Virginia Family Law Appeals

Adoption fraud claim rejected; mere “seen and objected to” insufficient, with one exception

The Court of Appeals upheld a refusal to overturn a grandparent adoption for fraud in Castillo v. Bell, unpub. 11/14/17. The mother was served by publication, but learned of the adoption in the same year that it happened, 2010. She filed to overturn it in 2016.  Code § 63.2-1216 prohibits ANY attack on an adoption judgment more than six months after it is made, for any reason, including fraud; but the Court had found it unconstitutional as applied to a non-English-speaking mother in an egregious fraud case, F.E. v. G.F.M., 35 Va. App. 648, 547 S.E.2d 531 (2001) (en banc). But in this case the trial court had found no evidence of fraud, and that the grandmother had done nothing to prevent her from learning of the adoption, and the mother had not appealed those findings.

The mother's appeal was also procedurally defaulted. Simply endorsing as “seen and objected to” does not preserve issues for appeal EXCEPT when ‘the ruling made by the trial court was narrow enough to make obvious the basis of appellant’s objection,’” the Court writes, quoting Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000) (quoting Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E.2d 37, 38 (1993)). As for other means of preserving issues,

Castillo endorsed the final order as “Seen and objected to” without further explanation. She did not file any post-trial motions. The written statement of facts does not include the parties’ closing arguments or objections to the trial court’s ruling.

Jailed father had right to participate in adoption hearing - Alvis v. Thornton

Virginia's Court of Appeals overturned an adoption because the incarcerated father was not allowed transportation to the hearing on whether his consent was being withheld contrary to the best interests of the child, nor any other way to participate, in Alvis v. Thornton, 4/10/18. The trial court, denying his motion for transportation, had cited Social Services' report and his convictions for burglary, larceny, and entering a house to commit assault. Remanded for a new hearing.

Court can let divorcee pay money judgment to ex by transfer of pre-tax funds from IRA, 401k

The Court of Appeals upheld a post-decree order letting a man transfer parts of an IRA and a 401(k) to satisfy a monetary award under Code § 20-107.3(D) in Johnson v. Johnson, 56 Va. App. 511, 694 S.E.2d 797 (2010). He had been ordered to pay $1.2 million in ten equal, annual installments, and said he had no other way to pay the $120,000 that had come due. Wife had a tax expert testify that if she cashed out the $120,000 in retirement funds after receiving them, she would only have $60,736 after taxes and early withdrawal penalties.

The trial court had the discretion to approve this particular property transfer, and to justify it by interpreting what it had intended in the original award, the Court said.

Neither the opinion, nor the trial judge's statements that it quotes, say why the difference between the pre-tax $120,000 value, and the post-tax, post-penalties $56,000, does not matter. The trial judge is quoted on that only as saying,

And when I ordered that in this case the award could be satisfied by the transfer of property, I think that intended to mean the value of the property. It was $120,000. What she decides to do with it is up to her. And I don't think the Court should take any consideration of the fact that she's going to say she wants to cash out.

Essentially, it seems that this is considered an exercise of the broad discretion that Code § 20-107.3(D) gave the trial judge. I think the trial judge and Court of Appeals understood very well the difference that it made, but the trial judge had the discretion to decide what was equitable in the circumstances. The trial judge may have been saying that at the time of the original award, he was basing the award on pre-tax assets and intended all along to divide that, not post-tax dollars. But not necessarily.

Court can order transfer of solely-owned property to satisfy monetary award, though not as division of that property

The Court of Appeals upheld an order letting a wife transfer her share of a business to the husband to satisfy a monetary award in Linton v. Linton, 63 Va. App. 495, 500, 759 S.E.2d 14, 16 (2014). The Court said that while Code § 20-107.3(C) says

C. Except as provided in subsection G, the court shall have no authority to order the division or transfer of separate property or marital property, or separate or marital debt, which is not jointly owned or owed. ...

This transfer was a court-approved means of satisfying a monetary award made under Code § 20-107.3(D), which says

D. In addition ... the court has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party. The party against whom a monetary award is made may satisfy the award, in whole or in part, by conveyance of property, subject to the approval of the court. ...

The Court explains:

Code § 20-107.3(C) applies only to the transfer or division of property without any reference to the satisfaction of a monetary award. A transfer or division of property to satisfy a monetary award would be controlled by Code § 20-107.3(D). These two statutes address completely different situations in the equitable distribution statutory scheme.

"Continuing objection" not specific enough to preserve issue for appeal

After the trial court refused a jury instruction embodying his view of the law to be applied, counsel objected, then asked the judge to consider it a "continuing" objection so he wouldn't have to keep repeating it. The judge agreed. But the Supreme Court found the objection unclear: Which of the two legal issues in the instruction was it about? Or was it both? Counsel did not object about the issues when his opponent mentioned them in closing argument, and did not move for a curative instruction or a mistrial to counter the opponent's improper references to them. Williams v. Swenson, 4/5/18.

Contract voided as impossible after legal restrictions and benefits it divided were not just changed, but abolished

The Virginia Supreme Court, in a rare move, has declared a provision in a contract void because it was about something that was later abolished by a change in the law, making it impossible to perform the obligation which it created. The contract divided up two developers' rights to build up to a certain density under a County-imposed density cap, and said how to divide rights caused by a future increase in the cap. The cap was later abolished. The trial court and Supreme Court agreed that running the contractual formula now would involve using the number "infinity" in place of the previous cap, which made the calculation, and thus performance of the contract, impossible. 

[f]ractions of infinity, or any unlimited quantity, are mathematical nonsense.”

... See Mount Aldie, LLC v. Land Trust of Va., Inc., 293 Va. 190, 200, 796 S.E.2d 549, 555 (2017) (“Our presumption is always that the parties ‘were trying to accomplish something rational. Common sense is as much a part of contract interpretation as is the dictionary or the arsenal of canons.’” (quoting Fishman v. LaSalle Nat’l Bank, 247 F.3d 300, 302 (1st Cir. 2001))). 

RECP IV WG Land Investors LLC v. Capital One Bank, 4/5/18

Oral order, or written one rejecting motion to reconsider, past 21 days, can't be reviewed, if no judgment stay requested; post-order objections in letters no good.

A mother's letters to the trial court, after a custody and visitation consent order was entered, do not preserve issues for appeal, the Court of Appeals ruled in Bracaloni v. Edge, unpublished 6/2/15. The letters claimed she had been “under duress and forced to sign” the agreement. The trial court treated them as a Motion to Reconsider, held a hearing on that within 21 days after the Order, and ruled from the bench that it denied her motion to reconsider. It did not put that ruling into a written order until after the 21 days had run. Even later than that, the mother filed objections. (Her letters had not asked the court to stay, vacate or suspend the original order. What should matter is whether the court DID stay its order, but perhaps the Court is saying the lack of a written request proves conclusively that the trial court did not do so.)

The Court of Appeals refuses to review the order that was made more than 21 days after the original order, and to consider the late written objections.

Mother indicated that her assignment of error was preserved in her motion to reconsider and her statement of objections, which were not timely. Therefore, mother’s assignment of error was not preserved and will not be considered.

The sentence above is not clear as to whether it was only the "objections, which were not timely", or the motion to reconsider AND the objections were both untimely. As the "motion to reconsider" was two letters written within the 21 days, it is not clear why that would be considered untimely, unless it is because they were not stated before the order was entered.

The Court finds the paternal grandparents "entitled to a reasonable amount of attorney’s fees and costs, and we remand for the circuit court to set a reasonable award of attorney’s fees and costs ... which also should include any additional attorney’s fees and costs incurred at the remand hearing. 

 

Living under the same roof in separate rooms isn't cohabitation, if you handle your finances like roommates, not a couple

Tolley v. Tolley, 2009 Va. App. Unpublished (09/29/2009) 
The husband and wife divorced in 2006. In their divorce decree, the husband needed to pay the wife $1,200 spousal support per month for an unidentified period of time. However, the decree stated that the spousal support would be terminated at the event of either of the party's death, if the wife remarried or if the wife cohabited “with a member of the opposite sex in a relationship analogous to a marriage.” Two years later the ex-husband filed a petition that the wife was cohabiting with another man, and he sought to terminate the spousal support. The court denied his petition stating that the evidence established that wife’s living arrangements created only the “perception” of cohabitation. On Mr. Tolley's appeal, evidence that his ex-wife suffered from bipolar manic depression and was rendered disabled made her lose her apartment. She then moved into a trailer with her boyfriend, where they occupied separate bedrooms and bathrooms. The ex-wife would write checks to pay for boyfriend’s bills because he did not have a bank account. Then the boyfriend would give ex-wife money to cover the amount of the checks she wrote for his bills. The ex-wife would occasionally drive boyfriend’s vehicle.  The court "conclude[s] that the trial court did not err in finding that the evidence failed to show that wife and Allmond [boyfriend] “mutually assumed the duties and obligations normally associated with a marriage.” Id. at 767, 525 S.E.2d at 618. See Frey v. Frey, 14 "Other than wife’s payment of rent to Allmond to share living space in his trailer home, and using cash given to her by Allmond to pay some of his bills from her checking account, Allmond and wife did not support each other financially. The fact that each benefited financially from that financial arrangement did not establish that they were living together in a relationship analogous to marriage. They did not own property together. Allmond’s name was not on wife’s bank account." No error in trial court’s finding that the evidence presented at trial did not prove appellee was cohabitating with another in a relationship analogous to marriage in violation of the parties’ divorce decree.

 

General objection to order, never putting arguments in writing nor on record, doesn't preserve issues for appeal.

A parent whose rights were terminated made a "general objection" to the order, which did not include his arguments. He filed a written "statement of facts" for the termination hearing (not to be confused with the Statement of Facts provided for in the Court of Appeals rules), but it did not include his argument either. He asks the Court of Appeals to overlook this default to attain the “interest of justice.” But

“In order to avail oneself of the [good cause or ends of justice] exception [to Rule 5A:18], a [litigant] must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).

"Here, the record falls far short of affirmatively demonstrating a miscarriage of justice," the Court continues. In order to examine the "miscarriage of justice" question under Rule 5A:18, it effectively reviews the facts of the case for error anyway, concludes that "DSS presented clear and convincing evidence that father has been unwilling or unable to remedy substantially the conditions which led to the child’s foster care placement," and affirms. Woodard v. Dinwiddie DSS, unpublished 6/16/15.

 

Divorce overturned; no third-party corroborating witness to continuous one-year separation, intent to end marriage, documents don't prove enough

The Court of Appeals reversed and dismissed a divorce case where no third-party witness corroborated one year's continuous, uninterrupted living apart with one party intending to end the marriage. Belle v. Belle, unpub. 1/19/16. 

“No divorce, annulment, or affirmation of a marriage shall be granted on the uncorroborated testimony of the parties or either of them.” Code § 20-99(1).

The Court DOES NOT say that there must always be a third-party witness; rather, it points out how the particular documents introduced in this case are not sufficient.Indeed, it quotes authority saying it does NOT need to be from witnesses. However, the deficiencies it points out in the documents give grounds for grave doubt about trying to corroborate any divorce case with documents alone.

Both parties had asked the court to divorce them. Evidence in the case "included medical and credit card bills, employment documents and pay stubs, criminal records, records from the Department of Motor Vehicles, .. tax returns ... protective orders, an arrest warrant, and a summons ...."

... wife argued that the income tax documents, pay stubs, and medical bills introduced into evidence established that the parties had continuously lived at different residences during the one-year period preceding the circuit court’s entry of the final decree of divorce. Wife claimed that this evidence sufficiently corroborated the grounds for divorce ...

... At most, however, those documents only corroborated that the parties lived at separate residences. Standing alone, evidence that parties have lived at separate residences does not establish that the parties intended to end their marriage at the time of their separation.

...The parties must prove that at least one of them intended “to discontinue permanently the marital cohabitation” at the time of their physical separation. Hooker v. Hooker, 215 Va. 415, 417, 211 S.E.2d 34, 36 (1975). The parties must establish that they separated with the intent to permanently end their marriage.

... Moreover, the exhibits themselves failed to establish that the parties had lived at separate residences continuously for one year. While the exhibits corroborated that husband had lived at the marital residence throughout the parties’ separation, they only established that wife had lived at her residence for approximately six months ...

But what is corroboration? 

The question of corroboration is one of fact, the decision of which in each case depends upon the peculiar facts of that particular case. It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential charge stated as a ground for divorce. The corroborative testimony need not be sufficient, standing alone, to prove the alleged ground for divorce. . . . The general rule is that where a particular fact or circumstance is vital to [the] complainant’s case, some evidence of the same, in addition to the complainant’s own testimony, is essential. The main object of the provision of the statute requiring corroboration is to prevent collusion. Where it is apparent that there is no collusion, the corroboration needs to be only slight. . . . [Additionally, corroboration] need not rest in the testimony of witnesses but may be furnished by surrounding circumstances adequately established. Graves v. Graves, 193 Va. 659, 661-62, 70 S.E.2d 339, 340-41 (1952) (emphasis added) (quotation marks and citations omitted); see also Dodge v. Dodge, 2 Va. App. 238, 245-46, 343 S.E.2d 363, 367 (1986).

Though they don't seem crucial to the outcome, the Court notes some facts that may give it additional cause to be skeptical and to see good reason for requiring corroboration of something more than sometimes having two different addresses:

Wife also testified that the parties attempted to reconcile during the year following their initial separation and that they maintained a sexual relationship for almost three years.

...

While wife sought several protective orders against husband, the last order that she sought was voluntarily dismissed due to the parties’ attempted reconciliation. Thus, the documents in the record pertaining to the protective orders do not imply that either party intended to end the marriage.