Virginia Family Law Appeals

No 401(k) benefits or other relief for "widow" of bigamy, but proving earlier spouses weren't divorced is daunting burden

The widow of a long marriage that she didn't know was bigamous cannot get the deceased's 401(k), Alexandria federal judge T.S. Ellis ruled in Bonner v. SYG Associates Inc., 498 F.Supp.3d 859 (E.D.Va. 2020). That result may not be surprising, but the federal court cites many interesting points of what it says is Virginia law, especially the burdens and standards for proving or disproving bigamy.

The man Ms. Bonner thought she was married to for 18 years had previously been married to another woman, lived with her about a year, and neither of them had ever gotten a divorce. So "Plaintiff was a bigamous spouse and therefore not a "spouse" within the meaning of ERISA and Decedent's 401(k) Plan." And the benefits must go to his "spouse," if any, because he had never designated a beneficiary. 

Nor was the innocent putative spouse entitled to equitable reformation of the Plan or a constructive trust under ERISA. For those, she would have to prove "(1) an act or practice that violates an ERISA or plan provision; and (2) entitlement to a specific form of "equitable relief" that has been deemed "appropriate." But none of the steps in the process of bigamy -- the real wife's alleged desertion, the husband's failure to tell the new wife he wasn't sure he was divorced, or his children's unsportsmanlike decision to tell the real wife about his death -- was any sort of violation of ERISA. And none of the parties breached a fiduciary duty either because nobody was a legal fiduciary at the time, or the putative wife was not a beneficiary whom fiduciaries had any duty to. And when the children did become fiduciaries, they in fact had a fiduciary duty to find and inform the actual widow.

Also,  reformation of the plan is an equitable remedy that is only available to one of the original contracting parties to the plan, not a third-party beneficiary. And

A constructive trust may not be imposed unless the party seeking creation of a constructive trust puts forth clear and convincing evidence of an "interest" in the "action, fund, or other property which is to be made the subject of the trust." Powell, 292 Va. at 15, 785 S.E.2d 788. In this regard, bigamous marriages "confer[] no legal rights" on the parties to the marriage. Chitwood, 206 Va. at 318, 143 S.E.2d 915; Martian v. Berryhill, No. 1:18-cv-12, 2018 WL 4572715, *9 (E.D. Va. Aug. 30, 2018) 

But could the term "spouse" under ERISA perhaps include an innocent bigamous spouse? The parties agreed that Virginia law controlled who the spouse was, and that Virginia law does not recognize a bigamous spouse as a spouse. But proving bigamy in this situation is proving a negative -- that neither spouse in the earlier marriage had ever gotten a divorce in any place that ever had jurisdiction to divorce either of them. So who, then, had the burden of proving or disproving that there was any divorce? And how can that burden be met?

The burden is on those who allege bigamy, Judge Ellis says:

Defendants have the burden of proving that Decedent's marriage to de la Vega did not end in divorce. This is so because re-marriage is common and therefore there is a strong evidentiary presumption in Virginia that a previously married person obtained a divorce from their former spouse before marrying again, thereby making the later-in-time marriage valid. See DeRyder v. Metro. Life Ins. Co., 206 Va. 602, 604-05, 145 S.E.2d 177 (1965); see also Hewitt, 490 F. Supp. at 1362. The evidentiary presumption that the earlier-in-time marriage ended in divorce is a "rebuttable presumption" and therefore may be rebutted by contrary evidence. Parker v. Am. Lumber Corp., 190 Va. 181, 186, 56 S.E.2d 214 (1949); DeRyder, 206 Va. at 604-05, 145 S.E.2d 177. Specifically, the party seeking to invalidate a later-in-time marriage as bigamous may rebut the presumption that the earlier-in-time marriage ended in divorce by adducing clear and convincing evidence that there is no record of a divorce decree for the earlier-in-time marriage (1) "in jurisdictions where the parties resided" or (2) "where on any reasonable basis a decree might have been obtained." Hewitt, 490 F. Supp. at 1365; Woolery, 406 F. Supp. at 644; Rahnema v. Rahnema, 47 Va. App. 645, 664-65, 626 S.E.2d 448 (2006) (requiring clear and convincing evidence to rebut the presumption that the earlier-in-time marriage ended in divorce). But importantly, to rebut the presumption of divorce, it is not necessary to document the absence of a divorce decree in every jurisdiction where a divorce "could possibly have been obtained," for if that were the case then the rebuttable presumption "would not be rebuttable, but effectively irrebuttable." Hewitt, 490 F. Supp. at 1365; see also Parker 190 Va. at 186-87, 56 S.E.2d 214; Woolery, 406 F. Supp. at 644.

So what rebuts? Apparently it does not always require a search in every county of a state, probably depending on the state's record-keeping:

• The Commonwealth of Virginia Department of Health, Division of Vital Records has no record of any divorce between Decedent and de la Vega from the date of their marriage through Decedent's date of death.

• No Superior Court in Arizona has a record of a divorce between Decedent and de la Vega at any time from the date of their marriage through Decedent's date of death.

• Neither party contends that the state of Hawaii has a record of a divorce between Decedent and de la Vega.

• De la Vega has not filed for divorce from Decedent in any state, nor has she learned, from any source, that Decedent ever filed for divorce from her in any state.

Defendants have successfully rebutted the presumption that Decedent's earlier-in-time marriage to de la Vega ended in divorce. This is so because the undisputed facts establish (1) that no divorce was ever entered in any jurisdiction where de la Vega or Decedent resided and (2) that there are no other jurisdictions where on any reasonable basis a decree might have been obtained. Neither Virginia, Decedent's lifelong state of residence, nor Arizona, de la Vega's state of residence after she left Virginia, has any record of a divorce between them from the date of their marriage through January 31, 2020. Additionally, there are no other jurisdictions where on any reasonable basis a divorce decree might have been obtained. In this regard, no record of divorce was found in Hawaii and further, Plaintiff's half-hearted suggestion in a footnote that Decedent might have obtained a divorce while vacationing in another state or country ignores well-established residency requirements that forecloses this remote possibility.

Order dividing retirement can't be changed to conform to divorce decree and let wife share increase in monthly payments -- Va. Supreme Court

After a divorce, the court is always able to make or revise court orders to carry out the division of retirement that was decided on in the divorce, but not to change, in any way, the substance of what shares of the retirement each spouse gets. That principle is very well known, among those whose business it is to know, but how it should apply to various situations can be controversial. Perhaps never more so than in Jackson v. Jackson, Va. S. Ct. 11/27/19.

The Jacksons' divorce decree said the wife would get 50% of the marital share of a military pension, but it was followed by a separate court order saying that she would get a certain dollar amount. The Supreme Court emphasises that Rule 1:1's protection of the finality of court orders protects the separate retirement-dividing orders themselves, not just divorce decrees. It demonstrates this with a close reading of the enabling statute allowing revision of such orders, Virginia Code § 20-107.3(K)(4).

The Court does not quote from the marital settlement agreement, but the passage it quotes from the decree sounds to me like a fixed percentage award (minus survivor benefit deduction), not a fixed dollar amount:

The decree recited that the pension was already being paid out and that "on the date of separation [it] was paying $3229.28 per month. [Marie] shall receive fifty percent (50%) of the marital share of this pension, and the parties shall use the agreed date of separation of August 16, 2004 in the formula which calculates her share of this pension. . . . [Marie] shall also receive the Survivor’s Benefit of this pension and any and all costs associated with providing the Survivor’s Benefits to her will be deducted from her share of the pension after its allocation between the parties . . . . In the event [Dennis] applies for and receives a disability determination it shall not reduce the entitlements of [Marie] to the amount she is entitled to receive monthly from this pension . . . ."

But simultaneously with the divorce decree, a separate pension-dividing order was signed, saying: “To accomplish the division of the marital property between the parties in accordance” with the decree, Mrs. Jackson “is assigned an annuity in the monthly amount of $1,053.39.” 

The Court of Appeals, which the Supreme Court upholds, held that the language of that order, and Mrs. Jackson's not challenging it at the time, indicated that the overall intent of the divorce decree's language must have been the fixed dollar award in the separate order, and thus it treats her like someone who is coming back years later to try and change the divorce decree itself, not the mere implementing order -- but also that the implementing order "therefore controlled to the extent there were any differences between it and the decree".

The Supreme Court does not disagree, but it puts more emphasis on the implementing order itself being protected from any fundamental change, despite the statute, or rather because of the statute's final, limiting clause:

K. The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to: ... 4. Modify any order entered in a case filed on or after July 1, 1982, intended to affect or divide any pension, profit-sharing or deferred compensation plan or retirement benefits pursuant to the United States Internal Revenue Code or other applicable federal laws, only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.

So the only two purposes for which the order can be changed are (1) to make an order qualify as an order that the retirement plan will implement and the IRS will recognize, or (2) to conform it to effectuate its own intent, not the intent of some other order, such as the divorce decree.

Well, they've got a point there. Until Jackson, the courts had been fairly lenient about redoing QDROs to effectuate the Equitable Distribution award, which is clearly the overall purpose of subsection K of the Equitable Distribution code section. But looking at how K(4) is phrased, the only way around Jackson would be to cite K's sweeping scope and that (4) is merely part of an "including" list -- "make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including ...". But Jackson shows a marked preference to closely read the subordinate part as a guide to the meaning of the whole, instead of vice-versa, so I think any relief will more likely come from the legislature than from the courts.

Probably, when the legislature enacted K(4), they weren't thinking about pension-dividing orders that were already separate from divorce decrees, so they were assuming that they were letting courts carry out the expressed intent of Equitable Distribution awards. But as the Supreme Court notes, in Virginia we don't consider legislative history:

Our primary objective is to ascertain and give effect to legislative intent, as expressed by the language used in the statute. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. And if the  language of the statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012) ... . “When a statute is clear and unambiguous, [we] may look only to the words of the statute to determine its meaning. [We] may not consider rules of statutory construction, legislative history, or extrinsic evidence.” Eberhardt v. Fairfax Cnty. Emps’ Ret. Sys. Bd. of Trs., 283 Va. 190, 194 (2012) ... . However, “it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal."

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.

Court can let divorcee pay money judgment to ex by transfer of pre-tax funds from IRA, 401k

The Court of Appeals upheld a post-decree order letting a man transfer parts of an IRA and a 401(k) to satisfy a monetary award under Code § 20-107.3(D) in Johnson v. Johnson, 56 Va. App. 511, 694 S.E.2d 797 (2010). He had been ordered to pay $1.2 million in ten equal, annual installments, and said he had no other way to pay the $120,000 that had come due. Wife had a tax expert testify that if she cashed out the $120,000 in retirement funds after receiving them, she would only have $60,736 after taxes and early withdrawal penalties.

The trial court had the discretion to approve this particular property transfer, and to justify it by interpreting what it had intended in the original award, the Court said.

Neither the opinion, nor the trial judge's statements that it quotes, say why the difference between the pre-tax $120,000 value, and the post-tax, post-penalties $56,000, does not matter. The trial judge is quoted on that only as saying,

And when I ordered that in this case the award could be satisfied by the transfer of property, I think that intended to mean the value of the property. It was $120,000. What she decides to do with it is up to her. And I don't think the Court should take any consideration of the fact that she's going to say she wants to cash out.

Essentially, it seems that this is considered an exercise of the broad discretion that Code § 20-107.3(D) gave the trial judge. I think the trial judge and Court of Appeals understood very well the difference that it made, but the trial judge had the discretion to decide what was equitable in the circumstances. The trial judge may have been saying that at the time of the original award, he was basing the award on pre-tax assets and intended all along to divide that, not post-tax dollars. But not necessarily.

Monthly alimony agreement enforceable even without explicit beginning date

The Court of Appeals upholds enforcement of written agreement for alimony that did not specify a beginning date in Moy v. Moy, unpublished 3/27/18. The agreement said that the agreement, as a whole, became effective on the date that was filled in at the top as the date of the agreement, Sept. 2. The parties actually signed it on Sept. 5 and Sept. 8, and the trial court said that it would be reasonable to interpret the obligation to pay $3,500 a month as beginning on Oct. 2. Upheld in a two-page opinion.

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.”

Late license justifies annulment of marriage AND of marital financial agreement, other fallout

The case of MacDougall v. Levick and Levick v. MacDougall (2/23/16) is a big mess for everyone but provides superbly-written and useful guidance on many issues at a time of change in family law.

The couple's wedding was in 2002. They apparently -- rather incredibly, but no one seems to have ever questioned their honesty on this -- had not realized they needed a marriage license. Their rabbi was completely unfamiliar with Virginia, and prudently went to the Fairfax Circuit Court beforehand to register as clergy so he could perform the wedding. The day of wedding,  he asked the couple for the license, and they said there wasn't one. He thought that was odd and unprecedented, but then again many things about Virginia seem odd to people from Montgomery Co., Md. Everyone decided to "deal with it later" and the wedding proceeded. Two weeks later, the couple got a marriage license, but instead of then having a brief additional ceremony with the rabbi or a civil magistrate, they mailed it to the rabbi in Maryland, and he signed it, certifying the marriage as occurring on the day he signed it.

The couple lived together, assuming they were married. In 2009 they entered a Va. Code § 20-155 "Marital Agreement", which is like a prenup but after the wedding, and in fact they are often done when a marriage seems to be breaking down.  Indeed, many complete separation/property settlement agreements claim to be Marital Agreements, citing 20-155. It gave the wife $150,000 a year in alimony -- not too much more than the average income and cost of living in the Northern Virginia suburbs -- and it said  it “shall form the foundation of a divorce or separation agreement, should either come to pass”.

And it came to pass that the wife filed for divorce in 2011, asked the court to incorporate the agreement and grant pendente lite alimony based on it, and received a pendente lite award of about two-thirds what the agreement said.

You Gotta Getta License

Virginia has required some form of licensing by church or state BEFORE marriage since 1628, the Court points out. Licensing first, then "solemnization". The wife had argued that the rabbi's signing of the certificate was a solemnization, or alternatively that the whole process of the wedding, the licensing and the signing was one single comprehensive event of the formalizing of the marriage. No, the Court says, because license always means something you get BEFORE you can do something -- hunting driving, practicing law -- and "To “solemnize” means “[t]o enter into (a marriage, contract, etc.) by a formal act, usu[ally] before witnesses.” Black’s Law Dictionary." Or "“to perform with pomp or ceremony or according to legal forms; esp : to unite a couple in (marriage) with religious ceremony : celebrate (a marriage) with religious rites”). " (Webster's) 

Mailing a license via express mail for a signature when the parties are not even present does not constitute “solemnization” under any reasonable definition of the term. FN 3: We reached a similar conclusion in Davidson v. Davidson, No. 2356-08-3, 2009 Va. App. LEXIS 313, at *4-5 (Va. Ct. App. July 14, 2009) (“The marriage license presupposes a ‘marriage ceremony’ solemnizing the union. And whatever formalities the ceremony requires, at the very least it requires the attendance of both the prospective bride and groom . . . .” (quoting Code § 32.1-267(C)))

... Offield, 100 Va. at 251, 40 S.E. at 910, ... observ[ed] that Virginians, “from the passage of our earliest statutes on the subject of marriage,” had regarded the statutory formalities as mandatory rather than directory. Id. at 260, 40 S.E. at 913. The Court acknowledged that this holding “‘may result in hardship in some cases’” but took the view that “‘the lesser injury will come from an adherence to the statutory requisite than otherwise.’” Id. at 261, 40 S.E. at 914 (quoting In re Estate of McLaughlin, 30 P. 651, 659 (Wash. 1892)). The Court observed that “‘[o]ur marital laws are plain and simple, not difficult to understand by the humblest citizen.’” Id. at 262-63, 40 S.E. at 914 (quoting Eldred, 97 Va. at 629, 34 S.E. at 485). 

Rules of Equity Don't Apply?

What I find disturbing in this case is this:

We generally reject the application of equitable doctrines in modern divorce suits because this body of law is now chiefly statutory in character. See Bajgain v. Bajgain, 64 Va. App. 439, - 15 - 457-58, 769 S.E.2d 267, 276 (2015).

I learned the maxims of equity in law school, starting with cases governed by the Uniform Commercial Code, and have dealt with them in many divorce cases in my 20 years of practice. I had never heard that they were not supposed to apply in divorce, or in other areas of law dominated by statutes instead of pure common law. Indeed, all family law cases  in Circuit Court were administered on the "Chancery" side of the courts until the structure of Chancery, but not the substance of equity, was abolished around 2006. Judges and lawyers in family law cases frequently invoke equitable doctrines, especially estoppel (which usually means a rule that a part can't claim in court the opposite of what he claimed before, in or out of court). Estoppel is often a key issue in cases about the validity of a marriage or recognition of a foreign divorce. 

But the Court notes that annulment is a creature of "the inherent power of equity, inherited by it from the ecclesiastical courts of England", whereas divorce is created purely by statutes. Pretlow v. Pretlow, 177 Va. 524, 548-49, 14 S.E.2d 381, 387 (1941).  There are statutes about annulments but they codify and set procedures and rules for a remedy that was already available. (Citing Heflinger, 136 Va. at 296, 118 S.E. at 318).

And so, assuming only for the sake of argument that equity defenses to the attack on the marriage are available, it rejects them. Laches does not apply because it is the unexplained failure to pursue a known claim, and here, the person challenging the marriage acted fast once someone told him that the marriage might not be valid. Also, a case chiding a wife for a late challenge to her divorce decree, after the husband and new wife relied on that divorce and got married, does not apply to someone challenging his own existing marriage.

Also, the wife cannot claim that the husband should have known about the problem earlier, when she herself knew all the same facts at the same time. There can be no estoppel when both parties had the same knowledge of the operative facts and the same ability to investigate them. (Citing Fitzgerald v. Fitzgerald, 194 Va. 925, 930, 76 S.E.2d 204, 207 (1953) (quoting Lindsay v. James, 188 Va. 646, 659, 51 S.E.2d 326, 332 (1949)).

Void or Voidable?

The Court finds the marriage merely voidable (by an annulment sought by a qualifying party to the marriage), not absolutely void (regardless of what anyone wants). 

Curative Statute

Va. Code § 20-31 validates good-faith marriages despite any technical problems with the license or the celebrant. But it does not apply to this couple, the Court said, because of the phrase in its first line, "solemnized under a license":

No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

Ratification of Marriage

This certainly could have been a decisive issue, but "The parties have not raised the question of whether they could and did ratify the marriage. Cf. Toler, 173 Va. at 432, 4 S.E.2d at 367. Accordingly, we do not address the question of whether a marriage such as this one may be ratified."

This ground for annulment is not among the grounds which Va. Code. § 20-89.1 says cannot "be decreed if it appears that the party applying for such annulment has cohabited with the other after knowledge of the facts giving rise to what otherwise would have been grounds for annulment; and, in no event shall any such decree be entered if the parties had been married for a period of two years prior to the institution of such suit for annulment."

Interpretation and Construction of Wording

In analyzing a statute, we give each word “‘its ordinary meaning, given the context in which it is used.’” Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep’t of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)). 

A pleading is a nullity when signed only by client, when attorney is counsel of record

A pleading signed only by a party, when he has counsel of record, is not sufficient to preserve issues for appeal. McGinnis v. Commonwealth, 12/12/2017. 

Code § 8.01-271.1 states: [E]very pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record ...

The statute allows for later corrections of pleadings that are "not signed", but not those that are signed, but improperly, by the wrong person, the Court says. So it refuses to let the appellant's attorney cure the defect by signing the pleading months later.

"The statute does not contemplate a hybrid form of representation where a defendant is simultaneously represented by counsel and also acts pro se."

Fee award must be requested in initial lawsuit or response, not separate suit afterwards

Graham v. Community Management Corp., Va. S. Ct. 10/12/17. This was a suit on a contract that included a fee award provision for the prevailing party in any suit on the contract.

Graham was sued on a confidentiality agreement by her former employer, and responded that that contract was flawed and invalid. In responding, her lawyer decided not to seek fees under the terms of the contract which she was attacking. "We couldn't take that chance" that doing so might be considered "approbation and reprobation," the lawyer later explained.

The Fairfax Circuit Court and the Supreme Court cited Rule 3:25, which says a party seeking fees "shall" do so in pleadings (whether initial or responding pleadings)."No litigant may recover on a right not pled", the Court wrote.

The Court threw outGraham's argument under Code § 8.01-230 that the claim for fees had not yet accrued because the defendant had not yet paid her lawyer. It accrued when she first incurred any obligation to a lawyer, i.e., "from the outset".  

Circumstances mean that initialed note about wish to disinherit didn't count as change to will

The deceased's will identified his child and included him in the inheritance, but (a) the property settlement agreement in his divorce said the child was not his, and (b) on a tab divider in a binder of estate planning documents, which held a copy of the will but not the original, he wrote diagonally across the page, in cursive,

"11/17/03. I wish to remove Patrick named as my son entirely from this will no benefits. D.I." [The deceased's initials.]

The cardboard divider where he wrote this was next to a sheet of "Reminders" that said not to make changes on the face of his will without contacting his attorney.

There was abundant evidence that D.I. always used his full signature to approve any official document. Also, he left a note that told his executor where to find his will, but did not mention the binder, which included only a copy of the will. 

Overall, the trial court concluded that D.I. did not intend his initialed note to be an actual, official "codicil" amending his will. His brother did not establish by clear and convincing evidence that D.I. intended the document or writing to constitute an addition to, or alteration of, the will, as required by Va. Code Sec. 64.1-404(A).

Irving v. DeVito, Va. S.Ct. 12/14/17