Virginia Family Law Appeals

One-signature deed between "Tenants by Entirety" is valid, but exception means don't do any more of them.

Generally, a tenancy by the entireties cannot be affected or compromised by anything that only one spouse does; and it ends only when both spouses sign a deed, or upon divorce or death. But when one spouse signs a deed transferring his whole interest to the other spouse, that will generally do the job, even without the other spouse's signature, the Virginia Supreme Court says in Evans v. Evans (6/4/2015). The only exception would be if the recipient does not do anything to accept the transfer, and the transfer would be against the recipient's interest -- for example, if the transfer makes the property vulnerable to the recipient's individual creditors, the Court says.

In this case, the Court says, the signing of the deed shows the husband's intent; and the wife showed her acceptance of the transfer by signing a will, a deed and a trust which treated the property as her sole property and conveyed it. The trial court's declaratory judgment that the property did not belong to the wife's trust is reversed, and the Supreme Court issues a final judgment declaring that it is the trust's property.

Such one-party deeds to a couple's tenancy by the entireties real estate have been extremely common, especially since multi-state banks were legalized, and banks based out-of-state started demanding "quitclaim" deeds, which in Virginia are the weakest, most unreliable kind of deed. It is fortunate that the Supreme Court did not invalidate the chain of title to virtually every property that was ever transferred in a divorce.

However, because the Court noted the exceptional circumstances where the deed might be disregarded, that means that we should always have deeds in divorce cases signed by both parties. The Court's ruling is completely reasonable, but it would probably be better to be more simple and absolute, and not so reasonable. Without an absolute rule that such deeds are always valid, no title insurance company will want to see any more new deeds that are "almost certainly valid but maybe not in certain situations." The whole system of deeds and land records is designed to make public records that make the ownership of every piece of real estate absolutely clear and reliable. And most law on deeds is designed not only to do justice between the two parties, but to give everyone else certainty about who owns what. So let's pause to appreciate this finely nuanced ruling, and then proceed to never again do what it allows.

Evidence of stated intention beats presumption that will revoked when original missing - Va. S.Ct.

A widow was properly allowed to probate a photocopy of a will whose original could not be found, even though there is a presumption that a will was revoked when the original disappeared while in its author's possession, the Virginia Supreme Court says in Edmonds v. Edmonds, 6/4/2015. To overcome that presumption, the proponent -- the person who seeks probate -- of a missing will must prove, by clear and convincing evidence, that the testator did not destroy the will with the intention of revoking it. The deceased's will left everything to his current wife and daughter, and nothing to his son from an earlier marriage. He had repeatedly, unequivocally, consistently that that both those things were his intention. There was no evidence of his changing his mind, nor of anything that might have changed his mind.

Mother who lost custody to father must pay ordered child support even if he owed arrears

A mother can still be held in contempt for not paying child support, even if she were owed a support arrearage by the father from before custody was transferred to him, the Virginia Court of Appeals says in Wilson v. Britton (unpublished 9/15/15).

The trial court and the Division of Child Support Enforcement had found that the father did not owe any unpaid child support at the time that custody and child support were transferred to him.

And even if, as the mother claimed, he did owe, and even if the father's court-ordered child support obligation still existed, "mother's child support obligation nonetheless still exists."

Mom's focus on feelings & needs supports terminating her rights via narcissist diagnosis, non-improvement prediction

For a generation or two, everyone, especially women, has been urged to get in touch with their own feelings and needs. But don't overdo it. In a case with abundant evidence for termination of a mother's parental rights to seven of eight children under 13, one part of that evidence, cited by the Court of Appeals, predicts the future based on a diagnosis:

Dr. A.J. Anderson, a psychologist, evaluated mother and determined she is excessively self-focused and preoccupied with her own needs and feelings to the extent that it likely prevents her from giving adequate attention to the needs and feelings of others. Dr. Anderson also concluded that mother has narcissistic characteristics that limit her response to interventions. He opined that mother is not likely to “self-correct or be open to constructive criticism.” Dr. Anderson stated that individuals diagnosed with mother’s personality disorders often do not change considerably over time, even with treatment.

From the opinion it looks like the mother did not challenge the admission of that testimony, or its use as a reason for termination. Also, it was not a generalization or prediction made in a vacuum; all of it was consistent with the mother's existing behavior.

Robinson-Miles v. Danville Division of Social Services (Va. Ct. App. Unpublished, 9/15/2015)

Video of child's sex accusations admissible; continuance claim waived by opposing later continuance.

A father cannot appeal a termination of his parental rights based on the trial court's denial or his continuance request, the Virginia Court of Appeals says, because (1) later in the trial the Department of Social Services asked for a continuance and the father opposed it, and thus "waived his argument" about denial of his earlier continuance request, and also, (2) the trial court later continued the case for other reasons, so the father had plenty of time to question witnesses and present evidence and argument.

A videotape of the child's statements was properly admitted into evidence because the father got adequate notice and him lawyer saw it before trial and was able to prepare for it, the Court says, citing Va. Code Sec. 63.2-1523.

The father also said the Circuit Court erred by admitting the child's statements to her therapist into evidence. That court had excluded them, finding them inadmissible under Va. Code Sec. 63.2-1522, but then admitted some of them on redirect examination of the therapist. Assuming, not deciding, that they were inadmissible, the Court says it was harmless error because the statements were repeated by the same declarant in evidence that was properly admitted, the video tape.

The Court quotes the relevant parts of these Code Sections:

Under Code § 63.2-1522(A), “an out-of-court statement made by a child . . . describing any act of a sexual nature performed with or on the child by another . . . may be admissible in evidence if the requirements of [Code § 63.2-1522(B)] are met.” Code § 63.2-1522(B) provides that the out-of-court statement may be admitted if the child is unavailable to testify, Code § 63.2-1522(B)(1), and the “statement is shown to possess particularized guarantees of trustworthiness and reliability,” Code § 63.2-1522(B)(2).

A statement may not be admitted under [Code § 63.2-1522] unless the proponent of the statement notifies the adverse party of his intention to offer the statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses.

Code § 63.2-1522(C).

Similarly, Code § 63.2-1523 applies to videotaped statements made by a child alleging abuse or neglect. As with Code § 63.2-1522, Code § 63.2-1523(C) provides:

A recorded statement may not be admitted under this section unless the proponent of the statement notifies the adverse party of his intention to offer the statement and the substance of the statement sufficiently in advance of the proceedings to provide the adverse party with a reasonable opportunity to prepare to meet the statement, including the opportunity to subpoena witnesses. 

Morman v. Richmond DSS, unpublished, 9-8-15.

Don't make a federal case out of your kids' custody, or jealously try to control ex's choice of lawyer - Barrett v. Minor

Those crank cases where someone with a family law or small-claims dispute sues everyone involved, including the judge, usually don't get publicized. This one, from the U.S. District Court for the Western District of Virginia, appeared in Virginia Lawyers Weekly, probably because in disposing of the case, the court ruled on a couple legal issues that it thought not everyone might be clear on.

 Plaintiff lost a custody case with his ex-wife and claimed that that result, and various Virginia laws on child custody, and things that various Virginia judges had done, were unconstitutional. He also sued on behalf of his two children as co-plaintiffs, making a habeas corpus claim that they were being held in the mother's custody due to an unconstitutional decision. He then conceded that the federal law does not allow habeas relief in this situation, but he asks to amend his complaint to pursue a habeas claim under state law, and to have the federal court exercise "supplemental jurisdiction" over the state law claim since it was already hearing his federal case. The court declined to exercise such jurisdiction over the state law claims. It granted a motion "to dismiss or abstain" for lack of subject matter jurisdiction, but did so without prejudice.

The plaintiff also claimed that the mother's new husband should not be allowed to serve as her lawyer in the federal case. The court denied his motion. It said that on the question of whether the husband could be both a lawyer and a witness, it did not have to decide that issue because there was not going to be a trial. Barrett v. Minor (USDC W.D.Va. 8-31-15).