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.

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 May 14, 2019, unpublished, the Circuit Court had changed custody from the father to the mother because the mother was being transferred from Virginia to North Carolina, and the court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.

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."

 

 

Late-filed appeal of support order makes timely appeal of arrears case moot

Marriott v. Anderson, 2017 Va. App. LEXIS 43 (February 21, 2017)

When a party appeals a case from the juvenile and domestic relations court, he or she must file the appeal within ten days or the appeal will be dismissed.The Court of Appeals reversed the circuit court after it had accepted several de novo appeals from the juvenile and domestic relations court, one of which was filed after the ten-day appeal period. On May 14, 2015, the JDR court had entered two separate orders. One resolved the father's arrearages to the mother ("arrearages order"). The other required the mother to pay child support ("child support order"). The mother appealed the arrearages order on May 21, 2015, which was filed timely. However, she appealed the child support order on May 27, 2015, which was filed late. The father moved to dismiss the child support case because of the late appeal. He also moved to dismiss the arrearages case on the basis that it was moot without the child support appeal. The circuit court denied his motions to dismiss. The court of appeals agreed with the father and reversed the circuit court on both matters.

 

 

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.

 

Support order can be for net of one party's alimony vs. the other's child support

A support order may order a net payment in which one party's spousal support to the other is offset by child support going the other way, or vice-versa. O'Reilly v. O'Reilly, Va. Ct. App. unpublished 5/31/16.

Nor did the court err in ordering reimbursement for uninsured medical expenses, even though those weren't discussed during the trial. That is something the court is required to rule on in any support order, and it is directly determined bu the incomes and income-proportions that the court determines when calculalting child support.

If either spouse raises alimony issue generally, court can give relief to either: Ozfidan alimony case.

In a divorce case, there is jurisdiction to award spousal support to a party who did not mention it in her pleadings, because her husband raised the issue by filing a motion to deny or time-limit spousal support, the Court of Appeals held in Ozfidan v. Ozfidan, unpublished, 1/10/17.

There had been a spousal support order from Juvenile Court, and neither side's original pleadings in the divorce case asked for any action on spousal support. After the divorce trial and Final Order, the husband filed a Motion to Reconsider, and also a "Motion to Decree Spousal Support", moving the court "to decree the maintenance and support of the spouses and, if any such decree be made, order ... a defined duration." 

The Court of Appeals opinion initially does not sound as if it intends to be limited by the fact that the husband included such open-ended language in his request. It holds that if either side raises the spousal support issue in any written pleading -- and“ All motions in writing . . . are pleadings.” under Rule 3:18(a) -- the trial court may grant spousal support in whatever amount seems appropriate and authorized by statute. It cites what it sees as the relevant parts of Code § 20-79(b):

In any suit for divorce, the court in which the suit is instituted or pending, when either party to the proceedings so requests, shall provide in its decree for the . . . support and maintenance for the spouse . . . if in the judgment of the court any or all of the foregoing should be so decreed. 

And 20-107.1:

A. Pursuant to any proceeding arising under subsection L of § 16.1-241 or upon the entry of a decree providing (i) for the dissolution of a marriage, (ii) for a divorce, whether from the bond of matrimony or from bed and board, (iii) that neither party is entitled to a divorce, or (iv) for separate maintenance, the court may make such further decree as it shall deem expedient concerning the maintenance and support of the spouses.

But further down, it addresses and distinguishes existing case law saying that if one party simply asks for spousal support it can't be awarded to the other party, and specifically hangs its ruling on the pleading language asking for a general determination of spousal support. So one can still carefully plead for an award of spousal support only to oneself, and thus not open the door for it to be given to the other party; but it looks like a pleading to deny or limit the other party's support will open that door to all options.

The Court also rejected the argument that the wife waived spousal support by not asking for it in the divorce. She didn't ask for it in the divorce because she already had it under the juvenile court order. "Waiver is the intentional relinquishment of a known right." 

Husband also argued that the trial court had no jurisdiction to award spousal support after the final order, but the Court rejected this since he was the one who had asked the trial court to address the issue at that time.

This was the second appeal in the case. The first was decided on May 5, 2015.

Despite statute, almost any support appeal must be dismissed if no arrears bond posted

A father who appealed a juvenile court’s refusal to modify spousal support, but who did not contest the amount of arrears that court said he owed, still must have his appeal dismissed for lack of jurisdiction for his failure to post a bond for the arrears of over $24,000, Virginia’s Court of Appeals says in Forte v. Commonwealth (06/09/2015).

Va. Code §16.1-296(H) says a bond is not required when appealing from juvenile court, “except for that portion of any order or judgment establishing a support arrearage or suspending payment of support during pendency of an appeal.” Since the father did not challenge “that portion” of the order, and since he probably did not have $24,000, he did not post a bond.

The Court of Appeals reviews and summarizes its existing case law on the application of this statute. It says the appeal “must make clear to the court that his appeal does not challenge the support arrearage”, and it concedes that the father in this case did so effectively. However, the exception cannot apply “if the arrearage is intrinsically and logically related to the issue appealed.” For example, if the issue is the timing of a change in support, or if the issue is the amount of support (at least in cases where the modification is retroactive to some point before the date of the order), then the arrearage amount is bound to be change if the lower court’s order is changed on appeal. This is especially true, the Court points out, now that Code §20-60.3 requires all support orders to state the amount of any arrearage. It quotes Sharma v. Sharma, 46 Va. App. 584, 620 S.E.2d 553 (2005): "Even if appellant chose not to pursue the arrearage issue, arrearage is so intertwined with the increase in child support, the circuit court, by necessity, must address the arrearage."

And since the Circuit Court has no jurisdiction over an appeal when a required bond is not posted, the appeal must fail for lack of jurisdiction.

No-show waives appeal right in case appealed from Juvenile to Circuit Court

A father who appealed his parental rights termination from Juvenile to Circuit Court, but skipped the trial of his appeal, can be treated as waiving the right to appeal, when he had been involved in the litigation and presumably knew of his upcoming trial date, but then moved to Texas three weeks before it, the Va. Court of Appeals says.

The deciding rule is from Va. Code § 16.1-106.1:

D. If a party who has appealed a judgment or order of a district court fails to appear in circuit court either at the time for setting the appeal for trial or on the trial date, the circuit court may, upon the motion of any party, enter an order treating the appeal as withdrawn and disposing of the case in accordance with this section.

There is no indication that this being a termination of parental rights case makes the rule any more or less strict than in any other juvenile-court appeals falling under this statute on “Withdrawal of appeal in civil cases.” However, the Court cites the three years the child had already languished in foster care, as well as the father’s conduct in the litigation and his sudden move, as reasons why the Circuit Court was right to use its discretion to find that the father had voluntarily “withdrawn” his appeal when he did not show up for it.

Blake v. Norfolk DSS (unpublished, 5/19/15) VLW 6-1-15 p 16

Dementia patient loses alimony change because court cannot take notice of fact-finding from earlier case

 

A retiree who was disabled and clearly suffered from dementia was denied an alimony modification because he did not show what his income at the time of the original order was, so therefore he did not give any evidence that it changed as a result of his condition, the Court of Appeals ruled in Barnes v. Barnes (Va. Ct. App. 10/128/14).

The man's lawyer had introduced evidence that his current monthly income was $3,444, and asked the trial court to take judicial notice of an earlier court finding -- recited in the appeals court opinion in Barnes v. Barnes, 16 Va.App. 98, 428 S.E.2d 294 (1993) -- that his monthly income had been $7,700 when the alimony was set. However, in the view of the Fairfax Circuit Court and the Court of Appeals, he could have, but did not, move for that Court of Appeals opinion to be admitted into evidence in the trial court. Instead, he asked the trial court to take judicial notice of an adjudicated fact from what was "another case", even though it was essentially in the same case between the same parties. The Court rules that:

"While courts generally have discretion to take judicial notice, a trial court has no discretion to take judicial notice of an adjudicated fact from another case unless that case is offered into evidence."

This is troubling, especially because, when offering such an opinion into evidence, even if marked as an exhibit, many lawyers would have, until now, consdiered that to be a request to take judicial notice, and would have seen little or no distinction between offering it as an exhibit and asking the court to take judicial notice of it.

Also, it is not clear that this would be considered "another case". A fact found in an earlier round of litigation between the parties is often considered "the law of the case" and immune to later questioning.