Virginia Family Law Appeals

Support changed when custody order changed, not when child moved, by literal terms of contract - Voltz v. Voltz

CHILD SUPPORT – AGREEMENTS – RETROACTIVITY OF SUPPORT-PROVISION CHANGE – CHILD’S MOVE TO FATHER’S HOUSE.  A case from Loudoun County involving a “Parenting Agreement” between two apparently divorced spouses has perhaps been media-hyped as something more than it is.  The question in Voltz v. Voltz,____ Va. App.____, ____SE2d____, (3/27/12), was not whether the agreement was enforceable as to child support (a matter never in dispute), but how the agreement should be interpreted. For the Court of Appeals it involved interpretation of the language of a crucial clause as to retroactivity of support-amount changes and also the statutory power of courts to grant such remedies. Father contended that the trial court erred and was not faithful to the written agreement when it refused to modify the child support amount retroactive to the actual day their daughter’s residence changed from mother’s house to his house. The Court of Appeals also had to interpret the arbitration decision that resulted from the parties’ dispute, since the agreement provided that the dispute should be arbitrated. That decision, helpfully or unhelpfully, but somewhat oddly, determined a child support amount, and said that future modifications would be justified in the event of “a material change in the Parenting Agreement,” which would seem to be a circular way of saying never. The father certainly had not slept on his rights: the day after the daughter moved in with him full time, he moved to modify the custody order, and the trial court then awarded him physical and legal custody.  When he moved to modify child support, the dispute was over the date the new amount should start.  The trial court held that the new amount should start only from the date the new custody order was entered.  That meant that he still had to pay for the entire year 2008 despite the daughter’s living with him a significant part of the year.  On appeal the father claimed that the trial court had thereby modified in non-compliance with the agreement, since there was certainly a “material change,” in the sense used by that contract when the daughter moved. Support payments become judgments as they become due, so generally courts can modify only retroactive to the time of filing for modification, but courts are allowed to impose a solution reflecting the parties’ agreement about future modifications, as such provisions are “valid and enforceable,” under §20-109.1. And that leaves the arbitrated agreement, which did include a provision binding them to modified child support immediately if one of the children moves to the other’s residence.  Here, in arguing for the earlier modification affecting this date, the father relied on the “if there is a material change in the Parenting Agreement …” language of the arbitrated decision. Now obviously, as the appellate court noticed right away, that decision calls for changes in the agreement itself, not in the residence of the child. A modification of the agreement took place when the circuit court modified it by changing the daughter’s custodial residence by Order dated April 17, 2009, but there hadn’t been a change to the agreement before that. Changes in the language of a written agreement are certainly not the same thing as a change in actual physical location of a child’s home. The Court goes on to make the matter even more abstract by more deeply analyzing the agreement itself, but that didn’t change the result.  After his first argument understandably failed, the father went on to invoke another paragraph of the agreement saying that “child support payments shall continue to the … cessation of his or her residence with either parent.” In a bit of reasoning that may leave some readers struggling behind, the appellate court says that that language meant when the family support obligation ended rather than the time physical residence ended.  But it’s obvious that neither one of the parties intended to end the child support obligation entirely upon this change of residence, since that would contradict the earlier agreement paragraph stating that modification would happen if both children ended up residing primarily with one party, and if the agreement itself changed.  Obviously, this appeal was not a frivolous one, and the father’s argument had been “fairly debatable,” so such fees are denied.  The trial court did not violate the terms of the Parenting Agreement and therefore the decision is affirmed.    

 

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. 

QDRO can be used to enforce support - Va. Ct. in Nkopchieu v. Minlend

SUPPORT ENFORCEMENT – PENSIONS – USE OF QDRO TO ENFORCE.  Less than three months before the Legislature got around to passing this Session a statute authorizing the courts to use a Qualified Domestic Relations Order as a support-enforcement device, a case called Nkopchieu v. Minlend, 59 Va. App. 299, 718 S.E.2d 470 (12/20/11), held that existing law authorized courts to do that anyway. It would not be fair to say that was the judges’ way of telling the General Assembly not to meddle in matters of legal development and public policy, especially as the two branches agreed here. The whole matter would probably have been much simpler and never have arisen, or have been determined years ago, except for the Virginia appellate courts’ dogmatic and doctrinaire approach to the abstract question of whether to characterize an income stream like a pension as income or property. Of course we must remember that the declaration that pensions are property, and other money flow is income, and never the twain shall meet, is what enables the courts to double dip on behalf of non-employee spouses and treat the same money as property in order to divide it in equitable distribution and then order the retired wage earner to pay the rest of it to the ex-wife in alimony and child support, even if it’s now his only income. It’s frequently explained that this is proper because she has two sacred rights of entitlement to that same fund in the hermetically-sealed categories of property and income.  This abstraction has perhaps been what confused some trial judges for so long, despite the clear intent of the first pension-division  statutes, the federal employee ones, that a judge could order division of the pension for property division purposes or support purposes. The unpronounceable instant case was a rather unusual one, in which this husband had failed to make any of the ordered child support payments, and the wife filed an unsuccessful motion for entry of a QDRO to attach husband’s QDRO for the sole purpose of paying the child support arrearage. The arrearage had been over $28,000. His retirement account was the only asset available for attachment and the Court of Appeals  held that this was a proper remedy, including making the ex-wife an “alternate payee” of the plan’s benefits by QDRO under ERISA, specifically 29 U.S.C. §1056(d)(3)(J, K). Though the trial judge thought his denial was required by Hoy v. Hoy, 29 Va. App. 115, 510 S.E.2d 253 (1999), the Court of Appeals held that neither that case nor any other provisions of Virginia domestic relations law keeps circuit courts from granting such a QDRO, and neither does ERISA. The appellate judges distinguish Hoy as an attempt to reopen a divorce case that had already been filed for over 20 years to enter a QDRO against a retirement account that did not even exist at the time of the divorce.

 

Perhaps more interesting in Nkopchieu v. Minlend was the father’s argument that the mother was precluded by a pre-marital agreement in which she expressly disavowed any property interests in husband’s retirement assets.  Her counsel argued that ERISA allows the court to enter a QDRO for the two separate purposes of property division and support, and that she was not looking for property division at all in this instance, but invoking the second purpose of the QDRO in addressing child support use of a retirement account. The marital agreement in fact provided too that “nothing in this agreement shall be construed as limiting the right of either party to make claims for child support,” and the mother said she was simply pursuing a claim for the arrears of unpaid child support. She was trying to enforce her children’s rights to support through a garnishment-like process, and not to establish property rights for herself. And mother’s counsel argued that this woman could have enforced a judgment against a debtor even if she had never been married to this man.  Indeed, the Court of Appeals says, it is established Virginia law that the obligation of child support is owed to the child, not the mother.  What the mother does when she sues is act as a “conduit” for the payment of support to the children.

 

     True, ERISA does say that retirement funds cannot be assigned or alienated, but this prohibition, the Court of Appeals says, does not apply when a state domestic relations order is determined to be a qualified one under 29 U.S.C. 29 U.S.C. §1056 (d)(3). QDROs are an exception to the alienation and assignment provision.  Section 20-107.2, the court says, authorizes making fathers pay their child support obligations.  The court said it could not reach the question of whether the mother’s draft QDRO actually qualified as one under ERISA’s “technical” requirements about the contents of such orders, because the trial judge never reached those questions in the trial below.  It was remanded to give him an opportunity to do so.

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.

 

Va. S.Ct.: 20-year statute of limitations applies to support enforcement

SUPPORT ENFORCEMENT – STATUTE OF LIMITATIONS – JUDGMENTS – TWENTY-YEAR STATUTE APPLIES.  Yes, the statute making every child support installment a judgment from the minute it is due and unpaid means what it says, the Virginia Supreme Court points out.  But for that very reason, the Supreme Court tells the DCSE in Adcock v. Commonwealth, ___ Va. ___, ___ S.E.2d ___, 26 VLW 670 (11/4/11), the general 20-year statute of limitations on judgments, §8.01-251, means exactly what it says too, and it applies to these judgments going back 20 years or more.  Nothing in the statute makes an exception or says it doesn’t apply, and therefore a “deadbeat Dad” does not have to pay them.  This is all nothing but statutory interpretation, the Supreme Court says, and it is straightforward and simple.  The only quirk is the established legal principle that a statute of limitations does not apply to an ongoing judgment that you will have to pay future child support, but those payments that were missed and became instant “judgments” against the payor parent are not that, and just like any other judgments, after 20 years they became uncollectible.

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.

 

Briggman case: If you pay support arrears to get out of jail, you can't appeal them

SUPPORT ENFORCEMENT – DCSE CASES – LONG-SINCE-EMANCIPATED CHILD – ARREARAGES – CONTEMPT – APPEALS.  Did you really have any doubt that it would work this way?  Because it’s all very logical and legal, you see.  The child was no longer a child as of 2002, and in 2008 the DCSE sought a contempt Rule for failure to pay toward an arrearage.  When the JDR court threw out this litigation, the DCSE of course appealed to the circuit court, which held this father in civil contempt for an arrearage of $13,534.85 as of July 2009 and sent him to jail for a year.  That July 27, 2009 Order specified that the $13,534.85 amount would begin accruing interest if not paid and purged by August 5.  That was an inducement, but also it could not have been too pleasant in the Prince William jail in late July and the man paid under protest on July 31 and was released, secure in the knowledge that he could always go to the Court of Appeals, and promptly filed his appeal there.  But of course, the Court of Appeals explained as it summarily dismissed his appeal, his payment of the money meant the whole thing was moot and there was no live case or controversy.  No more support is accruing on an emancipated child, and no, he doesn’t get back any of that support that he paid the mother for those adult years.  Briggman v. Commonwealth, DSS, DCSE, unpublished, 24 VLW 1314 (4/27/10).

Va. Ct.: If you follow the court's order, you can't appeal it

APPEALS – MOOTNESS – DISMISSAL – PAYMENT OF ORDERED AWARDS.  You had sure better get a suspension of judgment if you’re thinking about appealing any case, because there is no such thing as a payment under protest that can still be appealed, the Court of Appeals points out in an unpublished opinion known as Stephenson v. Musgrave, 25 VLW 47 (5/18/10).  The husband’s appeal is dismissed because he had voluntarily paid the $3,000,000 equitable distribution award and $72,000 fee award and he is now barred from appealing these paid amounts.  However, the bone the Court throws to the husband is that since he asked to have an alimony reservation for himself, it was error for the trial court to deny it under §20-107.1(D).

Va. appeals ct. eliminates statute of limitations on suport arrears for child who's 42

SUPPORT ENFORCEMENT – ARREARS – 1966 ORDER – LONG-EMANCIPATED CHILD. The appellate courts have been mighty fond of quoting, at every opportunity, the principle of Virginia law that every support payment becomes a judgment the moment it is not timely paid, but it appears that that doctrine has its limits. In these parties’ 1966 divorce, the decree ordered husband to pay $30.00 per week for three kids until majority, etc.  The youngest child became an adult in 1982, and in 2006 the mother got DCSE to enforce the 1966 support order, for a total of $72,629.  Applying Bennett v. DSS, 15 Va. App. 135, 422 S.E.2d 458 (1992), which involved an alimony judgment, the Court of Appeals majority holds that the statute of limitations on judgments, §8.01-252, which is now 251, does not apply to child support or alimony judgments.  It would apply only if a foreign order had been earlier liquidated by reduction to a judgment.  The majority goes to some trouble to refute the views of the dissenting judge, and holds that the 20-year statute of limitations of §8.01-251 applies to liquidated money judgments but does not apply here.  The child support order creates an ongoing rather than a liquidated form of money judgment.  Dissenting Judge Coleman distinguishes Bennett as an alimony case, seeing a fundamental difference between alimony and child support orders in that child support obligations always terminate and become fixed by simple operation of law and expiration of time.  He also disagrees with the Majority’s statement that no principled reason exists to treat such an old child support obligation differently from ongoing and unliquidated support obligations as to children who are still children.  The youngest child attaining majority converts this, he says, into a fixed and ascertainable sum certain and that sum was due, payable, and ascertainable, and not modifiable, as of that youngest child’s birthday, which was over 20 years ago, since that little boy is now a 42-year-old man.  Adcock v. Commonwealth (DSS) 56 Va. App. 334, 693 S.E.2d 757 (6/8/10).

Phifer: SUPPORT ENFORCEMENT – LACK OF NOTICE – WAIVER – FINAL SUPPORT ORDER REGISTRATION – APPEALS – INTERIM ORDERS.

 Lawyers when they first get into the business of trying to litigate against the support-enforcement bureaucracies are often astonished to find out about the many ways in which it can be too late to attack a judgment, judicial or administrative, of liability no matter how legally, factually, jurisdictionally or procedurally deficient the ruling was.  But the Court of Appeals actually reversed a trial court’s registration of a foreign-state liability judgment despite the many circumstances from which the DSS argued waiver of all due process rights.  This was a no-notice default-judgment holding by the State of Washington under the Full Faith and Credit Child Support orders Act, and in fact that Act does provide that the violation of constitutional due process rights is a valid ground for a judge to bar registration of the judgment in Virginia.  First, though, the Court of Appeals had to find that there was reason to entertain an appeal from the Virginia judgment allowing registration, since the DSS argued that this was itself an unappealable interlocutory order.  The Court of Appeals held, however, that it was an order “adjudicating the principles of the cause” under §17.1-405(4).  It was granted that this defendant had given Washington State’s DSS a New York address that was no good, forcing the Court of Appeals to admit that he was “not altogether blameless in this matter.”  But they clearly knew from the return of the mailing that he was not at that address, and they also had a perfectly good Washington State address for him, which they chose not to use.  They argued that they were under no obligation to do anything more to seek him out, no matter how definite, firm and accurate their actual knowledge of where he actually was.  The Court of Appeals rejects that proposition.  Washington authorities, the Court says, were obligated to use a method of finding and serving him that would be reasonable for a person to use who actually was interested and actually wanted to find the defendant.  The Court of Appeals looks to Washington State law, in fact, to see what the appellant’s procedural rights with regard to notice were in this situation, which was complicated by the fact that the first time he received defective notice this defendant actually appeared and sought to contest the Washington State finding.  What happened, though, was that the matter was not heard at that time and a rescheduled hearing was set later on, of which he was never informed until much too late to do anything about it.  Granting that a defendant’s actual appearance is a waiver of any deficiency of notice, and that this defendant’s showing up was a waiver of his notice rights at the time, the Court of Appeals says that there is no U.S. Supreme Court nor Virginia appellate ruling, and is a split of authority nationwide, on the question of whether such a waiver of notice rights by actual appearance is permanent, and so finally waives notice that it extends to other hearings and other rulings resulting in a default judgment.  The Court says that it sides with the majority position that a waiver situation like this one will not insulate a judgment from collateral attack on grounds of due process violations.  Washington law, the Court says, gave this defendant a right to have notice of the rescheduled default judgment hearing, and thus he had a valid due process expectation that was violated here.  Phifer v. Commonwealth, DSS, DCSE, unpublished, 24 VLW 470 (9/22/09).