Virginia Family Law Appeals

Court upholds divorce on grounds of cross-dressing, but really just for procedural defaults

Rakes v. Rakes, March 12, 2019. Unpublished

A court in Salem granted a divorce on grounds of "constructive desertion," which requires the same elements as "cruelty." The divorce apparently started when Mrs. R. found three photos of her husband of 24 years in three different women's outfits. Two were taken in public places, and in the other, there was a man's hand on his thigh. "She felt shocked, hurt and betrayed [and]  concerned that he may have contracted a sexually transmitted disease through his extra-marital engagements."

On appeal, Mr. R. argued "that there was no evidence of cruelty, that his misconduct did not rise to a level that made the marital relationship intolerable or unendurable and that one instance of misconduct cannot form the basis of constructive desertion." But at the trial, the Court says, he only made that last argument, not the first two [which are pretty self-evident], so he does not get to make it on appeal. (The appeals court could still allow those two arguments if it wanted to, but maybe it's reserving that discretion for cases where it would prevent major injustices. Let's hope.] And the "single instance" argument is misplaced because of the three photos in three outfits in different settings.

"A single act" can be cruelty grounds for divorce

"The general rule in Virginia is that a single act of physical abuse normally cannot constitute grounds for divorce. …

“The single act may, however, constitute a ground for divorce if the act is ‘so severe and atrocious as to endanger life, if it indicates an intention to do serious bodily harm, if it causes reasonable apprehension of serious danger in the future, or if the precedent or attendant circumstances show that the acts are likely to be repeated.’ ...

"The continuing and escalating behavior ... culminated in physical abuse as corroborated by the description of the event, the injuries as indicated in the photograph, the issuance of a protective order and a conviction for assault and battery."

Davis v. Davis, Record No.0190-20-4, Oct. 27, 2020. Va. Court of Appeals, Unpublished.

Teasingest headline ever in Virginia Lawyers Weekly: "No-fault divorce law unconstitutional, judge rules"

Teasingest headline ever in Virginia Lawyers Weekly: "No-fault divorce law unconstitutional, judge rules"

Divorce overturned; no third-party corroborating witness to continuous one-year separation, intent to end marriage, documents don't prove enough

The Court of Appeals reversed and dismissed a divorce case where no third-party witness corroborated one year's continuous, uninterrupted living apart with one party intending to end the marriage. Belle v. Belle, unpub. 1/19/16. 

“No divorce, annulment, or affirmation of a marriage shall be granted on the uncorroborated testimony of the parties or either of them.” Code § 20-99(1).

The Court DOES NOT say that there must always be a third-party witness; rather, it points out how the particular documents introduced in this case are not sufficient.Indeed, it quotes authority saying it does NOT need to be from witnesses. However, the deficiencies it points out in the documents give grounds for grave doubt about trying to corroborate any divorce case with documents alone.

Both parties had asked the court to divorce them. Evidence in the case "included medical and credit card bills, employment documents and pay stubs, criminal records, records from the Department of Motor Vehicles, .. tax returns ... protective orders, an arrest warrant, and a summons ...."

... wife argued that the income tax documents, pay stubs, and medical bills introduced into evidence established that the parties had continuously lived at different residences during the one-year period preceding the circuit court’s entry of the final decree of divorce. Wife claimed that this evidence sufficiently corroborated the grounds for divorce ...

... At most, however, those documents only corroborated that the parties lived at separate residences. Standing alone, evidence that parties have lived at separate residences does not establish that the parties intended to end their marriage at the time of their separation.

...The parties must prove that at least one of them intended “to discontinue permanently the marital cohabitation” at the time of their physical separation. Hooker v. Hooker, 215 Va. 415, 417, 211 S.E.2d 34, 36 (1975). The parties must establish that they separated with the intent to permanently end their marriage.

... Moreover, the exhibits themselves failed to establish that the parties had lived at separate residences continuously for one year. While the exhibits corroborated that husband had lived at the marital residence throughout the parties’ separation, they only established that wife had lived at her residence for approximately six months ...

But what is corroboration? 

The question of corroboration is one of fact, the decision of which in each case depends upon the peculiar facts of that particular case. It is not necessary that the testimony of the complaining spouse be corroborated on every element or essential charge stated as a ground for divorce. The corroborative testimony need not be sufficient, standing alone, to prove the alleged ground for divorce. . . . The general rule is that where a particular fact or circumstance is vital to [the] complainant’s case, some evidence of the same, in addition to the complainant’s own testimony, is essential. The main object of the provision of the statute requiring corroboration is to prevent collusion. Where it is apparent that there is no collusion, the corroboration needs to be only slight. . . . [Additionally, corroboration] need not rest in the testimony of witnesses but may be furnished by surrounding circumstances adequately established. Graves v. Graves, 193 Va. 659, 661-62, 70 S.E.2d 339, 340-41 (1952) (emphasis added) (quotation marks and citations omitted); see also Dodge v. Dodge, 2 Va. App. 238, 245-46, 343 S.E.2d 363, 367 (1986).

Though they don't seem crucial to the outcome, the Court notes some facts that may give it additional cause to be skeptical and to see good reason for requiring corroboration of something more than sometimes having two different addresses:

Wife also testified that the parties attempted to reconcile during the year following their initial separation and that they maintained a sexual relationship for almost three years.

...

While wife sought several protective orders against husband, the last order that she sought was voluntarily dismissed due to the parties’ attempted reconciliation. Thus, the documents in the record pertaining to the protective orders do not imply that either party intended to end the marriage.

 

Court stresses limits of "manifest injustice" exception to rule against alimony for adulterers, especially if millionaires

Virginia's Court of Appeals overturned an alimony award that had been made despite the recipient's adultery under the "manifest injustice" exception. The Court said manifest injustice must be obvious, not speculative, and amount to destitution in terms of potentially income-producing assets as well as income, at least in a case where the payor does not share much of the fault during the course of the marriage and its breakdown.

Code § 20-107.1(B) allows alimony despite adultery

if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties. 

In this case,"Wife admitted to numerous acts of adultery," which the trial court found was the “primary reason for the destruction of the marriage.” The trial court wrote:

counsel for [wife] conceded that there was no significant fault on [husband]’s part. The [c]ourt agrees. [Husband] made nearly all of the monetary contributions to the well-being of the family, and made significant and consistent non-monetary contributions. [Husband] dedicated virtually all of his non-working hours to his family. He was involved in the daily care of the children and made substantial contributions to their extracurricular activities.

As the appeals court recounts,

... wife received assets worth approximately $1.8 million, including about $397,000 in cash and over $1.3 million in retirement funds. Husband’s net worth is about $1 million. Husband received the marital home, which has a net worth of $779,695. Husband also agreed to pay all of the education expenses of the parties’ two children. One of the children was in college, and the other child was in medical school. The trial court relied upon the disparity in earning capacity between husband and wife to find a “manifest injustice.”

That disparity was great. As the husband earned $850,000 a year, the disparity would have been great even if the wife had an ample income and no need for support. The trial court found that the wife had not worked for most of the marriage, but could be earning $22 per hour within a few months, and would earn between $27,500 and $33,000 per year if she worked 25 to 30 hours a week. 

The standard for finding MIJ is "clear and convincing" proof, the Court reminds us. And 

the expression “manifest injustice,” outside of domestic relations law, “has been used synonymously with the phrase ‘miscarriage of justice.’ Harris v. DiMattina, 250 Va. 306, 318, 462 S.E.2d 338, 343 (1995).

Further, this is not a typical "balancing of several factors" test. It is based on only two factors: (i) relative degrees of fault and (ii) economic disparities. Quoting Congdon v. Congdon, 40 Va. App. 255, 263, 578 S.E.2d 833, 837 (2003):

the court must base that finding on the parties’ comparative economic circumstances and the respective degrees of fault.” Barnes v. Barnes, 16 Va. App. 98, 101-03, 428 S.E.2d 294, 298 (1993) (emphasis in original). We italicized the word “and” in Barnes precisely because the statute makes clear that the decision must be rooted in both factors.  

Quoting Giraldi v. Giraldi, 64 Va. App. 676, 685-86, 771 S.E.2d 687, 692 (2015):

“By its very definition, . . . a ‘manifest injustice’ cannot be speculative. See Black’s Law Dictionary 974 (7th ed. 1999) (defining ‘manifest injustice’ as ‘direct, obvious, and observable’).”

The Court continues,

Neither requires proof by clear and convincing evidence independently. Rather, it is the confluence of both streams of evidence—of fault and of relative economic circumstances—that must rise, by the clear and convincing standard, to constitute manifest injustice.

It contrasts the present case with Congdon, which (according to the facts available to it in that case) combined the husband's "twenty years of profane and base behavior" with “extreme disparities” in assets, incomes and earning capacity; it says Mrs. Congdon had no significant "separate assets" and earned $10/hr. as a receptionist.

This wife's potential earnings of $25,000 to $33,000 do not seem that different from those in Congdon, considering that it went to trial around 2000. But the Court notes that at age 55, the wife is very few years away from being able to draw on the retirement accounts she received. Therefore,

We discern the legislative impulse behind the manifest injustice exception is to prevent leaving a spouse destitute as a result of an act of adultery. It would be a manifest injustice to require a faultless spouse to pay support to a work-capable, millionaire spouse, guilty of repeated acts of adultery with several co-respondents. The disparity in earning capacity, on these facts, is not sufficient to rise to the level of a manifest injustice.

An award of reasonable fees for the appeal is appropriate, the Court said.

Mundy v. Mundy, 66 Va. App. 177, 783 S.E.2d 535 (2016)

See also: Court of Appeals reverses alimony reservation award to adulteress; uncertain future cannot be "manifest injustice" (2015)

 

Transferring G.I. Bill benefits, PTSD, and veterans behaving badly

In a case dealing with several military issues, the Virginia Court of Appeals reversed awards to the wife of 18 months of a husband’s GI Bill benefits, non-modifiable alimony, and the entire marital share of his military retirement.

The order on the GI Bill was reversed because the benefits legally were not transferable. 38 U.S.C. § 3319 only allows such transfers during active duty, and only to a “spouse, children, or both”. After the divorce, the wife was no longer the spouse, the Court reasons.

The husband, who served in the Marine Corps from 1998 until 2011, seems to have been behaving badly and erratically. The Court upheld imputing his former income to him because he lost his job with a defense contractor for several months of poor work performance, including not showing up for work and not communicating. In 2015 he told his wife he was having an affair with his ex-wife and was leaving the marriage, and then felt suicidal and checked himself into a hospital. A year later, he was in court for a protective order hearing the day before the divorce trial, but then did not show up for the trial. His lawyer could not contact him, a continuance was denied, and so he did not get to present evidence. He later said he was being medicated for PTSD and depression, and took too much of his medication that morning, and the next day he was hospitalized in a mental ward for eight days. The trial court did not believe him. His appeal of the denials of his motion to continue, and his motion to be allowed to present evidence later, failed for the usual reasons: procedural defaults, trial judge’s discretion, and failure to cite specific resulting rulings that harmed his interests (though those were obvious and the rest of the appeal was about them). However, the Court of Appeals ended up remanding all the economic issues for a full rehearing because of the flatly illegal rulings on alimony, retirement and the G.I. Bill, so effectively it did give him his day in court.

Garrett v. Garrett, Va. Ct. App. Unpublished 4/18/17

Court of Appeals reverses alimony reservation award to adulteress; uncertain future cannot be "manifest injustice"

A wife's award of a reservation of possible future spousal support following divorce has been reversed by the Court of Appeals because it found that her admitted adultery during the marriage and before separation bars any spousal support under Va. Code § 20-107.1(B), and the facts of the case do not qualify her for the Code's exceptions to that rule.

Circuit courts are not supposed to award continuing support to an adulterous spouse at the end of a divorce case, except in cases where there is so much economic dependence that denying support would be "manifest injustice". Here, husband had income of $16,432 per month, and wife earned $3,369 per month, and was eligible for retirement benefits when she retired. The trial court called wife's behavior “inexcusable,” “reprehensible” and “beyond reprehensible.” But the Court of Appeals found that the lower court did not make adequate particularized findings of the spouses' economic circumstances, and that it therefore erred by ordering support after failing to determine by clear and convincing evidence that barring support would cause a manifest injustice, based on an assessment of the parties' respective degrees of fault and relative economic circumstances under Va. Code § 20-107.1(B):

B. Any maintenance and support shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

But the appeals court found that

The record does not show that the circuit court actually determined, by clear and convincing evidence, that invoking the spousal support bar of Code § 20–107.1(B) would cause a manifest injustice based on an assessment of the parties' “respective degrees of fault” and the parties' “relative economic circumstances.” The circuit court never stated—or even indicated—that wife had the burden of proving a manifest injustice by clear and convincing evidence. Therefore, we have no way of determining from the record whether the circuit court found that wife satisfied the burden of proof required by Code § 20–107.1(B).

Moreover, the circuit court never expressly mentioned the two factors upon which a clear and convincing demonstration of manifest injustice must be based—i.e., the parties' respective degrees of fault during the marriage and the relative economic circumstances of the parties. The circuit court did not make any actual findings of fact on these two factors when it addressed wife's request for a reservation of spousal support under Code § 20–107.1(B).

During a different point of the proceeding, when addressing the grounds for divorce and child custody, the circuit court did make a vague reference to fault shared by the parties, noting that it was “satisfied that there is some degree of fault on both sides” and suggesting that problems in the marriage may have prompted wife to commit adultery. However, there is nothing in the record indicating that the circuit court—when addressing wife's request for a spousal support reservation order—actually compared the respective degrees of fault by the parties. ...

After stating that it did not know what would happen to the parties in the future, the circuit court then found that denying a reservation of spousal support would constitute a manifest injustice. By its very definition, however, a “manifest injustice” cannot be speculative. See Black's Law Dictionary 974 (7th ed.1999) (defining “manifest injustice” as “direct, obvious, and observable”). Furthermore, Code § 20–107.1(B) makes the “manifest injustice” burden higher still by requiring proof of the manifest injustice by clear and convincing evidence. See Seemann v.Seemann, 233 Va. 290, 293 n. 1, 355 S.E.2d 884, 886 n. 1 (1987) (defining “clear and convincing” evidence as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established”). In addition, this clear and convincing showing of manifest injustice must be based on the two factors of respective degrees of fault and relative economic circumstances. Code § 20–107 .1(B). Even viewing the evidence in the light most favorable to wife (as we must since she was the prevailing party below), it is difficult to see how the circuit court could have determined—based on the parties' respective degrees of fault during the marriage and their relative economic circumstances—that clear and convincing evidence supported a finding that failure to grant wife a reservation of spousal support would constitute a manifest injustice. In this case, the reservation of spousal support was not awarded consistent with the very high burden set forth in Code § 20–107.1(B). 

The Court does not remand, despite the uncertainties and failures to make specific findings that it cites. It simply reverses.

Giraldi v. Giraldi (published, 5/05/15) VLW 5-8-15, p 16

Judge's isolated discretionary remarks insufficient to overturn ruling - Va.Ct.App.

PROPERTY DIVISION – PERCENTAGES – CON¬TRIBUTION BY ONE SPOUSE'S FAMILY TO MARITAL ESTATE — FACTORS IN DISTRIBU¬TION — ORDER AND METHOD OF CONSULT¬ING DISCRETIONARY FACTORS — ALTER¬NATIVE VALUATION DATE — APPEALS — SIGNIFICANCE OF ISOLATED REMARKS OF TRIAL JUDGE. A case from Colo¬nial Heights makes a number of important points touching upon property division, and demystifies to some extent how the appellate court looks at the rec¬ord on appeal. In Hamad v. Hamad, 61 Va. App. 593, 739 S.E. 2d 232 (2013), the Court of Appeals first reiterated that making general objections at the trial, and then mak¬ing them a lot more specific as assign¬ments of error on appeal, will not work. Rule 5A:18’s strictness ap¬plies to this too. Wife on appeal objected to husband getting 60% of the marital property, after the evi¬dence at trial showed numerous very large gifts of money and property, during the marriage, to the cou¬ple by his parents. The property was still mar¬ital of course, but there's nothing wrong with the trial judge taking such contributions into account during the distribution phase. And while the judge’s opinion from the bench and opinion letter were not models of clarity on some points, the Court of Appeals said, “we are particularly skeptical of appellate efforts to piece together such a conclusion from fragmented remarks from the bench." The Court adds that “we decline invitations to fix upon isolated statements of the trial judge taken out of the full context in which they were made, and use them as a predicate for holding that the law has been misapplied.” The occa¬sion for this was apparently rooted in the judge’s be¬ginning his decision by noting that the husband ar¬gued that the wife’s admitted adultery caused the marriage to dissolve, and wife’s excuse that she was lonely. This in no way meant, the Court of Appeals observes, that the trial judge seized upon her adultery and was improperly influenced by it to arrive at a 60-40 distribution. The appellate court also emphasizes that it is proper for a judge to take contributions by the party’s family into account not only in the classi¬fication phase, but also in the distribution phase. But wife’s claims of her relatives’ contributions, though the trial judge may well have believed them, were regretfully disregarded by him because they were not traced clearly enough to satisfy the requirements of the statutory and case law. Indeed, some of the hus­band’s’ similar claims failed for similar reasons, but the fact of large contributions by his parents was ba­sically undeniable, and taking them into account in the division phase was proper. The Court also em­phasized, as it has in past cases, that trial judges need not start at the 50 yard line and use particular discre­tionary factors from the statute to move the percent­ages off that mark. The judge doesn’t have to go by a precise mathematical formula (Judge Kelsey says “al­gorithm,” but let’s keep this simple) to make these delicate discretionary decisions. Much was made, on appeal, of the judge’s decision to use a valuation date other than the trial date. He used the date of a prior deposition, because the parties there put on evidence of valuations. There would not necessarily be any­thing wrong with the judge doing that, but in addi­tion, the fact was that this was the only valuation evi­dence for these assets that the judge could find in the evidence of record. The parties both had ample op­portunity to adduce more current evidence, but did not.

 

Cruelty to Husband; proven through Wife's previous charges - Va.Ct.App.

CRUELTY – SUFFICIENT FACTS. It’s not that rare for divorce a party’s claims of cruelty as a divorce ground to be accepted, but when it’s a husband’s claim, it is still newsworthy.  And of course this wasn’t one of those disgraceful  “ mental cruelty” claims that the appellate courts grudgingly accept once in a blue moon, but which shameless lawyers file all the time. No, this husband who proved his divorce ground that way was a battered one. And what kind of factual evidence did it take to bring off this highly unusual feat? Well it seems that husband married, with a prenup, a woman who had entered the US in 2003, and whom he met in 2007, while representing her in an immigration case. The romance continued in court, where she did not contest her first charge of assaulting and battering the husband (2007). She got probation on the second (2009). Wife got off when she was charged again in 2010, and the parties separated. When she was arrested for the same thing in 2011, the husband filed for divorce and the divorce court took notice of the battering, and considered it more seriously. It found husband’s grounds proved, awarding husband custody of the child they had had by that time, and enforced the antenuptial contract. A male actually got a cruelty divorce with just those facts?  (Which seems to have been the argument of the still-unrelenting wife as she challenged the sufficiency of the facts on appeal.) No, of course not: there’s more, of course, and it was significant in convincing the Court of Appeals on appeal. As the Court reads and explains the statute and its case-law interpretations in its opinion, it requires something tending to bodily harm which renders cohabitation unsafe to life, limb or health. Well? …. Husband and his mother had testified that wife’s years of physical and verbal abuse had made the husband afraid to even speak in her presence, creating an unbearable living situation in his home,and making cohabitation unsafe. The Court says the law requires “only slight” corroboration here, because no collusion was shown, and it’s furnished by the three assault and battery charges, wife’s propensity for violence, and photos husband showed of his injuries. A cop and Husband’s mother testified. Well of course wife claimed husband had threatened her (with deportation), and that that made her attacks all right. But the trial court was not required to believe that, nor to grant the divorce on no-fault grounds, as she demanded. Ibrayeva v. Kublan, R. No. 1120-12-4, unpublished (12/11/12).

PROCEDURE – PARTY IN DEFAULT – SERVICE AND NOTICE OVERSEAS – DIVORCE BY DEPOSITION. - Va.Ct.App.

When the General Assembly in 2012 passed Code §20-106 A allowing divorce by affida­vits in some no-fault cases, it probably did not fore­see all the odd cases that could arise seeking to fit the facts within this statute’s narrow gates, but the Court of Appeals had little trouble affirming a dismissal of the wife’s complaint in a case turning on whether or means and, or and means or. So if a statute allows you to proceed “where … The adverse party has been personally served with the complaint and has failed to file a responsive pleading or to make an appear­ance,” does it mean that you need one or both? In other words, does that mean the personally served adverse party need only have done one, or that he must have done both those things? (Well, that is the sort of thing people pay lawyers to do, after all.) In Cruz v. Cruz, 62 Va. App. 31, 741 S.E.2d 71 (4/30/13), the Court of Appeals said it’s obvious that it just means doing one, and you don’t have to have done both. The Wife here could not rely on Code §20-106 A, because the husband, living in Saudi Arabia when served, entered an appearance. In fact, it was a special appearance moving to dismiss on grounds of bigamy. So this wife relied on the wrong statute, because now she didn’t even pass the thresh­old requirement of having only a no-fault case, and she couldn’t rely on the deposition-divorce statute because the other party had appeared. For those who don’t know, these new-fangled divorces are allowed only for those who have a full year of uninterrupted separation (or six months with a complete separation agreement and no minor children). To read the new statute as though it requires both a responsive plead­ing and an appearance would be contrary to the plain language of the statute and to the intent thereof, the Court says.