Virginia Family Law Appeals

Court stresses limits of "manifest injustice" exception to rule against alimony for adulterers, especially if millionaires

Virginia's Court of Appeals overturned an alimony award that had been made despite the recipient's adultery under the "manifest injustice" exception. The Court said manifest injustice must be obvious, not speculative, and amount to destitution in terms of potentially income-producing assets as well as income, at least in a case where the payor does not share much of the fault during the course of the marriage and its breakdown.

Code § 20-107.1(B) allows alimony despite adultery

if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties. 

In this case,"Wife admitted to numerous acts of adultery," which the trial court found was the “primary reason for the destruction of the marriage.” The trial court wrote:

counsel for [wife] conceded that there was no significant fault on [husband]’s part. The [c]ourt agrees. [Husband] made nearly all of the monetary contributions to the well-being of the family, and made significant and consistent non-monetary contributions. [Husband] dedicated virtually all of his non-working hours to his family. He was involved in the daily care of the children and made substantial contributions to their extracurricular activities.

As the appeals court recounts,

... wife received assets worth approximately $1.8 million, including about $397,000 in cash and over $1.3 million in retirement funds. Husband’s net worth is about $1 million. Husband received the marital home, which has a net worth of $779,695. Husband also agreed to pay all of the education expenses of the parties’ two children. One of the children was in college, and the other child was in medical school. The trial court relied upon the disparity in earning capacity between husband and wife to find a “manifest injustice.”

That disparity was great. As the husband earned $850,000 a year, the disparity would have been great even if the wife had an ample income and no need for support. The trial court found that the wife had not worked for most of the marriage, but could be earning $22 per hour within a few months, and would earn between $27,500 and $33,000 per year if she worked 25 to 30 hours a week. 

The standard for finding MIJ is "clear and convincing" proof, the Court reminds us. And 

the expression “manifest injustice,” outside of domestic relations law, “has been used synonymously with the phrase ‘miscarriage of justice.’ Harris v. DiMattina, 250 Va. 306, 318, 462 S.E.2d 338, 343 (1995).

Further, this is not a typical "balancing of several factors" test. It is based on only two factors: (i) relative degrees of fault and (ii) economic disparities. Quoting Congdon v. Congdon, 40 Va. App. 255, 263, 578 S.E.2d 833, 837 (2003):

the court must base that finding on the parties’ comparative economic circumstances and the respective degrees of fault.” Barnes v. Barnes, 16 Va. App. 98, 101-03, 428 S.E.2d 294, 298 (1993) (emphasis in original). We italicized the word “and” in Barnes precisely because the statute makes clear that the decision must be rooted in both factors.  

Quoting Giraldi v. Giraldi, 64 Va. App. 676, 685-86, 771 S.E.2d 687, 692 (2015):

“By its very definition, . . . a ‘manifest injustice’ cannot be speculative. See Black’s Law Dictionary 974 (7th ed. 1999) (defining ‘manifest injustice’ as ‘direct, obvious, and observable’).”

The Court continues,

Neither requires proof by clear and convincing evidence independently. Rather, it is the confluence of both streams of evidence—of fault and of relative economic circumstances—that must rise, by the clear and convincing standard, to constitute manifest injustice.

It contrasts the present case with Congdon, which (according to the facts available to it in that case) combined the husband's "twenty years of profane and base behavior" with “extreme disparities” in assets, incomes and earning capacity; it says Mrs. Congdon had no significant "separate assets" and earned $10/hr. as a receptionist.

This wife's potential earnings of $25,000 to $33,000 do not seem that different from those in Congdon, considering that it went to trial around 2000. But the Court notes that at age 55, the wife is very few years away from being able to draw on the retirement accounts she received. Therefore,

We discern the legislative impulse behind the manifest injustice exception is to prevent leaving a spouse destitute as a result of an act of adultery. It would be a manifest injustice to require a faultless spouse to pay support to a work-capable, millionaire spouse, guilty of repeated acts of adultery with several co-respondents. The disparity in earning capacity, on these facts, is not sufficient to rise to the level of a manifest injustice.

An award of reasonable fees for the appeal is appropriate, the Court said.

Mundy v. Mundy, 66 Va. App. 177, 783 S.E.2d 535 (2016)

See also: Court of Appeals reverses alimony reservation award to adulteress; uncertain future cannot be "manifest injustice" (2015)

 

State cannot transfer post-divorce pension-division jurisdiction to another state

Virginia cannot gain jurisdiction to divide retirement by another state’s courts attempting to transfer jurisdiction over this subject to Virginia. Ramos-Fantauzzi v. Matos, Va. Ct. App. unpublished 2017. In that case, the parties had been divorced in Puerto Rico, and the husband had stipulated in the Puerto Rican court that the wife was “eligible for all the benefits” under the USFSPA, and also that the parties had been advised of the case of Deluca Roman v. Colon Nieves (which held that while the USFSPA allowed Puerto Rico to divide military retirement, it did not require it to, and that Puerto Rican law treats military retirement as separate property). The divorce decree quoted this stipulation, and listed several benefits the wife qualified for, such as commissary privileges and the survivor benefit.

Six years later, both parties were living in Virginia, and the wife sought and got a court order from the Puerto Rican court saying that jurisdiction and venue for her “pending claim” for 50% of the marital share of retirement, “pursuant to” the divorce order and the USFSPA, was transferred to the courts of Virginia. The husband objected to this. In Virginia, a circuit court accepted jurisdiction and divided the pension. It claimed to be acting under the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), Code §§ 8.01-465.1 to -465.5.

The Court of Appeals reversed, saying that dividing the pension was not enforcement, because the Puerto Rican orders had not divided it, or given the wife a right to a specific share of it. Nor could Virginia use jurisdiction under the USFSPA to divide the pension, because subject matter jurisdiction cannot be conferred by another state’s court order, except where the statute that controls subject matter jurisdiction allows for such a transfer or deferral. Nor does any statute allow transfer of venue from another state.

Getting or correcting post-decree retirement-division order isn’t “enforcement,” so no fee award

A husband who eventually mostly prevailed, after appeal and remand, in litigation over the wording of an order dividing his military retired pay, did not qualify for a fee award under a PSA provision awarding fees for successful enforcement of the PSA, or successful defense against enforcement. Jones v. Gates, Va. Ct. App. unpublished 2017. The PSA required the wife to have an order drafted, dividing his retired pay. Presenting such an order to a court is not an enforcement action, the court ruled, even if it involves disputed language that was found inconsistent with the Agreement.

Court has wide discretion to bifurcate near-death divorce from economic claims when "necessary to achieve equity"

Friedman v. Smith and Goldstein, 3/20/18, is the latest word from the Court of Appeals on bifurcating a divorce case when a party may be close to death.

“Bifurcated” divorce can mean a situation where divorce and property division have to be performed in two different states, but what it means in this case is bifurcation in time: “Divorce first, E.D. afterward.” It is authorized, and limited, by an amendment to Code §20-107.3:

 The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.

The Court of Appeals has emphasized that:

• There must be an underlying prayer for ED — this is not for cases where people just forgot about it. Smith v. Smith, 38 Va. App. 113, 562 SE2d 329 (2002)
• There must be a finding of necessity, not mere preference. Spriggs v. Spriggs, 43 Va. App. 510, 600 SE2d 136 (2004); Christensen v. Christensen, 26 Va. App. 651, 655, 496 S.E.2d 132, 134 (1998).
• The reservation of jurisdiction must be explicit and specific. Nourdeen v. Nourdeen, unpublished 2003.
• But after that, trial courts have broad discretion to decide what is necessary. Christensen, supra.
• One party’s benefit, such as the ability to file tax returns as unmarried, does not give that party a right to bifurcation. Clark v. Clark, unpublished 9/15/98.

When it is necessary to bifurcate? Friedman says:

We emphasize that bifurcating a divorce proceeding in this manner is not a matter of right nor should it be a common practice, but rather an exercise of a trial court’s discretion in an irregular situation. It is proper to do so only upon motion of a party and when “clearly necessary” to achieve equity. See Christensen v. Christensen, 26 Va. App. 651, 654-55, 496 S.E.2d 132, 133-34 (1998) (explaining the evolution of Code § 20-107.3(A)). Otherwise, “Code § 20-107.3 compels [a] trial court to decide the divorce and property issues contemporaneously.” Patel v. Patel, 33 Va. App. 776, 782, 537 S.E.2d 11, 14 (2000).

…

[W]e do not decide whether alone or in combination, advanced age, hospitalization, the fear of imminent death, or competency issues by a spouse provides justification as a matter of law for bifurcation under Code § 20-107.3(A). Rather, we emphasize that the statute’s “clearly necessary” requirement, in effect, provides our standard of review of the exercise of the circuit court’s discretion in these cases.

The facts of the Friedman case leave one wondering what “necessary” means — necessary for whom? At what cost to the other party? What is the difference between wanting and needing something in this situation? The opinion provides a single but important three-word phrase to partially answer that: necessary "to achieve equity.” So this is a decision to be guided by the maxims of equity and the equities of the case.

Why is it equitable in this case to leave the wife a divorcee instead of a widow? The Court does not spell it out nor describe all the circumstances you would have to look at to even decide what the effects of that decision are, let alone whether they are equitable. But it is clear from the opinion that the Court thinks the wife is the party with more unclean hands in this case. She was the first spouse to file for divorce, and then stretched the case out with various procedural disputes, perhaps hoping that the husband would die before it was over, as the Court sees it. The husband sought bifurcation and the wife opposed it, so maybe the trial and appellate judges simply concluded that it was equitable to give the husband the remedy that he and the wife apparently believed to be better for him and his heirs, and worse for her.

What would be an abuse of discretion, on this issue? The Friedman opinion says:

A circuit court abuses its discretion when the record discloses that the court acted arbitrarily rather than with due regard to conscientious judgment. See Slayton v. Commonwealth, 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946). Stated another way, “[o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Wright v. Wright, 61 Va. App. 432, 463-64, 737 S.E.2d 519, 534 (2013) (quoting Robbins v. Robbins, 48 Va. App. 466, 482, 632 S.E.2d 615, 623 (2006)).

A divorce case abates on a party's death. Simpson v. Simpson, 162 Va. 621, 633, 175 S.E. 320, 325 (1934). But after bifurcation, does the E.D. case still live on after a party dies? This opinion is not completely clear on that, but checking the trial court's docket shows that yes, the E.D. case is alive and well. The opinion notes that the equitable distribution case, and especially claims for attorney’s fees, may survive and be carried on by the estate’s personal representatives, citing 1932 and 1898 cases:

 “[W]here the consequences of the divorce are such as affect the property rights of the parties to the suit, the heirs or personal representatives may have such an interest in the litigation as that the cause will survive, not for the purpose of continuing the controversy touching the right of divorce within itself; but for the ascertainment of whether the property has been rightfully diverted from its appropriate channel of devolution.” Craddock’s Adm’r v. Craddock’s Adm’r, 158 Va. 58, 65, 163 S.E. 387, 389 (1932) (emphasis added) (quoting Nickerson v. Nickerson, 48 P. 423, 423 (Or. 1898)).

The rule nationwide is that after bifurcation and death, the E.D. case continues:

If the drawn-out nature of modern divorce proceedings means that the court still faces ancillary issues, such as property division or support, the uniform modern rule is that those issues should be resolved by the divorce court, with the decedent's estate substituted as a party. In other words, the courts have declined to extend the common-law rule so that death abates an action for property division or support. As long as the divorce action itself survives, death will not cause abatement of ancillary issues. In re Hilke, 4 Cal. 4th 215, 841 P.2d 891, 14 Cal. Rptr. 2d 317 (1992); Angelli v. Sherway, 560 A.2d 1028 (Del. 1989); Estate of Pinkerton v. Pinkerton, 435 Pa. Super. 455, 646 A.2d 1184 (1994).

-- from "ABATEMENT OF DIVORCE AND ANCILLARY PROCEEDINGS UPON THE DEATH OF A PARTY" by the National Legal Research Group, Inc.

Another small exception to abatement at death, one which proves the rule: Sprouse v. Griffin, 250 Va. 46 (1995)) allowed a trial court to distribute funds it held in escrow when a divorce terminated at death, but that was because it did so not as equitable distribution, nor as probate, but to carry out the automatic property-law effects of the death of one of the tenants-by-the-entirety who had owned the property whose sale the funds came from.

Another great quotation from this opinion:

“[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction.” Belew v. Commonwealth, 62 Va. App. 55, 62, 741 S.E.2d 800, 803 (2013) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)).

No alimony reduction when income plunges after retirement, despite recipient's budget surplus, payor's reliance on new wife's income

The Virginia Court of Appeals upholds denial of an alimony reduction to a payor whose income decreased by over 50% at retirement, even though the payee's income-expense calculations showed a substantial monthly surplus, while the payor's deficit requires his new wife to contribute her income to pay the alimony.  Giambattista v. Giambattista (3/13/18), unpublished.

The Separation Agreement had stipulated that retirement would be a change of circumstances, but that does not necessarily mean that the changed circumstances will always justify a modification, the Court notes.

The ex-husband's income was around $140,000 at the time of the divorce. Four years later he retired at age 56, which the Court seems to find reasonable because of the physical rigors of the job as a Secret Service agent. His income, now including his share of his retirement, dropped to around $72,000, before deducting alimony. The ex-wife's earning capacity was limited by a disability, and with her employment and her share of his retirement her income was about $35,000, not counting alimony. Alimony remains $3,100 per month, which is $37,200 a year.

The Court says the payor admits in his brief that a substantial reduction is not warranted; that he is only asking for a reduction of $800 per month. It seems insensitive to the fact that when you're looking at incomes in the $30,000s, $800 per month may well be substantial.

The Court notes that the payor did not feel too poor to recently make a $91,000 down payment on a home, and that he might have been able to find a job after retirement that would not involve such a major pay cut.

It also cites his new wife's testimony that she would help him with the alimony payments if she had to; for the Court to cite and effectively penalize this willingness seems to create several incentives, none of them good.

The payor objected that by the wife's own monthly expense calculations, the current alimony gave her a surplus of $709 a month. But:

This Court has previously rejected the notion that a payee-spouse is only entitled to receive an amount of support that results in an equalization of income and expenses.

In Robinson v. Robinson, 54 Va. App. 87, 95-96, 675 S.E.2d 873, 877-78 (2009), the Court held that a trial court did not err by awarding a spouse $5,000 per month in spousal support, creating a monthly surplus of more than $1,100. The Court held that nothing prohibits an award from exceeding the expenses needed if the evidence and statutory factors support it. Id at 97, 675 S.E.2d at 878. In so holding, the Court recognized and rejected the “erroneous contention that . . . a sum sufficient for allowing [a spouse] to maintain her standard of living enjoyed during the marriage constitute[s] a cap or limit on the amount of spousal support the trial court could award.” Id. at 95-96, 675 S.E.2d at 877. Such an argument patently disregards the thirteen factors listed in Code § 20-107.1(E) that trial courts are bound to consider. Id. at 96, 675 S.E.2d at 877. The trial court had considered factors such as the wife’s contributions to the family as the primary child-rearer, her management of the household, and her lack of significant employment prospects when it rendered the $5,000 award. Id. at 96-97, 675 S.E.2d at 878.

Miller v. Cox, 44 Va. App. 674, 607 S.E.2d 126 (2005), is also instructive. In Miller, this Court rejected the argument that an award of support in excess of a spouse’s stated expenses is a per se error of law. Id. at 681, 607 S.E.2d at 129. The wife in Miller earned approximately $156,600 per year between her salary, investment returns, and spousal support, and her yearly expenses were approximately $125,000. Id. at 682-83, 607 S.E.2d at 130. The trial court based its ruling on the fact that the parties had constantly strived during the marriage to devote a significant chunk of their take-home pay to retirement savings, and the trial court determined that the wife could not be precluded from continuing with that practice post-divorce. Id. at 686, 607 S.E.2d at 131-32.

Even more recently, in Gordon v. Gordon, No. 2038-16-2, 2017 Va. App. LEXIS 164 (Va. Ct. App. July 11, 2017),1 this Court again reiterated that trial courts possess the broad discretion to award spousal support amounts that result in a spouse receiving a sum greater than her monthly expenses, so long as the trial court considers the statutory factors. Id. at *7-10. The wife in Gordon was the primary child-rearer and “lacked any meaningful employment history or marketable skills.” Id. at *10. Even though she was “physically and mentally able” at age 57, the trial court also declined to impute income to the wife despite the expectation that she would begin giving dance lessons. Id. at *11. This Court held that the trial court had appropriately applied the statute and did not err in awarding $12,000 per month in spousal support. Id. at *10-11.  

Accordingly, the Court reiterates some of the factors besides monthly budgets that justified the original award, such as non-monetary contributions and how those affected earning capacity.

Retirement balance statement admissible, "adoptive admission" of party opponent

A divorcing spouse's hearsay objection to a statement summarizing  her retirement asset values was properly overruled, the Court of Appeals says in Gaspa v. Gaspa (3/13/18), unpublished. On cross-examination she was shown the chart and she admitted that she had produced it in discovery, that she held the accounts shown, that the employment they came from was all during the marriage, and that the statement was dated right before separation and was the regular statement for that date. These responses "manifested her belief in the truth of the exhibit," the Court concludes. This was an "adoptive admission," though that is not how the trial court put it.

How do these admissions add up to any admission that the statement was accurate? Because in the circumstances, it was reasonable for her to say otherwise if she disagreed, as explained in the case law the Court quotes (below). It says she adoptively admitted it by the admissions described above, but those do not really sound like vouching for its accuracy. However, in the big picture, this seems fair and sensible -- rules that prevent people's routine financial documents from easily being used as evidence are unfair and impractical, and it would be nice to have a presumption that such documents are admissible and accurate.

After the trial court admitted the document over objection, her lawyer said, "I may have some rebuttal on just this issue," and the judge replied, "I completely agree." No such rebuttal evidence is mentioned in the opinion, and there must not have been any, for the Court of Appeals to find this doctrine applicable.

Adoptive admissions

Rule 2:803(0)(B) sets out the concept of “adoptive admissions,” and states, in relevant part, that the hearsay rule does not exclude a “statement offered against a party that is . . . a statement of which the party has manifested adoption or belief in its truth.”

Adoption by not replying

It is well settled that statements made in the presence and hearing of another, to which he does not reply, are admissible against him as tacit admissions of their truth or accuracy, when such statements are made under circumstances naturally calling for reply if their truth is not intended to be admitted. This principle rests upon that universal rule of human conduct which prompts one to repel an unfounded imputation or claim. Tillman v. Commonwealth, 185 Va. 46, 56, 37 S.E.2d 768, 773 (1946). “The test for an adoptive admission ‘is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so.’” Weinbender v. Commonwealth, 12 Va. App. 323, 325, 398 S.E.2d 106, 107 (1990) (alteration in original) (quoting Owens v. Commonwealth, 186 Va. 689, 699, 43 S.E.2d 895, 899 (1947)); see also Wooten v. Bank of Am., N.A., 290 Va. 306, 311 n.5, 777 S.E.2d 848, 851 n.5 (2015) (“[A] duty to speak arises . . . in some situations[] to avoid the conclusion that a party has made an adoptive admission, see Rule 2:803(0)(B).”); Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 15-36[b], at 1097 (7th ed. 2012) (“A declaration in the presence of a party to a cause becomes evidence, as showing that the party, on hearing such a statement, did not deny its truth; for, if he is silent when he ought to have denied, there is a presumption of his acquiescence.” (quoting Sanders v. Newsome, 179 Va. 582, 592, 19 S.E.2d 883, 887 (1942))).

In Lynch, the Supreme Court observed that, although “[m]ost of the adoptive admissions that we have considered have been characterized as tacit admissions, or admissions by silence,” one “may manifest adoption of a statement made by another in any number of ways, including words, conduct, or silence.” 272 Va. at 209, 630 S.E.2d at 484-85. “In some cases, the defendant’s words or conduct may supply most, if not all, of the predicate facts that the Commonwealth must prove to bring the evidence within the adoptive admission exception.” Id. at 209, 630 S.E.2d at 485.

Burdens in deciding on hearsay exceptions

“[a] party relying upon an exception to the hearsay rule for the admissibility of evidence bears the burden of  persuading the court that the evidence falls within the exception” and “the standard of proof to meet that  burden is by a preponderance of the evidence.” Lynch v. Commonwealth, 272 Va. 204, 207-08, 630 S.E.2d 482, 484 (2006). ... Factual questions must usually be resolved to determine whether the proponent of the evidence has carried that burden, and those antecedent or predicate facts are to be determined by the trial court alone. If the court admits  the evidence, the credibility of the witnesses and the weight of the evidence are to be determined by the jury. Id. at 208, 630 S.E.2d at 484.

Federal court abstains from suit to enforce immigration affidavit of support

A federal court declined to hear a case by a U.S. permanent resident seeking to enforce the I-864 Affidavit of Support that her husband had signed in the immigration process. But the ruling, Wigley v. Wigley, USDC W.D.Va., Roanoke, 3/5/18,  is narrowly worded and seems to allow several ways in which other such cases could be pursued in federal court. It said abstention under Younger v. Harris, 410 US 37 (1971), was appropriate because three requirements were met:

1. When the suit was filed, the parties were already litigating a divorce and alimony case in state court, in which the I-864 issue was raised.
2. That case is still pending in Virginia's courts.
3. The wife had, and still has, adequate opportunity to raise the issue in the state court case. She hasn't claimed the state courts "would improperly avoid her claim."

And there is no claim that the husband "is avoiding" the I-864 issue in state court, nor of any extraordinary circumstances to allow an exception to Younger abstention.

The Supreme Court and other federal courts have drawn and redrawn the boundaries of federal abstention from family-law cases over the years. The Roanoke court described the currently applicable standards as:

Absent extraordinary circumstances, the Younger doctrine requires federal courts to abstain from exercising jurisdiction when doing so would interfere with pending state court proceedings. Robinson v. Thomas, 855 F.3d 278, 285 (4th Cir. 2017) ... The Fourth Circuit has strictly applied the test for abstention under Younger, diverting from it only upon a showing of bad faith or other extraordinary circumstances. [It] has strictly applied the three-prong test for Younger abstention without separately considering whether the federal action has the practical effect of interfering with the state court action. See Nivens v. Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006)

... In determining whether the doctrine applies, courts use a three-pronged test, asking whether: (1) “there are ongoing state judicial proceedings”; (2) “the proceedings implicate important state interests”; and (3) “there is an adequate opportunity to raise federal claims in the state proceedings.” Id. (citing Middlesex City Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).

... See Kawai v. UaCearnaigh, 249 F. Supp. 3d 821, 825 (D.S.C. 2017) (abstaining under Younger doctrine in an action to enforce an I-864 Affidavit based on pending state court divorce and support proceedings).

Child support orders must address health insurance, non-covered medical expenses, no evidence of costs needed

A child support order must include provisions for how health insurance and non-covered medical expenses are shared between the parties, the Court of Appeals says in Elliott v. Wendell, 12/20/2016. 

An absence of evidence does not negate a court’s statutory responsibility to ensure that a dependent child’s health care needs are met by making provisions for the same in an order of support. Zubricki v. Motter, 12 Va. App. 999, 1002, 406 S.E.2d 672, 674 (1991); see also Whitney v. Whitney, No. 2192-06-2, 2007 Va. App. LEXIS 203, at *14 (Va. Ct. App. May 15, 2007) ...  In Zubricki, we found “no merit” in a father’s argument that a trial “court erred in ordering him to pay health insurance or health expenses without any evidence as to their cost.” 12 Va. App. at 1002, 406 S.E.2d at 674. Noting that a “court is not required under the statute to determine the amount of coverage that will be necessary as there is no way for the court to predict the costs,” we nonetheless recognized that “[u]nder Code § 20-60.3, a child support order must contain a provision for health care coverage.” Id.

Ordering a party to provide health insurance does not require any evidence or findings; making the exception, for when it's not available at reasonable cost, does.

The sole statutory exception to the requirement that health care coverage be addressed in a child support order is when there is a showing that coverage is not available at “reasonable cost.” Absent such a showing, the order must contain a provision for health care coverage. Here, the absence of sufficient evidence prevented the circuit court from finding that the exception applied. In the absence of such evidence, the default rule is that “a child support order must contain a provision for health care coverage.” Id. (emphasis added). Accordingly, the circuit court erred when it failed to include a provision regarding health care coverage in the order.

When a court does conclude from the evidence that no coverage at a reasonable cost is available, the court still must include a written statement to that effect in the order.

On non-reimbursed medical expenses, the trial court did not order anything, because the only evidence was about incomes, and that there was no evidence about what the medical expenses were. But

Code § 20-108.2(D) ... establishes a default method by which a minor child’s uncovered medical expenses are to be allocated between the parties. Absent “good cause shown or the agreement of the parties,” “the parents pay in proportion to their gross incomes.” The only evidence needed to determine the relative amounts each party is responsible for is the parties’ gross incomes.

The Court also reminds us why it can cite unpublished opinions, and what they're worth:

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

Transferring G.I. Bill benefits, PTSD, and veterans behaving badly

In a case dealing with several military issues, the Virginia Court of Appeals reversed awards to the wife of 18 months of a husband’s GI Bill benefits, non-modifiable alimony, and the entire marital share of his military retirement.

The order on the GI Bill was reversed because the benefits legally were not transferable. 38 U.S.C. § 3319 only allows such transfers during active duty, and only to a “spouse, children, or both”. After the divorce, the wife was no longer the spouse, the Court reasons.

The husband, who served in the Marine Corps from 1998 until 2011, seems to have been behaving badly and erratically. The Court upheld imputing his former income to him because he lost his job with a defense contractor for several months of poor work performance, including not showing up for work and not communicating. In 2015 he told his wife he was having an affair with his ex-wife and was leaving the marriage, and then felt suicidal and checked himself into a hospital. A year later, he was in court for a protective order hearing the day before the divorce trial, but then did not show up for the trial. His lawyer could not contact him, a continuance was denied, and so he did not get to present evidence. He later said he was being medicated for PTSD and depression, and took too much of his medication that morning, and the next day he was hospitalized in a mental ward for eight days. The trial court did not believe him. His appeal of the denials of his motion to continue, and his motion to be allowed to present evidence later, failed for the usual reasons: procedural defaults, trial judge’s discretion, and failure to cite specific resulting rulings that harmed his interests (though those were obvious and the rest of the appeal was about them). However, the Court of Appeals ended up remanding all the economic issues for a full rehearing because of the flatly illegal rulings on alimony, retirement and the G.I. Bill, so effectively it did give him his day in court.

Garrett v. Garrett, Va. Ct. App. Unpublished 4/18/17

Late license justifies annulment of marriage AND of marital financial agreement, other fallout

The case of MacDougall v. Levick and Levick v. MacDougall (2/23/16) is a big mess for everyone but provides superbly-written and useful guidance on many issues at a time of change in family law.

The couple's wedding was in 2002. They apparently -- rather incredibly, but no one seems to have ever questioned their honesty on this -- had not realized they needed a marriage license. Their rabbi was completely unfamiliar with Virginia, and prudently went to the Fairfax Circuit Court beforehand to register as clergy so he could perform the wedding. The day of wedding,  he asked the couple for the license, and they said there wasn't one. He thought that was odd and unprecedented, but then again many things about Virginia seem odd to people from Montgomery Co., Md. Everyone decided to "deal with it later" and the wedding proceeded. Two weeks later, the couple got a marriage license, but instead of then having a brief additional ceremony with the rabbi or a civil magistrate, they mailed it to the rabbi in Maryland, and he signed it, certifying the marriage as occurring on the day he signed it.

The couple lived together, assuming they were married. In 2009 they entered a Va. Code § 20-155 "Marital Agreement", which is like a prenup but after the wedding, and in fact they are often done when a marriage seems to be breaking down.  Indeed, many complete separation/property settlement agreements claim to be Marital Agreements, citing 20-155. It gave the wife $150,000 a year in alimony -- not too much more than the average income and cost of living in the Northern Virginia suburbs -- and it said  it “shall form the foundation of a divorce or separation agreement, should either come to pass”.

And it came to pass that the wife filed for divorce in 2011, asked the court to incorporate the agreement and grant pendente lite alimony based on it, and received a pendente lite award of about two-thirds what the agreement said.

You Gotta Getta License

Virginia has required some form of licensing by church or state BEFORE marriage since 1628, the Court points out. Licensing first, then "solemnization". The wife had argued that the rabbi's signing of the certificate was a solemnization, or alternatively that the whole process of the wedding, the licensing and the signing was one single comprehensive event of the formalizing of the marriage. No, the Court says, because license always means something you get BEFORE you can do something -- hunting driving, practicing law -- and "To “solemnize” means “[t]o enter into (a marriage, contract, etc.) by a formal act, usu[ally] before witnesses.” Black’s Law Dictionary." Or "“to perform with pomp or ceremony or according to legal forms; esp : to unite a couple in (marriage) with religious ceremony : celebrate (a marriage) with religious rites”). " (Webster's) 

Mailing a license via express mail for a signature when the parties are not even present does not constitute “solemnization” under any reasonable definition of the term. FN 3: We reached a similar conclusion in Davidson v. Davidson, No. 2356-08-3, 2009 Va. App. LEXIS 313, at *4-5 (Va. Ct. App. July 14, 2009) (“The marriage license presupposes a ‘marriage ceremony’ solemnizing the union. And whatever formalities the ceremony requires, at the very least it requires the attendance of both the prospective bride and groom . . . .” (quoting Code § 32.1-267(C)))

... Offield, 100 Va. at 251, 40 S.E. at 910, ... observ[ed] that Virginians, “from the passage of our earliest statutes on the subject of marriage,” had regarded the statutory formalities as mandatory rather than directory. Id. at 260, 40 S.E. at 913. The Court acknowledged that this holding “‘may result in hardship in some cases’” but took the view that “‘the lesser injury will come from an adherence to the statutory requisite than otherwise.’” Id. at 261, 40 S.E. at 914 (quoting In re Estate of McLaughlin, 30 P. 651, 659 (Wash. 1892)). The Court observed that “‘[o]ur marital laws are plain and simple, not difficult to understand by the humblest citizen.’” Id. at 262-63, 40 S.E. at 914 (quoting Eldred, 97 Va. at 629, 34 S.E. at 485). 

Rules of Equity Don't Apply?

What I find disturbing in this case is this:

We generally reject the application of equitable doctrines in modern divorce suits because this body of law is now chiefly statutory in character. See Bajgain v. Bajgain, 64 Va. App. 439, - 15 - 457-58, 769 S.E.2d 267, 276 (2015).

I learned the maxims of equity in law school, starting with cases governed by the Uniform Commercial Code, and have dealt with them in many divorce cases in my 20 years of practice. I had never heard that they were not supposed to apply in divorce, or in other areas of law dominated by statutes instead of pure common law. Indeed, all family law cases  in Circuit Court were administered on the "Chancery" side of the courts until the structure of Chancery, but not the substance of equity, was abolished around 2006. Judges and lawyers in family law cases frequently invoke equitable doctrines, especially estoppel (which usually means a rule that a part can't claim in court the opposite of what he claimed before, in or out of court). Estoppel is often a key issue in cases about the validity of a marriage or recognition of a foreign divorce. 

But the Court notes that annulment is a creature of "the inherent power of equity, inherited by it from the ecclesiastical courts of England", whereas divorce is created purely by statutes. Pretlow v. Pretlow, 177 Va. 524, 548-49, 14 S.E.2d 381, 387 (1941).  There are statutes about annulments but they codify and set procedures and rules for a remedy that was already available. (Citing Heflinger, 136 Va. at 296, 118 S.E. at 318).

And so, assuming only for the sake of argument that equity defenses to the attack on the marriage are available, it rejects them. Laches does not apply because it is the unexplained failure to pursue a known claim, and here, the person challenging the marriage acted fast once someone told him that the marriage might not be valid. Also, a case chiding a wife for a late challenge to her divorce decree, after the husband and new wife relied on that divorce and got married, does not apply to someone challenging his own existing marriage.

Also, the wife cannot claim that the husband should have known about the problem earlier, when she herself knew all the same facts at the same time. There can be no estoppel when both parties had the same knowledge of the operative facts and the same ability to investigate them. (Citing Fitzgerald v. Fitzgerald, 194 Va. 925, 930, 76 S.E.2d 204, 207 (1953) (quoting Lindsay v. James, 188 Va. 646, 659, 51 S.E.2d 326, 332 (1949)).

Void or Voidable?

The Court finds the marriage merely voidable (by an annulment sought by a qualifying party to the marriage), not absolutely void (regardless of what anyone wants). 

Curative Statute

Va. Code § 20-31 validates good-faith marriages despite any technical problems with the license or the celebrant. But it does not apply to this couple, the Court said, because of the phrase in its first line, "solemnized under a license":

No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

Ratification of Marriage

This certainly could have been a decisive issue, but "The parties have not raised the question of whether they could and did ratify the marriage. Cf. Toler, 173 Va. at 432, 4 S.E.2d at 367. Accordingly, we do not address the question of whether a marriage such as this one may be ratified."

This ground for annulment is not among the grounds which Va. Code. § 20-89.1 says cannot "be decreed if it appears that the party applying for such annulment has cohabited with the other after knowledge of the facts giving rise to what otherwise would have been grounds for annulment; and, in no event shall any such decree be entered if the parties had been married for a period of two years prior to the institution of such suit for annulment."

Interpretation and Construction of Wording

In analyzing a statute, we give each word “‘its ordinary meaning, given the context in which it is used.’” Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep’t of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)).