Virginia Family Law Appeals

Appeals court OKs juror who believed “no man ever has a right to raise a fist to a woman”

Virginia's Court of Appeals upheld a conviction for "assault and battery of a family member" even though the trial judge refused to strike a potential juror who agreed with the statement, “no man ever has a right to raise a fist to a woman.”  The court struck four other prospective jurors who indicated that they would use a different standard for self-defense if a man was defending against a man rather than against a woman. The appeals court said the juror’s own statements demonstrated that he was able to sit as an impartial juror, and while he expressed a view that men should be held to a different standard regarding self-defense, his statements, viewed in the totality, simply demonstrate the legally permissible belief that size and strength are factors that can be considered in determining whether self-defense is justifiable.

Weis v. Commonwealth (Malveaux), Va. Ct. App. unpublished 10/18/16.

Court upholds divorce on grounds of cross-dressing, but really just for procedural defaults

Rakes v. Rakes, March 12, 2019. Unpublished

A court in Salem granted a divorce on grounds of "constructive desertion," which requires the same elements as "cruelty." The divorce apparently started when Mrs. R. found three photos of her husband of 24 years in three different women's outfits. Two were taken in public places, and in the other, there was a man's hand on his thigh. "She felt shocked, hurt and betrayed [and]  concerned that he may have contracted a sexually transmitted disease through his extra-marital engagements."

On appeal, Mr. R. argued "that there was no evidence of cruelty, that his misconduct did not rise to a level that made the marital relationship intolerable or unendurable and that one instance of misconduct cannot form the basis of constructive desertion." But at the trial, the Court says, he only made that last argument, not the first two [which are pretty self-evident], so he does not get to make it on appeal. (The appeals court could still allow those two arguments if it wanted to, but maybe it's reserving that discretion for cases where it would prevent major injustices. Let's hope.] And the "single instance" argument is misplaced because of the three photos in three outfits in different settings.

Custody court couldn't order something not raised in pleadings -- it violates "the most rudimentary due process safeguards"

Virginia's Court of Appeals reversed a trial court's order that a father “initiate revocation of the children’s Greek citizenship” in Kiriakou v. Kiriakou,Oct. 13, 2020. Nothing related to that was mentioned in any pleadings, and it first came up when the mother testified that she wanted it. The father claimed on appeal that he had no power to revoke another's citizenship once it was granted, and that the court had no statutory authority to order it. He was probably right on both counts, but the appeals court did not deal with either claim, because it agreed with him that the Court couldn't grant relief that was neither requested in, nor relevant to, the pleadings.

Before expanding on that, I'll note two other holdings of this ugly and sad custody case:

• The trial court did not abuse its discretion by not following the joint custody recommendations of an "uncontradicted" court-appointed expert witness.
• It was OK to give the mother the power to cancel individual visitations when the children's therapists recommended it. If the mother were to abuse that power, and cut the children's contact with the father, the father would not be powerless, because he could come back to court.

Now, some of the worst things I've seen judges do are things nobody had ever suggested. An idea comes to them in the middle of the trial, so it's something that neither lawyer has prepared for, researched the relevant law, considered the possible side effects, or asked their client about the relevant facts. The clients are the ones really affected, of course -- they're hit with something they haven't even thought about, and they feel that they and their lawyers are defenseless. It's a basic violation of due process -- you're supposed to get fair notice of what a court might do to you. It's also why we have an adversary system -- I know some judges who are excellent at passing judgement on others' proposals, but if they short-circuit the process with their own spontaneous ideas, things happen that have never really been examined and soberly considered.

This is the only time I can recall an appeals court recognizing this widespread injustice, and they really lay into it:

This Court agrees with father and holds that the trial court abused its discretion in issuing the Greek citizenship order because that order was not based on any allegations or requests for relief made in mother’s pleadings. Under well-settled Virginia law, a “litigant’s pleadings are as essential as his proof, and a court may not award particular relief unless it is substantially in accord with the case asserted in those pleadings. Thus, a court is not permitted to enter a decree or judgment order based on facts not alleged or on a right not pleaded and claimed.” Dabney v. Augusta Mut. Ins. Co., 282 Va. 78, 86 (2011) (quoting Jenkins v. Bay House Assocs., 266 Va. 39, 43 (2003)). The purpose of pleadings is to “give notice to the opposing party of the nature and character of the claim [against him], without which the most rudimentary due process safeguards would be denied.” Boyd v. Boyd, 2 Va. App. 16, 19 (1986).

...

The basis of every right of recovery under our system of jurisprudence is a pleading setting forth facts warranting the granting of the relief sought. It is the sine qua non of every judgment or decree. No court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed. . . . Pleadings are as essential as proof, the one being unavailing without the other. . . . Every litigant is entitled to be told by his adversary in plain and explicit language what is his ground of complaint or defense. . . . The issues in a case are made by the pleadings, and not by the testimony of witnesses or other evidence.

Ted Lansing Supply Co. v. Royal Aluminum & Constr. Corp., 221 Va. 1139, 1141 (1981) (quoting Potts v. Mathieson Alkali Works, 165 Va. 196, 207 (1935)). Thus, a court is without authority to issue an order unless it is based upon pleadings before it.

But in a child custody case, aren't there all kinds of things that courts order, that aren't specifically described in pleadings? Yes, but

Mother’s pleadings made no factual allegations relating to the Greek citizenship issue either explicitly or implicitly. Furthermore, the crux of the special relief requested by mother in her pleadings related to custody of the children, orders finding appellant in contempt of a prior court order, and additional relief requiring father to submit to psychological evaluation. No request for relief was related to the Greek citizenship issue.

That mother included a general prayer requesting any relief the trial court deemed necessary and appropriate is unavailing. A general prayer “will support relief only for those matters placed in controversy by the pleadings and, thus, any relief granted must be supported by allegations of material facts in the pleadings that will sustain such relief.” ... Because mother did not make any factual allegations related to the Greek citizenship issue in her pleadings, any order involving the children’s Greek citizenship based on mother’s general prayer was outside the scope of what was put at issue in this case by mother’s pleadings.

 

Changing vague “reasonable visitation“ to specific schedule does not require "change of circumstances"

Changing a court order’s unspecified “reasonable visitation“ to a specific schedule does not require a showing of change of circumstances, because there’s not really any existing visitation order to modify, the Virginia Court of Appeals says in Burgess v. Burgess, 3/16/21. The original order “did not adjudicate the specifics of visitation.“

The court that made a specific visitation schedule did so after ruling that there was no change of circumstances that would justify modifying custody. The father had moved from Fort Bragg to Fredericksburg, which was about an hour closer to the mother and children in Portsmouth, and the parents had been unable to agree on a visitation schedule after the move. 

This reaches the right result with faulty reasoning, which could have unintended and unwelcome effects later on.  The lower court essentially used two separate “change of circumstances” tests for the separate questions of custody and visitation. That was not only commonsensical, but even hypertechnically correct, because in Juvenile court, where the case started, custody and visitation are legally two separate cases. But that’s my opinion. Now back to the appeals court’s opinion:

The mother also argued that once the Court granted her motion to strike, it had no evidence to support a finding that a visitation schedule was in the children’s best interests. Because her motion to strike was granted, the mother did not present any evidence. But that does not show that the court did not consider the children’s best interests.  And striking the father’s modification case, ruling that he had not shown a chance of circumstances, did not impair the court’s power to set a visitation schedule, because, as the appeals court views it, that was not a modification and did not require a change of circumstances.

Expert Witness Can be Excluded If Substance of Testimony Not Disclosed Timeously Under Scheduling Order, But Not for Missing A Signature Line

Galloway et al v. County of Northampton, Va. S. Ct.  4/1/21

The Virginia Supreme Court upheld the exclusion of a property valuation expert whose identity, but not the substance of his testimony, was disclosed by the deadline set in the scheduling order. But it said it was an abuse of discretion to exclude another expert who was disclosed in an interrogatory answer. The answer was unsigned, a mistake which was self-caught and self-corrected before anyone else said anything about it, but after the deadline. But the Supreme Court points out that the rule is for an unsigned interrogatory answer “to be stricken unless it is signed promptly after the omission is called to the attention of the party ...”.  And even without that, counsel and plaintiffs signed enough other parts of the discovery responses “sufficient to satisfy the requirements of Rule 4:1(g).”

As for the first expert, the scheduling order expressly warned that a party who did not comply with the order would “ordinarily not be permitted“ to use evidence that was not disclosed in time. The scheduling order was circulated at the pretrial hearing but not entered until the same day the disclosures were due, four months later. But counsel “had adequate notice” of its terms, having countersigned it the previous month.

The Court reversed the dismissal of the case. The trial court had dismissed it because with no expert witnesses, the plaintiffs could not prove an essential element of it. But with one, they might.

Parties’ Incomes a Proper Basis for Dividing Marital Debt -- Gaines v. Gaines

“It is hard to convince of a fact outside of the ten specifically delineated statutory factors that would be more ‘appropriate to consider in order to arrive at a fair and equitable’ assignment of marital debt than the income of the parties.”

The trial court said it had considered all the factors listed in Code section 20-107.3 (E), offered to answer any questions about how it had considered and weighed those factors, then ordered the parties to pay the marital debt in proportions that matched their stipulated incomes. This might not be the right result in every case, but was reasonable in “the totality of the circumstances, which included a lack of other liquid assets.”

The trial court valued the parties 'student loan debt as of the date of the trial, and that is upheld as it is expressly allowed on the motion of either party for good cause shown.

Gaines v. Gaines, Va. Ct. App. unpublished 3/30/21

Court of Appeals Upholds “Lump Sum Alimony” Equal to Mortgage Balance - Durocher v. Durocher

The trial court found “a compelling need” because the wife could not afford the mortgage payments, and also had “long-standing obligations related to the minor children’s successful competitive swimming careers” — i.e., chauffeuring them “sometimes multiple times a day” — that would interfere with having a job. The award was proper “ so that wife would be able to maintain the quality of life enjoyed during the marriage.”

The husband argued that there was no particular need to keep the marital home. But “the parties mutually agreed that wife should continue to reside in the marital home with the children.” And the trial court had awarded her the home.

“We have consistently held that a lump sum spousal support award can be used to pay off a debt,” whether secured or unsecured. And the ED award is a factor to consider in awarding alimony under 107.1.

Durocher v. Durocher, unpublished, 3/31/21

Alimony change not guaranteed even when payor's income down, payee's up

Virginia's Court of Appeals upheld the denial of alimony modification in Jones v. Jones, July 7, 2020, Unpublished. The payor husband had changed jobs -- from $185,000 to $55,000 a year -- because he thought the fault allegations in the divorce case would be fatal to his security clearance. 

The wife's earnings had increased from about $12,500 to $45,000, and the increase was partly because she worked multiple jobs due to the husband not paying alimony until garnished, and the difficulty of getting her share of his retirement annuity payments. In the Court's view, she was still struggling.

Even though the husband had less income, he still had the ability to pay the original award, because he could draw on his Thrift Savings Plan, the Court said. He had in fact complained that he had already found it necessary to do that.

The Court saw both parties'' financial problems as partly the husband's fault, and apparently found that significant and proper to consider.

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.

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.