Virginia Family Law Appeals

Imputing recent income to imprisoned support payor not "speculative." - Va. Ct. of App. in Niblett case

Virginia's Court of Appeals once again favors imputing income to an imprisoned parent, this time reversing a trial court that decided otherwise, in Niblett v. Niblett, published, 12/15/15. 

The trial court had found that the father was "voluntarily unemployed" as a result of his voluntary criminal acts, but held that even so, the 1995 case of Donnell v. Donnell, 20 Va. App. 37, barred imputation against an imprisoned felon as "premised upon the occurrence of an uncertain future circumstance". In that case, like this one, the payor was convicted of sexual conduct with minors in his home, and imputation of his previous level of earnings was sought. That "would be speculating as against the requirements of the Jacobs[ v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979),] and the Payne[ v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987),] case[s].”, the trial court ruled.

But there was evidence of recent past earnings, and the trial court was required to look at it as evidence of current earning capacity, the appeals court says. This is not speculative, because "we are not concerned with what the father might earn upon his release from incarceration. Rather, we are concerned with what the father would have been earning on the date of the hearing but for his voluntary unemployment." 

This opinion also quotes a useful standard for proving abuse of discretion:

An abuse of discretion . . . can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.

Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (alteration in original) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

Still, the ultimate result in this appeals court opinion is remand, as in Donnell:

although the trial court must consider each of the statutory factors for which evidence is presented, the weight, if any, to give any particular factor in the overall decision lies within the trial court’s sound discretion. Robbins, 48 Va. App. at 481, 632 S.E.2d at 622. Thus, we do not hold that the trial court must deviate from the presumptive guidelines because of the income imputed to father. Rather, we hold that the trial court erred in failing to first consider recent past earnings to calculate the amount of income that should be imputed to father because of his voluntary unemployment. After considering the evidence and the factors, the court may add “‘a just and appropriate amount [to] the amount reflected in Code § 20-108.2,’ accompanied by the requisite written findings,”7 Brooks, 18 Va. App. at 592, 445 S.E.2d at 729 (alteration in original) (quoting Richardson, 12 Va. App. at 20, 401 S.E.2d at 895), or the court may conclude that deviation from the presumptive guidelines is not appropriate in this case.

Third party's filing of transcript triggers appeal deadline; and other odd points of appeal procedure, construction

If a court reporter or anyone else sends a transcript to a Circuit Court, that counts as the "filing" of the transcript even when that means it starts the time limits for the appeal, the Va. Court of Appeals says in Commonwealth v. Spinola (9-8-15).

The Court of Appeals summarily dismissed the appeal on the grounds that the initial petition for appeal and the transcript notice were untimely filed. The appeal was an interlocutory one allowed in criminal cases under a statute which requires the appellant to file a Notice of the transcript's filing within three days after the transcript is filed; and the Petition for Appeal to be filed within 25 days after the Notice. 

The transcript was provided to the clerk of the circuit court for the express purpose of being filed, and all parties were given notice [by copy of the reporter's cover letter] that the transcript had been delivered to the clerk “to be filed this day . . . in the above styled case . . . .” ...  The clerk accepted it and marked it filed. Furthermore, we previously have held that “‘[a] document is considered filed when delivered to the clerk for filing.’” Waller v. Commonwealth, 27 Va. App. 71, 75, 497 S.E.2d 508, 510 (1998) (quoting Rhem v. State, 820 S.W.2d 946, 947 (Tex. Crim. App. 1991)). 

The statute had recently been amended, changing "filed by the Commonwealth" to merely "filed" when saying the filing notice is due three days later. The Court cites

 Washington v. Commonwealth, 46 Va. App. 276, 281, 616 S.E.2d 774, 777 (2005) (“[W]e assume legislative familiarity with Virginia case law when the legislature enacts a statute which might impact upon that law.”). 

The case law referred to above is Commonwealth v. Mitchell, No. 0741-13-3, 2013 Va. App. LEXIS 251 (Va. Ct. App., unpublished, Sept. 10, 2013). In it, a third party filed the transcript, and the appellant's Notice of its filing was filed within the deadlines caused thereby. But the appellant did not file a duplicate of the transcript, and the statute at the time said the transcript had to be filed “by the Commonwealth”. The Court decided there was no need to have re-filed a duplicate of a transcript that had already been filed. The appellant did not file the appeal petition within the required time after the transcript was filed, but the majority said the appeal was still timely because a literal reading would require the appeal in that case to be filed before the trial court's decision. 

On the always-sensitive topic of citing the Court's unpublished opinions, the Court says,

Although they have no precedential value, unpublished opinions of this Court are nevertheless persuasive authority. Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735 S.E.2d 255, 258 n.3 (2012).

Judge Humphreys dissents, saying the legislative change must have been intended to let a third party file the transcript on behalf of, or request of, the Commonwealth, and that the majority's interpretation   "allows any person to trigger the time clock" for filing an appeal, and letting a non-party to the case do so, when not acting as a party's agent, is absurd. It is likewise absurd that under the majority's opinion, the appellant "is now required to file notice of the filing of a transcript that anyone may have filed at any time." And that, since a transcript may be (and in this case was) filed before the case was decided, the appeal deadlines might likewise come before the end of the case. Therefore:

This Court is precluded from construing “a statute . . . so that it leads to absurd results.” Auer v. Commonwealth, 46 Va. App. 637, 651, 621 S.E.2d 140, 147 (2005). Thus, “where a particular construction of a statute will result in an - 16 - absurdity, some other reasonable construction which will not produce the absurdity will be found.” Miller v. Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942). 

However, this was an interlocutory appeal allowed under a special statute for criminal cases, and the special requirements based on the filing of a transcript are in that statute, which begins, "The provisions of this subsection apply only to pretrial appeals.", so this case should not lead to deadlines for appeal falling before the order being appealed is entered.