Virginia Family Law Appeals

Donofrio v. Donofrio: SEPARATION AGREEMENTS — DUELING AGREEMENT VERSIONS – ONE FALSE, ONE TRUE – STANDARD OF PROOF.

Who knew there was a rule on this?  And who would have known that this was the rule?  In a case that brings to mind The Return Of Martin Guerre, or the American knockoff known as Somersby, set right here in old Virginia, or better yet, the two mothers swearing before King Solomon that each is the real one, a circuit court last year had a really unusual situation before it.  A husband and a wife each came in carrying a signed separation agreement, of which one had to be genuine and one a fraud. 

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.

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).

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.

LEGAL MALPRACTICE -- SETTLEMENTS -- CLIENT'S WITHDRAWAL OF SETTLEMENT AUTHORITY.

A client's malpractice claim against her lawyers for settling her malpractice suit is thrown out by the Virginia Supreme Court, which holds that the trial court properly held that the lawyers at trial had authority to have her malpractice action dismissed with prejudice.  The appellate court finds overwhelming credible evidence that the client went along with the mediated settlement in every way until after the compromise was reached, everyone had ceased trial preparations, plaintiff's lawyers discussed the arrived-at settlement with her, both counsel met with the trial judge on the morning scheduled for trial, and the judge entered an order dismissing with prejudice. Then she refused to sign a written agreement embodying the settlement later that day and informed her lawyers that she had retained new counsel.  Her indications that she had told her counsel she was not pleased with the settlement terms, or thought no settlement had been reached, are regarded as less than credible.  When parties fully agree upon a settlement, intending to be bound thereby, the Court says, the mere fact that it has not yet been reduced to writing does not matter. Snyder-Falkinham v. Stockburger, _____Va._____,457 SE2d 369, 9 VLW 1315 (4/21/95). 

PENSIONS – MALPRACTICE TRAPS – DRAFTING – SEPARATION AGREEMENTS.

When a separation agreement says that the parties will evenly split the retired husband’s pension payments, that means (unless the separation agreement was carefully-drafted enough to say something else) that she gets that right immediately, even if it takes several months for the lawyers to get the QDRO approved by the plan administrator, the Court of Appeals held in Irwin v. Irwin, 47 Va. App.287, 623 S.E.2d 438, 20 VLW 947 (12/28/05).

SEPARATION AGREEMENTS - SET ASIDE - VOLUNTARINESS – GROSS DISPARITY – “UNCONSCIONABLE.”

An agreement that was drafted by husband’s lawyer and gave the husband 94% of the marital property was not unconscionable and was properly upheld and not set aside, the Court of Appeals found in Galloway v. Galloway, 47 Va. App. 83, 622 S.E.2d 267 (11/29/05). It was a case in which the agreement let the husband keep his business and all of the marital real estate, giving wife only a Chevrolet pickup truck, though wife did have inherited property worth about $275,000 and had recently inherited $30,000 cash.

SEPARATION AGREEMENTS – ORAL – SPECIFIC RESERVATION CALLING FOR A DOCUMENT – THE EFFECT OF “SUBJECT TO”.

The Court of Appeals’ former infatuation with oral separation agreements seems to have cooled considerably, especially now that the Court has a statute to construe. A husband who was smart enough not to want to be entrapped into an agreement he hadn’t seen in writing prevailed on appeal in Bryant v. McDougal, ___ Va. App. ___, ___ S.E.2d ___, 21 VLW 746 (11/21/06), as the Court of Appeals reversed the holding that he had entered into a valid oral contract that had been affirmed in front of a court reporter. The parties made some sort of agreement orally, or at least an agreement to agree, then were put in front of a court reporter in the wife’s attorney’s office, but the husband twice said that he was doing this “subject to” there being a formal written agreement prepared for him to sign.

SEPARATION AGREEMENTS – CONSTRUCTION AND INTERPRETATION – EXPENSES AND FEES OF ENFORCEMENT – REHEARING GRANT.

On June 21, 2005, the Court of Appeals held that a clause of a “financial agreement” that let a party get an award of attorneys' fees expended in a contest of the agreement’s validity did not apply to a number of court hearings in which the incorporation of this agreement into a divorce decree was contested. The Court of Appeals on August 23, 2005, granted rehearing of this unpublished decision, Batra v. Batra, 20 VLW 224. As is becoming common, this unpublished opinion had a dissent. Judge Benton said that of course the clause should apply, since the wife sought to overturn this agreement and resorted to court to do so, so that the husband was forced to defend and enforce the agreement in litigation. By anyone’s definition, Judge Benton had said, this defense of the agreement was just what the clause contemplated.

SEPARATION AGREEMENTS – COMPETENCY AT EXECUTION – MANIC-DEPRESSION.

In a very interesting case from the Shenandoah Valley, where they apparently still use the non-current euphemism “bipolar,” a claim that a wife’s separation agreement was involuntary because of her “acute stage” of “bipolar affective disorder” was rejected in a holding that the Court of Appeals upheld. Arey v. Arey, unpublished, 20 VLW 530 (9/13/05).