Virginia Family Law Appeals

Stiles v. Stiles: CHILD SUPPORT – MODIFICATION – PENDING AND ENDED CAUSES – “FINAL ORDER” – LONG-PENDING MODIFICATION CASES – RETROACTIVITY – LACHES - MALPRACTICE TRAPS.

Many a court clerk will look at anything that says “Final Order,” or “And This Order Is Final,” and treat it as an ended cause, with all that that entails.  But what about a final order that disposes of only one claim, by one party, when another claim, by the other party, is still pending?  The fact that the judge issued what she called a “final order” gratifying the ex-husband’s petition to eliminate alimony for cohabitation that did not mean that the mother’s simultaneously-pending petition to increase child support (because husband had received a lot of money) was also killed off. 

Armstrong v. Hoover: JOINT CUSTODY AND CHOICE OF ELEMENTARY SCHOOLS.

Do Virginia judges make orders about what grade school a kid should go to when the parents don't agree?  A Fairfax judge did, and the Court of Appeals affirms.  The parents had joint custody, but the judge decided that father was wrong in enrolling the son in a school in his neighborhood when mother's local school got higher test scores, she had the "primary residence," and they had agreed before separation on that school.  The trial judge apparently saw this as a contempt matter for enforcement of the prior custody decree.  But even though the trial judge erred in calling her current school-choice order a "sanction," what she was really doing in Armstrong v. Hoover, unpublished, 20 VLW 1530 (4/11/06) was exercising her modification authority under Code § 20-108, the Court of Appeals says.

Rahnema v. Rahnema: ANNULMENT AND DIVORCE — ANNULMENT FILING LATE IN ED TRIAL — BIGAMY CLAIM — EVIDENCE — JUDGE’S IGNORING EVIDENCE NOT TIMELY OBJECTED TO — EVIDENCE TRANSLATED FROM FOREIGN LANGUAGES — ABSENCE OF WITNESSES — BIGAMY STANDAR

A Virginia Beach judge probably got more than he bargained for when he gamely plunged into the divorce of a couple of Iranians.  Among the many seldom-seen issues it brought up were what to do when one spouse files a bigamy charge just before the final equitable distribution hearing (O.K. to reject it), and how much a judge is obligated to let grossly questionable evidence in just because the other party doesn’t properly object to it. 

Noce v. Noce: Post-separation mortgage payments and STD as adultery proof

A trial judge refused to give a husband credit for his post-separation payments on the second mortgage on the former marital home, and the Court of Appeals affirmed, in Noce v. Noce, unpublished, 20 VLW 1530 (4/11/06).  The reasons given were (a) that the husband never showed that what he had used after separation to discharge this mortgage liability were not marital funds, (b) that he had used the property exclusively himself after separation, and (c) that his records for the payments were inadequate.  As to grounds, the Court of Appeals also affirmed the trial court’s judgment that the man’s adultery proof against his wife was insufficient.  It was this: that after he discovered he had genital herpes, and confronted his wife, she said that she “didn’t know he had it,” and husband inferred that the “he” referred to was her boy friend.  His only other evidence was proof that after separation the wife had met another man in her apartment more than once.  This, the trial court said, does not rise above the level of mere suspicion and conjecture.

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.

McDonald v. Commonwealth: CRIMINAL – SODOMY.

A criminal statute against sodomy, §18.2-361(A), is constitutional when applied to acts involving children aged 16 and 17, the Court of Appeals holds in an opinion by Judge Haley in McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754, 21 VLW 67 (6/13/06).  The defendant, aged 45, argued that the teenagers involved were adults under the definitions implied by Code §18.2-63, which prohibits carnal knowledge of a child 13 or 14 years old, and §18.2-371, which makes sex between people over 18 and children between 15 and 17 a misdemeanor.  However, the Court recognizes no variation in the definition of “adult,” which it says is defined in Code §1-203, §1-204 and §1-207 as a person 18 years or older except where a statute specifically uses a different definition.  It notes that the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003) “made quite clear that its ruling did not apply to sexual acts involving children.”

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

LEGAL ETHICS – DISCIPLINE – LAWYER’S PRO SE CONDUCT OF OWN DIVORCE CASE — WITNESS EXTORTION – CALLING OPPONENT AS WITNESS – COMPETENCY – WRONG LEGAL CONCLUSIONS AND DELAY IN READING AND REACTING TO PLEADINGS – MISSING STATUTE OF LIMITATION

The lawyer who may have been wise to take his case to the three-judge circuit court still had three of the disciplinary charges upheld, and thus he appealed to the Virginia Supreme Court in Barrett v. VSB, 634 S.E.2d 341, 212 VLW 472 (9/15/06). The first certified charge concerned the lawyer’s own divorce suit against his wife, and a subpoena he issued to her former employer because her earning capacity was an issue.  He sent two letters to the employer concerning the inconvenience and expense that appearing in court would mean, and offered to drop the subpoena if the employer would withdraw a claim for an attorney’s lien that somehow this employer had against him.  The holding that this violated Rules 4.4 and 8.4(b) was affirmed.  The second charge was that the lawyer called the wife’s counsel as a witness because the lawyer, Barrett, was charging that wife’s counsel had a romantic relationship with her.  Apparently, as soon as opposing counsel denied this, Mr. Barrett abandoned his attempt to call his opponent as a witness.  The decision that this violated Rules 3.1 and 3.4(j) was affirmed.  The lawyer’s argument that a lawyer who is representing himself cannot be held to legal ethics standards of conduct was rejected, with the explanation that when a lawyer represents himself he is still acting as a lawyer and the disciplinary rules still apply.  The third and most difficult issue concerned charges of incompetent representation that the Bar chose to prosecute notwithstanding that it had already been the subject of malpractice litigation.  Barrett first claimed that he was immune from liability because he practiced as a PLLC.  The PLLC statute, however, specifically declares PLLC-member attorneys personally liable. The Rule 1.1 charge of providing incompetent representation was not found to be that simple.  The lawyer admitted that his failure to file his client’s personal injury suit within the statute of limitations was negligent.  But, the Supreme Court points out, that is not per se a Rule 1.1 disciplinary violation.  Nor is legal research that results in a wrong conclusion enough, in itself, to violate Rule 1.1.  No attorney error, standing alone, is per se clear and convincing evidence of incompetent representation.  Also charged was the lawyer’s failure to read responsive pleadings timely enough and his delay in withdrawing his special plea of immunity, but the Supreme Court finds that those do not support the finding of incompetent representation here.  Nor was the statute of limitations error a Rule 3.1 violation.  It is not the same thing as taking a frivolous position.