Virginia Family Law Appeals

CUSTODY -- RELOCATION -- ILLEGITIMATE CHILDREN.

Sometimes a trial judge will actually deny a mother permission to remove a child to a distant state, and in Young v. Forrest, unpublished, 16 VLW 118 (5/29/01), the Court of Appeals upheld such a decision from Chesterfield County.

CUSTODY — RELOCATION — FACTORS — ADULTEROUS COHABITATION — NO NOTICE.

While it has looked for quite a while now as though mothers who relocate the children, even without the statutorily required notice, can do no wrong, there is at last a Court of Appeals opinion upholding a trial judge who transferred custody of a three-year-old to the father after the mother moved to Florida with a man she had met in a bar while the Virginia National Guard husband was deployed overseas.  The Court’s unpublished opinion, Vanderveer v. Vanderveer, 19 VLW 462 (9/28/04), does point to some variables that might be helpful to know about if the Court of Appeals ever thinks about these issues the same way in some other case.

CUSTODY – RELOCATION – BURDEN OF PROOF, PERSUASION, ETC.

The subtle reasoning of a case from Fairfax allowing a custodial mother's relocation of the four kids to New Jersey is a bit hard to follow.  The mother wanted to move the kids to New Jersey, and there's no question that's a superior environment to Virginia (quality of the schools, generally good environment of the community, the Court of Appeals explains), and the young age of the children counted for the mother, as did the improvement in her ability to provide financially if she moved north, and the role she has played in the children's lives heretofore.  Yet the Court of Appeals holds that the Fairfax trial court erroneously placed on the father the burden to prove that the mother's relocation would not substantially impair his relationship with the children.  But while that was error, the Court of Appeals says, apparently derived from a misreading of Scinaldi v. Scinaldi, 2 Va. App. 571 (1986), the error was harmless.  Let's see why.  The mother's burden of proof was nothing but best interests, which she had to show by a preponderance of the evidence.  Because she established her prima facie case, the Court of Appeals says, the error of placing an affirmative burden of proof on the father [sic] was harmless.  Apparently in this case, Stockdale v. Stockdale,   15 VLW 272 (8/8/00), the father presented no evidence that his relationship with the children would not be substantially impaired.  That being so, it couldn't be erroneous to put an improper burden on him. Did he incur the erroneous burden ruling, and then decide to present no evidence so as to stand on his rights and save them for appeal? The opinion doesn’t appear to say.

CUSTODY – RELOCATION – "UNITY OF INTERESTS" DOCTRINE – JOINT CUSTODY CASES.

Defying the trend merchants, the Court of Appeals in Cloutier v. Queen,   (5/8/01), issued a 20-page relocation opinion that may seem to stand only for the proposition that in these cases the decisions will continue to be extremely fact-specific, and that the Court of Appeals will nearly always uphold the trial judge.  The father and mother had originally agreed on a very specific and careful joint legal custody arrangement (parenting plan) with somewhat more time to the mother, which father apparently concededly gave her "primary physical" custody.  The mother filed in court for permission to move the children to Pennsylvania, the father cross-filed for a change of custody, and the trial judge ended up denying both petitions, on the ground that the present two-parents-close-by arrangement was in the best interests of the children.

FUNDAMENTAL PARENTAL RIGHTS — VISITATION.

Williams & Williams v. Williams & Williams,  24 Va. App. 778, 485 SE2d 651, 12 VLW 8 (6/9/97).
A ringing declaration of fundamental parental rights comes from the Virginia Court of Appeals.  In a case where both the mother and the father wanted to deny visitation to the child’s grandparents, it is their fundamental right of parental autonomy that requires that the parents’  preference on this matter ought to be treated as the last word and given the force of the law.

PROPERTY DIVISION — REMEDIES — SOURCE OF FUNDS — PARTITION IN KIND — VALUE OF PROPERTY IMPROVEMENTS.

The Court of Appeals approves the constant-percentage Brandenburg formula for giving source-of-funds credit as one proper method, though not calling it the only acceptable one.  It also points out to lawyers and judges that something they have been doing for several years in the course of doing source-of-funds or contribution credit is wrong: If you are trying to back out some credit for improvements that your client made tothe marital real estate, you can't just prove the cost of those improvements:  it has to be the amount of value that they have added to the real estate, which must be proved by evidence, and upon which the judge must make a specific dollar finding.  Also, the Court makes the more obvious point that income from jointly-titled property, even if received after separation, does not necessarily become someone's separate property, no matter how late in the game it was received. Finally, the Court holds that although it was all right for the trial judge to partition some marital real estate in kind by subdividing a lakeside tract, it was wrong for him to give the back lots an easement and then require the servient owner to pay for all of the maintenance of it.  The cost of maintaining joint right of way easements should be equitably apportioned among all those who own and those who have the right to use.  Hart v. Hart, 12 VLW 1500 (3/31/98).

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).

SUPPORT ENFORCEMENT — PAST REMEDIES — RETROACTIVITY — ORDER AGAINST PENSION — QDRO STATUS.

Support arrearages can be satisfied in many ways today, especially when there is a large judgment for the arrearage, but a wife who obtained a judgment in the year 1985 for $84,000 alimony arrearages from her 1973 divorce decree cannot have the Circuit Court re-open the divorce case and enter a QDRO so as to take the arrearages out of husband’s pension.  (Neither the pension nor §20-107.3 existed in 1973.)  This would substantively modify the terms of the old final decree, violating the 21-Day Rule, and accordingly it does not qualify as a QDRO under ERISA, 29 USC §§1001 et seq.  The opinion apparently does not deal with using an ordinary garnishment order and other collective remedies to enforce this arrearage.  The Court of Appeals in this case, Hoy v. Hoy, 29 Va. App.115, 510 S.E.2d 253, 13 VLW 1026 (2/2/99), points out expressly that cases from other states have very little value in this regard.

TERMINATION OF PARENTAL RIGHTS — PLACEMENT WITH RELATIVES — ABUSE VICTIMS AND ABDUCTORS NOT FIT GUARDIANS.

Who said the Court of Appeals doesn’t believe in parental alienation syndrome? Some very interesting social theories are adopted as law by the Court of Appeals in an unpublished parental rights termination case, Ange v. Chesapeake Department of Human Services, 12 VLW 1106 (2/3/98). This was a challenge to termination that turned upon the Code §16.1-238(A) requirement of duly considering placement with the father’s relatives before terminating his rights. The Court of Appeals holds that the DSS properly investigated these relatives and the court properly found that neither of them, the grandmother nor the aunt of the child, offered the required “beneficial alternatives.” First, although foster care would seem to be a temporary expedient from which children are supposed to be removed, and removed promptly, in this case a psychologist and a social worker opined that to remove this child from her foster home is such a horrible idea that it would cause “regression” and “mental decompensation” inducing “psychosis.” And while one social worker found the father’s sister’s home to be an appropriate placement, this social worker was shown not to have known the extent of the domestic abuse that this aunt had suffered at the hands of her estranged husband. Another very interesting ground, stated for finding another of the father’s sisters unworthy, is that she is a mother who had abducted her own children from their father’s care, and hid them for several weeks by moving them from hotel to hotel.

VISITATION -- CHILD SEIZURE BY STATE.

It was all right for a trial court to give a natural mother virtually no visitation when the child was taken from her custody, since she had abused this 12 year old boy, and he emphatically refused visitation.  Smith v. McPeak, 8 VLW 144 (8/14/93).