Virginia Family Law Appeals

Custody court couldn't order something not raised in pleadings -- it violates "the most rudimentary due process safeguards"

Virginia's Court of Appeals reversed a trial court's order that a father “initiate revocation of the children’s Greek citizenship” in Kiriakou v. Kiriakou,Oct. 13, 2020. Nothing related to that was mentioned in any pleadings, and it first came up when the mother testified that she wanted it. The father claimed on appeal that he had no power to revoke another's citizenship once it was granted, and that the court had no statutory authority to order it. He was probably right on both counts, but the appeals court did not deal with either claim, because it agreed with him that the Court couldn't grant relief that was neither requested in, nor relevant to, the pleadings.

Before expanding on that, I'll note two other holdings of this ugly and sad custody case:

• The trial court did not abuse its discretion by not following the joint custody recommendations of an "uncontradicted" court-appointed expert witness.
• It was OK to give the mother the power to cancel individual visitations when the children's therapists recommended it. If the mother were to abuse that power, and cut the children's contact with the father, the father would not be powerless, because he could come back to court.

Now, some of the worst things I've seen judges do are things nobody had ever suggested. An idea comes to them in the middle of the trial, so it's something that neither lawyer has prepared for, researched the relevant law, considered the possible side effects, or asked their client about the relevant facts. The clients are the ones really affected, of course -- they're hit with something they haven't even thought about, and they feel that they and their lawyers are defenseless. It's a basic violation of due process -- you're supposed to get fair notice of what a court might do to you. It's also why we have an adversary system -- I know some judges who are excellent at passing judgement on others' proposals, but if they short-circuit the process with their own spontaneous ideas, things happen that have never really been examined and soberly considered.

This is the only time I can recall an appeals court recognizing this widespread injustice, and they really lay into it:

This Court agrees with father and holds that the trial court abused its discretion in issuing the Greek citizenship order because that order was not based on any allegations or requests for relief made in mother’s pleadings. Under well-settled Virginia law, a “litigant’s pleadings are as essential as his proof, and a court may not award particular relief unless it is substantially in accord with the case asserted in those pleadings. Thus, a court is not permitted to enter a decree or judgment order based on facts not alleged or on a right not pleaded and claimed.” Dabney v. Augusta Mut. Ins. Co., 282 Va. 78, 86 (2011) (quoting Jenkins v. Bay House Assocs., 266 Va. 39, 43 (2003)). The purpose of pleadings is to “give notice to the opposing party of the nature and character of the claim [against him], without which the most rudimentary due process safeguards would be denied.” Boyd v. Boyd, 2 Va. App. 16, 19 (1986).

...

The basis of every right of recovery under our system of jurisprudence is a pleading setting forth facts warranting the granting of the relief sought. It is the sine qua non of every judgment or decree. No court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed. . . . Pleadings are as essential as proof, the one being unavailing without the other. . . . Every litigant is entitled to be told by his adversary in plain and explicit language what is his ground of complaint or defense. . . . The issues in a case are made by the pleadings, and not by the testimony of witnesses or other evidence.

Ted Lansing Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va. 1139, 1141 (1981) (quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207 (1935)). Thus, a court is without authority to issue an order unless it is based upon pleadings before it.

But in a child custody case, aren't there all kinds of things that courts order, that aren't specifically described in pleadings? Yes, but

Mother’s pleadings made no factual allegations relating to the Greek citizenship issue either explicitly or implicitly. Furthermore, the crux of the special relief requested by mother in her pleadings related to custody of the children, orders finding appellant in contempt of a prior court order, and additional relief requiring father to submit to psychological evaluation. No request for relief was related to the Greek citizenship issue.

That mother included a general prayer requesting any relief the trial court deemed necessary and appropriate is unavailing. A general prayer “will support relief only for those matters placed in controversy by the pleadings and, thus, any relief granted must be supported by allegations of material facts in the pleadings that will sustain such relief.” ... Because mother did not make any factual allegations related to the Greek citizenship issue in her pleadings, any order involving the children’s Greek citizenship based on mother’s general prayer was outside the scope of what was put at issue in this case by mother’s pleadings.

 

Expert Witness Can be Excluded If Substance of Testimony Not Disclosed Timeously Under Scheduling Order, But Not for Missing A Signature Line

Galloway et al v. County of Northampton, Va. S. Ct.  4/1/21

The Virginia Supreme Court upheld the exclusion of a property valuation expert whose identity, but not the substance of his testimony, was disclosed by the deadline set in the scheduling order. But it said it was an abuse of discretion to exclude another expert who was disclosed in an interrogatory answer. The answer was unsigned, a mistake which was self-caught and self-corrected before anyone else said anything about it, but after the deadline. But the Supreme Court points out that the rule is for an unsigned interrogatory answer “to be stricken unless it is signed promptly after the omission is called to the attention of the party ...”.  And even without that, counsel and plaintiffs signed enough other parts of the discovery responses “sufficient to satisfy the requirements of Rule 4:1(g).”

As for the first expert, the scheduling order expressly warned that a party who did not comply with the order would “ordinarily not be permitted“ to use evidence that was not disclosed in time. The scheduling order was circulated at the pretrial hearing but not entered until the same day the disclosures were due, four months later. But counsel “had adequate notice” of its terms, having countersigned it the previous month.

The Court reversed the dismissal of the case. The trial court had dismissed it because with no expert witnesses, the plaintiffs could not prove an essential element of it. But with one, they might.