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 Lynch v. Bedford Co. DSS (6/11/19, unpublished).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.

Agreement to pay young adult child's insurance & non-covered medical costs is enforceable, even after child support terminates

The Court of Appeals interprets an agreement to pay non-covered medical expenses as lasting as long as the child is eligible for the father's health insurance, given the wording of the agreement and its lack of anything saying otherwise, and dismisses other challenges to enforcement through contempt of court. Green v. Robertson, unpublished 3/20/18.

The agreement, incorporated in the divorce decree, said:

The Husband [father] agrees to maintain the minor children as a beneficiary of his present medical/hospitalization policy for so long as they may be entitled to said coverage. The parties agree to share equally the cost of any medical or dental expenses (including orthodontic) of the children not covered by said insurance.

 The mother brought a contempt case and also sued for breach of contract, to which the father countered with the widely-feared but little used concept of "merger", borrowed from real estate law -- the idea that the agreement was entirely swallowed up by the divorce decree and no longer exists. The mother nonsuited the breach claim, and her counsel admitted in court that it was "merged", so the Court of Appeals does not get to address that concept.

The trial court made some useful observations about interpreting common wording in family law documents:

The word minor is not limiting in this context ... It is descriptive. It describes the children who are the subject of this provision.  The children who at the time in the execution of the agreement were minors, that word, in its common sense reading, does not limit their entitlement only to the minority, but again simply is descriptive of who we are talking about. The kids were minor [sic] at the time of this agreement. This child being a minor at the time of this agreement, he is still now entitled and is apparently covered by insurance.

The trial court found that the obligation to provide insurance was still in force because the child in question still qualified for it, and that the non-covered costs obligation lasted as long as the obligation to provide insurance, but declined to find the father in willful contempt, or to award attorney's fees, because the father's interpretation was reasonable, though mistaken. But it ordered the father to pay half of some considerable bills for very serious medical problems. 

ENFORCEMENT PROCEDURES

On appeal, the father argued that only contempt was before the court, so the finding of no contempt should have put an end to the case. Mother had not filed any separate motion for enforcement. The Court replies:

We find the distinction between the title of these two motions an inconsequential matter of form. Mother’s affidavit and petition for rule to show cause recited the relevant facts required for the trial court to award her relief ... Most importantly, mother’s affidavit and petition for rule to show cause also specifically requested the relief ultimately granted by the trial court. ... Trial courts have the discretion to enforce decrees based on the filing of a show cause motion, even where no contempt is found.

Also, the agreement's incorporation made it generally enforceable as part of the divorce decree, and also made it a judgment, and the mother's motion sought to have the already-owed part of that judgment restated as a particular dollar amount.

INTERPRETATION

 Father raised several issues of interpretation. One was that the agreement was made long before the Affordable Care Act let children stay on their parents' insurance for several more years. But that does not change the "plain meaning" of “for so long as they may be entitled to said coverage”, the Court replies. 

... the agreement specifically contemplated that the time period for which the children may be provided coverage was subject to change, and it was purposefully drafted to extend father’s obligation to cover that shifting time frame. The agreement did not set a finite end date for the father’s obligation. ... Use of the word “may” suggests that the parties anticipated that the amount of time for which the children would be entitled to coverage would be subject to change and that father’s obligation to provide coverage was subject to those potential changes. 

As for the "minor children" wording discussed above, the Court adds that it would make the “for so long as they may be entitled to said coverage” wording "virtually meaningless" surplusage. It also notes that elsewhere in the agreement, the "minor children" are to remain life insurance beneficiaries until age 22, and to have college paid for.

And "entitled to said coverage", in the context of adult children on parents' health insurance, plainly means "qualified", not "entitled" in some stronger and narrower legal sense. And because there is not any other sense in which any child would be "entitled" to health insurance, to require such a non-existent entitlement would make the whole provision meaningless.

On the non-covered costs,

The reference to “said insurance” refers to the insurance discussed in the prior sentence ... and limits the obligation of the parties to pay for uncovered expenses to the period of time when the children had insurance coverage, regardless of their age.

So if the insurance were no longer available to cover them, the non-covered costs obligation would expire with it; but here, the insurance and the obligation were still in effect.

FEES

Even though the trial court did not think the father should have to pay a fee award, the appeals court said fees for the appeal should be awarded because he had defaulted on performance of the agreement, and the agreement said "the defaulting party will indemnify the other for all reasonable expenses and costs, including attorney’s fees, incurred in successfully enforcing the terms of this Agreement.”

Child support orders must address health insurance, non-covered medical expenses, no evidence of costs needed

A child support order must include provisions for how health insurance and non-covered medical expenses are shared between the parties, the Court of Appeals says in Elliott v. Wendell, 12/20/2016. 

An absence of evidence does not negate a court’s statutory responsibility to ensure that a dependent child’s health care needs are met by making provisions for the same in an order of support. Zubricki v. Motter, 12 Va. App. 999, 1002, 406 S.E.2d 672, 674 (1991); see also Whitney v. Whitney, No. 2192-06-2, 2007 Va. App. LEXIS 203, at *14 (Va. Ct. App. May 15, 2007) ...  In Zubricki, we found “no merit” in a father’s argument that a trial “court erred in ordering him to pay health insurance or health expenses without any evidence as to their cost.” 12 Va. App. at 1002, 406 S.E.2d at 674. Noting that a “court is not required under the statute to determine the amount of coverage that will be necessary as there is no way for the court to predict the costs,” we nonetheless recognized that “[u]nder Code § 20-60.3, a child support order must contain a provision for health care coverage.” Id.

Ordering a party to provide health insurance does not require any evidence or findings; making the exception, for when it's not available at reasonable cost, does.

The sole statutory exception to the requirement that health care coverage be addressed in a child support order is when there is a showing that coverage is not available at “reasonable cost.” Absent such a showing, the order must contain a provision for health care coverage. Here, the absence of sufficient evidence prevented the circuit court from finding that the exception applied. In the absence of such evidence, the default rule is that “a child support order must contain a provision for health care coverage.” Id. (emphasis added). Accordingly, the circuit court erred when it failed to include a provision regarding health care coverage in the order.

When a court does conclude from the evidence that no coverage at a reasonable cost is available, the court still must include a written statement to that effect in the order.

On non-reimbursed medical expenses, the trial court did not order anything, because the only evidence was about incomes, and that there was no evidence about what the medical expenses were. But

Code § 20-108.2(D) ... establishes a default method by which a minor child’s uncovered medical expenses are to be allocated between the parties. Absent “good cause shown or the agreement of the parties,” “the parents pay in proportion to their gross incomes.” The only evidence needed to determine the relative amounts each party is responsible for is the parties’ gross incomes.

The Court also reminds us why it can cite unpublished opinions, and what they're worth:

Unpublished opinions of this Court, while having no precedential value, are nevertheless persuasive authority. Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735 S.E.2d 255, 258 n.3 (2012).