Virginia Family Law Appeals

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.

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.

Military transfer justified custody change, even though servicemember got transfer canceled after trial

In Best v. Montez, Va. Ct. App. May 14, 2019, unpublished, the Circuit Court had changed custody from the father to the mother because the mother was being transferred from Virginia to North Carolina, and the court found that the move would not be in the child's best interest. After the trial, the mother learned that she would not be transferred after all, and filed a motion to reconsider. The court did not change its custody decision, though it did change the visitation that it had ordered.

In the custody modification trial, the court had found that both parents were good, caring, attentive parents; the father was very active, involved, and had almost 50-50 custody time; and the move would impair the relationship with the father and offered no benefit to the child. It found some "unrebutted" evidence that the mother had interfered with visitation, and said she had "made no real effort to avoid the move, likely due to the prior animosity between the parties.”

After receiving the Court's ruling but before the final order was signed, the mother "contacted her supervisor and others, who worked on her behalf to cancel her orders to report to North Carolina due to a “family hardship.'” This was soon successful, the mother was able to stay local, and she filed a Motion to Reconsider, saying that there was no longer a change in circumstances, and that the new development was comparable to "after-discovered evidence." The father responded that she could have made the same effort earlier.

The Circuit Court denied the motion, saying the mother had

... created a change in circumstances by doing something different after the trial because she did not like the result. ... [She] played . . . fast and loose with the Court, made personally no effort to do all the things that she could have done, or presented evidence to the Court of options that she could have pursued, that would have prevented [the parties] from ever being in this position. [The court had] made a ruling based on the best interest of the child based on the circumstances before [it] which were to some extent ... manufactured ... by her failure to make any real effort to try to stay in this area.

The appeals court upheld the ruling, pointing out some essential boundaries defining what Motions to Reconsider are and aren't for:

“A litigant's ‘right to relief on such rehearing depends upon his ability to point out some error on the face of the record, or to show some legal excuse for his failure to present his full defense at or before the time of entry of the decree which he seeks to have modified.’” Id. (quoting Downing v. Huston, Darbee Co., 149 Va. 1, 9 (1927)). “Without valid excuse, no party who has had his day in court can reopen the hearing . . . on the mere ground that he wishes to interpose other defenses which he neglected to interpose before such decision was made.” Id. at 109-10 (quoting Holmes v. Holmes, 7 Va. App. 472, 482 (1988)). “This ‘valid excuse’ standard typically requires a showing that the party has exercised due diligence in making the best of prior opportunities to address the issue . . . .” Id. at 110. Whether a trial court should reopen a case and reconsider its prior rulings is “a matter we review under the highly deferential abuse-of-discretion standard.” Id. at 111.

Mother relies on the Fairfax County local rules to support her argument. However, as discussed in Cloutier v. Queen, 35 Va. App. 413, 422 (2001), the local rules “[are] not Rules of the Court.” “Code § 8.01-4 provides that ‘local rules’ are limited to ‘those rules necessary to promote proper order and decorum and the efficient and safe use of the courthouse facilities and the clerks’ offices.’ ‘Local rules’ cannot affect the substantive rights of the litigants.” Id. at 421-22. The local rules are not binding legal authority in this matter.

Order dividing retirement can't be changed to conform to divorce decree and let wife share increase in monthly payments -- Va. Supreme Court

After a divorce, the court is always able to make or revise court orders to carry out the division of retirement that was decided on in the divorce, but not to change, in any way, the substance of what shares of the retirement each spouse gets. That principle is very well known, among those whose business it is to know, but how it should apply to various situations can be controversial. Perhaps never more so than in Jackson v. Jackson, Va. S. Ct. 11/27/19.

The Jacksons' divorce decree said the wife would get 50% of the marital share of a military pension, but it was followed by a separate court order saying that she would get a certain dollar amount. The Supreme Court emphasises that Rule 1:1's protection of the finality of court orders protects the separate retirement-dividing orders themselves, not just divorce decrees. It demonstrates this with a close reading of the enabling statute allowing revision of such orders, Virginia Code § 20-107.3(K)(4).

The Court does not quote from the marital settlement agreement, but the passage it quotes from the decree sounds to me like a fixed percentage award (minus survivor benefit deduction), not a fixed dollar amount:

The decree recited that the pension was already being paid out and that "on the date of separation [it] was paying $3229.28 per month. [Marie] shall receive fifty percent (50%) of the marital share of this pension, and the parties shall use the agreed date of separation of August 16, 2004 in the formula which calculates her share of this pension. . . . [Marie] shall also receive the Survivor’s Benefit of this pension and any and all costs associated with providing the Survivor’s Benefits to her will be deducted from her share of the pension after its allocation between the parties . . . . In the event [Dennis] applies for and receives a disability determination it shall not reduce the entitlements of [Marie] to the amount she is entitled to receive monthly from this pension . . . ."

But simultaneously with the divorce decree, a separate pension-dividing order was signed, saying: “To accomplish the division of the marital property between the parties in accordance” with the decree, Mrs. Jackson “is assigned an annuity in the monthly amount of $1,053.39.” 

The Court of Appeals, which the Supreme Court upholds, held that the language of that order, and Mrs. Jackson's not challenging it at the time, indicated that the overall intent of the divorce decree's language must have been the fixed dollar award in the separate order, and thus it treats her like someone who is coming back years later to try and change the divorce decree itself, not the mere implementing order -- but also that the implementing order "therefore controlled to the extent there were any differences between it and the decree".

The Supreme Court does not disagree, but it puts more emphasis on the implementing order itself being protected from any fundamental change, despite the statute, or rather because of the statute's final, limiting clause:

K. The court shall have the continuing authority and jurisdiction to make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including the authority to: ... 4. Modify any order entered in a case filed on or after July 1, 1982, intended to affect or divide any pension, profit-sharing or deferred compensation plan or retirement benefits pursuant to the United States Internal Revenue Code or other applicable federal laws, only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order.

So the only two purposes for which the order can be changed are (1) to make an order qualify as an order that the retirement plan will implement and the IRS will recognize, or (2) to conform it to effectuate its own intent, not the intent of some other order, such as the divorce decree.

Well, they've got a point there. Until Jackson, the courts had been fairly lenient about redoing QDROs to effectuate the Equitable Distribution award, which is clearly the overall purpose of subsection K of the Equitable Distribution code section. But looking at how K(4) is phrased, the only way around Jackson would be to cite K's sweeping scope and that (4) is merely part of an "including" list -- "make any additional orders necessary to effectuate and enforce any order entered pursuant to this section, including ...". But Jackson shows a marked preference to closely read the subordinate part as a guide to the meaning of the whole, instead of vice-versa, so I think any relief will more likely come from the legislature than from the courts.

Probably, when the legislature enacted K(4), they weren't thinking about pension-dividing orders that were already separate from divorce decrees, so they were assuming that they were letting courts carry out the expressed intent of Equitable Distribution awards. But as the Supreme Court notes, in Virginia we don't consider legislative history:

Our primary objective is to ascertain and give effect to legislative intent, as expressed by the language used in the statute. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. And if the  language of the statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012) ... . “When a statute is clear and unambiguous, [we] may look only to the words of the statute to determine its meaning. [We] may not consider rules of statutory construction, legislative history, or extrinsic evidence.” Eberhardt v. Fairfax Cnty. Emps’ Ret. Sys. Bd. of Trs., 283 Va. 190, 194 (2012) ... . However, “it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal."

Court could not punish husband for wasting a business whose value was unproved.

Von Hassell v. Von Hassell, 2016 Va. App. LEXIS 310 (November. 15, 2016)

Husband assigns multiple errors to rulings of the trial court related to the entry of the parties’ final decree of divorce. Specifically, he contends the trial court erred in classifying certain personal property as appellee wife’s separate property, in its classification and distribution of husband’s interest of a corporate entity in which he was the majority owner, in determining husband’s income for spousal support purposes, and in making certain contempt rulings. 

Parties failed to introduce evidence of value of a marital company. Trial court awarded all marital debt to Husband to compensate "wife for her interest in that entity" and for husband's mismanagement and waste of marital resources. Appeals court found the award to be an abuse of discretion because the award for an interest in the company could not be reconciled with the lack of any evidence as to its value.

Also, an indefinite sentence for civil contempt was reversed because it extended beyond the statutory 12 month limit.

 

 

Wife's lying about hidden painting was intrinsic not extrinsic fraud.

Wagner v. Wagner, 2016 Va. App. LEXIS 257, Record No. 1733-15-4 (Va. Ct. App. unpublished, October 4, 2016)

The couple went through divorce proceedings in 1999, and during those proceedings there was a question about the value of a painting owned by the couple. The wife testified under oath that she had given the painting away at a flea market. The husband wanted to have an expert witness testify about the value of the painting, but the expert was excluded due to the husband’s failure to designate the witness in a timely manner. The judge, consequently, assigned a $2000 value to the painting based on the cost incurred to restore it. That value was used in the equitable distribution award and the final decree was issued. However, in 2016 the case was reopened when the husband filed a complaint alleging  the wife “hid the painting, lied about it during discovery, and committed perjury when she testified that she had given it away.” After a three-day hearing, the circuit court found that the wife had not given away the painting but rather had hidden it during the divorce, and that “her testimony at the divorce hearing, that she did not have knowledge of the whereabouts of this asset and did not have control of the whereabouts of this asset . . . [was] completely false.” The court even remarked that the wife was “the least credible witness in this case of all the witnesses.”  The circuit court determined that the wife’s actions constituted intrinsic rather than extrinsic fraud because those actions “did not prevent ‘a fair submission’ of the equitable distribution matter.” Examples of extrinsic fraud, the court suggested, included “a litigant’s ‘[k]eeping the unsuccessful party away from the court by a false promise of a compromise, . . . purposely keeping him in ignorance of the suit; [and] . . . an attorney[’s] fraudulently pretend[ing] to represent a party[] and conniv[ing] at his defeat.’”Intrinsic fraud, on the other hand, included “perjury, forged documents, [and] other incidents of trial related to issues material to the judgment.” In essence, the court stated, intrinsic fraud was“obscuring facts.” The distinction was critical, the court further observed, because intrinsic fraud is voidable by direct attack but only until the judgment becomes final. Based on this definition, the court affirmed the lower court’s ruling, stating that the husband failed to prove extrinsic fraud and therefore no longer had any grounds for reopening the claim against his wife for fraud related to the equitable distribution of martial property.

Giving the GAL 'sole discretion over determining visitation' is erroneous.

Reilly v. Reilly, 2016 Va. App. LEXIS 343 (December 13, 2016)

The circuit court order stated, the "Mother shall enjoy Supervised Visitation . . . . Supervision can be altered IN WRITING by the Guardian ad Litem based upon [the] Mother's strict compliance with the conditions and other provisions set forth in this Order." The mother argued that the circuit court "gave the GAL 'sole discretion over determining visitation' between [the] mother and the children." The Court of Appeals agreed with the mother and said that the plain language of the order gave the GAL "authority to alter supervision without a ruling from or any hearing in the circuit court." The court then granted the mother a trial de novo and held that it was erroneous "for the circuit court to approve such language allowing a third party, even a guardian ad litem, total discretion to decide [the] mother's visitation without providing judicial review because it is inconsistent with the language and purpose ofCode §20-124.2."

 

 

Post-divorce property division not derailed by ex-husband's death - Brown v. Brown

After all, that's one of the main reasons for "bifurcated" divorce and equitable distribution, isn't it?

Death abates a divorce suit by making it moot, but "bifurcating" a divorce case makes the division of property "in essence, a distinct case." Code § 20-107.3 says a court shall divide property "upon decreeing a divorce." The divorce happened while the man was alive, so the divorce still existed after he died and the trial court should have divided the property "upon" it. The Court of Appeals reversed the trial court that had dismissed the case for lack of jurisdiction due to death.

Brown v. Brown, 69 Va. App. 462 (2018)

 

"However, when a court bifurcates a divorce proceeding, the equitable distribution of marital property is no longer ancillary to the final divorce decree, but rather becomes, in essence, a distinct case. Friedman, 68 Va. App. at 539-40, 810 S.E.2d at 917. Although the status of the marriage has been resolved, the determination of the former spouses’ rights and interests in the marital property remains before the court. Virginia courts have long recognized that adjudication of property rights and interests does not abate with the death of a party. See  Squire v. Va. Hous. Dev. Auth., 287 Va. 507, 511, 758 S.E.2d 55, 57 (2014) (considering the merits of quiet title action after administrator of plaintiff’s estate was substituted for plaintiff); Smith’s Ex’x v. Profitt’s Adm’r, 82 Va. 832, 851, 1 S.E. 67, 80 (1887) (considering the merits of a claim of beneficial interest giving rise to "an implied or constructive trust ... to the extent of his interest" after administrators were substituted for two deceased parties); Hinton v. Bland’s Adm’r, 81 Va. 588, 594 (1886) (noting an administrator of deceased was an indispensable party in a partition action where the court was required to "adjust all the equitable rights of the parties interested in the estate")."

Court must hold evidentiary hearing on validity of separation agreement if a party challenges it

Ruane v. Ruane, 2016 Va. App. LEXIS 320 (November 22, 2016): The husband contended that the court erred by incorporating a PSA into the Pendente Lite order over his written objections and without an evidentiary hearing. The Court of Appeals agreed. The Court found the circuit court "is required to conduct an inquiry into the validity of an agreement when its validity is challenged by one of the parties." Accordingly, the trial court committed an error of law when it incorporated a contested PSA into a court order over husband's objections without first making an inquiry required by §20-109.1 as to validity.