification on just what the “law of the case doctrine” is and is not.

Stewart-Payne v. Payne: CHILD SUPPORT – MORTGAGE PAYMENTS ON HOUSE OCCUPIED BY WIFE AND OWNED BY HUSBAND.

In what would seem on the surface to be a fairly common-sense case, the Court of Appeals reversed a trial judge who (A) ordered the husband to pay the mortgage on a house husband owned while wife and child were occupying it and credited those payments against the child support he had ordered, but then (B) failed to change this order after the house was damaged by fire and could no longer be occupied.  What exactly the judge did in Stewart-Payne v. Payne, 22 VLW 1061 (unpublished, 1/28/08), was to order the husband to keep paying the mortgage on the uninhabitable home and receive a credit toward his child support for doing so – thus not paying in cash the full amount of child support to the wife.  (This arrangement was part of a pendente lite consent order.)