Virginia Family Law Appeals

Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 87, 637 SE2d 330, 21 VLW 746 (11/28/06)

INTERSTATE CUSTODY JURISDICTION – PKPA – HOMOSEXUAL CIVIL UNIONS.  The much-publicized dispute between two lesbians joined in a Vermont civil union, over the child one of them bore by artificial insemination, was decided by the Virginia Court of Appeals in an opinion that is economical, straightforward, focused and direct, which concentrates on the PKPA issue.  The appellate court reversed the trial court determination that one woman was the sole parent because that Virginia trial court lacked child custody jurisdiction under the federal Parental Kidnapping Prevention Act, 28 U.S.C. §1738A, and was required to accord full faith and credit to the Vermont custody decision giving one woman custody and the other visitation.

NOTE: IN SEPTEMBER 2007, THE VIRGINIA SUPREME COURT AGREED TO REVIEW THIS DECISION.

Martin v. Howard: PATERNITY AND CHILD SUPPORT LIABILITY – BEYOND THE GRAVE – EXHUMATION FOR DNA TESTING – ILLEGITIMATE CHILD’S RIGHT TO PROVE DESCENT FOR CLAIM AGAINST ESTATE.

The Supreme Court admits that a 1997 statute, §32.1-286(C), was passed for the express purpose of reversing its holding in Garrett v. Majied, 252 Va. 46 (1996), that courts had no jurisdiction to order bodies dug up so an illegitimate child could prove paternity.  Since the statute is there, it mandates exhumation when the illegitimate child or mother of same demands it.  The trial court thought that it had discretion to deny such orders, but there is no such discretion in the statute.  The petitioner is a “party attempting to prove” parentage for §64.1-5.1 and 5.2 inheritance purposes, that is all there is to it.  Thus a woman who sued for exhumation of her supposed father’s body so as to seek a share of his estate had an absolute right to get that result.   21 VLW 1449 (4/20/07).

EVIDENCE – CRIMINAL ISSUES – EXPERT WITNESSES – LICENSED PROFESSIONAL COUNSELOR – PSYCHOLOGICAL DIAGNOSIS.

  The Fitzgerald v. Commonwealth case, at 48 Va. App. 271, 630 S.E.2d 337 (2006), was upheld on appeal by the Virginia Supreme Court at  21 VLW 1147 (4/20/07).  The Supreme Court agreed with the Court of Appeals that a “licensed professional counselor” testifying as an expert witness in a man’s criminal trial on §18.2-370.1 and §18.2-67.2, for taking indecent liberties while in a custodial relationship, can give a psychological diagnosis that a victim of child molesting is suffering from post-traumatic disorder.  The objections that only a psychiatrist or psychologist can give such expert diagnoses about mental disorders in  the DSM-IV was again rejected.

Campbell v. Campbell: 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.

Ipsen v. Moxley: JUVENILE AND CIRCUIT – CONTINUED EXISTENCE OF JDR PENDENTE LITE SUPPORT ORDER – NONSUIT IN CIRCUIT COURT — THE RESULT OF DIVORCE NONSUIT – §20-79 CONSTRUED.

21 VLW 1392 (4/10/07)
The concurrent-jurisdiction overlap between juvenile and circuit courts is always good for tangled procedural situations and lengthy appellate-court analyses.  In one of those cases in which the circuit court grants a divorce saying that it leaves the matters of child custody, child support and alimony alone so that the juvenile court can handle them, the Court of Appeals has a number of instructive things to say.   It was held that the support order from the juvenile court that was shoved aside when divorce proceedings were filed persisted.  On this appeal the Court of Appeals held that the nonsuit of the divorce case “restores authority” to the JDR court support order that existed before the divorce case was filed. 

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.

Swalef v. Anderson: UCCJEA — CUSTODY — INTERSTATE — TRIBAL COURTS — CONTINUING JURISDICTION — FORUM NON CONVENIENS (DEFER AND DECLINE) — APPEALS — SELECTIVE APPELLATE REVIEW.

Taking a very practical approach to an appealed UCCJEA case involving Indian tribal courts in Minnesota, the Court of Appeals declines to review the validity of the Norfolk Circuit Court’s discretionary decision to decline and defer exercise of child custody jurisdiction over a child then in Minnesota, because whether or not this Virginia court had jurisdiction, its decision to defer the case to the Minnesota Tribal Court was authorized and correct.

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.

CUSTODY — AWARD TO GRANDPARENTS IN ABUSE/NEGLECT CASES — FOSTER CARE STATUTES AND CUSTODY STATUTES.

  In the vast body of overlapping laws that concern taking children away from their families the Court of Appeals sometimes gets surprisingly independent and issues some remarkable opinions.  One which points up the very real and important issues of statutory interpretation, and produces real differences of opinion on the Court, is Lynchburg DSS v. Cook, ___ Va. App. ___, ___ S.E.2d ___, 22 VLW 322 (en banc, 8/14/07).  Here the en banc Court reversed the panel opinion that had sided with DSS, and reinstated the holding of the trial court.  That holding had awarded custody to the grandparents of a child that the DSS had seized from the parents due to allegations against the father and placed in foster care.

Lewis v. Culpeper County DSS: PARENTAL RIGHTS TERMINATION — EXCLUSIVE ORIGINAL JURISDICTION — NEW TERMINATION PETITION AFTER NONSUIT.

What happens after a local DSS tries to terminate a father’s parental rights, father loses in juvenile court, appeals for trial de novo in circuit, and then as soon as it gets to a hearing, the DSS nonsuits?  If there is a refiling should that be in circuit court?  No, it has to be in juvenile court, the Court of Appeals points out, as required by the jurisdictional statutes.