Virginia Family Law Appeals

Doctor can reduce work hours and alimony payments at 66; complex property settlement FUBAR by unforeseen events

The Court of Appeals upholds a reduction in alimony for a 66-year-old anesthesiologist who reduced his brutal work hours and planned to fully retire, and who testified that that was consistent with other anesthesiologists his age, in Gadpaille v. Gadpaille, unpublished 7/10/2018.

The trial court in that case also dealt with marital home sales proceeds that were supposed to be offset against a retirement account division and other sums under the PSA, but which ended up being "a deficiency", apparently a negative number, after accounting for repair costs, fire damage, and reduced insurance coverage. The appeals court finds that the trial court did not rewrite the PSA, but rather, correctly "considered the totality of the parties’ agreement as expressed" in the PSA and in a later consent order, and applied that agreement to the unforeseen circumstances.

Courts don't have to give spouse any survivor benefit, nor half the marital share of retirement

The Court of Appeals upholds a divorce order that let a severely disabled military retiree keep 55% of the marital share of his retirement. Pederson v. Pederson, Va. Ct. App. Unpub. 8/2/16 His incapacity alone would justify that, the Court says, and the wife was able to earn $100,000 per year while the husband was unemployable. It also cited evidence of the wife contacting his superiors, which judges around here don't like, these days:

Evidence related to wife’s inappropriate e-mail exchanges with husband’s superior officer, her reports to authorities of alleged professional misconduct by her husband (reports that ultimately were deemed unsubstantiated by those authorities), and the circumstances surrounding husband’s decision not to accept the promotion to Wing Commander provided a sufficient basis for a reasonable factfinder to conclude that wife was less than supportive of husband’s career.

The Court also upheld the refusal to include in the retirement-division order a requirement to indemnify the wife for reducing disposable retired pay by electing disability.  Though that was considered legal at that time, nothing required the trial court to do so. 

Survivor benefits: Code § 20-107.3(G)(2) gives the court discretion to award any survivor benefit, or not to.

The opinion includes many other points about appellate procedure, life insurance beneficiary designations, and conservatorship, but I don't believe they break any new ground.

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.”

Court can order custodial father to pay net of alimony minus child support; can make decisions code requires though not discussed at trial.

A support order can offset the payments for one kind of support against payments going the opposite way for another kind of support, the Court of Appeals says in O'Reilly v. O'Reilly (5/31/16), unpublished. Thus, when ordering a father to pay alimony to the mother, and the mother to pay child support to him, a court can order him to pay the net difference rather than having money going in both directions.

Nor was it error for a judge to order children's non-covered medical expenses shared in proportion to income, even though there was no discussion of that during the trial. All support orders are required to address this by Code Section 20–108.2 D, and the order followed the by-default formula for doing so.

The mother believed, as some parents do after looking at the support guideline spreadsheets, that the father was supposed to pay her the amount listed as "father's obligation" even though he was the custodial parent. The Court disagreed, and said that that amount is what he's assumed, but not ordered, to spend on the children from his own income, in addition to the child support the mother pays him.

Liberty University's insurer needn't defend it in civil suit for anti-gay child abduction & advocacy - US Appeals Court

The federal Fourth Circuit court of appeals has reversed a trial court ruling that had said the University's insurance company should have defended it against a civil suit for the role its employee played in the international child abduction in the Miller-Jenkins case between Vermont and Virginia. A Vermont lesbian couple broke up and the partner who was the child's natural mother took her to Virginia and claimed that since Virginia would not recognize the couple's Civil Union under its Defense of Marriage Act, it should not recognize the other woman's parenthood and should not enforce a role for her in the child's life. This argument failed, going all the way to the Virginia Supreme Court, and a network of Christians who conscientiously objected to the state having the power to make a non-parent a parent (at least in a gay relationship) helped the mother flee to Nicaragua with the child.

The insurer was not required to defend the suit because the insurance policies have exclusions for:

• any harm that was “expected or intended from the standpoint of the insured”
• injuries “arising out of a criminal act committed by or at the direction of the insured.” 
• any “‘[p]ersonal and advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury’” 

The Court continues:

"Critically, unlike the underlying complaints considered in the cases cited by the district court, the Jenkins Complaint does not allege that Appellee was responsible for its agents’ intentional acts because it was negligent. Rather, the Jenkins Complaint alleges that Appellee is directly liable for harm arising from its intentional participation in conspiracies and vicariously liable for the intentional acts of its agents."

Something that should be very disturbing to any family-law attorneys, law professors, to anyone who has advocated civil disobedience of what they believe to be unconstitutional laws and directives, and to any lawyers who defend people in controversial cases that pit various kinds of human right against each other, is this:

The Jenkins Complaint also asserts that Appellee was vicariously liable for the role Hyden played in the kidnapping, for its agents’ racketeering, and for its agents’ participation in a conspiracy to violate Jenkins’s and the child’s “rights to a parent-child relationship.”

In particular, the Jenkins Complaint charges that Miller retained the dean of Liberty University School of Law, Mathew Staver, and one of the school’s professors, Rena Lindevaldsen, as her attorneys. As alleged, Staver and Lindevaldsen encouraged and assisted Miller in violating state court orders, established social media forums soliciting donations to groups that aimed to “prevent court ordered contact” between Jenkins and her daughter, and planned with other co-conspirators to kidnap the child. 

...

The Jenkins Complaint further alleges that Staver and Lindevaldsen “routinely instructed their Law School students that the correct course of 7 action for a person in . . . Miller’s situation would be to engage in ‘civil disobedience’ and defy court orders.” Id. at 45. As such, “Liberty University encouraged its agents to disregard state laws governing parental rights . . . of same-sex families.” 

Based on these facts, the Jenkins Complaint alleges that Appellee was directly liable for its involvement in the kidnapping scheme and, at the same time, vicariously liable because it “promoted, condoned and explicitly ratified its agent[s’] tortious, racketeering activity.” 

So, in several respects, the underlying lawsuit was a blatantly unconstitutional, Un-American "SLAPP" suit -- a "Strategic Lawsuit Against Public Participation." But it is hard to distinctly say that it actually stands on its own as such a suit, because it also includes what sound like very legitimate claims that should have been redressed: the same people named in the lawsuit for their academic work, and legal and political advocacy, were also alleged to have done very concrete things, which they should have known were illegal, to help the mother sneak the child out of the country to prevent the other mother from visiting with her. Even though they honestly believe that the other mother is not a real mother, had no rights, and that the government violates parents' rights, and gains dangerous and unprecedented power, when it decrees that a non-parent is a parent and that the biological father is not a parent (except in cases where it is required by the child's needs because of child abuse or neglect). 

The suit against the University was dismissed, but the immediate effect of this ruling is that the insurance company will not have to reimburse the University for its legal fees and costs in that suit.

LIBERTY UNIVERSITY, INC., v. CITIZENS INSURANCE COMPANY OF AMERICA; HANOVER AMERICAN INSURANCE COMPANY; HANOVER INSURANCE COMPANY, published, U.S. Fourth Circuit, Case No. 14-2254 (July 10, 2015).

More background on the case:

The real story behind Miller-Jenkins

 

Pastor Charged in Parental Kidnapping in Miller-Jenkins Gay Custody Case - NYTimes.com

 

Fathers' group explains its support for gay parents' custody rights

U.S. Supreme Court "Summer of Family Law" Began By Preempting Virginia Life Insurance Law

 FEDERAL LIFE INSURANCE (FEGLI) BENEFITS – BENEFICIARY DESIGNATION CONTROLS. It probably comes as no surprise to many lawyers that the U.S. Supreme Court upheld the Virginia Supreme Court’s ruling in Maretta v. Hillman. This was on June 3, and now it’s Hillman v. Maretta of course. You may remember that Mr. Hillman, the federal employee, who had been divorced in 1998, had not changed his employee designation of beneficiary when he died in 2008. Federal statutory law says the designation designates and determines it, and the federal statutory law controls. Virginia law is preempted, as the Constitution’s Supremacy Clause is pretty clear. So is the practice pointer here, and you have probably been told already numerous times that you should tell your federal employee client who wants or is facing a divorce to get that designation changed right away – which, considering the formal requirements for designation change and the role of an existing spouse or former spouse, is easier said than done (but perhaps a lawyer can consider his or her job done once the basic admonition is uttered – and recorded).

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Several changes to divorce laws from Virginia's legislature

Virginia's legislature recently finished its work for the year and made some significant changes to divorce law. Here are the legislature's official summaries of the bills enacted this session, with links to the complete texts and legislative histories.

 

HB 282 Divorce or annulment; revocation of death benefits. For more information see our recent blog posting, "Virginia legislature addresses beneficiary-designation mess."

 

HB 126 Affidavits; use in no-fault divorce cases. For more information see our recent blog posting, "New Virginia law allows uncontested divorce without court hearing statewide, but some of us already do that."

 

HB 677 Power of attorney; termination. Provides that an agent's authority under a power of attorney terminates by operation of law if either the agent or principal file an action for separate maintenance from the other or for custody or visitation of a child in common with the other.

 

HB 104 / SB 60 Divorce; failure to respond by defendant. Provides that if a defendant fails to file an answer in a divorce suit or otherwise appear after having been personally served with notice of the suit, no additional notice to take depositions is required to be served on the defendant and the court may enter any order or final decree without notice to the defendant. As introduced, this bill was a recommendation of the Boyd-Graves Conference. This bill is identical to SB 60.

 

HB 635 Equitable distribution; change of venue.  Provides that, upon or after the entry of a final divorce decree, a court may, upon its own motion or the motion of any party, transfer to the circuit court for the county or city where either party resides the authority to make additional orders to effectuate or enforce an equitable distribution award made in the decree or a stipulation, contract, or agreement that has been affirmed, ratified, and incorporated in the decree.

 

HB 272 Death, marriage, or divorce records; changes time period before becomes public. Reduces the time period after which death, marriage, divorce, or annulment records become public from 50 years to 25 years.

US law pre-empts state law changing beneficiaries at divorce - Va.Sup.Ct.

SPOUSAL DEATH BENEFIT STATUTE CHANGING BENEFICIARY UPON DIVORCE – FEGLI – FEDERAL PREEMPTION.  Contrary to the rulings of a majority of state courts, the Virginia Supreme Court held in Maretta v. Hillman, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 58 (1/13/12) that yes, Virginia, the federal statutory law that awards even a divorced widow, even in our Commonwealth, the late husband’s Federal Employees’ Group Life Insurance (FEGLI), overrides Va. Code §20-111.1(D), denies those benefits to a new wife and now widow, and does not require the payback to the new spouse that §20-111.1(D) would otherwise dictate. After all, the majority said, the FEGLI statute, 5 U.S.C. §8701 et seq. has a provision, §8709(d)(1), which expressly preempts state legislation to the contrary, and a definite scheme of priorities for the award of the benefits under §8705(a). The opinion also states that the Virginia Supreme Court is well aware that it is taking the minority position among states. Justices McClanahan and Millette dissent, holding that the federal statute cannot preempt the payback provision of Virginia Code §111.1(B), which has itself wording that says that it operates when there has been a federal preemption. The majority thinking was that allowing the payback requirement would directly frustrate the intent of Congress, but the dissenters believe that Virginia is free to create an equitable claim for compensation under its domestic relations laws, which, after all, have always been regarded as matters of state law.