Virginia Family Law Appeals

Welfare agency must turn over child interview tape; prosecutor must seek, evaluate exculpatory evidence - Va.Ct.

CRIMINAL ISSUES – CHILD SEX ABUSE – DSS WITHHOLDING OF EXCULPATORY STATEMENTS – PROSECUTOR’S BRADY RESPONSIBILITY – EXPERT TESTIMONY.  A criminal case from Dinwiddie County, Tuma v. Commonwealth, 60 Va. App. 273, 726 S.E.2d 365 (6/12/12), holds some valuable information for the family lawyers who, sometimes unavoidably, get into these kinds of litigation.  Even for those who don’t, it contains some welcome recognition of constitutional limitations on the power of social service agencies to conduct interviews and then deny access to the tapes of them, and an explicit declaration about the inability of prosecutors to avoid their civic and professional duties to safeguard and respect defendants’ constitutional rights.  When a man was arrested for interfering with his 5-year-old stepdaughter, the child was interviewed by the county social worker and a Sheriff’s Department investigator, and the 30-40 minute interview was taped.  At trial, it came out that the social worker still had the tape in her possession and the defense counsel, as a matter of discovery, asked to have it played.  Investigators, of course, were ready to testify to the hearsay statements of the child.  That was denied, and after the investigators and the “counselor qualified as an expert on adolescent trauma” testified, counsel moved to strike on the ground that the audiotape was the best evidence and that it had never come out.  When the judge asked the Commonwealth’s Attorney whether he knew if the tape was exculpatory or not, the answer was no, because the social service agency had stood on their privilege to deny him access to it.  When the judge asked the prosecutor if he was willing to “stand on” his statement about what was not on the tape he had not heard, he said yes.  The judge said that if the prosecutor did not know, he would be violating the Brady rule. But after the judge asked the Commonwealth’s Attorney again whether he knew what was on the tape and the answer was no, the judge still denied access, held that the proof was adequate, and let the case go to the jury.  The Supreme Court, citing such authorities as English case law from 1243 as to the public role and responsibility of public prosecutors, and The Public Records of the Colony Of Connecticut from August 1689 to May 1706, did not find the ruling of the judge valid, nor the performance of the local authorities in Dinwiddie County adequate to satisfy constitutional standards.  In a lengthy opinion with many citations, the majority held that it is the prosecutor, and not the county DSS, that must decide whether evidence in their possession is exculpatory and constitutionally required to be made available to the defense under Brady v. Maryland, 373 U.S. 83 (1963), and that no prosecutor can dodge this responsibility on the alleged grounds that it is privileged “as a product of a social services investigation.”  It specifies that the Commonwealth’s Attorney had a duty to listen personally to the audio recording of this victim interview to determine for himself whether it contained exculpatory material, and he could not simply rely on the investigator’s notes about the recording to stand up and represent to the trial court that it contained nothing exculpatory as grounds for refusal to disclose it to the defense.  The Court went on to hold that the jury is not required to accept the testimony of a qualified expert witness as to the meaning and adequacy of a victim’s statements, non-statements and silent physical actions — which in this case were not wanting to talk about the incident, pacing in the expert’s office, avoiding eye contact, avoiding the subject, and leaving the expert’s office — as proof.  There were dissents by Judge Kelsey and an even longer one by Judge Beales.  These were lengthy and scholarly dissents, though space considerations preclude summary of them here.

Mixing business, personal affairs makes adultery an attorney-client privilege - Va. Ct.

ADULTERY – PROOF – ATTORNEY-CLIENT RELATIONSHIP (AS A DEFENSE AND AS A PRIVILEGE CLAIM). In an unusual (we would hope) recent case a lawyer wife was able to defend herself against her husband’s adultery complaint by invoking her attorney-client relationship with the alleged paramour both as a substantive defense and as one of her privilege claims. Oh yes, and by taking the Fifth Amendment. Having invoked her right against self-incrimination, her defense was that all her conduct could be explained as pursuit of her attorney-client relationship with her business client, and then when asked to explain her conduct, she invoked the attorney-client privilege because it would divulge business-related information belonging to the alleged boy friend’s business, which she represented. Perhaps the trial court should not have granted the wife’s motion to strike these complaints when it decided to grant a no-fault divorce instead, but since (the court held) she had plausible explanations for her suspicious conduct, it would have been harmless error anyway. On appeal it was the husband’s burden to demonstrate how the ruling on the motion prejudiced his right to a fair trial, and the evidence that the husband did proffer was legally insufficient to compel an adultery finding. Moreover, the Court of Appeals found in this unpublished case, Jordan v. Jordan, 27 VLW 160 (6/26/12), that there was nothing in the record showing any adverse ruling by the trial judge when the wife’s assertion of her Fifth Amendment and attorney-client privileges were challenged. Because there was nothing to show the nature of the husband’s objections to his wife’s assertion of the privileges, his arguments could not even be considered on appeal. Fee awards were denied to both parties.

Discovery sanctions preventing cross-examination went too far - Va.S.Ct.

PROCEDURE – DISCOVERY COMPULSION – SANCTIONS – CONSTITUTIONAL RIGHTS.  The law of “sanctions,” which some lawyers and some judges find irresistible, includes a very interesting combination of the purely punitive punishments, such as fines, and what you might call the “crippling sanctions,” which punish not only guilty lawyers and guilty parties, but also whatever innocent parties may be represented by ill-behaved lawyers.  These punishments, which might be likened to an execution by fragmentation grenade, are not found in the “sanctions statute,” Code §8.01-271.1, but they are included in discovery Rule 4:12(b).  That was the focus of a recent contract case from the Virginia Supreme Court, Nolte v. MT Technology Enterprises, LLC, in which repeated refusal to respond fully to discovery and comply with the trial court’s orders was finally punished under Rule 4:12(b).  The Supreme Court held that the trial court could bar the defendants from introducing evidence, but it could not prohibit them from cross-examining the witnesses against them, nor from introducing evidence on the issue of the amount of the plaintiffs’ damages.  The majority holds that the trial judge correctly found that a lesser sanction than default judgment was warranted, but it reverses the denial of the right to cross-examine and introduce counter damages evidence because “the sanction was too harsh.”  And the majority reversed the judgment and remanded for further proceedings on the damages question only.  Justice Powell, concurring in part and dissenting in part, pointed out that if these defendants were so bad, the trial court could lawfully grant a default judgment, but she emphatically asserts that the denial of the right to cross-examine was more than just “too harsh.”  She emphasizes that the right to cross-examine is a vital feature of our system of law, quotes Wigmore to the effect that “no safeguard for testing the value of human statements is comparable to that furnished by cross-examination,” and no statement should be admitted into evidence until probed by that test.  More importantly, she quotes Goldberg v. Kelly, 397 U.S. 254, 263 (1970), to that effect, and Basham v. Terry, 199 Va. 817, 824, 102 S.E.2d 285, 290 (1958), stating that the right to cross-examine is not discretionary, but is absolute. She cites Friend on Evidence in Virginia, 112 (2003 edition), and Food Lion, Inc. v. Cox, 257 Va. 449, 450, 512 S.E.2d 860, 901 (1999), emphasizing that only reversal and remand for new trial can follow the denial of this absolute right.

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.

 

Appeals Ct defers to local judge's contextual knowledge in farm-use truck case

APPEALS – EVIDENCE — TRIAL JUDGE DISCRETION – LOCAL STANDARDS – “SAW AND HEARD THE WITNESSES” RULE.  Lawyers who feel that they have been hometowned, or home-cooked, upon venturing out of their own briar patch, may want to know how the Court of Appeals thinks about these things.  A Shifflett case from Nelson County points up how Their Honors respect what the local boys and girls on the bench know, feel and believe informs the trial-judge-discretion rule that we hear so much about in family law. An unusually direct and candid statement of the appellate attitude, abeit eloquent withal, is set forth in the case of Shifflett v. Commonwealth, 716 S.E.2d 132, 58 Va. App. 732 (8/11/11), involving a Fourth Amendment decision on probable cause to stop the pickup truck of a local farmer or farm worker and arrest him.  The charges were, unsurprisingly, driving an unregistered, uninspected and uninsured vehicle with a farm use tag, and driving drunk, and the Court of Appeals unleashes the judge who is easily its most eloquent and elegant prose-stylist – at least when it comes to abstract concepts – on this poor rustic’s case. A reading of this case is recommended, but direct quotation is probably the best way to convey what took place here. Shifflett’s lawyer invoked the Fourth Amendment, and the prosecutor argued, as the Court of Appeals agrees, that practical circumstances justified a reasonable suspicion “that Shifflett – at the time of the stop – might not have been using his unregistered pickup truck consistent [sic] with the statutory exemptions governing farm use vehicles.”  The lawyers were talking, of course, about the somewhat confusing statutory provision, awkwardly written in four different statutes, of which the first one, Code Section 46.2-670, actually involved only travel from saw mills, and the second, §46.2-672, involved only the transportation of unginned cotton, peanuts or fertilizer.  The more general statute for farm use contemplates agriculture use, but also permits (§46.2-673) making a return trip from a market place or a store and transporting food and other supplies “to a farm” if the returning vehicle is one “exempted from registration” under the earlier statutes.  Judge Kelsey cites several circumstances to support the cause-probability, conclusion: that the truck “displayed a store-bought farm use tag” instead of a genuine home made one (Huh? Well maybe it’s akin to betraying yourself un-country by using instant grits.)  Also there were three people in the cab, and finally the clincher: that the truck “traveled” north on Route 151 in Nelson County at nearly 10:00 pm in the dead of winter after a snowstorm.” These facts were “further amplified” by what some might consider the State Trooper’s concluding from his observations, or at least his summary thereof, that “in the winter time you don’t see many farm use vehicles on the road.”  (Also, perhaps, the best of circumstances for fortifying yourself with a little antifreeze, but not, in hindsight, a good idea.) Anyway the trial judge apparently thought “No, you don’t,” believed the cop, believed the cause probable, and upheld the stop. The rest is precedential history.

Judge Kelsey explains, “to those outside the local community, these circumstances may mean very little.  Under settled law, however, a trial judge applying the Fourth Amendment ‘views the facts of a particular case in the light of its distinctive features and events of the community.’” (Which perhaps you didn’t know, but it’s from Ornelas v. U.S., 517 US 690 (1996).)  Judge Kelsey continues, “and these background facts, though rarely a subject of explicit findings, informed the judge’s assessment of the historical facts.” And perhaps most helpful of all, “Given a trial judge’s unique capacity to conceptualize the facts, appellate courts give ‘due weight’ to the inferences drawn ‘by resident judges … applying … principles to fact patterns unique to their local communities.” The Judge further explained, “We acknowledged Shifflet’s complaint that the trial court’s analysis, which we adopt as our own, relies heavily on generalities.  But, truth be told, it is supposed to be this way.  The reasonable suspicion standard itself is a ‘somewhat abstract’ and ‘elusive concept’ that cannot be reduced to a ‘neat set of legal rules.’ [Citations omitted]” Well. For a well turned phrase, you got to admit, you cain’t beat that with a stick.  To conclude, the opinion tells us that “we thus find it unnecessary to find or develop a grid of all possible lawful uses of an unregistered farm vehicle [I’ll tell thee, friend, farmers have to.] … to determine whether the facts convincingly negate each hypothesized use.” Rejecting use of such a grid, Judge Kelsey goes on a right smart piece into doing exactly so, garnering (to invoke an agricultural metaphor that’s already a little too much in vogue these days), along with the previously-cited statutes, Subsections 665(A) and 665(B)(2) (letting you go 30 miles from one of your farms to another).  And, not to put too fine a point on it, explains how that means “picking up a plow from another farm would certainly qualify, while [aw, shucks] picking up a case of beer to drink on the ride home would not.”  Now the next question, presumably, would be not about a case of beer that you do not drink.  Well, that is, not entirely, anyway – on the way home, but that’s another story.  This Judge’s agile mind and facile pen carried him into further instructive speculations, for which a full reading of the opinion is truly recommended. ULTIMATE LESSON: When that ol’ judge on the bench says “Contextualize me,” you better watch out.

Video, psychologist evidence allowed to refute child molesting accusations

EVIDENCE – SELF-SERVING VIDEO OF PARENT-CHILD INTERACTION – DEFENSE AGAINST ABUSE ALLEGATIONS – FEE AWARDS AGAINST ABUSE-ALLEGING PARENT. The Court of Appeals rulings in the appeal of a Fairfax custody case would all be fairly interesting and instructive if it were not for the many Rule 5A:18 rulings in the disposition of this appeal. However, a couple of the remaining appellate rulings are worth summarizing for readers. This unpublished case, Jaouni v. Salah, 26 VLW 988 (1/24/12), turned upon denial of a protective order to the mother against her divorced husband, who had visitation rights. The mother had gone to the juvenile court for a protective order alleging that the father physically abused the 8-year-old daughter during visitation, beating her and touching her private parts, which he vehemently denied. And although there had been evaluations by a licensed clinical psychologist of both parents in a separate case, and the trial court allowed this psychologist testimony on the abuse issue, even though the witness was never qualified in this case as an expert. The psychologist testified that the daughter “overly identified with the mother and took responsibility for her happiness.” At the end of the trial in Circuit Court, the judge denied the protective order, ordered the mother to pay $14,000 of father’s attorney’s fees, and denied reconsideration. The Court states that the mother’s objection to the non-expert-qualified psychiatrist’s testimony came too late since it was near the end of the testimony. Moreover, the trial court did not abuse its discretion, it was held, in admitting it. Apparently, the mother’s objection to the psychologist testifying on the daughter’s credibility was overruled, and the appellate court does not interfere with that. The denial of the protective order was well within the trial judge’s discretion, and it certainly appeared that the mother failed to meet her burden of proving the alleged abuse. As for admitting the father’s prepared-for-litigation video tape, it was within the judge’s discretion, as it was relevant and admissible. As for its being self-serving, etc., is concerned, that was harmless since the court well knew that it had been prepared for litigation. The trial court had expressed concern over the mother’s “posturing the daughter for litigation,” and the fee award under §16.1-279.1(E) was not an abuse of discretion. However, the Court of Appeals did remand for an evaluation of the mother’s ability to pay fees, as required by §16.1-278.19.

Left-behind parent coming to Va. for UCCJEA case can't get served here or incur Va. jurisdiction

CUSTODY – UCCJEA – CHILD-SNATCHING REMEDIES – “INCURRED PERSONAL JURISDICTION” CLAIMS – IMMUNITY FOR PLAINTIFF.  A wife coming from Belgium to get her wrongfully removed child back by invoking the UCCJEA in Harrison v. Harrison, 58 Va. App. 90, 706 S.E.2d 905 (4/5/11), had far better luck than did the father in Sasson v. Shenhar, who tried the same thing in the same local trial court, adding a Hague Convention claim as well, and was told he had incurred personal jurisdiction thereby, with all that that entails.  The Court of Appeals finds the matter simple enough in this case involving Americans residing in Belgium — a wife who decided she would like to stay there, and a father who came here, didn’t return the children after a visit when wife came to claim them, and served her here with Virginia divorce papers when she came here to litigate for a UCCJEA claim.  The fact situation was more complex than that, of course, with the children being registered for school in Belgium, numerous agreements having been signed on various aspects of this, wife’s trips back and forth to Virginia for husband’s benefit to arrange his new living situation, etc.  But stripped down to its simple elements, as the Court of Appeals views it this time, the case involved a litigant coming here to appear in court to get her children back after the other parent’s refusal to return them after a scheduled visit, and service of Virginia pleadings on her while she was here for purposes of that litigation.  That, the Court of Appeals declares, does not in any way confer personal jurisdiction upon Virginia over that litigant.  The Court points of course to the specific immunity section of the UCCJEA, Code §20-146.8, and it finds no support for husband’s claims to the contrary in the long-arm statute, §8.01-328.1(A)(9).  No doubt about the matter. The Court, in the unanimous opinion by Judge Alston, declares that the UCCJEA immunity provision means what it says:  That a party who comes here to enforce a custody order or take part in a child custody proceeding does not incur personal jurisdiction here simply by having done that, nor by being physically present for purposes of participating.  While some of the wife’s actions might have looked ambiguous, given the off-and-on vagaries of a couple’s emotional relationship, she was very careful never to do anything while here that might have indicated residing here or intending to do any official act here that would arguably take advantage of Virginia legal or governmental entities.  Wife’s motivations in all of this might not have been the purest, as it appears she had acquired a boyfriend over there, but the husband’s efforts to argue it was wrong to sustain relevancy objections to testimony about her marital relationships were of course unsuccessful.  That Wife deceived husband about her reasons for wanting to stay in Belgium was testimony that does not pass the long-established basic test for relevancy.

Lawrence: Expert can't base opinion on hearsay of commission of crimes

EVIDENCE – EXPERT OPINION – RELIANCE ON HEARSAY – “BASIS OF OPINION” EXCEPTION – UNLAWFUL EXTENSION TO SUBSTANTIVE HEARSAY TESTIMONY ABOUT FACTS OF CRIME COMMISSION – MENTAL HEALTH EXPERTS – EFFECT OF HEARSAY-BASED TESTIMONY.  A far-reaching criminal case from the Virginia Supreme Court is reported here because it concerns the admission of a kind of evidence often adduced in family law cases, and a class of criminal cases that often arise out of or merge into family law cases.  The issue was whether valid, admissible “expert opinion” testimony could be based solely on untested hearsay, and whether such “opinion” testimony can extend into areas of repeating supposedly factual testimony about a defendant’s acts and their circumstances.  Suffice it to say, in this limited space, that the Supreme Court acted definitively and boldly.  This case concerned whether a defendant in a civil commitment hearing under the Sexually Violent Predator Act, §37.2-908(C), can be confined on the basis of such hearsay testimony from an expert as a “basis of his opinion” that was founded on such hearsay.  Defendant had already gotten 45 years imprisonment for rape and sodomy but before he was about to be released, the Commonwealth brought these sexually violent predator proceedings.  Some will recall that this is very close to an issue that was recently argued before the U.S. Supreme Court, the same day that the Hague Convention case Abbot v. Abbot was argued.  Perhaps, given the rising cost of ink, paper and everything else, including the loss of forest cover on our once-green planet, etc., it is best to set forth only the salient points in this densely-packed unanimous opinion, Lawrence v. Commonwealth, ___ Va. ___, 689 S.E.2d 748 (2/25/10).  The Court held that the provision of that statute that an expert witness can state the “basis for his opinion” does not legitimize testimony about the details of hearsay allegations of crime.  Not only that but, when that improper testimony is admitted, it cannot be cured by a Judge’s limiting instruction to the jury, and is not harmless error.  Moreover, any expert opinion that relies on assuming the truth of such unproved hearsay allegations lacks an adequate factual foundation to be admitted in evidence.  Thus it’s an abuse of discretion, and requires reversal.  It is “clearly inadmissible” because questions of admissibility are not in fact discretionary questions: they are matters of law.  Moreover, this extends to “expert” opinions about such things as “anti-social personality disorders.” And the fact that a second expert comes along and testifies that the offender has a high risk of committing future offenses will not help matters, if that second expert admits that in forming her own opinion she assumed those hearsay allegations to be true. 

Mercurio: CUSTODY – ALLEGED JUDICIAL PREJUDICE – JUDGES’ GENERAL OBSERVATIONS — JUDICIAL NOTICE.

A mother who lost in her effort to change custody cannot get a reversal merely because, when she adduced evidence about her visiting the children’s school lunchroom at lunch times, the judge remarked that parents often start visiting more at the school when there’s litigation going on.  The reaction of the Court of Appeals to this is that custody decisions have to be evaluated on appeal by looking at the whole picture and not one isolated comment by the judge.  Judges are still free to speak on general and generally known matters and the taking of judicial notice is generally within the Court’s discretion.  The Court of Appeals, however, must consider the entire record.  This judge had also observed to the parents that they needed to stop coming to court “every time you turn around.”  But the mother here had a few more problems in her home situation and continuing with the father seemed to the trial judge to better serve the children’s need for stability.  Mercurio v. Mercurio, unpublished, 24 VLW 602 (11/3/09).

Schwartz v. Schwartz: EVIDENCE — PRIVILEGE — CUSTODY CASES — THERAPISTS.

Since the therapist privilege statute relating to custody cases was first passed in 2002, some lawyers have noticed with alarm (and sometimes with glee, depending on whom they represent) that the statute allows either party in a custody case an absolute veto over the therapist testifying.  It has nothing to do with who is the patient: it matters not that the child is the patient, or that the psychologist is eager to testify.  It simply allows each party the right to object and keep the testimony out.  Now the Court of Appeals has noticed this too, because a mother who was charged with violating the anti-disparagement provisions of the custody order after a psychologist was allowed to testify over objection about her hateful approach to the father appealed.  The Court of Appeals pointed out that this does not involve §8.01-399, which gives the patient or client of any practitioner of the hearing arts a right to object to the use of confidential communications coming in.  Rather, it is an amendment to §20-124.3:1.  The Court of Appeals points out that the language of this new statute is plain and has no exceptions allowing it to be overridden by considerations of best interests of the child.  The court is not allowed, under that statute, to admit testimony concerning a parent that was obtained during the course of therapy.  Schwartz v. Schwartz, 46 Va. App. 145, 616 S.E.2d 59, 20 VLW 260 (7/26/05).
NOTE: THE STATUTE WAS REPEALED IN 2008.