Virginia Family Law Appeals

Custody court couldn't order something not raised in pleadings -- it violates "the most rudimentary due process safeguards"

Virginia's Court of Appeals reversed a trial court's order that a father “initiate revocation of the children’s Greek citizenship” in Kiriakou v. Kiriakou,Oct. 13, 2020. Nothing related to that was mentioned in any pleadings, and it first came up when the mother testified that she wanted it. The father claimed on appeal that he had no power to revoke another's citizenship once it was granted, and that the court had no statutory authority to order it. He was probably right on both counts, but the appeals court did not deal with either claim, because it agreed with him that the Court couldn't grant relief that was neither requested in, nor relevant to, the pleadings.

Before expanding on that, I'll note two other holdings of this ugly and sad custody case:

• The trial court did not abuse its discretion by not following the joint custody recommendations of an "uncontradicted" court-appointed expert witness.
• It was OK to give the mother the power to cancel individual visitations when the children's therapists recommended it. If the mother were to abuse that power, and cut the children's contact with the father, the father would not be powerless, because he could come back to court.

Now, some of the worst things I've seen judges do are things nobody had ever suggested. An idea comes to them in the middle of the trial, so it's something that neither lawyer has prepared for, researched the relevant law, considered the possible side effects, or asked their client about the relevant facts. The clients are the ones really affected, of course -- they're hit with something they haven't even thought about, and they feel that they and their lawyers are defenseless. It's a basic violation of due process -- you're supposed to get fair notice of what a court might do to you. It's also why we have an adversary system -- I know some judges who are excellent at passing judgement on others' proposals, but if they short-circuit the process with their own spontaneous ideas, things happen that have never really been examined and soberly considered.

This is the only time I can recall an appeals court recognizing this widespread injustice, and they really lay into it:

This Court agrees with father and holds that the trial court abused its discretion in issuing the Greek citizenship order because that order was not based on any allegations or requests for relief made in mother’s pleadings. Under well-settled Virginia law, a “litigant’s pleadings are as essential as his proof, and a court may not award particular relief unless it is substantially in accord with the case asserted in those pleadings. Thus, a court is not permitted to enter a decree or judgment order based on facts not alleged or on a right not pleaded and claimed.” Dabney v. Augusta Mut. Ins. Co., 282 Va. 78, 86 (2011) (quoting Jenkins v. Bay House Assocs., 266 Va. 39, 43 (2003)). The purpose of pleadings is to “give notice to the opposing party of the nature and character of the claim [against him], without which the most rudimentary due process safeguards would be denied.” Boyd v. Boyd, 2 Va. App. 16, 19 (1986).

...

The basis of every right of recovery under our system of jurisprudence is a pleading setting forth facts warranting the granting of the relief sought. It is the sine qua non of every judgment or decree. No court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed. . . . Pleadings are as essential as proof, the one being unavailing without the other. . . . Every litigant is entitled to be told by his adversary in plain and explicit language what is his ground of complaint or defense. . . . The issues in a case are made by the pleadings, and not by the testimony of witnesses or other evidence.

Ted Lansing Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va. 1139, 1141 (1981) (quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207 (1935)). Thus, a court is without authority to issue an order unless it is based upon pleadings before it.

But in a child custody case, aren't there all kinds of things that courts order, that aren't specifically described in pleadings? Yes, but

Mother’s pleadings made no factual allegations relating to the Greek citizenship issue either explicitly or implicitly. Furthermore, the crux of the special relief requested by mother in her pleadings related to custody of the children, orders finding appellant in contempt of a prior court order, and additional relief requiring father to submit to psychological evaluation. No request for relief was related to the Greek citizenship issue.

That mother included a general prayer requesting any relief the trial court deemed necessary and appropriate is unavailing. A general prayer “will support relief only for those matters placed in controversy by the pleadings and, thus, any relief granted must be supported by allegations of material facts in the pleadings that will sustain such relief.” ... Because mother did not make any factual allegations related to the Greek citizenship issue in her pleadings, any order involving the children’s Greek citizenship based on mother’s general prayer was outside the scope of what was put at issue in this case by mother’s pleadings.

 

Diplomatic Immunity in left-behind country is no defense against Hague Convention on child abduction

Hogan v. Hogan, 2017 U.S. Dist. LEXIS 4387 (E.D. V.A. January 10, 2017)

A U.S. diplomat in Spain filed for divorce and sought to return to the U.S. with her two children, but the father objected to the removal of the children from Spain because they were "thriving in their Spanish community". Disregarding the father's wishes, the mother took the children to the U.S. and resided with them in Virginia. The father then filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of the children to Spain. The mother then moved to dismiss, claiming to be entitled to diplomatic immunity in Spain. At oral argument, however, respondent’s counsel conceded that neither respondent, nor her family, presently enjoyed diplomatic immunity -- after all, the mother was no longer in Spain, but had returned to the U.S. Respondent’s motion argued that the petition must be dismissed because the Hague Convention is “inapplicable” to the custody dispute underlying the petition. The court concluded that diplomatic immunity could not protect mother from child custody laws, otherwise any diplomat would lose the ability to recover their own abducted children, making them "second class parents."

Liberty University's insurer needn't defend it in civil suit for anti-gay child abduction & advocacy - US Appeals Court

The federal Fourth Circuit court of appeals has reversed a trial court ruling that had said the University's insurance company should have defended it against a civil suit for the role its employee played in the international child abduction in the Miller-Jenkins case between Vermont and Virginia. A Vermont lesbian couple broke up and the partner who was the child's natural mother took her to Virginia and claimed that since Virginia would not recognize the couple's Civil Union under its Defense of Marriage Act, it should not recognize the other woman's parenthood and should not enforce a role for her in the child's life. This argument failed, going all the way to the Virginia Supreme Court, and a network of Christians who conscientiously objected to the state having the power to make a non-parent a parent (at least in a gay relationship) helped the mother flee to Nicaragua with the child.

The insurer was not required to defend the suit because the insurance policies have exclusions for:

• any harm that was “expected or intended from the standpoint of the insured”
• injuries “arising out of a criminal act committed by or at the direction of the insured.” 
• any “‘[p]ersonal and advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury’” 

The Court continues:

"Critically, unlike the underlying complaints considered in the cases cited by the district court, the Jenkins Complaint does not allege that Appellee was responsible for its agents’ intentional acts because it was negligent. Rather, the Jenkins Complaint alleges that Appellee is directly liable for harm arising from its intentional participation in conspiracies and vicariously liable for the intentional acts of its agents."

Something that should be very disturbing to any family-law attorneys, law professors, to anyone who has advocated civil disobedience of what they believe to be unconstitutional laws and directives, and to any lawyers who defend people in controversial cases that pit various kinds of human right against each other, is this:

The Jenkins Complaint also asserts that Appellee was vicariously liable for the role Hyden played in the kidnapping, for its agents’ racketeering, and for its agents’ participation in a conspiracy to violate Jenkins’s and the child’s “rights to a parent-child relationship.”

In particular, the Jenkins Complaint charges that Miller retained the dean of Liberty University School of Law, Mathew Staver, and one of the school’s professors, Rena Lindevaldsen, as her attorneys. As alleged, Staver and Lindevaldsen encouraged and assisted Miller in violating state court orders, established social media forums soliciting donations to groups that aimed to “prevent court ordered contact” between Jenkins and her daughter, and planned with other co-conspirators to kidnap the child. 

...

The Jenkins Complaint further alleges that Staver and Lindevaldsen “routinely instructed their Law School students that the correct course of 7 action for a person in . . . Miller’s situation would be to engage in ‘civil disobedience’ and defy court orders.” Id. at 45. As such, “Liberty University encouraged its agents to disregard state laws governing parental rights . . . of same-sex families.” 

Based on these facts, the Jenkins Complaint alleges that Appellee was directly liable for its involvement in the kidnapping scheme and, at the same time, vicariously liable because it “promoted, condoned and explicitly ratified its agent[s’] tortious, racketeering activity.” 

So, in several respects, the underlying lawsuit was a blatantly unconstitutional, Un-American "SLAPP" suit -- a "Strategic Lawsuit Against Public Participation." But it is hard to distinctly say that it actually stands on its own as such a suit, because it also includes what sound like very legitimate claims that should have been redressed: the same people named in the lawsuit for their academic work, and legal and political advocacy, were also alleged to have done very concrete things, which they should have known were illegal, to help the mother sneak the child out of the country to prevent the other mother from visiting with her. Even though they honestly believe that the other mother is not a real mother, had no rights, and that the government violates parents' rights, and gains dangerous and unprecedented power, when it decrees that a non-parent is a parent and that the biological father is not a parent (except in cases where it is required by the child's needs because of child abuse or neglect). 

The suit against the University was dismissed, but the immediate effect of this ruling is that the insurance company will not have to reimburse the University for its legal fees and costs in that suit.

LIBERTY UNIVERSITY, INC., v. CITIZENS INSURANCE COMPANY OF AMERICA; HANOVER AMERICAN INSURANCE COMPANY; HANOVER INSURANCE COMPANY, published, U.S. Fourth Circuit, Case No. 14-2254 (July 10, 2015).

More background on the case:

The real story behind Miller-Jenkins

 

Pastor Charged in Parental Kidnapping in Miller-Jenkins Gay Custody Case - NYTimes.com

 

Fathers' group explains its support for gay parents' custody rights

Costs awarded, fees denied to respondent in Hague Convention case - Va.Ct.

CUSTODY – INTERNATIONAL REMOVAL – HAGUE CONVENTION – FEES. Interpreting the Hague Convention on parental abduction and the International Child Abduction Remedies Act, the federal district court for the Eastern District came to a conclusion that is hard to avoid from the wording of the Convention itself and the implementing federal statute, 42 U.S.C. §11607, and denied a successful respondent custodial mother a fee award. The federal judge did find that he was authorized to award her costs under Federal Rule of Civil Procedure 54(e)(1), using inherent powers of the court. However, as it enumerates the costs that she doesn’t get, one wonders what non-fee costs might be left for her to collect. The husband and wife were living together in Switzerland when they separated. The father is a British subject and the mother an Iranian citizen, and the child is a Swiss citizen. After hearing at some length from experts on Swiss law, the court came to the inescapable conclusion that the Swiss court’s award of full sole custody to the mother gave her the unqualified right to remove the child over the father’s objection, which she did, coming here. The judge understandably concluded that the ICARA fee provision makes fees available to only a prevailing practitioner, not a respondent. Not only does the ICARA not provide for “two-way fee shifting,” but it would be inappropriate under such circumstances to try to invoke the court’s “inherent powers” to do so. The court found authority from other circuits going the same way, but the fee shifting provision in §11607(e)(3) is quite clear. There is no authority under subsections (b)(1) or (b)(2). Finding no bad faith or abusive actions on the plaintiff father’s part, and his claims not frivolous, the court considered this just. He failed to prove by a preponderance, though he did bring on some evidence, that removing the child violated his rights under Swiss law, or was for the purpose of denying him his visitation rights. The issues being close, the court still found it equitable to award some costs, but specifically excluded transportation, courier, copying, faxing and scanning. White v. White, ___ F. Supp. ___, (9/13/12), opinion by Judge Ellis of the Alexandria Division.

Prizzia case breaks ground on custody/support jurisdiction, property

This is the first part of our state bar Family Law News case note about Prizzia, the case about everything. Today we'll introduce the case and detail the holdings related to child custody and support. Tomorrow, the property-division parts of the case.

CUSTODY JURISDICTION — UCCJEA — CHILD SUPPORT JURISDICTION CREATED OUT OF CUSTODY — EVIDENCE AND PROCEDURE — TELEPHONIC TESTIMONY — FUGITIVE DISENTITLEMENT DOCTRINE — PROPERTY DIVISION — MARITAL AND SEPARATE, GIFTS — VISITATION COMPLIANCE AUTHORITY — CONDITIONING EQUITABLE DISTRIBUTION ON COMPLIANCE — PENSION DIVISION — MARITAL SHARE OF DBP AND DCP — CREDITS AGAINST CHILD SUPPORT OBLIGATION — GUIDELINE DEVIATIONS — WRITTEN FINDINGS REQUIREMENT — DAY CARE EXPENSES: SUFFICIENT EVIDENCE. The Court of Appeals in Prizzia v. Prizzia, 58 Va. App. 137, 707 S.E.2d 461 (4/12/11) made so many important legal rulings that all that can be done in this small space is to summarize them right at the outset, note a few curious matters raised and explain a little about the fact situation. It is not necessary, for such treatment, to attempt to describe in detail the tangled and unusual fact situation that gave rise to all these rulings. Readers are referred to the full court opinion, cited above, to get all that straight. Basically the wife, who did not want to return from a Christmas visit of the whole family to Hungary, stayed there with the child after the husband returned to Virginia and sued him for divorce and custody in the Hungarian courts. Husband then promptly sued for divorce and custody in Virginia, where the family had lived for the past year and a half, until the Christmas holidays. The trial court got around to ruling about eight months later that Hungary properly had jurisdiction over all issues but property, and declined to exercise whatever jurisdiction it might have. It set a hearing on property division and alimony to take place after Hungary had granted a final decree. What the Hungarian court decreed about two and a half months after that was a divorce and custody and visitation. When husband sought a ruling on all these issues in Henrico County, wife stayed away but the court let her testify by telephone deposition de bene esse. Sticking to its guns, though, the trial court dealt only with property division, child support and alimony. The resulting appellate rulings in this case include some real surprises, which will be news to many lawyers.

 

— UCCJEA: In fact, the Court of Appeals says, the trial court did have jurisdiction to make an initial custody determination, and its decision to decline and defer, even temporarily, to Hungary was inconsistent with the UCCJEA. Virginia was the home state when husband filed, under the “Recent Home State” rule: the child had been living in Virginia for some time, and was less than six months gone (§20-146.12(A)(1)). And for Hungary’s exercise of jurisdiction to be controlling here, it would have to have been “in substantial conformity” with the UCCJEA, and it was not, because it disregarded Virginia’s recent-home-state status. Nor could Virginia defer without having conducted the statutorily required forum non conveniens analysis under §§146.4(B) and 146.18.

— CUSTODY JURISDICTION PRODUCES SUPPORT JURISDICTION: Then, in a truly surprising bootstrapping move that throws into question everything that has been taught, since the first UCCJA, URESA, etc. came along, about custody jurisdiction and support jurisdiction being different animals, hermetically sealed compartments and never the twain shall meet, the Court of Appeals said that because the trial court had custody jurisdiction it therefore “had concomitant jurisdiction to order child support.” And not only that, but it also had “equity jurisdiction,” because the filing was originally one for divorce (citing §16.1-241(A)(3), the Juvenile Court Empowerment Statute). Yes, the Court nicely and patiently explains, when a filed divorce case includes custody and support issues, even if the same court does not end up exercising jurisdiction over the divorce itself, it retains jurisdiction to award child support as that is an “equitable concomitant” to custody jurisdiction. The suspension of jurisdiction’s exercise by the “decline and defer” decision of the trial court means that the wife’s support award couldn’t be retroactive, to the date wife filed in Hungary.

 

— CHILD SUPPORT REDUCTION CREDITS AND CHILD SUPPORT EVIDENCE (NO MERE TESTIMONY): And whilst on child support, it is incumbent on one to note some really important rulings the Court made about child support which had nothing to do with international issues. The husband had made some payments for private school and for English lessons, which the judge credited when setting his child support. And there was nothing wrong with that, the Court of Appeals explained when wife’s counsel argued that these were some of those highly-disfavored “non-conforming payments.” No, the Court of Appeals said, you can’t very well have non-conforming child support payments where there has been no child support order already in place for them to not conform to. He made these payments that he wanted credit for before all this support hearing business came on. And although wife wanted credit for her rather outrageous day care expenses, including a nanny who cost her more than her total earnings, the trial court didn’t have to count those because she didn’t produce sufficient credible evidence, which she has the burden to do. The fact that the statute says you shall include day care expenses in the calculation doesn’t mean a payee can throw any figure out there, and support it with nothing but her oral testimony. That’s right, wife’s mere testimony about her day care and nanny expenses was insufficient proof as to the amount, and certainly as to the reasonable and appropriate amount. In fact, she had an obligation to show whether the kids were attending the public school which provided free child care options, and if not, why not.

— APPEALS — FUGITIVE DISENTITLEMENT — EVIDENCE — TELEPHONE TESTIMONY: Now the wife wasn’t about to come back from Hungary to participate in her divorce litigation, and the trial court was asked by the husband’s counsel to apply some “fugitive litigant remedies,” and require that she appear in person to represent her interests, or even better, that her case be dismissed and she not be allowed to participate in any other way. But the trial court had discretion to allow her to appear and participate by telephone rather than in person, and the Court of Appeals upholds that. Insofar as there is a fugitive disentitlement doctrine, that remedy is a dismissal or a complete bar, but the doctrine is discretionary, and it doesn’t authorize courts to “erect a complex pyramid of varying degrees of particular sanctions” required for specific situations. Nor does it confer any right on the non-fugitive party, since the right belongs to the court itself, to vindicate its dignity and authority.

— PROPERTY DIVISION AND CUSTODY (VISITATION) ENFORCEMENT: Now the wife, staying safely in Hungary all this time, and taking her appeal to the Virginia courts, did not afford the father in Virginia his court-ordered visitation with the kids. But when the trial court got punitive about this, and decided it would condition the wife’s receipt of her share of the marital property on visitation compliance, it exceeded its authority, the Court of Appeals says. That’s right, though trial courts have discretion to determine how divorcing parties’ respective shares of the marital property will be paid out, they can’t mix custody law and property division law like this. Divorce jurisdiction is purely statutory, and if the General Assembly had wanted judges to be able to enforce visitation that way, they would have said so.

 

Left-behind parent coming to Va. for UCCJEA case can't get served here or incur Va. jurisdiction

CUSTODY – UCCJEA – CHILD-SNATCHING REMEDIES – “INCURRED PERSONAL JURISDICTION” CLAIMS – IMMUNITY FOR PLAINTIFF.  A wife coming from Belgium to get her wrongfully removed child back by invoking the UCCJEA in Harrison v. Harrison, 58 Va. App. 90, 706 S.E.2d 905 (4/5/11), had far better luck than did the father in Sasson v. Shenhar, who tried the same thing in the same local trial court, adding a Hague Convention claim as well, and was told he had incurred personal jurisdiction thereby, with all that that entails.  The Court of Appeals finds the matter simple enough in this case involving Americans residing in Belgium — a wife who decided she would like to stay there, and a father who came here, didn’t return the children after a visit when wife came to claim them, and served her here with Virginia divorce papers when she came here to litigate for a UCCJEA claim.  The fact situation was more complex than that, of course, with the children being registered for school in Belgium, numerous agreements having been signed on various aspects of this, wife’s trips back and forth to Virginia for husband’s benefit to arrange his new living situation, etc.  But stripped down to its simple elements, as the Court of Appeals views it this time, the case involved a litigant coming here to appear in court to get her children back after the other parent’s refusal to return them after a scheduled visit, and service of Virginia pleadings on her while she was here for purposes of that litigation.  That, the Court of Appeals declares, does not in any way confer personal jurisdiction upon Virginia over that litigant.  The Court points of course to the specific immunity section of the UCCJEA, Code §20-146.8, and it finds no support for husband’s claims to the contrary in the long-arm statute, §8.01-328.1(A)(9).  No doubt about the matter. The Court, in the unanimous opinion by Judge Alston, declares that the UCCJEA immunity provision means what it says:  That a party who comes here to enforce a custody order or take part in a child custody proceeding does not incur personal jurisdiction here simply by having done that, nor by being physically present for purposes of participating.  While some of the wife’s actions might have looked ambiguous, given the off-and-on vagaries of a couple’s emotional relationship, she was very careful never to do anything while here that might have indicated residing here or intending to do any official act here that would arguably take advantage of Virginia legal or governmental entities.  Wife’s motivations in all of this might not have been the purest, as it appears she had acquired a boyfriend over there, but the husband’s efforts to argue it was wrong to sustain relevancy objections to testimony about her marital relationships were of course unsuccessful.  That Wife deceived husband about her reasons for wanting to stay in Belgium was testimony that does not pass the long-established basic test for relevancy.

TERMINATION OF PARENTAL RIGHTS — PLACEMENT WITH RELATIVES — ABUSE VICTIMS AND ABDUCTORS NOT FIT GUARDIANS.

Who said the Court of Appeals doesn’t believe in parental alienation syndrome? Some very interesting social theories are adopted as law by the Court of Appeals in an unpublished parental rights termination case, Ange v. Chesapeake Department of Human Services, 12 VLW 1106 (2/3/98). This was a challenge to termination that turned upon the Code §16.1-238(A) requirement of duly considering placement with the father’s relatives before terminating his rights. The Court of Appeals holds that the DSS properly investigated these relatives and the court properly found that neither of them, the grandmother nor the aunt of the child, offered the required “beneficial alternatives.” First, although foster care would seem to be a temporary expedient from which children are supposed to be removed, and removed promptly, in this case a psychologist and a social worker opined that to remove this child from her foster home is such a horrible idea that it would cause “regression” and “mental decompensation” inducing “psychosis.” And while one social worker found the father’s sister’s home to be an appropriate placement, this social worker was shown not to have known the extent of the domestic abuse that this aunt had suffered at the hands of her estranged husband. Another very interesting ground, stated for finding another of the father’s sisters unworthy, is that she is a mother who had abducted her own children from their father’s care, and hid them for several weeks by moving them from hotel to hotel.