Virginia Family Law Appeals

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 Unpublished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.

"We do not accept the veracity of conclusions of law camouflaged as factual allegations or inferences."

Great line by the Virginia Supreme Court's in-house philosopher (and perhaps the next U.S. S.Ct. Justice)

Modest-income mom of 5 must pay ex's costs for her dishonest appeal; current actual earnings averaged to get presumptive support income

The Court of Appeals rejected an appeal as totally baseless and thus awarded the Appellee father his fees and costs in the appeal in Ranghelli v. Ranghelli (5/7/19). The mother’s commission-based earnings varied greatly, and she had been unemployed or on unpaid leave for parts of the past two years. The trial court used a monthly average of her earnings during her current period of continuous employment, based on her pay stubs, as her income for support purposes. The mother argued on appeal that the trial court had averaged her earnings while working over the past three years, not counting periods when she was not working, and that it thus imputed income to her, which deviated from the “presumptive amount” without making the required written findings to justify that. But the numbers showed that “the court did precisely what is required under the case law and based its presumptive child support” on her “most recent actual income.” And because she based her appeal on alternative facts of the case and “failed to address what the trial court actually did, her arguments are not fairly debatable” and the husband is entitled to his fees and costs for the appeal.

Litigant must have lawyer representing her directly, not just representing her “authorized representative.”

Virginia’s Court of Appeals dismissed an appeal filed in the name of a party to the trial court case, but filed and signed by a lawyer who said he represented not the party, but a rehab facility that was not named as a party in the case. Lynch v. Bedford Co. DSS (6/11/19, unpublished). Rule 1:4(c) and Virginia Code §8.01-271.13 require all pleadings to be signed by the litigant’s lawyer, or the litigant herself if she does not have a lawyer. The party had named the facility as her “authorized representative” in contesting a denial of Medicaid coverage. Although federal regulations allow that, this “does not supplant or erode the requirement that there must be an attorney-client relationship between the litigant … and counsel appearing and signing pleadings on her behalf,” who must have an ethical duty to the litigant.

Mother's bad arguments failed to be preserved for appeal every which way

Brown v. Gordon, Record No. 1906-15-1 (June 14, 2016)

 Brown (mother) appeals a custody and visitation order, which granted sole legal and physical custody of the parties’ minor child to  Gordon (father). Mother argues that the trial court erred by (1) violating her right to a de novo hearing because it denied her motion to relieve the guardian ad litem (the GAL) and allowed the GAL to issue the same report that was presented to the Virginia Beach Juvenile and Domestic Relations District Court (the JDR court); (2) granting sole custody of the minor child to father, even though he was absent from the child’s life for four years; (3) granting sole custody of the minor child to father, even though he previously had contested an increase in child support when the child was in mother’s custody; and (4) granting sole custody of the minor child to father, without first speaking with the minor child. 

The Court noted that on the first allegation the mother’s arguments  differed from her arguments to the trial court. During the trial, she asked the court to relieve the GAL because she thought he was biased and submitted reports that were similar to what was filed in the JDR court.  “[The court] will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see Rule 5A:18. “The purpose of Rule 5A:18 is to allow the trial court to correct in the trial court any error that is called to its attention.” Lee, 12 Va. App. at 514, 404 S.E.2d at 737. Since mother did not raise the argument below that she is arguing on appeal, the Court will not consider her first assignment of error. Then with the second and third allegations, the court stated that “an objection [must be] stated with reasonable certainty at the time of the ruling.” (Emphasis added). The purpose of Rule 5A:18 is to “enable the ruling court to take any necessary corrective action,” Saunders v. Commonwealth, 38 Va. App. 192, 195, 562 S.E.2d 367, 369 (2002), and to “rule intelligently on the issues presented,” Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). Therefore the court will not consider those allegations of error either. "Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. The court upheld trial court's custody and visitation determination as mother failed to preserve her arguments for appeal." The Court concluded that the fourth alleged error could not be appealed because the trial court took mother’s motion under advisement, but never ruled on it. “If [the] opportunity [to address an issue] is not presented to the trial court, there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal.” Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006). An appellate court can only “determine whether or not the rulings and judgment of the court below . . . were correct.” Jackson v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489, 493 (1942).  

Can't claim "clerical error" to appeal a long-ago decision about income amount in support case

Absolutely nothing noteworthy or at all surprising was decided in the summary affirmance of Clifton Antony Grant v. Toni Gail Walters, Court of Appeals 07/03/2018.

Alimony despite adultery upheld; no three-judge panel can overturn any precedent

The Court of Appeals upholds an award of alimony despite the recipient's adultery, on grounds of "manifest injustice" consideringthe parties' "relative economic circumstances" respective degrees of fault in the breakdown of the marriage, in  Pattillo v. Pattillo, unpublished 5/29/2018. Just as in Barnes v. Barnes, 16 Va. App. 98, 428 S.E.2d 294 (1993), "fault" for this purpose includes everything leading to the breakdown of the marriage, not just conduct that would be grounds for divorce. It can even include "a gradual breakdown in the marital relationship".

When asked to overrule the long-standing Barnes holding, the Court replies that "Even if we wished to do so, we could not," because of "the doctrine of interpanel accord," meaning that a "decision of one panel . . . ‘cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court." It cites Startin v. Commonwealth, 56 Va. App. 26, 39 n.3, 690 S.E.2d 310, 316 n.3 (2010) (en banc).

In this case, the trial court found that the husband's income was $260,000 per year; and the wife earned $9/hr and could earn only $25,000 per year (the husband's expert's figure), having only a high school diploma and having stayed home with the children during the 18-year marriage. The divorce was caused by the wife's several years of adultery with two family friends and neighbors, but that "Husband’s inattention to Wife and the amount of time he devoted to his career, which often took him away from home at least one week of every month, led to the gradual dissolution of the marriage before Wife committed adultery.” After coming home from work he would merely "acknowledge" the family members and then be "glued to his computer" until bedtime. It continued,

Wife testified that the marriage was a loveless and lonely place as far back as the early 2000’s. Husband was unemotional and both parties were non-confrontational which would result in the parties failing to communicate with each other. Both parties admitted that their lack of communication was a large component in the dissolution of the marriage. Several witnesses who knew Wife and Husband over the years testified that Husband always tried to make Wife happy. However, Wife would complain about Husband’s lack of socializing with her and their friends and his unwillingness to spend money. ...

Husband testified that his lack of communication skills, work schedule and exhaustion contributed to the demise of the marriage. And the [c]ourt does so find. Therefore, even though Wife committed adultery in the years immediately prior to the parties’ separation, the [c]ourt finds that the marriage was irretrievably lost due to gradual dissolution caused by mutual inattention and fault from both parties.

The appeals court did not award fees to either party.

 

Wife preserved issue for appeal, but didn't proffer after-discovered evidence to justify reconsideration

 The Court of Appeals upholds a refusal to reconsider a ruling based on after-discovered evidence which was not offered to the court properly, nor stipulated to -- the wife's lawyer said he had documents in front of him, but did not hand them up. And the descriptions he gave of their contents were too iffy and speculative to prove that they would be material evidence that would change the result of the trial. Henderson v. Henderson, 5/15/2018, Record No. 1402-17-2. (A separate opinion issued the same day, with a different case number, addressed husband's appeal of various rulings.)  The opinion in "1407" addressed so many different issues that I am describing them in separate posts.

Proffering after-discovered evidence: 

In order for after-discovered evidence to be admissible, the record must establish that: (1) the evidence [was] discovered after the record was closed; (2) it could not have been obtained prior to the closing of the record through the exercise of reasonable diligence; (3) it is not merely cumulative, corroborative, or collateral; and (4) it is material, and as such, should produce an opposite result. Joynes v. Payne, 36 Va. App. 401, 418, 551 S.E.2d 10, 18 (2001).

The party seeking to reopen the record bears the burden of proof. Williams v. People’s Life Ins. Co., 19 Va. App. 530, 533, 452 S.E.2d 881, 883 (1995). Whether to grant such a motion rests within the sound discretion of the circuit court. Shooltz v. Shooltz, 27 Va. App. 264, 269, 498 S.E.2d 437, 439 (1998). ... when the circuit court denies such a motion, “the aggrieved party must make a proper proffer of the [evidence] to preserve the ruling for appellate review.” Klein v. Klein, 11 Va. App. 155, 160, 396 S.E.2d 866, 869 (1990). Such a proffer “may consist of a unilateral representation of counsel, if unchallenged, or a mutual stipulation of the proffered [evidence]. Absent such representation of counsel, or stipulation, the ruling will not be considered on appeal.” Id.

Preserving error for appeal:

Raising this issue in a written motion and oral argument, while the court still had jurisdiction to do something about it, was sufficient to preserve the issue for appeal.

Adoption fraud claim rejected; mere “seen and objected to” insufficient, with one exception

The Court of Appeals upheld a refusal to overturn a grandparent adoption for fraud in Castillo v. Bell, unpub. 11/14/17. The mother was served by publication, but learned of the adoption in the same year that it happened, 2010. She filed to overturn it in 2016.  Code § 63.2-1216 prohibits ANY attack on an adoption judgment more than six months after it is made, for any reason, including fraud; but the Court had found it unconstitutional as applied to a non-English-speaking mother in an egregious fraud case, F.E. v. G.F.M., 35 Va. App. 648, 547 S.E.2d 531 (2001) (en banc). But in this case the trial court had found no evidence of fraud, and that the grandmother had done nothing to prevent her from learning of the adoption, and the mother had not appealed those findings.

The mother's appeal was also procedurally defaulted. Simply endorsing as “seen and objected to” does not preserve issues for appeal EXCEPT when ‘the ruling made by the trial court was narrow enough to make obvious the basis of appellant’s objection,’” the Court writes, quoting Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000) (quoting Mackie v. Hill, 16 Va. App. 229, 231, 429 S.E.2d 37, 38 (1993)). As for other means of preserving issues,

Castillo endorsed the final order as “Seen and objected to” without further explanation. She did not file any post-trial motions. The written statement of facts does not include the parties’ closing arguments or objections to the trial court’s ruling.

"Continuing objection" not specific enough to preserve issue for appeal

After the trial court refused a jury instruction embodying his view of the law to be applied, counsel objected, then asked the judge to consider it a "continuing" objection so he wouldn't have to keep repeating it. The judge agreed. But the Supreme Court found the objection unclear: Which of the two legal issues in the instruction was it about? Or was it both? Counsel did not object about the issues when his opponent mentioned them in closing argument, and did not move for a curative instruction or a mistrial to counter the opponent's improper references to them. Williams v. Swenson, 4/5/18.