Virginia Family Law Appeals

Oral order, or written one rejecting motion to reconsider, past 21 days, can't be reviewed, if no judgment stay requested; post-order objections in letters no good.

A mother's letters to the trial court, after a custody and visitation consent order was entered, do not preserve issues for appeal, the Court of Appeals ruled in Bracaloni v. Edge, unpublished 6/2/15. The letters claimed she had been “under duress and forced to sign” the agreement. The trial court treated them as a Motion to Reconsider, held a hearing on that within 21 days after the Order, and ruled from the bench that it denied her motion to reconsider. It did not put that ruling into a written order until after the 21 days had run. Even later than that, the mother filed objections. (Her letters had not asked the court to stay, vacate or suspend the original order. What should matter is whether the court DID stay its order, but perhaps the Court is saying the lack of a written request proves conclusively that the trial court did not do so.)

The Court of Appeals refuses to review the order that was made more than 21 days after the original order, and to consider the late written objections.

Mother indicated that her assignment of error was preserved in her motion to reconsider and her statement of objections, which were not timely. Therefore, mother’s assignment of error was not preserved and will not be considered.

The sentence above is not clear as to whether it was only the "objections, which were not timely", or the motion to reconsider AND the objections were both untimely. As the "motion to reconsider" was two letters written within the 21 days, it is not clear why that would be considered untimely, unless it is because they were not stated before the order was entered.

The Court finds the paternal grandparents "entitled to a reasonable amount of attorney’s fees and costs, and we remand for the circuit court to set a reasonable award of attorney’s fees and costs ... which also should include any additional attorney’s fees and costs incurred at the remand hearing. 

 

General objection to order, never putting arguments in writing nor on record, doesn't preserve issues for appeal.

A parent whose rights were terminated made a "general objection" to the order, which did not include his arguments. He filed a written "statement of facts" for the termination hearing (not to be confused with the Statement of Facts provided for in the Court of Appeals rules), but it did not include his argument either. He asks the Court of Appeals to overlook this default to attain the “interest of justice.” But

“In order to avail oneself of the [good cause or ends of justice] exception [to Rule 5A:18], a [litigant] must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).

"Here, the record falls far short of affirmatively demonstrating a miscarriage of justice," the Court continues. In order to examine the "miscarriage of justice" question under Rule 5A:18, it effectively reviews the facts of the case for error anyway, concludes that "DSS presented clear and convincing evidence that father has been unwilling or unable to remedy substantially the conditions which led to the child’s foster care placement," and affirms. Woodard v. Dinwiddie DSS, unpublished 6/16/15.

 

Protective order violation upheld without proof of exact distances or dates; stamped/initialed Statement of Facts OK

The Court of Appeals affirms a conviction of a father for violating a protective order by coming within 1,000 feet of the mother to exchange their child. The mother could not testify to the exact date it happened, nor how far apart they were, and only saw him as they both were leaving the parking lot. But she testified that she saw a car "associated with" him parked within 1,000 feet of where she was parked, in the shopping center where the exchange was to happen. When leaving, she paused at a stop light at the exit, behind his car. He

expressed exaggerated laughter and gestured to her in a threatening manner. He made the sign of a pistol with his hand and then pulled an imaginary trigger. The judge took judicial notice of the fact that, due to the size of the shopping center, the appellant would have been within 1,000 feet of Ellis’ location anywhere in that lot.

The father claimed there were inconsistencies in the mother's testimony. The Court does not say what they allegedly were, nor refute this accusation; it says that inconsistencies in the winning side's testimony do not matter on appeal. They "go to the weight," not the witness's competency, and the trial judge has the discretion to weigh credibility and accept only the testimony that tends to the conclusion he or she reaches, even if testimony from that same witness contradicts it.

Not remembering the date, and not proving it, does not matter if time is not an element of the crime. Time was an element, to the extent that the offense was only a crime if it happened while the protective order was in effect, but that much was proven by the date given ni the agreed-on Statement of Facts.

The Court found a Statement of Facts acceptable though it was not signed by the trial court judge. It was agreed on by both sides, and stamped with the judge's initials, the word "Seen", and the date of its filing. "In the case of an agreed-upon statement of facts, initials of the trial court are sufficient to comply with the Rules," the Court declares. It notes that initials are allowed to constitute a signature in the Uniform Commercial Code, Black's, Virginia estates law and other contexts. (Citing Pilcher v. Pilcher, 117 Va. 356, 366-67, 84 S.E. 667, 670-71 (1915)). The initials in this case were made "with the intention of authenticating," and they did so. The "Seen" indicates that the judge has reviewed it, which serves the rule's purpose of ensuring an accurate, complete statement of the facts and procedural history. 

Also, Rule 5A:8 says only that the judge MAY sign the Statement, not must, and if he believed it was not accurate, he could have done as the Rule provided, and made changes to it.

Lee v. Commonwealth, unpublished 7/28/15

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)). 

On appeal, Circuit Court can't act on non-appealed counterclaim, nor sanction for "protracted litigation" nor incomplete evidence

An appeal from district to circuit court can only address the specific "case" that was appealed, and not a counterclaim that had been filed but not appealed separately, the Virginia Supreme Court rules in a case originally from General District Court, The Robert & Bertha Robinson Family LLC v. Allen (3/1/18). The district court had dismissed the plaintiff's filing, which was a warrant in debt, and the counterclaim. The plaintiff filed a notice of appeal, but the defendant did not file one, nor any pleadings in circuit court, except for a sanctions motion. The plaintiff later withdrew the appeal, and the circuit court sanctioned the plaintiff for $10,000 in attorney's fees and awarded the defendant the return of the security deposit, which the original counterclaim had asked for, without hearing any evidence about it.

Counterclaim and De Novo Appeal

... Tenants argue that their unsuccessful counterclaim was appealed, though unwittingly, by the landlord when it filed its own notice of appeal. The tenants claim that this “piggyback” approach to GDC appeals is the customary view among some circuit courts. See Appellees' Br. at 13-15 (quoting Boyce v. Athey, 4 Va. Cir. 19, 19-21 (1980)) The landlord disagrees and adds that, regardless of accepted custom, the “piggyback” approach is wrong as a matter of law. See 1 Kent Sinclair, Virginia Practice and Procedure 40 (2010) (concluding that “where a counterclaim has been filed there must be a specific appeal of the counterclaim from the General District Court” and that an appeal by a plaintiff “does not automatically bring the counterclaim before the circuit court”).

A leading scholar of Virginia procedural law, Judge J.R. Zepkin, observed years ago that, in GDC cases involving consolidated claims by several parties, “[t]here is no clear guidance on what happens ․ if one of multiple losing parties wishes to appeal.” J.R. Zepkin, The Rules of Court for the General District Courts of Virginia, 23 U. Rich. L. Rev. 809, 829 n.43 (1989). 

Common law provided no right, custom or practice of "appeal" in any now-recognizeable form, the Court explains, but only appeals from law to equity, and writs of error. Therefore,

... “In case after case” involving appeals from courts not of record, “we have in clear, unequivocal, and emphatic language repeatedly said that ‘[t]he right of appeal is statutory and the statutory procedural prerequisites must be observed.’ ” Covington Virginian, Inc., 182 Va. at 543, 29 S.E.2d at 409 (citation omitted). “The right of appeal is statutory,” Brooks v. Epperson, 164 Va. 37, 40, 178 S.E. 787, 788 (1935), because it is “a process of civil law origin,” Tyson, 116 Va. at 252, 81 S.E. at 61 (citation omitted).

... Absent a statutory authorization or a constitutional mandate, no party has a right to a de novo appeal of the GDC's judgment in the circuit court. Customary practices, by themselves, cannot create this right. The tenants do not assert a constitutional basis for their “piggyback” theory of appeal. Consequently, without a clear statutory basis for it, the GDC's adverse judgment on their counterclaim was not properly before the circuit court.

And the statutory language contemplates de novo appeals of specific actions of a court, by specific parties, not a general appeal of the whole situation:

Code § 16.1-106 addresses appeals and grants “an appeal of right” to a litigant from “any order entered or judgment rendered in a court not of record in a civil case” when the “matter in controversy” exceeds $20. Code § 16.1-107 states that no appeal “shall be allowed unless and until the party applying for the same” provides an appropriate bond “sufficient to satisfy the judgment of the court in which it was rendered.” Code § 16.1-107 also requires the “party applying for appeal” to pay a writ tax to the circuit court.

The tenants argue that these statutes imply that a notice of appeal filed by one litigant appeals the entire case on behalf of all other litigants in the GDC case, even the claims of those litigants against whom the appealing party prevailed. In other words, an appeal by one party converts all other parties into de facto appellants on every adverse ruling of the GDC. We do not see any textual basis for this statutory inference.

Code § 16.1-106 does not require the appealing party to appeal every adverse ruling of the GDC but, rather, provides an “appeal of right” for “any order entered or judgment rendered.” Under the tenants' contrary view, a party cannot appeal a loss on one claim without forfeiting his wins on other claims against other parties. So, if a plaintiff asserts claims against two defendants, prevailing against one defendant and losing to the other, he cannot appeal the adverse judgment without sacrificing the favorable judgment. Similarly, if we assume that the losing defendant in the GDC files a notice of appeal but neither the plaintiff nor the winning defendant do, under the tenants' view of the appellate process, the winning defendant loses his victory even though the losing plaintiff never appealed that loss.

This actually makes practical sense when we remember what counterclaims are, in the first place. They are not necessary defenses, they are potentially separate cases which the courts consider within the same litigation for the sake of judicial economy:

 The law encourages counterclaims “in an effort to avoid a multiplicity of lawsuits and the danger of inconsistent judgments,” W. Hamilton Bryson, Bryson on Virginia Civil Procedure § 6.04[1], at 6-85 (5th ed. 2017), but they nevertheless may be asserted in an “independent action,” Sinclair & Middleditch, supra, § 9.10[A], at 748.

And that language about "the party applying" filing a bond also provides a practical and moral reason not to allow the non-appealed counterclaim: Why should only one party have to pay an appeal bond, if his appeal is also his opponent's appeal? 

If his notice of appeal implicitly appeals his opponent's unfavorable rulings as well as his own, must he post an appeal bond on his opponent's behalf for the implicit appeal? Surely not. It would be equally odd to allow a non-appealing party to get the benefit of the appeal — a reprieve from the enforcement of the GDC judgment — with no duty to post an appeal bond at all.

Sanctions

On sanctions, the Circuit Court said that "filing of a lawsuit without all evidence in hand" violates the sanctions statute, Code § 8.01-271.1, and the “duty to have all evidence upon which it planned to rely on before ever filing suit.” This was wrong and the sanctions were an abuse of discretion, the Supreme Court says.

The statute does not, as the circuit court ruled, place a “duty” on a claimant “to have all evidence upon which it planned to rely on before ever filing suit.” J.A. at 275 (emphasis added). Nor is it “a per se violation” of the statute to file “a lawsuit without all evidence in hand.” Id. at 275-76 (emphasis added). When filed, a claim must be “well grounded in fact,” Code § 8.01-271.1, not exhaustively supported with every conceivable fact that the party may plan to use at trial.

. . . Unless an expected defense is so irrefutable as to render a claimant's theory of relief frivolous, “claims which are recognized under Virginia law, and as to which the essential elements were pled, are not sanctionable even if they do not prevail on the merits.” Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 11.8, at 900 (6th ed. 2014).

The tenants also cited “the protracted history of the litigation" as a reason for the sanctions. The Court first points out that the Circuit Court never said that, but:

We recognize that an “appellee is free to defend its judgment on any ground” supported by the record, “whether or not that ground was relied upon, rejected, or even considered by the [circuit] court” so long as additional factual findings are unnecessary. Perry v. Commonwealth, 280 Va. 572, 581, 701 S.E.2d 431, 437 (2010) (alteration and citation omitted).

 But it rejects that argument on its merits:

Protracted litigation is a regrettable reality in the modern adversarial process. Assuming that the present dispute became protracted because the landlord exercised its right to a nonsuit and to a de novo appeal of the GDC's judgment, these circumstances, whether considered alone or together, are not intrinsic badges of bad faith. To be sure, it is conceivable that a litigant could initiate litigation, nonsuit and refile the claim, and then fight to the bitter end, all for the singular purpose of harassing an opponent and depleting his resources. If that were the case, it would not matter that the litigant's “pleadings were ‘well grounded in fact’ and ‘warranted by existing law’ ” because even facially legitimate pleadings cannot be filed for “an improper purpose.” Kambis, 290 Va. at 467, 778 S.E.2d at 121 (quoting Code § 8.01-271.1). The record in this case, however, does not warrant the inference that the landlord acted with an improper purpose.

 

Continuance denial upheld; Indian Child Welfare Act N/A: George v. Traylor

The Indian Child Welfare Act does not apply in an adoption where nobody asserted a good faith belief that the child "is an Indian child," the Court of Appeals says. In fact the appellees, though the burden was not on them to do so, contacted all the Cherokee tribes the mother said she might be descended from, and learned that the child did not qualify for membership in any of the tribes.

There was also abundant evidence that the drug-using, incarcerated mother was withholding consent contrary to the best interests of the child.

The court also upholds the trial court's denial of a continuance, because it will reverse such a ruling only when shown and abuse of discretion AND resulting prejudice to the party who asked for the continuance. There was no prejudice because the mother was fully able to participate in the trial and make her case, and she did so. She was represented, appeared, testified, called numerous witnesses, filed many motions, and made substantial arguments. And the lack of a continuance did not change the basic facts of the case: the mother's sorry history and uncertain future. 

George v. Traylor, Va. App. 12/27/17

 

Transcript and Filing Notice must be filed with Clerk by deadline; giving it to judge and opponent doesn't help; appeal dismissed

Even where (a) the appellee conceded that he wasn't prejudiced by the appellant's failure to file a trial transcript, and Notice of Filing, by the Rule 5A:8 deadline, (b) the appellee and judge had long since received the transcript, and (c) it was formally filed and noticed a few days late, Rule 5A:8 must be strictly enforced, and an appeal is dismissed for lack of a properly-filed trial transcript without which "we cannot know with certainty the arguments made by the parties of the evidence the trial judge could consider," the Virginia Court of Appeals says in Browning v. Browning (7/25/17). Under Rule 5A:8(b)(4)(ii), the wife's Assignment of Error are deemed waived. "Although enforcing the Rules of Court may lead to harsh results in an individual case, it is not unfair", the Court writes, ten years after the divorce case was filed and fifty years after the couple was married. 

I suppose that litigants do need there to be a definite time after which they know what is in the Record in their appeal and what is not, a time to close the book and stop adding to it. A hard case, but one that wasn't allowed to make bad law.

Agreement barring child support reductions voids all child support parts of agreement and court order.

Virginia's Court of Appeals says that the child support sections of an agreement and of the divorce decree that incorporates it, and possibly the entire agreement, are invalid because they restricted future reduction of child support. This agreement said the $2,000/month child support would continue as long as any of the three children were under 18; would not be reduced or terminated until then, even if any or all of them moved in with the payor, and "may be modified upward due to a change in circumstances but may not be reduced."

The Court does not rely on the most extreme provisions above as grounds for its decision, but instead says any restriction on future child support changes is void. It finds Kelley v. Kelley, 248 Va. 295, 449 S.E.2d 55 (1994) dispositive, and writes:

"the provision was “null and void . . . .” Id. at 298, 449 S.E.2d at 56. ... “parents cannot contract away their children’s rights to support nor can a court be precluded by agreement from exercising its power to decree child support.” Id. ... because the final decree incorporated the void provision of the parties’ agreement, that provision of the decree was also void, and therefore, could “be attacked and vacated in any court at any time, directly or collaterally” despite the fact that the parties had agreed to the provision and it had been in place for a number of years. Id. at 299, 499 S.E.2d at 57. Applying these principles to the case at bar, it is clear that Paragraph 4 is void. Paragraph 4 provides that, regardless of circumstances, the agreed amount of child support “may not be reduced . . . .” By its express terms, it seeks to prevent a circuit court from decreeing child support based on the specific facts and circumstances. Accordingly, it runs afoul of Kelley’s direction that the parties’ agreement cannot preclude a circuit court “from exercising its power to decree child support,” id. at 298, 449 S.E.2d at 56, and therefore, is void. See also Virostko v. Virostko, 59 Va. App. 816, 824, 722 S.E.2d 678, 682 (2012) (holding that “the parties’ agreement may not prevent the court from exercising its power to change, modify or enforce its decree concerning child support” ...

Mother raises several arguments in an attempt to save Paragraph 4. First, she argues that she bargained for this arrangement, gave up valuable consideration in exchange for Paragraph 4, and is entitled to the benefit of her bargain. The husband in Kelley made similar arguments;  such arguments fail because the parties, regardless of their intentions, cannot enter into agreements that divest a court of its ability to decree child support.

Next she argues that Paragraph 4 does not deprive the circuit court of its ability to “decree” child support. She asserts that, consistent with the child support guidelines, the circuit court is free to make any determination it wishes regarding the proper amount of support under the guidelines and announce that finding; however, the agreement still would require father to pay the $2,000 a month no matter what the circuit court found. This argument fundamentally misunderstands what a “decree” of a court is; it is not an idle statement but an order directing a party to do or refrain from doing something. See Decree, Black’s Law Dictionary (10th ed. 2014) (“decree, n. (14c) 1. Traditionally, a judicial decision in a court of equity, admiralty, divorce, or probate – similar to a judgment of a court of law . . . . 2. A court’s final judgment. 3. Any court order, but esp. one in a matrimonial case.”). Because Paragraph 4 purports to prevent the court from ordering a change in child support, it seeks to prevent a court “from exercising its power to decree child support,” and therefore, is void.

... as mother has argued, she did bargain for the void provision and apparently gave up other items of value to which she may have been entitled. Because such other provisions of the parties’ agreement may be so inextricably intertwined with Paragraph 4 that they cannot be severed, a determination must be made as to what other portions of the parties’ agreement are invalidated by our finding that Paragraph 4 is void. The parties agree that, given the fact-dependent nature of some of the questions raised by Paragraph 4 being declared void, remand to the circuit court is appropriate to determine the outstanding questions. Although we are not bound by the parties’ agreement on this issue, we concur. 

... Paragraph 6 of the parties’ agreement provides that “[i]n the event that [father] defaults in his obligation to pay support pursuant to this Order, [father] shall pay all costs of enforcement of this Order including, but not limited to reasonable attorney fees . . . .” Assuming without deciding that Paragraph 6 is severable from Paragraph 4 and continues in effect, we note that, given the disposition, this appeal does not fall within the provision. Accordingly, the parties’ agreement does not entitle the mother to fees related to this appeal.

The voidness issue was not raised at all until the Court of Appeals had already announced a decision on the interpretation and enforcement of the agreement and decree, and on attorneys'-fee claims. After that, the payor raised the issue in a Motion to Reconsider. The "mandate" returning the case to the trial court had not yet been issued, and the Court says, if an order is "void ab initio", its invalidity can be raised at any time, regardless of the 21-day finality rule in Rule 1:1, the Rule 5A:18 requirement to have raised the issue in the trial court, or the appellate court rules. The Court cites as holding that "so long as a litigant has timely filed and properly perfected an appeal as to any issue, he retains the ability to raise a voidness challenge so long as the matter is pending before the appellate court." Amin v. County of Henrico, 286 Va. 231, 749 S.E.2d 169 (2013).

Imputing recent income to imprisoned support payor not "speculative." - Va. Ct. of App. in Niblett case

Virginia's Court of Appeals once again favors imputing income to an imprisoned parent, this time reversing a trial court that decided otherwise, in Niblett v. Niblett, published, 12/15/15. 

The trial court had found that the father was "voluntarily unemployed" as a result of his voluntary criminal acts, but held that even so, the 1995 case of Donnell v. Donnell, 20 Va. App. 37, barred imputation against an imprisoned felon as "premised upon the occurrence of an uncertain future circumstance". In that case, like this one, the payor was convicted of sexual conduct with minors in his home, and imputation of his previous level of earnings was sought. That "would be speculating as against the requirements of the Jacobs[ v. Jacobs, 219 Va. 993, 995, 254 S.E.2d 56, 58 (1979),] and the Payne[ v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987),] case[s].”, the trial court ruled.

But there was evidence of recent past earnings, and the trial court was required to look at it as evidence of current earning capacity, the appeals court says. This is not speculative, because "we are not concerned with what the father might earn upon his release from incarceration. Rather, we are concerned with what the father would have been earning on the date of the hearing but for his voluntary unemployment." 

This opinion also quotes a useful standard for proving abuse of discretion:

An abuse of discretion . . . can occur in three principal ways: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.

Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011) (alteration in original) (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)).

Still, the ultimate result in this appeals court opinion is remand, as in Donnell:

although the trial court must consider each of the statutory factors for which evidence is presented, the weight, if any, to give any particular factor in the overall decision lies within the trial court’s sound discretion. Robbins, 48 Va. App. at 481, 632 S.E.2d at 622. Thus, we do not hold that the trial court must deviate from the presumptive guidelines because of the income imputed to father. Rather, we hold that the trial court erred in failing to first consider recent past earnings to calculate the amount of income that should be imputed to father because of his voluntary unemployment. After considering the evidence and the factors, the court may add “‘a just and appropriate amount [to] the amount reflected in Code § 20-108.2,’ accompanied by the requisite written findings,”7 Brooks, 18 Va. App. at 592, 445 S.E.2d at 729 (alteration in original) (quoting Richardson, 12 Va. App. at 20, 401 S.E.2d at 895), or the court may conclude that deviation from the presumptive guidelines is not appropriate in this case.

Third party's filing of transcript triggers appeal deadline; and other odd points of appeal procedure, construction

If a court reporter or anyone else sends a transcript to a Circuit Court, that counts as the "filing" of the transcript even when that means it starts the time limits for the appeal, the Va. Court of Appeals says in Commonwealth v. Spinola (9-8-15).

The Court of Appeals summarily dismissed the appeal on the grounds that the initial petition for appeal and the transcript notice were untimely filed. The appeal was an interlocutory one allowed in criminal cases under a statute which requires the appellant to file a Notice of the transcript's filing within three days after the transcript is filed; and the Petition for Appeal to be filed within 25 days after the Notice. 

The transcript was provided to the clerk of the circuit court for the express purpose of being filed, and all parties were given notice [by copy of the reporter's cover letter] that the transcript had been delivered to the clerk “to be filed this day . . . in the above styled case . . . .” ...  The clerk accepted it and marked it filed. Furthermore, we previously have held that “‘[a] document is considered filed when delivered to the clerk for filing.’” Waller v. Commonwealth, 27 Va. App. 71, 75, 497 S.E.2d 508, 510 (1998) (quoting Rhem v. State, 820 S.W.2d 946, 947 (Tex. Crim. App. 1991)). 

The statute had recently been amended, changing "filed by the Commonwealth" to merely "filed" when saying the filing notice is due three days later. The Court cites

 Washington v. Commonwealth, 46 Va. App. 276, 281, 616 S.E.2d 774, 777 (2005) (“[W]e assume legislative familiarity with Virginia case law when the legislature enacts a statute which might impact upon that law.”). 

The case law referred to above is Commonwealth v. Mitchell, No. 0741-13-3, 2013 Va. App. LEXIS 251 (Va. Ct. App., unpublished, Sept. 10, 2013). In it, a third party filed the transcript, and the appellant's Notice of its filing was filed within the deadlines caused thereby. But the appellant did not file a duplicate of the transcript, and the statute at the time said the transcript had to be filed “by the Commonwealth”. The Court decided there was no need to have re-filed a duplicate of a transcript that had already been filed. The appellant did not file the appeal petition within the required time after the transcript was filed, but the majority said the appeal was still timely because a literal reading would require the appeal in that case to be filed before the trial court's decision. 

On the always-sensitive topic of citing the Court's unpublished opinions, the Court says,

Although they have no precedential value, unpublished opinions of this Court are nevertheless persuasive authority. Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735 S.E.2d 255, 258 n.3 (2012).

Judge Humphreys dissents, saying the legislative change must have been intended to let a third party file the transcript on behalf of, or request of, the Commonwealth, and that the majority's interpretation   "allows any person to trigger the time clock" for filing an appeal, and letting a non-party to the case do so, when not acting as a party's agent, is absurd. It is likewise absurd that under the majority's opinion, the appellant "is now required to file notice of the filing of a transcript that anyone may have filed at any time." And that, since a transcript may be (and in this case was) filed before the case was decided, the appeal deadlines might likewise come before the end of the case. Therefore:

This Court is precluded from construing “a statute . . . so that it leads to absurd results.” Auer v. Commonwealth, 46 Va. App. 637, 651, 621 S.E.2d 140, 147 (2005). Thus, “where a particular construction of a statute will result in an - 16 - absurdity, some other reasonable construction which will not produce the absurdity will be found.” Miller v. Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942). 

However, this was an interlocutory appeal allowed under a special statute for criminal cases, and the special requirements based on the filing of a transcript are in that statute, which begins, "The provisions of this subsection apply only to pretrial appeals.", so this case should not lead to deadlines for appeal falling before the order being appealed is entered.