Virginia Family Law Appeals

Boyfriend spending the night once or twice a week does not constitute cohabitation that would terminate alimony -- Harris v. Harris

Harris v. Harris, Va. App. unpublished (11/13/2012)

The husband appeals an order of the trial court denying his motion to modify spousal and child support. Husband alleged that his wife had been habitually cohabiting with another man in a relationship analogous to a marriage for more than one year. Accordingly, husband sought to terminate his spousal support payments pursuant to Code § 20-109(A). On appeal, husband assigns the following errors. The trial court erred by concluding the evidence was insufficient to prove that wife was cohabiting with another person in a relationship analogous to a marriage for more than one year, the trial court erred by misinterpreting and misapplying the applicable common law factors to the facts of this case in its determination of whether wife was cohabiting with another person in a relationship analogous to a marriage for more than one year, and the trial court erred by permitting wife’s lay witnesses to give opinion testimony regarding the ultimate issue of fact. The court addressed the husband's first two assignments of error simultaneously because they are closely related. As we have recently emphasized, “‘the term “cohabit” means to live together in the same house as married persons live together, or in the manner of husband and wife.’” Cranwell v. Cranwell, 59 Va. App. 155, 161, 717 S.E.2d 797, 800 (2011) Indeed, “[t]he requirement that the payee ex-spouse and that party’s paramour be shown to have established and shared a common residence is firmly established in Virginia case law.” “Thus, if two individuals do not share a common residence, they are not cohabiting. Although ‘proof of a common or shared residence does not itself establish cohabitation,’ sharing a common residence is a ‘requirement’ for cohabitation.”  The parties’ daughter, who lived with wife, testified that she saw the boyfriend only once or twice a week and that at times she would not see him for two weeks. The daughter also verified that the boyfriend had a separate house near Charlottesville. The trial court concluded that husband had failed to prove, by clear and convincing evidence, that wife was cohabiting with her boyfriend. The trial court expressly found, “I don’t think they ever established a common residence.” With respect to husband’s third assignment of error regarding the admission of lay opinion testimony, we note that husband’s entire argument on this issue in his brief consists of the following: “It further was material error of law to allow the opinion testimony of lay witnesses as to the ultimate issue of fact, of whether the wife and her paramour were living together, over the objection of the appellant. The trial court committed material and prejudicial error in this regard.” Therefore, there was no error in trial court’s finding that appellant did not prove by clear and convincing evidence that appellee was cohabiting with her boyfriend; appellant’s issue regarding lay opinion testimony waived under Rule 5A:20(e). 

Alimony despite adultery upheld; no three-judge panel can overturn any precedent

The Court of Appeals upholds an award of alimony despite the recipient's adultery, on grounds of "manifest injustice" consideringthe parties' "relative economic circumstances" respective degrees of fault in the breakdown of the marriage, in  Pattillo v. Pattillo, unpublished 5/29/2018. Just as in Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993), "fault" for this purpose includes everything leading to the breakdown of the marriage, not just conduct that would be grounds for divorce. It can even include "a gradual breakdown in the marital relationship".

When asked to overrule the long-standing Barnes holding, the Court replies that "Even if we wished to do so, we could not," because of "the doctrine of interpanel accord," meaning that a "decision of one panel . . . ‘cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court." It cites Startin v. Commonwealth, 56 Va. App. 26, 39 n.3, 690 S.E.2d 310, 316 n.3 (2010) (en banc).

In this case, the trial court found that the husband's income was $260,000 per year; and the wife earned $9/hr and could earn only $25,000 per year (the husband's expert's figure), having only a high school diploma and having stayed home with the children during the 18-year marriage. The divorce was caused by the wife's several years of adultery with two family friends and neighbors, but that "Husband’s inattention to Wife and the amount of time he devoted to his career, which often took him away from home at least one week of every month, led to the gradual dissolution of the marriage before Wife committed adultery.” After coming home from work he would merely "acknowledge" the family members and then be "glued to his computer" until bedtime. It continued,

Wife testified that the marriage was a loveless and lonely place as far back as the early 2000’s. Husband was unemotional and both parties were non-confrontational which would result in the parties failing to communicate with each other. Both parties admitted that their lack of communication was a large component in the dissolution of the marriage. Several witnesses who knew Wife and Husband over the years testified that Husband always tried to make Wife happy. However, Wife would complain about Husband’s lack of socializing with her and their friends and his unwillingness to spend money. ...

Husband testified that his lack of communication skills, work schedule and exhaustion contributed to the demise of the marriage. And the [c]ourt does so find. Therefore, even though Wife committed adultery in the years immediately prior to the parties’ separation, the [c]ourt finds that the marriage was irretrievably lost due to gradual dissolution caused by mutual inattention and fault from both parties.

The appeals court did not award fees to either party.

 

Courts don't have to give spouse any survivor benefit, nor half the marital share of retirement

The Court of Appeals upholds a divorce order that let a severely disabled military retiree keep 55% of the marital share of his retirement. Pederson v. Pederson, Va. Ct. App. Unpub. 8/2/16 His incapacity alone would justify that, the Court says, and the wife was able to earn $100,000 per year while the husband was unemployable. It also cited evidence of the wife contacting his superiors, which judges around here don't like, these days:

Evidence related to wife’s inappropriate e-mail exchanges with husband’s superior officer, her reports to authorities of alleged professional misconduct by her husband (reports that ultimately were deemed unsubstantiated by those authorities), and the circumstances surrounding husband’s decision not to accept the promotion to Wing Commander provided a sufficient basis for a reasonable factfinder to conclude that wife was less than supportive of husband’s career.

The Court also upheld the refusal to include in the retirement-division order a requirement to indemnify the wife for reducing disposable retired pay by electing disability.  Though that was considered legal at that time, nothing required the trial court to do so. 

Survivor benefits: Code § 20-107.3(G)(2) gives the court discretion to award any survivor benefit, or not to.

The opinion includes many other points about appellate procedure, life insurance beneficiary designations, and conservatorship, but I don't believe they break any new ground.

Affair taken into consideration when determining equitable distribution.

Wiley v. Wiley, 2017 Va. App. LEXIS 33 (February 14, 2017)

In this case, the court of appeals affirmed the circuit court's holding that the husband had wasted marital funds. The husband had used marital funds for some proper purposes, such as paying the marital mortgage. However, he also used marital funds to pay off his credit card. His credit card was used to furnish a lavish apartment for himself and his girlfriend. In addition to the apartment, the pair would go on multiple vacations, and enjoy expensive. The husband failed to trace all of the marital funds to proper purposes. On the date of trial, they had only approximately $50,000.00. With this evidence, it was not an abuse of discretion to find the husband had wasted marital funds. The Court of Appeals also held that the trial court was not punishing the husband for his affair when it reviewed the economic and non-economic effects of the affair when determining equitable distribution. Regarding the non-economic effects, the parties' minor child had taken the husband's "breaking up [their] family" hard. Furthermore, the husband had testified that he missed visitation with his child to vacation with his girlfriend. This behavior may have been motivated by the fact that the girlfriend had informed the husband that his relationship with his minor child was negatively impacting his relationship with her. Considering these factors, it was not an abuse of discretion to consider the effect of the affair when considering equitable distribution.

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)

 

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

Court of Appeals reverses alimony reservation award to adulteress; uncertain future cannot be "manifest injustice"

A wife's award of a reservation of possible future spousal support following divorce has been reversed by the Court of Appeals because it found that her admitted adultery during the marriage and before separation bars any spousal support under Va. Code § 20-107.1(B), and the facts of the case do not qualify her for the Code's exceptions to that rule.

Circuit courts are not supposed to award continuing support to an adulterous spouse at the end of a divorce case, except in cases where there is so much economic dependence that denying support would be "manifest injustice". Here, husband had income of $16,432 per month, and wife earned $3,369 per month, and was eligible for retirement benefits when she retired. The trial court called wife's behavior “inexcusable,” “reprehensible” and “beyond reprehensible.” But the Court of Appeals found that the lower court did not make adequate particularized findings of the spouses' economic circumstances, and that it therefore erred by ordering support after failing to determine by clear and convincing evidence that barring support would cause a manifest injustice, based on an assessment of the parties' respective degrees of fault and relative economic circumstances under Va. Code § 20-107.1(B):

B. Any maintenance and support shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91. However, the court may make such an award notwithstanding the existence of such ground 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.

But the appeals court found that

The record does not show that the circuit court actually determined, by clear and convincing evidence, that invoking the spousal support bar of Code § 20–107.1(B) would cause a manifest injustice based on an assessment of the parties' “respective degrees of fault” and the parties' “relative economic circumstances.” The circuit court never stated—or even indicated—that wife had the burden of proving a manifest injustice by clear and convincing evidence. Therefore, we have no way of determining from the record whether the circuit court found that wife satisfied the burden of proof required by Code § 20–107.1(B).

Moreover, the circuit court never expressly mentioned the two factors upon which a clear and convincing demonstration of manifest injustice must be based—i.e., the parties' respective degrees of fault during the marriage and the relative economic circumstances of the parties. The circuit court did not make any actual findings of fact on these two factors when it addressed wife's request for a reservation of spousal support under Code § 20–107.1(B).

During a different point of the proceeding, when addressing the grounds for divorce and child custody, the circuit court did make a vague reference to fault shared by the parties, noting that it was “satisfied that there is some degree of fault on both sides” and suggesting that problems in the marriage may have prompted wife to commit adultery. However, there is nothing in the record indicating that the circuit court—when addressing wife's request for a spousal support reservation order—actually compared the respective degrees of fault by the parties. ...

After stating that it did not know what would happen to the parties in the future, the circuit court then found that denying a reservation of spousal support would constitute a manifest injustice. By its very definition, however, a “manifest injustice” cannot be speculative. See Black's Law Dictionary 974 (7th ed.1999) (defining “manifest injustice” as “direct, obvious, and observable”). Furthermore, Code § 20–107.1(B) makes the “manifest injustice” burden higher still by requiring proof of the manifest injustice by clear and convincing evidence. See Seemann v.Seemann, 233 Va. 290, 293 n. 1, 355 S.E.2d 884, 886 n. 1 (1987) (defining “clear and convincing” evidence as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established”). In addition, this clear and convincing showing of manifest injustice must be based on the two factors of respective degrees of fault and relative economic circumstances. Code § 20–107 .1(B). Even viewing the evidence in the light most favorable to wife (as we must since she was the prevailing party below), it is difficult to see how the circuit court could have determined—based on the parties' respective degrees of fault during the marriage and their relative economic circumstances—that clear and convincing evidence supported a finding that failure to grant wife a reservation of spousal support would constitute a manifest injustice. In this case, the reservation of spousal support was not awarded consistent with the very high burden set forth in Code § 20–107.1(B). 

The Court does not remand, despite the uncertainties and failures to make specific findings that it cites. It simply reverses.

Giraldi v. Giraldi (published, 5/05/15) VLW 5-8-15, p 16

Adultery proof unconvincing for divorce grounds, but rightly considered for property division

 A divorce court was within bounds in concluding that a wife who shared an apartment with a friend might not be committing adultery with him, Virginia's Court of Appeals says in Kidd v. Kidd. The husband said the wife had admitted the adultery, but she denied that and the trial court apparently did not believe him. The wife claimed she lived with the friend primarily so he could care for her during her cancer treatments, which the husband refused to do. The other man's wife claimed they were committing adultery, but it was not clear that she was an authoritative witness. 

But, the Court says, evidence which is not enough, under Virginia's high standards of proving and corroborating a divorce case, can still be used under the lower, more commonsensical standard for determining the behavior-related factors in property division:

The law permits the circuit court to find that a spouse has failed to meed the higher burden of proof as to the basis for the divorce, but to consider adulterout behavior as proved insofar as it related to the equitable distribution determination.

Under this standard, though, the Court upholds the 50-50 division of property, because while it was proper to take the adultery into account, that adultery was from before the couple reconciled and the husband "condoned" the adultery, and the only sign of an affair that was after the condonation, but before the final separation, was the husband's testimony.

The Court also upheld an alimony award because the wife made $34,000 and the husband made $78,000, and the wife had some medical conditions and had trouble paying her bills. The friend and the wife's father continued to support her financially, but rather than hurting her case, that was cited as evidence of her need.

Mixing business, personal affairs makes adultery an attorney-client privilege - Va. Ct.

ADULTERY – PROOF – ATTORNEY-CLIENT RELATIONSHIP (AS A DEFENSE AND AS A PRIVILEGE CLAIM). In an unusual (we would hope) recent case a lawyer wife was able to defend herself against her husband’s adultery complaint by invoking her attorney-client relationship with the alleged paramour both as a substantive defense and as one of her privilege claims. Oh yes, and by taking the Fifth Amendment. Having invoked her right against self-incrimination, her defense was that all her conduct could be explained as pursuit of her attorney-client relationship with her business client, and then when asked to explain her conduct, she invoked the attorney-client privilege because it would divulge business-related information belonging to the alleged boy friend’s business, which she represented. Perhaps the trial court should not have granted the wife’s motion to strike these complaints when it decided to grant a no-fault divorce instead, but since (the court held) she had plausible explanations for her suspicious conduct, it would have been harmless error anyway. On appeal it was the husband’s burden to demonstrate how the ruling on the motion prejudiced his right to a fair trial, and the evidence that the husband did proffer was legally insufficient to compel an adultery finding. Moreover, the Court of Appeals found in this unpublished case, Jordan v. Jordan, 27 VLW 160 (6/26/12), that there was nothing in the record showing any adverse ruling by the trial judge when the wife’s assertion of her Fifth Amendment and attorney-client privileges were challenged. Because there was nothing to show the nature of the husband’s objections to his wife’s assertion of the privileges, his arguments could not even be considered on appeal. Fee awards were denied to both parties.

Va. S.Ct. upholds very free speech critiquing wife's whoring

CRIMINAL-LAW ISSUES – “OBSCENE COMPUTER HARASSMENT” CONVICTION’S REINSTATEMENT – CONSTITUTIONAL AND OTHER PERMISSIBLE OBSCENITY DEFINITIONS? Few Virginia practitioners are likely to have forgotten the case of the cuckolded husband who, after letting his wife and a lot of her friends know exactly what he thought of her conduct after she advertised for sexual partners on Craig’s List, was convicted under §18.2-152.7:1 for computer harassment.  The Court of Appeals had sustained the conviction en banc in Barson v. Commonwealth, 58 Va. App. 451, 711 S.E.2d 220 (7/5/11), 31/3 FLN 11, after a panel had reversed it.  One learns a lot more about the en banc court’s reasoning from the dissent than the majority opinion, but it will be a lot easier to summarize what the Supreme Court did with this appeal, at Barson v. Commonwealth, __ Va. ___, ___ S.E.2d ___, 27 VLW 72 (6/7/12),  than it was for the dissatisfied dissenter to try to explain the majority’s reasoning and why it was erroneous, unconstitutional and totally unacceptable.  Re-reversing the conviction the Supreme Court patiently explains, following the overall rule that criminal statutes are to be strictly construed, that this criminal statute does not simply prohibit harassment by computer, but sets forth specific elements of the offense that have to be proved.  In a case like this one, those include not just use of a computer to communicate obscene language, but that it be done to coerce, intimidate, or harass.  The appellant was not arguing that this intent requirement wasn’t proved, but simply that his words, include “coke whore, baby-killing prostitute” were not obscene.  He had argued that they certainly weren’t obscene under the definition that the General Assembly had followed and approved.  The Court of Appeals had said that the statutory definition of “obscene” in Virginia Code §18.2-372 – which had been drafted in the shadow of the many explicit U.S. Supreme Court decisions striking down unconstitutional state statutes – didn’t have to be followed, because the courts, for purposes of sustaining convictions under the computer harassment statute, could go back to dictionary definitions of that word.  The Supreme Court simply points out that it is indeed the §18.2-372 definition of obscenity and the requirements of Miller v. California, 413 U.S. 15 (1973), and its progeny that control these prosecutions and this case, and that the Court of Appeals couldn’t lawfully substitute the dictionary definition for the one that the General Assembly has provided in order to respect the First Amendment and give citizens fair notice of when they would be committing a crime by their speech.  The Supreme Court went on to hold very specifically that the defendant’s e-mails to his wife, even if they were offensive, vulgar and disgusting, did not meet that §18.2-372 statutory definition.  Reversing, the Court did not remand, but entered final judgment vacating the conviction.  Senior Judge Russell, joined by Judges Goodwyn and Millette, wrote separately to emphasize two points.  They say that the Commonwealth was wrong in arguing that Allman v. Commonwealth, 43 Va. App. 104 (2004), is not binding precedent.  The concurring judges indeed, and apparently the Supreme Court majority does too, that panel opinions of the Court of Appeals, after the time for review en banc and for appeal has expired without there having been any modification by either appellate court, are binding legal precedent – apparently meaning binding upon the Virginia Supreme Court as well.  (A declaration that it might take some very fancy legal footwork to back away from if the Supreme Court should ever come to regret it, or question its universal wisdom).  The issues in this case become even more interesting in the Supreme Court’s disposition of the Court of Appeals holding in Rives v. Commonwealth, R. No. 11492 (June 7, 2012), 27 VLW 78.