Virginia Family Law Appeals

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going the opposite way for another kind of support, the Court of Appeals says in O'Reilly v. O'Reilly (5/31/16), unpublished.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."

Ct. bans reading of amicus brief about free speech case

In recent years a disturbing number of judges have punished or restrained speech that criticizes the administration of justice in particular cases. Now the U.S. Supreme Court will consider whether to review one such case. A federal appeals court (the 10th Circuit) has banned any sharing of an amicus brief filed by the Institute of Justice in an ACLU free speech case which in turn involves prosecution of an activist who criticized prosecutors' handling of a drug case, the New York Times reports.

Briggman case: If you pay support arrears to get out of jail, you can't appeal them

SUPPORT ENFORCEMENT – DCSE CASES – LONG-SINCE-EMANCIPATED CHILD – ARREARAGES – CONTEMPT – APPEALS.  Did you really have any doubt that it would work this way?  Because it’s all very logical and legal, you see.  The child was no longer a child as of 2002, and in 2008 the DCSE sought a contempt Rule for failure to pay toward an arrearage.  When the JDR court threw out this litigation, the DCSE of course appealed to the circuit court, which held this father in civil contempt for an arrearage of $13,534.85 as of July 2009 and sent him to jail for a year.  That July 27, 2009 Order specified that the $13,534.85 amount would begin accruing interest if not paid and purged by August 5.  That was an inducement, but also it could not have been too pleasant in the Prince William jail in late July and the man paid under protest on July 31 and was released, secure in the knowledge that he could always go to the Court of Appeals, and promptly filed his appeal there.  But of course, the Court of Appeals explained as it summarily dismissed his appeal, his payment of the money meant the whole thing was moot and there was no live case or controversy.  No more support is accruing on an emancipated child, and no, he doesn’t get back any of that support that he paid the mother for those adult years.  Briggman v. Commonwealth, DSS, DCSE, unpublished, 24 VLW 1314 (4/27/10).

APPEALS – TRIAL COURT ORDERS AFTER APPEAL NOTED – SEPARATION AGREEMENTS – INSURANCE CLAUSES – ALIMONY.

 In McCoy v. McCoy, 55 Va. App. 524, 687 S.E.2d 82 (1/12/10), the Court of Appeals says that once this appeal had been noted, the trial court then lacked jurisdiction to vacate, on husband’s motion, its own prior order holding husband in contempt.  The way the husband got held in contempt was failing to provide the wife with health insurance that was called for in their separation agreement.  Husband argued that it was really a form of alimony, which should have terminated when the wife remarried, but the Court of Appeals disagrees. 

Scialdone: CONTEMPT – DIRECT OR INDIRECT – PROCEDURAL AND CONSTITUTIONAL RIGHTS – DUE PROCESS – ATTORNEY MISCONDUCT.

 Unsurprisingly to many people, the convictions of Mr. Scialdone, the overreaching Virginia Beach criminal defense lawyer, were reversed by the Virginia Supreme Court.  Of course you can’t change the Rules in the middle of the game and shift gears from indirect to direct contempt, and then justify the one kind of contempt conviction by the legal principles that apply to the other, the Supreme Court explains to the intermediate court majority.  Thus the summary contempt convictions and jail times for two lawyers and their law clerk are at last overturned.  The judge, facing what she considered a scandalous libel of herself, held these lawyers in contempt for perpetrating a fraud with forged evidence produced on their own computers in their office to get a criminal defendant off and for sort of, in a roundabout way, calling her a Nazi.  With this conduct, the Supreme Court unanimously finds that the misbehavior certainly didn’t take place in the presence of the court.  This judge had run her own investigation of the matter, bringing the three defendants and their secretary into the courtroom under oath to testify about it, and had ordered a deputy to go to the law office and rummage for incriminating documents.  This is not the kind of “misconduct under the eye of the court” that can allow the defendant to be convicted totally without constitutional due process.  This, you will remember, is the case in which the Court of Appeals panel reversed the convictions as unconstitutional, and that was reversed by the en banc Court of Appeals.  In a long and tangled opinion the en banc court held that these defendants had failed to preserve their crucial argument as to constitutional due process.  That was error, the Supreme Court holds, as was the trial judge’s refusal to give these defendants a full due process hearing.  Scialdone v. Commonwealth, ___ Va. ___, ___ S.E.2d ___, 24 VLW 1050 (2/25/10).

Hamilton: CHILD SUPPORT – MODIFICATION AND CONTEMPT – WILLFULNESS ELEMENT – PAYEE IMPUTATION.

In a rare opinion that combines downward modification and payee imputation as to child support, the Court of Appeals says a couple of things which, were it not an unpublished opinion, would raise some doubt about the time-honored, if draconian, rules in this area.  In Hamilton v. Hamilton, unpublished, 23 VLW 527 (10/7/08), the Court of Appeals said it was all right for a Fairfax Circuit Court to impute income to the mother, who had retired from the Navy and obtained (you might say) another job paying $24.55 per hour but then had (sort of) quit that and gone to work as a part-time social worker at $14.71 per hour.  The only reason the mother gave for the job change was that she wanted to “work with troubled youth.”  As for the mother’s interesting objection that the trial court had no business reducing the father’s support when he was in arrears or in some respect non-compliant with the existing order (in fact, he unilaterally halved his payments when a child aged out), the trial court’s reasoning was that he was not in contempt of the old order, because — listen up — because the element of willfulness hadn’t been proved, and the Court of Appeals affirms that. 

Singleton v. Commonwealth: CONTEMPT – NON-APPEARANCE.

A criminal case produced a contempt order that holds its own implications for family law practitioners, and that contempt order was upheld by the Court of Appeals, in Singleton v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, 23 VLW 526 (10/7/08).  Defense counsel non-appeared, having told his client that the client did not have to appear.  That is because defense counsel had agreed with the prosecutor to a continuance.  It was to be a jointly-requested continuance of the DWI trial date.  Because, however, nobody mentioned this to the judge or the court staff until the scheduled trial date when the case was called, it was proper to cite the defense lawyer for contempt.

Scialdone: CONTEMPT – DIRECT AND INDIRECT – CONSTITUTIONAL RIGHTS – APPEALS – WAIVER.

Ah, the frustrating question of direct v. indirect contempt, which so bedevils lawyers, who often have as persistent a problem with it as they say admirals have with port left and starboard right. Fortunately the Court of Appeals sorts it all out and re-explains direct and indirect contempt in a recent opinion as though it were so simple only a complete idiot would have any degree of doubt about it. And speaking of idiocy, while surely appellate opinions often describe a factual and procedural situation that no one involved at the trial level could ever recognize as the same case, it would be pretty hard, from the opinion in this case, to say that the defendants weren’t guilty of astoundingly, appallingly idiotic behavior.
But first, the appellate procedural hurdles event. The Court of Appeals in Scialdone v. Commonwealth, 51 Va. App. 679, 660 S.E.2d 317 (4/29/08), holds that two lawyers and a law student employee forfeited their right to raise the constitutional right of equal protection against their summary contempt convictions because they didn’t “articulate” any basis for saying they have such a right.