Virginia Family Law Appeals

Kaufman, Jacob and Twardy: Costs, objections and transcripts in Virginia appeal cases

APPEALS.   Some of the confusion about the intricate rules that apply on appeal was perhaps alleviated by the Court’s opinion in Jacob v. Jacob,  6 VLW 1149 (1992).   As to the “damages” and costs payable by a losing party, the Court pointed out that there is a statute making it mandatory (§ 8.01-682), but that that is only in certain cases. Sometimes there is interest on them and sometimes not.  When the judgment on appeal is “not  for payment of any money, except costs,” then it is limited to $100.  Attorneys’ fees for this purpose do not constitute costs.

APPEALS--TRANSCRIPT REQUIREMENT--MALPRACTICE TRAP. Lawyers handling appeals found out in June with the announcement of  Twardy v. Twardy, VLW 66 (6/9/92) that if counsel signs a statement in the notice of appeal that a transcript will be furnished, then the appellant must furnish and file the entire  transcript.  Addressing an awkward mechanical  problem that has bedeviled appellees  on  occasion, the court explained that  the appellee has a right to rely on that statement  as an assurance that the appellee will find an entire transcript in the record from which to designate the parts appellee wants.

APPEALS.  The draconian rule of Lee v. Lee, 404 SE2d 736, was apparently fudged to some degree in Kaufman v. Kaufman,   6 VLW 349, where the appeal was allowed despite now-familiar types of procedural "defaults," but without any express acknowledgement that the Court was backing off from the Lee v. Lee  rule.  For those who have always wondered what happens to the money represented by an alimony award that is reversed on appeal, the question was answered in the second trip to the Court of Appeals of Reid v. Reid,    6 VLW 349.  When the husband sued to get his alimony back on remand, the Court of Appeals held that alimony once paid, even though under an invalid trial court decree, is forever lost and cannot be reclaimed.

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.

Williams v. Williams: APPELLATE PROCEDURE — MALPRACTICE TRAPS – LEE V. LEE – RULE 5A:18.

No matter how many times the Legislature tries to legislate away that capriciously sadistic malpractice trap, the rule of Lee v. Lee, 12 Va. App. 512, 404 S.E. 2d 736 (1991), the Court of Appeals constantly reminds us that it’s still there.  An appealing wife thought she had assured compliance with Rule 5A:18 by endorsing the decree “Seen and Objected To For Reasons Previously Stated.”  However, as all of us know who read the appellate reports, that just won’t do.  This was a matter of common sense in this case: though she might have previously stated these objections somewhere, she made the almost-always-fatal mistake of not having a transcript of the Commissioner’s hearing, nor of the oral argument made to the trial court when she took Exceptions to the Commissioner’s decision. As she had failed to preserve the issues, her appeal was denied in the unpublished opinion Williams v. Williams, 22 VLW 677 (10/9/07).

McKee v. McKee: APPELATE PROCEDURE – RULE 5A:18 – “BARE NOTATION OF OBJECTION.”

A husband’s interesting argument in McKee v. McKee, 22 VLW 1061 (unpublished, 1/29/08),  that a spousal support award was largely based on expenses that were included in the child support award was thrown out under Rule 5A:18 and Rule 5A:20(e).  Most frighteningly of all, the Court of Appeals adds that husband waived his rights under Rule 5A:18 even though he stated the child-support-alimony overlap question clearly and at some length in his objections to the final decree, because he then “did not elaborate” (“failed to specify any basis for his objection,” and did not re-raise it in a Motion to Reconsider).  The twenty-one words of his objection on this point are dismissed as “bare notation of an objection.” 

Alimony after reversal on appeal

    For those who have always wondered what happens to the money represented by an alimony award that is reversed on appeal, the question was answered in the second trip to the Court of Appeals of Reid v. Reid,   6 VLW 349.  When the husband sued to get his alimony back on remand, the Court of Appeals held that alimony once paid, even though under an invalid trial court decree, is forever lost and cannot be reclaimed.

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

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 all 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.  Well.  Which? What?  Truly there is a difference, the Court of Appeals patiently explains, between a trial court applying the wrong standard (what most of us call standard of proof) and the question of whether the evidence was sufficient (under that standard).  When the appellant drafted his “Question Presented,” it was so worded as to concern sufficiency of the evidence and not what the standard is on a motion to strike.  The argument in the brief concerned application of the evidentiary standard and not the sufficiency of the evidence.

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.

PARENTAL RIGHTS TERMINATION -- JURISDICTION -- ENTRUSTMENTS.

Fredericksburg DSS v. Brown,  15 VLW 351 (8/29/00).
The long-standing principle that jurisdictional defects can't be waived, and can be raised at any time, is once again popular with the Court of Appeals.  In a parental rights termination case, the mere presence of entrustment agreements and the entry of agreed orders approving the entrustments don't add up to enough to validate a circuit court's termination of parental rights, because it is a matter of jurisdiction.

JUVENILE COURTS – JDR & CIRCUIT – APPEALABILITY – INTERLOCUTORY.

A circuit court order denying a motion to dismiss on res judicata grounds, and remanding a support case to juvenile court for paternity blood tests and further proceedings, is not appealable.  Such an order is interlocutory, the Court of Appeals explained in Whitaker v. Day, 32 Va. App. 737, 530 S.E.2d 924, 15 VLW 162 (7/11/00).  This non-final order does not "adjudicate the principles of the cause."