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Niblett Explains the Inseparable Nature of Voluntary Impoverishment and Imputed Income

  In Niblett, the father is convicted of sex with a minor, goes to prison, and becomes unemployed.  (Niblett v. Niblett, Virginia Ct. App. Record No. 0716-15-1, December 15, 2015).  In prison, he has no income.  The trial judge finds him to be voluntarily impoverished but imputes no income, ruling that imputing income to someone who has none would constitute speculation as to what a felon would earn upon release.  The mother receives no child support award, and she appeals.

            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.
Baltimore Shack

DIRECTV and Why You Cannot Sue

          DIRECTV v. Imburgia, et al., (14-462, decided December 14, 2015) is a six to three U.S. Supreme Court (SCOTUS) decision holding, essentially, that if the nation’s largest retailers (purveyors of cable TV, cell phone service, rental cars and the like) attempt to prohibit class actions in their contracts, then no matter what state codes and court cases may have to say, business gets what it wants.[1]

            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.

[1] Recently, mandatory arbitration clauses are appearing in pre-marital agreements of parties with a substantial disparity in wealth.  I expect such clauses to survive court challenge in all family law areas except custody, visitation and child support. In those three domains, the parens patriae interest of the state cannot be usurped by private contract.


"Alcoholic" new Husband Cripples Spouse's Visitation

    Salvato v. Salvato (Record No. 0399-15-4, September 15, 2015) is a troubling unpublished Virginia Court of Appeals decision about parenting restrictions for the ostensible purpose of shielding children from a mother’s “alcoholic” new spouse.

            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:

             “When reviewing a trial court’s decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Congdon v. Congdon, 40 Va. App. 255, 258, 578 S.E.2d 833, 834 (2003) (citations omitted).

                   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.

Parties That "Mess Up" Do Not Deserve Anything

          Jones (Record No. 0708-15-3, November 3, 2015) and Gregory (Record No. 1367-14-4, November 17, 2015) are bite-sized, unpublished lessons on credibility from the Virginia Court of Appeals.

            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.