Virginia Family Law Appeals

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NOTE: THE STATUTE WAS REPEALED IN 2008.

Street v. Street: "Uncontradicted" expert does not speak ex cathedra

The weird and disturbing pronouncement in Street v. Street,  24 Va. App. 2, 480 SE2d 112, 11 VLW 801, 17/2 FLN 22 (1997), that a trial judge’s decision had to be controlled by expert testimony, whatever it said, because it was “uncontradicted,” has been reversed upon rehearing en banc. 

Rahnema v. Rahnema: ANNULMENT AND DIVORCE — ANNULMENT FILING LATE IN ED TRIAL — BIGAMY CLAIM — EVIDENCE — JUDGE’S IGNORING EVIDENCE NOT TIMELY OBJECTED TO — EVIDENCE TRANSLATED FROM FOREIGN LANGUAGES — ABSENCE OF WITNESSES — BIGAMY STANDAR

A Virginia Beach judge probably got more than he bargained for when he gamely plunged into the divorce of a couple of Iranians.  Among the many seldom-seen issues it brought up were what to do when one spouse files a bigamy charge just before the final equitable distribution hearing (O.K. to reject it), and how much a judge is obligated to let grossly questionable evidence in just because the other party doesn’t properly object to it. 

EVIDENCE – CRIMINAL ISSUES – EXPERT WITNESSES – LICENSED PROFESSIONAL COUNSELOR – PSYCHOLOGICAL DIAGNOSIS.

  The Fitzgerald v. Commonwealth case, at 48 Va. App. 271, 630 S.E.2d 337 (2006), was upheld on appeal by the Virginia Supreme Court at  21 VLW 1147 (4/20/07).  The Supreme Court agreed with the Court of Appeals that a “licensed professional counselor” testifying as an expert witness in a man’s criminal trial on §18.2-370.1 and §18.2-67.2, for taking indecent liberties while in a custodial relationship, can give a psychological diagnosis that a victim of child molesting is suffering from post-traumatic disorder.  The objections that only a psychiatrist or psychologist can give such expert diagnoses about mental disorders in  the DSM-IV was again rejected.

Campbell v. Campbell: EVIDENCE – WITNESSES – CONSTITUTIONAL RIGHT TO CROSS-EXAMINE – VIOLATION BY TIME LIMITS – SEPARATION AGREEMENTS – APPEALS – WAIVER AND SAVING OF POINTS – EXCEPTION TO RULE REQUIRING PROFFERS.

   A case in which an expert witness testified as to the genuineness of a handwritten separation agreement that the wife offered in evidence gave rise to quite an important ruling on trial practice matters by the Court of Appeals.  The wife had a handwriting expert to back up her document when she offered it as controlling in an equitable distribution trial, and the husband’s lawyer wanted to cross-examine that expert and another of wife’s witnesses.  Whether this agreement had in fact been signed by the husband was, the Court of Appeals said, the single most relevant fact in dispute, and cross-examination is a fundamental right.  Accordingly, the trial court abused its discretion by refusing to allow any cross-examination.

Robinson v. Robinson: ALIMONY — WRITTEN-FINDINGS REQUIREMENT — SEPARATION AGREEMENTS — RELIANCE UPON — FAILURE TO PLACE IN EVIDENCE — APPEALS.

The Court of Appeals reversed an alimony award because, although it was in a contested case, the trial judge did not comply with the §20-107.1(F) requirement of written findings supporting the award and its amount.  The judge did a lot, but not precisely what the statute requires or not enough, according to the opinion at 22 VLW 295 (8/7/07).  The wife argued that it had not in fact been a contested case, because the husband consented (in the end) to alimony, but the Court of Appeals applied “contested” in the traditional sense and pointed out that, although the parties resolved many issues by stipulation before trial, they went to trial on this issue.

APPEALS – EVIDENCE – STANDARD OF REVIEW – STANDARD OF PROOF – SUFFICIENCY OF EVIDENCE – MOTION TO STRIKE/APPEAL DISTINCTION.

Klein v. Klein, 49 Va. App. 478, 642 S.E.2d 313 (3/27/07).
An opinion bristling with technical abstractions in the unsuccessful appeal of a family law case does not really make family law, but it does send a woeful message to appellants clear across the spectrum. If they don’t do their homework, cudgel their brains, reflect, cogitate, and talk like a pettifogging casuist, they had better not attempt appellate litigation. It reinforces the received wisdom that the law is still a learned profession with extremely intelligent gatekeepers who know how to separate the wheat from the chaff, the sheep from the goats, and laid-back lawyers need not apply. The issue at trial was, originally, whether the husband was owed a management fee, payable by the wife, under the terms of their separation agreement. What was appealed was whether the trial judge should have granted a motion to strike that claim. The appeal was dismissed and remanded because the appellant husband’s “Question Presented” failed to preserve the issues of applicable standard and sufficiency of evidence.

EVIDENCE – WITNESSES – CONSTITUTIONAL RIGHT TO CROSS-EXAMINE – VIOLATION BY TIME LIMITS – SEPARATION AGREEMENTS – APPEALS – WAIVER AND SAVING OF POINTS – EXCEPTION TO RULE REQUIRING PROFFERS.

A case in which an expert witness testified as to the genuineness of a handwritten separation agreement that the wife offered in evidence gave rise to quite an important ruling on trial practice matters by the Court of Appeals. The wife had a handwriting expert to back up her document when she offered it as controlling in an equitable distribution trial, and the husband’s lawyer wanted to cross-examine that expert and another of wife’s witnesses. Whether this agreement had in fact been signed by the husband was, the Court of Appeals said, the single most relevant fact in dispute, and cross-examination is a fundamental right. Accordingly, the trial court abused its discretion by refusing to allow any cross-examination. Apparently the court did this as a matter of time limitations to allow an exceedingly short E.D. trial. The Court of Appeals seems to say that the husband was not deprived of a constitutional right, but that an error of this type can never be harmless as it was arbitrary limitation of the right to cross examine on a relevant matter. These are fundamental common law and statutory procedural rights basic to the adversary system, and for that reason the husband’s error was saved even though he did not make a proffer of the anticipated testimony, and it is not necessary to make a finding of prejudicial error. This was abuse of trial court discretion as a matter of law. Campbell v. Campbell, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 1393 (4/10/07).

EVIDENCE – CRIMINAL ISSUES – EXPERT WITNESSES – LICENSED PROFESSIONAL COUNSELOR – PSYCHOLOGICAL DIAGNOSIS.

The Fitzgerald v. Commonwealth case, at 48 Va. App. 271, 630 S.E.2d 337 (2006), was upheld on appeal by the Virginia Supreme Court at ___ Va. ___, ___ S.E.2d ___, 21 VLW 1147 (4/20/07). The Supreme Court agreed with the Court of Appeals that a “licensed professional counselor” testifying as an expert witness in a criminal trial on §18.2-370.1 and §18.2-67.2, for taking indecent liberties while in a custodial relationship, can give a psychological diagnosis that a victim of child molesting is suffering from post-traumatic disorder. The objections that only a psychiatrist or psychologist can give such expert diagnoses about mental disorders and the DSM-IV was again rejected.

CRIMINAL ISSUES – EVIDENCE – EXPERT WITNESSES – CHILD SEX ABUSE – LICENSED PROFESSIONAL COUNSELORS.

Now that you have learned the difference between a psychiatrist and psychologist, etc., you also need to learn that these prestigious professional distinctions don’t really make much difference in some kinds of litigation. Even if only the psychiatrist is a real doc, a medical diagnosis in a child sex abuse case can be given not only by a SANE nurse serving as an expert witness, but also by a “licensed professional counselor.” Such an august personage was allowed to tell a jury in a case of a man convicted of taking indecent liberties and committing “object penetration” with his 12-year-old stepdaughter that in her opinion, the child suffered “post-traumatic stress disorder.” These LPCs are defined in §54.1-3500 as “a person who practices counseling.” Not just that, of course, but also one “trained in counseling interventions designed to facilitate an individual’s achievement of human development goals....” The statute expressly allows the LPC to diagnose and treat mental, emotional and behavioral disorders, the Court of Appeals explained in Fitzgerald v. Commonwealth, 48 Va. App. 271, 630 S.E 337, 21 VLW 15 (6/6/06). It is explained that the nature, symptoms and possible causes of this disorder are things not within the common knowledge or experience of lay persons and jurors, and thus are ripe for scientific expert opinion. This counselor testified that from her training she was qualified to make psychiatric diagnoses, and that she had gone through a masters program that covered PTSD, which malady she explained to the jury out of the DSM-IV.