Virginia Family Law Appeals

Court that awarded entire marital share of pension without splitting it can correct that with a peril-fraught "Bill of Review"

A court that accidentally awarded a spouse the entire marital share of a military pension can correct its "verbal clerical error" even after the 21-day event horizon, Virginia's Court of Appeals says in Highsmith v. Highsmith, Nov. 26, 2019.  The judge had made a finding that the marital share was 11%, but then said that it awarded 11% of it, and repeated that in the divorce decree. The Court also suggests a new/old method for correcting such errors that maybe aren't exactly clerical: a Bill of Review.

Why may this get corrected while other discrepancies can't? 

Pursuant to Code § 20-107.3(G)(1), the circuit court could award husband no more than half of the marital share. ... Accordingly, the circuit court could award husband no more than five and a half percent of the total pension. … [T]he circuit court’s initial order awarded husband eleven percent of the total pension, which constituted 100% of the marital share. There is no dispute that this violated the plain language of Code § 20-107.3(G)(1) and was error.

And that means it also violates the federal USFSPA, the Court adds.

So it was not only a legal error, but it such a clear legal error that it must have been unintentional.

    As a nunc pro tunc correction of a clerical error, the Circuit Court's self-correction did not have to be within its 21-day window of jurisdiction, but that also means that its corrective order did not give it plenary jurisdiction and start up a new 21-day clock. But again, it didn't need to, the Court says, when invited to sort out which of a long train of post-trial suspensions, reconsiderations, and corrections started new 21-day periods, and which didn't.

Although the correction was styled as a correction of a clerical error under Code § 8.01-428(B), the Court indicates that a better way to do this kind of correction is via a Bill of Review, probably because the error was more clearly a legal one than a clerical one, even though it was unintentional.

Although the circuit court and the parties focused on the correction of a clerical error and whether the entry of an order in derogation of both state and federal law rendered the order void or merely voidable, we conclude that the best and narrowest resolution of this appeal is to consider it through the lens of a bill of review.

The bill of review is a common law pleading “that is used to reopen a suit in equity after the final decree has been rendered.” W. Hamilton Bryson, Bryson on Virginia Civil Procedure § 12.05(4) (5th ed. 2017). Although “a bill of review is limited in scope and is rarely utilized” and the use of it “discouraged[,] . . . it remains an available procedural device until abolished by the General Assembly.” Blunt v. Lentz, 241 Va. 547, 550 (1991).9 Pertinent here, it can be used to correct an “error of law [apparent] on the face of the record[.]” Bryson, supra, § 12.05(4). As the Supreme Court has explained,

The principles of law which determine whether a bill of review will lie for errors of law apparent on the face of the record are well settled. . . . A bill of review does not lie to review or correct errors of judgment in the determination of facts. If there be error in this particular, after a final decree, it can be corrected only by an appellate court. But if error of law be apparent from an inspection of the record in the cause, and a final decree has been entered, a proper case for a bill of review is prima facie presented.

Blunt, 241 Va. at 550 (ellipsis in original) (quoting Harrington v. Woodfin, 193 Va. 320, 325 (1952)).

... the bill of review is an exception to Rule 1:1’s finality provisions. The timing requirement applicable to a bill of review is found in Code § 8.01-623, which provides, in pertinent part, that “no bill of review shall be allowed to a final decree, unless it be exhibited within six months next after such decree."

Footnotes:

8. Although not the stated basis of the circuit court’s action, it is appropriate to address the issues using the bill of review rubric under “the right-result-different-reason doctrine[.]” Rickman v. Commonwealth, 294 Va. 531, 542 (2017). This doctrine allows us to affirm a judgment of a circuit court on an alternative ground so long as no additional facts need to be found to support the alternative rationale. See Perry v. Commonwealth, 280 Va. 572, 580-81.

9. Not only has the General Assembly not abrogated the bill of review, the Code of Virginia contains a provision governing its use. See Code § 8.01-623.

10. ... The Supreme Court of Virginia ... has treated a pleading styled a motion for rehearing as a bill of review when, in effect, the pleading was a bill of review. Gills v. Gills, 126 Va. 526, 543 (1920) ... [and although the retiree's motion was filed in the same case, not as a new one,] In a previous case, the Supreme Court viewed the independent action requirement as non-essential, observing that “[t]here was but one case, the case on the bill of review being but a continuation of the original case in the same court.” Goolsby v. St. John, 66 Va. (25 Gratt.) 146, 163 (1874) ...

Nevertheless,

we reiterate the Supreme Court’s admonition in Blunt that “use of a bill of review is discouraged.” 241 Va. at 550. As noted above, the bill of review is limited in scope and will be viable in only a handful of cases. Even a minor change in the unusual facts of this case may have rendered a bill of review inapplicable. The far more prudent course when confronted with such an error is to seek a suspending order and a correction within Rule 1:1’s twenty-one-day period or simply to note an appeal. Thus, although the bill of review remains available, litigants who rely upon it may do so at their own peril.

Post-divorce property division not derailed by ex-husband's death - Brown v. Brown

After all, that's one of the main reasons for "bifurcated" divorce and equitable distribution, isn't it?

Death abates a divorce suit by making it moot, but "bifurcating" a divorce case makes the division of property "in essence, a distinct case." Code § 20-107.3 says a court shall divide property "upon decreeing a divorce." The divorce happened while the man was alive, so the divorce still existed after he died and the trial court should have divided the property "upon" it. The Court of Appeals reversed the trial court that had dismissed the case for lack of jurisdiction due to death.

Brown v. Brown, 69 Va. App. 462 (2018)

 

"However, when a court bifurcates a divorce proceeding, the equitable distribution of marital property is no longer ancillary to the final divorce decree, but rather becomes, in essence, a distinct case. Friedman, 68 Va. App. at 539-40, 810 S.E.2d at 917. Although the status of the marriage has been resolved, the determination of the former spouses’ rights and interests in the marital property remains before the court. Virginia courts have long recognized that adjudication of property rights and interests does not abate with the death of a party. See  Squire v. Va. Hous. Dev. Auth., 287 Va. 507, 511, 758 S.E.2d 55, 57 (2014) (considering the merits of quiet title action after administrator of plaintiff’s estate was substituted for plaintiff); Smith’s Ex’x v. Profitt’s Adm’r, 82 Va. 832, 851, 1 S.E. 67, 80 (1887) (considering the merits of a claim of beneficial interest giving rise to "an implied or constructive trust ... to the extent of his interest" after administrators were substituted for two deceased parties); Hinton v. Bland’s Adm’r, 81 Va. 588, 594 (1886) (noting an administrator of deceased was an indispensable party in a partition action where the court was required to "adjust all the equitable rights of the parties interested in the estate")."

State cannot transfer post-divorce pension-division jurisdiction to another state

Virginia cannot gain jurisdiction to divide retirement by another state’s courts attempting to transfer jurisdiction over this subject to Virginia. Ramos-Fantauzzi v. Matos, Va. Ct. App. unpublished 2017. In that case, the parties had been divorced in Puerto Rico, and the husband had stipulated in the Puerto Rican court that the wife was “eligible for all the benefits” under the USFSPA, and also that the parties had been advised of the case of Deluca Roman v. Colon Nieves (which held that while the USFSPA allowed Puerto Rico to divide military retirement, it did not require it to, and that Puerto Rican law treats military retirement as separate property). The divorce decree quoted this stipulation, and listed several benefits the wife qualified for, such as commissary privileges and the survivor benefit.

Six years later, both parties were living in Virginia, and the wife sought and got a court order from the Puerto Rican court saying that jurisdiction and venue for her “pending claim” for 50% of the marital share of retirement, “pursuant to” the divorce order and the USFSPA, was transferred to the courts of Virginia. The husband objected to this. In Virginia, a circuit court accepted jurisdiction and divided the pension. It claimed to be acting under the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), Code §§ 8.01-465.1 to -465.5.

The Court of Appeals reversed, saying that dividing the pension was not enforcement, because the Puerto Rican orders had not divided it, or given the wife a right to a specific share of it. Nor could Virginia use jurisdiction under the USFSPA to divide the pension, because subject matter jurisdiction cannot be conferred by another state’s court order, except where the statute that controls subject matter jurisdiction allows for such a transfer or deferral. Nor does any statute allow transfer of venue from another state.