Virginia Family Law Appeals

Third party's mortgage payments were marital; sole custody justified, GAL report evidence; sole-named debt can be weighed AND ordered paid -- Harrop II v. Harrop

THIRD-PARTY MORTGAGE PAYMENTS WERE MARITAL:

A church's payment's of a divorcing couple's joint mortgage obligations were marital-property contributions to the home's equity, even though the husband was the sole occupant and solicited the church's assistance, the Virginia Court of Appeals ruled in Harrop II v. Harrop, unpublished, March 7, 2023. He presented no  evidence of what the church's intent was, so he did not overcome the presumption that paying a jointly-titled debt was a gift to both spouses, not just him.

That's all straightforward and sounds right. What's troubling is the court's footnote to this, which seems to mean that its holding is not really going to be the rule in similar future cases where such payments are made post-separation:

We recognize that because the property at issue was acquired after the date of the parties’ last separation, husband would have been entitled to a presumption that the property was separate property. See Luczkovich v. Luczkovich, 26 Va. App. 702, 708 (1998) (“Property acquired after the last separation is presumed to be separate unless the party claiming otherwise proves that the property ‘was acquired while some vestige of the marital partnership continued or was acquired with marital assets.’” (quoting Dietz v. Dietz, 17 Va. App. 203, 211-12 (1993))). However, because husband did not make this argument to the trial court or to this Court on appeal, we treat it as waived. Coward v. Wellmont Health Sys., 295 Va. 351, 367 (2018) (“[I]t is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.” (quoting Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017) (applying Rule 5A:20(e)))).

Does "the property at issue was acquired after the date of the parties’ last separation" mean that the home -- the property being divided -- was acquired post-separation, or that the church's contributions to the mortgage were "property" the husband "acquired"? The latter, apparently, because the husband was already making mortgage payments on the home for the same month when the parties separated. So the footnote strongly implies that the payments were property, and were acquired by the husband, even though they were third-party payments of a debt that was in both spouses' names. And that if only he had made that argument, he would have won that point, unless the wife could present proof that the church intended a gift to both spouses.

SOLELY-TITLED DEBTS:

The court also reconciled two things the equitable distribution statute says about debts that are in only one party's name: Code § 20-107.3(C) says “the court shall have no authority to order the division or transfer of . . . marital debt, which is not jointly owned or owed.” It also says the court "shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the [equitable distribution] factors listed in subsection E.” 

Therefore, "the court could account for the debts in the course of equitably distributing the property under Code § 20-107.3(E)."

But not only that, "Code § 20-107.3(C) ... still gives courts the option to account for those debts by ordering one spouse to pay debts in the other spouse’s name."  However, that was not actually an issue in the case. The court was simply upholding the trial court's allocation to each party of that party's own debts that were already in that party's sole name.

That apportionment, which left the husband with debts elevenfold greater than the wife's, was not a blind refusal to consider such debts: it was correctly done by considering the equitable distribution factors, e.g., "the cumulative effect of the extra-marital conduct ... was devastating and ... a significant negative nonmonetary contribution," and "wife’s positive contributions to the family, including raising the parties’ children and spending substantial time educating herself on how best to care and advocate for the child with autism."

The trial court also properly considered the “debts and liabilities of each spouse” as a factor, and  "accounted for holding husband responsible for most of the marital debts by awarding wife less of the marital property than she had sought." 

CUSTODY:

The court also approved of the trial court's reasons for awarding sole legal custody: The father was "'mostly resistant and uninvolved'", "'quick-to-anger'", “'resistant to engage in a dialogue with [wife] about child-related decisions' and lacked 'willingness to collaborate with her over the past three years'  ... 'even if an agreement is reached in the moment, [husband] takes steps afterwards to frustrate the process and recharacterize the outcome.'”  These observations in the Guardian ad Litem's report also "'coincide closely with'" the trial judge's firsthand observations.

Why was the Guardian ad Litem's report admissible evidence? The Court emphatically rejected the father's argument that "a guardian ad litem report is entitled to no more weight than a closing argument. See Wiencko v. Takayama, 62 Va. App. 217, 233 (2013) (finding that the abuse of discretion standard 'affords the trial court appropriate flexibility in determining to what extent it should rely on the recommendation of the guardian ad litem'); Bottoms v. Bottoms, 249 Va. 410, 420 (1995) (reversing trial court’s custody determination for failing to consider guardian ad litem report)."

And the trial court had authority to order sole legal custody even though the mother's pleadings did not expressly request it: "a court may award relief it deems appropriate, even if that form of relief was not specifically requested by that party. ... D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 336 (2005) ... Cloutier v. Queen, 35 Va. App. 413, 424 (2001)." And the father comprehensively  "put the question of custody before the court in his counterclaim for divorce when he asked the court to 'adjudicate issues of child custody, visitation and support of the parties’ minor children.'”

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.

 

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

Giving the GAL 'sole discretion over determining visitation' is erroneous.

Reilly v. Reilly, 2016 Va. App. LEXIS 343 (December 13, 2016)

The circuit court order stated, the "Mother shall enjoy Supervised Visitation . . . . Supervision can be altered IN WRITING by the Guardian ad Litem based upon [the] Mother's strict compliance with the conditions and other provisions set forth in this Order." The mother argued that the circuit court "gave the GAL 'sole discretion over determining visitation' between [the] mother and the children." The Court of Appeals agreed with the mother and said that the plain language of the order gave the GAL "authority to alter supervision without a ruling from or any hearing in the circuit court." The court then granted the mother a trial de novo and held that it was erroneous "for the circuit court to approve such language allowing a third party, even a guardian ad litem, total discretion to decide [the] mother's visitation without providing judicial review because it is inconsistent with the language and purpose ofCode §20-124.2."

 

 

Adoption reversed because adoptive parent caused the mother's lack of relationship and contact with child

The Court of Appeals reversed a trial court that mis-applied the best-interests-of-the-child standard in approving an adoption by finding that the mother withheld consent to it contrary to the child's best interests. It said the trial court put too much emphasis on the mother's long time without contact, and lack of a relationship with, the child, and not enough emphasis on how that separation from the child was lengthened and worsened by the adoptive parent's deliberately interfering with and preventing contact, and lengthy litigation.

Gregory v. Martin, Record No. 0816-15-3 (July 19, 2018, unpublished)

The mother had a long history of drug abuse was incarcerated for grand larceny, breaking and entering, and larceny with intent to steal when the child turned one. The father also had a problem with drug abuse, therefore the child stayed with the paternal grandfather and the child's father's sister, who filed a petition for adoption. The child's father gave consent, but the mother did not. Upon the mother's release, she filed a motion to amend visitation, but the court denied her motion because it was not in the best interests of the child, and found that the mother unreasonably withheld her consent for the aunt to adopt her child. There was a court appointed GAL on the case, and the GAL stated that the mother never really had a relationship with the child. The court found that the child was in a good place and should stay with the aunt, and that the mother refused the child's best interest by withholding her consent for adoption.

Joint legal custody proper despite protective order, parents' inability to communicate

A court can award joint legal custody even if there is also a protective order against the mother’s directly communicating with the father, based on his claims of domestic violence and threats, the Virginia Court of Appeals said in Armstrong v. Armstrong (published, 11/12/19). Although most domestic violence protective orders are enforced to punish not only direct, but indirect, communication, the trial judge had specifically directed the parties to communicate through third parties when needed for co-parenting and allowing other narrow exceptions (explaining that their their “red-hot hatred has cooled to a slightly lower-grade, weary hatred.”)

Some details from the trial court’s opinion form a striking illustration of common patterns in custody fights:

In its opinion, the court found that both parties enjoyed a close relationship with A.A., and although the parent-child bond was equally strong for father and mother, each parent had deficits. The court had concerns that mother was “highly erratic” and verbally and physically abusive toward father. The court found that father “offers a more stable living situation than [mother]” and “provided certainty and stability to the child during the parties’ separation.” However, the court described father as “calculating” and found that he “pushes [mother’s] buttons, then decries her erratic response.” It determined that father “has clearly cut [mother] out of his life” and is “attempting to strategically take [her] out of [A.A.’s] life as well.” The court concluded, however, that mother’s erratic and abusive behavior toward father was “so extreme that the stability [father] provides outweighs his negatives.”

The father had no case law to support his argument against joint custody. He argued that for the trial court to ignore “the acrimony” was “a clear error of judgment” – one of the few kinds of abuse of discretion identified in Lambert v. Sea Oats Condo. Ass’n, Inc., 293 Va. 245, 252-53 (2017) (quoting Manchester Oaks Homeowners Ass’n v. Batt, 284 Va. 409, 429 (2012)). But the Court of Appeals points out that the trial court deeply and fully considered the acrimony and had explicitly based its ruling on the child’s best interests.

Here, the court expressly found that “[b]oth parents are unable to cooperate in resolving disputes,” and it declined to award sole legal custody to either parent. It did not single out either mother or father for obstructionist conduct but did note that father is “attempting to strategically take [mother] out of child’s life.” The court’s award of joint legal custody was a reasonable measure to prevent father from using primary physical custody to curtail mother’s relationship with A.A.

The mother appealed separately and the Court dealt with her appeal in a separate, unpublished opinion.

Mental health report inadmissible hearsay in parental rights termination

In a parental rights termination, it was improper to consider a mental health “pre-admission screening report” on a parent, which included historical information and third-party statements from various sources, the Virginia Court of Appeals says in Ansell v. Harrisonburg/Rockingham Social Services District (1/15/19, unpublished). The report did not qualify for admission as a business record under Rule of Evidence 2:803(6), because its custodian could not testify that the records, or the information in them, came from someone with knowledge of the facts recorded in them. The report was hearsay and was offered at trial for the truth of what it said. However, the Court also found this to be harmless error. It explained that the report was used to prove the mother’s mental state at the time the children were taken, but “was of minimal value in determining” whether she had remedied her problems since then, which was the issue in the hearing. Also, she had not objected to admission of medical records from her hospitalization, or to other references to information from that pre-admission screening. And the trial court found “from its observations of Ansell while she testified” that the mental problems still existed.

Keeping children out of country, preventing visitation, is grounds for losing custody

When a mother took the children to South Korea and refused to return them, it was proper to consider her denial of access to the father as a factor in determining child custody and awarding it to the father, Virginia’s Court of Appeals says in Park v. Chong (2/5/19, unpublished). 

Mother's bad arguments failed to be preserved for appeal every which way

Brown v. Gordon, Record No. 1906-15-1 (June 14, 2016)

 Brown (mother) appeals a custody and visitation order, which granted sole legal and physical custody of the parties’ minor child to  Gordon (father). Mother argues that the trial court erred by (1) violating her right to a de novo hearing because it denied her motion to relieve the guardian ad litem (the GAL) and allowed the GAL to issue the same report that was presented to the Virginia Beach Juvenile and Domestic Relations District Court (the JDR court); (2) granting sole custody of the minor child to father, even though he was absent from the child’s life for four years; (3) granting sole custody of the minor child to father, even though he previously had contested an increase in child support when the child was in mother’s custody; and (4) granting sole custody of the minor child to father, without first speaking with the minor child. 

The Court noted that on the first allegation the mother’s arguments  differed from her arguments to the trial court. During the trial, she asked the court to relieve the GAL because she thought he was biased and submitted reports that were similar to what was filed in the JDR court.  “[The court] will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18. “The purpose of Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its attention.” Lee, 12 Va. App. at 514, 404 S.E.2d at 737. Since mother did not raise the argument below that she is arguing on appeal, the Court will not consider her first assignment of error. Then with the second and third allegations, the court stated that “an objection [must be] stated with reasonable certainty at the time of the ruling.” (Emphasis added). The purpose of Rule 5A:18 is to “enable the ruling court to take any necessary corrective action,” Saunders v. Commonwealth, 38 Va. App. 192, 195, 562 S.E.2d 367, 369 (2002), and to “rule intelligently on the issues presented,” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). Therefore the court will not consider those allegations of error either. "Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. The court upheld trial court's custody and visitation determination as mother failed to preserve her arguments for appeal." The Court concluded that the fourth alleged error could not be appealed because the trial court took mother’s motion under advisement, but never ruled on it. “If [the] opportunity [to address an issue] is not presented to the trial court, there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal.” Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006). An appellate court can only “determine whether or not the rulings and judgment of the court below . . . were correct.” Jackson v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489, 493 (1942).  

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.