Virginia Family Law Appeals

CPS must tape-record victim interviews, has burden to prove "harmless error"

CHILD ABUSE – CPS DUTY TO TAPE RECORD INTERVIEWS – HARMLESS ERROR – BURDEN OF PROOF.  In Hobbs v. Conyers, unpublished, 24 VLW 1026 (1/26/10), the Court of Appeals held that it was not harmless error for the CPS to fail or refuse (in violation of §22 Virginia Administrative Code ¶40-705-80(B)(1)) to tape record two interviews of an alleged victim. It was not proved to be harmless error. However, Judge McClanahan dissented, believing that the appellant has the burden of proving that the error was not harmless, and that the CPS should not be required to prove that it was.  

Layne: PROPERTY DIVISION – MARITAL CONTRIBUTIONS TO SEPARATE REAL ESTATE – PERSONAL EFFORT – STUDENT LOAN USE.

A trial court that awarded the wife in Layne v. Layne, unpublished, 24 VLW 555 (10/20/09), $28,676 of the equity in a condominium that husband had owned before marriage did it right, the Court of Appeals held. To do that, the Court perhaps need have gone no further than its holding that joint funds reduced the mortgage debt on the condo during the marriage and increased its equity, but the Court of Appeals (perhaps knowing what it was going to do in Duva) goes on to say that wife had made substantial contributions toward the increase by helping to find tenants, handling the leases once or more, calling repairmen, collecting the rent and “paying” the mortgage (presumably with those joint funds). The husband had of course argued that these were all things a spouse could do without making a substantial contribution of personal effort. The Court had found the marital share of the equity in that condo to be $57,352 and awarded wife half of that. The Court also required husband to pay $11,000 of wife’s outstanding balance on her student loan. And while husband argued that there was no way he should be responsible for paying off loans when he would not be benefitting from that education of his wife’s, the Court points out that while she studied she used those funds to maintain the household. Thus he has benefitted already.

Jones: When is joint titling a "gift" making property marital?

PROPERTY DIVISION – MARITAL-SEPARATE – TRANSMUTATION – “GIFT.”  “Hard cases make bad law” is a maxim that appellate courts should never forget, and have at times forgotten of course.  But it’s one that the Virginia Court of Appeals takes particularly to heart in a case of spectacular unfairness – unfairness of a sort anyway – to an Accomack County wife who apparently believed everything her husband said, and read more into it, didn’t watch her money very closely, and didn’t begin to do as good a job of divorce planning as her husband did.  Whether she married for love, which everyone knows is blind, or married for money, met her match and got the worst of it, may never be known, but she ended up getting financially snookered, and hugely so, in every conceivable way.  The Accomack trial judge tried to help out this damsel in distress, but, as the Court of Appeals points out, his interpretation of the gift exception to the source-of-funds statute, §20-107.3 A 3 f, is an unwarranted stretch and just simply isn’t supported by the wording of the statute.  With the Eastern Shore real estate, as with other assets, husband didn’t say anything about “love and affection,” when he transferred it into joint ownership, but simply said – repeatedly – that this formerly separate property (and the others) “is now ours.”  Yes, “ours to live on, grow old on, and die on,” but not as something transmuted to marital property.  That is not, as the now-reversed trial judge held, a statutorily-contemplated transmuting “gift” of separate to marital. Jones v. Jones,  unpublished, (4/28/09).

Harbison: DIVORCE – VOID MARRIAGES – JURISDICTION – FEE AWARDS

 The Court of Appeals in the unpublished Harbison v. Harbison case at 24 VLW 1026 (1/12/10) held that a trial court properly awarded fees to a wife when deciding that because of husband’s prior marriage, making his current marriage bigamous and thus void ab initio, there could not be a divorce since there was no longer a marriage. 

Kee v. Hampton: Using 4th Amdt. Rights Isn't Obstruction of Justice

DOMESTIC VIOLENCE – INITIALLY-INSUBORDINATE CITIZEN CONDUCT (IN OWN HOME) – FOURTH-AMENDMENT INVOCATION – CRIME OF JUSTICE OBSTRUCTION – MOMENTARY DELAY OF INSTANT OBEDIENCE AND OBEISANCE.  Here’s a fine civics lesson for young American future citizens.  In a case which began as a domestic violence investigation based on a third-party phone call, the Court of Appeals instructs local cops and prosecutors as to what §18.2-460(A) “obstruction of justice” ... isn’t.  It does so in a ringing opinion (unpublished of course) in Kee v. City of Hampton, 24 VLW 679 (11/10/09). Mr. Kee was charged with that crime for initially and momentarily refusing to let the police officer into his own home.  That, of course, the prosecutor explained, kept the officer from being able to continue his investigation by stepping inside, and therefore Mr. Kee was convicted of obstruction of justice in the city circuit court.  However, the Court of Appeals notices, the citizen immediately backed out of his doorway and into his house with his hands in the air, because the cop forced him to.  The record establishes beyond dispute that despite this initial act of momentary insubordination to an armed member of the upper classes, he did in fact allow the officer in because the officer ignored his refusal, walked right in, and then did all the investigating he wanted.  Oh, and by the way, the Court of Appeals adds, “courts have repeatedly held that such indirect acts are not enough to constitute obstruction,” and “obstruction of justice does not occur when a person fails to cooperate fully … but does not impede or prevent the officer from performing his task.” (quoting Ruckman v. Commonwealth, 28 Va. App. 428, 429, 505 SE2d 388, 389 (1998)). But none of these “momentary insubordination” opinions answer the real question — which supposes that it’s not just momentary: What’s the Fourth Amendment worth if you can commit a crime by invoking it?

Weatherbee v. Bar: Single offense of frivolous filing isn't also violation of diilgence & competence

LEGAL ETHICS – DISCIPLINE – SIGNIFICANCE OF FILING FRIVOLOUS LAWSUIT.  An attorney disciplinary case appealed from a three-judge court is of some interest in that it has some very precise reasoning as to the kind of misconduct that filing a totally frivolous lawsuit constitutes and does not.  An attorney who filed a medical malpractice suit included among the defendants a doctor who never treated the attorney’s client. The disciplinary board convicted Mr. Weatherbee of violating Rule 1.3, concerning diligence, and Rule 3.1 that governs the filing of meritorious claims, but it went on to hold that the same act made the lawyer guilty of providing incompetent representation.  When the three-judge court got the case it found a Rule 3.1 violation (filing a frivolous lawsuit).  It dismissed the charges under Rules 1.1 and 1.3.  The Virginia State Bar appealed the dismissal of the Rule 1.1 charge of providing incompetent legal services.  The Supreme Court, with some very instructive explanation, alludes to the definition of frivolous and of the term of art “competent representation,” and reasons that an attorney does not have to be incompetent to file a frivolous lawsuit, and we should not make a habit of parlaying one offense and one punishment automatically into another.  It considered Mr. Weatherbee to be adequately punished for committing the offense that he did commit.  Incidentally, trying to flip 180 degrees the very judicial reasoning that saved him and argue that because he didn’t violate Rule 1.1 he couldn’t have filed a frivolous lawsuit did the attorney no good whatever.  Weatherbee v. VSB, ___ Va. ___, 689 S.E.2d 753 (2/25/10).

Lawrence: Expert can't base opinion on hearsay of commission of crimes

EVIDENCE – EXPERT OPINION – RELIANCE ON HEARSAY – “BASIS OF OPINION” EXCEPTION – UNLAWFUL EXTENSION TO SUBSTANTIVE HEARSAY TESTIMONY ABOUT FACTS OF CRIME COMMISSION – MENTAL HEALTH EXPERTS – EFFECT OF HEARSAY-BASED TESTIMONY.  A far-reaching criminal case from the Virginia Supreme Court is reported here because it concerns the admission of a kind of evidence often adduced in family law cases, and a class of criminal cases that often arise out of or merge into family law cases.  The issue was whether valid, admissible “expert opinion” testimony could be based solely on untested hearsay, and whether such “opinion” testimony can extend into areas of repeating supposedly factual testimony about a defendant’s acts and their circumstances.  Suffice it to say, in this limited space, that the Supreme Court acted definitively and boldly.  This case concerned whether a defendant in a civil commitment hearing under the Sexually Violent Predator Act, §37.2-908(C), can be confined on the basis of such hearsay testimony from an expert as a “basis of his opinion” that was founded on such hearsay.  Defendant had already gotten 45 years imprisonment for rape and sodomy but before he was about to be released, the Commonwealth brought these sexually violent predator proceedings.  Some will recall that this is very close to an issue that was recently argued before the U.S. Supreme Court, the same day that the Hague Convention case Abbot v. Abbot was argued.  Perhaps, given the rising cost of ink, paper and everything else, including the loss of forest cover on our once-green planet, etc., it is best to set forth only the salient points in this densely-packed unanimous opinion, Lawrence v. Commonwealth, ___ Va. ___, 689 S.E.2d 748 (2/25/10).  The Court held that the provision of that statute that an expert witness can state the “basis for his opinion” does not legitimize testimony about the details of hearsay allegations of crime.  Not only that but, when that improper testimony is admitted, it cannot be cured by a Judge’s limiting instruction to the jury, and is not harmless error.  Moreover, any expert opinion that relies on assuming the truth of such unproved hearsay allegations lacks an adequate factual foundation to be admitted in evidence.  Thus it’s an abuse of discretion, and requires reversal.  It is “clearly inadmissible” because questions of admissibility are not in fact discretionary questions: they are matters of law.  Moreover, this extends to “expert” opinions about such things as “anti-social personality disorders.” And the fact that a second expert comes along and testifies that the offender has a high risk of committing future offenses will not help matters, if that second expert admits that in forming her own opinion she assumed those hearsay allegations to be true. 

Miller-Jenkins: You can't appeal the jurisdiction issue twice

APPEALS – LAW OF CASE DOCTRINE – REPEATED APPEALS.  In another unpublished Miller v. Jenkins case, at 24 VLW 1026 (2/26/10) the Court of Appeals upheld a trial court order that the juvenile court's registration and enforcement of a foreign (Vermont) order giving visitation to a homosexual former “wife” of the mother was proper.  The Court of Appeals upheld it, saying that the “law of the case” doctrine governed, because the appellant mother raised the issues of jurisdiction and enforceability in the first case she filed, and that any distinction argued by her is a distinction without a difference.  The issues were all reached and decided in Miller-Jenkins I.

Gilliam v. McGrady: Debts in sole name presumed separate, unlike property

PROPERTY DIVISION – DEBT – MARITAL OR SEPARATE – VERY SERIOUS PAYROLL TAXES ARREARAGE.  The Supreme Court made it sound so incredibly simple, straightforward and obvious – self-evident, really. It makes perfect sense. Of course you can’t treat debt in equitable distribution just like it was property.  The wording of § 20-107.3 says a whole lot about exactly how a judge is authorized to divide marital property interests, with the Factors and all, and then when it speaks of debt it doesn’t say all that stuff, but says something very short and therefore, of course, different.  So thus by negative implication, the Supreme Court explained in Gilliam v. McGrady, ___ Va. App. ___, ___ S.E.2d ___, 24 VLW 1237 (4/15/10), debt can’t even be classified as marital or separate except by title, after which the spouse who doesn’t want all that debt but wants some of it shoved off to the other, and who has the burden of proof to do so, comes in and shows evidence for its allocation.  But oddly enough, the Court of Appeals and trial court hadn’t seen it that way but in a way equally simple but just the opposite. The Court of Appeals has long assumed, and said, that debt is just one more kind of property: negative property, and it can be apportioned just like everything else.  The Supreme Court rejects that out of hand, and in the course of doing so says some very interesting things.  Once again this is one of those cases where it is best to let the Court speak for itself, in the following selected quotations.

 

A panel of the Court of Appeals, in a unanimous published opinion, had held that: “While the statute only creates a presumption for ‘all property’ acquired during the marriage, we see no principled reason why the presumption should not apply to debt acquired during the marriage.  Property and debt are both components of an equitable distribution award.”

 

But on the contrary, the Supreme Court said,

 

There is a marked contrast between that treatment of assets and the legislative prescription, in the same statute, for the apportionment of debts in an equitable distribution proceeding.  Code § 20-107.3(C) provides in pertinent part: “The court shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the factors listed in subsection E.”

.  .  .

Subsection (E) provides, in pertinent part: “[T]he apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors: … 7.  The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities; … 11.  Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.”

.  .  .

The equitable distribution statute contains no provisions creating a presumption of allocating a burden of proof with regard to the apportionment of debts between spouses. … In framing Code § 20-107.3, the General Assembly clearly knew how to create a presumption and allocate the burden of proof, having explicitly done just that with respect to assets, in enacting subsection (A)(2).  For policy reasons that can be well imagined, the General Assembly chose to omit parallel provisions with respect to debts, giving to the courts only the general guidance contained in subsection (E)(7) and (11), quoted above. … Instead, traditional rules concerning the allocation of the burden of proof apply.

 

Duva: Big changes in how mortgage payments affect marital property classification, related burdens of proof

PROPERTY DIVISION – MARITAL CONTRIBUTION AS SEPARATE (AND POSSIBLY VICE-VERSA) – “HYBRID PROPERTY” CONCEPT – PROCEDURE — CLASSIFICATION, VALUATION AND DISTRIBUTION. The Court of Appeals got into some very refined and abstract areas in trying to explain to an errant trial judge just exactly the procedure that, as the Court of Appeals sees it, must be followed in the statutory classification, evaluation and distribution of property under §20-107.3, and the amendments which created the phenomenon of hybrid property. The case is Duva v. Duva, 55 Va. App. 286, 685 SE2d 842 (12/8/09). It says some very subtle and also some very strong and decisive things, which might be hard to rationalize away if it ever wanted to take them back. A husband who bought a house in Rhode Island before marriage, and apparently made five mortgage payments on it before the wedding, and then made mortgage payments out of marital funds, handed the trial judge a case which that judge considered in a very traditional way, regarding those marital payments as converting it to marital property. A frequently-seen, traditional divorce-case scenario. But, the Court of Appeals explains, that trial court did not consider whether this could be seen as the marital funds losing their classification and becoming separate property (or something like it) when they were commingled with that originally-separate Rhode Island house.  The judge in fact did not consider – as a lot of judges might not consider – whether wife had traced and proved the course of those marital funds into the originally separate asset, instead of forcing the husband to prove that he used separate funds.  An incorrect standard, the Court of Appeals says, was used.  Nor is it proper to consider the concept of hybrid property until a court establishes the initial classification of the property, and then teases out the course of the transmutation.  The Court of Appeals then, as it so often does, went beyond what it might be necessary to say so as to make a sweeping pronouncement: this time, that it “rejects the source-of-funds rule as an initial classification concept.”  And, it explains to the wife, her argument is an argument that the acquisition of equity in a piece of real estate is the triggering event which determines whether and when it was “acquired” for separate/marital/etc. classification purposes.  No, not so at all. The rest of this opinion explains that the date of acquisition is – or seems to be – the date one takes title to the property. 

 

However, the rest of the opinion sort of defies condensation. The quoted parts that follow could hardly be summarized more tightly. Thus the most useful treatment seems to be just to pull out, in the Court’s own words, these parts:

 

The trial court found that the property’s mortgage was paid from marital funds, i.e., that the marital funds were commingled with the separate property.  The court concluded that the Rhode Island property was transmuted to marital property.  This analysis did not address tracing the commingled funds or hybrid property. … The trial court’s classification of property as marital or separate is a factual finding.  Therefore, that classification will be reversed on appeal only if it is “plainly wrong or without evidence to support it.” … Under Code § 20-107.3(A)(3)(d), the marital funds, by paying the mortgage on the separate property, were commingled with the Rhode Island property (the receiving property) and were transmuted into the separate property.  The burden would then be on the wife to trace the contribution for the marital funds to retain the classification of marital property. … However, to the extent the marital funds reduced the principal of the mortgage, that amount is traceable from the separately acquired equity. … Here, the trial court did not consider marital funds losing its classification as marital property when commingled with the receiving property.  It did not consider whether wife traced the marital funds. Thus, the trial court applied the incorrect standard in determining whether the property is separate, marital, or hybrid.  In that respect, we find the trial court erred. … We conclude, therefore, that the basis of wife’s argument here is dicta which does not bind our decision in this case. … The Virginia Supreme Court addressed the source of funds doctrine in Smoot v. Smoot, 233 Va. 435, 357 S.E.2d 728 (1987), and rejected it.  See also Marion v. Marion, 11 Va. App. 659, 401 S.E.2d 432 (1991). … Source of funds does not determine the original classification.  If it did, there would have been no need for the Smoot Court to reject the rule. … A reading of Code § 20-107.3(A)(3) clearly supports this position.  One acquires property either as separate or marital. [sic.] We begin with the premise that ‘property acquired during the marriage is presumed to be marital and property acquired before marriage is presumed to be separate.’  Robinson v. Robinson, 46 Va. App. 652, 662, 621 S.E.2d 147, 152 (2005).  Any analysis of hybrid property must begin with these presumptions.  First, we determine whether the property is separate or marital.  Then, we apply Code § 20-107.3(A)(3) to determine what portion of the separate property or marital property is hybrid.  If hybrid property is an original classification category, the presumptions would be meaningless. … Essentially, wife made the same argument in Wagner that we address here, namely, that the date of acquisition was not the date of titling the property, but rather the date when equity was realized.  We rejected that argument in Wagner. [You noticed, didn’t you, Gentle Reader?] … Under the facts of this case, the date of acquisition is a fixed date and is determined when husband took title to the property.