Virginia Family Law Appeals

Even in family court, ruling without hearing evidence is unconstitutional - Va. Ct. of App.

A Circuit Court Judge went too far, too fast, by announcing his ruling based on his knowledge of the case in earlier years and possible review of the file, and a Guardian Ad Litem's presentation, without letting the petitioner present evidence. (The respondent did not even try to present evidence.) A mother whose child had been placed for adoption, with an aunt, filed for visitation, but the judge discontinued the trial in the middle of the mother's presentation of evidence, in order to go to hear another case in another county. Despite repeated requests from counsel, a hearing to conclude the case was not set for nearly two years, and the judge said at the beginning of the hearing, after hearing from the Guardian Ad Litem, that the mother could not have visitation because she had now gone too long without it. The Court of Appeals holds that it was error to deny the visitation, and grant the final adoption, without hearing all the evidence. Gregory v. Martin, 9/16/14 (unpublished).

Child name change must benefit child, not parent: Va. Supreme Court

Virginia's Supreme Court upheld the denial of a father's petition to change his out-of-wedlock's child's last name to his own. The child had the mother's maiden name and the mother had married, so that the child's last name was not shared with either parent. The father claimed that this made the standard from Spero v. Heath, 267 Va. 477 (2004) not applicable. However, the Court found that the father complained only of minor inconveniences to himself, not actual detriment to the child, from the child's existing name, and "the controlling standard remains the same - - that the petitioning party must prove by satisfactory evidence that the change is in the child's best interests." McMahon v. Wirick (9/12/14).   

Living rent-free isn't gift or income for child support purposes: Va. Ct. of App.

"Although “the statute defines gifts as income,” Howe, 30 Va.App. at 214, 516 S.E.2d at 244, allowing someone to live with you is not a “gift.” “A gift is property that is voluntarily transferred to another without compensation.” Goldhamer v. Cohen, 31 Va.App. 728, 736, 525 S.E.2d 599, 603 (2000) (citing Black's Law Dictionary 696 (7th ed.1999)). Here there is no property being transferred."

- Otey v. Branch, Va. Ct. App. Record No. 1857–13–2 (9/9/14) - published

The Court distinguishes this case from Carmon v. Department of Social Services, 21 Va.App. 749, 467 S.E.2d 815 (1996). In that case, free housing was received in exchange for certain services, and was therefore income.

Personal injury settlement lump/annuity presumed not income for child support purposes

A personal injury settlement, even if all or partly paid as an annuity instead of a lump sum, is not income, for support purposes, except to the extent that the award or settlement categorized all or part of it as for lost wages, instead of compensation for past injury, the Virginia Court of Appeals says in Otey v. Branch, Va. Ct. App. Record No. 1857–13–2 (9/9/14) - published. The burden of proof is on the other party to show that an award is income-producing, not just a structured payout of funds that were intended to make the recipient whole.

 

Payor "was awarded lifetime monthly payments of $1,000 as well as four $100,000 lump sum payments that were made in 1997, 2002, 2007, and 2012. The circuit court found that Branch's personal injury settlement annuity was excluded from being considered part of her gross income. Relying on this Court's decision in Whitaker v. Colbert, 18 Va.App. 202, 442 S.E.2d 429 (1994), the circuit court reasoned that because the settlement itself was not apportioned as to loss of income or lost wages, an annuity stemming from that settlement was not intended to be included in the statutory definition of gross income.

. . . 

This Court has previously considered whether personal injury settlements are “income” within the scope of Code § 20–108.2(C). In Whitaker, this Court upheld a circuit court's refusal to treat a father's personal injury settlement as income. 18 Va.App. at 204, 442 S.E.2d at 431. This Court reasoned that because the definition of “gross income” includes “capital gains,” and “capital gains are by their nature profits, not returns of capital,” the General Assembly intended that Code § 20–108.2(C) only “applies to income, not capital recoupment.” Id. at 204–05, 442 S.E.2d at 431 (emphasis added). In the case of personal injury settlements, the evidence must prove that the settlement generates income or profit rather than merely makes the recipient whole from damages incurred. Id. Because the father's settlement was not apportioned as to pain and suffering, permanent injury or disability, lost wages, lost capacity, or future medical needs, “it would be speculative at best as to how to attribute any part of that settlement to prior lost wages as opposed to the other elements of damages.” Id. at 205, 442 S.E.2nd at 431. Consequently, the Whitaker Court held that in that particular case, the evidence did not prove that the settlement generated income for the father and was not mere capital recoupment and therefore the settlement could not be considered in awarding child support obligations.

Oley argues that because Branch receives her personal injury settlement in the form of an annuity, Branch's payments are “income” under subsection (C). The definition of “gross income” contained in Code § 20–108.2(C) specifically includes “income from ․ annuities.” The plain language of the statute requires that in order to be considered when calculating child support obligations, annuities—or any of the other enumerated items in Code § 20–108.2(C)—must generate income to the recipient.

Dispersing Branch's personal injury settlement in the form of an annuity does not change the underlying character of the source—a personal injury settlement. Consequently, the mere fact that Branch receives her personal injury settlement in the form of an annuity does not render our holding in Whitaker inapplicable. This Court's holding in Whitaker does not stand for the proposition that personal injury settlements are categorically excluded from being considered income under subsection (C). Rather Whitaker explains under what circumstances a personal injury settlement may or may not be considered income. In order for a personal injury settlement to be considered income pursuant to Code § 20–108.2(C), the evidence must prove that a defined portion of the settlement generates income to the recipient rather than merely compensates for a past injury.

In this case, like in Whitaker, Branch's settlement is not apportioned as to the nature of the damages that involve the settlement. There is nothing in the record that indicates that the settlement involved compensation for lost wages or lost income—particularly in light of the fact that Branch was a minor at the time of the accident. The circuit court concluded that Branch's settlement payments, even if paid out over many years in the form of an annuity, were capital recoupments intended to make “a badly injured child whole.” The record supports the circuit court's determination that the evidence did not prove that the annuity payments generated any income to Branch. Therefore, the circuit court did not err in excluding Branch's personal injury payments when computing her gross income pursuant to Code § 20–108.2(C) simply because they took the form of an annuity.

 

College financial aid grant is income for child support calculation - Va. Ct. App.

Otey v. Branch, Va. Ct. App. Record No. 1857–13–2 (9/9/14) - published.

 

Adultery proof unconvincing for divorce grounds, but rightly considered for property division

 A divorce court was within bounds in concluding that a wife who shared an apartment with a friend might not be committing adultery with him, Virginia's Court of Appeals says in Kidd v. Kidd. The husband said the wife had admitted the adultery, but she denied that and the trial court apparently did not believe him. The wife claimed she lived with the friend primarily so he could care for her during her cancer treatments, which the husband refused to do. The other man's wife claimed they were committing adultery, but it was not clear that she was an authoritative witness. 

But, the Court says, evidence which is not enough, under Virginia's high standards of proving and corroborating a divorce case, can still be used under the lower, more commonsensical standard for determining the behavior-related factors in property division:

The law permits the circuit court to find that a spouse has failed to meed the higher burden of proof as to the basis for the divorce, but to consider adulterout behavior as proved insofar as it related to the equitable distribution determination.

Under this standard, though, the Court upholds the 50-50 division of property, because while it was proper to take the adultery into account, that adultery was from before the couple reconciled and the husband "condoned" the adultery, and the only sign of an affair that was after the condonation, but before the final separation, was the husband's testimony.

The Court also upheld an alimony award because the wife made $34,000 and the husband made $78,000, and the wife had some medical conditions and had trouble paying her bills. The friend and the wife's father continued to support her financially, but rather than hurting her case, that was cited as evidence of her need.

Mom loses visitation while adoption pending; appeals court explains why in Murray v. Sensabaugh,

The recent case of Murray v. Sensabaugh denies a "biological" mother any presumption in favor of her versus a prospective adoptive couple, because she had "abandoned" the child and "voluntarily relinquished custody" to the couple. Thus it evaluated whether her visitation should continue without any presumption, but solely based on the child's best interest, and found "clear and convincing" evidence in favor of terminating the mother's visitation The opintion lists some facts that justified this: 

• Before the couple sought custody, she and another person regularly brought the child to them dirty, unwell, injured and/or hungry; asked the couple for money; and often drove the child wihtout a valid driver's license.
• The couple claimed she posed "scantily clad" and holding weapons for "vulgar photos" used on "a commercial web site."
• She posted online that her job was "selling sex toys".
• The child called her by her name, not "mom".
• When court-ordered to take a parenting class and get a driver's license, she took a year to take the class and longer to get the license.

The mother also appealed the denial of her "motion to strike" the adoption petition, and the court refused to hear the appeal because what the mother chose to appeal was not a final order;  the adoption itself was still pending at the time of the denial of the motion to strike, and the judge had referred the case to the DSS for home studies and a report.