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.

 

Changing vague “reasonable visitation“ to specific schedule does not require "change of circumstances"

Changing a court order’s unspecified “reasonable visitation“ to a specific schedule does not require a showing of change of circumstances, because there’s not really any existing visitation order to modify, the Virginia Court of Appeals says in Burgess v. Burgess, 3/16/21. The original order “did not adjudicate the specifics of visitation.“

The court that made a specific visitation schedule did so after ruling that there was no change of circumstances that would justify modifying custody. The father had moved from Fort Bragg to Fredericksburg, which was about an hour closer to the mother and children in Portsmouth, and the parents had been unable to agree on a visitation schedule after the move. 

This reaches the right result with faulty reasoning, which could have unintended and unwelcome effects later on.  The lower court essentially used two separate “change of circumstances” tests for the separate questions of custody and visitation. That was not only commonsensical, but even hypertechnically correct, because in Juvenile court, where the case started, custody and visitation are legally two separate cases. But that’s my opinion. Now back to the appeals court’s opinion:

The mother also argued that once the Court granted her motion to strike, it had no evidence to support a finding that a visitation schedule was in the children’s best interests. Because her motion to strike was granted, the mother did not present any evidence. But that does not show that the court did not consider the children’s best interests.  And striking the father’s modification case, ruling that he had not shown a chance of circumstances, did not impair the court’s power to set a visitation schedule, because, as the appeals court views it, that was not a modification and did not require a change of circumstances.

Military transfer justified custody change, even though servicemember got transfer canceled after trial

In Best v. Montez, Va. Ct. App. May 14, 2019, unpublished, the Circuit Court had changed custody from the father to the mother because the mother was being transferred from Virginia to North Carolina, and the court found that the move would not be in the child's best interest. After the trial, the mother learned that she would not be transferred after all, and filed a motion to reconsider. The court did not change its custody decision, though it did change the visitation that it had ordered.

In the custody modification trial, the court had found that both parents were good, caring, attentive parents; the father was very active, involved, and had almost 50-50 custody time; and the move would impair the relationship with the father and offered no benefit to the child. It found some "unrebutted" evidence that the mother had interfered with visitation, and said she had "made no real effort to avoid the move, likely due to the prior animosity between the parties.”

After receiving the Court's ruling but before the final order was signed, the mother "contacted her supervisor and others, who worked on her behalf to cancel her orders to report to North Carolina due to a “family hardship.'” This was soon successful, the mother was able to stay local, and she filed a Motion to Reconsider, saying that there was no longer a change in circumstances, and that the new development was comparable to "after-discovered evidence." The father responded that she could have made the same effort earlier.

The Circuit Court denied the motion, saying the mother had

... created a change in circumstances by doing something different after the trial because she did not like the result. ... [She] played . . . fast and loose with the Court, made personally no effort to do all the things that she could have done, or presented evidence to the Court of options that she could have pursued, that would have prevented [the parties] from ever being in this position. [The court had] made a ruling based on the best interest of the child based on the circumstances before [it] which were to some extent ... manufactured ... by her failure to make any real effort to try to stay in this area.

The appeals court upheld the ruling, pointing out some essential boundaries defining what Motions to Reconsider are and aren't for:

“A litigant's ‘right to relief on such rehearing depends upon his ability to point out some error on the face of the record, or to show some legal excuse for his failure to present his full defense at or before the time of entry of the decree which he seeks to have modified.’” Id. (quoting Downing v. Huston, Darbee Co., 149 Va. 1, 9 (1927)). “Without valid excuse, no party who has had his day in court can reopen the hearing . . . on the mere ground that he wishes to interpose other defenses which he neglected to interpose before such decision was made.” Id. at 109-10 (quoting Holmes v. Holmes, 7 Va. App. 472, 482 (1988)). “This ‘valid excuse’ standard typically requires a showing that the party has exercised due diligence in making the best of prior opportunities to address the issue . . . .” Id. at 110. Whether a trial court should reopen a case and reconsider its prior rulings is “a matter we review under the highly deferential abuse-of-discretion standard.” Id. at 111.

Mother relies on the Fairfax County local rules to support her argument. However, as discussed in Cloutier v. Queen, 35 Va. App. 413, 422 (2001), the local rules “[are] not Rules of the Court.” “Code § 8.01-4 provides that ‘local rules’ are limited to ‘those rules necessary to promote proper order and decorum and the efficient and safe use of the courthouse facilities and the clerks’ offices.’ ‘Local rules’ cannot affect the substantive rights of the litigants.” Id. at 421-22. The local rules are not binding legal authority in this matter.

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). 

Sailor allowed to relocate children across country

Virginia’s Court of Appeals upholds a decision letting a Navy sailor move her children from Norfolk to her new posting in San Diego; she had looked for postings in both areas as her current assignment neared its end. Stated and implied reasons:

• Mother’s family connections on the West Coast, including her mother who would help care for the children and an aunt in Arizona who could be available in an emergency.
• Father’s mental health condition made him unable to care for the children for extended periods.
• Inconsistently with that, but importantly, the trial court had protected the father-child relationship as much as possible by ordering the most equal sharing possible of the children’s time, giving father all summer with them in Virginia and liberal visits in California.
• The trial court did not give the mother any preference under the Virginia Military Parents Equal Protection Act, such as a different burden of proof. It took the facts, including those related to her military service, into account when seeking a determination that would be in the best interests of the child.
• The father did not have any job that would keep him from moving to California too, nor which contributed to the children’s welfare. He did maintenance work in exchange for living rent-free.
• In the past, the father had moved with the mother’s Navy moves. (That is largely a good point, but it is a fundamentally different decision to move as part of an intact couple, which makes decisions together and cares for each member’s sustainable welfare, versus pulling up stakes and moving based on the movements of an autonomous “legal stranger” who could go elsewhere at any time and may not share information about intentions, possibilities, etc. I recently had a case where a soldier was reassigned to Malaysia, and while litigating against relocation the mother also made serious efforts to get a job there, but then before he moved, the assignment changed to Hawaii, and then to Germany before he actually moved away.)
• The mother’s regular income, health benefits, etc. Those of course are not a legitimate reasons for giving one parent custody over another, and it’s hard to imagine a father getting away with asserting those factors. But in this case, the mother said that if she could not move to San Diego she would leave the Navy. (The opinion does not say if she would be forced to leave the Navy, or choose to. Nor does it discuss civilian jobs the mother could get in Virginia, nor whether she had served long enough to retire with health benefits.)

Not all these factors would normally be very persuasive, nor weigh completely in favor of the mother, but they were all viewed differently in the light of the father’s obvious personal problems and inability to function as a custodial parent.

Wheeler v. Wheeler (unpublished, 5/19/15) VLW 6-1-15 p 16

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.

 

Zurita: CUSTODY MODIFICATION – RELOCATION – CONSTITUTIONAL LAW – SEPARATION OF POWERS – SCHOOL PLACEMENTS.

A trial judge’s attempt to find a novel way of undercutting a father’s case for custody modification on the occasion of a mother’s move out of the original school district led to a constitutional ruling from the Virginia Supreme Court because it caused this judge to tangle with the local school board.  In an opinion involving constitutional law principles rather than custody law issues, the Supreme Court vacated an order that the school authorities enroll the child in a district where neither one of the parties any longer lived.  One of the couple’s two sons, in the mother’s custody, was getting special education. The father had moved out of the district first and the mother later.  Upon her move he sued to modify custody, saying that he would be glad to move back to the original school district if he could have primary custody of the two boys.  This threat to the mother’s continued custody was met by a circuit court order for the school board to enroll the child in the old district this year, despite no residency, even though the school board’s rule is that the child must attend in the district where the parent with primary custody lives.  The school board managed to get immediate appeal of this injunctive order under §8.01-626 as an appeal from an injunction. The school board argued not only that the judges can’t issue injunctions usurping the school board’s constitutional authority over pupil assignments, but also that the issue matters a lot because 9% of the county’s students have parents with different home addresses, and making the school board a participant in any of the thousands of divorce and child custody cases litigated there would be impractical and burdensome in the extreme, and it should have a right to use the simple rule of primary custodial residence.  The Court vacated the injunction in a two-page order.  Fairfax County School Board v. Zurita, 25 VLW 453 (9/28/10). 

 

Judd v. Judd: CUSTODY – RELOCATION.

 The husband and father thought that he had a good technical-procedural, or even constitutional, argument against letting his wife, in the initial custody determination in a divorce case, argue her relocation issue (that she wanted to move the children from Warrenton to Wisconsin).  His argument was that since there is a statute requiring 30 days notice of intent to relocate, and there was a pendente lite custody order with the same statutory requirement recited, the wife had no business coming into court and arguing her relocation case.  However, to the trial judge in Culpeper County it seemed a highly artificial way to go about this thing if he made the wife try the initial custody determination case with the relocation elephant standing in the corner and everyone pretending it wasn’t there.  This is indeed what the husband apparently wanted the judge to make her do, and then she couldn’t move until she had given 30 days notice from at least the time of the new final order -- and then she’d be seeking an instant modification.  That just didn’t persuade the trial judge, and it didn’t persuade the Court of Appeals.  The judge explained very simply and clearly why he wanted to take a practical approach for the sake of judicial economy, common sense and everything else.  And since he gave this full explanation, and the judge’s position was rational, and his decision awarding the mother custody and allowing her to move the children out of state, will stand.  The Court of Appeals goes to some rather complex efforts to explain its approval of this procedure, which is a lot more appealing than the Supreme Court’s position in Parrish v. Spaulding was, and some of its reasoning going beyond all that may be regarded by some as questionable, but the result reached would seem in any case to be fairly sound.  Judd v. Judd, 53 Va. App. 578, 673 S.E.2d 913 (3/17/09).

Demuth: CUSTODY – RELOCATION – PREVENTIVE CONDITIONAL CUSTODY AWARD.

 It can conceivably be all right, in the proper procedural context, to deny a mother’s relocation of the children out of state.  But woe betide a trial court that holds it’s in the best interests of the children to live with the mother, provided she stays here.  As the Court of Appeals points out in the unpublished opinion in Demuth v. Demuth, 23 VLW 527 (10/7/08), it is absolutely forbidden for a judge to indulge in “pure speculation” that the move, at such time as it might come, would not indeed be just fine and dandy for the best interests of the children.  This judge, the Court of Appeals says, should have prohibited the permanent removal of the child from Virginia if he didn’t like it. Setting up an automatic change in custody should a mother move cannot be lawfully done.  To the father’s argument that there was nothing speculative at all about the mother’s moving the children to Texas, since she had specifically stated her intent to do that when they went into court in the first place, the Court of Appeals says that there was nothing in the record establishing that the mother was in fact moving, and in fact she had indicated that she would rather stay here than “lose custody.”  It is impermissible to assume that the mother will move without filing the relocation notice that the divorce decree required her to file, and should she in fact file and serve that paper, the father can then go into court and seek a custody modification, no matter how recent the last order was.  This circuit court abused its discretion by supposedly prejudging the issue.

Westreich: CUSTODY – FACTORS – RELOCATION PLANS – FALSE CPS REPORTS.

CUSTODY – FACTORS – RELOCATION PLANS – FALSE CPS REPORTS.  Some things that can go wrong for even a mother in a child custody fight are illustrated by the unpublished opinion in Westreich v. Westreich, 23 VLW 588 (10/14/08), in which the Court of Appeals upheld a decision giving the father primary physical custody.  The trial court had based its decision on what it euphemistically called “instability and poor judgment calls.” Which included mother’s plan, and her later attempt in court to deny that plan, to marry another man and move the children to Maryland.  The facts which came out included an e-mail to her mother about seeking a Maryland job, which also said and that there were more opportunities for the children in Maryland and the religious environment was more congenial to her.  Other evidence the court relied on included the mother’s filing a false Child Protective Services report against the father about inappropriately touching the children, which CPS found unfounded and which the mother then tried to deny that she had made.     It also considered the mother’s relationship with the boy friend, considered by the trial judge “confusing” for the children.  The Court of Appeals said that the judge did not abuse his discretion by looking at these matters, that the evidence itself showed that the judge had considered all of the applicable statutory factors, and (over mother’s objection) that the judge did not have to state which weight each factor was given.