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 Nourdeen v. Nourdeen, unpublished 2003.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 Clark v. Clark, unpublished 9/15/98.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)).