Virginia Family Law Appeals

Arguments preserved for appeal without formal objection

In Coalson v. Coalson, unpublished, 7/21/15, about the required proof of cohabitation in order to terminate alimony (see case note posted on this blog on 7/31/15) the Court of Appeals also says:

Code § 8.01-384, however, provides that "[f]ormal exceptions to rulings or orders of the court shall be unnecessary . . . . [I]t shall be sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor."

In the present case, when discussing appellee’s motion to strike, appellant argued to the trial court that it should deny appellee’s motion to strike because appellee and Aliff “shar[ed] one residence” and had “an intimate, romantic” relationship. Additionally, appellant pointed to the facts that Aliff “has a key,” “has . . . a section in the closet for his clothes and shoes,” “buys groceries,” “vacuums, . . . does dishes, . . . cooks, . . . pays for meals,” and “does chores.” In concluding, appellant argued that appellee’s motion to strike should be denied because appellee was trying to “get around [Code § 20-109 by] say[ing] it’s not . . . cohabit[ation] – or it’s not a relationship analogous to marriage . . . .”

Accordingly, because appellant made known the action that he desired the trial court to take and the reasons therefor, the issue is preserved for appeal under Code § 8.01-384 despite the lack of a formal objection. 

The governing rule is stated as:

Rule 5A:18 provides, in relevant part, that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” “Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial court has ‘an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010) (quoting West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)). 

“Under settled principles, the ‘same argument must have been raised, with specificity, at trial before it can be considered on appeal.’” Johnson v. Commonwealth, 58 Va. App. 625, 637, 712 S.E.2d 751, 757 (2011) (quoting Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004)). “‘Making one specific argument on an issue does not preserve a separate legal point on the same issue for review.’” Id. (quoting Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc)). 

 

Assault conviction was "domestic violence" making firearms possession illegal -- US 4th C

The federal 4th Circuit Court of Appeals offers guidance on what exactly is a "domestic violence" misdemeanor conviction which makes it illegal to possess firearms under 18 U.S. Code §921(a)(33)(A) and §922(g)(9), in U.S. v. Vinson (7/21/15). The decision turns on the the fact that common-law assault in North Carolina can include several forms, including what is more commonly called assault & battery, and whether what he was convicted of was a charge which "categorically" would always constitute domestic violence. The Circuit court adopt's the government's "modified categorical approach" which establishes that in Vinson's case, the conviction was for domestic violence. It cites the charging document which makes clear that the victim was the defendant's wife, and the conviction judgment which states the exact acts that constituted assault in this case. A dissenting judge says that the majority is essentially taking a very wide crime that includes things that are and are not domestic violence, and claiming that it is functionally divisible into separate crimes, merely because that the charging and convicting documents in this case describe acts that qualify as domestic battery.

 

For more insight: 

Divided panel vacates dismissal

U.S. judges to decide whether man who hit wife can keep gun, stemming from local case

Alimony can be based on accustomed living standard & other factors, not just making ends meet

Virginia's Court of Appeals upheld an alimony award of $1,200 a month for five years in Eskridge v. Eskridge (unpublished, 7/21/15). The wife had testified that on the current $500/month alimony she could "hardly make ends meet". The husband pointed out that that meant that she could make ends meet on $500. But the Court says that that "misconstrues the purpose of spousal support", because $500 "was insufficient to maintain her in the standard of living to which she had grown accustomed."

(Comment: That is a statutory factor that may be considered, but not a universal rule, at least so far. The husband's ability to pay should also be relevant.)

The Court also notes that the trial court properly made fact-findings on several statutory factors, including: the fact that at the time of separation, the husband's annual income was $99,000 and the wife's was $40,000;  that that happened because the couple originally worked together and made close to the same salary, but when they married in 2002, they agreed for the wife to quit her job as the agency had a policy against married couples working together; the husband having more retirement assets even after equitable distribution (for some reason the wife was only awarded 45% of the marital share); and non-economic contributions to the family's well-being, including the wife's helping raise the husband's son from an earlier marriage.

The appeals court did not make a fee award.

Future contingent alimony increase upheld, but without ruling on if that's allowed.

The Va. Court of Appeals affirmed an order that a wife's alimony would increase when the couple's former home sold. However, in doing so it did not consider whether this was an impermissible "automatic increase upon the occurrence of a future event", because it said the husband did not make that argument to the trial court.

Neubert v. Neubert, unpublished, 07/21/2015