Virginia Family Law Appeals

Litigant must have lawyer representing her directly, not just representing her “authorized representative.”

Virginia’s Court of Appeals dismissed an appeal filed in the name of a party to the trial court case, but filed and signed by a lawyer who said he represented not the party, but a rehab facility that was not named as a party in the case. Lynch v. Bedford Co. DSS (6/11/19, unpublished). Rule 1:4(c) and Virginia Code §8.01-271.13 require all pleadings to be signed by the litigant’s lawyer, or the litigant herself if she does not have a lawyer. The party had named the facility as her “authorized representative” in contesting a denial of Medicaid coverage. Although federal regulations allow that, this “does not supplant or erode the requirement that there must be an attorney-client relationship between the litigant … and counsel appearing and signing pleadings on her behalf,” who must have an ethical duty to the litigant.

Doctor can reduce work hours and alimony payments at 66; complex property settlement FUBAR by unforeseen events

The Court of Appeals upholds a reduction in alimony for a 66-year-old anesthesiologist who reduced his brutal work hours and planned to fully retire, and who testified that that was consistent with other anesthesiologists his age, in Gadpaille v. Gadpaille, unpublished 7/10/2018.

The trial court in that case also dealt with marital home sales proceeds that were supposed to be offset against a retirement account division and other sums under the PSA, but which ended up being "a deficiency", apparently a negative number, after accounting for repair costs, fire damage, and reduced insurance coverage. The appeals court finds that the trial court did not rewrite the PSA, but rather, correctly "considered the totality of the parties’ agreement as expressed" in the PSA and in a later consent order, and applied that agreement to the unforeseen circumstances.

Courts don't have to give spouse any survivor benefit, nor half the marital share of retirement

The Court of Appeals upholds a divorce order that let a severely disabled military retiree keep 55% of the marital share of his retirement. Pederson v. Pederson, Va. Ct. App. Unpub. 8/2/16 His incapacity alone would justify that, the Court says, and the wife was able to earn $100,000 per year while the husband was unemployable. It also cited evidence of the wife contacting his superiors, which judges around here don't like, these days:

Evidence related to wife’s inappropriate e-mail exchanges with husband’s superior officer, her reports to authorities of alleged professional misconduct by her husband (reports that ultimately were deemed unsubstantiated by those authorities), and the circumstances surrounding husband’s decision not to accept the promotion to Wing Commander provided a sufficient basis for a reasonable factfinder to conclude that wife was less than supportive of husband’s career.

The Court also upheld the refusal to include in the retirement-division order a requirement to indemnify the wife for reducing disposable retired pay by electing disability.  Though that was considered legal at that time, nothing required the trial court to do so. 

Survivor benefits: Code § 20-107.3(G)(2) gives the court discretion to award any survivor benefit, or not to.

The opinion includes many other points about appellate procedure, life insurance beneficiary designations, and conservatorship, but I don't believe they break any new ground.