Virginia Family Law Appeals

Public drunkenness, driving, and felony child endangerment.

CRIMINAL CHILD ENDANGERMENT — DUI. The Court of Appeals affirms a mother’s conviction for felony child endangerment for driving in a parking lot with her children in the car, with a blood alcohol level of at least 0.19 percent when tested (expert testimony estimated that it had been 0.22 percent when the police stopped her), and having taken an Ambien pill. The mother argued that she was not endangering the children because she was driving safely, was not observed violating any traffic rules or signals, and never left the parking lot. However, she had told police she had had wine with lunch, and there was no evidence or claim that the drinking occurred after she drove to the parking lot, so the trial court could properly infer that she drove there from somewhere else, and also properly considered her statement that she was planning to drive to school to pick up another child, as part of her state of mind. Having “approximately three times the legal limit” of BAC prevented her from providing the necessary supervision and protection of young children in a public place and itself constitutes gross, wanton, culpable negligence, the Court says, as she “knew or should have known there were inherent dangers in transporting her children to a public place while being so impaired as to lose judgment, motor skills and reason.”  Wood v. Commonwealth,  ___ Va. App.  ___, ___ S.E.2d ___, 25 VLW 694 (11/23/10).

 

Trump case: Judge shouldn't evaluate evidence on a motion to strike

PROCEDURE – MOTION TO STRIKE – SUPPORT-REDUCTION CASE – INCOME LOSS.  In an unpublished case from Northern Virginia, Trump v. Trump, 25 VLW 442 (9/21/10), the Court of Appeals held that a trial judge erred by applying the wrong standard to a ruling on a motion to strike.  The ex-husband had presented evidence from his accountant that his income had gone from $21,000 a month in 2007 to $17,830 in mid-2009, but the trial judge ruled that he had not shown a change of circumstances because the 2009 figures used were a “half-a-year figures and an estimate, and a guess.”  The trial court instead went on the basis of the ex-husband’s higher 2008 income, which was even higher than 2007, and noted that the husband had been able to deposit about $100,000 into savings, and therefore held that no material change of circumstances was shown by his evidence.  However, the Court of Appeals explains, doing this really amounted to assessing the weight of the evidence, which a judge on motion to strike is not supposed to do, the rule being that these matters at that stage should be taken as proved.

Malpractice's statute of limitations can run out before it's discovered

MALPRACTICE – STATUTE OF LIMITATIONS – LATER-INCURRED DAMAGES – TOLLING OF STATUTE.  The Virginia Supreme Court quotes a time-honored statutory rule to dispose of a malpractice claim against a divorce lawyer in a case that many practitioners might breathe a sigh of relief at and consider a near-run thing.  In Van Dam v. Gay, ___ Va. ___, 699 S.E.2d 480 (9/16/10), the Stafford County Circuit Court dismissed the complaint and the Supreme Court affirmed, holding that the five-year statute of limitations began to run when the final decree was entered in the divorce case, even though the great portion of the damages occurred only much later when the ex-husband died and the ex-wife discovered that she would get no survivor benefits from his federal pension plans.  The feds denied benefits because the 1986 separation agreement was insufficient under federal law to entitle her to them.  When wife sued for malpractice in 2009, she was out of luck.  First, the Supreme Court notes, Code §8.1-230 provides that the limitation period “shall begin to run from the date … when the breach of contract occurs … and not when the resulting damage is discovered … .”  It also observes that the statutory term “right of action” is not synonymous with “cause of action,” although sometimes they arise simultaneously.  Wrestling with these abstruse abstractions, the Court explains all this. Wife argued that while her right of action for malpractice did not await discovery of the malpractice, a cause of action could not have accrued, and thus her right of action could not accrue, until she had suffered the damage which came with her ex-husband’s death.  If injury is an essential element of any cause of action, including malpractice, and all her damages occurred in 2006 when ex-husband died, her right of action for malpractice arose only then.  After all, there would have been no right whatever if he had not predeceased her.  But, the Supreme Court points out, that issue was already decided in MacLellan v. Throckmorton, 235 Va. 341, 367 S.E.2d 720 (1988).  As many practitioners know, that case also concerned a malpractice claim against a divorce attorney.  Plaintiff said that lawyer negotiated an agreement that the plaintiff signed because it was represented to him that a court could later modify the alimony provisions he had signed on to.  As here, the Supreme Court held there that “the cause of action accrued upon the termination of the particular undertaking in which the attorney was engaged,” that being the entry of the final decree.  “We reached that result,” the Court explains, “despite the fact that the plaintiff did not become aware of the malpractice until after the limitation had run, and even if he had been aware of it in time, he would have been unable to quantify his damages with precision.”  His injury, the Court explains, arose from the malpractice that occurred the moment the trial court entered a final divorce decree incorporating the faulty agreement.  The Court goes on to distinguish other cases, and finally explains that “some injury or damage, however slight, is essential to a cause of action, but it is immaterial that all of the damages … do not occur at the time of the injury.”  The Court is particularly instructive by going on to explain that “this time-honored rule may produce inequities by triggering a statute of limitations when the injury or damage is unknown, or difficult, or even incapable of discovery, but we have long concluded that it is the role of the General Assembly, not the courts, to change a rule of law that has been relied on by the bench and bar for many years.”

Barson case: Outrage at spouse's adultery is not criminal obscenity

CRIMINAL REMEDIES – CUCKOLD’S CRUDE ACCUSATIONS – OBSCENITY CHARGE.  In a police-worshiping society where most people think that the solution to any problem is to pass a new criminal law, and then to prosecute, and have a criminal trial, and where there are plenty of ambitious prosecutors eager to make legal history, be the first kid on his block, etc., what will happen to a man who crudely curses his flagrantly adulterous wife?  Why, a criminal trial of course.  (Of him, of course.)  Having sent his estranged wife in Virginia, from Texas, a very large number of vulgar e-mails prompted by his discovery of her appalling ads on Craig’s List, this husband was convicted of computer crime under Code §18.2-1527:1, which describes computer harassment with indecent language.  Barson v. Commonwealth, unpublished, (11/2/2010).  This opinion concerns conduct frequently resorted to by married persons having the usual bitter disputes, and is one of many, many cases which could easily end up in criminal court as well as a divorce.  From the opinion it is difficult to see any indication of whether the wife’s sexual activities, and desire for more, or her placement of the ads, was ever denied or disputed.  It is also difficult to see how, if even a small fraction of what the husband alleged in his numerous e-mails was true, this wife could possibly be insulted, by anything said by anyone.  However, the Court of Appeals focused, as it is supposed to, on the constitutional issue.  There was no question the husband’s language was vulgar and sexually explicit, and intended to express anger and to shame the wife into curbing her extra-marital appetites.  Nor, from the volume alone, could it be disputed that his e-mails were harassing.  Nor is it easy to see how anyone can be convicted of “indecency,” given the dizzying pace at which the concept of decency is changing, or dissolving, in today’s society.  So the only way the courts can convict under this indecency-punishing statute, the Court of Appeals majority explains, is to do what that they have been forced to do before, in Allman v. Commonwealth, 43 Va. App. 104, 108-09, 596 S.E.2d 531, 533-34 (2004), and restrict the statute to the punishment of obscenity “in order to avoid constitutional concerns.”  And although the husband’s words were clearly vulgar and offensive and sexual, as the majority explained, “his use of these words ‘considered as a whole’ and in the context of the marital discord and the angry, offensive tone and purpose of the e-mails,” did not establish a purpose of appealing to a prurient interest in sex.  They were not in any way intended to arouse or appeal to sexual desire, the majority said, “either Barson’s own or any other individuals’ to whom he had sent the e-mails.”  A dissent by Judge Humphries, however, began with the assumption that a husband talking about his wife’s sexual activities must be doing it for purposes of his own prurient interest, and opined that the fact that the language was “replete with ‘sexual condonations’” was enough to convict him.  The majority thought otherwise.  This is a difficult case to write about, because we will never know from either of the opinions whether there was any evidence or admission that the wife really did all the acts that her husband described, or whether he merely thought or surmised that she had done them.  His words seemed to indicate that there were plenty of gossips ready to tell him about her activities.  That he thought her guilty of these things is virtually beyond doubt, but the ultimate facts are not apparent.  In that context, this is really a very peculiar case, because the wife could be the most slatternly adulterer these shores have ever seen, a woman who went extremely far beyond merely violating her marriage vows and went to absurd lengths not only to enjoy herself but to degrade both her husband and herself. Or she could be a pure and innocent lady who simply disliked her husband and rejected him, as the modern law allows her to do. (Oh yes, and put salacious ads on Craig’s List to …, to … uh, well, … exercise her constitutional rights, maybe?) The most peculiar thing about the case is that the majority and dissenters so fully talked past one another. The majority follows the Allman precedent, and tries to apply the definition of obscenity, and patiently explains that since no one could possibly have his or her prurient interest aroused by the husband’s screed, except possibly, in some perverted way, himself, and goes on to state that in fact there is no evidence to support that hypothetical view. The dissenter goes off in a different direction. The dissent, obviously highly offended by this vulgar husband’s inconsiderate and insulting libels upon the character of a lady, accuses the majority of setting up self-gratification of a perversely-motivated cuckold as an indispensable element of an obscenity finding, and failing to find it, (as a jury issue), saves him from a deserved criminal conviction.  If this were what the majority had done, the dissenter would of course have a point when he accuses the majority of trying to rewrite the obscenity test.

Flanagan case: Unspecified, intuited sex abuse can be considered in custody decision.

SEX-ABUSE CHARGES IN CUSTODY FIGHTS — FUZZY FINDINGS — LONG-DELAYED TRIALS WHILE CHILD AGES WITHOUT VISITATION. Affirming a custody award to the mother, the Court of Appeals holds that a trial judge who expressly based it on Factor Number 9 (“any history of family abuse … or sexual abuse”) was not required to make any specific finding about acts of inappropriate sexual contact with the child since the finding that there was “sexual conduct” was “unequivocal.” In fact, the trial court expressly declined to make any specific factual findings to support the conclusion of the inappropriate sexual contact. After all, the trial court had explained expressly that it found that “it was more likely than not” that the alleged “inappropriate act or series of acts occurred.” This is because it’s clear that the court considered all of the §20-124.3 factors. The trial court’s exact words regarding a finding: “The Court is not in a position to be able to articulate what specific inappropriate conduct in the form of an act, or series of acts, might have occurred between [child] and her father,” and “what the Court does find that it is more likely than not that this inappropriate act or series of acts occurred … .” The argument of the father’s counsel had been that the trial court ruling was based on speculation and conjecture, since nothing about any specific act was found nor was there a finding that the father had any sexual deviant or prurient interest in engaging in such acts. And now, the rest of the story. This all began with a near-simultaneous filing of the DSS Abuse/Neglect Petition against the father when the child was three, the mother’s request for a custody order, and the father’s cross-filing for a custody order, and the consolidation of all this for JDR court trial, which resulted in an award of sole legal and physical custody to the mother, an order that father have no contact with the child, and a protective order. The father appealed this decision and almost a year later the trial court entered a nonsuit in the abuse and neglect case and then an order dissolving the protective order. By the time of the trial de novo on appeal from JDR court, it had been two years since the child had seen the father. Flanagan v. Flanagan, unpublished, 25 VLW 470 (9/28/10).

Zurita: CUSTODY MODIFICATION – RELOCATION – CONSTITUTIONAL LAW – SEPARATION OF POWERS – SCHOOL PLACEMENTS.

A trial judge’s attempt to find a novel way of undercutting a father’s case for custody modification on the occasion of a mother’s move out of the original school district led to a constitutional ruling from the Virginia Supreme Court because it caused this judge to tangle with the local school board.  In an opinion involving constitutional law principles rather than custody law issues, the Supreme Court vacated an order that the school authorities enroll the child in a district where neither one of the parties any longer lived.  One of the couple’s two sons, in the mother’s custody, was getting special education. The father had moved out of the district first and the mother later.  Upon her move he sued to modify custody, saying that he would be glad to move back to the original school district if he could have primary custody of the two boys.  This threat to the mother’s continued custody was met by a circuit court order for the school board to enroll the child in the old district this year, despite no residency, even though the school board’s rule is that the child must attend in the district where the parent with primary custody lives.  The school board managed to get immediate appeal of this injunctive order under §8.01-626 as an appeal from an injunction. The school board argued not only that the judges can’t issue injunctions usurping the school board’s constitutional authority over pupil assignments, but also that the issue matters a lot because 9% of the county’s students have parents with different home addresses, and making the school board a participant in any of the thousands of divorce and child custody cases litigated there would be impractical and burdensome in the extreme, and it should have a right to use the simple rule of primary custodial residence.  The Court vacated the injunction in a two-page order.  Fairfax County School Board v. Zurita, 25 VLW 453 (9/28/10).