Virginia Family Law Appeals

Appeals court OKs juror who believed “no man ever has a right to raise a fist to a woman”

Virginia's Court of Appeals upheld a conviction for "assault and battery of a family member" even though the trial judge refused to strike a potential juror who agreed with the statement, “no man ever has a right to raise a fist to a woman.”  The court struck four other prospective jurors who indicated that they would use a different standard for self-defense if a man was defending against a man rather than against a woman. The appeals court said the juror’s own statements demonstrated that he was able to sit as an impartial juror, and while he expressed a view that men should be held to a different standard regarding self-defense, his statements, viewed in the totality, simply demonstrate the legally permissible belief that size and strength are factors that can be considered in determining whether self-defense is justifiable.

Weis v. Commonwealth (Malveaux), Va. Ct. App. unpublished 10/18/16.

"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 Court of Appeals, Unpublished.

Evidence sufficient -- defendant violated protective order.

Peters v. Commonwealth, 2016 Va. App. LEXIS 315 (November 15, 2016)

The trial court convicted Peters of two counts of violating a protective order, Code § 18.2-60.4. It also found that he violated the terms of his suspended sentences on nineteen misdemeanor convictions. On appeal, he claimed the evidence was insufficient.  Court affirmed trial court's finding that Peters had violated the protective order as evidence supported the victim's claim and Peters had followed her on two occasion and she was scared each time.

Man broke into his daughter's room in co-parent's home late at night, convicted of unlawful entry

Jennings v. Commonwealth (Frank) No. 1625-15-1, Oct. 18, 2016; Norfolk Cir. Ct. (Lannetti) J. Barry McCracken, APD, for appellant; Benjamin H. Katz, AAG, for appellee. VLW 016-7-245(UP), 6 pp. 

The defendant and the victim had a child together. He entered the woman’s home at 3:30 a.m. by forcing the air conditioner out of the bedroom window, and went into the daughter’s bedroom. At the time he entered the house, defendant knew the woman had terminated their relationship and had banned him from the house. It is reasonable to infer he knew that the children and their mother would be asleep and any invasion would be frightening and disruptive to the quiet enjoyment of her property. The woman had the right to enjoy the serenity of her home. A rational fact finder could conclude that defendant, who was estranged from the mother and who had recently assaulted her, would be aware that his late-night, surreptitious invasion into the woman’s unlit home would cause her and her children to be fearful and would interfere with her privacy and peaceful enjoyment of her home. Taking into account the history of the relationship between defendant and the woman, as well as his threatening actions following his entry, the evidence was sufficient to uphold his conviction under Va. Code § 18.2-121. The Court of Appeals affirms defendant’s conviction of unlawful entry upon the property of another, for entering his ex-girlfriend’s home, despite defendant’s claim that the evidence did not prove he intended to interfere with the woman’s right to use the property. 

Protective order violation upheld without proof of exact distances or dates; stamped/initialed Statement of Facts OK

The Court of Appeals affirms a conviction of a father for violating a protective order by coming within 1,000 feet of the mother to exchange their child. The mother could not testify to the exact date it happened, nor how far apart they were, and only saw him as they both were leaving the parking lot. But she testified that she saw a car "associated with" him parked within 1,000 feet of where she was parked, in the shopping center where the exchange was to happen. When leaving, she paused at a stop light at the exit, behind his car. He

expressed exaggerated laughter and gestured to her in a threatening manner. He made the sign of a pistol with his hand and then pulled an imaginary trigger. The judge took judicial notice of the fact that, due to the size of the shopping center, the appellant would have been within 1,000 feet of Ellis’ location anywhere in that lot.

The father claimed there were inconsistencies in the mother's testimony. The Court does not say what they allegedly were, nor refute this accusation; it says that inconsistencies in the winning side's testimony do not matter on appeal. They "go to the weight," not the witness's competency, and the trial judge has the discretion to weigh credibility and accept only the testimony that tends to the conclusion he or she reaches, even if testimony from that same witness contradicts it.

Not remembering the date, and not proving it, does not matter if time is not an element of the crime. Time was an element, to the extent that the offense was only a crime if it happened while the protective order was in effect, but that much was proven by the date given ni the agreed-on Statement of Facts.

The Court found a Statement of Facts acceptable though it was not signed by the trial court judge. It was agreed on by both sides, and stamped with the judge's initials, the word "Seen", and the date of its filing. "In the case of an agreed-upon statement of facts, initials of the trial court are sufficient to comply with the Rules," the Court declares. It notes that initials are allowed to constitute a signature in the Uniform Commercial Code, Black's, Virginia estates law and other contexts. (Citing Pilcher v. Pilcher, 117 Va. 356, 366-67, 84 S.E. 667, 670-71 (1915)). The initials in this case were made "with the intention of authenticating," and they did so. The "Seen" indicates that the judge has reviewed it, which serves the rule's purpose of ensuring an accurate, complete statement of the facts and procedural history. 

Also, Rule 5A:8 says only that the judge MAY sign the Statement, not must, and if he believed it was not accurate, he could have done as the Rule provided, and made changes to it.

Lee v. Commonwealth, unpublished 7/28/15

Mom's focus on feelings & needs supports terminating her rights via narcissist diagnosis, non-improvement prediction

For a generation or two, everyone, especially women, has been urged to get in touch with their own feelings and needs. But don't overdo it. In a case with abundant evidence for termination of a mother's parental rights to seven of eight children under 13, one part of that evidence, cited by the Court of Appeals, predicts the future based on a diagnosis:

Dr. A.J. Anderson, a psychologist, evaluated mother and determined she is excessively self-focused and preoccupied with her own needs and feelings to the extent that it likely prevents her from giving adequate attention to the needs and feelings of others. Dr. Anderson also concluded that mother has narcissistic characteristics that limit her response to interventions. He opined that mother is not likely to “self-correct or be open to constructive criticism.” Dr. Anderson stated that individuals diagnosed with mother’s personality disorders often do not change considerably over time, even with treatment.

From the opinion it looks like the mother did not challenge the admission of that testimony, or its use as a reason for termination. Also, it was not a generalization or prediction made in a vacuum; all of it was consistent with the mother's existing behavior.

Robinson-Miles v. Danville Division of Social Services (Va. Ct. App. Unpublished, 9/15/2015)

Assault conviction was "domestic violence" making firearms possession illegal -- US 4th C

The federal 4th Circuit Court of Appeals offers guidance on what exactly is a "domestic violence" misdemeanor conviction which makes it illegal to possess firearms under 18 U.S. Code §921(a)(33)(A) and §922(g)(9), in U.S. v. Vinson (7/21/15). The decision turns on the the fact that common-law assault in North Carolina can include several forms, including what is more commonly called assault & battery, and whether what he was convicted of was a charge which "categorically" would always constitute domestic violence. The Circuit court adopt's the government's "modified categorical approach" which establishes that in Vinson's case, the conviction was for domestic violence. It cites the charging document which makes clear that the victim was the defendant's wife, and the conviction judgment which states the exact acts that constituted assault in this case. A dissenting judge says that the majority is essentially taking a very wide crime that includes things that are and are not domestic violence, and claiming that it is functionally divisible into separate crimes, merely because that the charging and convicting documents in this case describe acts that qualify as domestic battery.

 

For more insight: 

Divided panel vacates dismissal

U.S. judges to decide whether man who hit wife can keep gun, stemming from local case

Leaving child with mother, who was likely to leave too, was child neglect - Va. Ct. App.

A father's conviction for "contributing to the delinquency of a minor" -- a misleading shorthand term for Virginia Code §18.2-371, which also includes child neglect -- was upheld by the Virginia Court of Appeals based on his lack of credibility and his own statements indicating that he thought the mother might leave a hotel room, too, when he left first during a "volatile situation" with the mother. At least in the Va. Lawyers Weekly summary of the case, it is not debated, but rather is assumed, that if he left under those circumstances, he violated the statute. Their two-year-old was later found wandering around the hotel early in the morning wearing only a diaper.

This decision makes things very hard for parents who decide to leave the premises to prevent an imminent domestic violence situation, unless they are able to take their children with them. Which may increase the likelihood of violence in such a situation.

Brown v. Commonwealth, (Va. Ct. App. unpublished, 07/21/2015)

 

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).

Obscenity still criminal when harassing or threatening - Va. S.Ct. in Rives case

CRIMINAL ISSUES – VULGAR THREATS TO EX-PARAMOUR – TELEPHONE CALLS – CRIMINAL HARASSMENT – OBSCENITY. Yea verily, the Court giveth and the Court taketh away, as lawyers who have just watched the procedural ping pong and the revolving-door opinions in the Barson case well know by now. However, practitioners definitely need to read carefully another opinion that the Supreme Court handed down the same day in the form of a “published order,” and sit down with both opinions and carefully compare them. In short, the Supreme Court majority not only showed that is it quite ready to sustain these kinds of convictions, but also said a number of very interesting things, as its opinion took some surprising turns. Mostly, the angry husband and ex-boy friend in Rives v. Commonwealth, 27 VLW 78 (6/7/12), was out of luck because at the time he made his ugly phone calls other law governed the definition of obscenity for the purposes of §18.2-427, and thus the Court of Appeals did not err in applying the (however un-constitutional) then-valid precedent to this case. (It does not help that the Virginia Lawyers Weekly appears to list it as a Court of Appeals order, but this is a published order of the Virginia Supreme Court, Record No. 111492.) The Supreme Court points out that it has invoked the “right result for the wrong reason” doctrine before, and here applies it with vigor and a vengeance. It does hold, or seems to hold, that the language Mr. Rives would have used violated §18.2-427 even if the 1973 test of Miller v. California, 413 U.S. 15, had been applied to the obscenity definition used to convict him of using “profane, threatening or indecent language over public airways.” When Rives broke off his adulterous relationship with a certain woman, here unnamed, her reaction was to call Rives’s wife, and he thereupon left a series of voice mail messages for the woman which likened her to a sexually active female dog, and threatened her with rape which he made clear would be unpleasant. The utterances were certainly both rude and crude and curious readers are referred to the Court of Appeals opinion for more specific detail. The Court of Appeals rejected his appeal in an unpublished opinion, but applied the U.S. Supreme Court Miller test, realized that communication had to have as its dominant theme an appeal to the prurient interest and not mere angry name-calling, and concluded that these calls met that Miller test. The evidence was sufficient to lead a rational fact-finder to conclude that such was its dominant theme. Section 18.2-427 at the time of this husband’s acts prohibited three kinds of conduct by phone when accompanied by the intent to coerce, intimidate or harass: obscene language, obscene suggestions or proposals, and threats of illegal or immoral acts. Thus any one of these is sufficient to convict a user of offensive speech. So the question of obscenity is immaterial, the Supreme Court majority says, since there was a threat to commit an illegal or immoral act, and the intent included intimidation or harassment. Justices McClanahan and Powell took no part in this case. And was there a dissent from this published Order? There certainly was. The majority’s three-verb disjunctive theory of the statute is all very well, the dissenters say, but the fact is that this accused was tried under a two-verb conjunctive standard, for no facts were in dispute at the trial, and the whole trial, as “only a legal issue,” was tried as a stipulation. Rives went to trial to defend himself on a theory, courtesy of the Commonwealth, that required proof of obscenity – lawfully and constitutionally defined. The dissenters do not waste a word, so it is best simply to quote them (Chief Justice Kinser, with Justice Lemons). “The ‘right result for the wrong reason’ doctrine cannot be utilized when a defendant is not on notice at trial to present evidence to rebut a particular method of proof articulated by the Commonwealth. Whitehead v. Commonwealth, 278 Va. 105, 115, 677 S.E.2d 265, 270 (2009). In the case before us, the parties stipulated that ‘the only issue presented at trial was a legal one, namely whether or not the language used by…Rives was both obscene and harassing, such that it would violate Code § 18.2-372. Based on that stipulation, the trial court found the language used by Rives ‘both obscene and harassing.’” *** “The stipulation makes clear that the Commonwealth was not pursuing a theory of guilt predicated on that portion of the statute making it illegal for a person to ‘threaten any illegal or immoral act with the intent to coerce, intimidate, or harass...over any telephone.’ Code § 18.2-427. Instead the Commonwealth’s theory was that Rives had used ‘obscene...language...with the intent to...harass.’ Id. Thus, Rives was not on notice to present evidence to rebut the charge of ‘threaten[ing] any illegal or immoral act’ with the intent to harass. Id. It is inappropriate, therefore, to apply the ‘right result for the wrong reason’ doctrine to affirm the trial court’s judgment.” *** “Although the language Rives used in the telephone messages at issue was rude, vulgar, and disgusting, I also conclude that it does not satisfy that definition.”