Virginia Family Law Appeals

Prenup boilerplate precludes most challenges; 6-figure disclosure error not fatal in context - Va. Ct. App.

PREMARITAL AGREEMENTS – DISCLOSURE – STANDARD FOR PROVING FRAUD OR NON-DISCLOSURE – ESTOPPEL — CLAIMED REVOCATION/REPUDIATION OF AGREEMENT – SUPPORT — MODIFICATION RETROACTIVITY — DISCOVERY — UNUSUAL DISCOVERY ORDER UPHELD. The Court of Appeals in Makoui v. Makoui, unpublished, 26 VLW 726, 11/22/11, upholds a premarital agreement whose disclosure attachment valued stock at $68,000, even though the owner spouse testified that at the time of the agreement it was worth $250,000 to $300,000.

The Court says the first thing to consider is that the agreement signed by both parties “specifically states each gave a ‘fair and reasonable disclosure,’” and the Premarital Agreement Act says this recitation creates a presumption that it is true. (Code § 20-151(B).)

Second, “the statute requires only that the disclosure be ‘fair and reasonable’ and not that the disclosure include a present fair market value for each item of property disclosed.” And looking at the context, the schedule listed many other intangible asset values totaling $214,000, just counting those whose values were listed, plus “thousands of shares of named stocks for which no value was listed.” (And wife offered no evidence that the value of the non-valued stocks was negligible.)

As for other challenges to the agreement as unconscionable, the Court stresses that it takes both unconscionability at the time of signing and non-disclosure to overturn the agreement under Code § 20-151(A)(2) , and that both parties were “mature, college-educated adults at the time of their marriage,” and “the agreement did not provide for a gross disparity in the division of any marital assets that might come into existence during their marriage.”

Husband had told the wife that he had torn up the agreement when she demanded to see a copy of it. But that does not estop him from later asserting his rights under the agreement, the Court says. Although it seems he had lied about this, the trial court didn’t find that the wife proved that she had relied upon that misrepresentation in any way, and that if she had, that reliance would have been unreasonable. Both Code §20-153 and the prenup’s terms say that a prenup can be revoked or amended only by a written instrument. And “wife was charged with knowledge of both the applicable statute ... and the terms of the agreement.” A useful reminder to make sure that clients have read and understood “boilerplate” provisions, and the statutes that lay out the framework, ground rules and limitations of the agreements they are entering.

The husband cross appealed because he had filed for a modification of pendente lite spousal support, and when the court granted that modification from $5,000 to $1,000 per month it did not make it retroactive to the date he filed the motion. The Court of Appeals upholds, as “husband could have avoided the accrual of the arrearage if he had acted in a timely fashion.” So filing for modification so as to enable a change to be retroactive to the filing date, but then not setting it for hearing, can be dangerous.

The trial court ordered a federal-court-style schedule of evidence disclosures instead of the usual discovery process, and the Court of Appeals says that was not reversible error, at least to the extent the wife preserved her objection. There is a right to discovery under Rule 4:1(b)(1), the Court stresses, but that Rule also says the court may limit “‘the frequency or extent of’ discovery methods ‘if it determines [inter alia,] that: . . . (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.’” And “the granting or denying of discovery is a matter within the discretion of the [circuit] court and will not be reversed on appeal unless ‘the action taken was improvident and affected substantial rights.’” (Citing O’Brian v. Langley Sch. (Va. 1998) and Rakes v. Fulcher (Va. 1970)). At the time when the wife moved to compel answers to interrogatories, the trial court had already disposed of all issues except for four-digit property and alimony issues, so its ruling did not “affect substantial rights.”

State court can fix pension-division order after federal government misinterprets it - Va.Ct.App.

PENSIONS – QDRO IMPLEMENTATION, INTERPRETATION – SEPARATION AGREEMENTS – INTERPRETATION – OPM/CIVIL SERVICE POLICIES FRUSTRATING PARTY INTENT – REMEDIES – COURTS’ AUTHORITY. A court has jurisdiction to modify its divorce judgment to effect a workable division of a pension by QDRO under §20-107.3(K)(4), and that includes separation agreement cases, and it includes construing the intended meaning of the contractual clauses, the Court of Appeals points out in Craig v. Craig, 59 Va. App. 527, 721 S.E.2d 24 (2/7/12). But it does not include adding to or changing the contract because of changing circumstances or any other reason, the Court explains, and that distinction provided the subject of the husband-wife dispute wherein the trial court had heard her parol evidence, given the wife what she wanted and awarded her fees, and husband appealed. This was one of those agreements that provided for the wife getting a survivor benefit plan on top of her pension percentage, but called for deducting the SBP premium from her share. OPM, however, construed its regulations to deduct the $810 premium twice, first from his share and then from hers. This odd interpretation disadvantaged wife. Husband said that sounded fine to him. The first question was whether the question posed even fit within subsection (K)(4), because if not, the trial court did not even have jurisdiction to make any interpretations of the contract, much less modify it. Interestingly, both sides argued that the contract was unambiguous – so why wasn’t that end of story? Well, because even in that situation the courts can still resolve questions of application intent, the Court of Appeals explains, when an unforeseen and illogical interpretation comes along that would nevertheless be totally inconsistent with the obvious intent, and one party nevertheless says he (now) agrees with it. Somebody has to be there to say what’s right and what isn’t. The court concluded that at the time of formation, both parties intended the use of words (like “gross amount”) in their ordinary sense, rather than the weird one that CSRS/OPM under its own regulations was applying. The Court of Appeals quotes from a previous and almost identical case called Recker v. Recker, 48 Va. App. 188, 629 S.E.2d 191 (2006), 26/2 FLN 31, which involved this kind of off-the-wall interpretation. It went through the ordinary and dictionary meanings of the word “gross,” and said that the ordinary meaning is the one these parties clearly intended. Husband tried an ingenuous attempt to distinguish Recker, pointing out that that consent decree did not specifically mention CSRS (which this one did), but referred to husband’s “specific branch of the Federal Government Retirement & Disability System.” The Court of Appeals responded that “in order to accept husband’s position, we must conclude that wife agreed to have the survivor annuity costs ($810) deducted twice from her share.” It concluded, based on the clear language of the agreement, that the parties intended that the $810 should be deducted only once. This kind of interpretation and modification is authorized by §20-107.3(K)(4), because it modifies a QDRO in order to “conform its terms so as to effectuate the expressed intent of the Order, and does so consistently with the substantive provisions of the original decree.” The Court reiterates that it can’t do this just because of change of circumstances. The Court also rules that it was all right to accept parol evidence from the wife, even to construe an unambiguous agreement. It’s true that parol evidence is inadmissible to contradict, add to or even explain the terms of a complete and unambiguous written agreement, but the Court of Appeals notes that wife’s testimony here did not attempt to alter the terms, but merely stated them in her testimony. The fee award was reversed, because the husband’s contentions were not frivolous and he relied in part on Court of Appeals cases that had caused the scratching of not a few heads at the time, such as Duva v. Duva, 55 Va. App. 286, 685 S.E.2d 842 (2009). The West’s Headnote Number 14 to this case makes the especially helpful observation that the purpose of subsection (K)(4) in giving trial courts continuing jurisdiction to modify “is to protect the interests of pension recipients from the unintended consequences of improperly or incomplete [sic] drafted pension orders.” While the text paragraphs signaled with numbers 13 and 14 did not exactly use these words as the Court of Appeals’s own, they do quote our Family Law Section’s Report on pension division in divorce proceedings from 1991, House Document No. 19, which says this. And although those nice words don’t exactly fit what was done in the Craig case, they are themselves embodied in the appellate court’s quotation from a previous opinion called Irwin v. Irwin, 47 Va. App. 287, 623 S.E.2d 438 (2005), to the effect that the statutory reservation allows a court to revise its orders to comply with the language required by federal law to effectuate the intended pension award. And while that doesn’t necessarily hit the Craig case mark either, it’s helpful to have these additional prongs of statutory authority explained.

 

New Virginia family law legislation: the rest of the story

Over the past few days we've reported the new laws enacted in the areas of divorce, domestic violence, child abuse/neglect/dependency, and adoption. There were a few other bills passed, some affecting family law, others not in family law but still affecting what we family lawyers do in our practice. Here they are:

 

HB 1095 Qualified domestic relations order for enforcement of support. Provides that a court may enforce a support order by entering a qualified domestic relations order or other order designed to attach or garnish pensions and other deferred compensation or retirement plans governed by federal law.

 

SB 89 Garnishment; corrects form listing Exemptions from garnishment.  Corrects the form listing garnishment exemptions by replacing the reference to "rent or services of a laborer or mechanic" with "spousal or child support" to reflect amendments made in 1990 (Acts, Ch. 942) that were never incorporated into the form. This bill also contains technical amendments. This bill is a recommendation of the Committee on District Courts. It changes the § 8.01-512.4. Notice of exemptions from garnishment and lien Form to state that a homestead exemption cannot be claimed in a garnishment for child or spousal support.

 

HB 84 Child custody; judge shall communicate basis for decision, except in certain cases. Provides that the judge's required communication of the basis for his decision regarding child custody or visitation, except in cases of a consent order for custody or visitation, shall set forth the judge's findings regarding the relevant statutory factors used to determine the best interests of the child.

 

HB 229 Doctrine of necessaries; lien not to attach on residence held by spouses as tenants by entireties. Provides that a lien arising out of a judgment under the doctrine of necessaries shall not attach to the principal residence of a husband and wife that was held by the spouses as tenants by the entireties prior to the death of either spouse where the tenancy terminated as a result of such death.

 

 HB 761 Recording deeds; statement of preparation. Authorizes the circuit court clerk to reject for filing or recording a deed, except for deeds where a public service company, railroad, or cable system operator is either a grantor or grantee, unless it states on its first page that it was prepared either by the owner of the property or by an attorney licensed to practice in Virginia.

 

HB 101 / SB 94 Rules of Evidence; adoption of amendments or additions of Rules by Supreme Court of Virginia, etc. Provides that the Rules of Evidence (available here) that have been prepared and adopted by the Supreme Court of Virginia and approved by the Virginia Code Commission shall take effect on July 1, 2012. A rule derived from an evidentiary provision in the Code of Virginia shall note such Code section in the title of the rule. Subsequent amendments or additions to the Rules of Evidence must be adopted by the Supreme Court of Virginia by November 15 and shall become effective on July 1 of the following year unless the General Assembly modifies or annuls such amendments or additions by general law. As introduced, this bill was a recommendation of the Virginia Code Commission. This bill is identical to SB 94.

 

SB 59 Injunctions; requirement for bond. Requires a moving party to post bond only for temporary injunctions. Under current law, a bond is required for both temporary and permanent injunctions. The new version of the law reads:

§ 8.01-631. Injunction bond.  A. Except in the case of a fiduciary or any other person from whom in the opinion of the court awarding an injunction it may be improper or unnecessary to require bond, no temporary injunction shall take effect until the movant gives bond with security in an amount that the trial court considers proper to pay the costs and damages sustained by any party found to have been incorrectly enjoined, with such condition conditions as the trial court or judge may prescribe.

 

Several changes to divorce laws from Virginia's legislature

Virginia's legislature recently finished its work for the year and made some significant changes to divorce law. Here are the legislature's official summaries of the bills enacted this session, with links to the complete texts and legislative histories.

 

HB 282 Divorce or annulment; revocation of death benefits. For more information see our recent blog posting, "Virginia legislature addresses beneficiary-designation mess."

 

HB 126 Affidavits; use in no-fault divorce cases. For more information see our recent blog posting, "New Virginia law allows uncontested divorce without court hearing statewide, but some of us already do that."

 

HB 677 Power of attorney; termination. Provides that an agent's authority under a power of attorney terminates by operation of law if either the agent or principal file an action for separate maintenance from the other or for custody or visitation of a child in common with the other.

 

HB 104 / SB 60 Divorce; failure to respond by defendant. Provides that if a defendant fails to file an answer in a divorce suit or otherwise appear after having been personally served with notice of the suit, no additional notice to take depositions is required to be served on the defendant and the court may enter any order or final decree without notice to the defendant. As introduced, this bill was a recommendation of the Boyd-Graves Conference. This bill is identical to SB 60.

 

HB 635 Equitable distribution; change of venue.  Provides that, upon or after the entry of a final divorce decree, a court may, upon its own motion or the motion of any party, transfer to the circuit court for the county or city where either party resides the authority to make additional orders to effectuate or enforce an equitable distribution award made in the decree or a stipulation, contract, or agreement that has been affirmed, ratified, and incorporated in the decree.

 

HB 272 Death, marriage, or divorce records; changes time period before becomes public. Reduces the time period after which death, marriage, divorce, or annulment records become public from 50 years to 25 years.

Virginia toughens mandated child abuse reporting, tweaks other abuse/neglect/dependency laws

Virginia's legislature has made "mandatory reporting" laws broader and more rigorous, increased penalties for child sexual assault, and made procedural changes to foster care.  It also ensured that religious child welfare agencies do not have to place children with parents who offend the agency's religious or moral beliefs. Here are the legislature's official summaries of the bills enacted this session, with links to the complete texts and legislative histories.

 

HB 3 Child abuse or neglect; athletic coaches, etc. of private sports teams required to report to DSS. Requirement that certain injuries to children be reported.  Adds athletic coaches, directors, or other persons aged 18 years or older employed by or volunteering with private sports organizations or teams and administrators or employees aged 18 years or older of public or private day camps, youth centers, and youth recreation programs to the list of persons required to report suspected child abuse or neglect to the Department of Social Services.

HB 74 Child abuse or neglect; reduces mandatory time limit for reporting, requirements of certain persons. Reduces the time limit for reporting suspected child abuse or neglect by mandated reporters from 72 hours to as soon as possible but not longer than 24 hours after having reason to suspect a reportable offense of child abuse or neglect. In addition, the bill provides that in cases in which the initial report of suspected abuse or neglect is made by a mandated reporter to the person in charge of the institution or department in which the mandated reporter works, as provided in current law, the person who receives the report shall notify the person who made the initial report when the suspected child abuse or neglect is reported to the local department or state hotline and of the name of the individual receiving the report and shall forward any communications or information about action taken regarding the report to the person who made the initial report.

 

HB 970 Child abuse and neglect; mandatory reporting, penalties. Mandatory reporting of suspected child abuse; public and private college employees.  Adds any person employed by a public or private institution of higher education other than an attorney who is employed by a public or private institution of higher education who obtains information about suspected abuse or neglect of a child in the course of providing legal representation to a client to the list of individuals required to report suspected abuse or neglect of a child.

 

SB 239 Child abuse and neglect; mandatory reporting, penalties. Adds individuals associated with or employed by any public organization responsible for the care, custody, or control of children and any person employed by a public or private institution of higher education, other than an attorney employed by a public or private institution of higher education who gains information indicating reason to suspect a child is abused or neglected in the course of providing legal representation to a client, to the list of individuals required to report suspected child abuse or neglect; reduces the time limit for reporting suspected child abuse or neglect by mandated reporters from 72 hours to 24 hours; increases the penalty for a second or subsequent failure to report from not less than $100 nor more than $1,000 to a fine of not less than $1,000; provides that, in cases evidencing acts of rape, sodomy, or object sexual penetration, a person who knowingly and intentionally fails to make the required report shall be guilty of a Class 1 misdemeanor; and provides that no mandatory reporter shall be required to make a report if the person has actual knowledge that the same matter has already been reported to the local department or via the Department's toll-free child abuse and neglect hotline. This bill incorporates SB 265, SB 296, SB 303, and SB 622.

 

 SB 204 Children in foster care; school placement. Clarifies that the agreement as to where a child placed in foster care will attend school does not need to be made before placing the child in foster care.

 

 SB 299 Kinship foster care placements; Commissioner of Social Services may grant variance from requirement. Provides that the Commissioner of Social Services may grant a variance from requirements governing approval of foster care placements and may approve an arrangement for kinship foster care or a kinship foster care provider when he determines (i) the requirement would impose a hardship on the kinship foster care provider, and (ii) the variance will not adversely affect the safety and well-being of the child. The bill also provides that a local board of social services or child-placing agency may approve an application for approval as an arrangement for kinship care or a kinship foster care provider when the applicant has been convicted of a felony related to the possession of drugs other than felony offenses related to possession with the intent to distribute drugs, a misdemeanor conviction for arson, or an equivalent offense in anther state, provided 10 years have elapsed since the date of the conviction and the local board or child-placing agency makes a specific finding that the placement would not endanger the safety or well-being of the child.

 

HB 897 / SB 363 Virginia Child Protection Accountability System; reporting of certain information by VCSC, etc.  Requires the Virginia Criminal Sentencing Commission to report information about sentences imposed in cases involving certain criminal violations and requires the Office of the Executive Secretary of the Supreme Court of Virginia to report information from the Juvenile and Domestic Relations District Courts' Case Management System on removal orders, protective orders, and protective orders alleging family abuse to the Virginia Child Protection Accountability System. This bill is identical to SB 363.

 

SB 349 Child-placing agency; shall not be required to participate in placement of child for foster care.; conscience clause.  Provides that, to the extent allowed by federal law, no private child-placing agency shall be required to perform, assist, counsel, recommend, consent to, refer, or participate in any placement of a child for foster care or adoption when the proposed placement would violate the agency's written religious or moral convictions or policies. In addition, the bill provides that (i) the Commissioner of Social Services shall not deny an application for an initial license or renewal of a license, nor revoke a license, of any private child-placing agency and (ii) no state or local government entity shall deny a private child-placing agency any grant, contract, or participation in a government program because of the agency's objection to performing, assisting, counseling, recommending, consenting to, referring, or participating in a placement that violates the agency's written religious or moral convictions or policies. The bill provides that the refusal of a private child-placing agency to perform, assist, counsel, recommend, consent to, refer, or participate in a placement that violates its written moral or religious convictions or policies shall not form the basis of any claim for damages. This bill is identical to HB 189.  

 

HB 973 Sex crimes; penalties for offender who is 18 or older for rape, etc. of child under age 13. Imposes a mandatory minimum life sentence for rape, forcible sodomy, or object sexual penetration of a child under the age of 13 when it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense. This bill is identical to SB 436.

 

HB 971 Barrier crimes; adds extortion and felony violations of protective orders to statute. Adds the following crimes to various barrier crimes statutes: abduction, extortion, and felony violations of protective orders. People who have been convicted of or are the subject of pending charges of one of those crimes will not be able to work in a licensed nursing home, home care organization, or hospice and cannot work, volunteer, or provide services on a regular basis at a children's residential facility that is regulated or operated by the Department of Behavioral Health and Developmental Services, certain structured residential programs for juveniles, or children's residential facilities regulated or operated by the Department of Social Services, Education, or Military Affairs. Persons convicted of such crimes cannot be approved by a child-placing agency as adoptive or foster parents and cannot be adult foster care home providers or providers of home-based adult services. In addition, they cannot work at certain schools, assisted living facilities, adult day care centers, child welfare agencies, or family day homes.

 

 

Virginia legislature toughens domestic violence laws

Virginia's legislative session recently wrapped up, with three new domestic violence bills enacted. Here are the legislature's official summaries, with links to the bills' full texts and other information.

 

HB 1033 Protective orders, permanent; provides circuit court jurisdiction to hear petitions to modify, dissolve, or extend a permanent protective order if the circuit court issued the order. The bill requires the court, when a protective order is issued, to enter and transfer identifying information to the Virginia Criminal Information Network (VCIN) system. Effective July 1, 2013, any circuit court clerk who does not use the Statewide Case Management System operated and maintained by the Executive Secretary of the Supreme Court shall provide protective orders directly to the Virginia Criminal Information Network. This bill is identical to SB 445.

 

HB 971 Barrier crimes; adds extortion and felony violations of protective orders to statute. Adds the following crimes to various barrier crimes statutes: abduction, extortion, and felony violations of protective orders. People who have been convicted of or are the subject of pending charges of one of those crimes will not be able to work in a licensed nursing home, home care organization, or hospice and cannot work, volunteer, or provide services on a regular basis at a children's residential facility that is regulated or operated by the Department of Behavioral Health and Developmental Services, certain structured residential programs for juveniles, or children's residential facilities regulated or operated by the Department of Social Services, Education, or Military Affairs. Persons convicted of such crimes cannot be approved by a child-placing agency as adoptive or foster parents and cannot be adult foster care home providers or providers of home-based adult services. In addition, they cannot work at certain schools, assisted living facilities, adult day care centers, child welfare agencies, or family day homes.

 

 SB 300 Protective orders; various changes to provisions governing those issued by court; juveniles; venue.  Makes various changes to the provisions governing protective orders issued by a juvenile and domestic relations district court, including (i) clarifying that only violations related to trespass, criminal offenses, acts of abuse, or prohibited contacts are Class 1 misdemeanors; (ii) clarifying that juvenile and domestic relations district courts have jurisdiction over all protective orders that involve juveniles, whether as the alleged victim or as respondent; and (iii) allowing judges to prohibit contact between the respondent and the allegedly abused person or that person's family.

 

Virginia legislature overhauls adoption law substance and procedure

Here are the legislature's official summaries of the adoption-related bills enacted this session, with links to the complete texts. There is a general redesign of adoption procedures and the Putative Father Registry process; a law letting adoption/child welfare agencies exclude potential adoptive or foster parents in accordance with the agency's religious or moral beliefs; a right to a lawyer for indigent birth parents in contested adoption cases;  easier procedural rules for international adoption; and a bill clarifying how the Interstate Compact on Placement of Children applies to parents putting their children in a Residential Facility.

 

HB 445 Adoption; various changes to procedures. Makes various changes to adoption procedures, including establishing a procedure for review of petitions filed for the purpose of obtaining a juvenile and domestic relations district court's assistance with the execution of consent to an adoption when the consent is executed pursuant to the laws of another state; expanding the venue for consent hearings in parental placement adoptions to include any city or county in the Commonwealth, provided that diligent efforts are made to conduct the hearing where the child was born, where the birth parents reside, or where the adoptive parents reside; eliminating the need for parental consent for an adoption in cases in which a birth parent has, without just cause, neither visited nor contacted the child for a period of six months immediately prior to the filing of a petition for adoption or a petition to accept consent to an adoption; adding language setting forth requirements for establishment of a date of birth for a child adopted from a foreign country; and clarifying the requirements for stepparent adoptions. The bill also makes changes to the process of registering with the Putative Father Registry.

 

SB 349 Child-placing agency; shall not be required to participate in placement of child for foster care.; conscience clause.  Provides that, to the extent allowed by federal law, no private child-placing agency shall be required to perform, assist, counsel, recommend, consent to, refer, or participate in any placement of a child for foster care or adoption when the proposed placement would violate the agency's written religious or moral convictions or policies. In addition, the bill provides that (i) the Commissioner of Social Services shall not deny an application for an initial license or renewal of a license, nor revoke a license, of any private child-placing agency and (ii) no state or local government entity shall deny a private child-placing agency any grant, contract, or participation in a government program because of the agency's objection to performing, assisting, counseling, recommending, consenting to, referring, or participating in a placement that violates the agency's written religious or moral convictions or policies. The bill provides that the refusal of a private child-placing agency to perform, assist, counsel, recommend, consent to, refer, or participate in a placement that violates its written moral or religious convictions or policies shall not form the basis of any claim for damages. This bill is identical to HB 189. 

 

HB 451 Adoption; appointment of counsel if parent is determined to be indigent. Provides that a parent who does not consent to the adoption of the parent's child, but whose consent to the adoption is required, shall be appointed counsel upon the parent's request if such parent is determined to be indigent. The bill also provides that the court shall provide written notice to the birth parent withholding consent of the parent's right to counsel prior to any hearing or decision on a petition for adoption. As introduced, this bill was a recommendation of the Boyd-Graves Conference.

 

HB 285 Foreign adoption; procedure to obtain State certificate of birth.  Provides that in certain foreign adoptions, adoptive parents seeking to obtain a Virginia certificate of birth for the adopted child may provide either certified or notarized copies of the final order of adoption entered by the foreign court and a certified translation or a notarized copy of a certified translation of the final order of adoption in cases in which the original order is not in English. Under current law, the documents must be certified. The bill also provides that an affidavit indicating that the parents have received supervision from a licensed or approved child-placing agency in the United States and have satisfied all post-adoption requirements as required by the foreign country from which the child was adopted shall be sufficient to satisfy the requirement that parents receive supervision from a licensed or approved child-placing agency prior to receiving a Virginia certificate of birth for a child adopted from a foreign country. The bill also clarifies that only adoptive parents who are residents of the Commonwealth at the time of the adoption may obtain a Virginia birth certificate via this procedure.

 

SB 366 Interstate Compact on Placement of Children; interstate placement of children. Provides that regulations adopted by the State Board of Social Services cannot prohibit the placement of a nonresident child in a children's residential facility in the Commonwealth by a custodial parent who assumes full financial responsibility for the child prior to final approval of the placement pursuant to the Interstate Compact on the Placement of Children when the placement is made without the involvement of a public officer or agency.

 

 

Alimony may not be modifiable for "foreseeable" change, despite contract terms, but retirement not "foreseeable" - Va.Ct.App.

ALIMONY — MODIFICATION — RETIREMENT — SEPARATION AGREEMENT TERMS — “FORESEEABLE” CHANGES IN CIRCUMSTANCES — STANDARD OF REVIEW. In Dailey v. Dailey, ___ Va. App. ___, ____ SE2d ____, 26 VLW 1168, http://bit.ly/dailey4c (3/6/12), a policeman had a very hard time showing that his retirement was a change in circumstances that could justify modifying alimony, even though his decree-incorporated separation agreement said alimony “shall be modifiable upon a material change in circumstances.” His ex-wife agreed that it was a change of circumstances, but argued that alimony could not be modified because, she claimed, “the parties had contemplated the change at the time they entered into their agreement”. The trial judge agreed that the parties had “bargained for” alimony on top of the sharing of the pension, and on that ground, refused to modify.

 

The Court of Appeals agrees with the ex-wife that, “In some instances, a petition for modification of spousal support will be defeated because the change in circumstances was ‘foreseeable.’” It reasons that trial courts making support awards “look to current circumstances and what the circumstances will be within the immediate or reasonably foreseeable future. Srinivasan v. Srinivasan, 10 Va. App. 728, 735, 396 S.E.2d 675, 679 (1990).” … “When a particular event or circumstance is reasonably foreseeable, trial courts are expected to build that event into the support award,” and “it will not constitute a material change in circumstances.” It cites Barrs v. Barrs, 45 Va. App. 500, 612 S.E.2d 227 (2005), where wife’s $60,000 annual income from investments received in equitable distribution was foreseeable at the time of the divorce.

 

After all, the Court adds, Code § 20-109(B) “provides that a trial court may revisit spousal support if there is a ‘material change in circumstances … not reasonably in the contemplation of the parties when the award was made.’” It does not note that that Section is about modifications of defined-duration awards, and that the statute on modifying alimony generally, § 20-109(A), says instead that a court may modify it “as the circumstances may make proper.” The alimony in this case was not defined-duration.

 

The Court admits that “Retirement is a likely and predictable occurrence for most. A broad reading of foreseeability would mean that retirement would never constitute a material change ….” But “We have rejected such a broad reading of the foreseeability concept.”

 

Retirement was not “foreseeable” in the sense of the word used above, the Court finds, looking at “objective evidence available at the time of the previous award of support”, as it must under Furr v. Furr, 13 Va. App. 479, 482, 413 S.E.2d 72, 74 (1992). For one thing, the husband might have died before retiring, in which case the wife would have no retirement income, since the department had no survivor benefits available in pre-retirement divorces. And husband testified that at the time of the decree, when he had 29.5 years on the force, he had no retirement plans — and that testimony was “uncontested”. Other facts that the Court recites prominently are that the agreement has an “if as and when” division of the pension; and that the parties stipulated to the material change of circumstances, and did not appeal the trial court’s finding of such a change.

 

The Court also looks at the wording of the agreement. It says an agreement “is highly relevant and perhaps dispositive in establishing what was reasonably in the contemplation of the parties at the time they entered into the agreement.” And this agreement “is silent on the question of whether spousal support should continue or terminate upon husband’s retirement,” and thus gives no evidence that the parties “reasonably contemplated, or foresaw, the effect of husband’s retirement.” The Court here reiterates that interpretations of contract language should be reviewed de novo as matters of law, and not “under a deferential abuse of discretion standard.”

 

The Court also takes note of its own opinions in other cases emphasizing that a support award should not be based on future conditions, but should instead set support based on current conditions and modify later if things change. (Rogers v. Rogers, 51 Va. App. 261, 270-71, 656 S.E.2d 436, 440 (2008); Robertson v. Robertson, 215 Va. 425, 428, 211 S.E.2d 41, 44 (1975).)

 

To use “foresee” in lay terms, the Daileys probably did foresee retirement, but they probably did not know for sure what economic effect retirement would have. Retirement could either decrease or increase income, depending on post-retirement employment. So perhaps the kind of foresight that will nullify statutory and contractual grounds for modification is foresight of a change which not only is extremely predictable, but also has very predictable, known, economic effects.

 

Many divorcing parties who include modifiability in an agreement do so precisely because they foresee that circumstances might change and modification might be needed. In some cases, parties contemplate very specific and likely changes of circumstances. Unfortunately, that very foresight can nullify those modification terms of their agreements, under the foreseeability rule discussed in this case. But must foresight be 20/20 to trigger that rule? At least, it must be more accurate, and clearer, than the prophecies of the Old Testament prophets, the Oracle at Delphi, and even parts of the New Testament, depending on how they are interpreted. This case will probably be cited to the effect that retirement is per se unforeseeable, but the Court’s prominent recitation of so many particular facts may help it distinguish this case from other future cases. So we should expect separation agreements to start sounding more like horoscopes, saying more about whether certain events are foreseen, and about what specific events might be material changes of circumstances. And some people who would otherwise reach agreement may not be able to come to an agreement when more specifics about future possibilities have to be expressly agreed-on.

 

Family farm is marital property even under terms of family trust, & not gift - Stevens v. Stevens

PROPERTY DIVISION – SOURCE-OF-FUNDS – TRACING – GIFT – CONVEYANCE TO MARRIED COUPLE. The Court of Appeals recently went over again the law of tracing separate property interests, such as inheritance and gift, and of marital property in which it was all co-mingled. This was a case of a husband and wife buying his family’s farm from his mother. When the divorce litigation took place in Stevens v. Stevens, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 814 (12/13/11), the husband argued that even though he and his wife had taken title to the farm jointly, he still owned a one-quarter interest in it as his separate property because of a surviving trust obligation to divide it in the future among his parents’ four sons. What complicated things was that the farm when purchased by them was owned by a family trust. The terms of the trust governed, and required that the trustee be directed to sell by the mother, which he was. Its main provision was that the trustee had to hold all the real property for the lifetime of the parents or until they, or the survivor of them, should instruct the trustee to sell or otherwise distribute the assets. The sale took place when both parents directed the brother who served as trustee to convey to husband and wife, so it was presumably transmuted. And being no longer a trust asset, the farm was not subject to any term of the trust. Although there was a provision about distribution of the farm upon the death of the parents, that was irrelevant now because it had been properly conveyed to the now-divorcing husband and wife and further trust terms were irrelevant. The brothers had no more than a vested remainder in those trust assets, which would be no more than that until the death of the parents if they still held the farm at death, which they now will not. The farm after sale was the simple marital property of the husband and wife. The husband had an argument that one quarter of this conveyance was a gift to him because the price was $100,000, and husband and wife had given a purchase money note for only $75,000, so therefore that $25,000 forgiveness of their debt must have been a gift from his parents. At best, the Court of Appeals said these facts would “only suggest” a gift. Conveyance was still to husband and wife in joint title and husband had not proved inheritance or gift, and the marital property classification of the entire farm was upheld.

Appeals Ct defers to local judge's contextual knowledge in farm-use truck case

APPEALS – EVIDENCE — TRIAL JUDGE DISCRETION – LOCAL STANDARDS – “SAW AND HEARD THE WITNESSES” RULE.  Lawyers who feel that they have been hometowned, or home-cooked, upon venturing out of their own briar patch, may want to know how the Court of Appeals thinks about these things.  A Shifflett case from Nelson County points up how Their Honors respect what the local boys and girls on the bench know, feel and believe informs the trial-judge-discretion rule that we hear so much about in family law. An unusually direct and candid statement of the appellate attitude, abeit eloquent withal, is set forth in the case of Shifflett v. Commonwealth, 716 S.E.2d 132, 58 Va. App. 732 (8/11/11), involving a Fourth Amendment decision on probable cause to stop the pickup truck of a local farmer or farm worker and arrest him.  The charges were, unsurprisingly, driving an unregistered, uninspected and uninsured vehicle with a farm use tag, and driving drunk, and the Court of Appeals unleashes the judge who is easily its most eloquent and elegant prose-stylist – at least when it comes to abstract concepts – on this poor rustic’s case. A reading of this case is recommended, but direct quotation is probably the best way to convey what took place here. Shifflett’s lawyer invoked the Fourth Amendment, and the prosecutor argued, as the Court of Appeals agrees, that practical circumstances justified a reasonable suspicion “that Shifflett – at the time of the stop – might not have been using his unregistered pickup truck consistent [sic] with the statutory exemptions governing farm use vehicles.”  The lawyers were talking, of course, about the somewhat confusing statutory provision, awkwardly written in four different statutes, of which the first one, Code Section 46.2-670, actually involved only travel from saw mills, and the second, §46.2-672, involved only the transportation of unginned cotton, peanuts or fertilizer.  The more general statute for farm use contemplates agriculture use, but also permits (§46.2-673) making a return trip from a market place or a store and transporting food and other supplies “to a farm” if the returning vehicle is one “exempted from registration” under the earlier statutes.  Judge Kelsey cites several circumstances to support the cause-probability, conclusion: that the truck “displayed a store-bought farm use tag” instead of a genuine home made one (Huh? Well maybe it’s akin to betraying yourself un-country by using instant grits.)  Also there were three people in the cab, and finally the clincher: that the truck “traveled” north on Route 151 in Nelson County at nearly 10:00 pm in the dead of winter after a snowstorm.” These facts were “further amplified” by what some might consider the State Trooper’s concluding from his observations, or at least his summary thereof, that “in the winter time you don’t see many farm use vehicles on the road.”  (Also, perhaps, the best of circumstances for fortifying yourself with a little antifreeze, but not, in hindsight, a good idea.) Anyway the trial judge apparently thought “No, you don’t,” believed the cop, believed the cause probable, and upheld the stop. The rest is precedential history.

Judge Kelsey explains, “to those outside the local community, these circumstances may mean very little.  Under settled law, however, a trial judge applying the Fourth Amendment ‘views the facts of a particular case in the light of its distinctive features and events of the community.’” (Which perhaps you didn’t know, but it’s from Ornelas v. U.S., 517 US 690 (1996).)  Judge Kelsey continues, “and these background facts, though rarely a subject of explicit findings, informed the judge’s assessment of the historical facts.” And perhaps most helpful of all, “Given a trial judge’s unique capacity to conceptualize the facts, appellate courts give ‘due weight’ to the inferences drawn ‘by resident judges … applying … principles to fact patterns unique to their local communities.” The Judge further explained, “We acknowledged Shifflet’s complaint that the trial court’s analysis, which we adopt as our own, relies heavily on generalities.  But, truth be told, it is supposed to be this way.  The reasonable suspicion standard itself is a ‘somewhat abstract’ and ‘elusive concept’ that cannot be reduced to a ‘neat set of legal rules.’ [Citations omitted]” Well. For a well turned phrase, you got to admit, you cain’t beat that with a stick.  To conclude, the opinion tells us that “we thus find it unnecessary to find or develop a grid of all possible lawful uses of an unregistered farm vehicle [I’ll tell thee, friend, farmers have to.] … to determine whether the facts convincingly negate each hypothesized use.” Rejecting use of such a grid, Judge Kelsey goes on a right smart piece into doing exactly so, garnering (to invoke an agricultural metaphor that’s already a little too much in vogue these days), along with the previously-cited statutes, Subsections 665(A) and 665(B)(2) (letting you go 30 miles from one of your farms to another).  And, not to put too fine a point on it, explains how that means “picking up a plow from another farm would certainly qualify, while [aw, shucks] picking up a case of beer to drink on the ride home would not.”  Now the next question, presumably, would be not about a case of beer that you do not drink.  Well, that is, not entirely, anyway – on the way home, but that’s another story.  This Judge’s agile mind and facile pen carried him into further instructive speculations, for which a full reading of the opinion is truly recommended. ULTIMATE LESSON: When that ol’ judge on the bench says “Contextualize me,” you better watch out.