Virginia Family Law Appeals

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.

Allen v. Allen: DIVORCE GROUNDS – DESERTION AND CONSTRUCTIVE DESERTION – CONDONATION – “WAIVER OF CONDONATION” IMPOSSIBLE.

A wife who left her husband and came to court on a theory of “constructive desertion” did not manage to sell her theory to either the trial court or the Court of Appeals, and the divorce granted to the husband on grounds of her desertion was affirmed in Allen v. Allen, 22 VLW 677, unpublished (10/23/07).  The wife’s theory, when she got to the stage of final argument at trial, was that husband had sexually abused a minor family member, and the thought of that made her so sick that she could not continue to live with him without endangering her life and health. The first problem with that theory, as an opinion by Judge Clements of the Court of Appeals points out, was that she learned of the abuse allegation and lived with her husband for the next seven years in a state of full marital cohabitation, and thus whatever husband did was condoned. 

DESERTION – AFTER SEPARATION AGREEMENT – INHERITANCE LAW – AUGMENTED ESTATE – DISQUALIFICATION AS A DESERTER.

When it comes to the intersection of divorce law and inheritance law in Virginia, you can learn some things you never knew, and probably never even suspected, from a recent remarkable Supreme Court opinion in Purce v. Patterson,  654 S.E.2d 885 (1/11/08).  It was a hard case.  It did not involve a widow, but it certainly involved a widower, and he did not come off very well.  This was one of those Statement of Fact cases, and according to the judge’s Statement of Fact, this Westmoreland County husband had been a thorough rotter, making nothing but negative contributions to the marriage.  In a unanimous seven-judge opinion by Senior Justice Lacy, the Supreme Court went into the nature of desertion and abandonment in divorce law and in inheritance law, analyzed each, and found them to be markedly different.  This served to justify upholding the trial judge’s decision to disqualify this widowed husband from having his statutory share of his late wife’s estate under §64.1-16.3(A) on grounds that he abandoned her. 

PROPERTY DIVISION — PUNISHMENT OF CONDUCT — CRIMINAL CONVICTIONS AND DISSIPATION — PAYEE IMPUTATION — NEW JOB OFFER REQUIRING DISTANT MOVE.

The same court that has so sanctimoniously scolded moral condonation of adultery in some cases finds plenty of scope for legitimate punishment of immoral conduct in the case of a man who incurred criminal convictions and sentences, causing his wife great embarrassment and the family assets considerable expense.  The commissioner, upheld by the circuit court, found that the husband's convictions had a "devastating impact on the marriage."  Wife's symptoms of great emotional distress included weight loss, and treatment for stress and depression resulting from the scandal.  The trial court awarded the wife 90% of the marital property, plus a monetary award, and the Court of Appeals finds that proper. So it is perfectly all right, once the state has punished a criminal offender through the criminal law system, for the divorce courts to punish him again for the same conduct, but  the trial court "did not impermissibly use husband's criminal conduct punitively," whatever, exactly, that means.  The $20,018 award was a dissipation remedy, for the husband had withdrawn $59,000, of which $20,018 was approximately half, from his retirement accounts to pay restitution costs.  It was also all right for the court not to impute income to the wife, because when her job was eliminated, the employer's offer of a new job was in Norfolk, and that would have meant moving when the children were in school in Fairfax.  Also upheld is the $20,000 fee award.  Budnick v. Budnick,   18 VLW 1137 (4/20/04).

PROPERTY DIVISION FACTORS — MARITAL FAULT — "NEGATIVE NON-MONETARY CONTRIBUTIONS" — POST-SEPARATION ADULTERY.

The Court of Appeals is still apparently as thrilled with the concept of negative non-monetary contributions as it was in O'Loughlin v. O'Loughlin, 20 Va. App. 522 (1995), which it cites in upholding a Botetourt County decision penalizing a husband for — yes — his post-separation adultery.  Well yes the Court has said some things about post-separation adultery meaning nothing, but in this case the difference is that the separation caused the wife so many emotional problems that she incurred over $13,000 in "medical" expenses dealing with them.  Thus the court had the right to consider this adultery in decreeing property-division percentages.  Mitchell v. Mitchell, Unpublished, 12 VLW 1367 (4/14/98).

PROPERTY DIVISION – MARITAL/SEPARATE – SOURCE OF FUNDS – TRACING – PROOF REQUIREMENTS – FACTORS – FAULT FACTOR – ALIMONY – INCOME – GIFT OR LOAN – APPEALS AND REMEDIES.

The rigid requirements for source-of-funds tracing in Virginia seem to have been increased by an unpublished opinion in Towner v. Towner, R1072-05-4 (9/26/06), which sets an incredibly high threshold for proof. A wife showed that she had sold her separate real estate and deposited the money into a separate account – but her showing that she then withdrew the money and applied it to the down payment on a new marital home was not sufficient to satisfy the Virginia Court of Appeals. The trial court ruled that she had demonstrated a $20,000 contribution, and awarded her that absolute amount (not a Brandenburg portion), but on reconsideration it was convinced to reduce it to $9,780, which figure the husband then conceded she had spent. Despite the wife’s showing that she had this separate property money just before the former marital home purchase, the Court of Appeals said that wife did not (1) identify a specific portion of the hybrid property, and (2) directly trace that portion to a separate asset.

SEPARATION AGREEMENTS – CONTRACTUAL ALIMONY – ADULTERY CUTOFF CLAUSE – NEED TO PLEAD ADULTERY AS A DIVORCE GROUND.

Hall v. Hall, unpublished, 20 VLW 587 (10/11/05).
A couple’s separation agreement provided for alimony which would be precluded or terminated if the recipient wife committed adultery. The trial judge was way off base and abused his discretion, the Court of Appeals held, by ruling that the husband could not invoke the agreement’s defense against alimony in the divorce case without having filed for divorce himself on adultery grounds. Nothing in the agreement says that, and nothing in §20-107.1 or any other statute says that, the Court of Appeals observed.

ADULTERY – AMENDMENT OF GROUNDS – POST-SEPARATION.

The Court of Appeals has said a few times lately that post-separation adultery can be considered a minor thing which a judge may disregard, but it is not about to say that a judge who considers it significant will be reversed.  Thus the ruling of a Loudoun County judge who allowed a husband to file a supplemental Cross-Bill alleging adultery that occurred after the wife's divorce filing and more than a year after the parties separated was affirmed in the unpublished case of Block v. Block, 18 VLW 886 (1/13/04).  The trial court granted the husband his adultery divorce on the Cross-Bill and that was affirmed.

ALIMONY — FOR UNPLED FAULT GROUND — PROPERTY CLASSIFICATION.

A trial court properly denied the husband a reservation of spousal support (even though he just lost his job during the proceedings), on grounds that he was guilty of desertion, the Court of Appeals holds in an unpublished opinion in Eisenberger v. Eisenberger, 11 VLW 620 (11/19/96). It does him no good to argue that the Legislature amended Code §20-107.1 to remove desertion as a bar to alimony, or that the wife never even pleaded desertion as a ground (this being a no-fault case). After all, the Court of Appeals says, the court is supposed to consider evidence pertaining to the circumstances of the dissolution of the marriage when it decides on alimony, and when it finds proof of desertion, it can properly find that this proof warrants refusal to grant or even reserve support. Nor was it error to refuse to amend or suspend the final decree to hear additional evidence upon learning that the husband had lost his job. It was nevertheless error to classify 100% of the husband's post-separation contributions to his profit-sharing plan as marital property.

ALIMONY -- APPEALS -- EQUITABLE DISTRIBUTION -- MARITAL AND SEPARATE.

Some of the logical fallout of the Reid v. Reid principle is seen in the Court of Appeals holding in Hurt v. Hurt, ___ Va. App. ___, 433 S.E. 2d 493, 8 VLW 232 (7/2793). The Reid rule means that if a court ordered restitution of certain paid pendente lite alimony because it later found desertion, and then the Virginia Supreme Court reverses the desertion finding, that repaid money must be repaid again to the wife. In the property-division area, Hurt seems to stand for the principle that if a husband alleges that he threw everything into one bank account, but it turns out he had a complex ledger system separating the money into different theoretical accounts for his earnings and his separate-property earnings, and the judge believes him, that ruling will stand.