Virginia Family Law Appeals

Poliquin & Cooke cases on divorce lawyers' fees

    In Cooke v. Cooke, 5 VLW 1195 (Va. Ct. App., 5/21/91) a trial court's refusal to award an immensely wealthy wife any of her attorney's fees was reversed.  The Virginia Court of Appeals found it important that the wife was attempting to enforce her child's right to support, rather than her own right to alimony.  The trial court, the Court of Appeals explained, had no right to deny a wife attorney's fees on the ground that she was absurdly rich.  While her ability to retain counsel is certainly a factor, the Court says, it is an abuse of discretion to base denial of fees solely on that factor.

    In Poliquin v. Poliquin, 406  S.E. 2d 401, 6 VLW 71 (6/18/91), the Court of Appeals apparently held that the husband's adultery causing the divorce was a permissible factor to take into account in setting counsel fees.  As for fees awarded for work on the litigation in another state, the award was reversed, but only because counsel did not fully document how much of this work was necessary to the Virginia litigation.   

PROPERTY DIVISION — SOURCE OF FUNDS — MARITAL-TO-SEPARATE CONTRIBUTION — PROOF — “ADDITION TO VALUE” REQUIREMENT — SANCTIONS — PUNITIVE FEE AWARD.

Sure the source-of-funds provisions of §20-107.3 allow credit for marital contributions to separate property.  But as many lawyers know and the Court of Appeals recently explained, it is not that easy.  In Burstein v. Morriss, unpublished, 22 VLW 323 (8/14/07), the wife had owned a North Carolina house with her father since way before the marriage, and she lived in it with her husband from 1996 to 1998, with mortgage payments coming from a joint checking account.  But that’s not all that the husband had to prove, and the trial court properly denied him any interest in the $100,000 she got for it.

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).

SANCTIONS — CONFLICT OF INTEREST — DUAL REPRESENTATION — UNCONCIONABLE AGREEMENTS — ATTEMPTED FRIVOLOUS DEFENSES TO SET-ASIDE — SANCTION AMOUNTS AND COST AWARD AMOUNTS.

  Vinson v. Vinson, 18 VLW 618 (11/18/03).
In an opinion that merges elements of legal ethics and professional responsibility law, as well as separation-agreement-set-aside law, into the growing case law on §8.01-271.1 sanctions, the Court of Appeals says some useful things about the last.  A lawyer said right in his "retainer" agreement  that he was representing both husband and wife. He then drafted, without ever speaking to Husband, a Separation Agreement (which Husband apparently signed), giving Wife 75% of their most valuable asset, the house.

JUVENILE COURT APPEALS -- FEE AWARDS.

In Donald v. Fairfax County Department of Human Development, unpublished,  R 1533-93-4 (8/23/94), the Court of Appeals made some new law concerning the possibility of fee awards to successful appellees from juvenile court.   Donald was subjected to a five-day trial on charges that she had sexually abused her daughters, and at the end thereof, the juvenile judge called the Commonwealth's evidence incredible, and said that "It would be a travesty of justice" if anyone appealed this case to circuit court.  The welfare department appealed and subjected her to an 11-day trial in circuit court.  The mother was successful there, but only after hiring one of the most expensive domestic relations law firms in the state and expending many thousands of dollars on her defense.  The circuit judge said she was dismissing the case because the welfare department had not perfected its appeal from juvenile court within 10 days.  She denied an award of fees and costs on the ground that sovereign immunity precludes such an award against a state agency.  The Court of Appeals held in its unpublished opinion, with a four-page dissent by Judge Benton, that the circuit judge in denying fees and costs reached the right result for the wrong reason:  no fees can be awarded in a case where the appeal to circuit court was untimely taken.  Untimely appeal means no jurisdiction in circuit court, and that means no authority to award anything.  The welfare department never raised this defense to fees below, but a jurisdictional argument can be raised at any time.

CUSTODY -– MODIFICATION LITIGATION -– FRIVOLOUSNESS -– SANCTIONS.

Though it is impossible to tell from the unpublished 5-page opinion what was in the record, much less exactly what was going on in this case, a recent sanctions (fee award) case from the Court of Appeals sounds a strong cautionary note for male custody litigants. The father filed in the juvenile court for custody modification and lost, then appealed to the Fairfax County Circuit Court and lost there. The mother, who now lives in Florida, persuaded the trial judge that the father, who was held to have failed to show changed circumstances, brought the litigation for the improper purpose of harassing the mother, and the Court of Appeals agreed. The case appears on its face to be a fairly garden-variety custody dispute, and exactly what makes this harassment litigation as opposed to merely unsuccessful litigation by a male parent is not made very clear. What the Court of Appeals does say in justification of the §8.01-271.1 “sanctions” holding is that the father makes more money than the mother, and therefore was subjecting her to economic bullying, and the fact that he tried to negotiate a settlement after taking his appeal of right from juvenile court, and therefore was using the appeal as leverage to extort an unjust concession. Unfortunately, the court adds to the growing confusion by further blurring the distinction between sanctions and mere fee awards, because the sanction it upheld in this case was an award to the mother of all her costs and fees, including travel fees. The Court of Appeals also remands for a determination of the fees and costs incurred on appeal, so that she can be awarded those as well, along with any fees or costs she may incur on the remand itself. Ottosen v. Saunders, unpublished, 20 VLW 827 (12/6/05).

VISITATION – THIRD PARTIES – STANDING –BOY FRIEND OF MOTHER – “ACTUAL HARM” STANDARD – RELOCATION – FEES ON APPEAL.

In one of the most tenuous third-party standing cases yet, the Court of Appeals found standing for a boy friend of the mother, who was the father of her daughter but was suing for visitation with her son, who had a different father. The Court of Appeals found him a “person with a legitimate interest” under §20-124.1, since, although neither a blood relative or step parent nor a former stepparent nor a “family member,” he had acted as a father to the boy for some four years and was closer than many stepfathers are. But because he did not establish “actual harm” that the boy would suffer without visitation from him, the denial of visitation was affirmed. Also affirmed was the decision letting the mother move the child to Florida, but the mother’s request for fees on appeal was denied. Surles v. Mayer, ___ Va. App. ___, ___ S.E.2d ___, 40 VLW 1176 (4/25/06).

CHILD SUPPORT – IMPUTATION – VOLUNTARY UNDEREMPLOYMENT – GUIDELINES – PRE-SCHOOL AS CHARGEABLE DAY CARE – FEE AWARD BASED ON BAD LITIGATION CONDUCT.

The Court of Appeals approved a trial judge’s imputing $4500 per month income to a husband in Versprille v. Versprille, unpublished, 20 VLW 1155 (2/14/06). The factors that counted against this man were his earning that figure before losing his job, his college degree in financial management, and the fact that the work he had obtained was in an appraisal business owned by his sister. That added up to voluntary underemployment, and the imputation was not an abuse of discretion. The interesting question of what to call day care services that the providers call schools, calling the fees tuition, was also an issue. In this case in child in the pre-school was five years old, and the Court of Appeals upheld the judge’s designating a part of the “tuition” as work-enabling day care. Nor was the $1250 fee award an abuse of discretion, considering all the lengths the husband went to in order to avoid providing financial and other relevant and necessary information. Obstructive behavior caused the wife to have to spend a great deal in lawyer fees to compel discovery, and move for sanctions. She also got an award of her fees on appeal.

APPEALS – RULE 5A:20 – FEE AWARD AS PUNISHMENT.

Evidence that the Court of Appeals is getting even more punitive with Rule 5A:20 and similar control measures is provided by an unpublished opinion in Fravel v. Fravel, 20 VLW 1096 (1/24/06). Upholding a custody ruling based on one party’s having been much less involved with the child since birth and having more criminal convictions than the other party, the Court of Appeals concluded its opinion with a statement that the father “presented questions that were not supported by law or evidence,” and that this furnishes grounds for an appellate fee award against him. Of course he also, the Court notes, insisted on briefing numerous representations which the trial judge had struck from his draft Statement of Facts.

EVIDENCE – PSYCHOLOGICAL – PRIVILEGE STATUTE – USE IN PROPERTY DIVISION AND SUPPORT – THERAPIST — MALPRACTICE TRAP — ALIMONY AND DEBT - DOUBLE DIP – FEE AWARDS TESTIMONY — MEDICAL DIAGNOSIS BY MARRIAGE COUNSELOR.

The Court of Appeals has refused before to limit the scope of the new therapist-testimony exclusion provision in the custody statute to its probable intended use, but in equitable distribution and support litigation, where that statute doesn’t apply, the Court of Appeals sees no reason to consider the exception to the general therapist privilege statute, §8.01-400.2, inapplicable. After all, the Court of Appeals points out, the equitable distribution and support statutes (subsections (E)(4) of both sections §20-107.1 and 20-107.3) require the judge to consider the age and physical and mental condition of the parties. Thus it was all right to use therapist testimony to show that the wife had bad mental health while the husband was fine. The husband’s objection that the therapist gave privileged information obtained from him during the marriage was properly rejected. In the unpublished opinion, Bullano v. Bullano, 21 VLW 1068 (1/30/07), testimony in fact came from the couple’s marriage counselor, which might seem to bring up more considerations of legitimate privilege.