Family Law Article by Richard E. Crouch, Attorney at Law, Arlington, Virginia; (703) 528-6700
Disclaimer: Items are not to be considered legal advice or to create any lawyer-client relationship. Most articles include some obsolete information. In addition, taking any legal information out of context, i.e., using it in a different court or a subtly different kind of case, or without the training to understand all of what it means or doing research to verify it, usually has disastrous consequences.
[Site manager's note: The following
introductory material originally appeared in the first Malpractice
Trap compendium article, in Spring 1995. After this brief introduction,
the malpractice trap articles are listed in reverse chronological
order.]
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What's so exciting about practicing
family law in Virginia is that no matter how experienced, conscientious,
competent and thorough you are, you will always approach each
case in the secure knowledge that you have a fairly good chance
of screwing it up. The catastrophic unintended result is always
a substantial possibility, for the way is always strewn with the
most intriguing malpractice traps.
What is a malpractice trap, exactly? It is not the possibility
of doing a bad job through callous carelessness or incompetence.
That is what generates most malpractice claims in this state,
but of course it is not a trap. If the case was lost by default
because you filed no timely answer, or the other side got everything
because you told your client you had filed an action when in fact
you had not, you have committed malpractice but there is nothing
trappy about it.
No, malpractice traps are quirky peculiarities of Virginia law
that make the practice not only counter-intuitive, but counter-everything
you so conscientiously learned in law school. It is a malpractice
trap when you have to do the opposite of what a competent and
conscientious lawyer would expect to do because the law is contrary
to what experience, tradition, and a reading of the statutes and
the whole body of case law would cause one to expect it to be.
Such traps are of course created by eccentric Virginia refusals
to do what is done in the other 49 states and the territories,
but at least every practicing lawyer is constructively warned
of the need to know state law. A great many of them are created,
though, by a body of self-contradictory case law developed by
appellate courts either blithely contradicting what they said
last year or last week, or rationalizing the seeming inconsistencies
with supposed distinctions possessing a degree of subtlety that
is 100% impenetrable by us ordinary mortals of the practicing
bar.
This aspect of our law and practice is one which helps to keep
it difficult, arcane and exclusive. By making competent Virginia
practice something it takes years and years to learn, it allows
our Bar to be somewhat like the Medieval Guilds, jealously safeguarding
the mysteries of our craft so as to keep down the competition.
However, the malpractice traps also serve to sabotage the careers
of old lawyers as well as young ones, with all the heart-wrenching
misery that that entails, and they make practice particularly
stressful and unpleasant for the lawyer who cares about being
competent. They certainly mean far more business for malpractice
lawyers and keep our professional liability insurance premiums
high. Most importantly, perhaps, they make family law extremely
time-consuming for the practitioner and expensive for the client
-- and do so (O cruelest irony of all) in a way impossible for
clients to understand.
The last installment covered child support, cohabitation, divorce grounds, jurisdiction, juvenile court matters, pensions and some procedure issues. The particular definition of malpractice traps that we use in this context is reiterated there. The beauty of the generally-alphabetical organization scheme is at times marred by the advent of new case law in some of the previously-covered areas. The first of these is:
Nicholson v. Nicholson, 21 Va. App.
231, 463 SE2d 334 (10/31/95). Just imagine the explanations the
lawyer must have had to give the unlucky client there. Despite
the plain language of the standard wording that goes into written
separation agreements, and the long-standing belief that a complete
separation agreement purporting to make a total settlement of
the parties' property rights and waiving everything else would
also waive government pension rights, the Court of Appeals held
in Nicholson that no general waiver of rights, nor property-related
rights, can possibly affect the rights of a "former spouse"
to a division of a federal pension unless there is an express
provision of the federal pension right being waived. And believe
it or not, the Court of Appeals derived that principle from federal
law, despite its many assertions that the federal law concerning
pension division does not affect in any way the rights of a Virginia
court to order the spouse who owns one to divide it.
There are many ways to end up having given your client the wrong
advice in the pension area, since what the law turns out to be
is so often contrary to common understanding, common sense, legislative
intent, or what happened last time. There are points of Jesuitical
subtlety here. Efforts to simplify and clarify the statute have
only made it more of a casuist's playground.
PENSIONS - MILITARY - TEN-YEAR RULE.
Something everybody learned early on is that a military wife had to have ten years of marriage to the service member overlapping ten years of military service to divide the pension. However, the Virginia Court of Appeals has adopted the rule that this statutory limitation in 10 USC ß1408 limits only direct payment by the military of the former spouse's half of the pension. Thus a service member can be required by a Virginia court to split his or her military retirement with the former spouse even if it was less than a ten year marriage. Cook v. Cook, 18 Va. App. 726, 446 SE2d 894 (1994).
When the pension-division statutes first passed the state and federal legislatures, it was to relieve those wives who got no alimony because husband was retired, and could get little from property division because there was little or no property-except entitlements to a future stream of income, sometimes in a fund built up from deferred income, a sort of property by analogy. The retirement expectations were called the only "asset" (note those quotation marks) of the marriage, and they could not get that. Reforming legislation carefully said that they could get it as alimony or property division, and it was assumed these were alternatives. No one assumed that the law contemplated a man splitting his monthly retirement payments with a divorced wife, and then having to pay her alimony out of his half if that was his only income. However, the Virginia Court of Appeals has said that that is allowable-see Sawyer v. Sawyer, 335 SE2d 277 (1985)-(although sometimes it seems to say the opposite), and probably thinks that it is required. It was careful to say that it was not deciding the issue in Holmes v. Holmes, 7 Va. App. 472, 375 SE2d 387, footnote 2 (1988). Now analysts claim it is a sacred principle that pension is pension and alimony is alimony, a wife is entitled to both, and pension has to be first divided as property and then drawn upon for alimony. In McGuire v. McGuire, 10 Va. App. 248, 391 SE2d 344 (1990), the Court said that the sacred principle that "a wife is not required to deplete her 'estate' to keep husband from having to pay alimony" does not give a wife a sacred right to a double dip. Thus a husband who asked the Court to terminate alimony because his pension division had kicked in prevailed. The Court said it could take wife's pension-share income into account as a factor in modifying alimony. The Court reversed a double dip in Tuma v. Tuma, an unpublished case at 7 VLW 246 (7/29/92) for the simple reason that the pension had already been divided and the husband had nothing else to pay alimony with.
Though the legislature was careful to
make a very broadly inclusive definition of pension and retirement
accounts when it adopted Code ß20-107.3 G, the Virginia
Court of Appeals has come up with the theory that an IRA is not
a retirement or deferred-compensation account, and thus is not
subject to the 20-107.3 G limitations. That means it is available
for division, not when received, but right now. See Broom v. Broom,
15 Va. App. 497, 425 SE2d 90 (1992). That means that the Court
in an equitable distribution trial can divide the IRA account,
even if that necessitates pre-retirement-age withdrawal, and that
in turn means a huge tax bite.
Similarly, the IRA is "received," and must be divided
with the spouse, when it is rolled over into a new IRA account.
See Hill v. Hill, unpublished, 9 VLW 1288 (4/11/95).
The person who has a kind of employment with a rigid health and fitness requirement, and has to retire early on disability, as many military, police and firemen do, will often be in for an unpleasant surprise that the lawyer never told him about at the time of divorce. The early retirement means dividing what may be the sole income with the wife pursuant to an if-as-when received award, even if that comes on top of an alimony obligation, and leaves the retiree with next to nothing to live on. Disability retirement often means no post-retirement job, and this can be very uncomfortable for a person in a high-injury line of work whom injury or illness has already laid low. Can a court, then, recognize an unexpected early retirement and give relief by modifying the judgment to postpone (to the normal expected retirement date upon which wife's pension award was calculated) the non-employee spouse's if-as-when share? Of course not. See Caudle v. Caudle, 18 Va. App. 795, 447 SE2d 247 (1994). See also Mc Glathery v. Mc Glathery, an Alexandria fireman case, at 9 VLW 1261 (VCA unpublished, 3/28/95).
The buy-in cash payment required when a government worker returns to the Civil Service, or converts from military retirement, is made-to-order for creating entrapments. The worker ends up sort of "purchasing" Civil Service retirement after a partly-military career because he did not pay FICA when in the military, or for some other reason. A person returning to civilian service after some hiatus often finds it financially worthwhile to buy into the system. If this factor is not entirely quantified, the court may hold that there has been a total failure of proof and therefore no pension award. See Gamer v. Gamer, 16 Va. 335, 429 SE2d 618 (1993). There must indeed be expert testimony as to the mathematical analysis of this tricky factor.
As for the lawyer who has advised an employee spouse that under Virginia statutory law the court cannot take more than 50% of his pension, a Circuit Court opinion from Stafford County illustrates a major problem with such advice. It ignores the fact that the courts can now require a survivor benefit plan (SBP) election. This of course means that a large bite has been taken out of the pension check before the retiree ever sees it, and that deducted sum is going to go to the ex-spouse if she survives him. It's the remaining pension receipts that will be divided 50-50 with the ex. The fact that this violates, in terms of real cost, the 50 percent maximum limitation may be, to a local judge, no reason to disturb it. One local judge looks at this statutory situation, concludes that the General Assembly must have intended it, which indeed they must, and "will not construe the statute in such a way as to produce a conflict." It views Code Sections 20-107.3 G (1) and (2) as separate and distinct grants of authority. See Hemphill v. Hemphill, 9 VLW 660 (10/24/94). The Court of Appeals has apparently just ruled against this circuit court view, but in an unpublished opinion, Gerwe v. Gerwe, 10 VLW 888 (1/16/96) (see above), that apparently treats the matter in a way that is far from clear.
Why do people always file exceptions to the Commissioner in Chancery report? Because, it was announced in law in Dukelow v. Dukelow, 2 Va. App. 21, 341 SE2d 208 (1986), if you did not object to a Commissioner's findings--by filing exceptions--you cannot object on appeal.
If you read the provisions of Code Section 20-107.3 E5 you would think that fault factors affecting equitable distribution are issues to be tried to a judge. In a county or city where Commissioners hear grounds but not ED, can you find yourself unable to try these issues in the ED hearing because you did not try them in the grounds hearing before the Commissioner? Yes. Circuits that have adopted such a rule have been upheld by the Court of Appeals. See Klein v. Klein, 11 Va. App. 155, 396 SE2d 866 (1990). See also Mc Laughlin v. Mc Laughlin, 2 Va. App. 463 (1986).
The tremendous importance of getting every detail in a decree right is emphasized by the many wooden interpretations of the principle that a trial judge cannot vary an order, no matter how many ways the legislature tries to make it possible. In Dixon v. Pugh, 244 Va. 549, 423 SE2d 169 (1992), the Supreme Court said that a court cannot use a new statute intended for correction of inadvertent errors, ß8.01-428 (B), to correct and add the reservation of alimony that the judge said in the transcript on the record that he intended, because "it is not in the order."
Though you can find plenty of cases in which obviously this requirement was ignored and nothing said about it, the Court of Appeals in 1993 chose to say in Gamer v. Gamer, 429 SE2d 618, that a trial court can make no award if it does not have proof of valuation on and as of the day of trial. Just showing the purchase price of each thing was adjudged to be insufficient. (This was not a pre-1988 case.) The Court added in Stumbo v. Stumbo, 20 Va. App. 685, 460 SE2d 591 (1995), that there can be no award if the marital/separate facts were not proved.
If you believed what they said in Aster v. Gross, 7 Va. App. 1, 371 SE2d 833 (1988), and all the subsequent sanctimonious invocations of its lofty moral principle (It's positively wicked to make an issue of your spouse's adultery in these modern times), and you advised your client that it's not worth raising the other side's adultery as a ß20-107.3 equitable distribution factor, you would be making a big mistake. Almost as big a mistake as advising your adulterous client that his or her adultery will make no difference to the trial judge or the Court of Appeals. After all, suppose they get up on their punitive side of bed that morning, put on their vindictive hats, and decide to do a Pommerenke or O' Loughlin on you? The Court of Appeals gave fair warning in Pommerenke, handed down the same day as Aster v. Gross, that it could jump either way on this issue, depending on-for all we know-procedural context and factual details. After several years of piously intoning the name of Aster v. Gross, they did this: in O' Loughlin v. O'Loughlin, 20 Va. App. 522, 458 SE2d 323 (1995), the Court of Appeals, vociferously denying that they were departing from Aster v. Gross, said that it would consider the husband's adultery not as economic conduct, and not as a 20-107.3 (E) (5) factor. The Court said that husband's adultery was a "negative non-monetary contribution," which caused the wife's non-monetary contribution to be worth more, and thus to justify a 60-40 property division in favor of the wife. Thus, "if the evidence of misconduct is relevant under any other factor than sub-Paragraph (5), it may in the judge's discretion be considered when making an equitable award."
The timing of a bankruptcy and an equitable distribution by Virginia courts proved disastrous to the interests of a wife who thought she could protect her house from creditors. In Cordova v. Mayer, ___ F 2d ___, 10 VLW 879 (4th Cir. 1/9/96), the wife excluded from the bankruptcy estate, as entireties property, her interest in the marital home at the time she filed for bankruptcy. However, the house lost its exempt status, and she lost it to creditors, because the divorce decree in her case was then entered within 180 days of her bankruptcy filing. Although 11 USC ß522 (b) (2) (B) makes entireties property exempt, the divorce decree came along within five months of the filing, and under Virginia Code ß20-111, a divorce decree automatically extinguishes tenancies by the entirety. Thus those individual creditors of the wife who could not reach the property before can reach it now. The arguments that what never entered the bankruptcy estate cannot enter it late, and that a wife obtains no new property interests by virtue of the divorce decree that could enter the bankruptcy estate are rejected. The latter argument would require a far too narrow construction of the term "interest" in 11 USC ß514 (a), which after all defines the bankruptcy estate as "broad and all-embracing."
Payable-on-death or payable-by-estate provisions can be tricky. If a husband promises a large sum of money, but instead gives it to his next wife, and then dies, the first wife is out of luck. The transfer could be set aside as a "fraudulent conveyance" under Code Section 55-81, but only if it rendered the husband insolvent, and the wife proves that. See Hudson v. Hudson, 249 Va. 335, 455 SE2d 14 (1995).
Child Support, Cohabitation, Grounds,
Jurisdiction, Juvenile, Pensions, Procedure
Going more or less alphabetically, the last installment summarized
malpractice traps in Virginia divorce law from appeals into child
support. To reiterate briefly, this summary does not cover opportunities
for a lawyer to be ignorant or just plain stupid. It defines as
a malpractice trap that which is so counter-intuitive or illogical
that even a trained and experienced lawyer, proceeding carefully,
is in danger of doing the wrong thing.
CHILD SUPPORT. When we left this area of child support termination
tiger traps last time, I had just touched upon Brown v. Brown
. The last installment noted how a parent can become liable for
child support for the years long after a child has become an adult,
and build up quite an arrearage that way, because the logical
assumption that child support for each of several children ends
when that child reaches adulthood is not the Virginia law. Brown
v. Brown, 240 Va. 376, 397 SE2d 837 (1990). That of course means
that a father who does not want to pay support for a child who
is no longer a child has to go to court and get a court order
saying so, or become that most loathsome of villains, a deadbeat
dad. (An adult's deadbeat dad, but so what? You can't discriminate.)
What some do not know is that even a written contract to modify
child support is void if not approved by a court as a court order,
so arrears can build up for support of an adult well past 18 even
in the case of a written agreement acknowledging the pro tanto
reduction. Anyway, that's what the Virginia Court of Appeals thinks,
according to its unpublished opinion in Miller v. Maitland, 5
VLW 449 (10/16/90). Further traps: if there was a Lester "unitary
award," it is error for the judge to reduce child support
when any child reaches 18, and error to deny a judgment for arrears,
as the Court of Appeals sees it. Taylor v. Taylor, 10 Va. App.
681, 394 SE2d 864 (1990). Thus many a lawyer who feels that he
or she has done a client good service in drafting agreements or
decrees may have reason to regret it in a malpractice context
only a few years later, when these strange and vindictive interpretations
of the support laws are revealed.
Those who read Kelley v. Kelley, 449 SE2d 55 (1994), and thought it established a rule that child support cannot be waived for a tradeoff in a separation agreement, not even by indemnification and hold-harmless paragraphs, had better check and revise their advice to clients on this point in light of Spagnolo v. Spagnolo, 20 Va. App. 736, 460 SE2d 616 (1995).
The new idea that judges must include
a bewildering array of illogical and badly worded non-ordering
provisions in all orders and decrees, and that it is counsel's
fault when they do not, opens up a whole new minefield of malpractice
exposure. (See 15/2 FLN (Summer 1995)). How is this so? As most
heavily-involved practitioners already know, the problem is that,
in counties where the judges and law clerks feel themselves responsible
for decrees' conformity to these bureaucratically-drafted regulations
that go so much against the training of lawyers, common sense,
experience and tradition, any order missing the merest comma is
rejected. Nothing in Code Sections 20-60.3, 20-79.2, 63.1-250.3,
20-124.5, etc., says that order wording must track the language
of the statutes, but many judges' law clerks have decided this
nice-to-have is the law. Thus many orders that represent the culmination
of months of fierce litigation, and many consent orders that represent
the achievement of a clenched-teeth compromise after many months
of bitter wrangling and hard negotiation, will not get signed.
Often it will be a long time before counsel find out that the
order did not get signed, because after all, what statutory duty
do judges have to inform them?
So the order did not get signed: so what's so bad about that?
First, whichever party needs it (probably both) will be without
the protection of an order. No custody order as a preventive against
child snatching, no visitation rights (or visitation rights like
they used to be before the arrangement was supposedly changed),
and no support rights - or no increase or reduction, so that the
support amount, if any, is what it used to be. (And we all know
what that means: a mounting arrearage of unknown but unmodifiable
liability.) More importantly, the failure to have a decree means
the whole thing is opened up again. Assuming good faith on both
sides, the facts can change.
More likely, at least one side will decide the deal was not so
good after all. The party with a dishonorable (or defensively-practicing)
lawyer simply refuses to sign a redrafted order. Or the party
will change lawyers (or go pro se) and do that. When you realize
that sometimes draft orders are kicked back as many as four and
five times, the opportunities for the whole achievement of victory
or compromise to unravel are legion. Who is to blame when all
of this happens to the client? Not the feds that thought up these
now-hear-this requirements. Not the DSS and General Assembly which
came up with their bizarre configuration and wording, and added
all of those fillips and riders per DSS for nice-to-have ornamentation,
not the judges, not the clerks and law clerks, but the one person
who is reachable by malpractice lawsuit. You say it is not a transgression,
not an omission, not an oversight? Come on! You are a lawyer and
did not know the law.
This article alluded to the problems
of adultery and alimony last time. But what about cohabitation
and alimony? It used to be the surest of sure things that when
a divorced woman just shacked up instead of getting remarried,
so as to avoid the statutorily-provided alimony cutoff, this would
be held a de facto remarriage and an attempt to circumvent the
law, which - given the then-acknowledged policy in favor of marriage
and the criminal statutes against cohabitation - the courts would
not allow to succeed.
All of that is ancient history, of course, as any public policy
favoring the institution of marriage has been scrupulously - and
indeed, sanctimoniously - purged from our law. However, many separation
agreements now explicitly go into the area of cohabitation, explaining
that it will mean an end to alimony - a provision which many wives,
in the course of bargaining, are glad enough to sign. As well
they might be, since subsequent development of the law has proved
such provisions, however carefully drafted, to be just about impossible
to enforce. There are ways to draft these things so that occasionally
the appellate courts will hold them enforceable, as in Schweider
v. Schweider, 415 SE2d 135 (1992), but the requirements are arcane,
somewhat bizarre, and imaginatively vindictive, so that they are
more likely to fail. The strong public policy in favor of unmarried
cohabitation influences these interpretations and is very hard
to get around. See Hollowell v. Hollowell, 369 SE2d 451 (1988),
Frey v. Frey, 14 Va. App. 270, 416 SE2d 40 (1992); Bashara v.
Bashara, 7 VLW 853 (unpublished). The distinctions between right
and wrong are so arbitrary that it is impossible to tell ahead
of time what kind of clause will be upheld and what kind of cohabitational
behavior it will take. (And whose fault is it when a separation
agreement clause proves void and unenforceable, so that someone
has to pay thousands of dollars of unanticipated alimony? The
dumb jerk who "did not know the law," of course.)
The humiliation of taking a client to
a commissioner's hearing, deposition or "routine" ore
tenus hearing, contested or uncontested, and finding out that
the proof is considered insufficient is well-nigh universal. But
in the eyes of the client, your unpreparedness is unprecedented
in the annals of divorce law. Little does Mr. or Mrs. Client know
how easy it is to screw this up. There used to be some bright-line
tests and well-established rules in this area, but now it would
be relatively hard to find one.
Thus it is very unwise to tell a client anything definite about
ability or inability to prove grounds of divorce. The client who
is advised to hold off, but later hears at cocktail parties that
someone else got one on the same or lesser proof, would be almost
as disgruntled as the one who went to the hearing and watched
you fail. Remember when clients used to be told that one year's
separation meant no marital sex, and one sex act would start the
separation clock running all over again? But now "random
isolated sex acts" do not break up the separation period
under the rule of Petachenko v. Petachenko, 292 SE2d 296 (1986),
and a number of similar cases. And the old rule that separation
has to be separation, and "separation under one roof"
won't get it? Of course that is wrong ever since Jamison v. Jamison,
352 SE2d 719 (1987) - but one never knows just exactly how much
separation under one roof will suffice.
But the more subtle entrapments in this area concern insufficiency
of proof for those who thought they had it. Given the inexorable
mechanics of these things, who would have thought that there was
any obligation to submit proof of the separation continuing after
the hearing at which the proof was submitted? Yet the Court of
Appeals seems to indicate that in Graves v. Graves, 4 Va. App.
326, 357 SE2d 554 (1987). If this has to be done, one wonders
exactly how it is done - by having a presentation hearing on every
decree, with additional proof taken there? By affidavit submitted
with a redrafted decree? But then how does this accord with the
beauty of abstract theory, since the affidavit does not cover
the time from its execution to the time the judge gets around
to signing the decree? Does everybody submit these affidavits
- and do it every time?
This statutory law was several times amended to encourage people
to use no-fault divorce, and filing on desertion grounds, only
to amend to statutory separation when the time is ripe, was supposed
to be a routine thing, contemplated by Code Section 20-121.02.
So does anybody think that it can't be done because when the original
pleading was filed (on fault grounds) the complainant (of course)
did not have a year of separation yet? Apparently there are Circuit
Courts that think so, as in Bouldin v. Bouldin, 7 VLW 1133 (1993).
(So why have the statute?) And doesn't the same statute clearly
say that either party, once a year has gone by, can proceed on
no-fault grounds without amendment? And yet there are finders
of fact who will declare that the matter cannot go forward until
somebody amends, and the defendant cannot do it because the defendant
has nothing to amend. Doesn't the statute say without amendment
and without cross claim?
And although Rule 1:4 (j) says that brevity is enjoined as the hallmark of good pleading, is a cross bill no good unless it re-pleads all the formalities, such as residence and domicile, of the complaint? Apparently the Court of Appeals thinks so. See Rogers v. Rogers (unpublished), 6 VLW 256 (7/9/91).
And for goodness' sake stay away from adultery, even if they did it in the road. Of course we are all aware of those cases where the complainant sure did think he had the proof, but did not, such as Dooley v. Dooley, 222 Va. 240, 278 SE2d 865 (1981), where the guy said he slept downstairs on the couch, and Seeman v. Seeman, 355 SE2d 884 (1987), where wife and boy friend said they cohabited many nights in a motel room, but didn't do anything because it was against their religion. But how do you prepare anyone for a ruling like Gamer v. Gamer, 429 SE2d 618 (1993), which held that the judge can ignore glaring adultery proof, and find no adultery, and order divorce on separation grounds, if the adultery has no economic impact? But nothing can top the logic of the Court of Appeals' unpublished opinion in Peelen, 9 VLW 1347 (4/25/95), in which apparently it was all right for the Commissioner to find adultery proved by clear and convincing evidence, and yet declare that "the wife's affairs and intent to leave the marriage established that the marriage failed because the wife deserted the marriage." One wonders how counsel explained that one to the client.
It was once a firmly established principle that if a divorce was procured against a Virginia wife in a state that had no personal jurisdiction over her, she could always sue for alimony and child support (and probably property division) in a post-divorce Virginia divorce action if the husband was later validly subjected to our personal jurisdiction. However, in an effort to make this statutory, the General Assembly put the right into Code Section 20-107.3, but in doing so limited it to two years. (20-107.3 (J).) It makes no sense that there is no counterpart in Code Section 20-107.1, but that seems to be the case. And when a foreign wife against whom Virginia had issued a divorce decree based on service by publication came here to get ED, there was no limitation on how late the award could be made. See Toomey v. Toomey, 19 Va. App. 956, 454 SE2d 735 (1995) and Campbell v. Altizer, 453 SE 2d 570 (195).
The whole area of juvenile court ruling
finality and the effect of "appeals" to circuit court
is dangerous for counsel - as much because of its entanglement
in improbable abstract theory as from the fact that the legislature
seems to tinker and fool with it almost every year in order to
respond to the felt needs of competing pressure groups and for
more obscure reasons. This article can go into only a few of these
areas. And where it does go, it might go wrong, because the courts
and the legislature have managed to keep lawyers guessing in this
area. See Mc Call v. Commonwealth, 20 Va. App. 348, 457SE2d 389
(1995).
Apparently an unappealed JDR court order can give enough finality
to foreclose a circuit court's later ruling on the issue, at least
when it comes to paternity findings, but a mere court memo, to
be followed by endorsed order, is not a final order, and not appealable.
See Alexander v. Morgan, 452 SE2d 370, 9 VLW 795 (1994). It is
said that one can even appeal from a consent order of a juvenile
court, because the "appeal" right to a de novo trial
is absolute, and that even the Lee v. Lee rule concerning "seen
and objected to" does not apply to these courts not of record.
Cox v. Cox, 428 SE2d 515 (1993). But somehow juvenile court orders,
such as the husband's agreement to health insurance coverage in
juvenile court in Wilcher v. Slayton (unpublished, 9 VLW 1261)
can survive the circuit court's divorce decree providing otherwise.
A very common experience in juvenile court is to miss the appeal
deadline because counsel never got the JDR court order and had
no idea of when its date was. The unpublished opinion in Taitano
v. DSS, 9 VLW 1262 (4/4/94) holds that if an appellant misses
the deadline, it does not matter that the order was received only
after the deadline ran, because there are no exceptions in this
statute. Has anyone ever received a back-dated order from a juvenile
court? It is even possible to receive an order dated before the
day the hearing took place. And incidentally, what on earth does
that 21-day provision of ß16.1-244A mean--or intend to mean?
And how many circuit courts in this state will give you a hearing
on all those issues within 21 days of filing?
Back in 1988 we were introduced to the concept that an unappealed
juvenile court order stands, if the Circuit Court made no ruling
on point. (Martin v. Bales, 371 SE2d 823 (1988).) The situation
is not necessarily clarified by the 1990 version of Code Section
16.1-244, which seems to provide that the juvenile court is not
ousted of jurisdiction until the circuit court sets a hearing
and has that hearing within 21 days of filing. Most people going
through a divorce action do not contemplate that parallel litigation
can be going on in juvenile court, second-guessing whatever the
circuit court does.
Yet many are those who rely on the supposed universal appealability
of JDR court rulings, little realizing that most orders will be
unappealable because they are "not final." For instance,
though temporary custody orders may last for years, one cannot
appeal them to circuit court, even if they amount to the DSS taking
your child away. See Sloan v. DSS (unpublished, 5 VLW 1196) and
Code Section 16.1-296.
Counsel can hardly plead ignorance of the rules, but those who have been filing support petitions in juvenile court for years on end are often surprised to learn that there is a huge bank of brand-new form requirements for such routine pleadings, though some JDR court clerks will assure counsel there are no such requirements, and the court still accepts what it always did. These can be found in the new Rule 8.3.
The law regarding married people's names used to be safe enough, until the legislature fooled with it. As one can see from older cases such as In Re Strikwerda, 216 Va. 470, 220 SE2d 245, (1975) and Flowers v. Cain, 237 SE2d 111 (1977), a person can go by whatever name that person wants, at any time, just so long as it is not done in order to defraud creditors, and no formal change is necessary. Now, however, those whose female clients are very much concerned about getting their names changed upon divorce must realize that the new statutory authority granted by Code section 20-121.4 means that now you have to ask for it, and do so by "motion" or "request." Also, it is now called "restoration of former name," implying that the woman lost the former surname when she married, that the restoration has to be by judicial act, and that she can't just start using it. Forgetting to put this in the draft divorce decree of course subjects one to the cruel operation of Rule 1:1, and counsel who forgets it has a lot of explaining to do. Perhaps the wife can go in and bring a separate name-change petition by a new filing, but she may not want to pay for that herself. (See new 8.01-19 and 20; 20-121.4, and 8.01-217).
The field of division of retirement accounts is probably too broad and too tricky to go into in an article of this nature. It is certain that whatever the article might say, new appellate court interpretations will render it inaccurate by the time it gets into print. It should suffice to say that any lawyer who tells a client that there is any definite principle in this area of the law, or any rule one can rely on, is most unwise. Nevertheless, hitting a few highlights might be useful.
It is worth noting that even if the federal statute authorizing division of military pensions allows only a division of what the feds define as "disposable retired pay," if the Virginia court order says to give a wife 40% of the pension, then the government's payment to the wife of only 40% of disposable retired pay is contempt, for which the husband (no, not the feds, the husband) must answer. See Lovell v. Lovell, 5 VLW 48 (unpublished) (6/12/90).
Something a lawyer would never think
to advise a client is that a pension loses its special statutory
status as a unique kind of divisible property when one takes the
money and holds or banks it. Even if a retirement account is rolled
over into another retirement plan, the Virginia Court of Appeals'
theory is that it loses its statutory characterization-and that
includes the 50% limitation on its division. See Robinette v.
Robinette, 393 SE2d 629 (1990). And even though the military won't
divide a pension without ten years' overlap of marriage and service,
no client is safe in relying on that limitation, because a Virginia
court can order him to divide his pension anyway, as the Court
of Appeals explains in Cooke v. Cooke, 446 SE2d 894 (1994).
And yet, and yet, the great fundamental principle that it is Virginia
law, and not the federal authorizing statute, that controls divisibility
of a federal pension by a Virginia court did not seem to apply
in the latest Court of Appeals case, Nicholson v. Nicholson, concerning
a foreign service pension, decided October 31, 1995. (____SE2d____.)
The Court of Appeals applied exactly the opposite principle there.
A malpractice trap of major proportions and cruelty that Antonin Artaud would applaud, was recently publicized in a circuit court opinion. If you haven't already guessed from the lead-in line, here's what happened. When husband and wife entered into a separation agreement giving wife a share of the pension benefits, the agreement said that a qualified domestic relations order (QDRO) would be submitted and entered later. It was promptly drafted, but for some unknown reason the husband's employer corporation took an ungodly long time approving the QDRO. Meanwhile, husband retired, wife got half the pension payments, and husband had to pay income tax on both halves. Husband went into court for an order requiring wife to reimburse him for the taxes he paid on her share, and the court refused. Husband argued that when they drafted their agreement, and QDRO, the parties had no idea that it would take years for the QDRO to be entered, and accordingly it never occurred to anyone to apportion tax liability for the pre-QDRO-entry months and pension checks. If they had anticipated this, they would surely have put in the separation agreement itself a provision dealing with interim tax liability apportionment. The circuit court rejects the husband's equitable argument based on "unjust enrichment." That doctrine does not apply where an express contract exists. As the circuit court explains, "the parties could very easily have provided in their agreement...etc." Webb v. Webb, 10 VLW 508 (Richmond Cir., 10/5/95).
Alert readers will have noticed in reading
through these dismal summaries a few general principles of malpractice
trap formation that have begun to emerge. One of these is that
if you do it enough times the courts will make a rule that you
have to do it. Those with a talent for imaginatively prudent pleading
began distinguishing themselves a few years ago by re-alleging
such requirements as residency and domicile in drafting a counterclaim,
and now it turns out the rule is that everyone has to do it. This
is explained in several cases including Rogers v. Rogers, (VCA,
unpublished, 6 VLW 256 (7/9/91)).
It is hardly surprising that there is a rule that if you don't
plead it you can't get it. But suppose you do leave out a crucial
element from the prayers, like alimony, for instance: isn't that
what the catchall clause "and such other relief as equity
may require" is for? Oh not at all, the court explains in
Boyd v. Boyd, 340 SE2d 578 (1986). Similarly, it was an error
for the court to award an illegitimate father visitation when
his pleading did not ask for it. See Hur v. DSS, 409 SE2d 454
(1991). Will it now turn out that a person whose pleadings sought
custody, but who loses, will get no visitation because he did
not plead it? Sounds like the kind of rule the Court of Appeals
is waiting to invent.
Did this rule work for the person who tried to invoke it against
granting an equitable distribution? Of course not, because, as
the Court of Appeals explained in Lenhart v. Burgett (VCA unpublished,
3/28/95), 9 VLW 1230, the "other and further relief"
clause includes that.
Those who are alert enough to read every new decision picked up the new judge-made requirement a few years back that if you do not attach a copy of your draft decree to your notice of its presentation to the court, no matter how thoroughly you describe it in the notice, the decree is void. Westerberg v. Westerberg, 368 SE2d 115 (1989).
The emphasis that Lee v. Lee and its family of cases have placed on seeking reconsideration of trial court rulings has necessarily made motions to reconsider far more popular, though their unpopularity with judges has surely remained unchanged. And yet not every lawyer realizes how useless a reconsideration motion will be if it is not filed-and not only filed but heard and decided - within 21 days of the final order. Rule 1:1 is unaffected by a reconsideration motion. Thus, unless one can get the judge to stay or suspend the order until the rehearing can be decided, the 21 days of Rule 1:1 will expire, and the 30 days for noting an appeal will expire a week after that. See Taddonio v. Taddonio, 10 VLW 177 (VCA, unpublished, 6/27/95).
It has become fairly well known around the state now that one cannot appeal from a trial judge's decision if it was based on a commissioner's ruling, and the commissioner's report was not "excepted" to, but this waiver of rights is found entirely in the case law. See Mc Laughlin v. Mc Laughlin, 2 Va. App. 463, 246 SE2d 535 (1986). One reading the statutes and Supreme Court rules would never guess it.
Nor would a lawyer necessarily guess that, in counties where commissioners hear only the evidence of grounds and no economic issues, Code ß 20-107.3E5 fault factors have to be tried to the Commissioner or not at all. Once again, a lawyer reading the statutes would see property-related fault, like any other property-factor evidence, as a matter for the trial judge. Nevertheless, when Fairfax County adopted a rule that you can't be heard in court on E5 fault factors (unless maybe you tried the issue before the Commissioner in Chancery and took exceptions from his report), the rule was upheld by the Court of Appeals in Klein v. Klein, 396 SE2d 866 (VCA 1990).
[Introductory matter moved to the top of this page]
Obviously the greatest and scariest malpractice trap of all is
the laughably incomprehensible rule of Lee v. Lee, which has Virginia
lawyers being threatened with jail for contempt, making motions
for reconsideration that would be sanctioned as frivolous in any
sane legal society, and handwriting on court orders entire pages
of "exceptions" even though we have a statute which
says three different ways that you are not supposed to have to
do that. This is a malpractice trap in every sense of the word,
has caused untold grief to countless litigants and their hapless
lawyers, and has been a godsend to the malpractice litigation
industry in this state. Someday it will probably trip up everybody,
including you.
You forget it because it doesn't make any sense. We lawyers are
trained to be logical and make sense of everything, discarding
what does not fit. Some lawyers have dealt with this ugly threat
by tearing out large ads for a certain brand of jeans nailing
them to their office doors as a reminder. Others have installed
large pictures of a once-famous general and college president
whose name can't be mentioned in this space for fear of retaliation,
but whose birthday is sort of celebrated in his native Commonwealth
today as "King Holiday." When clients complain that
such politically incorrect pictures have to be censored, the lawyers
cheerfully explain how this is a device to help them remember
the Lee v. Lee case and you ought to be glad because it means
you might not end up losing your right to an appeal if the trial
goes against you.
Lee v. Lee, 12 Va. App. 512, 404 S.E. 2d 736 (1991), is inexplicable
in any other way except as a device arbitrarily hit upon as a
means of cutting down the workload of the Court of Appeals in
areas that are statutorily appeal-of-right. Many, many a night
of sleep has been lost and many a carrier notified over this rule.
Here's what the Lee v. Lee rule requires:
AT LEAST BANANA PEELS ARE YELLOW: THE WONDERFUL SUBTLETIES OF
THE RULE
As a malpractice trap, Lee v. Lee is worth an entire chapter in
itself. Briefly, however, it construes Rule 5A:18 to hold that
you waive your right to appeal if you do not restate your objections
to the judge's ruling after you have already stated your legal
position and the judge has ruled against you. You can read Rule
5A:18 till you go blind and still won't see it, but it's there.
Like tradition and nationwide practice, common sense would indicate
that any exception-noting-requiring inferences from Rule 5A:18
would apply only to evidentiary rulings during a trial, not rulings
on substantive arguments -- but Lee expressly holds otherwise.
Its particularly deadly twist makes endorsement of a draft order
an unbelievably crucial and technical aspect of the proceedings.
It held that endorsing an order "Seen" or even "Seen
and Objected to" is insufficient to preserve an objection
to the ruling, and hence one's right of appeal.
What must be substituted for this time-honored practice is either
a full and specific statement of what one's objections to the
judge's ruling are, on the endorsement line where one used to
put "Objected," or a motion to reconsider. What this
does is to revive the requirement of requesting the judge to "note
my exception" to an adverse ruling despite Code ß8.01-384,
which states that this shall henceforth be unnecessary. After
the Lee v. Lee ruling, the General Assembly amended Code ß8.01-384A
to state in three different ways that the Lee v. Lee requirement
no longer exists, but the Court of Appeals took the unheard of
step of asking the General Assembly to add to the bill a sentence
to the effect that its 1992 amendments were "declarative
of existing law" -- a sentence which the Code Commission
still did not put in the codified statute. This may be the reason
why the Court of Appeals has gone on invoking Lee v. Lee as though
the Legislature had never spoken.
For disbelievers, the Court gave a pretty clear indication that
this was its thinking, though it had to refer to the Acts of Assembly
rather than the Code, in Newsome v. Newsome, 441 S.E. 2d 346,
347-8 (1994). People mean no disrespect when they say that to
call this a banana peel is an insult to garbage. What they mean
is that at least banana peels are yellow.
The most dangerous thing about this malpractice trap is that the
rule switches on and off, and the Court of Appeals has made it
clear that it will, in its discretion, apply the rule when it
feels like it, and not when it does not feel like it. See one
of the several published opinions in Kaufman v. Kaufman, 12 Va.
App. 1200, 409 S.E. 2d 1 (1991). In Griffin v. Sprouse, 448 S.E.
2d 152 (1994), the Court of Appeals somehow applied the General
Assembly's 1992 amendments to say that the right of appeal was
preserved, and the Supreme Court appeared to distance itself from
the Lee rule in Kingrey v. Hill, 425 S.E. 2d 798, 799 (1993).
Lee v. Lee, when the Court feels like it, really does mean that
you have to list each thing that you object to specifically on
the endorsement line. See Huger v. Huger, 433 S.E. 2d 255 (1993),
where the husband, who excepted to the court's findings, could
not argue about a $23,000 horse on appeal because he did not mention
the horse on the endorsement line. See also Mackie v. Hill, 429
S.E. 2d 37 (1993); and the many unpublished holdings such as Miles
v. Miles, 9 VLW 1136, Semer v. Semer, 7 VLW 1180, and Boyd v.
Boyd, 7 VLW 1368. The requirement was emphasized again in Klein
v. Klein, 396 S.E. 2d 866 (1990), reminding practitioners of the
importance of reciting a proffer, while in Garland v. Garland,
403 S.E. 2d 4 (Va. App. 1991), the Court of Appeals seemed to
retreat from this, saying that it could tell from the commissioner's
hearing exceptions what the issues were. However, the Virginia
Supreme Court had said in Weideman v. Babcock, 241 Va. 40, 400
S.E. 2d 164 (1991), that "Seen and Objected" is never
enough, citing Langley v. Meredith, 237 Va. 55 (1989).
What has made all of this a malpractice trap with a vengeance
is that nothing in the development of the Lee complex of cases
has been done logically. In explaining its reasons the Court of
Appeals said that it is unfair to trial courts to give a judge
no chance to go back and retract an erroneous ruling, and that
accordingly every judge, even after he or she has ruled, must
hear the argument made again, either by repeated objection documented
in a transcript, by motion for reconsideration or a new trial,
or by statement of the objections on the "Seen" line
of an endorsed draft order. Of course this runs completely counter
to everything Virginia lawyers have been taught and have learned
by experience, since judges have little to no patience with repetition
of objections after they have ruled, and usually start talking
about contempt at that point. The cases include some very odd
ones in which there was no transcript for the appellate court
to review and no written brief or memorandum to give a clue to
what the now appellant's argument was at the trial stage. However,
the rule has been invoked repeatedly to throw out appeals in summary
fashion where there was a transcript, there were memoranda of
law at the trial level, the trial judge made a written ruling
reciting the parties' positions, and the only procedural "defect"
was use of the traditional "Seen and Objected to" endorsement
line. The statutory change has been blithely and repeatedly ignored,
and apparently the rationale for that is that the appellate judges
succeeded in getting the Legislature to add the uncodified "declarative
of existing law" language -- the existing law at the time
having been Lee v. Lee. Since the law is what the courts say it
is and courts cannot be wrong, Lee v. Lee must be good law, so
it must have been the law at the time the amendment was passed,
so Lee v. Lee can still be invoked.
Other malpractice traps of course abound in the area of saving
or waiving your client's right to appeal from an adverse ruling
of the trial courts. But first let's review some Lee cases, to
see all the ways you might go wrong.
The rule of Lee v. Lee continues to
dominate the area. In a 1994 case where both parties excepted
to a commissioner's report and argued their differences before
the circuit judge, whose decree stated that the parties objected
"to all rulings adverse to their respective positions...based
on abuse of discretion," wife's counsel did not preserve
her objections, because when he endorsed the final decree his
endorsement only said "seen, objected, excepted." This
endorsement does not point out the specific objections that the
wife had to what the trial judge did, so appeal is waived, the
appellate court in Hampton v. Murphy, unpub., 9 VLW 681 (11/22/94),
says. See and compare Griffin v. Sprouse, 448 S.E. 2d 152 (1994).
Whatever the 1992 amendment to Code ß8.01-384A meant to
the General Assembly, it meant nothing in the unpublished case
of a husband who objected to a circuit court's support modification
decision by endorsing the final order "Seen and Objected
to." The newspaper digest of Semer v. Semer (4/6/93 at 7
VLW 1180), does not reveal whether this was possibly a case tried
before the statute took effect, but the Court of Appeals declared
that "Seen and Objected to" is insufficient under Rule
5A:18. As in Broering v. Broering, 6 VLW 1075, and Boyd v. Boyd,
7 VLW 1368, the appeal was thrown out on Lee v. Lee grounds. In
some of these cases there was no transcript, and it may be that
all of them were tried before the 1992 amendments to Code ß8.01-384A
went into effect.
In a published case, which may also have dated from before the
effective date of the 1992 amendment, the Court of Appeals took
the care to repeat that endorsing a trial court order "Seen
and Objected to" ordinarily will not preserve an issue for
appellate review. However, it did preserve the issue in the particular
case at hand, Mackie v. Hill, 429 S.E. 2d 37 (1993), because the
ruling was narrow and therefore it must have been obvious to the
trial court what the appellant was objecting to.
It was even held that Lee v. Lee applies to a juvenile court "appeal"
to circuit court in Cox v. Cox, unpublished, 7 VLW 1155.
There are plenty of other ways in which you can unwittingly waive,
or otherwise lose, your right to appeal. You cannot appeal on
a point if you did not except to the commissioner in chancery's
report, it turns out from Dodge v. Dodge, 343 S.E. 2d 363 (1986).
See also McLaughlin v. McLaughlin, 2 Va. App. 463, 346 S.E. 2d
535 (1986), and Dukelow v. Dukelow, 2 Va. App. 21, 341 S.E. 2d
208 (1986).
In Carlton v. Paxton, ___ Va. App. ___,
415 S.E. 2d 600, the Court allowed an appeal to proceed without
a transcript or written statement under Rule 5A:6 and 7 because
the trial judge did exactly what counted for nothing in Lee v.
Lee: filed a detailed opinion setting forth all the issues.
Lawyers handling appeals found out with the announcement of Twardy
v. Twardy, ___ Va. App. ___, 419 S.E. 2d 848 (1992), that if counsel
signs a statement in the notice of appeal that a transcript will
be furnished, then the appellant must furnish and file the entire
transcript. Addressing an awkward mechanical problem that has
bedeviled appellees on occasion, the court explained that the
appellee has a right to rely on that statement as an assurance
that the appellee will find an entire transcript in the record
from which to designate the parts appellee wants.
White v. Morano, ___ Va. ___, 452 S.E. 2d 856 (1995), contains
some frightening news for those who have wondered whether the
appellate rules and statutes allow an appellant to be left entirely
without remedy if there was no transcript or the appellant cannot
afford one. This case holds that a judge who does not want to
sign a "narrative statement of facts" does not have
to do so. In this legal malpractice case the trial judge said
that he had not made meticulous notes and could not recall the
testimony, and the Virginia Supreme Court says the judge did not
have to sign the narrative statement if he did not want to. Although
Rule 5:11(d) says that a judge "shall" sign the narrative
statement, the Supreme Court does not want to put judges in a
position of having to sign a statement that would be "unrealistic"
if they do not remember the evidence.
And what about transcript deadlines? Rules 5 and 5A are written
as though there is just one big trial and one big transcript,
and then the appeal starts. But modern trial records are bristling
with multiple transcripts to memorialize the many battles and
skirmishes in the history of a long, dreary war -- any one of
which (non-final and unappealable till the end) might include
the error that is crucial to your appeal. Under Rule 5A:8 you
can file the transcript of the hearing right after the hearing
(which is when you're going to remember it), but you have to give
(to opposing counsel) and file (with the court) notice of its
filing not then, but five days after Notice of Appeal is filed.
Well sure you can remember that, if you have enough checklists
and you remember to check them -- but just saving up all your
transcripts to file after judgment rarely works, because often
you have to put those interim transcripts in the trial court's
file early on, for all the obvious reasons: reconsideration motions,
order-entry and other disputes over what the judge said, enforcements,
etc. The part of the Rule that deals with Agreed Written Statement
is even less logical.
Those who are used to mailing in their
appeal petitions, briefs, etc., at the last minute, or even during
the last week, must take notice of the Court of Appeals' holding
in Haywood v. Commonwealth, 423 S.E. 2d 202 (1992), now reaffirmed
en banc over Judge Benton's dissent, that an appeal petition that
was one day late because the U.S. Postal Service mistakenly delivered
it at first to the U.S. Court of Appeals for the Fourth Circuit
was untimely filed and must be dismissed. The Court points out
that this petitioner could have accomplished what is called "filing
with the clerk" by mailing it timely by registered or certified
mail with return receipt, and since he used conventional mail,
he assumed the risk of Postal Service foulups, etc.
A judge who may be inclined to cooperate in helping the parties
save their rights of appeal by manipulating the timing of orders
may as well not bother, for apparently the hostility of the appellate
courts to appeals of right is such that they will sniff this out
and penalize the appellant for missing the 30-day deadline that
ran from an earlier version of the final order, according to a
Virginia Lawyers Weekly summary of Halsey v. Chimento, unpublished,
9 VLW 657 (11/8/94). A support payee apparently appealed from
a September 1 order vacating the support judgment, but the Court
of Appeals could see that that order was really an amended order
and it did not amend the June 23 order enough to be any more than
a repetition of the substance thereof. Accordingly, the appellant
should have appealed back in June, and now has missed the 30-day
deadline. The earlier order was a final order, and the things
the appellant complains about were in it, so the appellant is
required to have appealed back then.
A number of other appeal-deadline banana peels can be found in
our jurisprudence at present. It may not seem that much of a trap
to alert lawyers that if a judge leaves a decree open for later
filing of a QDRO under Code ß20-107.3K, that does not keep
the order from being final and the appeal time from running (Newsome
v. Newsome, 441 S.E. 2d 346 (VCA 1994)), but how about the fact
that if the judge secretly drafts his own order, and tells no
one, that starts the deadline running? See Smith v. Stanaway,
___ Va. ___, 410 S.E. 2d 610 (1991).
Similarly, if there is bifurcation, then appeal-wise, you are
dead. If the equitable distribution is after the divorce decree,
you can't appeal it -- because, obviously, you have to have appealed
without 30 days of the original divorce decree, whether it had
any ED or support with it or not. See Hall v. Hall, 9 Va. App.
426, 388 S.E. 2d 669 (1990). In Dean v. Dean, unpublished, 5 VLW
600 (VCA 12/11/90), the appeal time started running even though
the judge had left the case "on the docket for further proceedings."
APPEALS -- Separation Agreement Set-Asides. The Virginia Court
of Appeals held in Polumbo v. Polumbo, 411 S.E.2d 229 (1991),
that the decision of a circuit court agreeing or refusing to set
aside a separation agreement as invalid is not a final order,
and thus cannot be appealed.
In Gottlieb v. Gottlieb, ___ Va. App.
___, 448 S.E. 2d 666 (1994), a decision that should cause appellate
counsel who are used to using multiple error assignments for safety's
sake to rethink, the Court of Appeals ordered fees for the wife's
counsel's work defending the appeal because "many of husband's
questions presented or assignments of error were not supported
by the law or the evidence."
Also, it appears that you can't appeal a pendente lite order because
it is a non-final order, but you also can't cite error in the
pendente lite relief when the time finally comes for actual appeal,
according to Pinkard v. Pinkard, 12 Va. App. 848, 407 S.E. 2d
339 (1991). As usual the only real rule in defensive practice
is "damned if you do and damned if you don't."
Apparently, you can even waive a jurisdictional defect, according
to Erikson-Dickson v. Erikson-Dickson, 404 S.E. 2d 388 (VCA 1991).
There is a beautiful malpractice trap
relating to briefing of appeals detailed in Buchanan v. Buchanan,
415 S.E. 2d 237 (1992): if you don't fully brief a point, with
argument and authority and how it would have been different if
the judge had obeyed a statute, and explaining what the judge
could have done right, your appellate argument is no good, and
the Court of Appeals can simply ignore it. The Court can ignore
briefed appellate points "not fully developed in the appellant's
brief". A brief does that when it fails to identify which
alimony-determining factors were non-considered by the trial judge
and how each would have affected the trial court's determination
if considered. The Court of Appeals did, apparently, find the
deficient sections of the appellant's brief to be mere statements
unsupported by argument, authority or citations to the record.
There is even a cute little malpractice trap for appellees to
get sued over. You cannot dismiss an appeal for failure to post
a high appeal bond (costs-alone bond) unless you give notice within
21 days after notice of appeal under Rule 5A:17.
In Bandas v. Bandas, ___ Va. App. ___, 430 S.E.2d 706 (1993), the Court of Appeals upheld an award of frivolous-filing sanctions against a husband for not knowing the new rule that it adopted in the instant appeal. The Court of Appeals admitted that this was a case of first impression, in which it had to look to the rulings of other states, but the appellant got it wrong, so he must be penalized. The new rule was that when an arbitration award is challenged in a domestic relations case the standard of review is neither "substantive fairness and equity" (what the husband argued), nor "gross miscarriage of justice" (which the trial judge thought) but "against public policy or unconscionable or other grounds to set aside a contract in equity."
When a wife breaches one of those familiar separation agreement clauses that requires the parties to verify their income levels with tax returns each year, that does not allow the husband to stop paying the support, the amount of which depends on the non-exchanged information, the Court of Appeals held. This is because time is not of the essence in contracts unless the contract expressly says so. Dziarnowski v. Dziarnowski, ___ Va. App. ___, 418 S.E.2d 724 (1992).
Divorce lawyers had better be careful
never again to advise a client that drafting a non-dischargeable
separation agreement property-division obligation can't be done,
and never to advise a client contemplating bankruptcy that he
will be safe from enforcement of such an obligation if he goes
for a bankruptcy discharge. The Virginia Court of Appeals has
taken the view that parties in a separation agreement can create
an obligation to pay a monetary award that cannot be escaped from
by bankruptcy. In Carter v. Carter, ___ Va. App. ___, 447 S.E.
2d 522 (1994), the Court of Appeals, over Judge Benton's dissent,
held that a bankruptcy court's discharging the husband's debt
to the wife under the separation agreement did not prevent the
divorce court from rescinding the agreement and ordering a monetary
award instead. The husband was not entitled to the benefit of
the separation agreement as a barrier to imposition of other marital-property
liability that goes beyond its specified terms. Actually, the
Court of Appeals holds that the debt under the agreement was a
dischargeable debt: it simply rejects the idea that Code sections
such as 20-109 and 20-109.1 protect him from an order that rescinds
the agreement and grants equitable distribution relief. However,
you'd better not rely on Carter, because the Court of Appeals
reached the opposite result on what looks to us rubes like mighty
similar facts in Moseley v. Moseley, ___ Va. App. ___, 450 S.E.
2d 151 (1994).
The U.S. Bankruptcy Court at Alexandria held that a separation
agreement provision that jointly-owned real estate will be transferred
to a trust for the benefit of the children was dischargeable,
not because it was deemed to be a property transfer rather than
support, but because the contract between the debtor and his wife
was merely "executory." Why? Because performance (conveyance
of the property) was "required only in the event of a divorce"
and that divorce (a final decree) had not yet occurred. In fact,
the Bankruptcy Court went on to hold, apparently in the belief
that separation agreements are scrutinized and passed upon by
divorce courts, the obligation of the debtor had not yet been
determined by a state court because the court had not yet formally
ratified that agreement and no obligation happens until divorce.
(Say again?) The Court went on to construe Virginia divorce law
by observing that the wife who had signed the agreement was, after
all, not precluded from seeking an award of support and maintenance
in the divorce proceeding. Lawson v. Lawson, No. 91-10262-AT (2/26/92),
7 VLW 609.
A premarital agreement which waives all claims against a spouse does not bar "consideration of" the husband's separate property to award the wife alimony, the Court of Appeals held in Hankins v. Hankins, 8 VLW 235 (7/27/93).
Gaynor v. Hird, ___ Va. App. ___, 424 S.E.2d 240 (1992), illustrates yet another bizarre hazard of bifurcation. Granting of the divorce while equitable distribution was still pending turned the parties' real estate into a tenancy in common, and this, the husband found out years later, gave his ex-wife the right to a full accounting between co-tenants, and this means that she gets to collect rent for the years he has spent in the former marital home while (to grossly oversimplify an incredibly complex case) her appeals and other contesting of the courts' procedures have delayed its sale and distribution. Moreover, the husband can't get credit for the cost of the improvements he made to the property while living in it alone, and the trial court's order so crediting him is reversed.
Think you understand pension division? Read Zipf v. Zipf, 8 Va. App. 887, 382 S.E. 2d 263 (1989). Then read the statute. Do you feel confident to advise clients about it? Do you tell them what the judge will do if you take the issue to trial? What do you say when you get to the Zipf part?
Now no attorney can safely advise a client that a court could never award a pension share any way but if/as/when, even though it says so in the statute. In Gamble v. Gamble, ___ Va. App. ___, 421 S.E. 2d 635 (1992), the Court held that a trial judge properly required husband to transfer other property to the wife in exchange for being allowed to keep his pension. The principle of Code ß20-107.3G that the General Assembly has so often, so vigorously and so vehemently reasserted that "the court shall only direct that payments be made as such benefits are payable," (i.e., the if/as/when rule), and the public-policy considerations behind it, did not affect the result here. The Court of Appeals seems to go to some trouble to explain that this is not a present-offset award, because it is just a present-offset award. There is a 40-page opinion explaining how the amended statute no longer prohibits, as it once did, a present offset order based on a pension, and that makes all the difference. In any event, counsel who once felt secure in advising pensioners, in negotiation or litigation, that if there is one firm principle of Virginia law it's the if/as/when rule must be careful never again to give that advice.
Gamer v. Gamer, ___ Va. App. ___, 429 S.E.2d 618 (1993), shows quite a number of things from the applicable statute, most of which would hardly occur to anyone as proof elements, that your expert must conclude and must testify to if your client is to qualify for any pension award at all. Some of these are present value, present value of one pension compared to present value of the other, separate property and marital property contributions to a buy-in arrangement, exactly how each "contribution" mathematically enhanced the present value, etc. It also seems to improve on such cases as Aster v. Gross, and Barnes v. Barnes by holding that if adultery had no proved economic impact, the adultery did not take place.
Never, never advise a client that adultery means no alimony. Whatever the Legislature meant by the term "manifest injustice," it now means something pretty close to one spouse making more money than the other. A case that many predicted they would soon see from the Court of Appeals at length arrived in the form of Barnes v. Barnes, ___ Va. App. ___, 428 S.E.2d 294 (1993). The most recent changes to Code ß20-107.1 provide that a court is still required to deny alimony to a party guilty of adultery unless clear and convincing evidence shows that denial would be a "manifest injustice," based on the respective degrees of fault and relative economic circumstances of the parties. The Court in Barnes holds that even though the husband had not committed any adultery and the wife had, "respective degrees of fault" does not mean divorce-ground fault, but instead "encompasses all behavior that affected the marital relationship, including any acts or conditions which contributed to the marriage's failure, success or well being." This marriage, in fact "had been irretrievably lost due to gradual dissolution caused by mutual inattention and fault from both parties." This included such things as the husband's "inattention to the wife and the amount of time he devoted to his business," and the wife's "inattention to him by moving out of the marital bed and watching television late...." And as to the other prong, economic circumstances, "manifest injustice" seems to be indistinguishable from the considerations judges have always applied to alimony: the wife's earning capacity and assets were substantially less than the those of the husband, so she gets alimony.
Any lawyer who tells a potential alimony
payor that his or her own adultery does not matter is no longer
safe at all. While the Court of Appeals has been busy eliminating
payee adultery as a factor in alimony awards, it has made it clear,
as in Gamble v. Gamble, 421 S.E. 2d 635 (1992), and the unpublished
opinion in Barden v. Barden, 9 VLW 1112 (2/28/95), that payor
adultery is in itself a sufficient basis for an alimony award.
Thus the lawyer who is only slightly old-fashioned and has not
kept right up with the times will have to scramble, because there
is serious malpractice liability potential here. Wilson v. Wilson,
442 S.E. 2d 694 (VCA 1994), holds that cohabitation by the payor
spouse can be a variation factor leading to an increase in child
support.
And even though the Code now says that fault can be a factor in
the decision whether to grant alimony, it turns out that if one
leaves the issue of permanent alimony till after the hearing on
grounds of divorce (which is where one would think it belongs),
and the grounds hearing produces a no-fault divorce, desertion
cannot be mentioned as a factor to deny or reduce alimony. The
explanation, in Wilson v. Wilson, 442 S.E. 2d 694 (VCA 1994),
is that its res judicata. Go figure. And while doing so, do remember
that a Virginia court has complete freedom to disregard proof
of fault and grant the divorce on no-fault grounds, so long as
there is no-fault proof there, regardless of how much fault proof
there may be. See Williams v. Williams, 415 S.E. 2d 252 (below),
and Alphin v. Alphin, 424 S.E. 2d 572 (VCA 1992). Thus any lawyer
who entertains some perhaps-foolish hope that he or she will get
any mileage out of adultery proof (for the courts are so unpredictable
that hope springs eternal after all) will be motivated to file
that adultery claim absolutely as soon as possible, in an effort
to bring the case to trial before the no-fault year has run. One
who hesitates to bring adultery proof is lost, so for knowing
lawyers there is no wait-and-see: it's go for it. This would be
especially true for a case of payor adultery, which is once again
a real hot item, worth lots of bucks, while payee adultery is
not.
In 1988 the General Assembly refused to repeal the traditional prohibition on a court's awarding alimony to a party against whom adultery is proved -- although they did, after intense debate, agree to allow an adulterer alimony to prevent a manifest injustice in the appropriate circumstances. The legislators reckoned without the Virginia Court of Appeals, however, which dislikes the prohibition. In what must have been a very hard case, the court explains (in an opinion that will put quite a premium on early and aggressive litigation of adultery cases) that a judge can easily award spousal support to an adulterous wife, without bothering with any "manifest injustice" finding. The judge can simply award the divorce on grounds of statutory separation instead, despite the adultery proof, and then there is no bar to awarding of alimony, fees and costs to the guilty spouse. Williams v. Williams, ___ Va. App. ___, 415 S.E. 2d 252 (1992).
A judge and a wife's attorney who both thought that the judge had managed to reserve authority to modify wife's spousal support in later years, long after the decree, found out that he had not. Twenty-one days after the divorce decree became final, the trial court lost all authority to modify alimony, since it did not say within the four corners of the decree that the right and jurisdiction to do so had been reserved. It is true that the judge made a statement, recorded on the trial transcript, that he intended such reservation, but that did not give him the authority to enter a nunc pro tunc order amending the support provisions later on. Dixon v. Pugh, ___ Va. ___, 423 S.E.2d 169 (1992).
No attorney is safe in advising a potential support payor that the court will not force him to work any more than one full-time job. In a remarkable decision based on the unusual facts of what must have been a very hard case from somebody's point of view, the Court of Appeals in Cochran v. Cochran, ___ Va. App. ___, 419 S.E. 2d 419 (1992), held that a trial judge cannot forbear to make a husband work two full time jobs (full plus part time or full time plus full time). In an opinion rather chillingly reminiscent, to support payors, of Hur v. DSS and Antonelli v. Antonelli, the Court held that a father can be made an insurer of a certain income level to which the wife and children have grown accustomed, even if it takes an unusual degree of exertion.
A parent who tries to make a tradeoff
of child support liability for some other benefit and write it
into a separation agreement as was done in Kelley v. Kelley, 435
S.E. 2d 421 (1993), by means of an indemnification clause may
not necessarily bring it off. To do that an agreement would have
to be "incorporated, ratified and affirmed/confirmed (but
not merged)." But a non-custodial mother, who thought she
was effectively contracting to escape child support liability,
got a decree that only "recognized" the agreement and
ordered it "filed with the papers in this cause." The
court would not have been bound under the Supreme Court's rule
in Kelley by even an incorporated and ratified agreement, and
non-incorporation is another reason it was not bound by this one.
Imputation of income is not really discretionary with the trial
court, but mandatory, the same case holds. A teetering structure
of cantilevered syllogisms rationalizes this in Hamel v. Hamel,
___ Va. App. ___, 441 S.E. 2d 221 (1994). It was error, the Court
of Appeals says, not to impute. It may be a deviation factor,
but it is a required one, so it is error not to. Why? Because
the catchall factor in the support statute, ß20-108.1(B)(3),
requires imputing income, even though it is not express, because
it is implied. Thus the risk of reduced income must fall on the
payor ­p- because any intentional act, even though
in good faith, must be punished. It is applied against the mother,
even though this is in a first-time support case, and not a modification
or an enforcement, so that there is no existing support order.
History reveals that she quit a job, so she has the burden of
proof to prove that her continued unemployment is not voluntary.
A notorious trap that many attorneys know about, but that is so violently at war with common sense that each new lawyer has to learn, concerns the termination of child support liability. You have to shake some people to convince them that the termination of one child's support when that child turns 18, and there are still minor children, is not automatic. Thus many payors are faced with claims for many years of arrears because they stopped paying the proportional share for a child who became an adult. But, as we all know, the payor has to go to court and seek a modification on grounds of the child's having come of age. In fact, as we read in Brown v. Brown, 240 Va. 376, 397 S.E. 2d 837 (1990), if there was a juvenile court order for support, neither emancipation of the child, nor a later divorce decree, nor annulment of the decree itself by the juvenile court, will stop the running of that support obligation, and the most fantastic arrearages can build up.
An interesting theoretical question
that is often kicked around by divorce practitioners in an academic
way is whether child support ends with the month before, of or
after a child's 18th birthday, or can legally be prorated to,
and only to, the birthday itself. Doubtless many parties have
decided that a part of a month's child support is not worth fighting
over, and have resolved the issue out of court by giving in or
compromising without a legal determination. For those who are
determined to enforce their legal rights to the penny, however,
neither the applicable statute nor the wording of most separation
agreements is very helpful in determining exactly through what
day child support must be paid. Section member Dorothy Clarke
reports that the Virginia Court of Appeals on July 20, 1993, in
the unpublished case of Cory v. Cory, upheld a Fairfax County
Circuit Court determination that the payor parent owes child support
for the entire month within which a child's 18th birthday falls,
with no proration involved. Accordingly, payor parents who wish
to avoid this result must pay much closer attention to the wording
of separation agreement clauses and support orders. The situation
is even more dangerous in the cases of payors who prorated and
got away with it, since there is no statute of limitations to
prevent the payor parent -- or possibly the child -- suing years
after the pro rata defalcation, once the arrearage is swollen
far beyond its original magnitude by accumulated interest liability.
Hence caution is advised.
SPECIAL ALERT: MALPRACTICE TRAP
Many of us have been assuring counsel who worried about the effect
of Lee v. Lee, ___ Va. App. ___, 394 S.E. 2d 490 (1990) that this
holding does not present a major obstacle to appeals in most cases
because (1) it is now pending reconsideration en banc, and (2)
it involved an extraordinary set of procedural facts resulting
in a very sparse record for the Court of Appeals to review. These
reassurances are not warranted. The Court of Appeals has stated
that they are required by the Supreme Court's holding in Weidman
v. Babcock, ___ Va. ___, ___ S.E. 2d ___, 5 VLW 706 (January 11,
1991) to dismiss summarily for failure to preserve objection any
appeal in which counsel at trial endorsed the final order "seen"
or "seen and objected to" without a full statement of
objection as per Lee v. Lee. The rule is being applied to cases
antedating Lee v. Lee and Weidman v. Babcock on the ground that
Weidman cited (which Lee did not) the riparian rights case of
Langley v. Meredith, 237 Va. 55, 376 S.E. 2d 519 (1989), applying
the same forfeiture rule to an appellee who was denied the right
to cross-appeal because he had endorsed the final order "seen."
Interestingly, Weidman v. Babcock was not treated as a major case
by the Virginia Lawyers Weekly issue of January 21 because it
appeared to be entirely fact specific. It was, incidentally, a
holding that the appellant had not waived his rights, since he
endorsed the order "seen and all objections noted."
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