VOLUME 26, NUMBER 3
FALL 2006
Chair's Message
1
Editor’s Message
1
Highlights of 2006 Virginia Adoption Legislation
By Stanton Phillips
3
Will Upholding an Institution Leave Victims Homeless?
By Christie Marra
6
Married to the Company
By Fr. Japus Gassalascus
9
Practice Note: The Dynamics of “Instant Arrearage”in Virginia Child Support
12
News Notes:
The Last Word On Edgy Advertising Schemes: LEO 1750
New LEO On Divorce Representation after Mediation
That New LEO On Sneaky Recording
Lawyer’s Duty To Safeguard Client’s Spouse’s Funds Argued
14
16
16
17
Quilp's Notes: The Basic Qualities of a Good Lawyer
19
Notes on Recent Appellate Cases
20
Legal Quotation of the Quarter
26
Submitting Articles and News
27
Board of Governors Roster
28
Editor: Richard E. Crouch
Assistant Editor: John Crouch
CHAIR’S MESSAGE
Hopefully everyone is “tanned, rested and ready” from a fun summer. The Board of
Governors has already had its first meeting and accomplished a good deal of work.
One of the more important accomplishments at our meeting was the creation of the
Family Law Service Award. According to a resolution adopted by the Board,
The Family Law Service Award shall be given to an individual or
organization who has consistently given freely of time, talent and energies to
provide valuable services in advancing family, domestic relations and juvenile
law in Virginia, whether such services are rendered to the Virginia legal
community or directly to the citizens of Virginia. This award shall be given
no more than one time per year. The recipient shall be determined by a
majority vote of the Board of Governors of the Family Law Section from
nominations made by the members of the Family Law Section.
The Family Law Service Award was created to balance out the Lifetime Achievement
Award. Individuals and groups perform valuable services which are worthy of recognition,
but which may not have yet culminated in a lifetime of work. There will be a downloadable
form on the VSB website to nominate a deserving candidate. However, no form is
necessary, so you can just write a letter of nomination to: Virginia State Bar Family Law
Section, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, Attn: Madonna
Dersch.
I would like to be accessible to all section members on what the Board is pursuing
and whether our work represents what the members desire. If you would like to give me
suggestions, feedback or just plain old grief, please email me at:
[email protected].
Brian Hirsch
Chair
EDITOR'S
MESSAGE
The things that used to distinguish Fall in Old Virginia, and Old Virginia in the Fall,
have all but vanished in recent years. The fox hunts and point-to-points have left the rolling
hills where year-old subdivisions now stand, and are being driven farther and farther into the
hinterlands, with all the other victims of rapacious, unstoppable development. The apple
1
orchards that used to brighten many thousands of acres of Virginia landscape in the Fall, and
on into December as each successive variety ripened, have vanished almost overnight as the
food industry realizes that’s just one more thing they can get from Communist China. Of
course the roadside cider business disappeared, truly overnight, a few years back, when it
was blamed for a case of e-coli from which a little boy died.
The smell of burning leaves that used to pervade every suburban block has been
stamped out by government regulation, and you will never smell it unless you are in the path
of an approaching forest fire. Pumpkins are still a big seller, but this year they are turning
virtual -- have started appearing in huge crates outside the supermarkets as realistic
reproductions made of hard plastic foam. So now even this slightly messy and potentially
unsanitary vegetable is on its way out, and the few remaining farmers, wherever they are,
will drop that crop quick as spinach.
Nobody shocks corn anymore, except the exterior decorators trying to draw buyers
into grocery stores with Autumn ambience. Even those colorful autumn leaves are getting
harder and harder to find, as all the forests, woodlots and individual shade trees are felled for
roads, shopping centers, subdivisions, “industrial parks,” office “parks,” etc., and those
things we used to call parks are being sold off for development by governments eager to
make a quick buck and more tax revenue and decrease expenses.
Even deer hunting seems to be on its way out as woods and fields turn into
subdivisions so fast that both hunter and hunted simply have nowhere to go. When the
animal is following you around the parking lot trying to bum a moon pie or a pack of nabs,
there’s just not much mystique or sport left in it.
2
So it’s becoming a grim and gritty urban landscape, dominated by buildings and
pavement, that looks the same in Virginia as any state, and Fall as any season.
But there’s one thing
that
doesn’t
change:
legislative activity. Each
Fall the General Assembly
gears up for the coming
Session, bills get drafted
and pre-filed, and many
family
lawyers
get
concerned about the state
of the State Code. Many of
the same lawyers as are
active in your Section are
urging amendments to
Virginia’s statutes or
sounding the alarm against
proposals they don’t like.
The legislative news in this Issue includes a summary by adoption lawyer Stan
Philips of major changes in the adoption statutes by the General Assembly in the 2006
Session that just appeared in your supplements this Summer. Anyone who represents natural
parents – if there is anyone who represents these much-maligned and marginalized persons
these days – will find much to be wary of.
One big legislative question
this year will be decided by the
voters – the actual citizens — who
will approve or disapprove a
constitutional amendment intended to preserve Marriage. A
rather polemical article by the
Southern Poverty Law Center’s
Christie Marra explains how the
amendment could be interpreted
to deprive unmarried cohabitors
of protections that Virginia
statutes have already been
amended to give them.
And speaking of legislation that gives domestic relations lawyers and their clients
fits, the “instant arrearage law,” said to have been drafted by that famous Jesuit Torquemada,
is the subject of a brief Practice Note in this Quarter’s Issue.
3
HIGHLIGHTS OF 2006
VIRGINIA ADOPTION
LEGISLATION
By Stanton Phillips, Tyson’s Corner
The Virginia legislature convened a joint
House and Senate study group to review Virginia’s
adoption laws for the first time since 1995. Led by
Senator Jay O’Brien, extensive procedural changes
were enacted effective July 1, 2006 to better protect
children and speed the process. The author assisted
the committee in providing drafting and technical
expertise.
§63.2-1201
Jurisdiction expanded to allow non-residents to Petition in Virginia
parental placement cases thereby allowing Virginia “birth parents” to
follow Virginia procedures.
§63.2-1202
Rewrote consent requirements particularly with regard to fathers not
married to mothers.
§63.2-1202(H)
Establishes an adoption abandonment statute where consent is not
required of a parent who “without just cause” has neither visited nor
contacted the child for six months. But this does not change the
parent’s right to be notified and heard.
§63.2-1202(I)
Allows fathers not married to mothers to consent to the adoption
before birth.
§63.2-1205
Rewrote the standard for waiving consent from requiring a
showing of detriment to the child to a best interests of the child
standard. As part of that standard, the statute continues to list factors
that the court must consider: The parent’s ability to care for the child,
his or her efforts to get or keep custody; whether those efforts have
been thwarted by other people; the quality of any previous relationship
between the parent and child, and between the parent and other
children; the child’s age; the duration and suitability of child’s current
placement; and the effect of a change of custody on the child. A new
factor is added: the “birth parent’s” ability and willingness to have full
custody.
§63.2-1208
Shortens the time for an agency to respond to an Order of Reference
from 90 to 60 days, and eliminates the Commissioner’s-review period
4
after Reports of Investigation. (Previously the Court could not enter
the Final Order until waiting 21 days.)
§63.2-1210
Simplifies timing requirements in agency and international cases and
allows the Court for good cause to waive timing of visits.
§63.2-1213
Eliminateds the requirement that there be at least six months between
entry of Interlocutory Order and Final Order of Adoption and allows
entry of Final Order after report of post-placement visits is filed and
child has been in physical custody for six months.
§63.2-1222
Allows the father not married to the mother to execute an entrustment
prior to birth. Shortens the time to object to an adoption entrustment
from 21 to 15 days of mailing notice to the father.
§63.2-1222(J)
Reverses requirement that out-of-state agencies follow Virginia
procedures and allows “birth parent” to waive Virginia procedures if
she is represented by counsel.
§63.2-1223
Allows for revocation of an entrustment agreement for 7 days after
execution, until the child is 10 days old or until child is placed.
§63.2-1225
Allows parents to recommend adoptive parents in agency placement
and does not require the exchange of identifying information.
§63.2-1226
When a parent identifies the adoptive parent in an agency placement, it
allows that parent to choose either agency or parental placement
procedures — not both as previously required.
§63.2-1228
Requires Court to immediately enter Order of Reference once satisfied
with jurisdiction and venue.
§63.2-1232(A)(3)
Allows parents and adoptive parents to waive full disclosure of
name and address in a parental placement simultaneous meeting.
§63.2-1233
Allows the mother to execute her consent in court as early as the third
calendar day of life of child instead of 10 days. Eliminated the
requirement that the unmarried father’s consent be taken only after
birth. Rewrote the rights of, and procedures regarding, unmarried
fathers. Allows for waiver of certain procedures when “birth parents”
fail to consent. Allows withdrawal of denial of paternity for up to 10
days.
§63.2-1234
Allows consents in parental placement adoptions to be withdrawn for
up to 10 days and prohibits withdrawal after the child is 10 days old.
§63.2-1237
Allows non-residents to file a Petition for Adoption in the city or
county where a “birth parent” gave a consent before the court.
5
§63.2-1241
Allows waiver of investigation in surrogacy cases and redefines when
the investigation can be waived in stepparent adoptions where parents
were never married.
§63.2-1242.1 et seq. Creates a new Article putting all close relative adoption provisions
into
one section. Adds greatgrandparents to class of close relatives.
§63.2-1243
Expands class of close relatives allowed to adopt an adult, and
shortens the period for which non-relatives are required to have known
an adult adoptee.
§63.2-1249
Conditioned upon funding, establishes a Putative Father Registry
effective July 1, 2007. Allows fathers not married to mothers to
register and receive notice of any adoption proceedings. The putative
father will be mailed a notice informing him of the registry and the
availability of the procedure for him to register.
WILL UPHOLDING AN INSTITUTION
LEAVE VICTIMS HOMELESS?
How Passing the “Marriage Amendment” Will Deprive
Unmarried Domestic Violence Victims of a Statutory Right
By Christie Marra
There has been much talk here in Virginia about whether passing the constitutional
amendment limiting marriage and marriage-like unions to those involving “one man and one
woman,” which will be voted on this November, will cause a flurry of legal challenges to our
state’s criminal domestic abuse statutes. (The passage of a similar amendment in Ohio led to
cases challenging the constitutionality of Ohio’s criminal domestic abuse statutesi.) What
has not been discussed is whether the passage of the “Marriage Amendment” here in Virginia
will have an impact on the existing statutory right of unmarried victims to obtain full relief
through protective orders under 16.1-279.1 and §16.1-253.1. The difficulty is that Paragraphs
2 and 3 of the constitutional amendment will require Virginia to retreat from political
positions that the General Assembly has already taken. It has redefined the word family to
include cohabitors, whether or not they share children, and whether they are homosexual or
otherwise. The statutory right of unmarried cohabitors to obtain exclusive use and
possession of someone else’s real estate through protective orders under §§16.1-253.1 and
279.1 could be severely limited by the amendment. The current definitions of “family abuse”
i
Those cases are now pending before the Ohio Supreme Court. E.g., Ohio v. Carswell, 2005 Ohio 6547, 2005
Ohio App. LEXIS 5903 (2005)
6
under these statutes would have to be eliminated in order for the statutes to be constitutional
under the proposed amendment. This article examines how passage of the amendment could
eliminate the right of unmarried victims of what our state now defines as family abuse to get
exclusive possession of the family home under Virginia’s family abuse protective order law.
The proposed amendmentii states as follows:
1. That only a union between one man and one woman may be a marriage
valid in or recognized by this Commonwealth and its political
subdivisions.
2. This Commonwealth and its political subdivisions shall not create or
recognize a legal status for relationships of unmarried individuals that
intends to approximate the design, qualities, significance, or effects of
marriage.
3. Nor shall this Commonwealth or its political subdivisions create or
recognize another union, partnership, or other legal status to which is
assigned the rights, benefits, obligations, qualities, or effects of marriage.
The first sentence is neither novel nor surprising and should have no impact on an
unmarried domestic violence victim’s ability to get relief through a protective order. With
this first sentence, Virginia is following the example set in approximately half a dozen other
states by elevating its long-standing statutory ban on same sex marriagesiii to a constitutional
ban. The second sentence is more problematic for unmarried victims of what legislation now
defines as domestic violence in Virginia, since it is identical to the new provision of the Ohio
Constitution that has led to numerous court challenges to Ohio’s domestic violence criminal
statutes.iv Two of these challenges led appellate courts in Ohio to declare the state’s
criminal domestic violence laws unconstitutional as applied to victims who neither were
married to nor had children with their abusers.v These courts held that the Ohio legislature
had “recognized the legal status of cohabitants” through the section of Ohio’s criminal code
applicable to domestic violence victims. As a result that code section, as applied to
unmarried victims cohabiting with their abusers, was rendered unconstitutional by the
passage of Ohio’s Marriage Amendment.vi The cases are currently on appeal to the Ohio
Supreme Court.
In light of the Ohio cases, the second sentence of Virginia’s “Marriage Amendment”
will clearly be troubling for prosecutors and others seeking criminal convictions against
people who abuse those with whom they cohabit. But it is the third sentence that may cause
significant problems for unmarried victims of domestic violence who are seeking the
protections afforded by an order issued pursuant to Section 16.1-279.1. The third sentence of
ii
S. 526 (Va. 2006).
Va. Code section 20-45.2 was enacted in 1975.
iv See e.g. Ohio v. Ward, 2006 Ohio 1407, 2006 Ohio App. LEXIS 1318 (2006)
v Ohio v. Ward, 2006 Ohio 1407, 2006 Ohio App. LEXIS 1318 (2006); Ohio v. McKinley, 2006 Ohio 2507,
2006 Ohio App. LEXIS 2379 (2006)
vi McKinley.
iii
7
the amendment prohibits recognition of any legal status to which is assigned the rights or
benefits of marriage. Thus, while the second sentence says that recognizing a relationship
that seems like marriage is prohibited, the third sentence goes one step further by prohibiting
individuals from obtaining any rights due to a relationship that seems like marriage.
The protective order statute can be said to assign “rights of marriage” to cohabitants
in this way: Section 16.1-279.1 authorizes a court to issue a family abuse protective order
against someone with whom a victim has cohabited within the twelve months prior to the
hearing and against any individual who has a child in common with the victim.vii It also
enables a court to grant the victim exclusive possession of a home formerly occupied by the
victim and the abuser together, even when the abuser holds the title in his name alone.viii By
doing so, the statute arguably recognizes a legal status (i.e. that of cohabitant or co-parent)
and assigns to that status the legal right to have exclusive possession of property owned by
another without entering into any leasehold agreement. Nowhere else does Virginia law
allow one person to have exclusive possession of another’s property against the property
owner’s wishes and without financially compensating the property owner except in cases of
divorceix and in cases of a surviving spouse awaiting final adjudication of the estate of the
decedent.x
Thus, the right to exclusive possession of property created by Virginia’s
protective order statute is one that is normally granted only to a spouse of the property
owner. Arguably, then, Virginia’s family abuse protective order statute recognizes a legal
status and assigns to that legal status a right of marriage.
If the “Marriage Amendment” passes in November, it may well lead to successful
challenges to the constitutional validity of those subsections of Code §16.1-279.1 that enable
courts to grant unmarried victims and their children temporary shelter through exclusive
possession of the “family” residence. Exclusive possession of the residence is not merely the
icing on the protective order cake. For many victims, it is the only way for them to avoid
moving their children into a shelter or, worse yet, onto the street. Nationwide, between 22%
and 57% of homeless women self-report that domestic violence was the direct cause of their
homelessnessxi. (Note that the same changes were made in § 16.1- 253.1.) The Virginia
Sexual and Domestic Abuse Alliance says that in Virginia in 2003 over 5500 Virginia
families were forced out of their homes by domestic violence; the shelters throughout the
state had room for less than 4000 of them.xii The portion of the present family abuse
protective order statute that enables courts to grant victims shelter by taking the real estate of
an unmarried cohabitor keeps these numbers from being far higher. If the courts lose the
ability to grant unmarried victims and their children temporary exclusive possession of the
home through § 16.1-279.1, then because the homeowner driven out by a protective order is
only one homeless person, but a woman driven out of the same home by inability to get a
protective order may be a woman accompanied by a child or children, the statement can be
made that the homeless population in our state will undoubtedly rise.
vii
Definition of family or household member, Va. Code section 16.1-228.
Va. Code section 16.1-279.1(A)(3)
ix Va. Code section 20-103
x Va. Code section 64.1-16.1
xi Source: National Law Center on Homelessness and Poverty, www.nlchp.org
xii Source: VAdata Report on Sexual and Domestic Violence (2003) at www.vsdvalliance.org
viii
8
It is hard to imagine that increasing the number of homeless women and children in
Virginia was what the General Assembly had in mind when it passed the Marriage
Amendment for a third time earlier this year, insuring its placement on the ballot this
November. In fact, other actions by the General Assembly this year worked toward the very
opposite goal. That body passed two laws, both of which became effective July 1st, that
enhanced the rights of victims of domestic violence and their children to remain in suitable
housing. The first, SB 120, expressly authorizes a court to require, in a protective order
issued under § 16.1-279.1, that the respondent maintain or restore utility services to the
family residence when that residence is granted exclusively to the victim. The second, SB
118, prohibits landlords from evicting tenants solely because they are victims of family
abuse, as long as the victim provides the landlord with a copy of a protective order excluding
the abuser from the premises or confirms other information the landlord has received that
family abuse occurred. Both new laws provide additional rights to a victim who obtains
exclusive possession of a home through a protective order.
If the voters pass the Marriage Amendment this fall, the broad language of its third
sentence will raise questions about the constitutionality of many laws that grant unmarried
citizens of Virginia rights that they have come to take for granted, rights that the General
Assembly deliberately made available to them. The right to temporary exclusive possession
of a home titled in the name of a domestic partner accused of abuse is only one of these
rights. It is one, like many others, that the General Assembly lawfully created, one that keeps
many victims and their children from falling into homelessness. And, like many others, it is
one that could be eliminated if the voters pass the Marriage Amendment this fall.
Married to the Company
By Fr. Japus Gassalascus
Originally published on the “New Pantagruel” “blog”, http://www.newpantagruel.com.
This posting available at http://snurl.com/wedco. Used by permission.
According to the San Francisco Chronicle [see link to its article in online version of this
article], the problem with marriage is that it only comes in one size. People want more
choice, we are told, and the free market provides the perfect answer in the form of various
corporate relationships available. “Exclusivity and the use of choice to define one’s identity
are at the core of modern consumer society” the Chronicle informs us. “Extending this to
marriage is only logical. Marital corporations would be a huge boost to the multibilliondollar wedding industry, while opening up a vast range of possible business opportunities
throughout society. Some could be established as nonprofit organizations that also work in
furtherance of social or environmental causes about which some couples have strong
feelings. Others might become investment vehicles, whose assets form the marital nest egg.
Still others might charge a subscription fee that would then be invested to pay dividends to
lasting marriages upon significant anniversaries.”
I can imagine what such a future might bring.
9
Barkeep: What’s the matter, pal? You don’t look so good.
Pal: My marriage is on the rocks.
Barkeep: No kidding? Rough stuff. I remember when my missus left me, she got the kids and
the ‘vette. Tough times.
Pal: This is worse. My marriage has just become the victim of a hostile takeover. I just came
from the annual meeting where they just threw me and my wives and husbands off the Board
of Directors. The lawyers tell us it was all nice and legal!
Barkeep: So what’s your company got to do with your marriage?
Pal: You don’t understand, my company is my marriage. It’s one of those new corporate
marriages. They make marriage more about you and what you want, more flexible, you can
choose your own arrangement, you know, not so stuffy. It’s a really great way to make more
people happy.
Barkeep: [confused] So, you’re like, married to a bunch of stockholders?
Pal: Yeah, that’s the idea. Look, this is my marriage we’re talking about here. My spouses
and I worked our tails off to build this thing into something really special. I mean, things
weren’t easy for us in the early days. When we were just a startup in my parents’ garage we
had to pool our pocket change just to have enough to afford all the condoms.
Barkeep: [still confused] What happened?
Pal: I hardly know myself! But it seems that a group of eHarmony rejects got together as a
measure of last resort and hired themselves some shark off of Wall Street to find a
“loophole” in the new marriage laws. It seems they found a source of offshore funding and
formed a conglomerate … and began buying up all outstanding shares of my marriage on the
sly. My marriage! I still can hardly believe it.
Barkeep: So, you’re out now, it’s like a divorce?
Pal: No, no, no. You’re not listening. There is nothing so despicable as divorce in corporate
marriage. I’m still married, it’s just that I and my previous spouses have been divested of our
controlling interest by our new spouses.
Barkeep: How did that happen?
Pal: Well, at our annual shareholder’s meeting, just concluded, [the conglomerate]
announced their controlling interest in the marriage and voted themselves onto the Board.
They rewrote the by-laws and each former board member received this nasty letter from the
… Wall Street shark advising us in the sternest terms that if we failed to meet our obligations
pursuant to the corporate charter and by-laws our shares would be forfeit. I can’t let that
happen! My whole life is tied up in this marriage, not to mention all of my assets.
10
Barkeep: So what are your obligations?
Pal: You were married once, you shouldn’t have to ask.
Barkeep: That bad.
Pal: It’s bad all right. And if they think they can get away with this without a fight they have
another thing coming. During the board vote I stood up and shouted “What about SarbanesOxley! What about Sarbanes-Oxley! But they just drowned me out with chants … . I mean,
is nothing sacred anymore? I tell you, I’m living through Enron marriage hell right now. And
all I want is to be happy. To do things the way I want to do them. To be loved.
Man at Bar: Excuse me, I couldn’t help overhearing your troubles. Let
me tell you, it’s not love you want, that’s only for the religious freaks.
What you want is a Limited Partnership Marriage. It closes off all those
corporate loopholes, gives your marriage a much firmer foundation.
Pal: Really? How do they work?
Man at Bar: Look, here’s the legal forms I just
picked up at Office Depot. As many of the
spouses as want to are General Partners.
They’re the face of the marriage, go to the
parties, make friends, show up at PTA meetings,
all the usual stuff. And if you’re lucky, you can
swing a Limited Partnership slot.
Pal: What do they do?
Man at Bar: They pretty
much just provide the
venture capital and screw
the GPs whenever they
get the chance.
PRACTICE NOTE
THE DYNAMICS OF “INSTANT ARREARAGE”
IN VIRGINIA CHILD SUPPORT
You’ve surely heard of the instant-arrearage rule. If you haven’t, and you handle any
cases in which your client might end up being a child support payor in Virginia, you’re in big
trouble already. Judges have heard of it, and they will gladly explain to the incredulous and
the ignorant that it’s absolutely mandatory. No support payor, no matter how virtuous, no
matter how selflessly he has been willing to pay – and has paid – all the family’s bills before
11
separation and since, can escape being instantly in arrears at the moment of a child support
judgment, because the liability for those monthly payments at the decreed amount has to run
from the time of the case’s filing. And remember that this means filing, no matter who filed.
And remember too, while you’re at it, that this instantly means that all the draconian
punishment mechanisms and badges of servitude that go along with the fourth-class-citizen
status of being a payor in arrears instantly apply.
So just where is the “instant
arrearage” provision? After some
looking you’ll find that it’s in the last
sentence of the first paragraph of §20108.1B. And though you’ll find no
clue in the annotations, it appears to
have been around since 1996.
Now let’s think for a moment
about what this means. The statute
not only fails to encourage the
arguably best behavior by a payor
who does his duty as a father, a
gentleman, a citizen and a man by
paying all the family’s bills without
having the joys of living with his
family and while having to maintain a
new second housing unit for himself –
and probably does that duty because
he wants to do the right thing. It also
punishes, with a gleeful sadism
straight out of the Grand Guignol,
that
altruistic
behavior
while
encouraging payors of the meaner sort
in what’s arguably the worst and most
irresponsible behavior.
Let’s consider that, for purposes of giving clients needed
legal advice. In other words you have to advise your client that
unless he wants to be a fool, a victim and a chump, he’s got to
tell Mom something like “Frankly, my dear, I don’t give a
damn. I’m following my lawyer’s advice, and you’ll get all the
money you are entitled to when the judge rules.”
Because just imagine for a minute you’ve got a client
who is willing to stand up to the plate and keep paying all the
household bills while he lives elsewhere, and figures that’s
what you’re going to advise him to do. This client is going to
be astonished, maybe even righteously outraged, when he finds
that even though he’s paid it, he’s got to pay it all over again,
and under the most punitive of terms, because nothing he has
12
paid counts and he is facing a big fat arrearage. He can write a
big fat check right now or just go over and get photographed
and fingerprinted and join all the other Deadbeat Dads (and
Moms) in the felony-perpetrators lineup.
Lots of lawyers, however, continue to think that the instant arrearage statute isn’t
mandatory and a judge can, if charitably disposed toward payors, give the newly-minted
payor parent a break. It’s hard to see how, since the language of this particular sentence of
§20-108.1B doesn’t say a word about that. In fact the sentence says: “Liability for support
shall be determined retroactively for the period measured from the date that the
proceeding was commenced by the filing of an action….” Well a judge might be
motivated to give breaks simply because the whole concept of instant arrearage is so illogical
and unjust that saving someone from this particular hangman’s noose doesn’t need to be
justified. Or the judge might want to do it in the narrower band of cases that concern those
straight-up guys who have paid, without being told to do so, all the family’s bills since the
separation date.
And in fact a Fairfax judge tried to do that because to follow the rule would be
“ridiculous” in that context, and not “make any real accounting sense.” The Court of
Appeals was not amused. In fact it was shocked at this effrontery. There was a lot of debate
in that particular case at trial and on appeal about whether this amounted to giving “credit for
non-conforming payments” under the existing case law. But ironically all of that discussion
couldn’t have been less relevant, because as the Court of Appeals saw it, that point was not
preserved for appeal. Accordingly, the Court of Appeals looked only at whether “shall”
means “must,” and concluded that as used here it certainly does. This was in Cirrito v.
Cirrito, 44 Va. App. 287, 605 S.E.2d 268 (2004).
So is there any way under, over, round about nor through this counter-intuitive
requirement of the statutory law? To pose this question is not to ignore the fact that there is a
vast segment of the litigating population which may be 100% satisfied with it. And while
we’re on the subject, rest assured that the authors are not forgetting that the use of male terms
throughout the above paragraphs is nothing but an arbitrary and linguistic convention.
Anybody who does significant amounts of child support litigation
today must know that with women’s salaries being what they are, and
with the thousands of non-custodial mothers out there, some of these
luckless obligors are increasingly likely to be female. What’s going to
differ between the sexes is simply that lawyers are going to be far less
likely to have incurred malpractice liability by urging these ladies to
be gentlemen and do the right thing.
So now that we have properly apologized for asking the
question, how about it: Is there anything a judge can do other than
order the instant creation of a deadbeat parent? Can, for instance, the
rationalization that was tried in Cirrito be tried? Well obviously, the
answer there is not just No, but Hell no. Except. Except that the Court
of Appeals, after its emphatic and definitive dissertation, at the very,
very end of this long discussion, dangles the tantalizing or at least
13
intriguing caveat that “We do not address whether husband is entitled
to any credits [emphasis added, and to be read in the light of an Acreeciting footnote.] for his voluntary payments or whether the court can
consider these payments as deviation factors [emphasis added.] under
Code § 20-108.2.”
This may remind most lawyers of the cartoon character Lucy Van Pelt, when she
holds the football for Charlie Brown to place kick.
And now, with all of that said, how about this rule’s application to support
modifications? When a mother goes to court to jack up the support obligation it’s under Code
§ 20-108. Well, that Section has its own instant-arrearage rule, in the second paragraph,
worded about the same. About the same, but not quite. Read the wording of the second
paragraph carefully, and you will see language that surely seems to be discretionary, and not
mandatory. “No support order may be retroactively modified,” it says, “but [one] may be
modified with respect to any period during which there is a pending petition for
modification….” The Cirrito opinion, 44 Va. App. at 310, 605 S.E.2d at 279, confirms that
this creates a non-mandatory option of non-retroactive modification.
NEWS NOTES
THE LAST WORD ON EDGY ADVERTISING
SCHEMES: LEO 1750
The Virginia State Bar’s Standing Committee on Lawyer Advertising and Solicitation
has done lawyers and the public a huge public service by reshuffling a confusing mass of
Virginia lawyer-advertising law and ethics rules to produce an up-to-date compendium,
issued as a legal ethics opinion, LEO 1750, that addresses many issues raised by the boldest,
the greediest, the tackiest and the most unscrupulous amongst us. The very lengthy opinion
unflinchingly comes to grips with the harder ethical issues, and does not hesitate to tell
various huckstering lawyers they’ve done bad, and to explain to them very kindly and gently
exactly how and why.
For the most part the opinion is characterized by a felicitous prose style that provides
welcome relief from the insufferable lawyer talk usually found in legal ethics opinions. It is
almost a delight to read, if you can stomach the substantive content of it all. Attempting to
summarize it would not do it justice, but suffice it to say that the Committee found nearly all
of the advertising materials it reviewed to be misleading, deceptive, and violative of Rules
7.1 and 7.2 in the following areas: use of actors in TV advertising, use of phrases like “No
recovery, no fee,” the use of fictitious names for law firms in advertising material (e.g.,
“AAA Lawyer Shop”), stating that an injured accident victim must consult an attorney before
speaking to insurance company reps, misrepresenting what various private lawyer referral
schemes are and do, advertising specific or cumulative case-results success, and laudatory
statements in the form of third-party testimonials. With each of these categories, the
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Committee goes through the merits of the claim that in a particular kind of hypothetical
situation it arguably might be ethical, and then in effect calmly and patiently shoots it down.
A few of these devices might
conceivably be ethical if bracketed by
enough disclaimers, stern warnings,
informed waivers, etc., but they would
not be thus encountered in real life.
With two advertising devices, the
Committee had to be more careful, and
acknowledge the possibility of its being
ethical if not mishandled. Stating that
one is listed in “Best Lawyers In
America” would be ethical if one did not
in any way imply that such listing is
based on objective criteria, and if one
avoided exaggeration. The Committee
explains that a lawyer can boast of a
particular honorific accomplishment,
such as a Martindale-Hubbell AV rating,
if so inclined. The final ethics ruling,
which will surprise lawyers raised under
earlier sets of rules, gives its blessing to
advertising that a lawyer is a specialist,
specializes or practices a specialty. It
would be false and misleading, however,
if one used the term “certified specialist”
unless certified in the patent or admiralty
field or some other[?] “certification
recognized by the Virginia Supreme
Court.”
NEW LEO ON DIVORCE REPRESENTATION
AFTER MEDIATION DEMANDS
CLOSE, CAREFUL READING
The Virginia State Bar Legal Ethics Committee, bless their hearts, have labored
mightily to produce a Legal Ethics Opinion, LEO 1826, which exhaustively deals with the
subject of tangling up the mediation business with the divorce-law business, and which
absolutely defies summarization. All readers who as much as dabble in this kind of work
will have to read it, even though the hypotheticals involve the kind of entangling alliances
most of us would never think of going near and only an unbelievably greedy moral idiot
would come up with.
While the Committee could have saved itself and its readers enormous amounts of
time simply by invoking the easy-to-follow old ethics rule that “a lawyer must avoid even the
15
appearance of evil,” LEO 1826 sifts through an unbelievable number of what-ifs. After
listing a large number of mediation-representation combinations that present unwaiveable
conflicts of interest, it finds a few that, when bracketed by enough warnings and disclaimers,
might conceivably be lawfully waived. It would take a very long time to describe the
hypotheticals, as this involves not only representing a client in his or her divorce case after
doing the mediation, but what kinds of vicarious disqualifications might apply if you are a
director of a corporate “mediation firm” – or are just a member. This is because then you
must have a degree of loyalty to that business enterprise, and that raises conflicts issues if
you then want to go and do the people’s divorces.
The kaleidoscopic analysis probably doesn’t miss any possible combinations, but the
bottom line is you’ve got to read it. (It would also have helped the Committee if they simply
could have invoked the old rule that no lawyer can combine his law practice with a lay
person’s business, because the hypothetical one-stop mediation shop includes non-lawyer
mediators, but of course that easy-to-grasp alternative is no longer available).
THAT NEW LEO ON SNEAKY RECORDING
RECORDING TELEPHONE CONVERSATIONS – AMENDMENT TO RULE 8.4
COMMENTARY. There has been a lot of publicity about a change in the State Bar’s
position on lawyers recording phone conversations. The text of the vast change to the
Commentary on Rule 8.4 is – apparently – published in 55/2 Virginia Lawyer Register at
pages 63 and 64. However, as the State Bar discusses “Inspection and Comment,” there is an
unsettling notation that the proposed amendment may be inspected at the State Bar office
between the hours of 9:00 a.m. and 4:30 p.m. on Monday through Friday and can also be
found on the State Bar web site.
The draft proposal leaves Rule 8.4 on misconduct alone, and changes only the official
Commentary. It adds new paragraphs 6, 7, 8 and 9 to the Commentary, all under the title
“Use of Undisclosed Recording.”
First of all, be warned: the proposed new rule leaves lots and lots of room for the
State Bar or other authorities to prosecute you. There are dozens of ways in which the same
act could be seen as O.K. or unlawful/unethical depending on whether they like you or not.
While Virginia is full of lawyers who will immediately run off and start tapping phones and
wearing the wire because of this, the Legal Ethics Committee’s own summary of its draft
changes to Rule 8.4 Commentary will afford cold comfort to anyone who reads it carefully
and takes it seriously. Undisclosed recording of telephone conversations is said to be
generally all right if it is (a) lawful, (b) consented to by one party, (c) part of an investigation
on behalf of the lawyer’s client, (d) not effectuated by misrepresentations and (e) not
violative of the legal rights of another. One can easily imagine how creatively all of these
infinitely debatable concepts could be used to advantage by prosecutors, Bar counsel, and
lawyers representing civil litigants in lawsuits who allege that a particular lawyer’s act was
still unethical.
16
The summary about sums it up, and the full text of the four new Commentary
paragraphs set out at 55/2 Virginia Lawyer Register 64 say little more. It has been quite a
few years since the Supreme Court suspended Mr. Gunter (241 Va. 186) on the ground that
there are certain things that gentlemen do not do, and those things are unethical whether the
Disciplinary Code names them or not. This state of perilous uncertainty that lawyers have
lived with since 1991 has surely raised numerous lamentations and complaints, and placed
lawyers in the position they really hate, of being unable to give coherent advice because they
don’t know what the law is, because nobody does. It is clear that the Committee wants to
avoid the entrapment of some innocent and well-meaning colleagues. It is also clear,
however, that the Powers That Be still consider it a dirty business, and they will get you if
they want to.
And a final word for those who think they have new-found authority to collect phone
conversations for use in evidence. Don’t forget that highly efficient impediment that the
Committee doesn’t even mention: the evidentiary statute. Just bear in mind, when tempted to
record, that Code Section 8.01-420.2 is pretty likely to keep anything useful out of evidence
anyway.
LAWYER’S DUTY TO SAFEGUARD
CLIENT’S SPOUSE’S FUNDS ARGUED
DISCIPLINARY CASES - CUSTODY OF DISPUTED FUNDS – WIFE’S REALTY SALE
PROCEEDS UNDER SEPARATION AGREEMENT - SAFEGUARDING CLIENT
FUNDS, ETC. The disciplinary case, at 55/2 Va. Lawyer Register 2, of a rather brazen
fellow named Lowery brought up some truths that prosecutors can get carried away and tend
to forget. Mr. Lowery and his counsel, Michael Rigsby, were probably well advised to take
his case to a three-judge circuit court rather than the State Bar Disciplinary Board. A
separation agreement provided that the proceeds of sale of a marital house should, “after all
costs relating to the property have been paid and any indebtedness relating to the property
has been satisfied,” be “divided equally between the parties.” Mr. Lowery did not take part
in the real estate settlement, and husband received the whole $62,604.79, and then brought a
check for his wife’s half to Mr. Lowery, who put this $31,032.40 in his trust account. He
then gave Lowery a statement with a number of rather questionable deductions listed which
he, husband, believed should come out of wife’s shares. The net amount that would have left
for wife would have been less than $20,000. Two weeks later Lowery wrote the wife’s
lawyers describing his client’s position as to the deductions from the proceeds, and offering
to immediately give them the $19,332.42 reduced net balance. These lawyers wrote back the
same day vehemently rejecting the proposal and saying that husband was in contempt of a
court order. While rejecting the deal, the wife’s lawyer did insist on immediate payment of
the undisputed $19,332.42 amount. Over the next few months, Mr. Lowery held off the
wife’s lawyers, offering to pay them $10,000 to settle everything (including his client’s child
support arrearages), and he also withdrew sizable amounts from the disputed money still in
his trust account for legal fees and costs, and for payments of various amounts on his client’s
past due child support bill. Her lawyers continued to make demands for her entire half of the
settlement proceeds. Even after a Bar complaint had been filed against him, and even after
his counsel had responded to it, Mr. Lowery continued to make withdrawals from the
17
disputed amount until there was very little left. The Bar charged misconduct under Rule
1.15, “Safekeeping Property,” specifically Subsection (c), and under Rule 8.4 which is
simply “Misconduct.”
But regrettable as the husband’s lawyer’s conduct was, the circuit court
understandably had a hard time seeing any violation of these two Rules. The Bar argued that
the lawyer violated Rule 1.15(c)(1–4) by failing to either preserve or turn over to wife the
whole sum she was due, but those Rules are clearly addressed to the safekeeping of one’s
own client’s property. The Bar relied upon language in the Commentary stating that “A
lawyer may have a duty under applicable law to protect such third party claims against
wrongful interference by the client, and accordingly may refuse to surrender the property to
the client.” Of course not only does that refer to other “applicable law,” rather than the
disciplinary rules, but that sentence of the Commentary is also followed by a sentence saying
“However, a lawyer should not unilaterally assume to arbitrate a dispute between the client
and the third party.” The court did not find a Rule 1.15 violation by clear and convincing
evidence. The victim was not in any way, as shown by the evidence here, Mr. Lowery’s
client. Certainly the lawyer did not treat the disputed funds the way he should have done,
which was to preserve it all while in dispute – particularly after being notified by wife’s
lawyers of their position. However, the court here was trying a disciplinary case and nothing
else, and it had to stick to the disciplinary rules under which the lawyer was charged. As for
getting a violation out of some language in the Commentary, the Preamble to the Model
Rules itself says that “Comments do not add obligations to the Rules, but provide guidance
for practicing in compliance with the Rules.” Thus the court granted a motion to strike the
charge under Rule 1.15. The Bar admitted that the Rule 8.4(b) violation was based only on
the theory that Lowery had violated Rule 1.15, so that charge too was dismissed. That left
Rule 8.4(c) which is “Engage in conduct involving dishonesty, fraud, deceit” etc. A
violation was indeed found here, because the lawyer had falsely told opposing counsel late in
the game that there was nothing left of the house proceeds in his trust account, when in fact
there was $3,724.11 there. The sanction was “admonishment without terms.” The parties
relied on LEO 1471 and 1747, respectively. LEO 1747 forbids disbursing funds to a client
when “by agreement or by law,” that client is “under a legal obligation to deliver those funds
to another.” The court could not conclude, however, on the evidence before it, that the
lawyer was under legal obligation to deliver the entire amount to wife. Respondent did have
the nerve to argue that when he told the wife’s counsel “I do not have any proceeds from the
house sale,” he meant that he did not have any money that wife could have, but the threejudge court was not convinced by that.
Quilp’s Notes
Being A Selection Of Excerpts Intended to Bring the Perspective of
Past Ages to Bear Upon Such Matters As Marriage, Divorce, Custody,
Relations Between The Sexes Generally, The Courts And Law Practice
THE BASIC QUALITIES OF A GOOD LAWYER
From Casner & Leach, Cases and Text on Property, pp. 4-5
18
Most of us who were engaged in the war effort, military or civilian, came away with a
feeling of pride in our profession. Speaking for ourselves, we came back to law-teaching in
1946 with a sense of renewed dedication derived from a fairly consistent experience of
finding lawyers doing new and exacting jobs well and imaginatively – not only the jobs that
were in the public eye, but such things as a civilian directing the organization which handled
the Japanese code intelligence, a captain establishing a jungle rescue service in Burma, a
lieutenant (j.g.) untangling an air-transport mess in New Caledonia, a lieutenant-colonel
exercising key logistical authority in the preparations for the Normandy invasion.
The best way to describe a good lawyer in a phrase is to call him a professional in
versatility. This is another way of saying that he has acquired certain abilities that enable
him to operate effectively in any enterprise, familiar or unfamiliar, to diagnose its difficulties
and contribute substantially to the solution of its problems. His usual field of operation is
one in which the legal ingredient is large, and to this ingredient he brings professional
knowledge as well as the basic abilities; but the fact that the nonlegal ingredient is frequently
dominant and the further fact that the situations in which his help is solicited are many and
varied give him the habit of tackling new problems with confidence and skill, regardless of
their nature.
Our listing of the basic qualities is the following:
1. Fact consciousness. An insistence upon getting the facts, checking their accuracy,
and sloughing off the element of conclusion and opinion.
2. A sense of relevance. The capacity to
recognize what is relevant to the issue at hand
and to cut away irrelevant facts, opinions, and
emotions which can cloud the issue.
3. Comprehensiveness. The capacity to see
all sides of a problem, all factors that bear upon
it, and all possible ways of approaching it.
4. Foresight. The capacity to take the long
view, to anticipate remote and collateral
consequences, to look several moves ahead in
the particular chess game that is being played.
5. Lingual sophistication. An immunity to being fooled by words and catch-phrases;
a refusal to accept verbal solutions which merely conceal the problem.
6. Precision and persuasiveness of speech. That mastery of the language which
involves (a) the ability to state exactly what one means, no more no less, and (b) the ability to
reach other men with one’s own thought, to create in their minds the picture that is in one’s
own.
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7. And finally, pervading all the rest, and possibly the only one that is really basic:
self-discipline in habits of thoroughness, an abhorrence of superficiality and approximation.
These are not qualities which spring naturally from a gentle family background plus a
liberal-arts education. You will be shocked at your deficiencies in all of them as your
professors will point them out. But be not dismayed, for the qualities can be acquired and
developed; and the law schools of this country are in the business of doing precisely that.
The important thing is that you realize that this is what they are striving for – this, even more
than “teaching law.”
Beyond this list of rather earthy qualities, transmissible from teacher to student, lie
insight, ingenuity, imagination, and judgment – native qualities which distinguish the artist
from the artisan, genius from competence. And above all stands character – that
indispensable resource in a profession which is charged with maintaining Equal Justice under
Law.
NOTES ON RECENT APPELLATE CASES
CHILD SUPPORT – MODIFICATION – PENDING AND ENDED CAUSES – “FINAL
ORDER” – LONG-PENDING MODIFICATION CASES – RETROACTIVITY – LACHES
- MALPRACTICE TRAPS. Many a court clerk will look at anything that says “Final
Order,” or “And This Order Is Final,” and treat it as an ended cause, with all that that entails.
But what about a final order that disposes of only one claim, by one party, when another
claim, by the other party, is still pending? The fact that the judge issued what she called a
“final order” gratifying the ex-husband’s petition to eliminate alimony for cohabitation that
did not mean that the mother’s simultaneously-pending petition to increase child support
(because husband had received a lot of money) was also killed off. Thus, when the wife
came back four years later to press her claim for a child support increase (retroactive at least
two years back) the trial court properly rejected the husband’s pleas of res judicata and
laches, the Court of Appeals says. The husband in Stiles v. Stiles, 48 Va. App. 449, 632
S.E.2d 607, 21 VLW 264 (8/1/06), argued that the “Final Order” (which was so captioned)
granting his cohabitation-termination claim disposed of all claims pending at the time by
either party, and thus ended the case. Not so, the Court of Appeals says: a final order can
dispose of one matter while leaving others pending. This one did not remove the case from
the docket and did not end the cause. (What exactly did it say about these matters? The VCA
Opinion does not tell us.) His argument that the wife did nothing on her claim for four years,
so that her modification claim should be barred by laches, is based on considerations of due
diligence and fairness. However, the father had been served with the mother’s petition and
thus had notice, and he could have brought it to a hearing, instead of leaving the ticking time
bomb there. This should serve as an object lesson to lawyers who think that just because the
other side has not brought its claims on for hearing, they can afford to let these sleeping dogs
of the enemy lie. The Court of Appeals finds that no evidence was lost while the matter of
the wife’s right to cash in on husband’s Two Million Dollar wrongful termination award was
sitting there, so he was not prejudiced by delay. This is not plainly wrong or an abuse of
discretion on the trial court’s part.
20
CRIMINAL ISSUES – EVIDENCE – EXPERT WITNESSES – CHILD SEX ABUSE –
LICENSED PROFESSIONAL COUNSELORS. Now that you have learned the difference
between a psychiatrist and psychologist, etc., you also need to learn that these prestigious
professional distinctions don’t really make much difference in some kinds of litigation. Even
if only the psychiatrist is a real doc, a medical diagnosis in a child sex abuse case can be
given not only by a SANE nurse serving as an expert witness, but also by a “licensed
professional counselor.” Such an august personage was allowed to tell a jury in a case of a
man convicted of taking indecent liberties and committing “object penetration” with his 12year-old stepdaughter that in her opinion, the child suffered “post-traumatic stress disorder.”
These LPCs are defined in §54.1-3500 as “a person who practices counseling.” Not just that,
of course, but also one “trained in counseling interventions designed to facilitate an
individual’s achievement of human development goals....” The statute expressly allows the
LPC to diagnose and treat mental, emotional and behavioral disorders, the Court of Appeals
explained in Fitzgerald v. Commonwealth, 48 Va. App. 271, 630 S.E 337, 21 VLW 15
(6/6/06). It is explained that the nature, symptoms and possible causes of this disorder are
things not within the common knowledge or experience of lay persons and jurors, and thus
are ripe for scientific expert opinion. This counselor testified that from her training she was
qualified to make psychiatric diagnoses, and that she had gone through a masters program
that covered PTSD, which malady she explained to the jury out of the DSM-IV.
CRIMINAL – SODOMY.
A criminal statute against sodomy, §18.2-361(A), is
constitutional when applied to acts involving children aged 16 and 17, the Court of Appeals
holds in an opinion by Judge Haley in McDonald v. Commonwealth, 48 Va. App. 325, 630
S.E.2d 754, 21 VLW 67 (6/13/06). The defendant, aged 45, argued that the teenagers
involved were adults under the definitions implied by Code §18.2-63, which prohibits carnal
knowledge of a child 13 or 14 years old, and §18.2-371, which makes sex between people
over 18 and children between 15 and 17 a misdemeanor. However, the Court recognizes no
variation in the definition of “adult,” which it says is defined in Code §1-203, §1-204 and §1207 as a person 18 years or older except where a statute specifically uses a different
definition. It notes that the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558
(2003) “made quite clear that its ruling did not apply to sexual acts involving children.”
PENSIONS – SURVIVOR BENEFITS – VIRGINIA RETIREMENT SYSTEM STATUTES
– NO SBP ELECTION. A very unusual case about Survivor Benefits Plans (SBP),
especially in the state government’s Virginia Retirement System (VRS), brings the courts up
against some very basic truths about creation and administration of these benefit systems,
under Virginia statutes, as they affect the living and the dead. A couple married in 1964 and
the husband began state employment in 1971, designating his wife as death-benefits
beneficiary. But in 1992 he gave his employers a beneficiary-change form making his adult
son the primary beneficiary of accumulated retirement benefits. He and his wife had
permanently separated in 1990. When he retired in 1992 and applied for his benefits, he lied
on the form, saying his marital status was “divorced,” and selected the “Basic Benefit”
retirement option which deducts no survivor benefits. This couple never filed for divorce nor
entered into a separation agreement. After his death, the widow sued VRS for her benefits.
The problems are obvious, since no fund had been created from which she could be paid.
The law is that the dead retiree’s selection of a retirement payment option cannot be
overridden, no matter what. Wife’s argument was that if she had been given the notice that
§51.1-165.1 requires, she could have protected her interests by filing for divorce. This
21
obviously brings up the fatal concept “speculative.” The Court of Appeals says that nothing
in that statute gives a spouse a vested interest or an enforceable interest in a retired person’s
retirement benefits. The VRS or the trial court would have had to speculate about what she
would have received in a divorce case, and, by drawing upon a non-existent fund, dip into
monies that the system holds in trust for other employees. This man’s retirement account
ceased to exist when he died. Code §51.1-124.4(A) provides two limited exceptions to the
principle that an employee’s benefit-option selection can’t be reversed. One is for the
enforcement of a spousal support obligation and the other is following a court order that
results from the division or transfer of retirement-fund assets held to be marital property in
an equitable distribution proceeding. These do not apply here. Shropshire v. Virginia
Retirement System, 48 Va. App. 436, 632 S.E.2d 601, 21 VLW 264 (7/25/06).
PROPERTY DIVISION – VALUATION – RIGHT TO REAPPRAISAL AND REVALUATION – MARITAL AND SEPARATE – SOURCE OF FUNDS – TRACING –
SUFFICIENT EVIDENCE OF SOURCE AND OF DEPOSIT-WITHDRAWAL RATIOS –
ALIMONY – RELATIONSHIP TO CHILD SUPPORT - LAW OF THE CASE DOCTRINE
- EQUITABLE DISTRIBUTION PERCENTAGES – CONDUCT. The Court of Appeals in
Robbins v. Robbins, 48 Va. App. 466, 632 S.E.2d 615, 21 VLW 265 (8/1/06), revisited a
subject that has been kicked around several times before, the re-valuation of real estate that
has increased dramatically in value while the litigation went on. In doing so it provided
welcome clarification on just what the “law of the case doctrine is and is not. This case was
tried in Virginia Beach, where the use of Commissioners for equitable distribution was
widespread, and a case that had been tried that way was referred back to the Commissioner
because of what the parties agreed was a mathematical error in calculating alimony. The
wife had resisted reopening the matter, though, and maintained that if the case went back to
the Commissioner she should be allowed to present new evidence of the current value of the
former marital home two years after the first appraisal. The trial court referred the case back
to the Commissioner over her objection and her argument that if there was a new evidentiary
hearing, new value evidence should be allowed, since she contended that the increase in
value had been nearly 100%, and nearly $1,000,000. In this case, however, the re-valuation
was refused on the ground that the law-of-the-case doctrine precluded it.
Before it got into discussing the law of
the case doctrine, the Court of Appeals thought
it had to first discuss the standard-of-review
question of whether the trial judge’s decision to
uphold the Commissioner on this was an
exercise of discretion to which an appellate
court must defer. The answer, however, was no.
More precisely, it was “In this case, however,
there was no exercise of discretion to which we
can defer. The Commissioner concluded, as a
matter of law that he could not address the
issue....We disagree.” The law of the case
doctrine, the Court of Appeals explains, is
simply, in this context, the rule that parties
cannot re-litigate after appeal what was not
raised on appeal but should have been, or was
22
raised but expressly rejected by the appellate
court. It states: “The law of the case doctrine
has no binding effect on a trial court prior to an
appeal.”
The footnote explains how that applies to remanded and re-appealed cases. At trial, a
trial court can modify or rescind interlocutory orders all the time, and change its mind while
the matter is pending as much as it wants. Nor, the Court of Appeals explains, does the law
of the case doctrine govern the advisory relationship between a judge and a Commissioner.
What a Commissioner in Chancery makes to the Chancellor is recommendations.
As the Court of Appeals saw it, “by relying on a legally inapplicable doctrine...the
Commissioner abused his discretion. By not correcting this error, the circuit court did as
well.” The equitable distribution award was reversed and remanded with instructions to revalue the house.
The Court gave some valuable guidance as to how much you must show, when
opposed by the trial judge, to protect for appeal your right to get re-valuation. This wife, the
Court of Appeals said, could hardly be faulted for not making a more specific proffer than
counsel’s unilateral declaration that the home had nearly doubled in value. The
Commissioner had decided before the hearing that he would hear no further evidence on
valuation of this house, and the Court denied the wife’s motion for permission to have an
appraiser enter the property for a new appraisal.)
ALIMONY AND CHILD SUPPORT. What the Commissioner and the trial judge did in
figuring the wife’s alimony may sound plausible to most lawyers, but it was wrong. From
the shortfall the wife showed on her income and expense statement, the judge subtracted the
amount of child support he knew she would get, considered the remainder her remaining
need, and awarded her approximately that much alimony.
The appellate court’s
condemnation of this is multi-pronged, vehement, and obscure. And although the castigation
of the trial judge’s reasoning might leave some practitioners wondering exactly what the
Court of Appeals is getting at, one trial-court mistake can’t be denied: under the statute and
the Frazer rule, you have to calculate alimony before child support, and this judge did the
opposite.
SOURCE OF FUNDS AND TRACING. The Court of Appeals also took the opportunity to
come mightily to grips with the fiercely baroque concepts of multi-source/multi-destination
tracing. But it ended up finding that even if the theories of the husband’s expert rang true,
this testimony and the husband’s whole submission as to his supposedly traceable separate
assets were utterly lacking in any evidence to provide a factual foundation. All the pretty
theories in the world won’t make any difference, the Court of Appeals announced, if you
don’t have any evidence to support their application. In short, it was error for the trial judge
to listen to the husband’s expert and classify the shares that he still held in his medical
practice as 93.16% separate property. Over the years the husband had sold off shares of his
medical practice to incoming doctors, and the expert’s theory was that everything that got
sold was marital and everything he kept was separate. But nobody actually traced funds from
any stock sale to any particular asset. The investment accounts that were supposedly
purchased with separate funds actually came from marital as well as separate funds and
23
certainly were not purchased entirely with the profits of stock sales. What the Court of
Appeals is emphatic about is that you cannot establish a percentage at the beginning,
Brandenburg style, and then simply pull out the same percentage at the end of the process, if
you do not have evidence to establish what money came from where and what money went
where. The Court found that it did not even have to evaluate the sufficiency of the proof of
the multiple sources of funds, since there was no evidentiary support for the multiple
destination of the funds that was assumed. Nothing was there to support the contention that
the husband had intended to keep his separate property forever separate. Nor would the ratio
among deposits be arbitrarily presumed to match the ratio of withdrawals from a given
account. So when you commingle separate property, the Court reminds litigants, you must
carry the burden of tracing, and if you cannot, it will be treated as wholly marital. Nothing in
the evidence the husband was able to come up with showed that when he sold shares he was
sharing only marital shares, or even that, in each sale, that is what he intended. After all, the
presumption is that property is marital. The terms of the remand were that the circuit court
was instructed to reclassify the pre-separation shares as all marital property.
Intent is important in classifying withdrawn funds, the Court of Appeals
acknowledges, but there has to be evidence to support the intent being argued. The evidence
can be direct or circumstantial, but there has to be enough of it.
The Court of Appeals says “No Virginia court has expressly held that the deposit
ratio may be arbitrarily used to approximate a pro-rata withdrawal ratio. Nor do we.” The
Court even resorts to Brett Turner’s jar of red and white marbles to make its reasoning clear
to all.
EQUITABLE DISTRIBUTION PERCENTAGES – CONDUCT. Upheld, however, is the
judge’s decision to divide the property 65-35 in the husband’s favor. The judge’s reasoning
was based on the §20-107.3(E) factor that it was basically the wife who broke up the
marriage. So long as the judge considers all the applicable factors, what weight to assign to a
particular factor is within a trial court’s sound discretion, and here the wife’s romantic
involvement with a co-worker was considered a major contributing factor and the
precipitating event in her decision to end the marriage. In a footnote the Court expressly
declares that factors and circumstances leading to the dissolution of the marriage can be
considered in property division even if they had no financial impact, “as long as those factors
detracted from an overall marital partnership.” That should be clear, the Court says, from
Ranney v. Ranney, 45 Va. App. 17, 46-47, 608 S.E.2d 485, 499 (2005) as well as such cases
as Budnick and Watts.
ALIMONY - INCOME AND EXPENSES. The Court does give some useful guidance as it
addresses the use of misuse that was made of this wife’s income and expense sheet at trial. It
did not expressly include any expenses as children’s expenses, nor name any expenses that
one could particularly identify as the children’s. However, the wife in her testimony
admitted that some of the expenses went to help support the children and her adult brother,
and one of her emancipated sons. When the Commissioner deducted her child support from
her shortfall, there was nothing on the income and expense sheet to tie any of the money to
children, so that is another reason it was wrong. As a “solution to the problem of mixed
expenses,” the Commissioner’s deduction of the child support was, the Court of Appeals
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says, totally improper. The Court of Appeals does say that “expenses that are indivisible by
nature or trivial in amount need not be segregated.”
PARENTAL RIGHTS TERMINATION – ENTRUSTMENTS – REVOCATION RULES. A
termination case in which the mother seems to have been a hopeless loser nevertheless
provides some sobering news for parents who sign entrustment agreements, and then try to
revoke them. The Court of Appeals in Butler v. Culpeper Co. DSS, 48 Va. App. 537, 633
S.E.2d 196, (8/15/06), upheld a local judge who threw out the mother’s attempt to revoke the
entrustment agreement. Code §16.1-283(B) allows a court to terminate the parental rights of
any parent who let the children go to foster care under a DSS entrustment agreement, but the
mother argued that under §63.2-1223, the entrustment is revocable up to the time the child is
placed with adoptive parents. Ah yes but, the DSS argued and the judge ruled, upheld by the
Court of Appeals, that Code section requires that the revocation has to have been in writing
and delivered to the child-placing agency (by a deadline of course), which this mother did
not do.
ALIMONY – PAYEE IMPUTATION – INVESTMENT DECISIONS – EXPERT
OPINIONS. The right combination of circumstances was present to motivate the Court of
Appeals to reject the worst kind of fringy, wild and scary arguments that you hear advanced
in imputation cases these days: that trial courts should impute passive income to those who
could, somebody says, have invested their funds more aggressively than they did. First, it
was a payee imputation case, so those who face payor imputation can perhaps take scant
comfort and reassurance from this sensible decision. Second, it was alimony in question, not
child support. Thirdly, it’s unpublished, and fourthly, the supposedly-too-cautiously-invested
funds were inherited monies. Both parties were over 60, and the judge was awarding
alimony because the husband made $11,400 per month and wife $5,000, of which $400 was
from investments. The trial judge found wife voluntarily underemployed and imputed a
$10,000 per month income to her. Husband appealed because he thought the trial court
should have questioned her investment decisions and imputed even more, so as to save him
from paying $1,000 per month alimony until his retirement. This was not reversible error,
the Court of Appeals says. It notes that wife’s counsel was smart enough to cross-examine
husband’s expert and get from him an admission that an investor’s investment-management
decisions are subjective decisions influenced by individual personal goals, and by the “risk
tolerance” implanted in an individual’s personality. Valder v. Valder, unpublished, 21
VLW 350 (8/15/06).
CUSTODY – MODIFICATION – FACTORS – “NO REASON TO CHANGE.” The kind of
custody decision that judges frequently make and get away with will not always survive
appellate review if appealed. There is no question that a decision simply that “there is no
reason to alter the status quo” does not conform to the current requirements of the Virginia
statute on the announcement of decisions and the criteria that go into those decisions. A
judge who apparently gave only this statement did not effectively insulate from appellate
review his decision that a child living with his mother in Kentucky should stay there, and the
decision is reversed for retrial. Perhaps the judge’s decision would have been fine if it had
been “for the aforementioned reasons, heretofore recited, I see no reason to disturb the status
quo,” but that, it seems, is not what the judge said. Gillikin v. Burchett, unpublished 20
VLW 1640 (5/23/06).
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LEGAL QUOTATION OF THE QUARTER
"People have got into their heads the extraordinary idea that English public
schoolboys and English youth generally are taught to tell the truth. They are
taught absolutely nothing of the kind. At no English public school is it even
suggested, except by accident, that it is a man's duty to tell the truth. What is
suggested is something entirely different: that it is a man's duty not to tell lies.
... The thing we never teach at all is the general duty of telling the truth, of
giving a complete and fair picture of anything we are talking about, of not
misrepresenting, not evading, not suppressing, not using plausible arguments
that we know to be unfair, not selecting unscrupulously to prove an ex parte
case, ... not pretending to be disinterested when you are really angry, not
pretending to be angry when you are really only avaricious. The one thing that
is never taught by any chance in the atmosphere of public schools is exactly
that—that there is a whole truth of things, and that in knowing it and speaking
it we are happy."
— G. K. Chesterton, 1906
Posted on “The Temperate Zone” blog by Steve Casburn
http://temperate.blogspot.com
Aren’t there any
WRITERS
out there?
SUBMITTING ARTICLES AND NEWS
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27
2006-2007 BOARD OF GOVERNORS
VIRGINIA STATE BAR FAMILY LAW SECTION
Brian M. Hirsch, Chair
12110 Sunset Hills Road, Suite 401
Reston, Virginia 22090-3223
Kenneth B. Murov
716 J. Clyde Morris Blvd., Suite B
Newport News, Virginia 23601
Craig E. White, Vice-Chair
P.O. Box 678
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Frank Waters Rogers, III
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The Hon. Angela E. Roberts
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Cheshire I’Anson Eveleigh, Past Chair
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Virginia Beach, Virginia 23462-6765
Christopher William Schinstock
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Mitchell D. Broudy
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The Hon. Anne Bonwill Shockley
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Cheryl W. Smith
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Richard Crouch, Newsletter Editor
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PLEASE NOTE:
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DISCLAIMER
Statements of opinion, comments, and everything that appears in these pages constitute selfexpression of the Editor and contributors and cannot be attributed to the Family Law Section or
the Virginia State Bar.
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