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.

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)). 

Constitution doesn't require expanding parenthood & marriage until they lose all meaning

The Court of Appeals refuses to retroactively change the law to make all artificially-conceived children of gay couples legally be the children of both partners, saying that doing so would effectively destroy the exclusively parental rights which the appellant is seeking equal access to, and the distinctive value and meaning of marriage which the U.S. Supreme Court gave equal access to in Obergefell v. Hodges.

In Hawkins v. Grese, a cohabiting lesbian couple decided to have a child together, and one of them was artificially inseminated and gave birth. They did not do an adoption to formalize the other's legal status as a parent, and they never married. They raised the child together until their relationship ended in 2014. They informally shared custody for another two years, then the biological mother cut off the child's  contact with the other, who then filed for custody and visitation. The juvenile court awarded joint physical custody, finding that removing one parent from the child's life was harmful to the child and caused behavioral problems.

On a de novo appeal, the Circuit Court found that while everyone involved agreed that Hawkins had standing to contest custody -- as a "person with a legitimate interest" if not as a parent -- she did not overcome the presumption favoring parents over non-parents, though it expressed "grave concern that separation from Hawkins "would cause [the child] continued harm." It did grant her visitation. Hawkins appealed to the Court of Appeals, claiming that it was unconstitutional to consider her a non-parent, and that “non-biological parents in planned families comprising same-sex couples and their children are in fact parents.” 

As for current Virginia law, looking at various "areas within the Code of Virginia where parent is used, it is clear that the term 'parent' contemplates a relationship to a child based upon either the contribution of genetic material through biological insemination or by means of legal adoption. For example, the Code provides that parentage may be established by 'scientifically reliable genetic tests,' '[a] voluntary written statement of the father and mother made under oath acknowledging paternity,' or 'proof of lawful adoption.'” And the very statute that gives standing to people who are not parents, but have acted like parents in some ways, Code § 20-124.1, thus makes clear that they are not considered parents. So

Where custody disputes are concerned, the term “parent” is a relationship to a child only through either biological procreation or legal adoption. This ... is also consistent with the Commonwealth’s refusal to adopt wider parental definitions through other legal constructions such as the de facto or psychological parent doctrines ...

But is this constitutional, as applied to this family? The standard of review is rational-basis, either for a violation of parental rights or for sexual orientation discrimination, the Court of Appeals says.

First, the definition of parent does not discriminate between same-sex and opposite-sex couples. It could apply to a heterosexual couple who used artificial insemination and did not marry. 

The relevant characteristics which classify here are entirely rational—people are considered parents on either biological or adoptive grounds, parties without these qualities retain a fair legal method to intervene if a parent - 10 - is unfit. Further, “[a] classification does not fail rational-basis review because it ‘is not made with mathematical nicety or because in practice it results in some inequality.’” ...

In Obergefell, the Supreme Court held only that same-sex marriage was a constitutionally protected right. ... , the entire basis of the holding of Obergefell is the significance and importance of marriage as an institution that should not be withheld from same-sex couples. Barring procreation or adoption, pre-Obergefell, different-sex marriages did not automatically result in the spouses becoming legal parents of each other’s children and the analysis of the Obergefell majority opinion does not compel a different conclusion with respect to same-sex marriages, far less unmarried couples of any sexual orientation. 

Hawkins suggests that the “special facts and circumstances,” of this case provide an avenue for carving out an exception in this admittedly exceptional case. However, were we to do so, it is clear to us that the constitutional presumption of parental fitness would begin the process of suffering a death by a thousand cuts.

We certainly acknowledge that society has evolved new family structures while simultaneously concluding that qualitatively and quantitatively assessing which among a kaleidoscope of those structures should be given legal recognition is more properly the province of the people’s representatives in the General Assembly rather than the courts and Obergefell does not require a different conclusion.5 Were we to adopt the “know it when we see it,” “special circumstances” definition of parentage urged on us by Hawkins, it would open a Pandora’s box of unintended consequences to hold that a legal parent-child relationship is created simply by virtue of such factors as the amount of time a child spends with, or the strength of an emotional bond that exists between, another living in the same household. It is not hard to imagine profound consequences for society and the courts if a parent knows that an ex-wife, ex-husband, ex-boyfriend, ex-girlfriend, former nanny, au pair or indeed virtually anyone not related to their child through biology or legal adoption, can be placed on equal footing as a biological or adoptive parent solely through a significant emotional bond with the child. 

Much of the Obergefell language Hawkins cites is aspirational, seeking normality for same-sex families. It would be ironic for us to hold that the very decision expressing these aspirations became a tool for the erosion of the object of its aspiration—a family structure based upon marriage. The logical fallacy of this approach is apparent as well, if restricting marriage to opposite sex couples was unconstitutional because it denied same-sex couples the “constellation of benefits” heterosexual couples received, it could not possibly also then require the redefinition of every star in that constellation.

Also, Hawkins is implicitly asking the court to treat her as if she had been married to the mother. But although this couple was not allowed to marry under Virginia law at the time, there was no evidence that that was the only reason they did not marry, i.e., that they otherwise would have married. "How retroactivity applies to the 'constellation of rights' discovered in Obergefell is a question which has not yet been answered, nevertheless, this principle of retroactivity does not license this Court to engage in forensic retrospective marriage construction." 

Hawkins also claimed it was unconstitutional to deprive the child of the right to be raised and nurtured by both parents. However, generally only a parent has standing to defend a child's constitutional rights, and exceptions that give third parties such standing, to pursue a child's constitutional rights against the parents' will, are granted very rarely and reluctantly, usually when a child is being denied medical care, the Court notes. And sometimes, no one, including parents, is allowed to assert constitutional claims on a child's behalf.

The Court also upholds the finding that the presumption in favor of parents was not overcome. "This presumption favoring the parent is a strong one, and can only be rebutted by establishing certain factors by clear and convincing evidence, including “(1) parental unfitness . . . ; (2) a previous order of divestiture, . . . ; (3) voluntary relinquishment, . . . ; and (4) abandonment, . . . [and (5)] . . . a finding of ‘special facts and circumstances . . . constituting an extraordinary reason for taking a child from - 18 - its parent, or parents.’” Bailes v. Sours (1986). The harm to the child from having only visitation with Hawkins, instead of 50-50 or sole custody, does not compare with the harm in Bailes, where the natural mother was a virtual stranger to the child. And even if "psychological evidence shows that harm will necessarily flow from the severance of the relationship between herself and B.G.," "such severance is not a necessary outcome". 

Hawkins v. Grese, Va. Ct. App. 2/13/18, citing the factually similar case of Stadter v. Siperko, 52 Va. App. 81, 661 S.E.2d 494 (2008).

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

Groom's international relocation, other sacrifices in marriage don't earn greater property share

The husband in Cano v. Davidson, decided by the Virginia Court of Appeals on April 1, 2014, said he should get more than half the marital property because he had contributed more to the marriage than the wife. He had sacrificed more, by leaving his come country and leaving behind his career there, and supporting his wife while she earned her Ph.D. and advanced in her career. The trial court instead divided marital property 50/50, and the Court of Appeals affirms.

Although there is not a discussion of it in the Va. Lawyers Weekly digest of the case, this decision may turn on an important point about contributions to the marriage that litigants don't tend to notice: what matters is the benefit to the marriage from the contributions, not how much was sacrificed to produce them. Also, courts usually tend to divide marital property 50/50, and justify it by saying that each party's contributions are balanced by a different kind or mixture of contributions by the other spouse. And that is not the kind of ruling that tends to get overturned on appeal.

 

Mom's boyfriend can be prosecuted as person responsible for abused/neglected child

CHILD ABUSE/NEGLECT – CRIMINAL CHARGES – ELIGIBLE DEFENDANTS.  Can a person whose only relationship to the child is “mother’s boy friend” (live-in) be prosecuted as a “person responsible” for a child who suffers neglect or abuse or both while in his care?  Well he certainly can be if he is the adult whose intentional blows broke the small child’s leg. And that’s true even if the child’s actual parent was present at the time of the injury, the Court of Appeals held in Carrington v. Commonwealth, ___ Va. App. ___, ___ S.E.2d __, 26 VLW 1080 (2/14/12).  This man was responsible for the child when the child “was injured,” and he had been acting in the father role by helping to feed and bathe the child and get the child to sleep at night.  In fact, he had been trying to give the child a bottle when he ended up hitting the infant.  Nothing in this criminal statute says a defendant who had joint responsibility for a child can’t be guilty of criminal child neglect.

 

Unwed father in In Vitro Fertilization isn't mere "sperm donor" - Va. Ct. App.

PARENTS’ RIGHTS – RIGHTS OF FATHER WHEN IN VITRO FERTILIZATION OCCURS DURING AN UNMARRIED COHABITATION RELATIONSHIP – RIGHT TO KNOW PARENTAGE – SPERM-DONOR STATUTE.  An inexcusable attempt to apply the commercial sperm-donor statute to a very, very different sort of illegitimate-birth case was the subject of Breit v. Mason & L.F., 59 Va. App. 322, 718 S.E.2d 482 (12/28/11).  Long story short the trial court went along with it, relying on unambiguous wording of an inapplicable statute, but the Court of Appeals did not. 

It all began like a typical idyllic story of 21^st Century lovebirds wanting a baby but not a marriage, but soured not long after the mother got the baby, and the natural father had been put on the birth certificate, the baby put on his health insurance, and a relationship established between father and daughter, plus the grandparents and friends.  The pre-litigation history that the Court of Appeals recited in its opinion was typical, but in the context of this litigation, quite extraordinary.  Listen to all this: First, because this came up as a dismissal upon a plea in bar, the facts in the plaintiff’s petition are accepted, as true, but if the parties then present evidence ore tenus, the Court’s fact findings are accorded the weight of a jury finding, so here the Court of Appeals had the following undisputed facts.  Mr. Breit and Miss Mason were cohabiting in a “long-term romantic relationship.”  She wanted to have a child, and they tried to conceive one the natural way, but unsuccessfully.  They sought help from an obstetrician-gynaecologist who started helping them try in vitro fertilization. The second attempt was successful, pregnancy ensued and Mr. Breit “was present for both rounds of egg retrieval, fertilization and transfer of the embryos” to where they needed to go.  Cohabitation lasted throughout the pregnancy, including June when they both entered a written “Custody and Visitation Agreement,” prepared by the mother’s attorney, giving the father “reasonable visitation.” 

On July 13^th little L.F. was born, and they both signed the acknowledgment of paternity, giving L.F. a hyphenated surname and naming them both as her parents on the birth certificate.  They mailed birth announcements to friends and family naming themselves as L.F.’s parents, and continued to cohabit for months afterward.  It was only in August of the next year when the little girl was just over a year old that the mother unilaterally ended all contact between father and daughter.  When the father filed in JDR court a custody petition under two sperm-donor statutes §20-158(A)(3) and 32.-§257(D), notwithstanding all the above, mother argued that §20-158(A)(3) says that a donor is not a parent unless he is the husband of the mother and under §32.1-257(D) “donors of sperm or ova shall not have any parental rights....”  The JDR Court dismissed “without prejudice,” and father appealed it to circuit court and filed a “Petition to Determine Parentage and Establish Custody and Visitation.”  He argued that the paternity acknowledgment document executed the day after the child was born created a final and binding parent-child relationship with him.  The circuit court consolidated the appeal and the petition, appointed the mother’s attorney as the guardian ad litem, and dismissed it all on a plea in bar. The judge admitted that there is “a strong argument” for construing the statutes the way the father wanted, but he felt it would make both statutes meaningless. He also denied the father’s motion for genetic testing, dismissing without prejudice the father’s Petition to Determine Parentage and to award him custody and visitation as a person with a legitimate interest. 

To the Court of Appeals, using the sperm donor statute against a natural father who the mother had acknowledged as such under oath was absurd.  Because this presented a question of law involving the trial court’s interpretation and application of the statutes, the Court of Appeals was able to review its judgment de novo.  It began by pointing out that §20-49.1 says that upon a sworn petition a child, a person claiming parentage, or even a person standing in loco parentis or a person having legal custody, can sue to determine parentage, and that when he or she does that determination will be governed by §§20-49.1 through .10.  Section 20-49.1(B)(2) provides that a parent-child relationship between a child and a man can be established by a voluntary written statement by the father and mother made under oath acknowledging his paternity, and it can’t be rescinded after 60 days and shall have the same legal effect as a judgment unless fraud, duress or material mistake of fact are later found.  The “Children of Assisted Conception” statute, §20-156 through -165, does provide that in determining the parentage of a child conceived through assisted conception the donor is not the parent unless married to the mother (§20-158(A)(3)), which mother argued was conclusive here.  She said that made the statutorily executed Acknowledgment of Paternity void ab initio as violating the General Assembly’s express intent to divest sperm donors of parental rights.  Father argued that all the statutes must be construed together to effectuate the real legislative intent, which is to assist infertile couples to use surrogate donors and keep anonymous sperm donors anonymous, and that the Legislature had no intention to divest fathers like him of parental rights, relationships or the right to establish parentage. The Legislature never intended to nullify parentage by a father like himself.  The Court of Appeals is not supposed to presume that the General Assembly intended to enact a “manifest absurdity,” and it should interpret statutes to avoid inconsistent results. Section 20-158(A)(3) must be read in conjunction with §20-49.1(B)(2).  Both the statutes, the Court of Appeals says, had as their primary purpose insuring legal parentage of a child by a known mother and known father, and neither statute intended to permanently bar a parentage action by a donor such as Mr. Breit.  That, it said, would be a manifest absurdity.  The intent of the Legislature to ensure that all children born in Virginia have a known legal mother and legal father was obvious to the Court of Appeals.  These statutes were primarily also concerned with ensuring that infertile marital couples would not be threatened with parentage claims from anonymous sperm and egg donors, and it intended that a chosen, unmarried donor, known by the unmarried natural mother, and intended to be the father of the resulting child, should never be placed in a position of being permanently barred from assuming parental rights and responsibilities simply because of his unmarried state at the time of conception. 

Va. court: Bigamist can't argue that void marriage means he didn't do anything

CRIMINAL ISSUES – BIGAMY – DEFENSES – “IF IT’S VOID....”  In what some may condemn as a triumph of law and expediency over pure reason, the Court of Appeals affirmed (probably not for the first time) rejection of a defense to felony bigamy that it doesn’t take a particularly imaginative lawyer to think of, and which may even be more appealing to the most linear and literal-minded among us.  As for marrying another woman without being divorced from one’s present wife, the defendant argued that if bigamous marriages are void, then he didn’t commit any crime.  Indeed, didn’t commit any act at all.  The appeal to the Court of Appeals called it “legally impossible” by simple logic to be convicted of bigamy since the defendant never “married another person” as declared felonious and punishable under §18.2-362. I.e., a void act never happened, as the law understands it, so he committed no crime. Really, the Court of Appeals explained, it takes an interpretation of other Code sections which declare bigamous marriages – or “marriages” – void (such as §§20-38.1, 20-43 and 20-45) to fully understand this.  What they clearly state is that the second ceremony doesn’t create a legal relationship, and that’s what the defendant criminally entered into.  Thus none of the statutes declaring it void make §18.2-362 bigamy unpunishable.  An Eighth Amendment argument against cruel and unusual punishment was also rejected.  Cole v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 275 (8/2/11).

Harbison: DIVORCE – VOID MARRIAGES – JURISDICTION – FEE AWARDS

 The Court of Appeals in the unpublished Harbison v. Harbison case at 24 VLW 1026 (1/12/10) held that a trial court properly awarded fees to a wife when deciding that because of husband’s prior marriage, making his current marriage bigamous and thus void ab initio, there could not be a divorce since there was no longer a marriage. 

MARRIAGE – CONTRACT ENFORCEMENT – IRANIAN PREMARITAL CONTRACT.

Do the Virginia courts want to get into the tricky business of construing and enforcing Iranian marriage contracts?  Apparently so.  When the Fairfax Circuit Court enforced such a contract, it construed it as being a premarital contract, and as requiring husband to pay wife 514 gold coins known as Bahar-E-Azadis, and held it valid and enforced it.  Husband’s various claims on appeal included that it was wrong for the court to admit this document into evidence, along with a BBC Multilingual English translation. But Aha!: husband didn’t sufficiently note his objections at trial so as to satisfy Rule 5A:18.  The appellate court can’t really tell what his objections were, and the same goes for his objection that the contract is fatally vague on its face unless bolstered by expert testimony.

Now as to letting the wife be her own expert and testify as to Iranian and Islamic law, it appears that her testimony was simply that she was owed these 514 gold coins as her marriage price and could demand them at any time, i.e., testimony about the terms of a contract she was a party to, so no problem there. (It’s not a case, like some that lawyers see, calling for payment in goats or camels, but one calling for money in the form of gold). Nor can this enforcement be faulted under Code §20-107.3, because this was not an equitable distribution, but merely a judgment that wife had a valid right to that gold under the contract. Afghahi v. Ghafoorian, unpublished, 24 Va. Lawyers Weekly 1189 (3/30/10).