Virginia Family Law Appeals

Va. S.Ct.: 20-year statute of limitations applies to support enforcement

SUPPORT ENFORCEMENT – STATUTE OF LIMITATIONS – JUDGMENTS – TWENTY-YEAR STATUTE APPLIES.  Yes, the statute making every child support installment a judgment from the minute it is due and unpaid means what it says, the Virginia Supreme Court points out.  But for that very reason, the Supreme Court tells the DCSE in Adcock v. Commonwealth, ___ Va. ___, ___ S.E.2d ___, 26 VLW 670 (11/4/11), the general 20-year statute of limitations on judgments, §8.01-251, means exactly what it says too, and it applies to these judgments going back 20 years or more.  Nothing in the statute makes an exception or says it doesn’t apply, and therefore a “deadbeat Dad” does not have to pay them.  This is all nothing but statutory interpretation, the Supreme Court says, and it is straightforward and simple.  The only quirk is the established legal principle that a statute of limitations does not apply to an ongoing judgment that you will have to pay future child support, but those payments that were missed and became instant “judgments” against the payor parent are not that, and just like any other judgments, after 20 years they became uncollectible.

Va. court: Incest prosecution must continue when defendant dies, for victims' sake

FAMILY/CRIMINAL ISSUES – ABATEMENT OF PROSECUTION – DEATH OF DEFENDANT – SPECIAL PSYCHOLOGICAL FELT NEEDS. In a truly remarkable precedent-smashing case, the Supreme Court decided that there are now criminal cases that can continue beyond the defendant’s death.  Bevel v. Commonwealth, ___ Va. ___, ___ S.E.2d ___, 26 VLW 668 (11/4/11), had been a prosecution for recently-revealed incest, and after the defendant died while his conviction was on appeal, the Virginia Supreme Court decided that because the two victims argued that the prosecution had to continue to a final determination of guilt because that would make them feel better, the Supreme Court agreed that this must be done in order to give them “a sense of closure and validation.”  The Court of Appeals had even denied the motion of defendant’s counsel to withdraw when the man died.  The Supreme Court says that in fact the statutes don’t really exactly say that the prosecution must abate in such a case, and “We are of opinion that the prior cases with orders in which abatement was applied have no precedential value.”  The Court examined various similar cases from the federal and state appellate courts, and found differing opinions on somewhat similar issues. Has the U.S. Supreme Court spoken of this? Well yes, but as for Durham v. U.S.,  401 U.S. 481, 483, which said, “death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception”, that was a per curiam opinion. The waste of scarce judicial resources on pursuing dead people beyond the grave for someone’s sense of “closure” was apparently not discussed. 

Va. court: Mere "best interests" justifies non-consensual adoption

-- Although this is a case that probably would have turned out the same way under a stricter standard.

ADOPTION OVER OBJECTION – CONSTITUTIONAL STANDARD – NO “DETRIMENT” REQUIREMENT – BEST INTEREST TEST. Just as it took an uncharacteristically short time for Copeland v. Todd, 282 Va. ___, 715 S.E.2d 11 (2011), to be reported in the West’s Advance Sheets, the Virginia Court of Appeals loses no time whatever in applying it. In an unpublished opinion in a case called Eiseman v. Beaudoin, 26 VLW 642 (11/1/11) out of Gloucester County, the Court summarily affirmed a step-parent adoption over the natural father’s objection, expressly applying the new Supreme Court case. The trial court ruled that the adoption was in the best interests and in fact made some extra rulings about “harm” from continuation of the relationship with the natural father. The child was illegitimate, and of course step-parent adoption is governed by a different statute anyway. The child lived with the mother and step-father since 2006. The father steadfastly refused to consent, but in the years 2007 and 2008 he was convicted not only of drug charges, but of felony theft and forgery and driving on suspended license. He had been turning up every year “sporadically” to call and visit the child. The trial court considered all the factors in §63.2-1205 in determining best interest here and the record supports that determination of the requisite nine factual findings. Appellate attorneys’ fees to the mother were denied as the case raised substantial issues and reached the Court of Appeals without unnecessary delay.

Va. S.Ct.: "Slayer Statute" can disinherit killer's children

CONSTITUTIONAL LAW – STATUTORY INTERPRETATION – INHERITANCE, ETC. – “SLAYER STATUTE.” The Virginia Supreme Court engaged in some very interesting statutory interpretation recently, involving what you might call family break-up by homicide. As many lawyers know and surely many don’t, a Virginia statute, Code §55-402, provides that neither a slayer nor any person claiming through him shall in any way acquire any property or benefit as a result of the death of the decedent slain. Going back to basics, this provides a nice, comprehensive way of covering both heirs and legatees. The death of one Corrine Lockhart at the homicidal hand of her son in 2005 resulted in his murder conviction in 2009 and the daughters of the convicted murderer claimed that they could inherit their grandmother’s estate by intestate succession. There’s a 2008 revision of the slayer statute which they said would make it inapplicable to a conviction that did not follow until 2009. The revised statute says that an heir or distributee can independently establish his or her kinship to the decedent and thereby be deemed to be claiming directly from the decedent and not through a slayer parent or relative. Because of the 2005-2009 timing, the granddaughters argued that the 2008 version applied. In this case, Bell v. Casper, ___ Va. ___, ___ S.E.2d ___, 6 VLW 475 (9/16/11), the Virginia Supreme Court reasoned, though, that because the victim mother’s will identified her son as the sole beneficiary of her whole estate, identifying no further beneficiaries in the event he should predecease her, that will lapsed. (Yes, the Court was saying that the original slayer statute applied immediately upon the homicidal act and the death.) That of course means that the laws of intestate succession in effect at the time of her death in 2005 governed the distribution of her estate. That is in accordance with its legal historical context and the established Virginia policy that it is the law in existence on the date of death that governs an estate’s distribution. The lower court correctly concluded that the intestate succession law passes the estate to whatever heir or legatee could make a claim not through the slayer. The granddaughters’ next argument was that this violates our ancient ban on laws working “corruption of the blood” and “forfeiture of estate” as penalties (Code §55-4). The Supreme Court said that it simply does not, and that also applies to the 2005 murder, which is what triggered the slayer statute in this case. (The whole Slayer Statute is §§401—415 of Title 55.) The statute does not, as attainder and “blood corruption” did, deprive a slayer’s heirs of the right to inherit his property. The 2005 statute merely stopped them from acquiring other, additional property rights through him. 

 

Virginia weakens birth parents' constitutional protection in adoptions

 

ADOPTION – OVER OBJECTION – PARENTAL PRESUMPTION – CONSTITUTIONAL ISSUES – CODE § 63.2 1202-1205. Copeland v. Todd, ___ Va. ___, 715 S.E.2d 11, 26 VLW 476 (9/16/11), reversing 55 Va. App. 773, 689 S.E.2d 784 (2010), 30/1 FLN 20.

 

On September 16 our Supreme Court reversed last year’s Court of Appeals holding that had come to the rescue of natural parents facing adoption over objection, Todd v. Copeland. Applying the 2006 version of the adoption statute, a trial judge had held that it determined the mother was withholding her consent “contrary to the best interests of the child,” and ruled that that was all he had to hold.  The Court of Appeals said you can’t take people’s children permanently away and completely destroy parenthood with a mere best-interests finding – though the 2006 adoption statute does exactly that – and reversed this unnamed circuit court.  The Court of Appeals held that only by giving the statute a constitutional limiting construction which reads the “detriment” requirement into it, and knocks out this particular adoption, can its constitutionality be saved.  The state Supreme Court now differs with that reasoning, and reinstates the trial court’s.  The trial judge had made an alternative holding that he could grant the adoption on the ground that although the parent had not let the child go uncontacted by her for six months, her contacts could be disregarded for the purpose of constitutional analysis because they were not good enough or solid enough to be meaningful quality time, and the Supreme Court lets stand the reversal on that one.  The mother too had tried an alternative argument that this adoption amounted to a parental rights termination without giving her the constitutional and statutory rights that attach to that, but the Supreme Court doesn’t buy it. (It’s difficult to tell whether the Court of Appeals had bought that alternative argument or not, a matter now of only passing academic interest, though they did hold that termination requires a whole battery of tests reaching beyond that “best interest”.)  In a long and scholarly disquisition the Virginia Supreme Court warmly embraces the 2006 adoption statute and the best-interest test that it uses, because, as the Justices explain in their unanimous opinion, in this context it’s better because it’s something different. And now Virginia has a constitutionally approved statute that makes judges happy, makes adoptive parents happy, makes lots of social workers, etc. happy, and leaves really only one group out in the cold.   The Court is not afraid to come to grips and wrestle with some mighty and powerful abstract concepts to do so.

 

            If an appellate court is going to issue rulings directly contradicting all the things the U.S. Supreme Court has explicitly said in all its recent cases on the point, it is well advised to do so at the expense of some group which lacks any powerful constituency or advocacy/interest groups to take up its cause. Natural parents fighting involuntary adoption of their children have long been such a group.

 

            Abstractions usually do tend to be difficult and slippery, and not all lawyers are of such a Jesuitical turn of mind that they take easily to them. They abound in substantive criminal law, for instance, and family law is not without them.  Appellate courts often take to them with relish, of course, and in Copeland v. Todd, the Virginia Supreme Court, which so often solemnly intones that it does not write language into the statutes, reasons you around in a great circle to convince you that for constitutional purposes the “best interests of the child” language in the adoption statute does not mean that, but something greater and finer, and more invincible to constitutional attack.  At the end of this fine and carefully constructed opinion it is difficult for the reader to say whether the Court is saying that “it means it because it says it does,” or “it means it because they say it does” or “it means that because we say it does.” But we will let the cleverest among us parse all that out.

 

            But above all abstractions are first and foremost words.  Abstractions used in the legal world have definitions, but those definitions are long enough and wide enough to fill an entire library, including contradictions, overlappings, and airy puzzlements that may leave you quite empty handed at the end of your inquiry. We live by words after all, and scientists tell us they are what makes us human in the final analysis, but words can kill too, for they can be very deadly missiles indeed, especially in the hands and in the mouths of the all-powerful.  And they surely can be fatal in their effect, not least in this business of adoption of your child over your objection. And don’t go trying to drag in the body of law that has grown up around parental rights terminations. Oh no, for the Supreme Court tells us they are quite different – different creatures altogether. Yes, different entirely – notwithstanding that the two might seem awfully much the same when you are on the receiving end of either one. Abstractions are just that. You can sift through to the very end and find nothing solid, nothing concrete in them.  But the effect when they are turned on you can be as hard and concrete as a lump of that stuff falling on you. The Court of Appeals reasoned one way, and lo and behold the Supreme Court reasons differently, and one’s child, along with all one’s hopes, disappears too.

 

            To be precise, we should go through the matter step by step with the Virginia Supreme Court. From 1995 to 2006, there’s no dispute that the Virginia statute was constitutional, meeting the demands of the U.S. Supreme Court opinions, which the Court of Appeals read in the instant case as requiring more than “best interests of the child,” with that “more” including that it would be “detrimental” if the natural parent kept the child. In 2006, another wave of pro-adoption and adoption-industry sentiment, incensed with the “detrimental” standard, persuaded the General Assembly to remove it. Whatever it may have thought of the looming constitutional problems, the General Assembly didn’t painstakingly and sensitively craft a substitute, but simply deleted the “would be detrimental” phrasing and replaced it with “against the best interests” as the answer to any constitutional problems. So the General Assembly passed this 2006 “best interest” statute, which the Court of Appeals in Todd v. Copeland held less than sufficient – insufficient that is, without a constitutional limiting construction reading “detrimental” back in.

 

            Which, of course, required reversal of the instant case and the adoption there. The Virginia Supreme Court thinks otherwise, reading Quilloin v. Walcott, 434 U.S. 246, 255 (1978), and all of its constitutional companions differently, and reversing the reversal, sustains the trial court ruling, the 2006 statute, and the present involuntary adoption. Although the wording of the 2006 statute is different from the 1995 statute, in its substitution of “best interest” for “detrimental,” the Virginia Supreme Court says that you do not have to do this using exactly that word to conform to Quilloin, etc., if you use other words that are adequate, and the 2006 statute did that – by using – (The envelope, please.) “best interest.” It has the same string of careful, sensitive factors that the 1995 statute had – exactly the same – only with “best interest” replacing “detriment.” The Virginia Supreme Court obviously thinks the law before 1995 was O.K. anyway, and the General Assembly shouldn’t have added a “detrimental” test.  So contrary to best interest equates with detriment and the present statute constitutionally conforms, and therefore it requires more than best interests – to-wit, best interest. 

 

            But the two best interests do not mean the same thing, because, well, everyone knows they are different. Why? Because best interest is used – meaning “also used”, but let that pass – in mother-father custody contests, which are, we all have to admit – different from adoption. QED.

 

            So is there at the end of the loop a crucial factor that distinguishes the one best interest from the other any better than that? Apparently it would have to be the only one left here, the factor that the Court of Appeals labored mightily to apply, but felt it just couldn’t: the Presumption of Constitutionality.

 

 

Driscoll v. Hunter: Ability to pay alimony comes from assets, not just income

ALIMONY – MODIFICATION – PAYOR’S RETIREMENT AND INCOME REDUCTION – ABILITY TO PAY – PROPERTY HOLDINGS - LIQUIDATION OF PRINCIPAL.  Appellate courts are always going on and on about how sacred the dichotomy between income and property is, especially as a rationale for double-dipping awards, where the asset or income stream can be characterized as both at the same time, and thus be hit twice to suit the desires of the awarding court.  It seems illogical and arbitrary to some, but after all, when it comes to alimony, the criteria in the statute include payor assets as an element of “ability to pay.”  That’s right.  We have seen the appellate courts look to the interest that could be made on property holdings that belong to the payor, but a new opinion from the Court of Appeals makes plain that the assets don’t have to be throwing off income to be charged as an alimony pay-ability source, and indeed the opinion seems to say that a court can even require the drawdown or liquidation of principal to satisfy alimony obligations – though it is more clever and more subtle than to say exactly that. (See below.)  This holding issued in a case where it was the payor seeking modification by reason of his greatly reduced payor income, so of course he had a several-pronged burden of proof to meet, and that may distinguish this case from other situations.  The holding sustained by the Court of Appeals in Driscoll v. Hunter, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 617 (10/25/11), is distinguishable from cases that come up in a different procedural configuration.  Meaning, of course, that the result could be the same, but the means of getting there might be different.  The husband in this case, who retired from his oral surgery business for health reasons, had relied at first on the wording of an agreement that didn’t say exactly that he had to show a material change in circumstances to come in to seek a support reduction. But that agreement, the Court of Appeals points out, was a temporary agreement, and it was swallowed up in the final divorce litigation and divorce decree and that there was no dispensing now with that proof requirement.  The trial judge did not hold that retirement did not constitute a material change of circumstances, though the Court of Appeals hints that it would have been fine with them if he had – a fairly dire warning for the ex-husbands out there.  Assuming change in circumstances, the trial court held that even though Husband’s income went down drastically, he still had the ability to pay because he had plenty of money in investments (as indeed he admittedly did).  The Court of Appeals doesn’t care where he gets his money to pay the unchanged alimony obligation, but says it would have been O.K. to liquidate principal to do it.  The ex-wife had worked for only a very short time after divorce and quit, deciding she just didn’t like working and would rather have the time.  So the husband’s counsel tried an imputation argument.  Now we all know how hard payee imputation is to get, or at least for it to survive appellate review, but the more frightening thing about the Court of Appeals treatment of it here is its statutory analysis.  That analysis indicates that when a petitioner seeking alimony reduction has not satisfactorily proved he lacks the ability to pay, all those “equitable factors” like payee imputation can’t even be looked at.  And weren’t we recently told that imputation is a deviation/variation factor, but a mandatory one?  Well of course that would have to have been payor imputation (and that was probably a child support case anyway).