Virginia Family Law Appeals

Pendente lite support can't be changed retroactively, but needn't be maintained to keep up innocent spouse's unaffordable "lifestyle"

A trial court correctly refused to retroactively reduce the pendente lite support it had ordered, even though it found the amount unaffordable and the failure to pay it non-willful, the Court of Appeals says in Everett v. Tawes, unpublished 7/10/2018. The husband argued that "while Code § 20-107.1(H)(6) states that an unpaid support obligation creates a judgment, there is no similar language in the pendente lite statute, Code § 20-103, and thus the legislature intended that pendente lite support be treated differently." But

The law is settled that support payments vest as they accrue and may not be modified retroactively. See Cofer v. Cofer, 205 Va. 834, 839, 140 S.E.2d 663, 666 (1965); Smith v. Smith, 4 Va. App. 148, 152, 354 S.E.2d 816, 818 (1987).

The Court cites several cases in which pendente lite support that had been paid could not be ordered reimbursed, even if the divorce case was dismissed and the marriage found to be void, and apparently is satisfied that they likewise protect accrued but unpaid payments.

[Though the Court does not point this out, § 20-107.1(H) on the contents of spousal support orders says that "an order directing the payment of spousal support" shall contain the language. It does not limit itself to "final" orders. Though § 20-107.1 as a whole begins by authorizing spousal support "upon the entry of a decree", or in an alimony case begun in juvenile court, that limiting language is in another subsection of 107.1, numbered (A). It is not in framing language whose sentence structure reads onto all the subsections. The statute has no such framing language.]

The wife also appealed, claiming that when the trial court awarded permanent alimony that was far lower than the pendente lite figure, it mismeasured income, failed to consider tax consequences, and improperly considered the property division that the wife received in the divorce, and that as the blameless party, she should keep the "upper middle class lifestyle" she had during the marriage. Affirming, the Court notes the trial court's finding that the couple had lived beyond their means, its proper consideration of the husband's ability to pay, its consideration of expert testimony on how tax payment patterns reduced cash flow and made incomes smaller than they appeared. The statutes not only make property division an explicit factor to consider when awarding alimony, but also encourage and facilitate that by having courts divide property and debt before determining support, it says. The consideration of property division in this support determination was unusually clear, because the monetary award was broken down into monthly payments, and the trial court considered those when measuring both parties' incomes.

Doctor can reduce work hours and alimony payments at 66; complex property settlement FUBAR by unforeseen events

The Court of Appeals upholds a reduction in alimony for a 66-year-old anesthesiologist who reduced his brutal work hours and planned to fully retire, and who testified that that was consistent with other anesthesiologists his age, in Gadpaille v. Gadpaille, unpublished 7/10/2018.

The trial court in that case also dealt with marital home sales proceeds that were supposed to be offset against a retirement account division and other sums under the PSA, but which ended up being "a deficiency", apparently a negative number, after accounting for repair costs, fire damage, and reduced insurance coverage. The appeals court finds that the trial court did not rewrite the PSA, but rather, correctly "considered the totality of the parties’ agreement as expressed" in the PSA and in a later consent order, and applied that agreement to the unforeseen circumstances.

Court will not tighten requirements for making wills forgery-proof, but allows extrinsic evidence of intent

Just because a will could have been tampered with, by adding, subtracting or replacing pages, does not change any presumptions about its validity, the Virginia Supreme Court rules in Canody v. Hamblin, 7/19/2018. The deceased's will was properly witnessed, but its pages were not numbered, pages before the signature page were not initialed or signed, and no paragraphs ran from one page to the next. While these might be best-practices, the Supreme Court is loath to add them as requirements, quoting what it said in 1905 and 1831 on the same issue:

Just because computers make forgery easier does not mean we should revisit settled case law. Fraud and forgery are relatively rare. Imposing heightened requirements for submitting a will to probate, based on the outlier possibility of forgery, would thwart the salutary simplicity found in our statutory scheme. This simplicity facilitates the ability of property owners to devise their estate by means of a will. As we observed in Savage v. Bowen, 103 Va. 540, 546, 49 S.E. 668, 669-70 (1905)  ... "These statutory requirements should not be supplemented by the courts with others that might tend to increase the difficulty of the transaction to such an extent as to practically destroy the right of the uninformed layman to dispose of his property by will." 

...

We adhere to our existing case law, which requires the proponent of a will to prove compliance with statutory requirements for the execution of a will, and, once that has been done, places on the challenger of a will the burden of proving fraud.

...

Fraud “must be proved; and, in the absence of proof, the court will not imagine that fraud may possibly have been practised, and act upon that imagination. Such a course would convert the law which was meant as a shield, into a sword, and destroy twenty good and fair wills for one that was fraudulent.” Boyd v. Cook, 30 Va. (3 Leigh) 32, 50 (1831).

Nothing in this case was a "suspicious circumstance" which, under Barnes v. Bess, 171 Va. 1, 8, 197 S.E. 403, 405 (1938), would put the burden of proving authenticity on the proponent of the will.

The witnesses in this case had not read the will, but the Court avoids anything that might tend to imply that witnesses should do that.

The Court also explains that when a will's authenticity is questioned, in certain circumstances it is proper to hear evidence of what the deceased said about his or her intentions, whether consistent with the will or not. Although extrinsic evidence of testamentary intent would appear to be absolutely inadmissible under Payne v. Rice, 210 Va. 514, 517, 171 S.E.2d 826, 828 (1970); and Poindexter v. Jones, 200 Va. 372, 379, 106 S.E.2d 144, 148 (1958), the Court finds it admissible in certain situations under Samuel v. Hunter, 122 Va. 636, 95 S.E. 399 (1918):

Such declarations, standing alone, are not admissible as direct evidence to prove or disprove the genuineness of the will; but that in all cases where its genuineness has been assailed by other proper evidence, the declarations are admissible as circumstances, either to strengthen or to weaken the assault, according to their inconsistency or their harmony with the existence or terms of the will.” Id. at 638, 95 S.E. at 399. Therefore, although the proffered statements were “not admissible to prove the substantive fact of forgery,” they were “admissible as showing the state of mind of the testator and his plan and intent as being consistent or inconsistent with a will, the genuineness of which is called in question by other proper evidence.” Id. at 641, 95 S.E. at 400.

This evidentiary holding is troubling, though harmless in this particular case. The Court is saying that in this case, the alleged flaws in the execution of the will are not suspicious at all, and that there is no evidence of any forgery or fraud, merely speculation. And yet it invokes the Samuel exception, even though that exception is subject to a threshhold requirement that there already be "proper evidence" calling genuineness into question. This suggests that the Samuel exception could be applied in any case where a will is disputed.

Custody order to consult before major decisions does not include scheduling of uncontested first communion

Failing to tell the other parent when the child's first communion was rescheduled was not contempt of a court order to "consult with each other before making any major decisions regarding the child’s health, education, religion, or well-being,” the Court of Appeals says, reversing a Circuit Court finding of contempt. While taking communion may be a major decision, the exact scheduling of the first communion is not.

The case law is well established that “before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied.” Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309 (1977) (quoting Wood v. Goodson, 485 S.W. 2d 213, 217 (Ark. 1972)). “[T]he process for contempt lies for disobedience of what is decreed, not for what may be decreed.” Id. (quoting Taliaferro v. Horde’s Adm’r, 22 Va. (1 Rand.) 242, 247 (1822)).

... Here, the divorce decree provided that father would consult with mother regarding J.’s religion, which he had done by discussing with her that J. would enroll in classes to prepare for taking his first communion. Father told mother a month in advance when J.’s first communion ceremony with his class would be held and that J. would take communion on his own the next time he went to church with father if he did not participate with his class. Mother voiced no objection to J. taking communion, but said that he would not be available to do so with his class because she had custody of J. on that day and had other plans. Father’s duty to inform mother of the new date for J.’s first communion may have been implied under his duty to consult, but it was not stated expressly in the decree. If the parties had intended that each parent give the other parent notice of the child’s activities so that the parent could attend or participate, they could have stated that clearly in the decree. Because father’s duty to advise mother of the new date was implied, rather than expressly stated, the trial court abused its discretion in finding father in contempt.

Not contempt, but certainly not very nice, right? Well, actually, in the Court of Appeals's version of the facts, he effectively DID tell her when it was going to happen, and she did not seem interested in attending:

Father is a practicing Catholic; mother is of another faith. However, mother knew that father was raising J. in the Catholic faith and had not objected to J.’s taking religious instruction classes to prepare for his first communion. J.’s class was scheduled to take their first communion as a group on Saturday, May 7, 2016. Because mother had custody of J. that weekend, father sent mother an email on April 13, 2016, telling her about the scheduled first communion and asking if J. could participate with his class. Father also told mother that if J. could not attend on May 7, he would take his first communion on his own the next time he went to church with father. Mother replied that she had plans for that weekend so J. would not be available, but she did not say that she objected to J.’s taking communion, nor did she ask to be informed of any alternative date. Mother knew that father went to church on Sundays. J. took his first communion on May 15, 2016. Mother learned he had done so on May 16, 2016, but she made no complaint for over a year until she sought the rule to show cause.

On fees, the Court upholds the denial of attorney's fees to the father, and declines to award him his fees on appeal.

Aviles v. Lewis, Va. Ct. App. unpublished 7/3/18. Opinion by Senior Judge Rosemarie Annunziata.

Can't claim "clerical error" to appeal a long-ago decision about income amount in support case

Absolutely nothing noteworthy or at all surprising was decided in the summary affirmance of Clifton Antony Grant v. Toni Gail Walters, Court of Appeals 07/03/2018.