Virginia Family Law Appeals

Court could not punish husband for wasting a business whose value was unproved.

Von Hassell v. Von Hassell, 2016 Va. App. LEXIS 310 (November. 15, 2016)

Husband assigns multiple errors to rulings of the trial court related to the entry of the parties’ final decree of divorce. Specifically, he contends the trial court erred in classifying certain personal property as appellee wife’s separate property, in its classification and distribution of husband’s interest of a corporate entity in which he was the majority owner, in determining husband’s income for spousal support purposes, and in making certain contempt rulings. 

Parties failed to introduce evidence of value of a marital company. Trial court awarded all marital debt to Husband to compensate "wife for her interest in that entity" and for husband's mismanagement and waste of marital resources. Appeals court found the award to be an abuse of discretion because the award for an interest in the company could not be reconciled with the lack of any evidence as to its value.

Also, an indefinite sentence for civil contempt was reversed because it extended beyond the statutory 12 month limit.

 

 

Wife's lying about hidden painting was intrinsic not extrinsic fraud.

Wagner v. Wagner, 2016 Va. App. LEXIS 257, Record No. 1733-15-4 (Va. Ct. App. unpublished, October 4, 2016)

The couple went through divorce proceedings in 1999, and during those proceedings there was a question about the value of a painting owned by the couple. The wife testified under oath that she had given the painting away at a flea market. The husband wanted to have an expert witness testify about the value of the painting, but the expert was excluded due to the husband’s failure to designate the witness in a timely manner. The judge, consequently, assigned a $2000 value to the painting based on the cost incurred to restore it. That value was used in the equitable distribution award and the final decree was issued. However, in 2016 the case was reopened when the husband filed a complaint alleging  the wife “hid the painting, lied about it during discovery, and committed perjury when she testified that she had given it away.” After a three-day hearing, the circuit court found that the wife had not given away the painting but rather had hidden it during the divorce, and that “her testimony at the divorce hearing, that she did not have knowledge of the whereabouts of this asset and did not have control of the whereabouts of this asset . . . [was] completely false.” The court even remarked that the wife was “the least credible witness in this case of all the witnesses.”  The circuit court determined that the wife’s actions constituted intrinsic rather than extrinsic fraud because those actions “did not prevent ‘a fair submission’ of the equitable distribution matter.” Examples of extrinsic fraud, the court suggested, included “a litigant’s ‘[k]eeping the unsuccessful party away from the court by a false promise of a compromise, . . . purposely keeping him in ignorance of the suit; [and] . . . an attorney[’s] fraudulently pretend[ing] to represent a party[] and conniv[ing] at his defeat.’”Intrinsic fraud, on the other hand, included “perjury, forged documents, [and] other incidents of trial related to issues material to the judgment.” In essence, the court stated, intrinsic fraud was“obscuring facts.” The distinction was critical, the court further observed, because intrinsic fraud is voidable by direct attack but only until the judgment becomes final. Based on this definition, the court affirmed the lower court’s ruling, stating that the husband failed to prove extrinsic fraud and therefore no longer had any grounds for reopening the claim against his wife for fraud related to the equitable distribution of martial property.

Counselor's power over family is an infringement on parents' Fourteenth Amendment rights.

The father appealed, arguing that the trial court erred in delegating to the child's counselor "unlimited, unfettered discretion over any and all parenting decisions to which both parents have to adhere or be subject to the contempt power of the court." The Court of Appeals agreed, making a profound statement about the father's constitutional rights. In sum, the overly broad clause infringes upon the Due Process Clause of the Fourteenth Amendment. The court held that the trial court erred in ordering the parties to fully cooperate with the child's counselors's recommendations. 

Bonhotel v. Watts, 2016 Va. App. LEXIS 327 unpublished, 12/1/16