Virginia Family Law Appeals

Nine cases on child abuse/neglect law and procedure

The cases are Boyles v. DSS 1997, Shull v. Commonwealth 1993, DFS v. v. Nordel 1999, Duncan v. Commonwealth 2003, and its reversal, Commonwealth v. Duncan 2004, Jackson v. Marshall 1995, McBeth v. Commonwealth 1999, DSS v. Kennedy 1998, Beardsley  v. Clary 1997.

Six bankruptcy/family law cases:

Six older case notes on how bankruptcy interacts with support, property division, agreement enforcement, and college tuition for children. Case notes on In Re Dill, Webb v. Craighead, Carter v. Carter, In Re Crosby, Lawson v. Lawson, and In Moseley v. Moseley follow:

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.

White v. White: DECREES – CORRECTION OF ERRORS.

An ambiguous decree which stated in one place that wife's alimony would end upon her remarriage, and in another place that it would end upon husband's remarriage, was ambiguous enough to deserve correction of this conflict as a "clerical error," nunc pro tunc, the Court of Appeals found in White v. White,   17 VLW 48 (6/11/02).

ETHICS — ATTORNEY-CLIENT RELATIONSHIP — LIMITED REPRESENTATION/”UNBUNDLING”: Jeffers v. Inova Mt. Vernon Hospital.

A lawyer who signed a pleading with a name of another law firm and explained in court that she drafted a Title VII complaint only as a favor to a lawyer in that firm, cannot say now that she did not represent the plaintiff, and it doesn’t matter what she says the Virginia State Bar Ethics Hotline told her, the U.S. District Court for the Eastern District of Virginia at Alexandria says. 

FEE AWARDS – SUPPORT MODIFICATION – SEPARATION AGREEMENTS: Rutledge v. Rutledge

When does a judge have a general equitable common-law discretion to award attorneys' fees in post-divorce support modification litigation?  Well one time he surely does not have it is when the ex-wife seeks an alimony increase and there is a separation agreement which lets her do that, but it specifically provides for attorneys fees in two named instances: in the divorce, and in the event of a breach.  The Court of Appeals acknowledges that earlier decisions interpreting §20-109 have not been consistent in their wording, but the Court says in Rutledge v. Rutledge, 45 Va. App.56, 608 S.E.2d 504, 19 VLW 919 (2/1/05), that it has never even hinted that Subsection C gives a judge any kind of discretionary power to deviate from the express terms of the agreement and assume a discretionary fee-award authority.  Fees in the event of breach is one thing, but the Court sees no term in this agreement that allows fee awards when either party seeks to modify support.  It was the wording of the separation agreement that gave this woman the right to be in court at all, and the wording of the agreement controls.

Schwartz v. Schwartz: EVIDENCE — PRIVILEGE — CUSTODY CASES — THERAPISTS.

Since the therapist privilege statute relating to custody cases was first passed in 2002, some lawyers have noticed with alarm (and sometimes with glee, depending on whom they represent) that the statute allows either party in a custody case an absolute veto over the therapist testifying.  It has nothing to do with who is the patient: it matters not that the child is the patient, or that the psychologist is eager to testify.  It simply allows each party the right to object and keep the testimony out.  Now the Court of Appeals has noticed this too, because a mother who was charged with violating the anti-disparagement provisions of the custody order after a psychologist was allowed to testify over objection about her hateful approach to the father appealed.  The Court of Appeals pointed out that this does not involve §8.01-399, which gives the patient or client of any practitioner of the hearing arts a right to object to the use of confidential communications coming in.  Rather, it is an amendment to §20-124.3:1.  The Court of Appeals points out that the language of this new statute is plain and has no exceptions allowing it to be overridden by considerations of best interests of the child.  The court is not allowed, under that statute, to admit testimony concerning a parent that was obtained during the course of therapy.  Schwartz v. Schwartz, 46 Va. App. 145, 616 S.E.2d 59, 20 VLW 260 (7/26/05).
NOTE: THE STATUTE WAS REPEALED IN 2008.

Street v. Street: "Uncontradicted" expert does not speak ex cathedra

The weird and disturbing pronouncement in Street v. Street,  24 Va. App. 2, 480 SE2d 112, 11 VLW 801, 17/2 FLN 22 (1997), that a trial judge’s decision had to be controlled by expert testimony, whatever it said, because it was “uncontradicted,” has been reversed upon rehearing en banc. 

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.