Virginia Family Law Appeals

Rodgers v. Rodgers: CUSTODY – MODIFICATION – CHANGED CIRCUMSTANCES OR NOT – HAIRCUT INCIDENT – APPEALS – INCOMPLETE RECORD – DE NOVO APPEALS FROM JDR COURT – NEW-HEARING REQUIREMENT.

CUSTODY – MODIFICATION – CHANGED CIRCUMSTANCES OR NOT – HAIRCUT INCIDENT – APPEALS – INCOMPLETE RECORD – DE NOVO APPEALS FROM JDR COURT – NEW-HEARING REQUIREMENT.  When the appellant father in Rodgers v. Rodgers, unpublished, 23 VLW 407 (9/30/08) came in alleging that the trial court had no business changing custody from joint to sole custody with mother because there was no change of circumstances except his taking the son to get a haircut, the Court of Appeals unloaded on him saying essentially “Oh yeah?  What about this?”  And to prove that there was indeed more change of circumstances, there follows an impressive list of mere-conclusory horribles that sound suspiciously like getting the kid a haircut – after a viciously adversary advocate gets through with it, of course.  In a brief discussion that makes one wonder whatever happened to the Virginia Rule that required “fact pleading,” we learn from the slip opinion that the court below in fact found that the father was guilty of “disruptive and destructive behaviors toward the child,” and “did not follow the prior orders relating to communications with mother, including notifying mother of significant issues,” and furthermore “made disparaging remarks about mother and ... put his needs before the child’s needs.”  The pro se father also may have thought he had a pretty good issue to take to this Court of Appeals when he alleged that the circuit court below didn’t really afford him a de novo trial, but just rubber-stamped the decision of the juvenile court.  Well he strikes out there as well, because the circuit court order, as quoted by the appellate court, said, “the Court does award sole custody of the child ... to the father.  The Court makes this award for the same reasons as expressed by the [JDR Judge] ... in her order dated June 6, 2006.  The Court adopts her reasoning by reference,” adding that “the Court did conduct a hearing ore tenus.”  Well sure it’s a requirement that the circuit court hold a real de novo trial, the Court of Appeals says, but here there is no way to determine whether that requirement was met, because there would be no way to determine that question if there wasn’t a transcript “or summary” of the circuit court proceedings, so that issue can’t be considered.

T.S.G. v. B.A.S.: CUSTODY – THIRD PARTIES – “DETRIMENT” OR “BEST INTERESTS”? – ADOPTION STATUTES – GRANDPARENT ADOPTION – CONSENT WITHDRAWAL.

The various adoption statutes can constitute a maze of complexity for any parent who gives her child up for adoption and then thinks that her consent is easily withdrawn, as a mother found out in T.S.G. v. B.A.S., ___ Va. App. ___, ___ S.E.2d ___, 23 VLW 380 (9/2/08). Therein the Court of Appeals lectures everyone about the subtle relationship of §63.2-1242.3 on close-relative adoptions, and §63.1-1204 on consents, and decides that §1204 “reads on” §1242.3, the requirements of which are not displaced or modified by §1204.  This mother executed a valid consent to adoption under §1202 and she didn’t revoke it under §1204's requirements – which apply to §1242.3 (close family adoptions.)  Thus she can’t escape the rigid requirements of §1204 for withdrawing your consent.  The mother also contended that the trial court is supposed to have considered, in any contest between a third party custodian and a natural mother, whether mother’s keeping the child would be “detrimental to” the child, and not just decide best interests.  But the Court of Appeals says the trial court was not required to do that. Once a court determines that she made a valid consent and did not validly withdraw it, the only question was best interests.  This 10-year old child had been living with the grandmother since age 2, and best interest was clear.  The mother claimed that the grandmother got the child by fraud since she didn’t tell the trial court the mother was contesting the adoption, but that claim is rejected because it appears from the record that the grandmother’s lawyer told the court everything about that.  The court had been made aware of the mother’s opposition in several ways, and the mother herself intervened and was heard in court.

Singleton v. Commonwealth: CONTEMPT – NON-APPEARANCE.

A criminal case produced a contempt order that holds its own implications for family law practitioners, and that contempt order was upheld by the Court of Appeals, in Singleton v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, 23 VLW 526 (10/7/08).  Defense counsel non-appeared, having told his client that the client did not have to appear.  That is because defense counsel had agreed with the prosecutor to a continuance.  It was to be a jointly-requested continuance of the DWI trial date.  Because, however, nobody mentioned this to the judge or the court staff until the scheduled trial date when the case was called, it was proper to cite the defense lawyer for contempt.

Parks v. Parks: APPEALS – DISMISSAL – RULE 5A:20.

The Court of Appeals is well aware that the Virginia Supreme Court recently gave it some important advice as to the use of Rule 5A:20 (failure to cite authority, etc.) in the dismissal of appeals.  However, in a recent divorce case the Court of Appeals finds a wife’s brief sufficiently deficient to justify dismissal nonetheless.  It goes through each of the three arguments she raised and finds each one presented without any legal authority, and therefore dismissible. And so the entire appeal, of which nothing is now left, can legitimately be dismissed without further consideration, under Rule 5A:20(e).   23 VLW 462 (9/23/08).

Brandau v. Brandau: ALIMONY – INCOME ISSUES – PAYEE IMPUTATION.

Some sacred basic principles are forcefully restated by the Court of Appeals in an alimony case wherein it would seem from the opinion that a very undeserving husband very ill-advisedly sought payee imputation against his very deserving wife.  Husband, an optometrist in business for himself, was claiming that she could earn as much as $13,000 per year, and when the trial court did not use that number in its alimony calculation, he had appealed.  The Court of Appeals goes immediately to such facts as husband having deserted the marriage of 22 years, the wife’s congenital heart condition, her high school education, and the fact that she had not worked – outside the home – during the entire marriage.

McIlwain v. McIlwain: PROPERTY DIVISION – RELIEF AVAILABLE – FORMER MARITAL HOME OCCUPANCY – DIVIDING RENTAL VALUE.

  When the Court of Appeals reviewed a case in which it looked, at least from the appellate record, as though the husband had been guilty throughout the marriage of the shoddiest economic behavior, and the wife had always gone the extra mile to be more than fair in the financial area, the appellate judges did not have much trouble deciding that the trial judge had not exceeded his authority. That judge had awarded this wife credit for half the fair market rental value of the former marital home where the husband had stayed.  It did, however, hold that the judge was out of line when he awarded this wife credit for the tax payments she had made for the couple with marital funds.

Lynchburg DSS v. Cook: THIRD PARTY CUSTODY – FOSTER CARE STATUTES OR CUSTODY STATUTES?

One of the areas in which the Supreme Court lately has shown a disposition to accept cases for review, write full opinions and tell the Court of Appeals they were wrong, is the area of taking children away from their natural parents to award custody to others.  In Lynchburg DSS v. Cook, ___ Va. ___, ___ S.E.2d ___, 23 VLW 431 (9/12/08), it says the intermediate court was wrong in applying the general custody statutes to a third-party case (petition by grandparents) when “abuse or neglect” had been found and the foster care statutes applied.