Virginia Family Law Appeals

Pendente lite support can't be changed retroactively, but needn't be maintained to keep up innocent spouse's unaffordable "lifestyle"

A trial court correctly refused to retroactively reduce the pendente lite support it had ordered, even though it found the amount unaffordable and the failure to pay it non-willful, the Court of Appeals says in Everett v. Tawes, unpublished 7/10/2018. The husband argued that "while Code § 20-107.1(H)(6) states that an unpaid support obligation creates a judgment, there is no similar language in the pendente lite statute, Code § 20-103, and thus the legislature intended that pendente lite support be treated differently." But

The law is settled that support payments vest as they accrue and may not be modified retroactively. See Cofer v. Cofer, 205 Va. 834, 839, 140 S.E.2d 663, 666 (1965); Smith v. Smith, 4 Va. App. 148, 152, 354 S.E.2d 816, 818 (1987).

The Court cites several cases in which pendente lite support that had been paid could not be ordered reimbursed, even if the divorce case was dismissed and the marriage found to be void, and apparently is satisfied that they likewise protect accrued but unpaid payments.

[Though the Court does not point this out, § 20-107.1(H) on the contents of spousal support orders says that "an order directing the payment of spousal support" shall contain the language. It does not limit itself to "final" orders. Though § 20-107.1 as a whole begins by authorizing spousal support "upon the entry of a decree", or in an alimony case begun in juvenile court, that limiting language is in another subsection of 107.1, numbered (A). It is not in framing language whose sentence structure reads onto all the subsections. The statute has no such framing language.]

The wife also appealed, claiming that when the trial court awarded permanent alimony that was far lower than the pendente lite figure, it mismeasured income, failed to consider tax consequences, and improperly considered the property division that the wife received in the divorce, and that as the blameless party, she should keep the "upper middle class lifestyle" she had during the marriage. Affirming, the Court notes the trial court's finding that the couple had lived beyond their means, its proper consideration of the husband's ability to pay, its consideration of expert testimony on how tax payment patterns reduced cash flow and made incomes smaller than they appeared. The statutes not only make property division an explicit factor to consider when awarding alimony, but also encourage and facilitate that by having courts divide property and debt before determining support, it says. The consideration of property division in this support determination was unusually clear, because the monetary award was broken down into monthly payments, and the trial court considered those when measuring both parties' incomes.

Unilateral sales violating pendente lite order were waste, though apparently in good faith and necessitated by marital debt

The Court of Appeals upholds a finding of waste against a husband sold many items during the ten-year separation, though there was a court order saying not to, in Moret v.  Moret 5/08/2018. He argued that the parties' overwhelming marital debts justified it.

 “[T]he burden is on the party who last had the funds to establish . . . that the funds were used for living expenses or some other proper purpose. If the party is unable to offer sufficient proof, the [trial] court must value the property at a date other than the date of the evidentiary hearing so as to achieve an equitable result.” Clements v. Clements, 10 Va. App. 580, 588, 397 S.E.2d 257, 261 (1990).

The Court upholds an "alternate valuation date" to account for these sales, and the use of husband's loan application to determine those alternate values, even though the items sold for less than those values. The trial court found that he "failed to realize the best price for personal property upon sale, resulting in a significant wasting of marital assets.” It thus ordered him to pay the wife half the values given on the loan application. When he objects that the actual sales were a better measure of value, the Court responds that "the linchpin of the problem" with all of it was his failure to get the wife's agreement to the sales.

"Although the sales do not appear to be illegitimate, that is not a mitigating factor under Code § 20-107.3(E)(10) that either the trial court or this Court must consider, thus appellant’s reliance on his alleged good faith business dealings carries no weight."

The Court likewise upholds the trial court's refusal to give husband any credit for reducing the marital debts with the proceeds of these sales.

It also upholds imputation of income from a business, a spousal support award, and a refusal to recalculate arrearages back to before a pendente lite modification. 

Late-filed appeal of support order makes timely appeal of arrears case moot

Marriott v. Anderson, 2017 Va. App. LEXIS 43 (February 21, 2017)

When a party appeals a case from the juvenile and domestic relations court, he or she must file the appeal within ten days or the appeal will be dismissed.The Court of Appeals reversed the circuit court after it had accepted several de novo appeals from the juvenile and domestic relations court, one of which was filed after the ten-day appeal period. On May 14, 2015, the JDR court had entered two separate orders. One resolved the father's arrearages to the mother ("arrearages order"). The other required the mother to pay child support ("child support order"). The mother appealed the arrearages order on May 21, 2015, which was filed timely. However, she appealed the child support order on May 27, 2015, which was filed late. The father moved to dismiss the child support case because of the late appeal. He also moved to dismiss the arrearages case on the basis that it was moot without the child support appeal. The circuit court denied his motions to dismiss. The court of appeals agreed with the father and reversed the circuit court on both matters.

 

 

Appeals court overturns finding that $10,000 payment was a gift to child, not part of what payor owed payee and was being sued for

Father owed mother back support and a delayed ED monetary award. He paid up after she sued, but she claimed one $10,000 payment to her was not for back support or ED, but was an extra gift to their adult son for his medical expenses and other needs. There was evidence to support her interpretation, including the son's name on the memo line, and the father's texting the son about the check, saying the mother could use if for the son's needs. The trial court refused to hold the father in contempt, but ordered him to pay $10,000 to finish paying what he owed.The Court of Appeals reverses in Monds v. Monds, 5/8/18.

It is exciting to see the Court encounter a trial court finding of fact that is so unbelievable that they reverse it. But the Court explains that whether something is a gift is not a fact question, it is "a question of law that we review de novo on appeal. Smith v. Mountjoy, 280 Va. 46, 53, 694 S.E.2d 598, 602 (2010)." And the presumptions and burdens are all against it:

“It is well settled that the law does not presume a gift and where a donee claims title to personal property by virtue of a gift inter vivos, the burden of proof rests upon him to show every fact and circumstance necessary to constitute a valid gift by clear and convincing evidence.” Rust v. Phillips, 208 Va. 573, 578, 159 S.E.2d 628, 631 (1968) (quoting Grace v. Virginia Trust Co., 150 Va. 56, 142 S.E. 378 (1928)). Therefore, in order to establish the existence of a gift, wife was required to prove, by clear and convincing evidence “(1) the intention on the part of the donor to make the gift; (2) delivery or transfer of the gift; and (3) acceptance of the gift by the donee.” Robinson v. Robinson, 46 Va. App. 652, 665, 621 S.E.2d 147, 154 (2005) (en banc) (quoting Theismann v. Theismann, 22 Va. App. 557, 566, 471 S.E.2d, 809, 813, aff’d on reh’g en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996)). Furthermore “[a] clear and unmistakable intention on the part of the donor to make a gift of his property is an essential requisite to a gift inter vivos. And this intention must be inconsistent with any other theory.” Matthews v. Hanson, 145 Va. 614, 619, 134 S.E. 568, 569-70 (1926).

The mother claimed it was a gift to the adult son, and the Court of Appeals finds this inconsistent with the fact that the father wrote the check to her and deposited it into her account. It matters not that the son was a "linked" name on all her accounts, which the father may or may not have known. If he wanted to give the son a check he would have written it to him.

The notion that husband would have entrusted wife and his ex-mother-in-law – the joint owners of the account – with these funds instead of paying them directly to his adult child is particularly unbelievable in light of the circuit court’s finding that there was a “total lack of trust between the two of them [husband and wife].”

And "the state of husband’s financial affairs was inconsistent with any intention by husband to make a gift." He was way behind on child support, and was very worried about it, and the mother was reminding him of it and threatening to take him to court. And the deadline to pay a $100,000 monetary award loomed.

In addition, the text messages exchanged between husband and Zach indicate that husband was aware that he was paying this money to wife with only the hope that she would then choose to give this money to Zach. On the day husband made the deposit, he texted Zach, stating, “Deposit made today . . . PLEASE READ UR MOMS TX TO ME . . . . . I HOPE SHES TELLING THE TRUTH . . . BUT DOUBT IT . . . LOVE YAA.” This text message is consistent with husband’s testimony that he hoped wife would give the money to their son, Zach, but he feared that she would not. Husband also texted Zach on February 21, 2017, telling his son, “Hey zach i wud like to help u with ur bills . . . . even if ur mom gave u the 10GRAND LIKE SHE SAID SHE wud . . . . .” The message shows husband’s recognition that the money belonged to wife and that it was her choice whether to give the money to Zach. 

Although “[i]ntent is a question to be determined by the fact finder,” Cirrito v. Cirrito, 44 Va. App. 287, 305, 605 S.E.2d 268, 276 (2004), the circuit court here was plainly wrong in finding the required clear and convincing evidence of husband’s donative intent.

Mother claimed father could not appeal, because of Virginia's common-law rule that a refusal to hold someone in contempt cannot be appealed. That would be absurd, the Court of Appeals says. He was appealing not the refusal to hold him in contempt, but the ruling that he still owed $10,000.

Father, conversely, argued that the trial court did not have the power to enforce the obligation in another way once it refused to hold him in contempt. The Court of Appeals replies that the trial court always has the power to enforce its monetary awards, which is not surprising, but its reasoning might be:

“Monetary awards that arise in the context of a divorce differ from other monetary judgments. They compensate a party for his or her rights, equities, and interests in marital property.” Kahn v. McNicholas, 67 Va. App. 215, 226, 795 S.E.2d 485, 490 (2017). “When a monetary award is included in a separation or property settlement agreement, it oftentimes also provides compensation for the waiver of a party’s right to receive spousal support.” Id. at 226-27, 795 S.E.2d at 490. As a result of the unusual nature of monetary awards arising out of divorce, trial courts are vested with the “continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered” under Code § 20-107.3(K) ...

For the same point it cites Shoup v. Shoup, 31 Va. App. 621, 525 S.E.2d 61 (2000) and Green v. Robertson, (Va. Ct. App. Mar. 20, 2018). 

Father also argued that he did not have notice that other remedies would be considered, but the Court says the petition for a rule to show cause gave him adequate notice that she was trying to enforce everything that he still owed at the time it was filed. It asked for him to be held in contempt "'and compelled to comply with this Court’s orders'." And a money judgment is one of the remedies that may result from a petition for a rule to show cause, under Shoup and M. Morgan Cherry & Assocs. v. Cherry, 38 Va. App. 693, 703, 568 S.E.2d 391, 396 (2002).

Fees: The Court of Appeals says it cannot award fees to the father, because the agreement only provides for fees for enforcement, not for successfully defending against enforcement.

 

Agreement to pay young adult child's insurance & non-covered medical costs is enforceable, even after child support terminates

The Court of Appeals interprets an agreement to pay non-covered medical expenses as lasting as long as the child is eligible for the father's health insurance, given the wording of the agreement and its lack of anything saying otherwise, and dismisses other challenges to enforcement through contempt of court. Green v. Robertson, unpublished 3/20/18.

The agreement, incorporated in the divorce decree, said:

The Husband [father] agrees to maintain the minor children as a beneficiary of his present medical/hospitalization policy for so long as they may be entitled to said coverage. The parties agree to share equally the cost of any medical or dental expenses (including orthodontic) of the children not covered by said insurance.

 The mother brought a contempt case and also sued for breach of contract, to which the father countered with the widely-feared but little used concept of "merger", borrowed from real estate law -- the idea that the agreement was entirely swallowed up by the divorce decree and no longer exists. The mother nonsuited the breach claim, and her counsel admitted in court that it was "merged", so the Court of Appeals does not get to address that concept.

The trial court made some useful observations about interpreting common wording in family law documents:

The word minor is not limiting in this context ... It is descriptive. It describes the children who are the subject of this provision.  The children who at the time in the execution of the agreement were minors, that word, in its common sense reading, does not limit their entitlement only to the minority, but again simply is descriptive of who we are talking about. The kids were minor [sic] at the time of this agreement. This child being a minor at the time of this agreement, he is still now entitled and is apparently covered by insurance.

The trial court found that the obligation to provide insurance was still in force because the child in question still qualified for it, and that the non-covered costs obligation lasted as long as the obligation to provide insurance, but declined to find the father in willful contempt, or to award attorney's fees, because the father's interpretation was reasonable, though mistaken. But it ordered the father to pay half of some considerable bills for very serious medical problems. 

ENFORCEMENT PROCEDURES

On appeal, the father argued that only contempt was before the court, so the finding of no contempt should have put an end to the case. Mother had not filed any separate motion for enforcement. The Court replies:

We find the distinction between the title of these two motions an inconsequential matter of form. Mother’s affidavit and petition for rule to show cause recited the relevant facts required for the trial court to award her relief ... Most importantly, mother’s affidavit and petition for rule to show cause also specifically requested the relief ultimately granted by the trial court. ... Trial courts have the discretion to enforce decrees based on the filing of a show cause motion, even where no contempt is found.

Also, the agreement's incorporation made it generally enforceable as part of the divorce decree, and also made it a judgment, and the mother's motion sought to have the already-owed part of that judgment restated as a particular dollar amount.

INTERPRETATION

 Father raised several issues of interpretation. One was that the agreement was made long before the Affordable Care Act let children stay on their parents' insurance for several more years. But that does not change the "plain meaning" of “for so long as they may be entitled to said coverage”, the Court replies. 

... the agreement specifically contemplated that the time period for which the children may be provided coverage was subject to change, and it was purposefully drafted to extend father’s obligation to cover that shifting time frame. The agreement did not set a finite end date for the father’s obligation. ... Use of the word “may” suggests that the parties anticipated that the amount of time for which the children would be entitled to coverage would be subject to change and that father’s obligation to provide coverage was subject to those potential changes. 

As for the "minor children" wording discussed above, the Court adds that it would make the “for so long as they may be entitled to said coverage” wording "virtually meaningless" surplusage. It also notes that elsewhere in the agreement, the "minor children" are to remain life insurance beneficiaries until age 22, and to have college paid for.

And "entitled to said coverage", in the context of adult children on parents' health insurance, plainly means "qualified", not "entitled" in some stronger and narrower legal sense. And because there is not any other sense in which any child would be "entitled" to health insurance, to require such a non-existent entitlement would make the whole provision meaningless.

On the non-covered costs,

The reference to “said insurance” refers to the insurance discussed in the prior sentence ... and limits the obligation of the parties to pay for uncovered expenses to the period of time when the children had insurance coverage, regardless of their age.

So if the insurance were no longer available to cover them, the non-covered costs obligation would expire with it; but here, the insurance and the obligation were still in effect.

FEES

Even though the trial court did not think the father should have to pay a fee award, the appeals court said fees for the appeal should be awarded because he had defaulted on performance of the agreement, and the agreement said "the defaulting party will indemnify the other for all reasonable expenses and costs, including attorney’s fees, incurred in successfully enforcing the terms of this Agreement.”

Court can order custodial father to pay net of alimony minus child support; can make decisions code requires though not discussed at trial.

A support order can offset the payments for one kind of support against payments going the opposite way for another kind of support, the Court of Appeals says in O'Reilly v. O'Reilly (5/31/16), unpublished. Thus, when ordering a father to pay alimony to the mother, and the mother to pay child support to him, a court can order him to pay the net difference rather than having money going in both directions.

Nor was it error for a judge to order children's non-covered medical expenses shared in proportion to income, even though there was no discussion of that during the trial. All support orders are required to address this by Code Section 20–108.2 D, and the order followed the by-default formula for doing so.

The mother believed, as some parents do after looking at the support guideline spreadsheets, that the father was supposed to pay her the amount listed as "father's obligation" even though he was the custodial parent. The Court disagreed, and said that that amount is what he's assumed, but not ordered, to spend on the children from his own income, in addition to the child support the mother pays him.

Agreement barring child support reductions voids all child support parts of agreement and court order.

Virginia's Court of Appeals says that the child support sections of an agreement and of the divorce decree that incorporates it, and possibly the entire agreement, are invalid because they restricted future reduction of child support. This agreement said the $2,000/month child support would continue as long as any of the three children were under 18; would not be reduced or terminated until then, even if any or all of them moved in with the payor, and "may be modified upward due to a change in circumstances but may not be reduced."

The Court does not rely on the most extreme provisions above as grounds for its decision, but instead says any restriction on future child support changes is void. It finds Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55 (1994) dispositive, and writes:

"the provision was “null and void . . . .” Id. at 298, 449 S.E.2d at 56. ... “parents cannot contract away their children’s rights to support nor can a court be precluded by agreement from exercising its power to decree child support.” Id. ... because the final decree incorporated the void provision of the parties’ agreement, that provision of the decree was also void, and therefore, could “be attacked and vacated in any court at any time, directly or collaterally” despite the fact that the parties had agreed to the provision and it had been in place for a number of years. Id. at 299, 499 S.E.2d at 57. Applying these principles to the case at bar, it is clear that Paragraph 4 is void. Paragraph 4 provides that, regardless of circumstances, the agreed amount of child support “may not be reduced . . . .” By its express terms, it seeks to prevent a circuit court from decreeing child support based on the specific facts and circumstances. Accordingly, it runs afoul of Kelley’s direction that the parties’ agreement cannot preclude a circuit court “from exercising its power to decree child support,” id. at 298, 449 S.E.2d at 56, and therefore, is void. See also Virostko v. Virostko, 59 Va. App. 816, 824, 722 S.E.2d 678, 682 (2012) (holding that “the parties’ agreement may not prevent the court from exercising its power to change, modify or enforce its decree concerning child support” ...

Mother raises several arguments in an attempt to save Paragraph 4. First, she argues that she bargained for this arrangement, gave up valuable consideration in exchange for Paragraph 4, and is entitled to the benefit of her bargain. The husband in Kelley made similar arguments;  such arguments fail because the parties, regardless of their intentions, cannot enter into agreements that divest a court of its ability to decree child support.

Next she argues that Paragraph 4 does not deprive the circuit court of its ability to “decree” child support. She asserts that, consistent with the child support guidelines, the circuit court is free to make any determination it wishes regarding the proper amount of support under the guidelines and announce that finding; however, the agreement still would require father to pay the $2,000 a month no matter what the circuit court found. This argument fundamentally misunderstands what a “decree” of a court is; it is not an idle statement but an order directing a party to do or refrain from doing something. See Decree, Black’s Law Dictionary (10th ed. 2014) (“decree, n. (14c) 1. Traditionally, a judicial decision in a court of equity, admiralty, divorce, or probate – similar to a judgment of a court of law . . . . 2. A court’s final judgment. 3. Any court order, but esp. one in a matrimonial case.”). Because Paragraph 4 purports to prevent the court from ordering a change in child support, it seeks to prevent a court “from exercising its power to decree child support,” and therefore, is void.

... as mother has argued, she did bargain for the void provision and apparently gave up other items of value to which she may have been entitled. Because such other provisions of the parties’ agreement may be so inextricably intertwined with Paragraph 4 that they cannot be severed, a determination must be made as to what other portions of the parties’ agreement are invalidated by our finding that Paragraph 4 is void. The parties agree that, given the fact-dependent nature of some of the questions raised by Paragraph 4 being declared void, remand to the circuit court is appropriate to determine the outstanding questions. Although we are not bound by the parties’ agreement on this issue, we concur. 

... Paragraph 6 of the parties’ agreement provides that “[i]n the event that [father] defaults in his obligation to pay support pursuant to this Order, [father] shall pay all costs of enforcement of this Order including, but not limited to reasonable attorney fees . . . .” Assuming without deciding that Paragraph 6 is severable from Paragraph 4 and continues in effect, we note that, given the disposition, this appeal does not fall within the provision. Accordingly, the parties’ agreement does not entitle the mother to fees related to this appeal.

The voidness issue was not raised at all until the Court of Appeals had already announced a decision on the interpretation and enforcement of the agreement and decree, and on attorneys'-fee claims. After that, the payor raised the issue in a Motion to Reconsider. The "mandate" returning the case to the trial court had not yet been issued, and the Court says, if an order is "void ab initio", its invalidity can be raised at any time, regardless of the 21-day finality rule in Rule 1:1, the Rule 5A:18 requirement to have raised the issue in the trial court, or the appellate court rules. The Court cites as holding that "so long as a litigant has timely filed and properly perfected an appeal as to any issue, he retains the ability to raise a voidness challenge so long as the matter is pending before the appellate court." Amin v. County of Henrico, 286 Va. 231, 749 S.E.2d 169 (2013).

Mother who lost custody to father must pay ordered child support even if he owed arrears

A mother can still be held in contempt for not paying child support, even if she were owed a support arrearage by the father from before custody was transferred to him, the Virginia Court of Appeals says in Wilson v. Britton (unpublished 9/15/15).

The trial court and the Division of Child Support Enforcement had found that the father did not owe any unpaid child support at the time that custody and child support were transferred to him.

And even if, as the mother claimed, he did owe, and even if the father's court-ordered child support obligation still existed, "mother's child support obligation nonetheless still exists."

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

Despite statute, almost any support appeal must be dismissed if no arrears bond posted

A father who appealed a juvenile court’s refusal to modify spousal support, but who did not contest the amount of arrears that court said he owed, still must have his appeal dismissed for lack of jurisdiction for his failure to post a bond for the arrears of over $24,000, Virginia’s Court of Appeals says in Forte v. Commonwealth (06/09/2015).

Va. Code §16.1-296(H) says a bond is not required when appealing from juvenile court, “except for that portion of any order or judgment establishing a support arrearage or suspending payment of support during pendency of an appeal.” Since the father did not challenge “that portion” of the order, and since he probably did not have $24,000, he did not post a bond.

The Court of Appeals reviews and summarizes its existing case law on the application of this statute. It says the appeal “must make clear to the court that his appeal does not challenge the support arrearage”, and it concedes that the father in this case did so effectively. However, the exception cannot apply “if the arrearage is intrinsically and logically related to the issue appealed.” For example, if the issue is the timing of a change in support, or if the issue is the amount of support (at least in cases where the modification is retroactive to some point before the date of the order), then the arrearage amount is bound to be change if the lower court’s order is changed on appeal. This is especially true, the Court points out, now that Code §20-60.3 requires all support orders to state the amount of any arrearage. It quotes Sharma v. Sharma, 46 Va. App. 584, 620 S.E.2d 553 (2005): "Even if appellant chose not to pursue the arrearage issue, arrearage is so intertwined with the increase in child support, the circuit court, by necessity, must address the arrearage."

And since the Circuit Court has no jurisdiction over an appeal when a required bond is not posted, the appeal must fail for lack of jurisdiction.