Virginia Family Law Appeals

No cohabitation where live-in boyfriend had another home

Virginia's Court of Appeals upheld a trial court's refusal to terminate alimony based on cohabitation in a case where the boyfriend in an exclusive, romantic relationship, does the following at the ex-wife's house:

• Spends 4 or 5 nights a week, according to the ex-wife
• Parked his truck long-term while awaiting repair
• Spent family holidays
• Pays some expenses
• Has a key
• Has a part of the closet for his clothes
• Keeps clothes, shoes and hygiene items there when he's there
• Buy groceries
• Cooks, does dishes, vacuums, mows, does trash, does his laundry, and other chores
• Stores ten boxes of his stuff in her garage
• Never was seen carrying luggage when leaving or arriving

The couple also testified that they vacationed together and visit each other's families.

But:

• Ex-wife testified that he lives with his son and another roommate
• No evidence that he keeps personal items necessary for daily living, such as toiletries, there, when not spending the night.

Therefore, the evidence "does not establish that wife's house was the boyfriend's primary residence," nor that they "shared a common residence". Therefore, the ex-husband did not prove cohabitation "in a relationship analogous to marriage" and his motion to terminate alimony was properly denied.

Coalson v. Coalson, unpublished, 7/21/15

Leaving child with mother, who was likely to leave too, was child neglect - Va. Ct. App.

A father's conviction for "contributing to the delinquency of a minor" -- a misleading shorthand term for Virginia Code §18.2-371, which also includes child neglect -- was upheld by the Virginia Court of Appeals based on his lack of credibility and his own statements indicating that he thought the mother might leave a hotel room, too, when he left first during a "volatile situation" with the mother. At least in the Va. Lawyers Weekly summary of the case, it is not debated, but rather is assumed, that if he left under those circumstances, he violated the statute. Their two-year-old was later found wandering around the hotel early in the morning wearing only a diaper.

This decision makes things very hard for parents who decide to leave the premises to prevent an imminent domestic violence situation, unless they are able to take their children with them. Which may increase the likelihood of violence in such a situation.

Brown v. Commonwealth, (Va. Ct. App. unpublished, 07/21/2015)

 

Liberty University's insurer needn't defend it in civil suit for anti-gay child abduction & advocacy - US Appeals Court

The federal Fourth Circuit court of appeals has reversed a trial court ruling that had said the University's insurance company should have defended it against a civil suit for the role its employee played in the international child abduction in the Miller-Jenkins case between Vermont and Virginia. A Vermont lesbian couple broke up and the partner who was the child's natural mother took her to Virginia and claimed that since Virginia would not recognize the couple's Civil Union under its Defense of Marriage Act, it should not recognize the other woman's parenthood and should not enforce a role for her in the child's life. This argument failed, going all the way to the Virginia Supreme Court, and a network of Christians who conscientiously objected to the state having the power to make a non-parent a parent (at least in a gay relationship) helped the mother flee to Nicaragua with the child.

The insurer was not required to defend the suit because the insurance policies have exclusions for:

• any harm that was “expected or intended from the standpoint of the insured”
• injuries “arising out of a criminal act committed by or at the direction of the insured.” 
• any “‘[p]ersonal and advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury’” 

The Court continues:

"Critically, unlike the underlying complaints considered in the cases cited by the district court, the Jenkins Complaint does not allege that Appellee was responsible for its agents’ intentional acts because it was negligent. Rather, the Jenkins Complaint alleges that Appellee is directly liable for harm arising from its intentional participation in conspiracies and vicariously liable for the intentional acts of its agents."

Something that should be very disturbing to any family-law attorneys, law professors, to anyone who has advocated civil disobedience of what they believe to be unconstitutional laws and directives, and to any lawyers who defend people in controversial cases that pit various kinds of human right against each other, is this:

The Jenkins Complaint also asserts that Appellee was vicariously liable for the role Hyden played in the kidnapping, for its agents’ racketeering, and for its agents’ participation in a conspiracy to violate Jenkins’s and the child’s “rights to a parent-child relationship.”

In particular, the Jenkins Complaint charges that Miller retained the dean of Liberty University School of Law, Mathew Staver, and one of the school’s professors, Rena Lindevaldsen, as her attorneys. As alleged, Staver and Lindevaldsen encouraged and assisted Miller in violating state court orders, established social media forums soliciting donations to groups that aimed to “prevent court ordered contact” between Jenkins and her daughter, and planned with other co-conspirators to kidnap the child. 

...

The Jenkins Complaint further alleges that Staver and Lindevaldsen “routinely instructed their Law School students that the correct course of 7 action for a person in . . . Miller’s situation would be to engage in ‘civil disobedience’ and defy court orders.” Id. at 45. As such, “Liberty University encouraged its agents to disregard state laws governing parental rights . . . of same-sex families.” 

Based on these facts, the Jenkins Complaint alleges that Appellee was directly liable for its involvement in the kidnapping scheme and, at the same time, vicariously liable because it “promoted, condoned and explicitly ratified its agent[s’] tortious, racketeering activity.” 

So, in several respects, the underlying lawsuit was a blatantly unconstitutional, Un-American "SLAPP" suit -- a "Strategic Lawsuit Against Public Participation." But it is hard to distinctly say that it actually stands on its own as such a suit, because it also includes what sound like very legitimate claims that should have been redressed: the same people named in the lawsuit for their academic work, and legal and political advocacy, were also alleged to have done very concrete things, which they should have known were illegal, to help the mother sneak the child out of the country to prevent the other mother from visiting with her. Even though they honestly believe that the other mother is not a real mother, had no rights, and that the government violates parents' rights, and gains dangerous and unprecedented power, when it decrees that a non-parent is a parent and that the biological father is not a parent (except in cases where it is required by the child's needs because of child abuse or neglect). 

The suit against the University was dismissed, but the immediate effect of this ruling is that the insurance company will not have to reimburse the University for its legal fees and costs in that suit.

LIBERTY UNIVERSITY, INC., v. CITIZENS INSURANCE COMPANY OF AMERICA; HANOVER AMERICAN INSURANCE COMPANY; HANOVER INSURANCE COMPANY, published, U.S. Fourth Circuit, Case No. 14-2254 (July 10, 2015).

More background on the case:

The real story behind Miller-Jenkins

 

Pastor Charged in Parental Kidnapping in Miller-Jenkins Gay Custody Case - NYTimes.com

 

Fathers' group explains its support for gay parents' custody rights

“We must discern the meaning of ‘present’.” -- Va.Sup.Ct. on @#$% drafting nightmare in shoreline case

“We must discern the meaning of ‘present’,” the Virginia Supreme Court says, construing a 1936 road easement that ran “along present mean high water” level. Did the easement in White Marsh Beach, Hampton, move as the shoreline moved, or did it stay where it was, and sink beneath the waves?

 The damnable slipperiness of the terms “current” and “present” epitomize the difficulty of legal drafting, of trying to use words to reach across time and impose a coherent will on a changing world. Do these words mean at the time the words are written, signed, ratified or legislated?  Or at the time when they are read, interpreted, applied? I and other lawyers struggle with that in family law, and so did the property lawyers, judge and justices in Marble Technologies, Inc. v. Mallon (6/4/15). 

A deed, with a map attached, reserved a road easement “Along Present Mean High Water.” It also gave precise compass points for one end of the road and a slight bend in it, and referred to a stake marking one end.

The Court resorted to Webster’s Dictionary, which defined “present” as “now existing or in progress: begun but not ended: now being in view, being dealt with, or being in consideration at this time: not past or future: contemporary.”

And especially since there were fixed “metes and bounds” and a fixed point involved, there was no ambiguity, and no indication that the easement was moveable, Justice Goodwyn wrote.

So the Court reverses the Circuit Court’s decision that the easement moved. And it finds that the easement is extinguished because it cannot be used for its original purpose, as a road, as it is now under the Chesapeake Bay.

Despite statute, almost any support appeal must be dismissed if no arrears bond posted

A father who appealed a juvenile court’s refusal to modify spousal support, but who did not contest the amount of arrears that court said he owed, still must have his appeal dismissed for lack of jurisdiction for his failure to post a bond for the arrears of over $24,000, Virginia’s Court of Appeals says in Forte v. Commonwealth (06/09/2015).

Va. Code §16.1-296(H) says a bond is not required when appealing from juvenile court, “except for that portion of any order or judgment establishing a support arrearage or suspending payment of support during pendency of an appeal.” Since the father did not challenge “that portion” of the order, and since he probably did not have $24,000, he did not post a bond.

The Court of Appeals reviews and summarizes its existing case law on the application of this statute. It says the appeal “must make clear to the court that his appeal does not challenge the support arrearage”, and it concedes that the father in this case did so effectively. However, the exception cannot apply “if the arrearage is intrinsically and logically related to the issue appealed.” For example, if the issue is the timing of a change in support, or if the issue is the amount of support (at least in cases where the modification is retroactive to some point before the date of the order), then the arrearage amount is bound to be change if the lower court’s order is changed on appeal. This is especially true, the Court points out, now that Code §20-60.3 requires all support orders to state the amount of any arrearage. It quotes Sharma v. Sharma, 46 Va. App. 584, 620 S.E.2d 553 (2005): "Even if appellant chose not to pursue the arrearage issue, arrearage is so intertwined with the increase in child support, the circuit court, by necessity, must address the arrearage."

And since the Circuit Court has no jurisdiction over an appeal when a required bond is not posted, the appeal must fail for lack of jurisdiction.

Vague alimony agreement can be translated into a fixed dollar amount

Although written agreements on spousal support in Virginia are binding and inviolable, and can only be changed in such ways as they themselves provide, or under the termination statute, nevertheless, the Court of Appeals says, a Circuit Court can order a fixed monthly amount of support as a way to compel compliance with written agreement that said:

"The husband shall support the wife in the manner to which she is accustomed and is currently being supported, recognizing the need for her to educate and nurture [their child]."

The trial court used this agreement to establish the fixed dollar amount of monthly spousal support that would enable the wife to maintain the pre-separation lifestyle as per the agreement.

The appeals court said that that did not violate, and in fact carried out, the statute that deals with divorce agreements about spousal support ,Virginia Code § 20-109(C):

§ 20-109(C). In suits for divorce, annulment and separate maintenance, and in proceedings arising under subdivision A 3 or subsection L of § 16.1-241, if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract. If such a stipulation or contract is filed after entry of a final decree and if any party so moves, the court shall modify its decree to conform to such stipulation or contract.

The Court of Appeals upholds the trial court's power to make an order effectuating the agreement while differing from it by having a fixed amount; and also also approves of the particular method the trial court devised for translating this language into a fixed amount, which involved looking at the amount of support the wife was receiving at the time the agreement was signed.

DeLuca v. DeLuca (unpublished, 5/19/15) VLW 5-25-15, p 17

Conflict of interest kept managers from suing, but didn't “equitably toll” statute of limitations

A conflict of interest that allegedly prevented a lawsuit from being brought does not “equitably toll” a statute of limitations, Virginia’s Supreme Court says in Birchwood-Manassas Associates LLC v. Birchwood at Oak Knoll Farm, LLC (6/4/15). The plaintiff argued that the conflict was an “extraordinary circumstance”, which the Supreme Court has said can justify equitable tolling. (Brunswick Land Corp. v. Perkinson, 153 Va. 603, 608, 151 S.E. 138, 140 (1930)). Earlier cases of equitable tolling were suits that had been prevented from timely filing by fraud, or by some affirmative act of the Defendant. But neither of those was alleged in this case. And “Affiliated entities having overlapping management and the occurrence of transactions between such entities are not extraordinary occurrences.” Also, there were other parties available who could have sued on the claims before the statute expired, and one of them did in fact sue on a similar claim. There was no legal disability which “as a matter of law” kept a suit from being filed, and no “extraordinary circumstance which could not have been avoided by the exercise of due diligence.” So the clear rule seems to be that a conflict of interest does not toll the statute, but the additional circumstances the Court cites might lead to a different result in a case where they are different.

No appeal fees/costs award against appellee whose advocacy of lower court's ruling not "so egregious"

The Court of Appeals decides not to award any fees or costs for the appeal to a successful appellant, because "husband's advocacy in support of the circuit court decision" was not "so egregious as to warrant" such an award, In Miller v. Green, unpublished (6/23/15), summarized earlier in our posting, "Terminating cohabitator's alimony requires court filing, can't be retroactive to before filing."

 

Terminating cohabitator's alimony requires court filing, can't be retroactive to before filing

 Alimony can terminate when the payor proves the payee has habitually cohabited “in a relationship analogous to marriage” for a year, under Va. Code §20-109(A) and the identical language widely used in Separation Agreements, but only if, and when, the payor files a court case seeking termination, the Court of Appeals reiterates, reversing a trial court that had modified support retroactively to a date before the termination case was filed.  Va. Code §20-112 clearly forbids any retroactive modification, the Court says.

 The ex-husband argued that when he saw objectively verifiable clear and convincing evidence of the cohabitation, that evidence terminated the alimony under the terms of the Code and the Separation Agreement. But “The ‘clear and convincing’ burden is not met by convincing oneself, but  by convincing a court”, Judge AtLee writes in  Miller v. Green, unpublished (6/23/15).

No-show waives appeal right in case appealed from Juvenile to Circuit Court

A father who appealed his parental rights termination from Juvenile to Circuit Court, but skipped the trial of his appeal, can be treated as waiving the right to appeal, when he had been involved in the litigation and presumably knew of his upcoming trial date, but then moved to Texas three weeks before it, the Va. Court of Appeals says.

The deciding rule is from Va. Code § 16.1-106.1:

D. If a party who has appealed a judgment or order of a district court fails to appear in circuit court either at the time for setting the appeal for trial or on the trial date, the circuit court may, upon the motion of any party, enter an order treating the appeal as withdrawn and disposing of the case in accordance with this section.

There is no indication that this being a termination of parental rights case makes the rule any more or less strict than in any other juvenile-court appeals falling under this statute on “Withdrawal of appeal in civil cases.” However, the Court cites the three years the child had already languished in foster care, as well as the father’s conduct in the litigation and his sudden move, as reasons why the Circuit Court was right to use its discretion to find that the father had voluntarily “withdrawn” his appeal when he did not show up for it.

Blake v. Norfolk DSS (unpublished, 5/19/15) VLW 6-1-15 p 16