Virginia Family Law Appeals

EQUITABLE DISTRIBUTION: Taylor v. Taylor

A husband successfully appealed a number of errors in an E.D. case, none of which appear to make significant law, in Taylor v. Taylor, 19 Va. App. 761, 454 SE2d 744, 9 VLW 1076 (2/28/95). The trial court approved a concededly wrong figure by the commissioner for the balance on a mortgage,  used a business valuation figure not supported by any of the evidence, charged the husband twice for certain property and then on remand did it again,  charged him 54 vice 25 months' rental value, and may have charged him with maintenance costs by mistake.

Bankruptcy: Effect on Property Division: In Re Ferrebee.

(No. 90-22926-T, U.S.B.C. at Norfolk), 6 VLW 224. The United States Bankruptcy Court for the Eastern Division of Virginia held that the agreement between the debtor husband and his former wife in their separation agreement to hold one another harmless for the debts each had assumed is non-dischargeable in bankruptcy, because it is "in the nature of alimony."  The Court found it clear that the parties intended this mutual hold-harmless obligation to be non-dischargeable, and their agreement can be said to have characterized the obligation as one of maintenance.  Though these characterizations in agreements are not necessarily dispositive, this one certainly is.

Williams v. Williams: RULE 1:1 - ENFORCING DECREE OR MODIFYING IT – MARITAL HOME BUYOUT.

The perennial question of whether a post-trial order improperly tries to modify a final decree beyond the 21-day deadline, or only enforces it, was reviewed in the context of a Prince William judge’s extending the deadline he had set for a husband to buy the marital home from the wife.  It is true that the court granted this extension on May 25 after a March 15 decree.  Apparently the extension was only put into the formal new decree on July 15, but it was all right to extend that deadline retroactively when the judge realized his oversight.  It still was not a modification but only an enforcement, because this extension was the only way to preserve the rights that had been decreed in the original decree and ensure compliance.  Williams v. Williams, unpublished, 20 VLW 1504 (4/11/06).

Harris v. Harris: Re-appraisal of house needed when market changes

PROPERTY DIVISION – VALUATION – APPEALS – UPDATE ON REMAND.  In an unpublished opinion in Harris v. Harris, 20 VLW 1155 (2/21/06), the Court of Appeals held that it was reversible error for a trial court to refuse to revise the valuation of jointly-owned real estate when the case was back on remand after appeal.  Using the valuation proved at the original trial date was an abuse of discretion, since that valuation was over three years old, and all of that time the asset had been in the hands of one of the parties, in a greatly raising market. 

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.

McKee v. McKee: PROPERTY-DIVISION-ALIMONY RELATIONSHIP – ALIMONY AMOUNTS – ALIMONY AWARD TO RECIPIENT OF HOUSE – ALIMONY FOR MORTGAGE PAYMENTS.

The Court of Appeals in McKee v. McKee, 22 VLW 1061 (unpublished, 1/29/08), faced an abuse-of-discretion issue: whether the alimony amount was beyond wife’s need and above husband’s ability to pay.  And under this heading there’s an immensely interesting discussion of the issue, never quite resolved in the Gamble case (14 Va. App. 558, 421 S.E.2d 635 (1992)) in any truly understandable way, of whether a spouse can receive real estate in a property division and then come in and ask for alimony to pay the debt on it – i.e., the ongoing mortgage payments.  The Court of Appeals majority cuts through the ambiguities and contradictions and forthrightly declares that the crucial wording in Gamble means exactly what it says.  A court can’t award a double-dip by awarding the house as property and then taking the mortgage payments into account when fixing a level of spousal support.  One who takes property takes the debt on it as well. 

PROPERTY DIVISION – ASSUMPTION OF DEBT – PREDICTED BANKRUPTCY DISCHARGE OF OBLIGATION ALREADY BARGAINED FOR IN E.D. SETTLEMENT – LIABILITY OF NON-BANKRUPT SPOUSE – ALIMONY AWARD AS REMEDY – SPECULATIVE.

After some Virginia appellate opinions approving  belated alimony as a remedy when the other spouse defaults on an obligation to cover a marital debt assumed in exchange for some quid pro quo in a separation agreement, most Virginia practitioners assumed they knew just what to do when a bankruptcy discharge of that same assumed obligation is then sought: go immediately into court to seek a belated spousal support award as a remedy.  But they would all be wrong, according to the recent opinion of the Court of Appeals in Rogers v. Rogers, 51 Va. App. 261, 656 S.E.2d 436, 22 VLW 1082 (2/12/08).  What’s wrong with it now?  If the husband (as it was in this case) has not yet actually received a discharge of the debt, then it would be speculative to assume he would get it – even though the debt specifically assumed by and assigned to him has still never been paid, bankruptcy has been filed for, and that debt specifically listed by the debtor. 

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--DISSIPATION--TRANSMUTATION: Amburn v. Amburn, 6 VLW 1050 (2/25/92).

    The Virginia Court of Appeals has held, as in Clements v. Clements, 10 Va. App. 580, 397 S.E. 2d 356, 16 FLR 1482 (1990), that spending marital-property funds on regular living expenses and attorney's fees is not remediable "dissipation," or "economic fault."  The same court decided to go even farther in saying that there was nothing wrong with a wife's withdrawing $95,000.00 from a home equity loan line of credit (i.e., jacking up the amount of outstanding unpaid mortgage balance on the former marital home) after separation, and that she did not have to put it back.  This money was calculated as joint debt, since it was used for attorney's fees, living expenses, and the educational expenses of the parties' daughter. 

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).