Virginia Family Law Appeals

Court must consider child's current best interests before incorporating agreement into court order

A trial court had to consider the best interests of the child before incorporating an agreement on child custody and visitation into a court order, the Virginia Court of Appeals says in Matthews v. Brinckhaus (7/25/17). In that case, after the agreement was signed, a parent was convicted of assault. A condition of probation was to have no contact with his child. The agreement allowed visitation, and the other parent argued that it should not be made part of a court order because it was no longer in the child's best interests. The trial court expressly declined to consider best interests nor make any findings on the factors listed in Code Sec. 20-124.3.

This is a hard case that could make very bad law for 99% of custody cases, even though it is not only right for these parties but also completely legally correct in this case. The big question is, does this rule apply to every case in which an agreement is incorporated, or only where a party contests the incorporation? Even where a party contests incorporation, will it be considered frivolous to do so without a change of circumstances since the agreement, or without facts as compelling as those in this case?

Other trial judges could read the opinion to mean that every incorporation of an agreement on custody or visitation requires an evidentiary hearing. Or that if any party wants to back out of the agreement at the time of incorporation, a full-fledged custody trial can be held, no matter how recent the agreement, without requiring any threshold showing of a major change of circumstances affecting the child. Others might commonsensically apply a change of circumstances cutoff and not worry about uncontested cases at all, or might look for procedural facts and grave, obvious substantive considerations, similar to those in this case.

The Court's opinion does not say whether it is limited to the facts it recites, nor does it include any other words limiting the literal application and scope of its pronouncements. But there is one big clue to whether the opinion is intended to introduce new practices fundamentally changing the nature and value of custody/visitation settlements, or is just limited to its facts and reiterates existing law and practice: it is unpublished.

Transcript and Filing Notice must be filed with Clerk by deadline; giving it to judge and opponent doesn't help; appeal dismissed

Even where (a) the appellee conceded that he wasn't prejudiced by the appellant's failure to file a trial transcript, and Notice of Filing, by the Rule 5A:8 deadline, (b) the appellee and judge had long since received the transcript, and (c) it was formally filed and noticed a few days late, Rule 5A:8 must be strictly enforced, and an appeal is dismissed for lack of a properly-filed trial transcript without which "we cannot know with certainty the arguments made by the parties of the evidence the trial judge could consider," the Virginia Court of Appeals says in Browning v. Browning (7/25/17). Under Rule 5A:8(b)(4)(ii), the wife's Assignment of Error are deemed waived. "Although enforcing the Rules of Court may lead to harsh results in an individual case, it is not unfair", the Court writes, ten years after the divorce case was filed and fifty years after the couple was married. 

I suppose that litigants do need there to be a definite time after which they know what is in the Record in their appeal and what is not, a time to close the book and stop adding to it. A hard case, but one that wasn't allowed to make bad law.