Virginia Family Law Appeals

State may deny religious name change to murderer to prevent confusion, preserve notoriety and victims' peace of mind

Virginia's Supreme Court upheld the denial of a religion-based name change to a prisoner serving a long sentence for a brutal robbery and murder. The trial court had said the name change would frustrate criminal law's goals of "retribution, deterrence, and incapacitation. ... Someone so dangerous should have his identity fixed, certain and intractable not only with the Department of Corrections but with all of society. There should never be even a hint of confusion as to who this person is ... ."

The name change would have left the prisoner's last name in place, but changed his first and middle names to Muslim ones.

The Supreme Court says Code §8.01-217(D) grants a trial court wide discretion to disapprove a name change, and that on the other hand it requires denial of the change unless it "would not frustrate a legitimate law enforcement purpose, is not sought for a fraudulent purpose, and would not otherwise infringe on the rights of others."

The trial court had also said the victims had a right to know that the convict would serve his sentence under his original name. The Supreme Court says that the reasons the trial judge gave are within the scope of his discretion, as he could reasonably conclude that such a brutal murderer must keep his name "for the peace of mind of the victims and their families and to avoid any possible future confusion ... ." It also cited the fact that the convict would be released at age 65, and that he had admitted that if he could not change his name, that would not hinder his free exercise of religion.

BRIAN WENDALL JORDAN v. COMMONWEALTH, 2/22/18

 

Appeal dismissed for naming estate instead of personal representative as appellee

An appeal of a court's interpretation and enforcement of a prenup was dismissed for naming as appellee the estate of the ex-husband, instead of the estate's "personal representative", in Loewinger v. Estate of Loewinger (Va. Court of Appeals, 10/21/14). 

It's rare, at least in family law, that "misnomer" is a fatal error. This ruling, while harsh, is at least clear and teaches future litigants what they have to do. The appellant had asked the trial court for leave to substitute the estate as a party in the case, but that did not justify any deference or mercy from the Court of Appeals.

“'[A]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity.' ... because '[t]here must be such parties to the record as can be affected by the judgment and from whom obedience can be compelled'”, the Court says, quoting  Rennolds v. Williams, 147 Va. 196, 198, 136 S.E. 597, 597 (1927).

"Code § 8.01-229(B)(1) and (B)(2) 'direct [a] decedent’s personal  representative to file any personal action which the decedent may have been entitled to bring and to defend any personal action which could be brought against the decedent.' Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171 (1996) (emphasis added). This limitation is further highlighted by the language of Code § 8.01-229(B) 'which allows claims to be filed against the property of the estate, but provides that actions may only be filed against the decedent’s personal representative.' Appellant was required under Code § 8.01-229(B)(2) to name Loewinger’s personal representative, not his estate, as the party in interest in the present case."

The fact that this was a suit on a contract, i.e. the prenup, and the timing of the death relative to the timing of the suit, the lower court ruling, and the appeal, also seem to the Court to be relevant to the outcome.

Child name change must benefit child, not parent: Va. Supreme Court

Virginia's Supreme Court upheld the denial of a father's petition to change his out-of-wedlock's child's last name to his own. The child had the mother's maiden name and the mother had married, so that the child's last name was not shared with either parent. The father claimed that this made the standard from Spero v. Heath, 267 Va. 477 (2004) not applicable. However, the Court found that the father complained only of minor inconveniences to himself, not actual detriment to the child, from the child's existing name, and "the controlling standard remains the same - - that the petitioning party must prove by satisfactory evidence that the change is in the child's best interests." McMahon v. Wirick (9/12/14).