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. 

Armstrong v. Hoover: JOINT CUSTODY AND CHOICE OF ELEMENTARY SCHOOLS.

Do Virginia judges make orders about what grade school a kid should go to when the parents don't agree?  A Fairfax judge did, and the Court of Appeals affirms.  The parents had joint custody, but the judge decided that father was wrong in enrolling the son in a school in his neighborhood when mother's local school got higher test scores, she had the "primary residence," and they had agreed before separation on that school.  The trial judge apparently saw this as a contempt matter for enforcement of the prior custody decree.  But even though the trial judge erred in calling her current school-choice order a "sanction," what she was really doing in Armstrong v. Hoover, unpublished, 20 VLW 1530 (4/11/06) was exercising her modification authority under Code § 20-108, the Court of Appeals says.

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).

Briggman v. Commonwealth: DCSE LAY-EMPLOYEE PETITIONS – UNAUTHORIZED LAW PRACTICE?

CHILD SUPPORT ENFORCEMENT — CIVIL RIGHTS ACT SUITS – DCSE LAY-EMPLOYEE PETITIONS – UNAUTHORIZED LAW PRACTICE – ABSTENTION  – STATE GOVERNMENT IMMUNITY.  The federal Civil Rights Act Suit claiming that it was unconstitutional for the Virginia Department of Child Support Enforcement to file contempt motions, signed by non-lawyer employees rather than attorneys, against alleged deadbeat parents, was thrown out by the Western District in Briggman v. Commonwealth, 22 VLW 949 (12/21/07). 

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

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. In Ipsen v. Moxley, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 1392 (4/10/07), 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.

SUPPORT ENFORCEMENT — PAST REMEDIES — RETROACTIVITY — ORDER AGAINST PENSION — QDRO STATUS.

Support arrearages can be satisfied in many ways today, especially when there is a large judgment for the arrearage, but a wife who obtained a judgment in the year 1985 for $84,000 alimony arrearages from her 1973 divorce decree cannot have the Circuit Court re-open the divorce case and enter a QDRO so as to take the arrearages out of husband’s pension.  (Neither the pension nor §20-107.3 existed in 1973.)  This would substantively modify the terms of the old final decree, violating the 21-Day Rule, and accordingly it does not qualify as a QDRO under ERISA, 29 USC §§1001 et seq.  The opinion apparently does not deal with using an ordinary garnishment order and other collective remedies to enforce this arrearage.  The Court of Appeals in this case, Hoy v. Hoy, 29 Va. App.115, 510 S.E.2d 253, 13 VLW 1026 (2/2/99), points out expressly that cases from other states have very little value in this regard.

SEPARATION AGREEMENTS -- COLLEGE EXPENSES -- 2 cases

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

SEPARATION AGREEMENTS – EXECUTION – FORMALITIES – SIGNED BY COUNSEL OR PARTY – MODIFIABILITY – §§20-109, 109.1 – LANE CASE OVERRULED – PENDENTE LITE ORDER AS PERMANENT AGREEMENT

Quite a case came down from the en banc Court of Appeals in Newman v. Newman, ___ Va. App. ___, ___ S.E.2d ___, 18 VLW 972 (3/2/04). Despite the recent case law indicating that a separation agreement now has to be signed by the parties – not just counsel – the Court of Appeals now takes us back to the way things used to be done by holding that of course counsel can sign an agreement for a client, and of course there is nothing invalid or non-binding about a consent order signed by counsel.

SEPARATION AGREEMENTS -- INTERPRETATION -- BREACH -- TIME OF ESSENCE -- INCOME-VERIFICATION DOCUMENTS -- DRAFTING

When a wife breaches one of those familiar separation agreement clauses that requires the parties to verify their income levels with tax returns each year, that does not allow the husband to stop paying the support, the amount of which depends on the non-exchanged information, the Court of Appeals held. This is because time is not of the essence in contracts unless the contract expressly says so. Dziarnowski v. Dziarnowski, ___ Va. App. ___, 418 S.E.2d 724 (1992).

Support Enforcement: 3 cases under URESA

Reveiws of Bennett v. DSS, Price v. Price, and Taylor v. Taylor.