Virginia Family Law Appeals

"House love" creates a marital-property gift in complex Prizzia case

Yesterday we introduced the mammoth Prizzia case, which bootstrapped support jurisdiction out of custody jurisdiction in an attempt to do complete justice in a case where the wife was in Hungary and the husband was here in Virginia, and we looked at the holdings related to child custody and support. Today we look at its holdings on property-division jurisdiction and classification.

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— WAIVER OF RIGHTS — PROPERTY JURISDICTION — WHAT ABOUT SUBJECT-MATTER JURISDICTION? But the Court wasn’t through with jurisdiction issues. It set forth a long and learned disquisition about all those esoteric abstract jurisdictional concepts that could make a plain old country lawyer’s head swim. The court said that the wife waived her claim that the trial court didn’t have subject matter jurisdiction to make a property division and distribution since she hadn’t raised that point in the trial court. The long discussion of how subject-matter jurisdiction is a peculiar creature that metamorphoses into “potential jurisdiction” and “active jurisdiction,” on some things, and propagates a host of other little jurisdictions, and then how that is why the old rule that lack of subject-matter jurisdiction can be raised at any time doesn’t actually mean that, because those sub-jurisdictions that flow from the big one aren’t that way at all, really, is something that the reader here will be spared, and is referred to the full text. But suffice it to say that the court ends up saying that well, those jurisdictional matters like the authority to distribute property, which are statutory prerequisites, can after all be waived by non-objection.


— PROPERTY DIVISION — THE “GIFT FOR LOVE” EXCEPTION TO THE SOURCE- OF-FUNDS STATUTE. Everybody who was involved in the drafting of Virginia’s source-of-funds-credit statute has properly had the uneasy feeling, as the case law develops, that the little “except it be a gift” fillip at the end might end up making the exception swallow the rule and kill off all the normal and classic cases of source-of-funds recognition when people have bought real estate with separate-property money for the down payment. And those with misgivings have probably often wondered how often the obsession with the gift exception ends up totally blotting out the statutory rule that gifts between spouses are still marital property, if courts are going to then start holding that because it is a gift it then becomes the separate property of the recipient spouse. (See Code §20-107.3A(ii)). Anyway, in this case the Court was convinced it had found a gift made for love. Everybody remembers Joe Thiesmann and the cross-examiner’s cunning questions that got him to admit that one reason he put his wife’s name on the title to the farm was that he loved her, but in this case the Court of Appeals extends that rule to love of a house. Yes, the Court of Appeals finds, as did the trial court, that when you add together all the indicators, they’ve got a genuine case of house love, and therefore of gift-giving, here. And when the Court of Appeals explains the sufficient evidence to wipe out Mr. Prizzia’s source-of-funds claim, we see that the whole thing was marital because (1 it was jointly titled, (2) they agreed together to pay off the mortgage, and they did that because “they loved the house,” and (3) they then allocated the way in which they spent their money to achieve the desired goal of paying off that mortgage. So now, if you have the normal sort of married couple’s case you should sit down and give some long and sober thought to whether there is any room for a source-of-funds rule left.

— PROPERTY CLASSIFICATION — HOUSE-LOVE  — FACT OR LAW?: And finally, just in case there was any doubt, the Court clears up one basic legal question in equitable distribution law: trial courts’ decisions classifying property as separate, marital or mixed are findings of fact. Therefore they can’t be reversed on appeal unless plainly wrong or unsupported by evidence.

— PROPERTY DIVISION AND CUSTODY (VISITATION) ENFORCEMENT: Now the wife, staying safely in Hungary all this time, and taking her appeal to the Virginia courts, did not afford the father in Virginia his court-ordered visitation with the kids. But when the trial court got punitive about this, and decided it would condition the wife’s receipt of her share of the marital property on visitation compliance, it exceeded its authority, the Court of Appeals says. That’s right, though trial courts have discretion to determine how divorcing parties’ respective shares of the marital property will be paid out, they can’t mix custody law and property division law like this. Divorce jurisdiction is purely statutory, and if the General Assembly had wanted judges to be able to enforce visitation that way, they would have said so.

 

Prizzia case breaks ground on custody/support jurisdiction, property

This is the first part of our state bar Family Law News case note about Prizzia, the case about everything. Today we'll introduce the case and detail the holdings related to child custody and support. Tomorrow, the property-division parts of the case.

CUSTODY JURISDICTION — UCCJEA — CHILD SUPPORT JURISDICTION CREATED OUT OF CUSTODY — EVIDENCE AND PROCEDURE — TELEPHONIC TESTIMONY — FUGITIVE DISENTITLEMENT DOCTRINE — PROPERTY DIVISION — MARITAL AND SEPARATE, GIFTS — VISITATION COMPLIANCE AUTHORITY — CONDITIONING EQUITABLE DISTRIBUTION ON COMPLIANCE — PENSION DIVISION — MARITAL SHARE OF DBP AND DCP — CREDITS AGAINST CHILD SUPPORT OBLIGATION — GUIDELINE DEVIATIONS — WRITTEN FINDINGS REQUIREMENT — DAY CARE EXPENSES: SUFFICIENT EVIDENCE. The Court of Appeals in Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461 (4/12/11) made so many important legal rulings that all that can be done in this small space is to summarize them right at the outset, note a few curious matters raised and explain a little about the fact situation. It is not necessary, for such treatment, to attempt to describe in detail the tangled and unusual fact situation that gave rise to all these rulings. Readers are referred to the full court opinion, cited above, to get all that straight. Basically the wife, who did not want to return from a Christmas visit of the whole family to Hungary, stayed there with the child after the husband returned to Virginia and sued him for divorce and custody in the Hungarian courts. Husband then promptly sued for divorce and custody in Virginia, where the family had lived for the past year and a half, until the Christmas holidays. The trial court got around to ruling about eight months later that Hungary properly had jurisdiction over all issues but property, and declined to exercise whatever jurisdiction it might have. It set a hearing on property division and alimony to take place after Hungary had granted a final decree. What the Hungarian court decreed about two and a half months after that was a divorce and custody and visitation. When husband sought a ruling on all these issues in Henrico County, wife stayed away but the court let her testify by telephone deposition de bene esse. Sticking to its guns, though, the trial court dealt only with property division, child support and alimony. The resulting appellate rulings in this case include some real surprises, which will be news to many lawyers.

 

— UCCJEA: In fact, the Court of Appeals says, the trial court did have jurisdiction to make an initial custody determination, and its decision to decline and defer, even temporarily, to Hungary was inconsistent with the UCCJEA. Virginia was the home state when husband filed, under the “Recent Home State” rule: the child had been living in Virginia for some time, and was less than six months gone (§20-146.12(A)(1)). And for Hungary’s exercise of jurisdiction to be controlling here, it would have to have been “in substantial conformity” with the UCCJEA, and it was not, because it disregarded Virginia’s recent-home-state status. Nor could Virginia defer without having conducted the statutorily required forum non conveniens analysis under §§146.4(B) and 146.18.

— CUSTODY JURISDICTION PRODUCES SUPPORT JURISDICTION: Then, in a truly surprising bootstrapping move that throws into question everything that has been taught, since the first UCCJA, URESA, etc. came along, about custody jurisdiction and support jurisdiction being different animals, hermetically sealed compartments and never the twain shall meet, the Court of Appeals said that because the trial court had custody jurisdiction it therefore “had concomitant jurisdiction to order child support.” And not only that, but it also had “equity jurisdiction,” because the filing was originally one for divorce (citing §16.1-241(A)(3), the Juvenile Court Empowerment Statute). Yes, the Court nicely and patiently explains, when a filed divorce case includes custody and support issues, even if the same court does not end up exercising jurisdiction over the divorce itself, it retains jurisdiction to award child support as that is an “equitable concomitant” to custody jurisdiction. The suspension of jurisdiction’s exercise by the “decline and defer” decision of the trial court means that the wife’s support award couldn’t be retroactive, to the date wife filed in Hungary.

 

— CHILD SUPPORT REDUCTION CREDITS AND CHILD SUPPORT EVIDENCE (NO MERE TESTIMONY): And whilst on child support, it is incumbent on one to note some really important rulings the Court made about child support which had nothing to do with international issues. The husband had made some payments for private school and for English lessons, which the judge credited when setting his child support. And there was nothing wrong with that, the Court of Appeals explained when wife’s counsel argued that these were some of those highly-disfavored “non-conforming payments.” No, the Court of Appeals said, you can’t very well have non-conforming child support payments where there has been no child support order already in place for them to not conform to. He made these payments that he wanted credit for before all this support hearing business came on. And although wife wanted credit for her rather outrageous day care expenses, including a nanny who cost her more than her total earnings, the trial court didn’t have to count those because she didn’t produce sufficient credible evidence, which she has the burden to do. The fact that the statute says you shall include day care expenses in the calculation doesn’t mean a payee can throw any figure out there, and support it with nothing but her oral testimony. That’s right, wife’s mere testimony about her day care and nanny expenses was insufficient proof as to the amount, and certainly as to the reasonable and appropriate amount. In fact, she had an obligation to show whether the kids were attending the public school which provided free child care options, and if not, why not.

— APPEALS — FUGITIVE DISENTITLEMENT — EVIDENCE — TELEPHONE TESTIMONY: Now the wife wasn’t about to come back from Hungary to participate in her divorce litigation, and the trial court was asked by the husband’s counsel to apply some “fugitive litigant remedies,” and require that she appear in person to represent her interests, or even better, that her case be dismissed and she not be allowed to participate in any other way. But the trial court had discretion to allow her to appear and participate by telephone rather than in person, and the Court of Appeals upholds that. Insofar as there is a fugitive disentitlement doctrine, that remedy is a dismissal or a complete bar, but the doctrine is discretionary, and it doesn’t authorize courts to “erect a complex pyramid of varying degrees of particular sanctions” required for specific situations. Nor does it confer any right on the non-fugitive party, since the right belongs to the court itself, to vindicate its dignity and authority.

— PROPERTY DIVISION AND CUSTODY (VISITATION) ENFORCEMENT: Now the wife, staying safely in Hungary all this time, and taking her appeal to the Virginia courts, did not afford the father in Virginia his court-ordered visitation with the kids. But when the trial court got punitive about this, and decided it would condition the wife’s receipt of her share of the marital property on visitation compliance, it exceeded its authority, the Court of Appeals says. That’s right, though trial courts have discretion to determine how divorcing parties’ respective shares of the marital property will be paid out, they can’t mix custody law and property division law like this. Divorce jurisdiction is purely statutory, and if the General Assembly had wanted judges to be able to enforce visitation that way, they would have said so.

 

No relief for Va. father who got court order only after time to appeal it expired

JUVENILE AND CIRCUIT COURTS – APPEAL PERIOD – CORRECTION OF ORDERS – RECEIVED AFTER APPEAL DEADLINE.  Maybe anybody who has never received a juvenile court order until after the 10-days appeal period has run has never lived, or at least hasn’t practiced law very long, but the Court of Appeals recently got a chance to discuss this issue, in an opinion that for some readers may read like a good-news/bad-news joke.  Yes, there is a statute that covers the set-aside of orders for failure to receive notice of the entry of a final order, and it’s the one that talks about setting aside default judgments for clerical mistakes and the independent actions that can be brought for relief from fraud and related matters. But the bad news for a hapless father seeking relief from a JDR court custody order that the mother had obtained is that that statute applies only to judgments of the circuit court.  After all, it says so.  The father immediately moved to reconsider for lack of jurisdiction, seeking a change of the entry date to a date late enough to allow him to appeal, but the juvenile court refused, and the circuit court, when resorted to, denied the motion on the grounds that §8.01-428(C) does not apply.  Though one wonders whether anything could have been done using the statute granting the circuit court power to do anything here that juvenile court can do, but after all, the circuit court here would have had to want to do something under that statute. Eklund v. Eklund, unpublished, 25 VLW 1446 (5/17/11]. 

Left-behind parent coming to Va. for UCCJEA case can't get served here or incur Va. jurisdiction

CUSTODY – UCCJEA – CHILD-SNATCHING REMEDIES – “INCURRED PERSONAL JURISDICTION” CLAIMS – IMMUNITY FOR PLAINTIFF.  A wife coming from Belgium to get her wrongfully removed child back by invoking the UCCJEA in Harrison v. Harrison, 58 Va. App. 90, 706 S.E.2d 905 (4/5/11), had far better luck than did the father in Sasson v. Shenhar, who tried the same thing in the same local trial court, adding a Hague Convention claim as well, and was told he had incurred personal jurisdiction thereby, with all that that entails.  The Court of Appeals finds the matter simple enough in this case involving Americans residing in Belgium — a wife who decided she would like to stay there, and a father who came here, didn’t return the children after a visit when wife came to claim them, and served her here with Virginia divorce papers when she came here to litigate for a UCCJEA claim.  The fact situation was more complex than that, of course, with the children being registered for school in Belgium, numerous agreements having been signed on various aspects of this, wife’s trips back and forth to Virginia for husband’s benefit to arrange his new living situation, etc.  But stripped down to its simple elements, as the Court of Appeals views it this time, the case involved a litigant coming here to appear in court to get her children back after the other parent’s refusal to return them after a scheduled visit, and service of Virginia pleadings on her while she was here for purposes of that litigation.  That, the Court of Appeals declares, does not in any way confer personal jurisdiction upon Virginia over that litigant.  The Court points of course to the specific immunity section of the UCCJEA, Code §20-146.8, and it finds no support for husband’s claims to the contrary in the long-arm statute, §8.01-328.1(A)(9).  No doubt about the matter. The Court, in the unanimous opinion by Judge Alston, declares that the UCCJEA immunity provision means what it says:  That a party who comes here to enforce a custody order or take part in a child custody proceeding does not incur personal jurisdiction here simply by having done that, nor by being physically present for purposes of participating.  While some of the wife’s actions might have looked ambiguous, given the off-and-on vagaries of a couple’s emotional relationship, she was very careful never to do anything while here that might have indicated residing here or intending to do any official act here that would arguably take advantage of Virginia legal or governmental entities.  Wife’s motivations in all of this might not have been the purest, as it appears she had acquired a boyfriend over there, but the husband’s efforts to argue it was wrong to sustain relevancy objections to testimony about her marital relationships were of course unsuccessful.  That Wife deceived husband about her reasons for wanting to stay in Belgium was testimony that does not pass the long-established basic test for relevancy.