Virginia Family Law Appeals

Tucker v. Wilmoth-Tucker: PROPERTY DIVISION – VALUATION – MARITAL AND SEPARATE PROPERTY – “PERSONAL EFFORTS” ISSUE – RELATION TO VALUATION QUESTIONS; ALIMONY – NEED FOR SPECIFIC RULINGS ON DATE OF INCEPTION.

 In a case dividing interests in a family-owned business, the Court of Appeals held in an unpublished opinion, Tucker v. Wilmoth-Tucker, 24 VLW 1362 (5/18/10), that although the judge accounted for the value of company stock that the husband received as gifts from his parents at various intervals, and the change in those valuations after separation, the Court failed to account for these things properly.  It was undisputed that the 288 shares that the husband owned were his separate property, and that any increase in the value of those shares after marriage was in fact due to his personal efforts and thus transmuted to marital under §107.3(A)(3)(a).  While an increase in the value occurring after the date of separation, on the other hand, was husband’s separate property.  The trial court made findings that the increase after separation was due “at least in part” to husband’s personal efforts,  then found that the appreciation belonged to the marital estate.  This, says the Court of Appeals, failed to take into account husband’s post separation personal efforts increasing that value.  By treating the entire value increase as marital property, both before separation and after separation, the trial court erred as a matter of law and can be reversed.  While recognizing that sometimes it is necessary to use different valuation dates of the same property in order to classify property interests properly, the trial court rejected the wife’s position that the husband couldn’t get the special valuations because he did not move the Court for a statutory “alternate valuation date.”  In fact, the Court of Appeals instructs, the valuation date for the giving of stock to the husband and the date of separation served different purposes from the date-of-hearing valuation date.  Using the date-of-receipt value and the value at the moment of separation simply allows a court to classify the increases in value properly.  Here, though the trial court used the right valuation date for equitable distribution purposes, it was really improperly classifying the post-separation increase in value, and it had to be reversed. Got that?

 

On support, the trial court opinion said the husband would be obligated for alimony “going forward,” and that seems to mean a prospective-only award.  And yet the order gave the wife retroactive spousal support with $128,356 arrearages, so the case must be remanded for that reason.  And while an order that the husband pay $1,400 a month toward wife’s health insurance premiums was labeled “not in the nature of spousal support,” the Court of Appeals holds that it is spousal support, because it is.  It was not error to make the husband pay that $1,400 to the insurance company, as circuit courts have the statutory authority to award alimony, even if payable to third parties.  Other mistakes the trial court made are failing to classify a $15,302 IRA that wife had, and dividing real estate without taking into account the debt owing on it.  The trial court in dividing the waterfront property in Gloucester, where wife moved, took into account not only improvements wife had made, and the deterioration of the sea wall, but simply used the assessed value for the Mechanicsville house and disregarded the liens and mortgages against the house.  The court ignored the fact that wife had taken $30,000 from the home equity loan credit line, and the fact that that devalued the Mechanicsville house, and thus the $30,000 debt should be classified and equitably distributed.

Va. Ct.: If you follow the court's order, you can't appeal it

APPEALS – MOOTNESS – DISMISSAL – PAYMENT OF ORDERED AWARDS.  You had sure better get a suspension of judgment if you’re thinking about appealing any case, because there is no such thing as a payment under protest that can still be appealed, the Court of Appeals points out in an unpublished opinion known as Stephenson v. Musgrave, 25 VLW 47 (5/18/10).  The husband’s appeal is dismissed because he had voluntarily paid the $3,000,000 equitable distribution award and $72,000 fee award and he is now barred from appealing these paid amounts.  However, the bone the Court throws to the husband is that since he asked to have an alimony reservation for himself, it was error for the trial court to deny it under §20-107.1(D).

Va. appeals ct. eliminates statute of limitations on suport arrears for child who's 42

SUPPORT ENFORCEMENT – ARREARS – 1966 ORDER – LONG-EMANCIPATED CHILD. The appellate courts have been mighty fond of quoting, at every opportunity, the principle of Virginia law that every support payment becomes a judgment the moment it is not timely paid, but it appears that that doctrine has its limits. In these parties’ 1966 divorce, the decree ordered husband to pay $30.00 per week for three kids until majority, etc.  The youngest child became an adult in 1982, and in 2006 the mother got DCSE to enforce the 1966 support order, for a total of $72,629.  Applying Bennett v. DSS, 15 Va. App. 135, 422 S.E.2d 458 (1992), which involved an alimony judgment, the Court of Appeals majority holds that the statute of limitations on judgments, §8.01-252, which is now 251, does not apply to child support or alimony judgments.  It would apply only if a foreign order had been earlier liquidated by reduction to a judgment.  The majority goes to some trouble to refute the views of the dissenting judge, and holds that the 20-year statute of limitations of §8.01-251 applies to liquidated money judgments but does not apply here.  The child support order creates an ongoing rather than a liquidated form of money judgment.  Dissenting Judge Coleman distinguishes Bennett as an alimony case, seeing a fundamental difference between alimony and child support orders in that child support obligations always terminate and become fixed by simple operation of law and expiration of time.  He also disagrees with the Majority’s statement that no principled reason exists to treat such an old child support obligation differently from ongoing and unliquidated support obligations as to children who are still children.  The youngest child attaining majority converts this, he says, into a fixed and ascertainable sum certain and that sum was due, payable, and ascertainable, and not modifiable, as of that youngest child’s birthday, which was over 20 years ago, since that little boy is now a 42-year-old man.  Adcock v. Commonwealth (DSS) 56 Va. App. 334, 693 S.E.2d 757 (6/8/10).

Guardian can get divorce for man who no longer wants it - Andrews v. Creacey

DIVORCE GROUNDS – SEPARATION INTENT – INCAPACITATED WARD’S 2006 STATE OF MIND – DISSIPATION OR NOT – PENSION-DIVISION DENIAL – APPELLATE DRAFTING NOT PROPERLY RAISING ISSUE.  A recent Court of Appeals case concerned the divorce ground of statutory separation and the long-range assessment of the now-incapacitated husband’s permanent-separation intent as of several years back.  The Court of Appeals said that it was not determining the legal question (Code §§ 20-91(9)(a), 37.2-1020.D) of whether divorce can be granted on the basis of a guardian’s determination that it is in his ward’s best interest to be divorced, as it had proof of that long-ago intent from independent evidence.  The other thing that was unusual was that the wife was 88 and the husband 93 at the time of trial.  A guardian ad litem had apparently interviewed the husband in South Carolina in 2006 and on that occasion heard the husband state that he wanted a divorce because of his wife’s heartlessness, and the GAL had attached to his written report a letter from the husband saying “I need to divorce my wife, sell my house and live in safety and peace … .”  The Court of Appeals in this case, Andrews v. Creacey, ___ Va. App. ___, ___ S.E.2d ___, 25 VLW 252 (8/3/10), also made the interesting observation that it could find no law requiring that the intent to separate permanently must co-exist with the actual period of separation. At the trial below, the wife did not want a divorce, and thus there was conflicting testimony, but the Court of Appeals will not overturn the trial court’s finding, which has to have included the assumption that the husband had the mental capacity to form the intent.  The appellate court finds clear the General Assembly’s intention by means of §20-91(9)(a) to create an entitlement to divorce when one party intended a permanent separation at one time and the parties lived apart for the statutory period at another time.  (Which may be news to some trial judges). The intendor need not have remained competent during the waiting period. People’s intent to separate permanently often occurs well after the actual physical separation (as in the serviceman-overseas cases), but this case concerned formation of an intent well before, with the more recent evidence indicating that the husband did not want a divorce.  The Supreme Court in Hooker v. Hooker, 215 Va. 415, 211 S.E.2d 34 (1975), in fact held that the Code Section requires “proof of an intention … followed by physical separation for the statutory period.”
 
  Nor was it error for the trial court to award wife nothing out of a $55,000 sum that husband withdrew from a joint marital account back in 2005, since testimony showed that that money went for lawyer fees, mortgage payments, and homeowner’s insurance for the marital home where wife was living, and for the bills embodying her own living expenses — bills that she had sent to him for payment.  Moreover, withdrawal of cash from that particular account was justified by husband’s belief that at least one of two sons was stealing money out of the account, and the GAL’s report stating that something like that was indeed going on.  And while the wife had sought to raise the interesting question whether the trial court erroneously refused to award her alimony because she will thus be required to deplete the only asset she had in order to support herself, the Court of Appeals found that her Question Presented did not actually raise that particular issue by asking whether the trial court had abused its discretion by refusing to award alimony given the length of the marriage and wife’s income level.  Moreover, it was all right for this trial court to refuse to award wife any share of husband’s civil service pension, which it found minimal, and barely enough to cover husband’s on-going medical expenses.

 

King v. Comm: Same act can be child abuse & child endangerment

CHILD ABUSE/NEGLECT – CRIMINAL PROSECUTIONS – ABUSE AND ENDANGERMENT.  In one of those hard cases, the Court of Appeals held that the Double Jeopardy Clause won’t stop a court from convicting a parent of both child abuse and child endangerment for the same act.  They are not the same offense, and certainly neither one of them is a lesser included offense of the other.  The appellate question was limited to the third prong of the Double Jeopardy Clause, which prohibits multiple punishments for the same offense.  Assuming it was for one continuous act, the Court of Appeals found two distinct legislative intents in the two statutes and the judges applied the Blockburger v. U.S. rule in analyzing the abuse statute, §18.2-371.1(A) and the endangerment statute §40.1-103(A), and found different conduct prohibited by each one.  Thus a conviction of each requires finding different facts, different conduct.  In child abuse there has to be the serious injury to the child’s life or health, and for endangerment, while serious injury, or any injury, is not required, there has to be a placement at risk of danger.  King v. Commonwealth, 56 Va. App. 133, 692 S.E.2d 249, 24 VLW 1265 (4/27/10).

Not every unwanted touch is criminal "battery" - Parish v. Commonwealth

CRIMINAL REMEDIES – COMMON-LAW ASSAULT AND BATTERY – MERE “UNCONSENTED TOUCHING” – HARMFUL INTENT REQUIREMENT.  A criminal case about a kind of an offense that’s very often, and increasingly, invoked in family law disputes today as the institution of marriage means less every day in the new legal world (and as ambitious prosecutors remain eager for as many convictions as possible, no matter how absurd and outrageous, to build a record of accomplishments), provides a stern, no-nonsense lecture by the Court of Appeals.  Knowing better than to invoke common sense or a sense of proportion, the Judges base their correction of a Northern Virginia trial court on a strict reading of the existing law.  (Just to keep everybody confused, Parish v. Commonwealth, 56 Va. App. 324, 693 S.E.2d 315 (2010), is printed next to the wrongful death case of a victim named Parrish, but the one-R Parish case does not involve death nor anything remotely approaching it.)  Ms. Parish, who was in a hurry, had words with a U.S. mailwoman delivering up and down the street, on whose route Ms. Parish’s office was the last stop.  The postlady ended up refusing to deliver that mail because Ms. Parish, wanting faster service, had called her names.  As the mail carrier was walking away, the customer grabbed her shoulder and spun her around to face her.  The trial judge convicted Ms. Parish of assault and battery without proof of intent, because – you guessed it – assault and battery “is any unconsented touching.”  The words you invariably hear from Judges and Commonwealth’s Attorneys, and lawyers in the nastier domestic relations cases, usually has “however slight” thrown in.  An untruth Universally Acknowledged, but still just as wrong, as the Court of Appeals patiently points out.  Assault and battery both require intent to harm, and in fact, both require more.  A touch does not constitute a battery if it is justified or excused.  Virginia Code §18.2-57 does not define assault or battery, and the common law reigns here, as most attorneys know. And though linked by that Code Section, they are not the same thing, either.  The Court helpfully lays out all the well-established common law, providing an excellent lesson in basic substantive criminal law.  Part of that lesson, too, is that “words alone are never sufficient to constitute an assault.”  So the husband who puts a hand on the shoulder of his still-angry wife when hoping to end an argument cannot be prosecuted – not lawfully … yet.  Though of course there are still plenty of ways she can still get him out of the house and separated from the kids, with a little creativity.