Virginia Family Law Appeals

Third party's mortgage payments were marital; sole custody justified, GAL report evidence; sole-named debt can be weighed AND ordered paid -- Harrop II v. Harrop

THIRD-PARTY MORTGAGE PAYMENTS WERE MARITAL:

A church's payment's of a divorcing couple's joint mortgage obligations were marital-property contributions to the home's equity, even though the husband was the sole occupant and solicited the church's assistance, the Virginia Court of Appeals ruled in Harrop II v. Harrop, unpublished, March 7, 2023. He presented no  evidence of what the church's intent was, so he did not overcome the presumption that paying a jointly-titled debt was a gift to both spouses, not just him.

That's all straightforward and sounds right. What's troubling is the court's footnote to this, which seems to mean that its holding is not really going to be the rule in similar future cases where such payments are made post-separation:

We recognize that because the property at issue was acquired after the date of the parties’ last separation, husband would have been entitled to a presumption that the property was separate property. See Luczkovich v. Luczkovich, 26 Va. App. 702, 708 (1998) (“Property acquired after the last separation is presumed to be separate unless the party claiming otherwise proves that the property ‘was acquired while some vestige of the marital partnership continued or was acquired with marital assets.’” (quoting Dietz v. Dietz, 17 Va. App. 203, 211-12 (1993))). However, because husband did not make this argument to the trial court or to this Court on appeal, we treat it as waived. Coward v. Wellmont Health Sys., 295 Va. 351, 367 (2018) (“[I]t is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.” (quoting Bartley v. Commonwealth, 67 Va. App. 740, 746 (2017) (applying Rule 5A:20(e)))).

Does "the property at issue was acquired after the date of the parties’ last separation" mean that the home -- the property being divided -- was acquired post-separation, or that the church's contributions to the mortgage were "property" the husband "acquired"? The latter, apparently, because the husband was already making mortgage payments on the home for the same month when the parties separated. So the footnote strongly implies that the payments were property, and were acquired by the husband, even though they were third-party payments of a debt that was in both spouses' names. And that if only he had made that argument, he would have won that point, unless the wife could present proof that the church intended a gift to both spouses.

SOLELY-TITLED DEBTS:

The court also reconciled two things the equitable distribution statute says about debts that are in only one party's name: Code § 20-107.3(C) says “the court shall have no authority to order the division or transfer of . . . marital debt, which is not jointly owned or owed.” It also says the court "shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the [equitable distribution] factors listed in subsection E.” 

Therefore, "the court could account for the debts in the course of equitably distributing the property under Code § 20-107.3(E)."

But not only that, "Code § 20-107.3(C) ... still gives courts the option to account for those debts by ordering one spouse to pay debts in the other spouse’s name."  However, that was not actually an issue in the case. The court was simply upholding the trial court's allocation to each party of that party's own debts that were already in that party's sole name.

That apportionment, which left the husband with debts elevenfold greater than the wife's, was not a blind refusal to consider such debts: it was correctly done by considering the equitable distribution factors, e.g., "the cumulative effect of the extra-marital conduct ... was devastating and ... a significant negative nonmonetary contribution," and "wife’s positive contributions to the family, including raising the parties’ children and spending substantial time educating herself on how best to care and advocate for the child with autism."

The trial court also properly considered the “debts and liabilities of each spouse” as a factor, and  "accounted for holding husband responsible for most of the marital debts by awarding wife less of the marital property than she had sought." 

CUSTODY:

The court also approved of the trial court's reasons for awarding sole legal custody: The father was "'mostly resistant and uninvolved'", "'quick-to-anger'", “'resistant to engage in a dialogue with [wife] about child-related decisions' and lacked 'willingness to collaborate with her over the past three years'  ... 'even if an agreement is reached in the moment, [husband] takes steps afterwards to frustrate the process and recharacterize the outcome.'”  These observations in the Guardian ad Litem's report also "'coincide closely with'" the trial judge's firsthand observations.

Why was the Guardian ad Litem's report admissible evidence? The Court emphatically rejected the father's argument that "a guardian ad litem report is entitled to no more weight than a closing argument. See Wiencko v. Takayama, 62 Va. App. 217, 233 (2013) (finding that the abuse of discretion standard 'affords the trial court appropriate flexibility in determining to what extent it should rely on the recommendation of the guardian ad litem'); Bottoms v. Bottoms, 249 Va. 410, 420 (1995) (reversing trial court’s custody determination for failing to consider guardian ad litem report)."

And the trial court had authority to order sole legal custody even though the mother's pleadings did not expressly request it: "a court may award relief it deems appropriate, even if that form of relief was not specifically requested by that party. ... D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 336 (2005) ... Cloutier v. Queen, 35 Va. App. 413, 424 (2001)." And the father comprehensively  "put the question of custody before the court in his counterclaim for divorce when he asked the court to 'adjudicate issues of child custody, visitation and support of the parties’ minor children.'”

Counselor's power over family is an infringement on parents' Fourteenth Amendment rights.

The father appealed, arguing that the trial court erred in delegating to the child's counselor "unlimited, unfettered discretion over any and all parenting decisions to which both parents have to adhere or be subject to the contempt power of the court." The Court of Appeals agreed, making a profound statement about the father's constitutional rights. In sum, the overly broad clause infringes upon the Due Process Clause of the Fourteenth Amendment. The court held that the trial court erred in ordering the parties to fully cooperate with the child's counselors's recommendations. 

Bonhotel v. Watts, 2016 Va. App. LEXIS 327 unpublished, 12/1/16

Giving the GAL 'sole discretion over determining visitation' is erroneous.

Reilly v. Reilly, 2016 Va. App. LEXIS 343 (December 13, 2016)

The circuit court order stated, the "Mother shall enjoy Supervised Visitation . . . . Supervision can be altered IN WRITING by the Guardian ad Litem based upon [the] Mother's strict compliance with the conditions and other provisions set forth in this Order." The mother argued that the circuit court "gave the GAL 'sole discretion over determining visitation' between [the] mother and the children." The Court of Appeals agreed with the mother and said that the plain language of the order gave the GAL "authority to alter supervision without a ruling from or any hearing in the circuit court." The court then granted the mother a trial de novo and held that it was erroneous "for the circuit court to approve such language allowing a third party, even a guardian ad litem, total discretion to decide [the] mother's visitation without providing judicial review because it is inconsistent with the language and purpose ofCode §20-124.2."

 

 

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.

State failed to meet burden of showing parent failed to remedy conditions; no-show GAL who phoned-it-in failed to protect child

The Court of Appeals overturns a parental rights termination, and a change of goals from reunification to adoption, for lack of evidence that the mother was unwilling or unable to remedy what caused the child's removal, in Sternberg v. Spotsylvania DSS, 5/8/18. Mother had a history of some very non-extreme acts of abuse and neglect, and some cognitive disabilities, but complied almost completely with recommendations, visitations, safety plans and reunification plans, and complied with all court orders. She proved able to meet her child's needs and was beginning to bond and be an effective authority figure to the child. 

However, the DSS changed the plan to termination and adoption. An evidentiary hearing in Circuit Court, with the mother representing herself, nonetheless revealed how flimsy their grounds for this were. The DSS witness cited her "defensiveness and argumentativeness" and that there were “incidents with safety” -- but the Court notes that these

"were not situations involving any type of physical or emotional abuse or even corporal punishment. Rather, they involved circumstances such as D.S. continuing to run at a pool after his mother had instructed him to stop doing so and crossing a Wal-Mart parking lot in a manner deemed unsafe."

The DSS was concerned about how the mother responded to information about unspecified criminal charges against her pastor, though they could not point to anything like the mother leaving the child alone with him. They also noted "dysregulation" and a lack of follow-through with discipline of the child.

The Circuit Court rightly dismissed the DSS's concerns about relatively trivial and everyday imperfections, but said that the child was taken away in the first place because of "physical abuse" and the mother had not done anything to acknowledge or remove the causes of that, and so terminated her parental rights. However, (1) it had refused to let the mother introduce evidence of what exactly led to the child's removal in the first place, and (2) what the Court found the mother had failed to do was not at all what the  safety plans, recommendations, court orders, etc. had told her to do.

The Court of Appeals says it is unnecessary to address the trial court's refusal to hear evidence of what led to the child's removal, because, it says, there was absolutely no evidence to show, as Code § 16.1-283(C)(2) requires,

"clear and convincing evidence, that it is in the best interests of the child and that . . . [t]he parent or parents, without good cause, have been unwilling or unable within a reasonable period of time not to exceed 12 months from the date the child was placed in foster care to remedy substantially the conditions which led to or required continuation of the child’s foster care placement ...

In other words, the burdens of production and proof, regarding remedying the conditions, are on the state, not the parent.

The Department asked the Court to affirm on the grounds that there was other evidence in the record supporting other grounds for termination, but the Court notes that the Circuit Court had, rightly, found such evidence of poor parenting skills immaterial. Accordingly, "we reverse the decision of the circuit court and vacate both its order terminating mother’s parental rights to D.S. and its order approving the change in goal for the foster care plan from “return home” to “adoption.”"

The Court also finds that the guardian ad litem failed to provide effective representation, though it does not affect its decision. The GAL sent a colleague from another firm to represent her at the circuit court trial and present her recommendation, "after reaching her conclusions regarding the case without the benefit of the evidence at the hearing," the Court notes with concern.

"Accordingly, no guardian, whether appointed or serving as a substitute, offered an opinion that was formed based on all of the evidence. Thus, D.S. was denied a fully informed guardian to represent his interests, and the circuit court, in reaching its decision, was denied the benefit of a validly formed opinion of a guardian ad litem."

Court has wide discretion to bifurcate near-death divorce from economic claims when "necessary to achieve equity"

Friedman v. Smith and Goldstein, 3/20/18, is the latest word from the Court of Appeals on bifurcating a divorce case when a party may be close to death.

“Bifurcated” divorce can mean a situation where divorce and property division have to be performed in two different states, but what it means in this case is bifurcation in time: “Divorce first, E.D. afterward.” It is authorized, and limited, by an amendment to Code §20-107.3:

 The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.

The Court of Appeals has emphasized that:

• There must be an underlying prayer for ED — this is not for cases where people just forgot about it. Smith v. Smith, 38 Va. App. 113, 562 SE2d 329 (2002)
• There must be a finding of necessity, not mere preference. Spriggs v. Spriggs, 43 Va. App. 510, 600 SE2d 136 (2004); Christensen v. Christensen, 26 Va. App. 651, 655, 496 S.E.2d 132, 134 (1998).
• The reservation of jurisdiction must be explicit and specific. Nourdeen v. Nourdeen, unpublished 2003.
• But after that, trial courts have broad discretion to decide what is necessary. Christensen, supra.
• One party’s benefit, such as the ability to file tax returns as unmarried, does not give that party a right to bifurcation. Clark v. Clark, unpublished 9/15/98.

When it is necessary to bifurcate? Friedman says:

We emphasize that bifurcating a divorce proceeding in this manner is not a matter of right nor should it be a common practice, but rather an exercise of a trial court’s discretion in an irregular situation. It is proper to do so only upon motion of a party and when “clearly necessary” to achieve equity. See Christensen v. Christensen, 26 Va. App. 651, 654-55, 496 S.E.2d 132, 133-34 (1998) (explaining the evolution of Code § 20-107.3(A)). Otherwise, “Code § 20-107.3 compels [a] trial court to decide the divorce and property issues contemporaneously.” Patel v. Patel, 33 Va. App. 776, 782, 537 S.E.2d 11, 14 (2000).

…

[W]e do not decide whether alone or in combination, advanced age, hospitalization, the fear of imminent death, or competency issues by a spouse provides justification as a matter of law for bifurcation under Code § 20-107.3(A). Rather, we emphasize that the statute’s “clearly necessary” requirement, in effect, provides our standard of review of the exercise of the circuit court’s discretion in these cases.

The facts of the Friedman case leave one wondering what “necessary” means — necessary for whom? At what cost to the other party? What is the difference between wanting and needing something in this situation? The opinion provides a single but important three-word phrase to partially answer that: necessary "to achieve equity.” So this is a decision to be guided by the maxims of equity and the equities of the case.

Why is it equitable in this case to leave the wife a divorcee instead of a widow? The Court does not spell it out nor describe all the circumstances you would have to look at to even decide what the effects of that decision are, let alone whether they are equitable. But it is clear from the opinion that the Court thinks the wife is the party with more unclean hands in this case. She was the first spouse to file for divorce, and then stretched the case out with various procedural disputes, perhaps hoping that the husband would die before it was over, as the Court sees it. The husband sought bifurcation and the wife opposed it, so maybe the trial and appellate judges simply concluded that it was equitable to give the husband the remedy that he and the wife apparently believed to be better for him and his heirs, and worse for her.

What would be an abuse of discretion, on this issue? The Friedman opinion says:

A circuit court abuses its discretion when the record discloses that the court acted arbitrarily rather than with due regard to conscientious judgment. See Slayton v. Commonwealth, 185 Va. 357, 367, 38 S.E.2d 479, 484 (1946). Stated another way, “[o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Wright v. Wright, 61 Va. App. 432, 463-64, 737 S.E.2d 519, 534 (2013) (quoting Robbins v. Robbins, 48 Va. App. 466, 482, 632 S.E.2d 615, 623 (2006)).

A divorce case abates on a party's death. Simpson v. Simpson, 162 Va. 621, 633, 175 S.E. 320, 325 (1934). But after bifurcation, does the E.D. case still live on after a party dies? This opinion is not completely clear on that, but checking the trial court's docket shows that yes, the E.D. case is alive and well. The opinion notes that the equitable distribution case, and especially claims for attorney’s fees, may survive and be carried on by the estate’s personal representatives, citing 1932 and 1898 cases:

 “[W]here the consequences of the divorce are such as affect the property rights of the parties to the suit, the heirs or personal representatives may have such an interest in the litigation as that the cause will survive, not for the purpose of continuing the controversy touching the right of divorce within itself; but for the ascertainment of whether the property has been rightfully diverted from its appropriate channel of devolution.” Craddock’s Adm’r v. Craddock’s Adm’r, 158 Va. 58, 65, 163 S.E. 387, 389 (1932) (emphasis added) (quoting Nickerson v. Nickerson, 48 P. 423, 423 (Or. 1898)).

The rule nationwide is that after bifurcation and death, the E.D. case continues:

If the drawn-out nature of modern divorce proceedings means that the court still faces ancillary issues, such as property division or support, the uniform modern rule is that those issues should be resolved by the divorce court, with the decedent's estate substituted as a party. In other words, the courts have declined to extend the common-law rule so that death abates an action for property division or support. As long as the divorce action itself survives, death will not cause abatement of ancillary issues. In re Hilke, 4 Cal. 4th 215, 841 P.2d 891, 14 Cal. Rptr. 2d 317 (1992); Angelli v. Sherway, 560 A.2d 1028 (Del. 1989); Estate of Pinkerton v. Pinkerton, 435 Pa. Super. 455, 646 A.2d 1184 (1994).

-- from "ABATEMENT OF DIVORCE AND ANCILLARY PROCEEDINGS UPON THE DEATH OF A PARTY" by the National Legal Research Group, Inc.

Another small exception to abatement at death, one which proves the rule: Sprouse v. Griffin, 250 Va. 46 (1995)) allowed a trial court to distribute funds it held in escrow when a divorce terminated at death, but that was because it did so not as equitable distribution, nor as probate, but to carry out the automatic property-law effects of the death of one of the tenants-by-the-entirety who had owned the property whose sale the funds came from.

Another great quotation from this opinion:

“[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction.” Belew v. Commonwealth, 62 Va. App. 55, 62, 741 S.E.2d 800, 803 (2013) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983)).