Virginia Family Law Appeals

Chaplain: PRE-MARITAL AGREEMENTS/ANTE-NUPTIAL CONTRACTS – FULL DISCLOSURE – “UNCONSCIONABLE” – APPEALS – INTERLOCUTORY ORDERS.

  When the Morrocan wife in this case came here in 1996, she met Mr. Chaplain and got engaged to him two months later.  They signed a pre-marital agreement that gave her only one thing: $100,000 if they were both married and living together at husband’s death.  Upon divorce, she challenged the agreement, testifying that she spoke English poorly at that time and had to have interpreters, that he brought her to the office of his lawyer, who had drafted the agreement, and she thought it was “a marriage paper” like a license.  She had not seen a copy of it to review beforehand and, she testified, did not get one afterward. And, she said, she signed it without reading it, having no counsel of her own to do so for her.  The evidence also was that she was never given any disclosure of husband’s assets and although his net worth was about $20 million dollars at that time, he had told her that he was a poor man and didn’t have much money.  The trial court upheld the agreement because wife was present at whatever negotiations there may have been, and at the signing should have known what she was doing. Don’t ask what the husband’s evidence on all of this was, as the Court quotes very little of it. He moved to strike the wife’s evidence, as her claim was that it was unconscionable on its face, and the judge granted that motion.  The trial judge did say that he was considering the fact most of the husband’s property was acquired before marriage, and that the wife signed voluntarily and was so much younger than he was.  The Court of Appeals decided this under the Uniform Pre-Marital Agreement Act, and noted that the wife had not waived in writing her rights to full financial disclosure before she signed the agreement.  The Court of Appeals found that the husband had in fact offered some evidence about a different understanding of the events at the signing of the agreement, and they found that that posed a dispute upon the facts that will have to be resolved upon remand.  For some, the biggest news from Chaplain v. Chaplain, ___ Va. App. ___, ___ S.E.2d ___, 24 VLW 388 (9/8/09) will be in how the Court treated the procedural, or appellate jurisdiction, point.  The Court found the judge’s dismissal of the suit to be an interlocutory order, but an appealable interlocutory order.  Under § 17.1-405 the decision certainly “adjudicated the principles of the cause” because barring the pre-marital agreement meant there would be no property divide and no spousal support (as well as no inheritance, except for the $100,000 payment under the contract, and no insurance benefits coming to the wife).  (Dismissal of the wife’s attack on the agreement).  To all of the things the Court had said back in August in deHaan v. deHaan, 54 Va. App. 828, 680 S.E.2d 297 (8/4/09), about the horrors that flow from interlocutory appeals, Judge Annunziata explained how accepting this appeal certainly serves judicial economy rather than being inimical to it. 

Delaney: APPEALS – STATEMENT OF FACTS – FORBIDDING CONTENT – Rule 5A:18.

As if the malpractice-prevention front weren’t bleak and treacherous enough already.  And with the power of suggestion being so immense, one does wish the appellate courts wouldn’t go around giving unfriendly trial judges ideas. A case called Delaney v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, 24 VLW 523 (10/13/09), certainly serves to corroborate those of us who always say that a case which has to rely on a Statement of Facts should probably be considered dead on arrival. This concerned an appellate challenge to the trial judge’s refusal to allow counsel’s motions or arguments on Motions to Strike to be included in the Statement of Facts. Yup, a judge can do that, is the answer of the Court of Appeals on that issue, but of course, in order to add insult to injury and make it sound like the lawyer’s fault, and thus a malpractice matter, they cunningly and subtly tie it to Rule 5A:18. What can’t be considered on appeal, of course, is the defendant’s more substantive claim that defendant was convicted of petit larceny on insufficient evidence. But the Court of Appeals naturally says that the trial judge approved this Statement of Facts, the Statement summarized the evidence, and the Statement was signed by both counsel. Then if you read that Statement of Fact – Why, Behold! Alas! The Statement of Facts, believe it or not, has no indication of anything an appellate court could look at to see what the objections and the arguments were as seen by the judge at trial. Why sure, the defendant now contends that he presented a Motion to Strike, with all sorts of arguments that the Commonwealth had submitted insufficient evidence, but what’s a well-meaning appellate court to do? Ain’t nothin’ there. The argument was made that “of course it’s not in the Statement of Facts: the judge wouldn’t let me put it there,” and the Court of Appeals of course has an answer for this hapless defense lawyer.  Why, counsel never objected to the completeness of the Statement of Facts, nor the accuracy thereof. In fact it even appears that the Assignment of Error on this appeal didn’t say anything about the trial judge’s prohibition.  And to the question at oral argument that a court on appeal can’t look at anything except what’s in the Statement of Facts, can it? Defendant counsel naturally had to concede that indeed t’was so. And does any of this mean that “good cause,” or “the ends of justice” justify making one of those exceptions that are occasionally made to Rule 5A:18?  Of course not; the appellate court couldn’t possibly do that. Know why? Why the defendant didn’t preserve his argument regarding the sufficiency of the evidence. So you see, it’s all very simple, if a bit circular. Counsel should have taken that law school course in Rule 5A:18, Lee v. Lee, etc.

Kilby: PARENTAL RIGHTS TERMINATION – CHILD ABUSE – ONE CHILD BY ANOTHER – “CRUELTY OR INJURY BY FELONY ASSAULT CONVICTION” REQUIREMENT.

 The Court of Appeals upheld termination of the parental rights of a father who was convicted of letting his daughter be sexually abused by her brother so badly that permanent physical injury was caused.  The trial court did this under §16.1-283(E)(iii) on the basis of this father’s conviction under §40.1-103 for cruelty or injury to a child. The father argued that that does not constitute “felony assault resulting in serious bodily injury … etc.” within the meaning of §16.1-283(E)(iii).  He sought to distinguish Brown v. Spotsylvania DSS, 43 Va. App. 205, 597 S.E.2d 214 (2004) on the ground that he did not affirmatively inflict serious bodily injury on his child, but was convicted criminally of an act of omission when he failed to protect the child from her brother.  The Court of Appeals said it is a distinction without a difference, and that these statutes are all part of a statutory scheme which must be read in para materia.  And when the father objected that he should be protected by the parental presumption because he was not actually adjudicated of unfitness, the Court of Appeals rejected that argument (citing Knox v. Lynchburg DSS, 223 Va. 213, 288 S.E.2d 399 (1982)) on the interesting ground that once a trial court finds all the factors necessary under §16.1-283, it does not have to go on to make an express finding of parental unfitness, since it’s implied therein.  Kilby v. Culpeper DSS, ___ Va. App. ___, ___ S.E.2d ___, 24 VLW 574 (10/27/09).

Phifer: SUPPORT ENFORCEMENT – LACK OF NOTICE – WAIVER – FINAL SUPPORT ORDER REGISTRATION – APPEALS – INTERIM ORDERS.

 Lawyers when they first get into the business of trying to litigate against the support-enforcement bureaucracies are often astonished to find out about the many ways in which it can be too late to attack a judgment, judicial or administrative, of liability no matter how legally, factually, jurisdictionally or procedurally deficient the ruling was.  But the Court of Appeals actually reversed a trial court’s registration of a foreign-state liability judgment despite the many circumstances from which the DSS argued waiver of all due process rights.  This was a no-notice default-judgment holding by the State of Washington under the Full Faith and Credit Child Support orders Act, and in fact that Act does provide that the violation of constitutional due process rights is a valid ground for a judge to bar registration of the judgment in Virginia.  First, though, the Court of Appeals had to find that there was reason to entertain an appeal from the Virginia judgment allowing registration, since the DSS argued that this was itself an unappealable interlocutory order.  The Court of Appeals held, however, that it was an order “adjudicating the principles of the cause” under §17.1-405(4).  It was granted that this defendant had given Washington State’s DSS a New York address that was no good, forcing the Court of Appeals to admit that he was “not altogether blameless in this matter.”  But they clearly knew from the return of the mailing that he was not at that address, and they also had a perfectly good Washington State address for him, which they chose not to use.  They argued that they were under no obligation to do anything more to seek him out, no matter how definite, firm and accurate their actual knowledge of where he actually was.  The Court of Appeals rejects that proposition.  Washington authorities, the Court says, were obligated to use a method of finding and serving him that would be reasonable for a person to use who actually was interested and actually wanted to find the defendant.  The Court of Appeals looks to Washington State law, in fact, to see what the appellant’s procedural rights with regard to notice were in this situation, which was complicated by the fact that the first time he received defective notice this defendant actually appeared and sought to contest the Washington State finding.  What happened, though, was that the matter was not heard at that time and a rescheduled hearing was set later on, of which he was never informed until much too late to do anything about it.  Granting that a defendant’s actual appearance is a waiver of any deficiency of notice, and that this defendant’s showing up was a waiver of his notice rights at the time, the Court of Appeals says that there is no U.S. Supreme Court nor Virginia appellate ruling, and is a split of authority nationwide, on the question of whether such a waiver of notice rights by actual appearance is permanent, and so finally waives notice that it extends to other hearings and other rulings resulting in a default judgment.  The Court says that it sides with the majority position that a waiver situation like this one will not insulate a judgment from collateral attack on grounds of due process violations.  Washington law, the Court says, gave this defendant a right to have notice of the rescheduled default judgment hearing, and thus he had a valid due process expectation that was violated here.  Phifer v. Commonwealth, DSS, DCSE, unpublished, 24 VLW 470 (9/22/09).

Fulton: CHILD SEXUAL ABUSE – APPEAL OF DSS “FOUNDED” FINDING TO CIRCUIT COURT – AUTHORITY OF CIRCUIT COURT – STANDARD OF PROOF – APPEALS – SIGNIFICANCE OF “STATEMENT OF FACTS” – WAIVER – RULE 5A:18 – ENDS-OF-JUSTICE EXCEPTION.

 A “founded” finding of child abuse can always be appealed to the circuit court for redetermination.  We’re sure about that, right?  Well not so fast: It’s not such a sure thing after all.  The Court of Appeals instructs circuit judges and lawyers in the child sexual abuse of DSS v. Fulton, 55 Va. App. 69, 683 S.E.2d 837 (10/13/09), that a circuit judge has no business whatever disturbing the administrative finding of the Social Services Department that a citizen is guilty of child sexual abuse and changing the finding to “unfounded” – much less ordering the records purged – unless and until it determines that there was no substantial evidence in the whole record of the agency action to support the DSS’s “founded” decision. And in looking for that substantial evidence, the judge must accord that agency decision “great deference.”  The allegation was that the father who hosted a sleepover attempted a very nasty thing with the 12-year old guest while she was sleeping with his daughter and his Rottweiler dog.  Moreover, because this man signed, as appellant, a “Statement of Facts” to get to the Court of Appeals, he must have been waiving all his objections to any errors in the trial, and thus he could not appeal the failure of the DSS to tape record their interviews with the alleged victim.  Rule 5A:18, after all.  This is not an appropriate case, the Court of Appeals said, for the “ends of justice” exception.

Mercurio: CUSTODY – ALLEGED JUDICIAL PREJUDICE – JUDGES’ GENERAL OBSERVATIONS — JUDICIAL NOTICE.

A mother who lost in her effort to change custody cannot get a reversal merely because, when she adduced evidence about her visiting the children’s school lunchroom at lunch times, the judge remarked that parents often start visiting more at the school when there’s litigation going on.  The reaction of the Court of Appeals to this is that custody decisions have to be evaluated on appeal by looking at the whole picture and not one isolated comment by the judge.  Judges are still free to speak on general and generally known matters and the taking of judicial notice is generally within the Court’s discretion.  The Court of Appeals, however, must consider the entire record.  This judge had also observed to the parents that they needed to stop coming to court “every time you turn around.”  But the mother here had a few more problems in her home situation and continuing with the father seemed to the trial judge to better serve the children’s need for stability.  Mercurio v. Mercurio, unpublished, 24 VLW 602 (11/3/09).

CRIMINAL – INDECENT LANGUAGE CONVICTION – FINISH COMMONLY USED FILTHY WORDS.

 

A recent criminal case, Lofgren v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, 24 VLW 602 (11/3/09) has an undeniable relevancy to family law practice, as it concerns behaviors that family lawyers find themselves forced to argue in court about practically every day in divorce and custody cases.  The Court of Appeals concluded that the man who called his erstwhile girl friend a sexually active female dog and in a classic example of litotes referred to her as her most private female part (oh wait! I must say, even though he was convicted, that he allegedly did that, because after all Major Hassan never, never did anything but allegedly shoot somebody) was improperly convicted under §18.2-427 of using profane, threatening or indecent language over the telephone.  The Court of Appeals holds that he could not be so convicted, because that specific language is not obscene language as defined by §18.2-372. After all, it doesn’t appeal to the prurient interests, and Perkins v. Commonwealth, 12 Va. App. 7, ___ S.E.2d ___, (1991) the telephone cussing statute, 427, was constitutionally narrowed to speech that is actually obscene.  Though neither has a definition of obscene incorporated in it, the context clearly establishes here, as it does in virtually all family law disputes where the words make their appearance, no chance whatever of appealing to the prurient interest.  It was, the Court of Appeals accurately observes, the use of offensive words as a “vulgar curse.”