Virginia Family Law Appeals

Hamilton: CHILD SUPPORT – MODIFICATION AND CONTEMPT – WILLFULNESS ELEMENT – PAYEE IMPUTATION.

In a rare opinion that combines downward modification and payee imputation as to child support, the Court of Appeals says a couple of things which, were it not an unpublished opinion, would raise some doubt about the time-honored, if draconian, rules in this area.  In Hamilton v. Hamilton, unpublished, 23 VLW 527 (10/7/08), the Court of Appeals said it was all right for a Fairfax Circuit Court to impute income to the mother, who had retired from the Navy and obtained (you might say) another job paying $24.55 per hour but then had (sort of) quit that and gone to work as a part-time social worker at $14.71 per hour.  The only reason the mother gave for the job change was that she wanted to “work with troubled youth.”  As for the mother’s interesting objection that the trial court had no business reducing the father’s support when he was in arrears or in some respect non-compliant with the existing order (in fact, he unilaterally halved his payments when a child aged out), the trial court’s reasoning was that he was not in contempt of the old order, because — listen up — because the element of willfulness hadn’t been proved, and the Court of Appeals affirms that. 

Demuth: CUSTODY – RELOCATION – PREVENTIVE CONDITIONAL CUSTODY AWARD.

 It can conceivably be all right, in the proper procedural context, to deny a mother’s relocation of the children out of state.  But woe betide a trial court that holds it’s in the best interests of the children to live with the mother, provided she stays here.  As the Court of Appeals points out in the unpublished opinion in Demuth v. Demuth, 23 VLW 527 (10/7/08), it is absolutely forbidden for a judge to indulge in “pure speculation” that the move, at such time as it might come, would not indeed be just fine and dandy for the best interests of the children.  This judge, the Court of Appeals says, should have prohibited the permanent removal of the child from Virginia if he didn’t like it. Setting up an automatic change in custody should a mother move cannot be lawfully done.  To the father’s argument that there was nothing speculative at all about the mother’s moving the children to Texas, since she had specifically stated her intent to do that when they went into court in the first place, the Court of Appeals says that there was nothing in the record establishing that the mother was in fact moving, and in fact she had indicated that she would rather stay here than “lose custody.”  It is impermissible to assume that the mother will move without filing the relocation notice that the divorce decree required her to file, and should she in fact file and serve that paper, the father can then go into court and seek a custody modification, no matter how recent the last order was.  This circuit court abused its discretion by supposedly prejudging the issue.

Boisseau: PROPERTY DIVISION – ALLOCATIONS OF DEBT – MARITAL OR SEPARATE – “UNILATERAL” BORROWING FOR MARITAL PURPOSES.

PROPERTY DIVISION – ALLOCATIONS OF DEBT – MARITAL OR SEPARATE – “UNILATERAL” BORROWING FOR MARITAL PURPOSES.  A strange and frightening new doctrine, perhaps encouraged by some things the Court of Appeals has said in prior cases and perhaps not, is decisively (you might say, were it not in an unpublished opinion) rejected by the Court of Appeals. The Court was reversing a theory that borrowing money without consulting the other spouse, even if it is for entirely and admittedly marital purposes, makes it separate debt because it was a “unilateral act.”  This husband borrowed $90,000 from his family’s trust, and the wife admitted at the trial that the money was not improperly or imprudently spent, and that all the things it was spent for were marital, such as paying down the outstanding part of a $47,000 home equity line of credit against the house.  The trial judge bought the argument that because the wife hadn’t been consulted about the borrowing and didn’t know about it, the husband should be stuck with the whole debt, but the Court of Appeals didn’t.  It explains that a loan that one spouse does not know about can still be used for the benefit of both parties, and that is the test, not the 21st Century etiquette of instant disclosure.  The “unilateral” theory did not provide a proper foundation in the record for the one-way apportionment.  The trial court was legally required to evaluate the nature and character of the debt when apportioning it, including who benefited. And, just as property is presumed marital until shown otherwise, the Court explains, so is debt.  Boisseau v. Boisseau, unpublished, 23 VLW 590 (10/21/08).

Westreich: CUSTODY – FACTORS – RELOCATION PLANS – FALSE CPS REPORTS.

CUSTODY – FACTORS – RELOCATION PLANS – FALSE CPS REPORTS.  Some things that can go wrong for even a mother in a child custody fight are illustrated by the unpublished opinion in Westreich v. Westreich, 23 VLW 588 (10/14/08), in which the Court of Appeals upheld a decision giving the father primary physical custody.  The trial court had based its decision on what it euphemistically called “instability and poor judgment calls.” Which included mother’s plan, and her later attempt in court to deny that plan, to marry another man and move the children to Maryland.  The facts which came out included an e-mail to her mother about seeking a Maryland job, which also said and that there were more opportunities for the children in Maryland and the religious environment was more congenial to her.  Other evidence the court relied on included the mother’s filing a false Child Protective Services report against the father about inappropriately touching the children, which CPS found unfounded and which the mother then tried to deny that she had made.     It also considered the mother’s relationship with the boy friend, considered by the trial judge “confusing” for the children.  The Court of Appeals said that the judge did not abuse his discretion by looking at these matters, that the evidence itself showed that the judge had considered all of the applicable statutory factors, and (over mother’s objection) that the judge did not have to state which weight each factor was given.