Virginia Family Law Appeals

Mixing business, personal affairs makes adultery an attorney-client privilege - Va. Ct.

ADULTERY – PROOF – ATTORNEY-CLIENT RELATIONSHIP (AS A DEFENSE AND AS A PRIVILEGE CLAIM). In an unusual (we would hope) recent case a lawyer wife was able to defend herself against her husband’s adultery complaint by invoking her attorney-client relationship with the alleged paramour both as a substantive defense and as one of her privilege claims. Oh yes, and by taking the Fifth Amendment. Having invoked her right against self-incrimination, her defense was that all her conduct could be explained as pursuit of her attorney-client relationship with her business client, and then when asked to explain her conduct, she invoked the attorney-client privilege because it would divulge business-related information belonging to the alleged boy friend’s business, which she represented. Perhaps the trial court should not have granted the wife’s motion to strike these complaints when it decided to grant a no-fault divorce instead, but since (the court held) she had plausible explanations for her suspicious conduct, it would have been harmless error anyway. On appeal it was the husband’s burden to demonstrate how the ruling on the motion prejudiced his right to a fair trial, and the evidence that the husband did proffer was legally insufficient to compel an adultery finding. Moreover, the Court of Appeals found in this unpublished case, Jordan v. Jordan, 27 VLW 160 (6/26/12), that there was nothing in the record showing any adverse ruling by the trial judge when the wife’s assertion of her Fifth Amendment and attorney-client privileges were challenged. Because there was nothing to show the nature of the husband’s objections to his wife’s assertion of the privileges, his arguments could not even be considered on appeal. Fee awards were denied to both parties.

Discovery sanctions preventing cross-examination went too far - Va.S.Ct.

PROCEDURE – DISCOVERY COMPULSION – SANCTIONS – CONSTITUTIONAL RIGHTS.  The law of “sanctions,” which some lawyers and some judges find irresistible, includes a very interesting combination of the purely punitive punishments, such as fines, and what you might call the “crippling sanctions,” which punish not only guilty lawyers and guilty parties, but also whatever innocent parties may be represented by ill-behaved lawyers.  These punishments, which might be likened to an execution by fragmentation grenade, are not found in the “sanctions statute,” Code §8.01-271.1, but they are included in discovery Rule 4:12(b).  That was the focus of a recent contract case from the Virginia Supreme Court, Nolte v. MT Technology Enterprises, LLC, in which repeated refusal to respond fully to discovery and comply with the trial court’s orders was finally punished under Rule 4:12(b).  The Supreme Court held that the trial court could bar the defendants from introducing evidence, but it could not prohibit them from cross-examining the witnesses against them, nor from introducing evidence on the issue of the amount of the plaintiffs’ damages.  The majority holds that the trial judge correctly found that a lesser sanction than default judgment was warranted, but it reverses the denial of the right to cross-examine and introduce counter damages evidence because “the sanction was too harsh.”  And the majority reversed the judgment and remanded for further proceedings on the damages question only.  Justice Powell, concurring in part and dissenting in part, pointed out that if these defendants were so bad, the trial court could lawfully grant a default judgment, but she emphatically asserts that the denial of the right to cross-examine was more than just “too harsh.”  She emphasizes that the right to cross-examine is a vital feature of our system of law, quotes Wigmore to the effect that “no safeguard for testing the value of human statements is comparable to that furnished by cross-examination,” and no statement should be admitted into evidence until probed by that test.  More importantly, she quotes Goldberg v. Kelly, 397 U.S. 254, 263 (1970), to that effect, and Basham v. Terry, 199 Va. 817, 824, 102 S.E.2d 285, 290 (1958), stating that the right to cross-examine is not discretionary, but is absolute. She cites Friend on Evidence in Virginia, 112 (2003 edition), and Food Lion, Inc. v. Cox, 257 Va. 449, 450, 512 S.E.2d 860, 901 (1999), emphasizing that only reversal and remand for new trial can follow the denial of this absolute right.

Late appeal allowed for GAL fee award made without notice - Gudino v. Gudino

APPEALS – APPELLATE PROCEDURE – EXCUSING PROCEDURAL DEFAULT – FEE AWARDS (AT TRIAL) – GUARDIANS AD LITEM.  We’ve all seen many short opinions wherein the appellant is out of luck because the incomplete Record supposedly leaves the appellate court with nothing to go on.  But in an unpublished opinion called Gudino v. Gudino, the Court of Appeals looks it all over, discusses much in careful detail, declares that “given the undeveloped state of the Record, we decline to address these issues for the first time on appeal,” and decides the appeal for – (Hang onto your hats.  The envelopes, please.) – the appellant.  How all of this comes about is a fascinating story, with many instructive points to note carefully, concerning Virginia appellate procedure, especially in rather hopelessly screwed up cases, but two points stand out: First, a large guardian-ad-litem fee award is reversed and remanded for more careful retrial.  Second, this is one of those appeals in which the wife was in procedural default because she didn’t make objections to that fee award before entry of the final order, but the “good cause exception” is applied by the Court of Appeals to excuse this procedural default.  The name Gudino is probably familiar because of the number of cases this couple had litigated in the Chesterfield Circuit Court, and the previous appeals from same.  In the child custody dispute a GAL was appointed, who got the responsibility for her fee apportioned in an unpublished opinion which affirmed.  But while that appeal was going on, she attended an evidentiary hearing that concerned support, attorneys’ fees and property division, but not custody.  During a recess she orally asked the circuit court to order fees to her for the custody case, and submitted a bill for both the juvenile court and the circuit court proceedings, of $39,978.62.  The judge wanted to make a decision on that fee award, but first wanted to examine a transcript, which it would take at least another 21 days to prepare.  He asked the GAL to submit a draft order re this fee award, with a Rule 1:13 waiver of counsel endorsement.  He got that draft order one week later, awarding her $42,866.12.  She sent the cover letter the same day with a carbon-copy notation that indicated copies to counsel, but not to the wife pro se nor to the counsel who had represented Wife in the custody case.  Six days before the end of the 21-day delay that had been forecast, the judge entered the Guardian-ad-Litem’s draft order.  Clearly wife, had she wanted to, would have been unable to note any objections to this fee award order.  She filed them later, but the order had (unknown to wife) already been entered.  Objections went not only to the amount, but also to the improper procedure used by the judge in considering it.  Then somehow someone scratched out the docket number of the custody case on that order and substituted the docket number of the support case in handwriting.  Wife then duly filed a Notice of Appeal to the support-case order, which now included the custody fee award.  Wife also amended her Notice of Appeal.  Because the circuit court had never ruled on any of the points the wife raised on appeal, the Court of Appeals directed the parties to address whether it should be summarily denied on procedural default grounds.  The present Court of Appeals opinion then goes into another explication of the Court “contemporaneous objection rule” for preserving issues for appeal, quoting its West v. West, 53 Va. App. 125, 131, 669 S.E.2d 390, 393 (2008) case that “not just any objection will do.  It must be both specific and timely – so that the trial judge would know...in time to do something about it.”  The appellate court seems to wring its hands and agonize a lot about whether it can possibly cure this obviously unjust situation, going over and over again what went on.  It does point out that, whatever sympathy one might procedurally feel for this now-pro-se wife, she did not file a Motion to Reconsider.  Nor did she “request a hearing to bring these objections to the court’s attention,” and it sternly pointed out that the wife has got to show the Court of Appeals “good cause” if the “ends of justice,” exception is to be invoked.  Wife indeed invoked both those exceptions, and the Court of Appeals, finding good cause and therefore able to ignore “ends of justice,” likens this case to its recent Flanagan v. Commonwealth opinion at 58 Va. App. 681, 694, 714 S.E.2d 212, 218 (2011), in which the litigant “did not have the opportunity to object.” With a lot of finger wagging that re-emphasizes its prior statements that these are narrow exceptions, to be used sparingly.  It clearly doesn’t like the crossout and substitution of the different case number, and says that “given the cascading series of missteps leading up to the twice-edited order, we believe good cause excuses wife’s procedural default.  Now, with a remand, she can address the merits as to the fee – upon which the Court of Appeals carefully states “we imply no opinion...except for [wife’s] assertion that admissible evidence must be offered in support of the fee request.”

Va. S.Ct. upholds very free speech critiquing wife's whoring

CRIMINAL-LAW ISSUES – “OBSCENE COMPUTER HARASSMENT” CONVICTION’S REINSTATEMENT – CONSTITUTIONAL AND OTHER PERMISSIBLE OBSCENITY DEFINITIONS? Few Virginia practitioners are likely to have forgotten the case of the cuckolded husband who, after letting his wife and a lot of her friends know exactly what he thought of her conduct after she advertised for sexual partners on Craig’s List, was convicted under §18.2-152.7:1 for computer harassment.  The Court of Appeals had sustained the conviction en banc in Barson v. Commonwealth, 58 Va. App. 451, 711 S.E.2d 220 (7/5/11), 31/3 FLN 11, after a panel had reversed it.  One learns a lot more about the en banc court’s reasoning from the dissent than the majority opinion, but it will be a lot easier to summarize what the Supreme Court did with this appeal, at Barson v. Commonwealth, __ Va. ___, ___ S.E.2d ___, 27 VLW 72 (6/7/12),  than it was for the dissatisfied dissenter to try to explain the majority’s reasoning and why it was erroneous, unconstitutional and totally unacceptable.  Re-reversing the conviction the Supreme Court patiently explains, following the overall rule that criminal statutes are to be strictly construed, that this criminal statute does not simply prohibit harassment by computer, but sets forth specific elements of the offense that have to be proved.  In a case like this one, those include not just use of a computer to communicate obscene language, but that it be done to coerce, intimidate, or harass.  The appellant was not arguing that this intent requirement wasn’t proved, but simply that his words, include “coke whore, baby-killing prostitute” were not obscene.  He had argued that they certainly weren’t obscene under the definition that the General Assembly had followed and approved.  The Court of Appeals had said that the statutory definition of “obscene” in Virginia Code §18.2-372 – which had been drafted in the shadow of the many explicit U.S. Supreme Court decisions striking down unconstitutional state statutes – didn’t have to be followed, because the courts, for purposes of sustaining convictions under the computer harassment statute, could go back to dictionary definitions of that word.  The Supreme Court simply points out that it is indeed the §18.2-372 definition of obscenity and the requirements of Miller v. California, 413 U.S. 15 (1973), and its progeny that control these prosecutions and this case, and that the Court of Appeals couldn’t lawfully substitute the dictionary definition for the one that the General Assembly has provided in order to respect the First Amendment and give citizens fair notice of when they would be committing a crime by their speech.  The Supreme Court went on to hold very specifically that the defendant’s e-mails to his wife, even if they were offensive, vulgar and disgusting, did not meet that §18.2-372 statutory definition.  Reversing, the Court did not remand, but entered final judgment vacating the conviction.  Senior Judge Russell, joined by Judges Goodwyn and Millette, wrote separately to emphasize two points.  They say that the Commonwealth was wrong in arguing that Allman v. Commonwealth, 43 Va. App. 104 (2004), is not binding precedent.  The concurring judges indeed, and apparently the Supreme Court majority does too, that panel opinions of the Court of Appeals, after the time for review en banc and for appeal has expired without there having been any modification by either appellate court, are binding legal precedent – apparently meaning binding upon the Virginia Supreme Court as well.  (A declaration that it might take some very fancy legal footwork to back away from if the Supreme Court should ever come to regret it, or question its universal wisdom).  The issues in this case become even more interesting in the Supreme Court’s disposition of the Court of Appeals holding in Rives v. Commonwealth, R. No. 11492 (June 7, 2012), 27 VLW 78. 

Obscenity still criminal when harassing or threatening - Va. S.Ct. in Rives case

CRIMINAL ISSUES – VULGAR THREATS TO EX-PARAMOUR – TELEPHONE CALLS – CRIMINAL HARASSMENT – OBSCENITY. Yea verily, the Court giveth and the Court taketh away, as lawyers who have just watched the procedural ping pong and the revolving-door opinions in the Barson case well know by now. However, practitioners definitely need to read carefully another opinion that the Supreme Court handed down the same day in the form of a “published order,” and sit down with both opinions and carefully compare them. In short, the Supreme Court majority not only showed that is it quite ready to sustain these kinds of convictions, but also said a number of very interesting things, as its opinion took some surprising turns. Mostly, the angry husband and ex-boy friend in Rives v. Commonwealth, 27 VLW 78 (6/7/12), was out of luck because at the time he made his ugly phone calls other law governed the definition of obscenity for the purposes of §18.2-427, and thus the Court of Appeals did not err in applying the (however un-constitutional) then-valid precedent to this case. (It does not help that the Virginia Lawyers Weekly appears to list it as a Court of Appeals order, but this is a published order of the Virginia Supreme Court, Record No. 111492.) The Supreme Court points out that it has invoked the “right result for the wrong reason” doctrine before, and here applies it with vigor and a vengeance. It does hold, or seems to hold, that the language Mr. Rives would have used violated §18.2-427 even if the 1973 test of Miller v. California, 413 U.S. 15, had been applied to the obscenity definition used to convict him of using “profane, threatening or indecent language over public airways.” When Rives broke off his adulterous relationship with a certain woman, here unnamed, her reaction was to call Rives’s wife, and he thereupon left a series of voice mail messages for the woman which likened her to a sexually active female dog, and threatened her with rape which he made clear would be unpleasant. The utterances were certainly both rude and crude and curious readers are referred to the Court of Appeals opinion for more specific detail. The Court of Appeals rejected his appeal in an unpublished opinion, but applied the U.S. Supreme Court Miller test, realized that communication had to have as its dominant theme an appeal to the prurient interest and not mere angry name-calling, and concluded that these calls met that Miller test. The evidence was sufficient to lead a rational fact-finder to conclude that such was its dominant theme. Section 18.2-427 at the time of this husband’s acts prohibited three kinds of conduct by phone when accompanied by the intent to coerce, intimidate or harass: obscene language, obscene suggestions or proposals, and threats of illegal or immoral acts. Thus any one of these is sufficient to convict a user of offensive speech. So the question of obscenity is immaterial, the Supreme Court majority says, since there was a threat to commit an illegal or immoral act, and the intent included intimidation or harassment. Justices McClanahan and Powell took no part in this case. And was there a dissent from this published Order? There certainly was. The majority’s three-verb disjunctive theory of the statute is all very well, the dissenters say, but the fact is that this accused was tried under a two-verb conjunctive standard, for no facts were in dispute at the trial, and the whole trial, as “only a legal issue,” was tried as a stipulation. Rives went to trial to defend himself on a theory, courtesy of the Commonwealth, that required proof of obscenity – lawfully and constitutionally defined. The dissenters do not waste a word, so it is best simply to quote them (Chief Justice Kinser, with Justice Lemons). “The ‘right result for the wrong reason’ doctrine cannot be utilized when a defendant is not on notice at trial to present evidence to rebut a particular method of proof articulated by the Commonwealth. Whitehead v. Commonwealth, 278 Va. 105, 115, 677 S.E.2d 265, 270 (2009). In the case before us, the parties stipulated that ‘the only issue presented at trial was a legal one, namely whether or not the language used by…Rives was both obscene and harassing, such that it would violate Code § 18.2-372. Based on that stipulation, the trial court found the language used by Rives ‘both obscene and harassing.’” *** “The stipulation makes clear that the Commonwealth was not pursuing a theory of guilt predicated on that portion of the statute making it illegal for a person to ‘threaten any illegal or immoral act with the intent to coerce, intimidate, or harass...over any telephone.’ Code § 18.2-427. Instead the Commonwealth’s theory was that Rives had used ‘obscene...language...with the intent to...harass.’ Id. Thus, Rives was not on notice to present evidence to rebut the charge of ‘threaten[ing] any illegal or immoral act’ with the intent to harass. Id. It is inappropriate, therefore, to apply the ‘right result for the wrong reason’ doctrine to affirm the trial court’s judgment.” *** “Although the language Rives used in the telephone messages at issue was rude, vulgar, and disgusting, I also conclude that it does not satisfy that definition.”