Virginia Family Law Appeals

A pleading is a nullity when signed only by client, when attorney is counsel of record

A pleading signed only by a party, when he has counsel of record, is not sufficient to preserve issues for appeal. McGinnis v. Commonwealth, 12/12/2017. 

Code § 8.01-271.1 states: [E]very pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record ...

The statute allows for later corrections of pleadings that are "not signed", but not those that are signed, but improperly, by the wrong person, the Court says. So it refuses to let the appellant's attorney cure the defect by signing the pleading months later.

"The statute does not contemplate a hybrid form of representation where a defendant is simultaneously represented by counsel and also acts pro se."

Final order could not schedule separate sanctions motion hearing more than 21 days out; jurisdiction expired, order void

The trial court granted a demurrer and dismissed, with prejudice, a case challenging certain child custody orders. The final order that did this also noted that a defendant had filed a motion for sanctions, and scheduled it for argument on a date almost two months later. No other order was entered within 21 days after the final order. The trial court granted the sanctions motion, almost four months after the date it had set it for, and five and a half months after the final order. 

Under Rule 1:1, there was no jurisdiction to hear or decide the sanctions motion more than 21 days after the original final order, so the sanctions order "is a nullity and void ab initio," the Supreme Court says in Barrett v. Minor, unpublished, 2/8/18.

The opinion does not discuss whether there was any particular language in the Final Order reserving jurisdiction to hear the motion, or making exceptions to its finality. So it neither indicates that such language would have made a difference, nor that it wouldn't have. 

Son, 5, disappears while mother sleeps, later found dead in septic tank, abuse/neglect conviction overturned

Virginia's Court of Appeals overturned the child abuse and neglect conviction of a woman whose five-year-old went outside while she was sleeping  and at some point drowned in a septic tank, saying the law

does not impose criminal liability on parents who fail to take positive action to ferret out every potential hazard to ensure the premises are safe. ... Over a century ago, Supreme Court Justice Harlan observed that “it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.” ... The tragic death of a young child is a hard case. When the child’s body is found in a septic tank after four days of searching, the case is even harder. But it would not benefit the general good of the community to expand Code § 18.2-371.1’s requirement of “willful” conduct to include a parent’s failure to protect a child from an undiscovered and unknown danger. Septic tanks are common in many areas of this Commonwealth. As tragic as the facts of this case are, to affirm this conviction would be to hold that Code § 18.2-371.1 requires a parent to search out potential dangers and continuously supervise his or her child. A parent could be subject to a felony conviction if he or she failed to recognize the danger posed by the unsecured tank cover, the unlatched gate, the rotted board, the unfenced pond, or any other hazard that, in hindsight, could have been corrected.

After driving her husband to work, the mother took a prescription suboxone -- a drug used to cure opioid addiction -- and fell asleep. She woke up to find her infant crying, the front door open, and her five-year-old son missing. Neighbors, the landlord, police and even the FBI searched for her son. One of them "lightly kicked" a septic tank lid, which popped off. He and another officer poked around in the tank's contents with a metal rod and felt nothing. Over the next few days, police officers and an FBI agent took the lid on and off several times, but at least two of them did not "secure" it "on the opening". Four days later the tank was drained and the boy's body was found in it. When it was drained there was only one screw in the lid, and no others were found anywhere nearby.

The trial court found that the mother knew about the septic tank; she knew her son loved to play near it, and that toys were typically left all over the yard and some had been found inside it the previous year, but the appeals court notes that there was no evidence of a reason for the mother to think the child had dropped them into it, rather than flushing them down the toilet, nor indeed that he was able to open the lid. Once, a month or two earlier, he had stood on the lid, and the mother had told him to get off it and never to stand on it again. The trial court took this as evidence that the mother knew of the danger of falling in the tank, but the Court of Appeals sees it as prudent and caring. And "no evidence suggested White knew of subsequent occasions when her son played on or near the lid, or engaged in dangerous activity in the yard."

The mother knew that her son liked to play outside in the fenced-in backyard, and that he had sometimes unlocked the door and gone outside on his own. But "is not sufficient to find that White was advertent to the likelihood that lack of supervision would result in serious injury. The Commonwealth was also required to show that White knew of a heightened risk in the yard such that the son would likely be injured if he played there unsupervised."

No evidence was presented from which the trial court could have inferred that the mother knew the lid could be opened easily. “Inferences must be based on facts and not upon other inferences or mere speculation.”

The mother told a lie which may have been unrelated to her son's death but, the Court says, played a major role in her conviction. When she took her husband to work, she left the five-year-old and the infant home alone. She initially told police she had taken them along, then admitted she left them home. That negligence was not criminal, the Court says, because it played no role in the boy's later disappearance, but it did legitimately affect her credibility.

The Court overturns the conviction because there was no proven willful act or omission, as required by the criminal statute, that caused the death.

Code § 18.2-371.1(A) provides, in part, “Any parent, guardian, or other person responsible for the care of a child under the age of 18 who by willful act or willful omission . . . causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony.” The word [willful] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when ‐ 7 - used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely[.] The word is also employed to characterize a thing done without ground for believing it is lawful.  

The standard for willfulness in this context depends on an awareness of a particular danger, the Court says, combining the standards set out in Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999), where there was no known danger, and Barrett v. Commonwealth, 268 Va. 170,  597 S.E.2d 104 (2004), where there was. Continuing, with citations omitted:

"The term willful is stronger than voluntary or intentional; it is traditionally the equivalent of malicious, evil or corrupt.” “The term ‘willful act’ imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of another and will probably result in an injury.” The terms “bad purpose” or “without justifiable excuse” necessarily imply knowledge that particular conduct will likely result in injury or illegality. “In other words, the defendant must have been aware that [the] [omission] was likely to result in serious injury.”  “[S]omething more than negligence must be proved beyond a reasonable doubt to support [a] conviction ... the parent “must have been advertent to the likelihood that the conduct [omission] in question would cause or permit serious injury.” "The statute punishes willful omissions, which requires an awareness that the conduct would cause or permit serious injury. It proscribes advertence, not inadvertence. "

All this raises two major factual issues, which were more or less ignored:

1. How do we know that the mother was not lying when she said her son disappeared while she was sleeping, instead of while she was gone? After all, she initially lied about having left the children home alone while she took her husband to work. Then again, if she were lying about that, and the disappearance happened while she was  away, would that be enough for a conviction, considering that it was the five-year-old, not the infant, who came to harm?

2. The appeals court notes that there was no proof that the child's possibly playing on the tank lid had anything to do with his death, but they don't come out and talk about what must have happened if that didn't happen, so I will:

A searcher initially found the septic tank with the lid ON. That means one of three things:

• The child jumped into the tank and put the lid on it from the inside. He was not found in the first search of the tank because it was not thorough enough.
• The child did not go into the tank when he first disappeared, but later, at some point when one of the searchers had left the lid off. (If indeed they ever did; the opinion is unclear, saying only that at one point it was not "secured" on the tank.) That is why was not found when the tank was first discovered, because he was hiding somewhere else at that time.
• Someone else put the child in the tank, alive or dead, and closed the lid. They may have done this after the first search of the tank, which would explain why the child was not found in the first search.

Postscript: By the time the appeal was decided, the mother had already served the 23 months of her sentence that had not been suspended.

White v. Commonwealth, 9/19/17

Constitution doesn't require expanding parenthood & marriage until they lose all meaning

The Court of Appeals refuses to retroactively change the law to make all artificially-conceived children of gay couples legally be the children of both partners, saying that doing so would effectively destroy the exclusively parental rights which the appellant is seeking equal access to, and the distinctive value and meaning of marriage which the U.S. Supreme Court gave equal access to in Obergefell v. Hodges.

In Hawkins v. Grese, a cohabiting lesbian couple decided to have a child together, and one of them was artificially inseminated and gave birth. They did not do an adoption to formalize the other's legal status as a parent, and they never married. They raised the child together until their relationship ended in 2014. They informally shared custody for another two years, then the biological mother cut off the child's  contact with the other, who then filed for custody and visitation. The juvenile court awarded joint physical custody, finding that removing one parent from the child's life was harmful to the child and caused behavioral problems.

On a de novo appeal, the Circuit Court found that while everyone involved agreed that Hawkins had standing to contest custody -- as a "person with a legitimate interest" if not as a parent -- she did not overcome the presumption favoring parents over non-parents, though it expressed "grave concern that separation from Hawkins "would cause [the child] continued harm." It did grant her visitation. Hawkins appealed to the Court of Appeals, claiming that it was unconstitutional to consider her a non-parent, and that “non-biological parents in planned families comprising same-sex couples and their children are in fact parents.” 

As for current Virginia law, looking at various "areas within the Code of Virginia where parent is used, it is clear that the term 'parent' contemplates a relationship to a child based upon either the contribution of genetic material through biological insemination or by means of legal adoption. For example, the Code provides that parentage may be established by 'scientifically reliable genetic tests,' '[a] voluntary written statement of the father and mother made under oath acknowledging paternity,' or 'proof of lawful adoption.'” And the very statute that gives standing to people who are not parents, but have acted like parents in some ways, Code § 20-124.1, thus makes clear that they are not considered parents. So

Where custody disputes are concerned, the term “parent” is a relationship to a child only through either biological procreation or legal adoption. This ... is also consistent with the Commonwealth’s refusal to adopt wider parental definitions through other legal constructions such as the de facto or psychological parent doctrines ...

But is this constitutional, as applied to this family? The standard of review is rational-basis, either for a violation of parental rights or for sexual orientation discrimination, the Court of Appeals says.

First, the definition of parent does not discriminate between same-sex and opposite-sex couples. It could apply to a heterosexual couple who used artificial insemination and did not marry. 

The relevant characteristics which classify here are entirely rational—people are considered parents on either biological or adoptive grounds, parties without these qualities retain a fair legal method to intervene if a parent - 10 - is unfit. Further, “[a] classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’” ...

In Obergefell, the Supreme Court held only that same-sex marriage was a constitutionally protected right. ... , the entire basis of the holding of Obergefell is the significance and importance of marriage as an institution that should not be withheld from same-sex couples. Barring procreation or adoption, pre-Obergefell, different-sex marriages did not automatically result in the spouses becoming legal parents of each other’s children and the analysis of the Obergefell majority opinion does not compel a different conclusion with respect to same-sex marriages, far less unmarried couples of any sexual orientation. 

Hawkins suggests that the “special facts and circumstances,” of this case provide an avenue for carving out an exception in this admittedly exceptional case. However, were we to do so, it is clear to us that the constitutional presumption of parental fitness would begin the process of suffering a death by a thousand cuts.

We certainly acknowledge that society has evolved new family structures while simultaneously concluding that qualitatively and quantitatively assessing which among a kaleidoscope of those structures should be given legal recognition is more properly the province of the people’s representatives in the General Assembly rather than the courts and Obergefell does not require a different conclusion.5 Were we to adopt the “know it when we see it,” “special circumstances” definition of parentage urged on us by Hawkins, it would open a Pandora’s box of unintended consequences to hold that a legal parent-child relationship is created simply by virtue of such factors as the amount of time a child spends with, or the strength of an emotional bond that exists between, another living in the same household. It is not hard to imagine profound consequences for society and the courts if a parent knows that an ex-wife, ex-husband, ex-boyfriend, ex-girlfriend, former nanny, au pair or indeed virtually anyone not related to their child through biology or legal adoption, can be placed on equal footing as a biological or adoptive parent solely through a significant emotional bond with the child. 

Much of the Obergefell language Hawkins cites is aspirational, seeking normality for same-sex families. It would be ironic for us to hold that the very decision expressing these aspirations became a tool for the erosion of the object of its aspiration—a family structure based upon marriage. The logical fallacy of this approach is apparent as well, if restricting marriage to opposite sex couples was unconstitutional because it denied same-sex couples the “constellation of benefits” heterosexual couples received, it could not possibly also then require the redefinition of every star in that constellation.

Also, Hawkins is implicitly asking the court to treat her as if she had been married to the mother. But although this couple was not allowed to marry under Virginia law at the time, there was no evidence that that was the only reason they did not marry, i.e., that they otherwise would have married. "How retroactivity applies to the 'constellation of rights' discovered in Obergefell is a question which has not yet been answered, nevertheless, this principle of retroactivity does not license this Court to engage in forensic retrospective marriage construction." 

Hawkins also claimed it was unconstitutional to deprive the child of the right to be raised and nurtured by both parents. However, generally only a parent has standing to defend a child's constitutional rights, and exceptions that give third parties such standing, to pursue a child's constitutional rights against the parents' will, are granted very rarely and reluctantly, usually when a child is being denied medical care, the Court notes. And sometimes, no one, including parents, is allowed to assert constitutional claims on a child's behalf.

The Court also upholds the finding that the presumption in favor of parents was not overcome. "This presumption favoring the parent is a strong one, and can only be rebutted by establishing certain factors by clear and convincing evidence, including “(1) parental unfitness . . . ; (2) a previous order of divestiture, . . . ; (3) voluntary relinquishment, . . . ; and (4) abandonment, . . . [and (5)] . . . a finding of ‘special facts and circumstances . . . constituting an extraordinary reason for taking a child from - 18 - its parent, or parents.’” Bailes v. Sours (1986). The harm to the child from having only visitation with Hawkins, instead of 50-50 or sole custody, does not compare with the harm in Bailes, where the natural mother was a virtual stranger to the child. And even if "psychological evidence shows that harm will necessarily flow from the severance of the relationship between herself and B.G.," "such severance is not a necessary outcome". 

Hawkins v. Grese, Va. Ct. App. 2/13/18, citing the factually similar case of Stadter v. Siperko, 52 Va. App. 81, 661 S.E.2d 494 (2008).

Prenup does the job without express waiver of equitable distribution

A prenup was still effective even though it did not include a specific waiver of a right to equitable distribution of property in a divorce, Virginia's Court of Appeals said in Thomas v. Thomas, unpublished, 5/31/16. The agreement had sufficient language to define certain property as separate property; to classify property acquired during the marriage depending on how it was titled, and to specify how co-owned property was to be divided, leaving only a small amount of property to be divided in equitable distribution. In equitably distributing that property, the trial court went through all the factors that could affect how it distributed it, and then divided it in accordance with the prenup, which said that co-owned property would be divided in half, regardless of any separate-property contributions to it.

Support order can be for net of one party's alimony vs. the other's child support

A support order may order a net payment in which one party's spousal support to the other is offset by child support going the other way, or vice-versa. O'Reilly v. O'Reilly, Va. Ct. App. unpublished 5/31/16.

Nor did the court err in ordering reimbursement for uninsured medical expenses, even though those weren't discussed during the trial. That is something the court is required to rule on in any support order, and it is directly determined bu the incomes and income-proportions that the court determines when calculalting child support.

Survivor Benefit divided in oral ruling but not in final order; corrected as clerical error

Where an asset was mentioned in a judge's ruling but was accidentally left out of the final order, that is a clerical error that can be corrected later under Code § 8.01-428 (B), Virginia's Court of Appeals says in Ruane v. Ruane, 10/31/17, concerning a Survivor Benefit left out of a military pension division.

Fee award must be requested in initial lawsuit or response, not separate suit afterwards

Graham v. Community Management Corp., Va. S. Ct. 10/12/17. This was a suit on a contract that included a fee award provision for the prevailing party in any suit on the contract.

Graham was sued on a confidentiality agreement by her former employer, and responded that that contract was flawed and invalid. In responding, her lawyer decided not to seek fees under the terms of the contract which she was attacking. "We couldn't take that chance" that doing so might be considered "approbation and reprobation," the lawyer later explained.

The Fairfax Circuit Court and the Supreme Court cited Rule 3:25, which says a party seeking fees "shall" do so in pleadings (whether initial or responding pleadings)."No litigant may recover on a right not pled", the Court wrote.

The Court threw outGraham's argument under Code § 8.01-230 that the claim for fees had not yet accrued because the defendant had not yet paid her lawyer. It accrued when she first incurred any obligation to a lawyer, i.e., "from the outset".  

No imputing income from property held in trust: Montgomery v. Montgomery

Potential income from assets held in a trust should not be imputed to a co-beneficiary/co-trustee, Virginia's Court of Appeals found in an alimony case, Montgomery v. Montgomery (ca. Dec. 2017, unpublished). The property in this case was residential and the trial court had imputed rental income from it. The Court of Appeals reasons that the Circuit Court lacked authority to reach into the trust to force the wife and her co-trustee, not a party to the case, to dispose of the trust property; that the wife as co-trustee had not yet distributed the trust assets and so she had not yet inherited the property -- she only had "a future beneficial interest." The trial court could not impute income "based upon undistributed trust assets."

Also, Virginia law "does not require wife to sell her interest in the two residential properties to relieve husband from his spousal support obligation."

But the trial court's imputation of another $5,000 [monthly?], because the wife was voluntarily unemployed, is not reversed. The case is remanded to recalculate income without the rental income.

No fees are awarded, as both sides' arguments "are fairly debatable and indeed, each has partially prevailed."