The published decision of the Virginia Court of Appeals holds that if a court finds voluntary impoverishment and has evidence of what the person would have been earning, such as recent past income, then it is not speculative to impute income when calculating the presumptive guideline child support amount. Moreover, it is reversible error not to make the calculation and include the figure in the guideline.
After determining and disclosing the presumptive amount, a court may deviate from it. For example, a court might conclude it would not be in the children’s best interest for their father to leave prison owing thousands of dollars in back child support. If the lower court had “shown its work” here, then a child support award of zero dollars might have been sustained on appeal.
Crafting a support award is like DNA sequencing or a downhill ski race. If you omit something, the result doesn’t count. Trial judge Jeffrey W. Shaw left out imputed income. The appeals court sent the case back for him to re-do his work.
DIRECTV tried to force individual arbitrations upon its California subscribers, in the place of class arbitrations or class action court cases, because large companies know that “only a lunatic or a fanatic sues for $30.” Dissent, at 9-10. SCOTUS gave DIRECTV exactly what it asked for, effectively erasing the economic feasibility of pursuing damage claims for a large swath of the American public.
The majority opinion by Justice Breyer (11 pages), and the dissent of Justice Ruth Bader Ginsburg joined by Justice Sotomayor (24 pages), read like the arcade game of Whack-a-Mole; each argument favoring the consumer is smacked down by a counter-argument, no matter how unsupported or far-fetched.
This is not a law review article, so I dispense with the need for a careful, footnoted delineation of points and retorts. You really do not need details, because ultimately it makes no difference what a tangled thicket the contract language, state law, court decisions and federal law managed to create. Big business knew they would come out winners if they reached the Supreme Court.
The majority opinion says the “law of your state” clause in the agreement is ambiguous. The dissent said it is not. The majority asserts that applicable California law protecting consumers got struck down by a court decision [AT&T Mobility LLC v. Concepcion, 563 U. S. 333 (2011)], and that in any event the subject matter is preempted by a federal law (the Federal Arbitration Act, or “FAA”, 9 U. S. C. §2.). The dissent says “Not so,” on both counts. You get the idea.
After our highest court declares that the FAA takes precedence over state laws concerning mandatory arbitration, the only way to re-empower the states is to amend the FAA. Modifying Federal law requires a majority in both houses of Congress. Big business has too much lobbying muscle and PAC money for FAA to be revised, under current conditions.
In my opinion, the overwhelming, pervasive power of adhesion contracts to deprive consumers of meaningful judicial recourse will only decline when we have national campaign finance reform.
The opinion mentions no time that the new husband, Mr. Brian Busick, (who is in therapy and not drinking at the time of the trial court order being appealed), had ever been drinking or intoxicated in the presence of either child. There is barely a mention of the parties’ daughter, and no explanation why her visitation must be supervised by a therapist. The only direct evidence concerning the son’s welfare is a statement of the court-appointed expert, Dr. Hoffman, that he seems “safer and calmer” with his father.
After reviewing these scanty supporting facts, the Court of Appeals affirms the lower court’s wholesale adoption of Dr. Hoffman’s recommendations. The recommendations include the daughter, whose age is never revealed, living with dad and only seeing mom in the presence of a therapist; and mom having no contact whatsoever with Mr. Busick during visitation with her son, even if the son is in school.
Admittedly, trial judges in Virginia have wide latitude in their decision-making, provided at least some factual foundation supports their ruling:
The court of appeals' “standard of review requires that we presume the judgment of the trial court to be correct and that we sustain its finding unless it is plainly wrong or without evidence to support it.” M. Morgan Cherry & Assocs. v. Cherry, 38 Va. App. 693, 702, 568 S.E.2d 391, 396 (2002) (en banc).
Highly restrictive visitation such as was imposed here, without any evidence of neglect or abuse and at a time when Mr. Busick was controlling his drinking, seems clearly erroneous. I could be wrong, but I think this is more about punishing a mother for her spouse’s illness than protecting children.
In Jones, appellant father sought $371 a month of child support that he claimed the trial judge had arbitrarily denied him. Sounds like a slam dunk, right? Well, not so fast! The guideline child support presumption otherwise favoring dad dissolved in the face of his contumacious non-payment of a $1.4M equitable distribution award in favor of mom.
In Gregory, the trial judge determined wife was not credible regarding her employment or her debt, and then proceeded to award her spousal support and attorney fees. Not so fast, said the Court of Appeals: If the party bearing the burden of proof in a claim for spousal support fails to present credible evidence of her employment or her debt, then support cannot be awarded. Judgment reversed and remanded.
from the Virginia Court of Appeals
Host v. Host, [Record No. 2134-14-4, November 3, 2015], involves the manner of crediting third-party payments of child support pursuant to a consent order.  Had I been on the appellate panel, I would have dissented. I think the majority failed to apply a widely-accepted rule of contract construction that vindicates the father’s position. I would have reversed the decision of the trial court.
The operant sentence in the consent order says mother shall “expressly acknowledge and credit any payment she shall receive from [James Host] toward [father’s] child support obligations set forth in this Order.” James Host is her father-in-law.
The issue is whether these words limit credit to the amount due on the date payment is made, or in the alternative, whether they require excess payments be applied to child support coming due in the future.
Fairfax Circuit Judge Dennis Smith construed the provision narrowly, invoking the presumption that excess child support is a gift unless the presumption is expressly and specifically modified. The court of appeals affirmed, finding no specific modification of the “gift” rule.
I believe that Judge Smith and the Court of Appeals might have applied a different rule: All words in an agreement are presumed to have meaning. If they had applied that rule, it is likely they would have reached the opposite conclusion.
According meaning to all words in a contract (or a consent order) works like this: If interpretation “A” would be unaffected by removal of a phrase, while interpretation “B” would be affected; then interpretation “B” is the favored choice that accords meaning to all words and should be deemed the intent of the parties.
In Host, the “key phrase” that we want to “flip on and off” for comparison is the following: “... toward [father’s] child support obligations set forth in this Order”.
A. Interpretation “A” is that the full sentence, including the key phrase, makes money from father-in-law to mother apply only to child support due in the past and in the month the payment is made. Any extra money is a gift to mother, and does not count as child support at all. This is the reasoning of Judge Smith and the Court of Appeals.
B. Interpretation “B”, which I am suggesting should have been adopted instead, is that the full sentence, including the key phrase, applies to child support due in the past, present and future.
Here is how it works:
1. In condition “1”, we apply the sentence with the key phrase. It reads like this: “... expressly acknowledge and credit any payment she shall receive from [James Host] toward [father’s] child support obligations set forth in this Order.”
2. In condition “2”, we apply the sentence without the key phrase to see if the meaning of the sentence is changed. The sentence without the key phrase is “... expressly acknowledge and credit any payment she shall receive from [James Host].”
Let’s mix and match, and see what happens.
First, compare A + 1 to A + 2. The meaning of the sentences is identical! Either way, they require mother to credit father-in-law’s money towards past and present child support. Mother does the same thing with the money whether the key phrase is included or not. In other words, for interpretation “A”, the key phrase is surplusage. This interpretation is disfavored, because you can add or delete a phrase without changing the meaning of the sentence at all.
Now, compare B + 1 to B + 2. They mean something different. B + 2 clearly addresses past and present money, and over-payments as gifts, just like A + 1 and A + 2. But B + 1 affirmatively precludes treating father-in-law’s money as a gift. How does it do that? B + 1 requires that all money, whenever paid and in whatever amount, be credited towards child support!
This principal of contract construction is appellate law in Virginia:
I believe that if the majority in Host had invoked this recognized principal, they would have determined that specific language of the parties refuted the presumption of gift, and they would have ruled in favor of the father instead of the mother.
Wife cohabited with a man for more than a week, and ex-husband stopped paying support.
Much later, when $400,000 of back support would have been owed if support continued to be owed at all, the matter came before Judge Lorraine Nordlund of Fairfax County Circuit Court. Judge Nordlund ruled the support termination in this case was not self-executing, like attainment of a certain age, because the parties had to return to court to determine if the triggering condition occurred. The trial court found that the requisite cohabitation had occurred, that back support was owed, and that the support obligation terminated as of the date of the hearing.
On appeal, all parties agreed that support ended no later than the hearing date. The issue was whether the unpaid back alimony of $400,000.00 was owed or not.
With all due respect for the Court of Appeals, I think that Judge Nordlund and dissenting Judge Mary Grace O’Brien of the Court of Appeals of Virginia understood the facts and the law exactly right. I believe the trial judge and the Court of Appeals dissent had the more persuasive argument for the following reasons:
1. Unlike Schrödinger's cat, famously alive and dead at the same time; spousal support arrearages cannot not be simultaneously non-modifiable and not owed at all – depending on the prevailing party at a later date.
It appears to me that the majority and dissent would necessarily have to agree that the original spousal support order (the “original order”) was valid, enforceable and unmodified up until the moment the trial court entered its order determining that the cohabitation contingency had been satisfied (the “modifying order”).
It is at the moment of entry of the modifying order that the appellate opinions diverge:
(A) According to the majority, the modifying order “enforces the pre-existing award according to its plain terms”.
(B) According to the dissent, the modifying order changes a pre-existing award according to its plain terms in violation of VA Code Sec. 20-112. [Section 20-112 says “[N]o support order may be retroactively modified ...”].
[Remember, a modifying order is required because the cohabitation contingency is not self-executing; satisfaction of the contingency can only be established by a judicial determination.]
Here is why the majority view, in my opinion, establishes a logical impossibility:
Assume hypothetically that on the date of the hearing before Judge Nordlund, wife established spousal support arrears of $400,000.00 were due and unpaid; and husband failed to prove cohabitation had taken place. The trial court would under those facts unquestionably enter judgment in favor of wife and against husband for the arrears, based upon the original order. In other words, arrears would have been found due and owing pursuant to a support order that was never modified.
The rationale of the Court of Appeals calls to mind a physics conundrum involving “quantum entanglement”. In the renowned paradox, Schrödinger's cat is in a box, and is alive and dead simultaneously. The cat does not become one or the other until the moment someone looks in the box. In the alimony context, the Court of Appeals has treated spousal support arrears as if they were simultaneously owed and not owed. The court has established a rule that support absolutely owed in the past may be effectively vaporized depending on facts in the future.
2. Statutes are not construed in harmony by making one re-write the other.
The Weidlein decision does not harmonize Code §§ 20-109(A) and 20-109(C) as the Court of Appeals asserts; it places them in conflict.
Here is the precise language at issue in Code § 20-109(A):
This is the default spousal support rule. It applies unless a statute requires something different.
Here is the relevant language in Code § 20-109(C):
In suits for divorce, ... if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract.
In other words, § 20-109(A) says spousal support is modifiable if a party petitions for modification, while § 20-109(C) prohibits the court from awarding spousal support at variance with a stipulation or contract entered into by the parties.
The Court of Appeals decision states that § 20-109(C) is a statute modifying 20-109(A). I respectfully disagree. All that § 20-109(C) does is require the court to implement private contracts. I believe § 20-109(C) was ever intended to grant individuals a license to re-write history.
An appropriate example of a statute modifying § 20-109(A) is § 20-110, which terminates support upon remarriage of the support recipient. Section 20-110 places a limit on the duration of support established by § 20-109(A) by imposing a self-executing terminating clause. Code § 20-109(D) also sets a statutory limit on support, based on death or remarriage. The support terminations identified in these statutes are self-executing modifications of spousal support, in that they do not require a court hearing.
Code Section 20-109(C), by comparison, does not modify 20-109(A) at all.
3. An established rule of statutory construction is that – if possible -- all words in a statute should be accorded meaning. Yet, the Court of Appeals ignores the phrase “that may thereafter accrue” in VA Code § 20-109(A).
Code § 20-109(A) says in pertinent part: “[T]he court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue ...”
When the Court of Appeals permits a contingency to trigger a retroactive reduction in spousal support, as happened in Weidlein, then the court is decreasing or terminating the amount of support that accrued in the past. This can only happen if the court fails to abide by the phrase “that may thereafter accrue”. The “thereafter” phrase is prospective, not retrospective.
Furthermore, accepted rules of statutory construction include the Latin phrase, “Inclusio unius est exclusio alterius.” The inclusion of one thing conclusively excludes others of the same type. Applying that standard here, it may be said that specifically restricting a course of action to the future conclusively precludes the right to perform that same conduct to revise events that occurred in the past. Stated differently, if the legislature had intended to authorize courts to “increase, decrease, or terminate the amount or duration of ... support” in the past, they would have said so. The fact that they restricted the power to the future means they excluded the past.
I firmly believe that the Court of Appeals erred in sanctioning a reduction or termination of spousal support in the past based on Code § 20-109(A), especially if you consider that Code Section 20-112 says “[N]o support order may be retroactively modified ...”
The trial court correctly ruled, in my professional opinion, that the husband’s support obligation ended on the date of the trial court ruling and not at some earlier date when the cohabitation occurred.
Before the three-judge panel of the Virginia Court of Appeals issued its ruling, the only way that a property right conferred by statute and actually delivered could be retroactively withdrawn was on jurisdictional, constitutional, or public policy grounds including fraud Apart from those exceptions, alimony actually paid was a vested property right. Not any more! According to Weidlein, even spousal support properly received and spent by the recipient can be divested in the future. Spousal support recipients were placed in the precarious position of potentially having to disgorge money, while support payors had diminished incentive to promptly alert the court when they believed a terminating condition has occurred.
Hopefully, Weidlein will be reversed in accordance with Virginia case law, established principals of statutory construction, and the due process clause of the U.S. Constitution.
December 11, 2015
After the Court of Appeals re-heard Weidlein en banc, and before the opinion, the parties settled. Apparently, they realized at oral argument that the three-judge panel’s ruling was likely to be reversed – and that the trial judge was going to be vindicated. Unfortunately, the settlement deprives Judge Nordlund of a formal affirmation by the appellate court of her well-written opinion.
At the time of divorce, wife made $15.63 an hour. The spouses lived in a fully-mortgaged $770,000 home and had $1.1 million in debt.
ED netted out at $61,000 for wife and negative $361,000 for husband, because he took over the home and assumed all debt. The trial judge said the ED imbalance was okay for husband because the marital home had “more than recouped” its negative equity following the separation; and the appeals court agreed. Husband’s IRA was equally divided.
The most significant aspect of the decision was affirmation of an ample spousal support award of $9,000 a month for fifteen years, based on the trial judge’s assessment of current incomes, need, and circumstances within the “immediate or reasonably foreseeable future”. Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 735, 396 S.E.2d 675, 679, (quoting Young v. Young, 3 Va. App. 80, 81-82, 348 S.E.2d 46, 47 (1986)). Wife helped establish husband’s earning potential, and cashed out rather well.
There are two unusual aspects:
First, although the marriage is ultimately deemed void, during the pendency of the action the putative wife receives $300,000.00 in temporary support and $300,000.00 in attorney fees (out of $500,000.00 claimed) that she is not required to reimburse.
Second, the opinion comes less than 90 days after the historic U.S. Supreme Court decision in Obergefell v. Hodges, establishing a 14th Amendment right to same-sex marriage. It is ironic to me that in the shadow of that monumental expansion of marriage eligibility, the court should write a 30-page opinion explaining why an opposite-sex couple seeking to marry failed to do so.
Everett involves modification of child support between parties who are divorced. They have a property settlement agreement (“PSA”) providing that husband will pay $5,000.00 per month child support to wife. At the time of the trial court hearing the parties’ son is over 18 and attending college while the daughter is still a minor. The PSA says if husband seeks to reduce child support, then wife has a right to claim a share of his business, recover her attorney fees, and claim spousal support.
Husband files a motion to modify child support saying he should pay less because the son is an adult. Wife counters by saying the $5,000.00 a month is a guaranteed amount not subject to modification.
The trial court agrees with wife that the $5,000.00-a-month and son’s support cannot be modified because the court no longer has jurisdiction over his support. However the court allows husband to set a hearing on possible modification of support for the daughter because she is still a minor, and the court still has jurisdiction over support for her. Husband figures he is stuck paying the $5,000.00 per month no matter what happens at the hearing, so he declines to set a hearing. He appeals claiming the trial court erred in locking him into a fixed child support amount.
Wife’s counsel, David D. Masterman, is an accomplished family law practitioner. In my professional opinion, though, he makes two implausible arguments before the Court of Appeals:
1. Wife asserts the $5,000.00 in child support cannot be modified, even though there is no language in the property settlement agreement supporting the proposition that child support is non-modifiable.
2. At the same time that Wife asserts the $5,000.00 in child support cannot be modified she alleges the son’s child support cannot be modified because he is an adult, and concedes the daughter’s child support can be modified because she is a minor.
If the support amount owed for the daughter were reduced by the court, and the $5,000.00 in total child support payable were required to remain the same, then necessarily the son’s child support must be deemed to increase. This result places the trial court in the untenable position of increasing support for a child whose support the court no longer has jurisdiction to modify.
The Court of Appeals begins by noting “The trial court’s reading of the parties PSA is also a question of law which we review de novo.”
The court goes on to say that the Cutshaw opinion, 220 Va. 638, 261 S.E.2d 52 (1979) terminates jurisdiction over custody and child support upon emancipation.
Virginia Code section 20-124.2 (C) extends jurisdiction in cases of financial dependence and disability, but those provisions do not apply here.
Another way to extend jurisdiction over custody and child support is by specific contract language. That language must be something more than simply establishing a support obligation after majority.
To summarize, there are four different timelines for continuation of court jurisdiction in Virginia family law cases after a final order is entered:
1. Parties have 21 days after entry of a final order to request exercise of the “revisory” power of the court pursuant to Supreme Court Rule 1:1.
2. Parties have up until age 18, or age 19 and graduation from high school, for a court may exercise jurisdiction over custody, visitation and child support.
3. Jurisdiction may be extended in cases of financial need or disability. And,
4. Jurisdiction may continue to be invoked by private contract if the language extending jurisdiction is explicit.
No such privately-drafted enabling language exists in the agreement before the court in Everett. Therefore the trial court in Everett no longer had jurisdiction over support for the parties’ son; and the trial court could not modify child support payable for him. [This appears to have been a drafting error by husband’s counsel at the time of negotiation of the PSA. It certainly would have been in husband’s interest to be able to modify support for his son after he started college.]
Next, the appeals court points out that agreements are interpreted in the context of the law as it exists on the date of signing of the agreement. Therefore it may be presumed that the parties in this case were aware of Cutshaw, and the requirement established for specifically granting authority of the court to exercise jurisdiction after a child’s emancipation.
The court references the ruling in Kelley v. Kelley, 248 Vs. 295, 449 S.E.2d 55 (1994). Kelley prohibits language in an agreement that wife will pay back to husband any child support husband is ordered to pay her. Such a provision is void and unenforceable. No agreement to pay less than guideline child support is binding and enforceable if the below-guideline amount is challenged in court.
Shoup v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001) protects the jurisdiction of the court from being revoked by the parties. In other words, a contract cannot deprive the court of its inherent power to address custody, visitation, child support and the general welfare of children.
To summarize, Kelley protects the amount of support, and Shoup protects the jurisdiction of the court to award it. The contingency in the Everett PSA allowing wife, for the first time, to claim a share of husband’s business, recover all attorney fees, and seek spousal support – if husband ever tries to reduce child support – does not violate the proscription of Kelley; it does not have the effect of reimbursing a child support payor for child support owed.
Wife claims attorney fees in Everett, pursuant to the PSA language that she is entitled to “all” her attorney fees if husband ever seeks to reduce child support. The Court of Appeals rules that husband sought to reduce support, and wife’s pursuit of a reaffirmation of the trial court’s decision (locking-in her support entitlement at $5,000.00 a month) is not unreasonable. However, the award to wife is “reasonable” attorney fees as determined by the trial court on remand, not “all” her attorney fees as provided by the PSA, an interesting re-writing of the parties’ private agreement.
Wrapping up the decision, here is what happened: Each side earned a partial victory. On remand, the trial court must determine how much of the child support is attributable to the son, because – as Wife correctly argued on appeal -- that amount cannot be modified. Then the amount attributable to the daughter under 18 can be modified based on husband’s valid argument that jurisdiction over daughter’s support is continuing and he has the right to prove a material change in circumstances.
William’s detective had found Marylynn’s paramour (“Roger”) in Marylynn’s home on nineteen visits over nineteen different consecutive months, and never saw him leave with luggage. Marylynn testified that Roger slept over “four to five” nights a week; participated in cooking, cleaning, grocery shopping, taking out trash, shopping, and vacations; mowed the lawn with his own mower stored in her garage; carried a key to her residence; had ten boxes of personal property in her garage; and kept shoes, clothes, and hygiene items on hand when spending the night. Marylynn did Roger’s laundry, and she testified they shared an exclusive, sexual relationship.
But Marylynn further claimed that Roger lived somewhere else!
The reason William’s proof fell short was Marylynn’s statement that Roger lived somewhere else. Roger’s doing chores, sharing expenses and having a key did not make Marylynn’ home a common residence of the two of them, according to the decision.
Had I deciding this case, I would have over-ruled the trial court. Here’s why:
Imagine three concentric circles. The outer circle is common residence. The middle circle is cohabitation. The innermost circle is habitual cohabitation. According to the opinion, William did not have enough evidence to get into any of the circles. (He would have had to get into the innermost circle to prevail on appeal.)
The Court of Appeals said William did not have enough evidence to establish “common residence,” because William did not show that Marylynn’s residence was Roger’s “primary” residence. In my view, this held William to a higher evidentiary burden than applicable case law required. The Coalson ruling rejected William’s evidence for failing to meet a “primary residence” standard, while the leading case of Pellegrin only set forth a “common residence” standard. Pellegrin v. Pellegrin, 31 Va. App. 753, 525 S.E.2d 611 (2000).
Even if primary residence had been the standard established in Pellegrin, which it was not, I believe William should have been deemed to have met the standard by clear and convincing evidence. Roger’s physical presence on nineteen out of nineteen monthly detective visits, plus Marylynn’s admission that Roger stayed 4-5 nights a week, was, I believe, strong evidence that Marylynn’s home was Roger’s primary residence and overwhelming evidence that Marylynn’s home was a common residence.
The Court of Appeals may have confused primary residence, common residence, and domicile. In the body of the Coalson opinion, the court utilizes the word “primary.” At the end of the sentence containing the word “primary”, footnote 5 references the Pellegrin standard of “common”. However, the words “primary” and “common” are not synonymous; and they are not interchangeable. If Pellegrin established an evidentiary hurdle consisting of “common residence,” then it was unfair to subject William’s evidence to the higher evidentiary hurdle of “primary residence”.
The Court of Appeals might have modified the standard of proof if it had chosen to do so. But this is an unreported opinion. Unreported opinions are not intended to make new law. I do not think that the Court of Appeals, in rendering this opinion, intended to change the burden of proof.
“Residence” in the law is materially different from “domicile”. People can have multiple residences, be they primary, secondary or otherwise; but you can only have one domicile. Pellegrin does not talk about primary residence or domicile; it speaks of common residence.
The Court of Appeals gave three (3) reasons for finding Marylynn and Roger had no shared residence. The reasons are perplexing.
1. Marylynn testified Roger lived somewhere else.
I addressed this already. As I explained, Roger’s having more than one residence would not necessarily have been inconsistent with his sharing a residence with Marylynn. In my experience, wealthy people, people who travel regularly -- like cabin attendants, and people making a conscious effort to protect their paramour’s alimony stream, can have multiple residences.
2. There was no evidence Roger stayed in Marylynn’s home when she was away.
I do not believe this fact, even if proven, would make the existence of a shared residence any more or less likely. If Roger were away from Marylynn’s residence when she was away, then her residence would contain no one. But Roger’s other place had other adults living there. As between Marylynn’s vacant home and Roger’s other place, Roger would have no reason to spend the night in the other abode to protect and safeguard property. But he might be motivated to stay in Marylynn’s residence in her absence just to protect it against burglars, fire, burst water pipes, and the like. He would not necessarily be staying alone at Marylynn’s because it was Roger and Marylynn’s common residence.
3. There was no evidence Roger’s personal items like toiletries were in Marylynn’s residence except when Roger spent the night.
My having two tubes of toothpaste or only one tube is hardly probative of whether a location where I spend the night is my common residence with someone else. Besides, the existence or non-existence of duplicate toiletries is almost impossible to prove.
There are few opinions in which I respectfully disagree with the Virginia Court of Appeals. But this is one of them.
In my professional opinion, the cell phone recording of a colonoscopy by someone asleep on the operating table was illegal under Virginia law, and should not have been considered by the jury.
The trial court admitted the recording pursuant to this statute:
“It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication ...” Virginia Code §19.2-62(B)(2). [Emphasis added.]
My contention is that the patient was not a “party” to the conversation among medical staff. He could not possibly have been a party when he was under anesthesia and oblivious to everything going on around him.
If the Virginia legislature had intended the mere physical presence of a person doing the recording to be sufficient to legitimize their recorded evidence, they would have said so. Here, by utilizing the word “party,” the legislature clearly and unambiguously required more than simply being in the same room. It required active involvement, or -- at the very least -- the ability to participate in the dialogue being recorded.
Courts are required to adopt the usual and customary meaning of words in a statute. Applying that rule of construction here, you cannot be a party to something if you are oblivious to it and, physically and mentally, totally incapable of participating.
I firmly believe the jury award should be thrown out. The trial court committed reversible error by admitting into evidence a cell phone recording made a patient who was unconscious at the time the recording was made.
Huck v. Huck (Record No. 1604-14-1) involves a husband represented himself on an appeal. Wife filed nothing and the GAL filed only a letter and a copy of his report. Husband still lost despite the lack of opposition. Perfecting an appeal can be complicated; in my opinion, Huck’s biggest enemy was the rules.
Husband’s issues were a violation of due process, a factual error, and improper weighing of the evidence. However, the appeals judges never got past his procedural mistakes. Unfortunately even if everything had been done right procedurally, my view is that Huck would still likely have lost. His issues were not ones where you ever have much chance of winning on appeal.
Huck is a six-paged opinion, more pages than I expected considering his failure to present any of his issues to the trial judge.
It is a basic rule: If you do not give the trial court a chance to correct mistakes, you cannot complain on appeal. There are four (4) ways to give the trial judge an opportunity to make things right: motion to strike, closing argument, motion to set aside the verdict, and motion to reconsider. Huck did none of them. He violated other rules by not presenting a statement of facts and by failing to cite legal authorities. (You cannot simply declare something is wrong; you have to find a statute, constitution, or Virginia appeals case that backs you up.)
Huck demonstrated a common misconception about the appeals process. You do not get to do your case over. You have to show what was done before, how you timely complained, how it was not remedied despite your complaint, and why it is wrong. Even if you establish all that, mistakes by trial judges have to make a difference. If the case could come out the same way despite correction of everything you are arguing on appeal, then you fall within the wide latitude given judges to weigh the facts, and you still lose.
Appellant wife, Ms. Bracaloni, also washed out on appeal, despite her substantial effort. Bracaloni v. Edge, (Record No. 1722-14-2). She entered into a consent custody agreement on the eve of trial. But she quickly changed her mind about what she had agreed to, alleging she had been “pressured” to sign. Ms. Bracaloni apparently terminated the lawyer who had represented her at the time she signed that agreement. And the judge entered a “final order” ratifying the contract.
Ms. Bracaloni’s second lawyer could not come to court within 21 days of entry of that final order, so she wrote two (2) letters that the judge treated as a motion to reconsider. Without lawyer number two in the courtroom to help her, Ms. Bracaloni had to represent herself at the hearing. You know how that goes: The judge declined orally to set aside the consent agreement.
Next, the 21-day revisory power of the court ran out, and the final order approving the agreement became non-modifiable by the trial court. [I wonder if the second lawyer told Mrs. Bracaloni what trouble she would face if the “final” order was not modified, vacated or suspended within 21 days. She might have a malpractice claim if she formally retained him before her time expired, and she then blew past her deadline without being warned.]
Ms. Bracaloni filed a statement of objections after the 21 days expired. The judge entered his second final order – also after the 21 days had expired -- denying those objections. The second final order was not appealed.
With lawyer number three, Ms. Bracaloni appealed the first final order. She explained in her brief that the trial judge got notice of the errors being appealed when she placed them in her statement of objections.
Do you see the problem?
The trial judge never had a chance to remedy the alleged errors in the record, because he did not get notice of those errors until more than 21 days after entry of the first final order – which is the order being appealed! In other words, the first final order was already locked in stone by the time the statement of objections was filed.
If lawyer number three had appealed the second final order instead of the first one, then the requirement of providing notice and an opportunity to correct mistakes would have been satisfied, because the statement of objections was filed before the second final order was entered. [I guess lawyer number three did not realize he appealed the wrong order. I wonder if Ms. Bracaloni might have a malpractice claim against lawyer number three, for stating in his appellate brief that the only chance given the trial judge to rectify his errors came more than 21 days after entry of the order being appealed.]
After being battered (figuratively) at every stage of the judicial process, Ms. Bracaloni was required to pay attorney fees of the paternal grandparents of her children, in addition to her own three lawyers. Thus, even when they hire counsel – as I always recommend litigants do – people can have a tough time.
II. Carrithers v. Harrah, Record No. 0601-13-1 (September 2, 2014), involves the differing appealability of orders that are void ab initio or merely voidable.
III. Oley v. Branch, Record No. 1857-13-2, (September 9, 2014) determines whether a personal injury award with no income or lost-wages component, a Pell Grant, and free housing from mom constitute income for purposes of child support.
I. Linton examines what assets may be tapped to satisfy an equitable distribution award (“ED”) and a monetary award, in a divorce case.
There are two kinds of property, non-marital and marital. Non-marital is owned before the marriage, or acquired by gift or inheritance. It is not divisible on divorce, and remains with whomever owns it.
Linton involves marital property. Marital property is all other assets at time of parties’ last separation – everything accrued during the marriage by whatever means and however titled.
There are two kinds of marital property, jointly-owned and separately-owned. Both kinds may be the subject of an equitable distribution award, pursuant to VA Code Section 20-107.3 (C). Equitable distribution may be implemented by a court ordering a party to effectuate the sale or transfer or division of an asset, or by entry of a monetary award. A monetary award is a type of equitable distribution award; it is a judgment in favor of one party and against the other for some dollar amount.
Linton involved satisfaction of wife’s monetary obligation to husband under a property settlement agreement (“PSA”). The PSA left open the means of payment. In theory, wife had two choices: She could write husband a check, or she could transfer property to him with the same value as the award. (This blogger believes husband’s counsel may have committed a drafting error in failing to close this loophole: He failed to require in the agreement that wife pay cash, and then sealed his fate by conceding in court that his entitlement was a monetary award.)
Wife smartly chose to convey separate marital property -- a limited partnership interest -- which was property acquired during the marriage but titled in her name only. Husband, of course, objected to receiving a minority interest in a limited partnership. But, alas, the proverbial cat was already out of the bag.
The trial court (the Honorable Jeffrey W. Parker) authorized the property transfer pursuant to Code Section 20-107.3 (D), and the Court of Appeals affirmed.
The appellate court said that 20-107.3 (C) and (D) have to be read in harmony (in pari materia); that is to say, in a manner that is consistent with their plain meaning and avoids an absurd result. This means ED can apply to any marital property (paragraph C), but a monetary award has to be paid with cash or marital property unless the court approves a conveyance of separate property at payor’s request, in satisfaction of the award (paragraph D). Wife sought and received court approval here, so the trial court ED award is affirmed. Since husband’s argument is totally without merit (in other words, supported by neither statutes nor caselaw), wife’s request for attorney fees and costs is granted.
Ironically, husband could easily have gotten what he wanted if he had only locked it up at an earlier stage. He might have included in the PSA a sentence that wife’s transfer would be in cash or pursuant to 20-107.3 (C) [which prohibited the transfer of separate property in satisfaction of ED]. Had either of those payment qualifiers appeared in the agreement, husband would have been a winner; he would have saved the money he wasted on his lawyer and wife’s lawyer in the appeal.
Carrithers’ case in the Court of Appeals seems so misguided and lacking in merit that it is a wonder the appeals court did not sanction his counsel outright for even filing the matter.
Here is what happened:
After Carrithers pays no court-ordered child support for thirteen years, mom obtains a default judgment. Carrithers challenges the default, saying he was not properly served in connection with its entry. The trial enters an order that there was nothing wrong with service. A few days later, a second order awards attorney fees.
Carrithers appeals both orders. His appeal is timely as to the attorney fees but late as to the child support. The Court of Appeals says it cannot touch the child support default because dad missed the deadline for filing his appeal. The goes on to say it cannot review the attorney fee award because the only challenge to the fee award was an assertion that the default order was void, and that order never got properly appealed. Both orders stand.
Now, one can imagine Carrithers might feel “victimized” by mom’s $60,000 default judgment that he claims was never correctly served and that his lawyer has yet to challenge on the merits for the first time in the Court of Appeals. He is probably fuming. But what he does next is beyond reason. He appeals again, on the theory that a void order should be capable of being declared unenforceable at any time, and he never got his day in the appellate court.
This a big mistake, obviously. Carrithers already appealed the same issue on the same facts involving the same parties, and lost. You only get one bite of the apple.
There are two kinds of void orders, those that might have been valid but for some glitch in the facts or the law (these are called voidable), and those that could never in a million years be valid (void ab initio, or from the outset). A voidable order might one in which – as Carrithers alleges in his case -- a party never got notice and an opportunity to defend. A void order might be one signed by someone who was not a judge, or not signed at all.
Carrithers’ conduct in appealing the same thing twice did not correspond to either kind of order, and made no logical sense. No surprise that he lost the second appeal, and got sanctioned a second time with attorney fees.
Here’s the rule about void and potentially void orders: Both kinds of orders can be appealed. If you are appealing from an order that might be valid (depending on whether you were properly served with process, for example), you have to appeal within the deadline. Carrithers was late appealing this “voidable” kind of order. After the trial court order becomes final because the appeal was late, it makes no difference any more if service was proper or not. The judgment is final. You cannot appeal again with a new lawyer or with arguments you forgot to make before – or with any arguments at all. That is the meaning of “final”.
If the order, on the other hand, can never be valid, you still only get one appeal. But the difference is that you are not held to the deadline. You could appeal five years after the 30-day appeals deadline ran out, and the Court of Appeals would still listen to you. But even in this rare case, you cannot keep appealing and appealing. In every case seeking to render an order void, there’s going to be a losing party. If we did not have the rule about finality of judgments (which lawyers call res judicata), losers would be appealing forever. They would never give up. Our courts would be so clogged with re-appeals and re-hearings that important work would no longer be done.
There is an important lesson here. When the facts don’t support you, the law does not support you, and the position you are taking makes no logical or practical sense, you are likely to not only be unsuccessful but also held responsible for attorney fees on the other side.
The case is especially interesting for its partial dissent by Judge Rosemarie Annunziata.
The appellate majority held in Russell that if a divorce complaint is dismissed, then a spousal support claim goes with it. Judge Annunziata wrote that it depends if jurisdictional grounds existed to support the complaint at the time it was filed.
I have an analogy to describe what happened to the unfortunate Mrs. Russell.
Imagine an electric freight train on a pair of tracks. You have an overhead wire as the source of power. We will call one rail subject matter jurisdiction, and the other personal jurisdiction. You need both rails to operate the train. The overhead line runs the engine. Without electricity, the engine will not operate and the train cannot move forward. The power line is the set of facts qualifying you for divorce.
These three elements (two rails and electricity) are necessary before a court may award anything in a divorce case -- whether it be the divorce itself, spousal support or anything else. The train in my analogy is the pleading we call the complaint.
Here’s how it works: If a trial court dismisses the complaint, then there is no train on the tracks and you cannot obtain any relief. This is what happened in Russell.
If you cannot prove a separation for the requisite period of time before the complaint is filed, then -- according to my analogy -- you may have a train on two rails, but you lack overhead power. The case will be dismissed and you cannot get support. That is what happened in Harrell. Harrell v. Harrell, 272 Va. 652, at 657, 636 S.E.2d 391, at 394 (2006).
My analogy allows the majority and the dissent in Russell to both appear to be making correct statements of the law, although the majority – in my opinion – is more correct based on the facts, as I will explain.
The majority is essentially right in ruling that if your complaint is dismissed, you have no train on the tracks to deliver anything.
Judge Annunziata is basically right as well: In the context of my analogy, various claims for relief are like products in different cars of a freight train, and you should be able to lose one without necessarily sacrificing the others. (We all know you can detach one car of a freight train, re-connect the remaining cars, and still pull the train to your destination.)
If the majority and dissent are both properly reasoned with apposite citations, how did they end up on opposite sides of Russell? My view is that it all came down to the circuit court’s choice of words. Words made the difference.
When the trial judge, in this case the Honorable Jeffrey W. Parker, presiding judge of the Circuit Court of Fauquier County, ruled that the wife’s complaint was dismissed, his ruling removed wife’s proverbial freight train from the rails. She could no longer ask for support; she no longer had a vehicle to transport her claims. Judge Parker granted spousal support to wife pursuant to the theory that even without all counts of her complaint surviving, her support claim remained viable. The court of appeals majority disagreed and reversed the award.
What comes next is this blogger's speculation:
Had Judge Parker stricken only the paragraph of the complaint asking for a divorce, his ruling might have been the equivalent of detaching just the “divorce” box car from the wife’s freight train. Stated differently, if the trial court had not used the word ”complaint” in its dismissal language, but instead had stated it was dismissing the prayer for divorce; then the complaint might have remained filed and active, wife’s metaphorical train might have kept the three elements it needed to run, and wife might still be able to claim support.
A different choice of words by the trial judge might have allowed wife to retain her support in the court of appeals.
II. Weedon v. Weedon, (No. 1378-13-2, May 6, 2014), Unpublished
III. Cleary v. Cleary, (No. 1343-13-4, May 13, 2014), Published
These Virginia Court of Appeals cases clarify pre-marital contributions to another spouse’s separate property (Anthony), the 21-day limit on equitable distribution (“ED”) appeals (Weedon), [nonexistent] appellate jurisdiction over a show-cause denial (Weedon), and the mandatory content of time-delimited spousal support orders (Cleary).
When a multi-part statute has leading sections that specifically apply before marriage and after marriage, [20-107.3(A)(1) and (A)(2)]; and a subsequent statutory section that is silent about when it applies; then does the later section [20-107.3(A)(3)(g) deal with before marriage, after marriage, or both? Which period or periods of time do you think should apply?
Anthony answers this question logically, and convincingly. Section 20-107.3(A)(3)(g) must apply before and after marriage. No statutory wording justifies disregarding traced contributions to another party’s separate property before the marriage, as the Anthony wife contends.
The Anthony husband also misconstrues 20-107.3(A)(3)(g). He claims all he has to do to recover a $14,000.00 pre-marital contribution to wife’s house is prove he paid the money. That is not enough, obviously.
The statute says:
“When the separate property of one party is commingled into the
separate property of the other party, or the separate property of
each party is commingled into newly acquired property, to the
extent the contributed property is retraceable by a preponderance
of the evidence and was not a gift, each party shall be reimbursed
the value of the contributed property in any award made pursuant
to this section.”
Code § 20-107.3(A)(3)(g) (emphasis added).
Wife did not contend husband’s money was a gift. But husband was entitled to get back only the appreciation or depreciation of the contributed property, not the contributed property itself. Think of it this way: The $14,000.00 was an investment, the value of which might go up or down. In fact, the house burned down after the marriage, and nobody introduced evidence of how much wife received in insurance proceeds.
A home reduced to ashes is almost definitely worth a different amount at ED than when husband contributed money. This is not rocket science. If the Virginia legislature had intended money-in to equal money-out, they would have said each party shall be reimbursed the contributed property instead of the value of the contributed property. Read the statute!
Weedon appears to be an equally straightforward failure to understand a plain, unambiguous statute – this time regarding the appeal of a show cause outcome.
At ED, marital real estate is awarded to wife. Husband refuses to sign a deed effectuating the property transfer. Wife files a rule to show cause, and at the hearing the trial court declines to hold husband in contempt.
Wife appeals, claiming the judgment awarded her property and husband wouldn’t convey it. It looks like a no-brainer to win this appeal, right? Not so fast!
The statute, Code Section 19.2-318, says that:
“[f]rom a judgment for any civil contempt of court an appeal may be taken to the Court of Appeals.” (Emphasis added.)
Wife failed to obtain a finding of contempt. The time to appeal the ED award expired. And the real property is still in both names.
The court of appeals fits the denial of relief squarely within the Virginia Supreme Court ruling in Jenkins:
In Jenkins, the Supreme Court held that, “[i]f the General Assembly intended to create appellate jurisdiction to review a judgment refusing to hold a person in civil contempt, it would have used a phrase [in Code § 19.2-318] such as ‘judgment concerning’ or ‘judgment regarding’ any civil contempt.” Id. at 47-48, 704 S.E.2d at 583 (emphasis added). The Supreme Court “conclude[d] that Code § 19.2-318 does not provide appellate jurisdiction for either this Court or the Court of Appeals to review the judgment of the circuit court dismissing the rule to show cause and refusing to hold [a party] in civil contempt of court.” Id. at 48, 704 S.E.2d at 583.
This blogger agrees that a “judgment for any civil contempt” means no appeal absent a contempt finding. But despite Jenkins and Weedon being correct decisions, the Code section that they interpret raises a major concern:
What if the trial judge erred, and husband really is in contempt?
If the trial judge erred, wife is in an impossible situation. She is deprived of the benefit of an ED award favorable to her, and she cannot appeal. Until she dies or enters into a sales contract, no material change in circumstances would appear to support a renewed show cause petition.
While this real property is languishing as a tenancy in common with a former spouse, it is at least in theory vulnerable to foreclosure by wife’s creditors or husband’s, and wife is unfairly deprived of the tenancy by the entireties protection that would be available to her with a new spouse.
Wife might not have the financial means to pay husband the $84,000.00 cash award that he received in another part of the ED judgment, unless and until she can refinance the joint real estate. No lender is likely to loan her money on property titled with an ex-spouse, and nothing motivates the ex-spouse to sign loan documents.
Furthermore, even if wife dies or enters into a sales contract, husband may argue res judicata. He may assert that his failure to sign the exact same deed has already been judicially determined not to be contempt.
The Virginia legislature should amend Code § 19.2-318 so that it refers to a ‘judgment concerning’ or ‘judgment regarding’ any civil contempt.” This would close a loophole that can only benefit a vengeful or recalcitrant contemnor.
Wife’s claim for attorney fees failed as well, making her a particularly unfortunate double-loser. The court of appeals ruled that dismissal of the show cause was not plainly wrong or without evidence to support it. If evidence exists that husband’s conduct was anything but contempt, it is not clear from the appellate opinion what that evidence might be.
Cleary is about spousal support for a period of years, inadequately justified in the trial judge’s order.
There are two categories of spousal support orders, according to Virginia Code section 20-107.1(F).
The first type of support order is one granting, reserving or denying support. This sort of order must have written findings identifying the 20-107.1(E) factors that support the award.
The second type of support order is “periodic support for a defined duration”. For this kind of award,
“[f]indings shall identify the basis for the nature, amount and duration of the award and, if appropriate, a specification of the events and circumstances reasonably contemplated by the court which support the award.”
The trial judge’s divorce judgment is reversed for the reason that “neither the final decree nor any ruling from the bench connected the factual findings to the limited duration of the award.”
Periodic support, such as rehabilitative alimony, is premised on the idea that the support recipient may be able to get back on their financial feet after the marriage, if they receive financial assistance for a limited period of time. The reason the statute requires more of an explanation in this circumstance is that when the matter returns to court, it is necessary to determine whether the support recipient has become self-sufficient or not.
Unless support of a defined duration has the additional written explanation, the award ignores the second sentence of Code section 20-107.1(F). Interpretations that give meaning to all provisions of a statute are always preferred over a construction that renders certain words or phrases meaningless.
The premarital agreement provided wife one-half the net appreciation in husbands pre-marital separate businesses at the time of divorce. Wife’s evidence consisted of an expert witness who read asset values of current business financial statements into the record. Wife’s lawyer never asked the expert about the net worth of the businesses. The trial court’s monetary award to wife based exclusively on asset totals was properly reversed on appeal.
It is fairly well-known that the net value of (or equity in) a business is not the same as its fair market value; instead, it is assets minus liabilities. For example, a business that could be sold for a million dollars might have a net worth of zero if the owner had to take out a million dollar loan to acquire it. Wife’s grossly deficient evidence of change in net worth was only one of her problems.
Wife’s second major problem was her failure to offer evidence that the pre-marital agreement entitled her to utilize a particular business valuation method. (The court of appeals points out that there are three regularly accepted formulas for business valuation; income capitalization, the market-based approach and the asset-based model.) Wife never invoked any of these formulas. Thus, she failed to meet her burden concerning both elements that she was responsible for proving.
Finally the appeals court said that attorney fees awarded to wife needed to be recalculated. Since wife did not establish her right to any appreciation in husbands separate business property, she could not claim attorney fees under the pre-marital agreement. Wife was entitled to some attorney fees, but it was impossible to tell what exactly the fee award in her favor was for. So that part of the case went back to the trial judge.
It is interesting that even though wife had competent counsel, she would fail to complete either prerequisite to receiving a share of net appreciation of husband’s businesses. Further, a competent judge’s equitable distribution award was partially reversed. This goes to show that even with good lawyers and judges, it’s hard to get everything right.
Mayer v. Mayer, January 14, 2014
A party may still petition for continued child support after a child turns 19 or receives a high school diploma, if the child is severely mentally or physically disabled, and support is still being paid. Here, daughter had completed high school but father did not know it, and he was still paying child support when the mother filed her petition. A trial court cannot award attorney fees without a factual predicate.
COMMENT: The facts are narrow, limiting the value of this opinion as precedent. It is unlikely that many people paying child support would not know that their child graduated from high school or turned 19, and would still be paying child support after one of those events -- at the moment when the child support recipient filed to extend a child support order. Most parents know when their child graduates from high school or turns 19.
Griffin v. Griffin , January 28, 2014
When a retirement plan is not covered by ERISA, [because it is exempted by 29 U.S.C. § 1055 (C)], the retirement benefits had been assigned in a property settlement agreement (PSA) incorporated into a final judgment, the plan participant changed the beneficiary to his new wife in violation of the PSA and final judgment, and the plan participant died; a surviving spouse may still obtain a QDRO ordering plan payments to her children.
J. Huff issued a 12-paged dissent asserting that the plan was covered by ERISA. Therefore, the dissent argued, federal law preempted state court jurisdiction, and the circuit court had correctly refused to enter a QDRO.
To illustrate the key words and phrases that I index, here are two from my collection -- child support and clerical error:
Related key words:
Relevance of payor's spouse in a child support matters:
Orlandi v. Orlandi, 473 S.E.2d 716, 23 Va.App. 21, 29 (Va. App., 1996)
Here are the general rules for paying support pursuant to a court order: 1. Overpayments of support, and payments in advance never entitle you to a credit against future support that you owe. 2. Payments to third parties and payments in kind (gold bricks, for example) rarely are allowed to reduce the dollar amount you owe directly in support. In other words, you do not get credit for doing those things. Getting credit for such conduct is complicated, and better not attempted at all. 3. Underpayments of support can always be supplemented. However, you should never underpay without a valid reason, since failure to pay support is often contempt of court and may land you in jail. 4. You may never reduce or under-pay support by off-setting anything your ex owes you (like rent) except for child support; and you may ONLY adjust for child support owed to you if the adjustment has been authorized by written court order (as we expect yours will be). And finally, 5. Support can rarely be reduced or modified by any agreement you make directly with your ex-spouse. The times when you are allowed to do this are so exceptional that you are unlikely to ever qualify. It is safer not to change your support payments until after going to court and obtaining a modified order.
+++ [W]e have consistently held: "[A] former spouse must make payments according to the court’s decree; a spouse’s delay in pursuing enforcement, or acquiescence by accepting a lesser amount than the court award, or an agreement to accept a lesser sum than the award, will not relieve the obligor nor will it prevent accumulation of an arrearage." Schmidt, 6 Va. App. at 504, 370 S.E.2d at 313 (citing Richardson v. Moore, 217 Va. 422, 229 S.E.2d 864 (1976)). Virostek, 20 March 2012 Record No. 1546-11-4
+++ CS cannot be non-conforming unless there was a CS award. Junes, 43 Va App 9 Credit for non-conforming payment is an exception to statutory limitation on retroactive modification of past due CS. Gallagher, 35 Va App 470, 476. CS deviation requires written findings. Mayers, 15 Va App 587, 592. 20-1081 (B) CHILD CARE COST including DAY CARE. are mandatory inclusions in CS formula. 20-108.2(F) But failure to adequately prove the expense allows court to omit it. Bowers, 4 Va App 610, 617.
++++++++ PRIVATE SCHOOL AND COLLEGE: "Decisions concerning child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence." Smith v. Smith, 18 Va.App. 427, 433, 444 S.E.2d 269, 274 (1994). Joynes contends that the trial court lacked statutory authority to order payments of child support for educational expenses. However, Code § 20-108.1(B) clearly states that the presumptive child support amount may be rebutted. Such a finding shall be determined by considering several factors "affecting the obligation, the ability of each party to provide child support, and the best interests of the child." Code § 20-108.1(B). One of these factors is "[d]irect payments ordered by the court for .. education expenses, or other court-ordered direct payments for the benefit of the child . ." Code § 20-108.1(B)(6).
We have applied this language in finding that "a parent may be required to pay for private educational expenses, even though such expenses exceed the guidelines, when there is a demonstrated need for the child to attend private school and the parent has the ability to pay." Ragsdale v. Ragsdale, 30 Va.App. 283, 295, 516 S.E.2d 698, 704 (1999) (citing Solomond v. Ball, 22 Va.App. 385, 391, 470 S.E.2d 157, 160 (1996)). In making this determination, the trial court must consider "factors such as the availability of satisfactory public schools, the child's attendance at private school prior to the separation and divorce, the child's special emotional or physical needs, religious training, and family tradition." Solomond , 22 Va. App. at 391, 470 S.E.2d at 160. Joynes v. Payne, 35 Va. App. 386, 407, 545 S.E.2d 561 , 571 (Va. App., 2001)
+++ SPOUSAL SUPPORT APPELLATE REVIEW When determining a spousal support award, the circuit court “must consider all the factors enumerated in Code § 20-107.1(E),” Miller v. Cox, 44 Va. App. 674, 679, 607 S.E.2d 126, 128 (2005), and set forth “findings or conclusions identifying the [Code § 20-107.1(E)] factors . . . that support the spousal support award,” Robinson v. Robinson, 50 Va. App. 189, 196, 648 S.E.2d 314, 317 (2007). When the record demonstrates, as it does here, that the trial court has duly considered the Code § 20-107.1(E) factors, “its determination ‘will not be disturbed except for a clear abuse of discretion.’” Brooks v. Brooks, 27 Va. App. 314, 317, 498 S.E.2d 461, 463 (1998) (quoting Dodge v. Dodge, 2 Va. App. 238, 246, 343 S.E.2d 363, 367 (1986)). See also: support credit non-conforming child support variation modification factors UIFSA CS cannot be non-conforming unless there was a CS award. Jones v. Davis, 43 Va. App. 9, 595 S.E.2d 501 (Va. App., 2004) Credit for non-conforming payment is an exception to statutory limitation on retroactive modification of past due CS. Gallagher, 35 Va App 470, 476. CS deviation requires written findings. Mayers v. Mayers, 425 S.E.2d 808, 15 Va.App. 587 (Va. App., 1993). 20-108.1 (B) CHILD CARE COST including DAY CARE. are mandatory inclusions in CS formula. 20-108.2(F). But failure to adequately prove the expense allows the court to omit it. Bowers v. Bowers, 359 S.E.2d 546, 4 Va.App. 610 (Va. App., 1987).
+++ “[T]here shall be a rebuttable presumption in any judicial or administrative proceeding for child support . . . that the amount of the award which would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded.” Code § 20-108.1(B). “[D]ecisions concerning child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence.” Barnhill v. Brooks, 15 Va. App. 696, 699, 427 S.E.2d 209, 211 (1993) (citing Young v. Young, 3 Va. App. 80, 81, 348 S.E.2d 46, 47 (1986)). “[S]upport must be based upon ‘circumstances in existence at the time of the award’ and not upon speculation or conjecture.” Brooks v. Rogers, 18 Va. App. 585, 592, 445 S.E.2d 725, 729 (1994) (quoting Payne v. Payne, 5 Va. App. 359, 363, 363 S.E.2d 428, 430 (1987)). The decision whether to deviate from the child support guidelines is within the discretion of the trial court. See Rinaldi v. Dumsick, 32 Va. App. 330, 337, 528 S.E.2d 134, 138 (2000).
+++ UIFSA 2008 Sec 211: Only originating state can modify CS. Continuing exclusive jurisdiction. (All states ratified UIFSA, but not all ratified Sec 211.)
+++ CHILD SUPPORT CREDIT for NON-CONFORMING PAYMENTS Child support payments required under a valid court order become vested as they accrue, and the court is without authority to make any change as to past due installments. Generally, the terms of a support decree must be strictly complied with and payments made when due to the designated payee in accordance with the terms of the decree. When changed circumstances dictate a modification of a support decree, the appropriate remedy is for the party to petition the court to modify the decree. The party or parties may not unilaterally or bilaterally vary its terms. However, although a court may not retroactively modify a child support obligation, allowing a payor spouse credit for non-conforming support payments, in the limited situations where permitted, is not a modification of the support order. A court may, when equitable and under limited circumstances, allow a party credit for non-conforming support payments, provided that the non-conforming payment substantially satisfies the purpose and function of the support award and to do so does not vary the support award. Commonwealth v. Skeens, 18 Va. App. 154, 158, 442 S.E.2d 432, 434-35 (1994) (emphasis added) (citations omitted); see also Jones v. Davis, 43 Va. App. 9, 13-14, 595 S.E.2d 501, 503 (2004). “‘Typically, two conditions must exist before credits will be given for non-conforming payments: (1) an agreement by the parties which modifies the terms or method of payment; and (2) no adverse effect on the support award.’” Gallagher v. Gallagher, 35 Va. App. 470, 476, 546 S.E.2d 222, 225 (2001) (en banc) (quoting Wilderman v. Wilderman, 25 Va. App. 500, 506, 489 S.E.2d 701, 705 (1997)). If these conditions are not met, “‘payments made by an obligated spouse over and above court-ordered monthly support are considered gifts or gratuities.’” Buxbaum v. Buxbaum, 20 Va. App. 181, 186, 455 S.E.2d 752, 755 (1995) (quoting Sanford v. Sanford, 19 Va. App. 241, 248, 450 S.E.2d 185, 190 (1994)). A further limited exception exists, inapplicable here, where the custodial parent has agreed to relinquish custody on a permanent basis to the other parent. Acree v. Acree, 2 Va. App. 151, 157, 342 S.E.2d 68, 71 (1986).
In Gallagher, we refined our prior cases, holding that “to the extent our case law may be interpreted to hold that payments to ‘third party vendors’ may constitute non-conforming child support payments for which the payor spouse is entitled to receive credit . . . we expressly reject such an interpretation.” 35 Va. App. at 479, 546 S.E.2d at 226. Examples of such “third party vendors” include items such as “day care, doctor visits [and] food.” Id. at 479 n.1, 546 S.E.2d at 226 n.1. Absent an agreement between mother and father, payments made by father to a third party - 19 - vendor, in this instance a school, are considered gifts or gratuities and may not be credited toward father’s child support obligation. Zedan v. Westheim, Va App 2012
+++ PRESUMPTIVE GUIDELINE AMOUNT IS CORRECT: Code § 20-108.1(B) provides in part: In any proceeding on the issue of determining child support under this title, . . . the court shall consider all evidence presented relevant to any issues joined in that proceeding. The court’s decision in any such proceeding shall be rendered upon the evidence relevant to each individual case. However, there shall be a rebuttable presumption in any judicial or administrative proceeding for child support, including cases involving split custody or shared custody, that the amount of the award that would result from the application of the guidelines set out in § 20-108.2 is the correct amount of child support to be awarded. “Decisions concerning [child] support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence.” Calvert v. Calvert, 18 Va. App. 781, 784, 447 S.E.2d 875, 876 (1994).
The Virginia Supreme Court has “consistently held that the statutory authority of [Code § 8.01-428(B)] should be narrowly construed and applied.” Morgan v. Russrand Triangle Assocs., Inc., 270 Va. 21, 25, 613 S.E.2d 589, 591 (2005). Thus, “‘scrivener’s or similar errors in the record, which are demonstrably contradicted by all other documents, are clerical mistakes.’ Clerical errors cause the court’s record to fail to ‘speak the truth.’” State Farm Mut. Auto. Ins. Co. v. Remley, 270 Va. 209, 221, 618 S.E.2d 316, 322 (2005) (quoting Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283, 568 S.E.2d 671, 673 (2002)).
“‘Examples of clerical errors include a typographical error made by a court reporter while transcribing a court proceeding, or an unintended error in the drafting of a divorce decree.’” Morgan 270 Va. at 25-26, 613 S.E.2d at 591(quoting Wellmore, 264 Va. at 283, 568 S.E.2d at 673).
+++ Code § 8.01-428(B) allows for a trial court to correct clerical mistakes.
“Scrivener’s or similar errors in the record, which are demonstrably contradicted by all other documents, are clerical mistakes.” Zhou v. Zhou, 38 Va. App. 126, 133, 562 S.E.2d 336, 339 (2002). “Scrivener’s errors tend to occur singularly.” Westgate at Williamsburg Condo. Ass’n, Inc. v. Philip Richardson Co., Inc., 270 Va. 566, 576, 621 S.E.2d 114, 119 (2005).
In Dorn v. Dorn, 222 Va. 288, 279 S.E.2d 393 (1981), the Supreme Court of Virginia held that an attorney’s error in drafting the final decree of divorce was a scrivener’s error. In Dorn, the attorney wrote that father’s child support obligation for each of the two children was $100 bi-weekly, as opposed to $100 per month. Id. at 290, 279 S.E.2d at 394. Father had paid the support as $200 per month, or $100 per month for each child, for several years. Id. The attorney who drafted the document explained that he changed “per month” to “bi-weekly” to ensure that payments were made every other week, but he did not intend to change the amount of support. Id.
Likewise, in this case, wife’s attorney erroneously referred to Code § 20-107.1, instead of Code § 20-107.3, in the prayer for relief in the cross-bill. The trial court noted that wife asked the trial court to classify and value the parties’ real and personal property and also requested temporary and permanent spousal support. To adopt husband’s argument that she was referring to her request for spousal support by citing to Code § 20-107.1 would mean that she would have been asking for spousal support in three different ways. The trial court concluded that this was “nonsensical.”
Naseer is about bigamy. Wife concealed that she was married to someone else when marrying Moghal. She may or may not have genuinely believed she was divorced when her spouse said “I divorce you!” three times. In any event, she never mentioned the incantation to Moghal, and it was insufficient to end her marriage under Virginia law.
While the trial court considered whether Naseer was married to Moghal or not, it awarded (and he paid) $27,000 in temporary spousal support. Later, the trial court ruled Naseer had committed bigamy when she attempted to marry Moghal while married to someone else. The court annulled the putative marriage to Moghal as void ab intitio, and ordered Naseer to pay Moghal back the $27,000 she had received from him.
The Court of Appeals declared that temporary support is provisional; it can always be reversed. The same is not true of support pursuant to a final order. Also, a judgment of annulment at trial is always interlocutory if there is an issue of support repayment still pending.
Sewell involves a husband seeking to reduce spousal support. After a 27-year marriage, the parties had averaged Sewell’s last three years of earnings in calculating alimony, because his income fluctuated so widely. Spousal support was $9,000 a month, subject to modification upon proof of a material change in circumstances.
In the year following his divorce, husband voluntarily switched to a lower-paying job for reasons that might have justified the job change, had he corroborated them, but his own testimony was his only evidence. It was not enough to lift his conduct out of voluntary impoverishment or neglect. Husband failed to meet his burden of proof that lower-paid employment was reasonable, and that it was fair of him to force his ex-wife to gamble that her alimony might go up or down. The trial court found no material change in circumstances.
The Court of Appeals agreed, saying that there is no hard and fast rule about a material change of circumstances affecting spousal support. The appeals court was not going to second-guess judicial discretion of the trial judge. Furthermore, the burden of proof is no different when attempting to modify support set by consent agreement than it is when modifying support imposed following an adversary proceeding.
Husband made four important mistakes:
(1) He should never have averaged his most recent three years of income to determine spousal support. He should have used only the most recent 12 months. If you do three-year averaging to set support, then you may have present three years of new evidence to modify support. That would not have occurred to me, and I am sure it surprised husband. When Sewell petitioned to lower his support, it had only been one year since the divorce. The court had insufficient data to find a material change!
(2) Sewell changed to a lower paying job of his own free will. When income dropped even further, he expected ex-wife to share the pain based on his word, unsupported by documents or corroborating testimony. He failed to prove the necessity that he take a lower-paying job.
(3) According to the appeals decision, Sewell understated income and failed to update discovery responses when true (significantly higher) income figures became available. This muddled the issue of earnings, blindsided the spouse at trial and annoyed the court. If you violate court rules (or pepper your evidence with half-truths, implausible omissions, or outright falsehoods), your credibility may suffer.
(4) Husband should not have encouraged the Court of Appeals to speculate that his past twelve months of income would continue over the coming two years. Everyone knew he had up-and-down income, including him. And the next two years of figures are not available yet. If you recommend a formula that cannot be used because two-thirds of the required data is missing, and the court adopts the recommendation, you may have doomed your case.
At the conclusion of the Sewell opinion, the court declares that earnings data preceding the most court ruling on support may be re-useable not as stand-alone evidence, but in a blended combination with new evidence for the purpose of showing a “trajectory of income that continued to deteriorate”. In my view, this is surprising.
If Sewell permits substantive evidence previously considered to be re-introduced in a later proceeding and ruled on for a second time, it may be a judicial exception to res judicata. Sewell holds, in dictum, that reintroduced evidence involving the same issue and the same parties is admissible a second time, provided that it is blended with new evidence that is substantially similar. Trial courts can now reconsider at a modification hearing the weight and credibility of the same identical evidence whose credibility and weight they assessed and passed judgment on in the past.
Traditionally, the time line for defining admissible evidence regarding a material change of circumstances commences on the date of the last support order. Now, based on Sewell, it may start earlier. It may be difficult to ascertain exactly when it starts. I could be wrong, but that certainly seems to be what the court is saying.
Macione involves a husband recovering his separate property after placing it in joint names with his wife.
The case applies Virginia Code § 20-107.3(A)(3)(h), which provides,
“No presumption of gift shall arise under this section where (i) separate property is commingled with jointly owned property; (ii) newly acquired property is conveyed into joint ownership; or (iii) existing property is conveyed or retitled into joint ownership.”
Interestingly, the trial court found by clear and convincing evidence that the marriage was a joint enterprise, and that husband’s transfer of property into joint names transmuted his separate property into marital property of the parties. The court of appeals politely says “We disagree ...” It then states that the record contains “no evidence or admissions from husband”. That’s right, no evidence at all! It is a rare case where the trial judge says there was clear and convincing evidence, and the appeals court says there was none.
Harris is an example of bad drafting in a property settlement agreement, compounded by a failure to read the agreement carefully before filing an appeal. Essentially, the agreement says attorney fees are payable in the event of default. The parties fight in court over the interpretation of their agreement. Husband prevails, and asks for reimbursement of attorney fees. The court says no fees, because there was no default.
Petrus v. Robbins, 196 Va. 322, 83 S.E.2d 408, 412 (Va., 1954)
Occasionally, a Virginia equitable distribution case has a fact pattern so unusual that you are grateful it was appealed and generated a clearly reasoned, published opinion. Such a case is Layman v. Layman, decided on June 11, 2013.
I will make the facts simple: During a 58-year marriage, husband mortgages his separate real property to purchase jointly owned marital real property. During the marriage, the parties pay off this mortgage on husband’s separate property using marital funds. Husband properly traces these transactions.
The question on appeal is whether the separate property becomes transmuted into marital property, on the theory that “discharge of a debt secured by an asset that results in an increase in equity in the asset constitutes an ‘increase in value.’” Gilman v. Gilman, 32 Va. App. 104, 119, 526 S.E.2d 763, 770 (2000) (quoting Code § 20-107.3(A)(1)). In other words, did paying back the separate loan increase the equity in the separate real estate?
The answer is “No.” The Court of Appeals states the rule in this way: “[T]he discharge of an encumbrance using marital funds generates martial equity only in the encumbered property that was acquired using the proceeds of the loan.” More concisely stated, borrowing and paying back changes nothing. For property to change characterization for purposes of equitable distribution, you need to borrow from separate, buy something new that is separate, and pay down the new separate with marital funds. That did not happen here.
The opinion makes perfect sense. If I lend you a dollar that belongs to me alone and we put it in an account that belongs to both of us, and then we pay it back out of money that belongs to both of us, you do not suddenly own part of my money. We’re square; our transaction is zeroed out. There is no increase in my separate equity. The dollar I got back is exactly the amount that I lent us. End of story.