Virginia Family Law Appeals

Johnson: ALIMONY – MODIFICATION – REDUCTION UPON RETIREMENT.

 In a way it’s largely a matter of perceptions. “Why should you get to reduce your alimony obligation just because you halved your income by retiring?” is such an unexpected question to most husbands that it must sound nothing short of bizarre, and it’s one they seem to have a very hard time answering to the satisfaction of a judge.  And although age 60 might not sound early to many retirees, just remember that most judges aren’t retired by age 60, so to them it must seem like a very early retirement, and a highly questionable one.  A Chesterfield County man made several mistakes besides retiring from the railroad at that youthful age.  First, when cutting his income by 55% by retirement, he had saved enough money (or acquired it somewhere) to buy a house, a car and some furniture after retirement.  Next, he continued to pay his alimony according to his obligation.  So that’s grounds right there for denial of his petition to modify it downward in accordance with his half-sized income. The ex-wife continued to have needs, so denial of reduction was upheld, in Johnson v. Johnson, unpublished, 24 VLW 1136 (3/23/10).

Sharman v. Diaz-Mendez: PARENTAL RIGHTS TERMINATION – CHILDREN OVERNIGHT IN BOYFRIEND’S HOUSE – GAL’S APPEAL.

Why is a Culpeper County parental rights termination case titled with the Guardian ad Litem’s name as Appellant and not that of the DSS?  Because the DSS lost interest in carrying it further when they lost in the trial court, but the GAL wasn’t satisfied, and it was the GAL who appealed.  Sharman v. Diaz-Mendez, 24 VLW 1136, unpublished (3/2/10), is also unusual in that the DSS lost in the circuit court and the Court of Appeals affirmed. What were the grounds for the termination of the mother’s parental rights?  It was alleged and admitted that she, and the children, stayed overnight in the home of her boy friend.  The Court of Appeals takes this matter seriously, and goes over a long recital of the facts.  The mother had taken note of the “foster care plan” and had achieved most of the objectives it set out for her. Unlike many termination defendants, she didn’t protest the acknowledged lack of DSS services to help rehabilitate her, and there was no evidence presented that her failure to meet any one of the objectives was because of that failure of DSS. Furthermore, because her performance was satisfactory, the DSS had tentatively decided to return the children to her – but it set her one final test: “unsupervised” overnight visit by the children to her home.  As luck would have it, this was at an inauspicious time of year, in the first week of February, and it turned out that the new home she was to move into, and have the children visit, had neither heat nor food that night.  The Court of Appeals even notes that the mother did not try to get food from the DSS that night, but the Court of Appeals doesn’t say how much weight it accords that supposed delict.  Instead, she took those children to her boy friend’s apartment – even though the DSS had already told her that it was “inappropriate” because four adults and an “unknown number of children” resided there.  The mother testified at trial that she and the children had slept in the boy friend’s bed and he slept on the floor.  The DSS, though it had protested the inadequacy of space, had no data on the size of the apartment, and had never had a social worker in there, but it was larger than the mother’s home.  At trial the DSS did not bring any evidence that the mother had endangered the children in any way, or that any of the unknown people who might have been there were dangerous, or how many “other children” there were.  Nor did the DSS bring in any evidence that the boy friend or anyone in his apartment was in any way a danger to the children.  Nor was it alleged that the children did not remain safe, sleep well, and have a good time.  Given the evidence, the Court of Appeals found that for the circuit court to deny termination of parental rights under §16.1-283 was not error.  And the breathtakingly draconian threshold for appeal of DSS cases works in a parent’s favor this time around. The Court of Appeals can’t conclude that “no rational fact finder” could have found that DSS failed to prove the statutory grounds with the clear and convincing evidence that each of the subsections of §16.1-283(C) requires, so it won’t (in fact can’t) reverse.

MARRIAGE – CONTRACT ENFORCEMENT – IRANIAN PREMARITAL CONTRACT.

Do the Virginia courts want to get into the tricky business of construing and enforcing Iranian marriage contracts?  Apparently so.  When the Fairfax Circuit Court enforced such a contract, it construed it as being a premarital contract, and as requiring husband to pay wife 514 gold coins known as Bahar-E-Azadis, and held it valid and enforced it.  Husband’s various claims on appeal included that it was wrong for the court to admit this document into evidence, along with a BBC Multilingual English translation. But Aha!: husband didn’t sufficiently note his objections at trial so as to satisfy Rule 5A:18.  The appellate court can’t really tell what his objections were, and the same goes for his objection that the contract is fatally vague on its face unless bolstered by expert testimony.

Now as to letting the wife be her own expert and testify as to Iranian and Islamic law, it appears that her testimony was simply that she was owed these 514 gold coins as her marriage price and could demand them at any time, i.e., testimony about the terms of a contract she was a party to, so no problem there. (It’s not a case, like some that lawyers see, calling for payment in goats or camels, but one calling for money in the form of gold). Nor can this enforcement be faulted under Code §20-107.3, because this was not an equitable distribution, but merely a judgment that wife had a valid right to that gold under the contract. Afghahi v. Ghafoorian, unpublished, 24 Va. Lawyers Weekly 1189 (3/30/10).