VOLUME 25, NUMBER 1
SPRING 2005
Chairman's Message
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Editor’s Message
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Domestic Relations Legislation Passed By The 2005 Virginia General Assembly
By Richard Byrd
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Implementing §20-121.03 on Confidential Information in Divorces:
Tips and Traps
By John Crouch
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Equal Justice Under Law: Awarding Attorney Fees To Legal Service
Organizations In Domestic Relations Cases
By Timothy Beason
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News Notes
Failure To Get Support Lowered Brings VSB Reprimand
Three-Judge Court Disapproves Dual Representation
Frivolous Harassment Motion Results In Suspension From Practice
Tidal Wave Of The Future? Electronic Discovery Rules
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Quilp's Notes
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Notes on Recent Appellate Cases
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Submitting Articles and News
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Board of Governors Roster
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Editor: Richard E. Crouch
CHAIRMAN’S MESSAGE
The Family Law Section of the Virginia State Bar has had an exciting and productive
year-end, and has interesting activities in continuing legal education programs scheduled for
the rest of this fiscal year.
Annie Lee Jacobs and Brian Hirsch presented very informative continuing legal
education programs at the mid-winter meeting of the Virginia State Bar in Bermuda. It was
very well received, and we extend our thanks to Annie Lee Jacobs and Brian Hirsch for their
hard work.
In January, we co-sponsored a CLE with the Virginia CLE and the American
Academy of Matrimonial Lawyers at The Wyndam Hotel in Richmond. Although we had
snow, the program was very well attended, and all of the speakers received high marks for
their very informative and timely presentations. On May 6, 2005, the Advanced Family
Law Seminar will be held in Richmond at The Jefferson Hotel. This is the 21st Annual
Advanced Family Law Seminar. Topics this year will include: Legislative and Case Update (Larry Diehl); Practice Tips Regarding Retirement, Pension and Deferred Compensation –
And Those Statutory Pitfalls - (Edward Barnes); Ethical Concerns When Dealing with
Difficult Clients and Counsel – (Brian Hirsch); Classification of Assets and Tracing – (The
Honorable Dennis Smith); Thorny Issues in ED Cases – (The Honorable Dennis Smith and
Susan Hicks); and How to Get Better than 50-50 in Your ED Cases – (David Masterman).
This is one of the highlights of our year, and I urge you to make your reservations now. I
look forward to seeing you at The Jefferson Hotel for the 21st Annual Advanced Family Law
Seminar on May 6, 2005.
Chesire I’Anson Eveleigh has been busy putting together a joint CLE Program for the
Annual Meeting of the Virginia State Bar at Virginia Beach this year. The family law
section will co-sponsor a program with the Criminal Law Section at the beach. It will feature
topics related to criminal law and family law, and, in particular, will deal with criminal and
family law issues concerning electronic surveillance, ethics related to electronic surveillance,
prosecution of crimes related to electronic and computer issues.
The Family Law Section is also co-sponsoring a program at the Virginia State Bar
Meeting at Virginia Beach with the Alternate Dispute Resolution Section.
The Family Law Section is particularly proud of the February issue of The Virginia
Lawyer. This issue is the family law issue. Andrea Stiles, Lynne Kohm, Shelly James and
Brian Hirsch contributed articles to the issue. There is an introductory page from your
Chairman, along with some updates on the Family Law Section activities. The issue looks
very good and I urge you to look at your copy of The Virginia Lawyer for these interesting
and timely articles. Thanks to our Family Law Section authors for their hard work and
contribution to the cause!
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Nominations are being taken for The Lifetime Achievement Award. They should be
sent to The Honorable Anne Bonwill Shockley at the address on our website. While
mentioning that, the section website is up and running. You may view the new website at
www.vsb.org. Just click on the “section” portion of the website and you will be directed to
the family law section website. We are very proud of the website and hope that it of help to
our members and that it is instrumental in keeping us informed of section activities. Please
urge practicing lawyers who are interested in family law to apply for membership to the
section. The first year of membership is free and the benefits are important and varied.
Again, I look forward to seeing you on May 6, 2005 and hopefully see you at the
Virginia State Bar meeting at Virginia Beach for our joint CLE with the Criminal Law
Section.
With my best regards to each and every one of you.
Yours very truly,
Edward D. Barnes
Chair
[email protected]
(804) 414-1600
EDITOR’S MESSAGE
"Let copulation thrive!"
King Lear, Act IV, vi.
Spring brings hope and new diversions, judicially legalized fornication surely among
them, and most notably in the legal world, the accomplishments of the Legislature. This issue
of FLN includes a legislative summary by frequent and highly informed contributor Dick
Byrd that everyone should turn right to and read, as it might hold some real surprises. Who
would have thought, for instance, that Virginia would ever turn our whole world of legal
pleading upside down by abolishing Chancery? And not be the last of the Fifty States to do
it! We are only beginning to realize how far the ripples of this big splash will be felt.
Like Spring itself, and for a number of reasons such as waiting for articles, the Spring
issue of FLN is shamefully late this year. Don't lay it aside for later perusal, as the Summer
issue will follow hard upon, and you'll lose it when you throw Summer '05 on top of it.
Readers interested in great public policy questions and the ever-intriguing question of
fee awards will find an immensely provocative article by Timothy Beason calling for awards
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to Legal Aid lawyers. If it doesn't provoke you maybe FLN hasn't done its job, but no
newsletter can please everyone.
As for the activities of the Virginia Supreme Court, a respectful silence may be best
while all the fallout falls out, leaving intellegent comment to Lear, who as usual says it all.
The ripple effects will be very widespread indeed, and whatever the Supreme Court says it
didn't say, the implications for polygamy, pederasty, etc., are loud if not clear. Family Law
News does its best to decipher and summarize this odd opinion, even though FLN was beat
out by West Co., whose SE2d advance sheets rushed it into print faster than any decision in
Virginia legal history.
DOMESTIC RELATIONS
LEGISLATION PASSED BY THE
2005 VIRGINIA GENERAL
ASSEMBLY
By Richard Byrd, Fairfax
The 2005 session of the Virginia General Assembly has ended. There are several new
statutes soon to take effect that will have a significant effect on the way we handle domestic
relations cases, Surprisingly, many of these were not bills on the subject of domestic
relations or family law. These new statutes will abolish our traditional law and chancery
sides of the court, affect the use of commissioners in chancery, and bring changes in the
service of process and new privacy protections. We will first consider significant legislation
that passed the General Assembly in 2005 and will soon become law. Then we will review
more quickly all of the significant domestic relations bills proposed this year that failed to
pass, and the disposition of each bill. The reason for this review of failed legislation is that
many bills just don’t seem to want to die. They arise from the ashes of last year’s defeated
bills to become new proposals to be considered by the next General Assembly.
All bills may be reviewed in detail and the legislative process may be tracked at the
General Assembly’s web site: http://leg1.state.va.us/lis.htm
I. NEW LEGISLATION FOR 2005
A. Bills Affecting the Court System:
1. HB 2583: Restriction on Use of Commissioners in Chancery: In some
jurisdictions in the Commonwealth, all divorce cases have traditionally been sent to
commissioners for all issues in the case. People have complained that this raises the costs of
divorce, and that it gives inconsistent results, since it creates a somewhat private system of
justice. Although it was in the area of divorce cases that complainants were mainly directed,
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the legislation passed by the General Assembly strikes at the use of commissioners in all
cases. The new statute provides as follows in §8.01-607:
Commissioners in chancery may be appointed in cases in circuit court,
including unconstested divorce cases, only when:
1. There is agreement by the parties with the concurrence of the court; or
2. Upon (i) motion of a party, or (ii) upon motion of the court, sua sponte.
The court shall make a finding of good cause shown in each individual case.
The new statute addresses two situations: (i) where the use of a commissioner is agreed
to by the parties or (ii) where one party, or the court sua sponte, requests use of a
commissioner. The wording implies that if the parties agree to a commissioner, then the
court need not make any fact-finding or search for good cause. Basically, it the parties
agree, the court should sign the decree of reference. If the parties do not agree, then good
reasons must be demonstrated in order to have a commissioner appointed. The use of the
term good cause shown in each individual case is significant. This is meant to preclude the
use of any blanket local rules by a circuit as to commissioners being required in certain
cases. For example, a circuit can no more say that all mechanic’s lien cases, or all partition
suits, or all debtor-interrogatories will be referred to a commissioner; that would not
constitute good cause in the individual case.
However, it is not contrary to the statute for the court to set forth criteria that favor or
disfavor the appointment of a commissioner in the individual case. For example, some good
cause criteria might be a particular need by parties for a quicker resolution of the case than is
possible given the court’s docket, or it might be that fault issues will need three days of trial
time and if fault could be determined, it is likely that the remainder of the case would settle.
A local bench and bar could put their respective heads together and generate reasonable
criteria so that one has some assurance as to whether a commissioner might be warranted in
an individual case.
2. SB 1118: Elimination of Chancery Side of Court: This new legislation is the total
elimination of chancery cases, and the dual court system consisting of a law side and a
chancery side of the court, which has lingered since the early days of the Colony and the
Commonwealth. A case may still sound in equity, but there will no longer be a chancery side
of the court, in which a chancellor hears the matter. You will no longer call a lawsuit a
Motion for Judgment and you will no longer call an equity suit a Bill of Complaint. All suits
will be simply called a complaint. This legislation is not effective until January 1, 2006.
A great many statutes had to be revised to accommodate this fundamental change in the
court system in Virginia. The main reason for the delay until 2006 for implementation of this
legislation is that the Supreme Court must rewrite substantial portions of the Rules of Court.
This will take some time for us to get totally used to, but it does not change much of anything
as to how one actually proceeds in a case — we think. Only the names (apparently) are
changed.
3. SB 1123: Demand for a Waiver of Service: In all cases, the plaintiff may firstclass mail the defendant a copy of the pleadings and demand that the defendant sign and
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return a waiver of service. If the defendant does not do so within 60 days, then the defendant
owes all costs to obtain service of process. If the defendant does so waive service of process,
then he does not need to file an answer or other responsive pleading until 60 days after the
initial pleading was mailed to him, or 90 days if the defendant is out-of-state. Below is a
synopsis of the new §8.01-286.1, with emphasis on important provisions:
§ 8.01-286.1. Service of process; waiver, duty to save costs, request to waive,
how served.
A. In an action pending in circuit court, the plaintiff may notify a defendant of
the commencement of the action and request that the defendant waive service of
process as provided in subsection B. Any person … who receives actual notice
of an action in the manner provided in this section, has a duty to avoid any
unnecessary costs of serving process.
B. The notice and request shall incorporate the request for waiver and shall:
1. Be in writing and shall be addressed directly to the defendant, if an individual,
or else to an officer, director or registered agent, etc.
2. Be dispatched through first-class mail or other reliable means;
3. Be accompanied by a copy of the … initial pleading and identify the court in
which it has been filed;
4. Inform the defendant, by means of a form provided by Executive Secretary of
the Supreme Court, of the consequences of compliance and failure to comply
with the request;
5. Set forth the date on which the request is sent;
6. Allow the defendant a reasonable time to return the waiver, which shall be no
more than 30 days from the date on which the request is sent, or 60 days from
that date if the defendant's address is outside the Commonwealth; and
7. Provide the defendant with an extra copy of the notice and request, as well as
a prepaid means of compliance in writing.
If a defendant fails to comply with a request for waiver ... the court shall impose
the costs subsequently incurred in effecting service on the defendant unless good
cause for the failure is shown.
C. A defendant that, before being served with process, timely returns a waiver so
requested is not required to serve a grounds of defense or other responsive
pleading to the motion for judgment or other initial pleading until 60 days after
the date on which the request for waiver of service was sent, or 90 days after
that date if the defendant's address was outside the Commonwealth.
D. When the plaintiff files a waiver of service with the court, the action shall
proceed as if a notice and motion for judgment or other initial pleading had been
served at the time of filing the waiver, and no proof of service shall be required.
This may shorten the time to bring the case to issue in some domestic relations cases,
such as those where process service would be difficult, or would derail negotiations by
making the defendant feel threatened or embarrassed. But it will certainly lengthen the
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process in other cases, so it is good that this method remains optional — for now. It will be
interesting to see if some courts try to misapply the 60- or 90-day period in cases where there
is a Waiver of Service and of Further Notice, which is far more common in divorces than a
mere Waiver of Service, and which currently lets the plaintiff proceed with the case
extremely fast, sometimes holding a divorce-grounds deposition a few minutes after the
Waiver is signed and submitting the divorce decree to the court the next day.
B. New Domestic Relations Legislation:
1. SB 1019: Privacy Protection in Divorce cases: The crime of identity theft has
been accelerating wildly. Measures are being taken at all government levels in an attempt to
stem this tide. We who practice divorce law know how much personal and financial
information of our clients finds its way into the file in a divorce case. Beginning July 1,
2005, the record of a divorce case, including transcripts, and any agreements of the parties,
shall not contain certain information that could lead to identity theft. The legislation adds a
new code section, §20-121.03, as follows:
Any petition, pleading, motion, order, or decree filed under this chapter,
including any agreements of the parties or transcripts, shall not contain the
social security number of any party or of any minor child of any party, or any
financial information of any party that provides identifying account numbers
for specific assets, liabilities, accounts, or credit cards. Such information if
required by law to be provided to a governmental agency or required to be
recorded for the benefit or convenience of the parties, shall be contained in a
separate addendum filed by the attorney or party. Such separate addendum
shall be used to distribute the information only as required by law. Such
addendum shall otherwise be made available only to the parties, their
attorneys, and to such other persons as the court in its discretion may allow.
The attorney or party who prepares or submits a petition, pleading, motion,
agreement, order, or decree shall ensure that any information protected
pursuant to this section is removed prior to filing with the clerk.
No PSA of the parties can be incorporated into any divorce decree if it contains such
financial information.
If we get too carried away with this new statute, it may be interpreted preclude the use at
trial of discovery obtained of bank accounts and credit card bills, etc, unless that information
is redacted so as to hide the account identity. Such account identity can find its way into the
record of a case in many ways, and we will have to be vigilant to trap the use of any such
prohibited documents, testimony, consent orders, agreements or evidence that may become
part of the record of a case.
This proposal has merit in protecting parties’ financial information from prying eyes,
particularly in the future when cases may be accessible over the Internet. However, it
requires that the Clerk keep two separate files for every divorce case, one that the public can
see and one not available to the public. When you file a Final Decree incorporating a PSA in
a case, you will need a private addendum accompanying the decree that will be kept by the
Clerk in the private file. This addendum will contain all the parties’ personal information.
Of course, every support order will need this private addendum, since the information
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required to be in a support order by the provisions of §20-60.3 and §20-107.1, is information
prohibited in a public order. We are going to need some guidance from our courts as to just
how the details of this new statute are to be implemented.
For more tips on complying with this statute, see the article on that subject on page __.
2. HB 1988: Attorney’s Fees for Support Arrearages: Any order for support
arrearage may, in Circuit Court, and shall, in Juvenile Court, include reasonable attorney’s
fees where the arrearage is greater than 3 months. This law also allows DCSE to collect such
counsel fees. However, there is a strange quirk to this legislation. For some reason the
standard for attorney’s fees in juvenile court and in circuit court and for DCSE are each
demonstrably different from each other. I don’t know why.
For Juvenile court: §16.1-278.18: Such judgment shall include reasonable attorneys'
fees in cases where the total arrearage for support and maintenance, excluding interest, is
equal to or greater than three months of support and maintenance.
For circuit court: §20-78.2: This order … may include reasonable attorneys' fees if
the total arrearage for support and maintenance, excluding interest, is equal to or greater
than three months of support and maintenance.
For Administrative Orders: §19.2-1960: The Department shall have the authority to
assess and recover … reasonable attorney's fees.
Strangely, the juvenile court must assess attorney’s fees, the circuit court may do so and
DCSE has the authority to do so. Does this make sense?
3. HB 2174: Privileged Marital Communications: This revision to the Marital
Communications Privilege makes changes in several subtle ways. With regard to civil
actions, the new provision reads:
§8.01-398: In any civil proceeding, a person has a privilege to refuse to
disclose, and to prevent anyone else from disclosing, any confidential
communication between his spouse and him during their marriage, regardless of
whether he is married to that spouse at the time he objects to disclosure. This
privilege may not be asserted in any proceeding in which the spouses are adverse
parties, or in which either spouse is charged with a crime or tort against the
person or property of the other or against the minor child of either spouse. For
the purposes of this section, "confidential communication" means a communication
made privately by a person to his spouse that is not intended for disclosure to any
other person. (Emphasized text are major changes.)
With regard to criminal actions, the new provision reads:
§19.1-271.2: In criminal cases husband and wife shall be allowed, and, …
may be compelled to testify in behalf of each other, but neither shall be compelled
to be called as a witness against the other, except (i) in the case of a prosecution
for an offense committed by one against the other or, against a minor child of
either, or against the property of either; (ii) in any case where either is charged
with forgery of the name of the other or uttering or attempting to utter a writing
bearing the allegedly forged signature of the other; or (iii) in any proceeding
relating to a violation of the laws pertaining to criminal sexual assault … crimes
against nature … involving a minor as a victim and provided the defendant and the
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victim are not married to each other, incest … or abuse of children… . The failure
of either husband or wife to testify, however, shall create no presumption against
the accused, nor be the subject of any comment before the court or jury by any
attorney.
Except in the prosecution for a criminal offense as set forth in (i), (ii) or
(iii) above, in any criminal proceeding, a person has a privilege to refuse to
disclose, and to prevent anyone else from disclosing, any confidential
communication between his spouse and him during their marriage, regardless of
whether he is married to that spouse at the time he objects to disclosure. For the
purposes of this section, "confidential communication" means a communication
made privately by a person to his spouse that is not intended for disclosure to any
other person. (Emphasized text are major changes.)
These revisions to marital privilege allow a spouse not only to refuse to testify, but also
to prevent anyone else from disclosing any marital confidences, presumably preventing the
other spouse from so testifying. The exceptions, in which a spouse could be compelled to
testify to marital confidences, have been expanded to include: in civil cases - a tort against a
child of either party, and in criminal cases - an offense against the property of either.
4. SB 1040: Substantial modifications to UIFSA: This is a 22 page Bill with
hundreds of changes to UIFSA, most of them pro forma. However, this legislation will need
careful analysis to determine its overall effect. The amendments were proposed by the
National Conference on Commissioners on Uniform State Laws. Hence, they presumably
have substantial thought behind them. One of the changes involves Virginia obtaining
jurisdiction to modify a foreign support order if… a foreign country or political subdivision
that is a state will not or may not modify its order pursuant to its laws, a tribunal of the
Commonwealth may assume jurisdiction, for good cause shown as ordered, to modify the
child support order and bind all individuals subject to the personal jurisdiction of the
tribunal whether or not the consent to modification of a child support order otherwise
required of the individual pursuant to § 20-88.76 has been given or whether the individual
seeking modification is a resident of the Commonwealth or of the foreign country or political
subdivision.
There is now a provision on choice of law as to the termination of support. Some states
provide for court-ordered support for a child over age 18. The new provision, §20-88.76.D,
states that: In a proceeding to modify a child support order, the law of the state that is
determined to have issued the initial controlling order governs the duration of the
obligation of support. The obligor's fulfillment of the duty of support established by that
order precludes imposition of a further obligation of support by a tribunal of the
Commonwealth. So if you have a Colorado support order going to age 21, even if Virginia
has jurisdiction to modify the order, it may not change the end date to age 18/19 pursuant to
Virginia law.
5. HJR 586: Same-Sex Marriages: There were at least five resolutions offered to
amend the Virginia Constitution such that Virginia will give no recognition whatsoever to
any marriage, or civil union, that is not between one man and one woman. After contentious
debate and numerous amendments, most of which were rejected, the General Assembly
passed HJR 586, a proposed amendment to the Virginia Constitution that reads:
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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.
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. 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.
In order for this to become part of the Virginia Constitution, the same bill must be
passed, without change, at the next session of the General Assembly and if it does, then it
will be voted upon by the citizens.
6. HB 2503: Addition of marriage and family therapists: This Bill adds marriage
and family therapists to certain Code sections that list other mental health professionals.
These sections involve privileged communications in civil actions, evaluation of juvenile
competency, compensation for expert testimony, and services falling outside of the definition
of employment for purposes of unemployment compensation.
II. LEGISLATION THAT FAILED TO PASS
Some abbreviations are used for convenience and because they appear so frequently. C/J
is the Courts of Justice Committee. PBI means Passed-By-Indefinitely, which is one way of
killing a piece of proposed legislation. In several places, I have shown the vote of the
committee or the legislative body, e.g. [passed 20:5].
1. HB 1517: Spouse Abuse – Anger Management: This would have allowed the
court the option of requiring a person convicted of spousal abuse to enter an anger
management program. [Stricken from docket in House C/J.]
2. HB 1737: Felony Child Support Arrearage: This provided that any person who
accumulates a child support arrearage in excess of $25,000 is guilty of a Class 6 Felony.
[This bill passed the House 95:2 and then was sent to the Senate C/J, where it was forwarded
favorably (12:1) to the Senate Finance Committee. The Finance Committee killed it 14:1.
Go figure.]
3. HB 1956: DCSE to use §108.1 Factors: This legislation provided that when
DCSE does an Administrative Support Order, it “may” include the application of the
Deviation Factors of §20-108.1. DCSE generally does not apply deviation factors because
this comes to close to acting in a legal or judicial capacity. DCSE opposed this legislation.
[Tabled in C/J, 20:0]
4. SB 978: Affirmation of Foreign Marriage: This would have allowed parties
married outside of the U.S., but now residing in Virginia, to petition a court to affirm their
marriage. The court may grant an order affirming the marriage if: 1) At least one of the
parties is a U.S. citizen; 2) The marriage is valid in the foreign jurisdiction; and 3) The
marriage is not prohibited under Virginia law. [Passed Senate 33:7, then went to House C/J
where it was Stricken from Docket, 22:0].
5. HB 2106: HB 2294: SB 1231: SB 1334: Custody & Visitation: These proposed
statutes all tinkered substantially with existing law for determining custody and visitation in
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Virginia. The proposals would have established a standard or model visitation order, or
parenting plan, or they attempted to put strange factors into the consideration of
custody/visitation, which factors really were not relevant to this determination.
HB 2106: This very complicated 13-page statute would require all custody/visitation
Orders to:
a. Establish the authority and responsibilities of each parent in the order.
b. Specify a designated process for dispute resolution.
c. Award attorney’s fees and financial sanctions if a party fails to appear at a dispute
resolution process meeting.
d. Allocate details of decision-making authority to each parent.
e. An exhaustive list of 25 factors the court must consider in awarding custody And a detailed list of some 17 factors used when the parties are involved in a
mediation or dispute resolution process.
f. A requirement for each party to submit to court a “permanent parenting plan” on
or before 45 days prior to trial of the matter.
[Stricken from Docket in House C/J 20:0]
SB 1334: This proposal would have put divorce fault elements into custody cases. In
determining custody/visitation the court must consider:
a) Whether a parent “desires to stay married.”
b) If divorce is no-fault, who was the “initiating” party (i.e. who is the
Complainant)
c) If the divorce is based on fault, who is at fault.
[Amazingly, after an impassioned plea for its passage by its patron, the bill
failed for lack of a second in the Senate C/J!]
HB 2294 & SB 1231: These proposals set out very detailed requirements for a parenting
plan to contain and actually specify a presumptive standard visitation order, which creates
a rebuttable presumption as to what is to be the custody/visitation in any case. The
standard visitation order is divided into a section where the parents reside 100 miles or less
apart and one where they reside more than 100 miles apart. The presumptively correct
visitation schedule specifies exactly which days of the week, and exactly at which times on
those days custody/visitation transfers are to take place. In addition, numerous holiday
schedules are provided in great detail, all of which are “presumptively correct.” For the
court to deviate from the standard visitation order, the court must state in the order the
specific reasons why the court deviated from the presumptively correct standard visitation
order.
Both of these Bills failed in the respective C/J Committees.
[Editor’s Note: Bar groups opposed this proposal on the grounds that more study was
needed before making such a fundamental and detailed change. Therefore, Section members
are encouraged to study this question and contact the Editor about writing articles taking
either side of this debate, or falling somewhere in between. Should there be standardized
default visitation guidelines? If so, what should they look like?]
6. HB 2490: This would amend the 2004 “Affirmation of Marriage” Act, that
essentially prohibited any contracts between people of the same sex, so that that would not
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abridge the right of any person to enter into a contract that pertains to the ownership of
property, the maintenance of personal health, or the protection of private assets. Another
proposal, HB 1633, would abolish the aforementioned “Affirmation of Marriage Act”
altogether.
[Each of these Bills was PBI in the House C/J]
7. HB 1660: Traditional Marriage License Plates: This statute would authorize the
issuance of a special auto license plate which has interlocked wedding bands over a red heart,
and the words “traditional marriage” on the license plate. Divorce lawyers were to be
prohibited from displaying the plate. (Just kidding!). [This bill passed the House 65:32, but
was stricken from the docket in the Senate by the Transportation Committee.]
8. HB 2921: Prohibition on Adoption by Homosexuals: This proposal would
restrict adoption by anyone who ….is known to engage in current voluntary homosexual
activity or is unmarried and cohabiting with another adult to whom he is not related by
blood or marriage.
[Passed the house, 71:24, but was tabled in the Senate C/J.]
9. HB 2883: DSS Jurisdiction to Issue Custody/Visitation Orders: This proposal
would grant authority to DSS grant to actually issue and enforce custody/visitation orders.
Presumably this would be done by DCSE as it is in the code section where the DCSE
authority to issue ASO’s is contained.
In the absence of a court order, the Department shall have the authority to issue
orders establishing and enforcing visitation between the noncustodial parent and
any minor children. The Department also shall have the authority to enforce any
court order providing for such visitation.
[Tabled in Health, Welfare & Institutions Committee.]
10. HB 2884: Hearing Before Income Withholding:
This would modify §63.2-1924 to require notice to the Obligor and a hearing prior to a
withholding of income or seizure of property for child support.
Any withholding of income in accordance with this section shall not occur unless
notice has been provided to the obligor and there has been a court hearing. Any
withholding of income or seizure of property in accordance with this section shall
abate pending an appeal of such withholding or seizure….
[Tabled in Health, Welfare & Institutions Committee.]
11. HB 2885: Elimination of Mandatory Interest on Support Arrearage: This
proposal would eliminate automatic judgment-rate interest on child support and would allow
interest on arrearages only upon a showing of good cause to the court. DCSE could only go
after interest after getting a Court Order.
[Tabled in House C/J.]
Well, there you have it. Not a bad year, all things considered. All of the really major
substantive changes in the law were defeated, but as usual, there are changes in Virginia
statutes which will change our practice to some extent.
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Implementing §20-121.03 on Confidential
Information in Divorces: Tips and Traps
By John Crouch, Arlington
The new law barring social security numbers and account numbers from pleadings,
agreements, and orders in the publicly accessible portions of divorce case file raises many
questions. Some of them have answers that are apparent if you carefully examine the new
law and related statutes. Others require further investigation or interpretation. First, here is
the text of the new Code Section:
§20-121.03. Identifying information confidential; separate addendum. Any petition,
pleading, motion, order, or decree filed under this chapter, including any agreements of the
parties or transcripts, shall not contain the social security number of any party or of any
minor child of any party, or any financial information of any party that provides identifying
account numbers for specific assets, liabilities, accounts, or credit cards. Such information if
required by law to be provided to a governmental agency or required to be recorded for the
benefit or convenience of the parties, shall be contained in a separate addendum filed by the
attorney or party. Such separate addendum shall be used to distribute the information only as
required by law. Such addendum shall otherwise be made available only to the parties, their
attorneys, and to such other persons as the court in its discretion may allow. The attorney or
party who prepares or submits a petition, pleading, motion, agreement, order, or decree shall
ensure that any information protected pursuant to this section is removed prior to filing with
the clerk.
Does it repeal parts of §20-60.3? It would be convenient to assume that this Act implicitly
repeals laws requiring social security numbers in support orders. However, it probably will
not be interpreted that way, because it says to move information into a separate Addendum if
the information is “required to be recorded for the benefit or convenience of the parties”.
No-support divorces: In divorce decrees that do not include support, you can avoid this
whole “Addendum” business by inserting drivers license numbers instead of SSNs. Current
law does not actually require the SSN: §20-91 says “A decree of divorce shall include each
party's social security number, or other control number issued by the Department of Motor
Vehicles.”
Juvenile Court: We will need to keep including SSNs in juvenile court orders. This Act
only applies to papers filed pursuant to the Divorce chapter of Title 20.
What not to put in an Addendum: Not all prohibited information gets moved to an
addendum: if the information is not legally “required” in some way, it simply gets blacked
out, or not included in the first place. For example, if an account number is recited in an
agreement, it does not have to go in the addendum: it just gets blacked out. However, in a
case where you believe the account number is necessary in order to make a record, in the
court’s file, of a party’s obligations or rights respecting that particular account, then you will
12
want to include it in an addendum.
Handling Agreements: Some colleagues and I were initially so shell-shocked by this statute
that it would probably help to review some basics to put it in perspective. Some of us had to
be reminded that crossing out information in an Agreement before filing it with the court
does not affect the contents or validity of the Agreement. (1) A contract does not get
“merged” into a court order -- it continues to exist independently. (2) A contract is not like a
will: it is a set of terms agreed on at a particular time by two parties, and is not affected by
one person later marking up a copy of it.
QDROs: This is probably the area where this law will cause us the most grief. Most QDROs
do not involve an account number, but SSNs are routinely included in model forms for all
sorts of QDROs. For the various kinds of orders dividing pensions, we will need to examine
whether the SSN or a specific account number is actually required by a federal law or statute,
rather than just by the Plan Administrator’s forms.
•
Private pensions. ERISA does not require SSNs in QDROs, so we can look forward
to years of trying to explain to pension plan officials that we cannot follow their
forms because they are illegal in Virginia.
•
Federal Pensions. Likewise, the federal Office of Personnel Management’s
regulations and model orders for dividing FERS and CSRS pensions do not call for
SSNs in the orders themselves: they merely suggest that cover letters to OPM include
the SSN.
•
TSPs. For federal Thrift Savings Plans, 5 CFR 1653.2, the regulation that says what
must be in orders dividing them, does not mention SSNs. The TSP handbook has a
model order that includes an SSN, but it emphasizes that the model order is optional.
•
VRS Pensions. The VRS’s ADRO manual says that SSNs are required. The statutes
on the VRS do not specify the contents of an ADRO or mention SSNs, but another
statute gives the VRS the specific authority to demand SSNs. It is probably prudent to
give them the SSN, but it still would have to be in an addendum, not in the ADRO
itself.
Exhibits: Exhibits offered in court are not covered by the statute because they are not ‘a
petition, pleading, motion, agreement, order, or decree”. However, if you attach an exhibit to
any such document, or to a transcript, you must black out the information. If the information
is essential to the court’s understanding of the document, then you will want to file a separate
addendum containing the account number. Or, if you prefer, file the exhibit as an addendum
instead of attaching it to the pleading or transcript. One situation where this issue is likely to
arise is when filing a motion to compel discovery, with the opposing party’s incomplete
discovery response attached, if it is one that involves identifying accounts or producing
financial documents.
And what about courts that require you to file all trial exhibits ahead of time, together
with a Pretrial Statement? In the eyes of this statute, is the Pretrial Statement a “pleading”?
Does it “contain” the exhibits? Perhaps it depends on the exact manner in which the court’s
13
rules or its pretrial order tell you to file the Statement and the Exhibits.
When is it an SSN? What if a health insurance ID number or a driver’s license number
happens to be the same as someone’s SSN? The Family Law News Magic 8-Ball says:
“Unclear. Time will tell. Maybe.” The safer course of action in that situation is to keep it out
of the order and move it to the addendum.
EQUAL JUSTICE UNDER LAW:
AWARDING ATTORNEY FEES TO
LEGAL SERVICE ORGANIZATIONS
IN DOMESTIC RELATIONS CASES
By Timothy Bryan Beason, Arlington
The family law arena is one of the few areas of our law where the Courts are
empowered to award attorney fees to one party or the other based on equitable factors.1 The
multitude of statutes allowing for attorney fee awards indicates that courts are obligated to
consider the relative financial position of the parties at every stage of litigation in order to
assure fairness. The General Assembly realized, of course, that issues of custody, visitation
and divorce are can be greatly affected by the relative financial positions of the litigants.
For instance, it stands to reason that in order to fairly apportion a marital estate, both
parties need equal access to the estate assets for the purpose of paying legal counsel.
Whether the parties end up resolving their issues or taking them to trial, in order to keep the
playing field level, neither party should benefit from an a priori financial advantage when it
comes to counsel fees.
A similar rationale makes sense in the custody arena. If the “best interest of the
child” is the standard we are trying to reach, and no parent should have an advantage over the
other under the law, then it would be manifestly unjust to allow one parent who has access to
greater financial resources to simply out-litigate the other party. Money and access to the
courts are, to a great extent, synonymous. If the child’s interest is truly paramount, then
neither party should have a monetary advantage when it comes to litigating the case.
If we continue with this equitable line of analysis, it stands to reason that legal aid
organizations should be treated the same as a private counsel with respect to attorney fees.
The only caveat to this is that legal aid organizations that accept funds from the federal Legal
Services Corporation cannot request attorney fees. See 45 CFR § 1642.3. Some legal aid
organizations do accept these funds. Legal Services of Northern Virginia, which has offices
in Arlington, Alexandria, Fairfax, Prince William and Loudoun counties, currently does not
1
See Virginia Code § 16.1-278.19; Virginia Code § 20-71.1; Virginia Code § 16.1-279.1; Virginia Code § 2088.56—B and C; Virginia Code § 20-146.33 (A); Virginia Code § 20-79(b); Virginia Code § 20-103
14
receive these funds, and are thus not prohibited from requesting attorney fees. Nowhere in
our statutory law does it say that attorney fee awards are unavailable if the party requesting
the award has retained a legal aid organization. The General Assembly could have written
the attorney fee statutes to prohibit such awards where the client doesn’t actually pay for the
services of their attorney. They have not.
There is no case law in Virginia that speaks directly on this topic in a domestic
relations context.2 There are opinions by other states’ courts which have considered the
issue, allowing attorney fees to be awarded to legal service organizations.
In the non-family-law case of Blum v. Stenson,3the U.S. Supreme Court was
confronted with the question of whether it makes any difference with respect to awarding
attorney fees under a federal statute that the attorneys were privately employed or employed
by a non-profit organization (in this case, the Legal Aid Society of New York). The
venerable Justice Lewis Powell, writing for a unanimous Court, stated:
In determining the amount of fees to be awarded, it is not legally
relevant that plaintiff’s counsel…are employed by …a privately funded
non-profit public interest law firm. It
is in the interest of the public
that such law firms be awarded reasonable attorneys’ fees to be computed in
the traditional manner when its counsel perform legal services otherwise
entitling them to the award of attorney fees.4
Although this case dealt with an award of attorney fees under a federal statute, Justice
Powell’s analysis did not turn on any issue specific to the federal statute in question or
federal law in general. It turned solely on public policy reasoning and on the fact that
Congress had not said anything that would prohibit legal aid attorneys from requesting
attorney fees. Given the Court’s unanimous analysis, it would be difficult to understand how
a court of this Commonwealth, in a Virginia case, which did involve family law, could reach
a different result without a statute or case citing the contrary.
The Supreme Court’s rationale has been followed by lower courts in their nonfamily-law cases. In Legal Aid Society v. Burns5 the U.S. Bankruptcy Court for the Middle
District of North Carolina was squarely presented with the following question: “Is a nonprofit attorney representing a debtor in a bankruptcy case disqualified from collecting
attorney’s fees from the bankruptcy estate by virtue of such attorney’s non-profit status.”
The court’s response was a firm no.6 The court found no reason to treat public interest
lawyers any differently from private sector lawyers. The court further found that “a review
2
The case of Jones v. Seldon's Furniture Warehouse, Inc., 357 F. Supp. 886 (E.D. of Va. 1973) allowed Legal
Aid to receive an award of attorney fees under the federal Truth in Lending Act in the absence of any
prohibition against it in the statute.
3
465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed. 891 (1984).
4
Id. at 890, 104 S.Ct. at 1545, 79 L.Ed. at 897 (internal citations omitted). See also note 3, supra. Thus, the
only relevant (though non-family-law) Virginia case on the matter is in accord with Justice Powell’s opinion.
5
80 B.R. 764 (1987).
6
Id. at 766.
15
of the decisions outside the bankruptcy area indicates that courts have unanimously allowed
non-profit legal service organizations to collect attorneys fees.” 7
A state court in a family law case followed the Supreme Court’s rationale. In
Oregon v. Schreiber8 the court was presented with the issue of whether a mother could
request attorney fees from a father who had lost a change-of-custody trial. The father argued
that as she had a legal aid attorney, the attorney fees were not for the mother’s benefit, as
she incurred “no cost” for her attorney fees. The court disagreed. It found that
In such situations the client is not the incidental beneficiary of some other
legal obligation of the organization; rather, the client and the organization
have the common interest of achieving the organization’s purpose in the
specific case. The organization does not receive a windfall if the losing party
bears the burden of the successful joint promotion of that purpose.9
Justice Powell’s rationale in Blum, and the Oregon Supreme Court’s rationale in
Schreiber, supports the position of legal aid organizations everywhere. Why should an
organization, supported by charities and bar organizations and charged with seeing that the
poorest among us receive representation, be “penalized” just because it does not actually
charge its clients for the work it does? The fact that a legal service organization does not
charge for its work does not mean that it has not undergone a financial loss for having
represented an indigent client. It has. Legal aid administrators are often short of cash for
supplies, salaries, rent, and other business necessities. Make no mistake, when a legal aid
organization does its mandated work and represents a client, that legal aid organization
suffers a pecuniary loss. Yes, legal aid organizations are expected to expend money on
behalf of the poor. That, of course, is their purpose. But that is not the issue. The issue is
that legal aid organizations should not be expending unnecessary litigation costs for the poor
they serve (when unnecessary litigation occurs) due to the opposing side’s litigation
practices.
There is no legitimate rationale for arguing that private sector attorneys should enjoy
a special privilege over public interest lawyers. Both lawyers work hard and earn their
money. One gets a salary from someone other than the client, the other does not. Indeed, the
Supreme Court has recognized that Legal Aid attorneys often provide the very highest
quality of representation.10 Thus, to allow one party, who pays for her legal representation,
to collect attorney’s fees and not allow the other party, who gets her representation free, to do
so, based solely on the fact that one party has a public interest lawyer, would seem to deny
equal protection of the laws. The Constitutional implications of denying a legal services
organization attorney fees by such a rationale are considerable and any judge who looks at
the issue should be cognizant of it.
7
Id. (citing Blum v. Stenson, supra, Lightfoot v. Walker, 826 F.2d 516, 524 (7th Cir. 1987) (circuit approved the
payment of market rates to nonprofit attorneys); Then there are the federal Civil Rights Act cases, with their
special statu;tory grant of authority. See Jordan v. City of Greenwood, 808 F.2d 1114, 1117 (5th Cir. 1987)
(legal services organizations are entitled to attorney’s fee awards under 42 U.S.C. section 1988 to the same
extent as private counsel”)).
8
141 Ore. App. 288, 917 P.2d 1063 (1996).
9
Id at 294, P.2d at 1066-67.
10
See id. at 898, S. Ct. at 1549, L.Ed at 902.
16
Furthermore, attorney fee awards are not meant to reward one party over the other.
Despite what some cases say, it is not a method of redistributing money between the parties.
( That is done by child support orders, spousal support orders, monetary awards, etc.) It is
instead, where applicable, an equitable tool the court has to regulate the litigation. For
instance, if one party filed multiple motions that were essentially, but not quite, frivolous,
then the court could “regulate” the litigation by awarding the other side attorney fees. In
such cases, the purpose of the fee award is not only a substantive award of money to one
party or the other. It is also a regulatory, almost procedural award, meant to stave off – but
not punish -- unnecessary litigation that, if left unchecked, would financially damage the
other party. In this case the financial damage is not done to the client, but to the legal aid
organization that was forced to expend resources on behalf of the client in order to keep the
playing field equal.
Now I am aware of the converse of this argument because I hear it quite frequently
from private attorneys. They argue that people with legal aid attorneys can litigate without
regard to the cost while their client cannot. Thus, the legal aid attorney has an advantage.
This is not true. Why? Because the client of the legal aid organization could conceivably
also be ordered to pay attorneys fees. The rule would then work both ways.
Secondly, legal aid attorneys are overburdened with clients and have taken on a
particular client, not because they wish to run up attorney fees, but simply to see that their
client has approximately the same due process under the law as the other party. For myself,
if a client wants to file what I believe to be unnecessary motions, or over-litigate a case, I am
allowed to tell that client to find another lawyer. There is simply no financial incentive for a
legal aid organization to pursue unnecessary litigation. The legal aid “mindset” is to help as
many individual people as possible.11 It would, in a sense, be a failure of our mission if we
spent our time over-litigating a few cases to the detriment of the huge population out there
who need our help.
Finally, it would be a mistake to assume that the “near frivolous litigation” example
is the only one where the issue of attorney fees arises. For instance, there are literally
thousands and thousands of people in this Commonwealth who are not following current
domestic relations court orders: people who don’t pay their child support, or their spousal
support; people who refuse to abide by visitation decrees. When legal aid takes on such
cases to enforce these orders (by way of a Rule to Show Cause), we, like anyone else who
files contempt proceedings, are performing a duty not only to our client, but also to the courts
of this Commonwealth. In many such cases, the opposing party is pro se, and often hard to
locate. Legal aid organizations spend resources hunting down scofflaws, incur service-ofprocess fees, and spend time drafting the contempt petitions. We spend all this time and
often when the time comes to award attorneys fees, the courts don’t do it. Who, I ask, should
bear the brunt of the cost in such cases? The scofflaw or the seriously underfunded legal aid
organization? In every contempt case where legal aid is involved (and succeeds on the
merits) the judge should award attorneys fees payable to legal aid within the week unless
there is a good reason not to. This should be almost automatic.
11
In addition, most legal aid organizations justify their requests for more grant money by showing that they are
serving more people. There is thus a financial disincentive to over-litigate cases and a financial incentive to
help as many people as possible.
17
Given both the legal and the public policy arguments in favor of awarding legal aid
organizations attorney fees, the courts should feel absolutely free, without any qualms, to
award such fees. In doing so, the courts are promoting equal justice under law and are
making sure that legal aid organizations are not unfairly penalized for their status.
NEWS NOTES
FAILURE TO GET SUPPORT LOWERED
BRINGS VSB REPRIMAND
A disciplinary decision reported at 53/6 Va L Reg 39 (January 2005) serves as a
cautionary tale for all lawyers, if only because the error, omission or delict does not exactly
jump out at the reader as forcefully as it does in most disciplinary-case reports. The edited
writeup of the In Re Morton subcommittee determination of public reprimand relates that a
husband hired a lawyer after entering into a separation agreement, to defend the divorce
proceeding that had just been brought against him. The committee reported that an objective
of the representation was also to get the agreed child support lowered. The lawyer filed an
Answer and Cross Bill, of which one paragraph said that the defendant husband did not agree
with the child support provisions of the agreement and that there had been no attempt to do a
guideline calculation. The next paragraph said that wife had not performed her part of the
agreement’s obligations because she had not made financial disclosure, and as a result even
the lawyer filing this Answer could not tell whether the child support in the agreement was
consistent with the statutory guidelines. The husband’s lawyer propounded no discovery and
made no further and separate motion for a determination of child support amount. For that
reason or other reasons not revealed in the report, the circuit court entered an order
incorporating the agreement and two months later a final decree. A month after that the
husband retained a new lawyer who got the case reopened, moved to modify child support,
and then successfully negotiated a reduction. Nothing further is said about exactly wherein
the lawyer who filed the Answer and Cross Bill was culpable, but he gets a public reprimand
for incompetence and – since he failed to answer the State Bar’s letter of inquiry at any time
– a Rule 8.1 violation. Whether this was a matter of total neglect or of considered
professional judgment as to tactics which turned out to be wrong is not revealed.
THREE-JUDGE COURT
DISAPPROVES DUAL REPRESENTATION
The case of the lawyer who stoutly adhered to his right to “represent” both parties in
drawing up a separation agreement, but offered the husband no advice and ignored the
subject of potential conflict of interest, and resisted the trial court’s setting aside the
agreement as unconscionable and unenforceable, was retried to a three-judge court. That
court on October 6, 2004, as reported in the Virginia Lawyer Register for January 2005 (53/6
18
VAL Reg. 23), found violations only of Rule 1.7(a)(1), (2) and (b)(1) and (2), the general
conflict of interest rule, and ordered a public reprimand. VSB v. Kenneth R. Weiner.
FRIVOLOUS HARASSMENT MOTION RESULTS
IN SUSPENSION FROM PRACTICE
A criminal lawyer’s filing a motion to subpoena the co-defendant’s counsel, which he
admitted to that lawyer was groundless and intended only to harass the Commonwealth’s
Attorney and keep him off balance, resulted in the one-year suspension of the lawyer who
filed it, Curtis Tyrone Brown, for the violation of a number of disciplinary rules. The motion
accused the co-defendant’s two lawyers of conspiring to fabricate a criminal case against Mr.
Brown’s client. He then assured one of those lawyers that the subpoena could be ignored if
he received it, because it was not intended he should testify but only that the prosecutor be
irritated. Much was made of the fact that Brown never discussed the intended subpoena with
either of these two other lawyers, but this was mainly because the non-discussion was
another strong indicator that Brown had no basis for his allegations. The trial court made a
specific finding that he made an allegation without caring about the truth or falsity thereof,
and that the testimony the trial court took established that the sole purpose of the motion was
harassment. It also made a specific finding that the motion falsely accused three other
lawyers of dishonest conduct that would violate disciplinary Rules 3.3(d) and 8.3(a) and of
misprision of a felony. The trial court found a violation of §8.01-271.1 and imposed a
$4,000 sanction. That sanction decision was appealed to the Court of Appeals, the Virginia
Supreme Court and the Supreme Court of the United States, but all three denied review. The
Board opinion in Disciplinary Board In Re Curtis Tyrone Brown, at 53/6 Va L Reg. 24,
began by reiterating that a trial court’s imposition of a sanction does not preclude
disciplinary action punishing the same conduct. It found violations of Rule 3.3(a)(1) candor
toward the tribunal, the provision of Rule 3.4(i), fairness to opposing party and counsel,
which prohibits filing motions intended only to harass or maliciously injure, Rule 4.1(a),
truthfulness in statements to others and Rule 8.4 (c), professional misconduct. The last
finding was explained by Brown’s trial-level and disciplinary board defense of his conduct
being especially troubling. Brown’s lawyer argued that “fabricate” is a verb meaning “to
build,” and since every lawyer seeks to build his case for the jury, Brown was not making a
false nor a libelous or damaging allegation about his colleagues or the prosecutor. This was
considered disingenuous.
TIDAL WAVE OF THE FUTURE?
ELECTRONIC DISCOVERY RULES
What rough shape, its hour come round at last, is coming our way? Electronic
discovery, for one. Proposed changes to the Federal Rules of Civil Procedure were published
by a standing committee of the federal Judicial Conference in August, and the public
comment period was supposed to close on February 15. Mostly the impact of these Rules
would, it appears, be to dictate how much and what stuff people have to keep forever in their
computers in case there should someday be a lawsuit, with the inevitable discovery. The
changes would affect Rules 16, 26, 33, 34, 37 and 45. An interesting change to Rule 26(b)
would state that a party need not provide discovery of electronically stored information “that
19
the party identifies as not reasonably accessible.” After that, however, the court could still
order discovery “for good cause.” Worse, any issues relating to disclosure or discovery of
“electronically stored information” would be a topic that lawyers must discuss at the Rule 16
pre-trial conference. A safe harbor from discovery sanctions is provided by Rule 37(f),
which insulates a party who failed to produce electronically stored information but had taken
“reasonable steps” to preserve it – so long as the failure resulted from “the routine operation
of the parties’ electronic information system.” In a brief item in the ABA Litigation
Section’s Litigation News for November 2004, a commentator warned about “routine”
deletion of material in the interval between the complained-of bad conduct and the filing of a
complaint in federal court. While FLN does not automatically equate every new thing it
hears of with a good idea which Virginia should adopt, there surely are those who do, so be
warned.
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
CITIZENS' DISSATISFACTION WITH JUDGES:
WHAT HAS AND HASN'T CHANGED
You wear out a good wholesome forenoon in hearing a
case between an orange-wife and a fosset-seller; and then
rejourn the controversy of three pence to a second day of
audience. … You dismiss the controversy bleeding, the more
entangled by your hearing. All the peace you make in their
cause is calling both the parties knaves.
Shakespeare, Coriolanus II I
NOTES ON RECENT APPELLATE CASES
4/28/05
APPEALS – INTERLOCUTORY v. FINAL ORDERS – DIVORCE JURISDICTION. An
order that said the court would not exercise jurisdiction over divorce and custody “at this
time,” when a divorce was simultaneously pending in Hungary, cannot be appealed because
it is not a final order nor an appealable interlocutory order. It does not “respond to the chief
object of the suit” because it does not make any determination about the parties’ marital
status or rule on any other issues in the divorce; nor does it say once and for all that the court
will not do so in the near future in the case. Since the trial court did not actually dismiss
20
anything, it might decide to proceed on the case sometime in the future. The Court of
Appeals opinion does not discuss any possible distinction between the merits of this
approach in custody or custody-jurisdiction questions as opposed to questions of divorce,
property or support. Prizzia v. Prizzia, ___ Va. App. ___, ___ S.E.2d ___, 19 VLW 1092
(3/22/05).
PROCEDURE – APPEALS – FINAL ORDER AND 21-DAY RULE – FEE REQUEST –
RESERVATION OF RULING – STANDARD OF REVIEW. The Court of Appeals
explained in Mina v. Mina, 45 Va. App. 215, 609 S.E.2d 622 (3/1/05), that an order that
retains jurisdiction, either to reconsider the case or for any other reason, is not a “final order”
that triggers the running of the 21-day limit under Rule 1:1 (Key Number users beware:
S.E.2d, in its advance sheets mis-cites 1:1 as a Rule of Professional Conduct). This was a
case in which the ex-husband filed a motion to vacate a QDRO, and both he and the ex-wife
filed for a fee award. The circuit judge bifurcated the case before denying the motion, and
reserved ruling on the fee award requests, stating that it would rule on them on a later date.
The court did not rule on the fee claims on that later date, because the husband had filed
another substantive motion which got heard in the meantime and resulted in an order by
another judge that the parties could present their fee award claims on some future Friday
before the original judge as a Friday motion. Nothing in that order said the case was stricken
from the docket. About three months later the wife renewed her motion for attorneys' fees,
and then the original judge entered an order (a month later) saying simply that the wife’s fee
award motion was denied. However, the judge orally informed the parties that this was done
because under Rule 1:1 the court no longer had jurisdiction to do anything. The Court of
Appeals provides a lengthy analysis, essentially saying that when trial courts expressly
reserve a matter, they have reserved it and that is effective. The case was bifurcated and thus
the other order did not “dispose of the whole subject,” and grant “all relief contemplated,”
and the reservation was effective to stop the running of the 21 days. Many Virginia cases are
cited, and there is a lot about the standard of review on appeal, this case fitting under the rule
that a trial court by definition abuses its discretion when it makes an error of law.
FEE AWARDS – SUPPORT MODIFICATION – SEPARATION AGREEMENTS. When
does a judge have a general equitable common-law discretion to award attorneys' fees in
post-divorce support modification litigation? Well one time he surely does not have it is
when the ex-wife seeks an alimony increase and there is a separation agreement which lets
her do that, but it specifically provides for attorneys fees in two named instances: in the
divorce, and in the event of a breach. The Court of Appeals acknowledges that earlier
decisions interpreting §20-109 have not been consistent in their wording, but the Court says
in Rutledge v. Rutledge, 45 Va. App.56, 608 S.E.2d 504, 19 VLW 919 (2/1/05), that it has
never even hinted that Subsection C gives a judge any kind of discretionary power to deviate
from the express terms of the agreement and assume a discretionary fee-award authority.
Fees in the event of breach is one thing, but the Court sees no term in this agreement that
allows fee awards when either party seeks to modify support. It was the wording of the
separation agreement that gave this woman the right to be in court at all, and the wording of
the agreement controls.
MINORS’ CONTRACTS – NECESSARIES DOCTRINE – LAWSUITS. Family Law News
has followed “necessaries doctrine” cases in the past, and it will report on this one: a Virginia
21
Supreme Court holding that a remote and speculative inheritance lawsuit for a minor is not a
“necessary” because the minor could very well live without it, at least for the 11 months
remaining before he would be 18. Thus there isn’t any special reason to hold this minor’s
contract valid as against the defense of minority. A real “necessary” that you can make a
minor pay for, the Supreme Court very helpfully explains, is something that he has to have
right now and can’t wait for until the time of his adulthood. This lawsuit, by contrast, was
aimed at getting a grandfather’s testamentary trustees to acknowledge that distributions
under the will which wouldn’t be coming along until 2014 and 2021 should go to this kid as
the deceased testator’s real grandson. He got the teenager’s mother to sign a retainer
agreement, and then started agitating with the trustees for binding declarations that the boy
was an heir, and when they politely sought time to check it out, referring to the fact that the
distributions were 17 more years away, he filed suit while the kid was still 17. The trial court
properly sustained a plea of infancy to enforcement of the retainer contract, and is affirmed.
Zelnick v. Adams, ___ Va. ___, 606 S.E.2d 843, 19 VLW 856 (1/14/05).
BANKRUPTCY – DISCHARGEABILITY – COLLEGE EXPENSES UNDER
SEPARATION AGREEMENT. The U.S. Bankruptcy Court in Harrisonburg found a 50-50
division of college expenses in a separation agreement enforceable and non-dischargeable by
the ex-husband father even though this particular contract provision said each would pay half
“to the extent each is able.” When the father didn’t pay the first year of college, the wife
took him to state court and had the judge find that he was indeed able to pay his half and
enter judgment. After that, it doesn’t matter that he’s going bankrupt and can’t pay now, the
federal court says. Moreover, the bankruptcy judge points out, college expense provisions
are child support, and therefore non-dischargeable under 11 U.S.C. §523(a)(5). The
bankruptcy judge does say that in determining what is a child support debt, you do look to
the mutual intent of the contracting parties at the time of the contract, but that is so clear
here, that there’s no genuine issue of material fact and the ex-wife is entitled to summary
judgment. Dischargeability does not depend on the present financial ability of the debtor.
Webb v. Craighead, ___ BR ___, 19 VLW 852 (USBC Harrisonburg, 12/6/04).
CHILD SUPPORT – DISABLED CHILD OVER 18 – EVIDENCE. Expert medical
testimony was not required in order to establish that a child suffered from conditions that
constituted a disability, nor that those conditions kept the child from living independently
and being self-supporting. The mother provided ample and “uncontradicted lay witness
testimony ... based on her own personal observations and experiences” of the child’s medical
conditions, including many specific physical weaknesses and inabilities to make specific
movements without extreme pain, “from which it may be inferred that the child cannot live
independently and support himself.” And the trial court made an explicit finding that the
disability caused the child to be unable to support himself or live alone. Mullen v. Mullen,
___ Va. App. ___, ___ S.E.2d ___, 19 VLW 1092 (3/22/05).
CHILD SUPPORT – WELFARE RECIPIENTS’ LIABILITY – WORDS AND PHRASES –
MONEY. The case of Hodges v. Commonwealth, 43 Va. App. 591, 600 S.E.2d 175, reported
at 24/3 FLN 26 (2004), appears to have been re-decided en banc, with the same result. There
is a concurrence and a dissent. This was the case that held that the §63.2-1908 exemption
from child support liability for people who get welfare does not apply to those people who
get food stamps and Medicaid, because the statute speaks of “public assistance monies” and
these things, being neither coins nor currency, are not money. Judge Humphries believed
22
that the case could and should have been decided on narrower grounds, leaving alone the
“monies” issue, which he says the plurality and dissenters are over-eager to decide by writing
what is really an advisory opinion. He doesn’t believe that the statutory definition of “noncustodial parent” – which is really only what is left after the statutory definition of custodial
parent under the statute, she -- has been followed. The concurring judge writes at immense
length on this issue, and concludes that because the mother is not a non-custodial parent, she
is not covered by the statutory exemption and the trial court should have been affirmed on
that ground. Judge Elder dissented, joined by Chief Judge Fitzpatrick, and Judges Benton,
Annunziata and Felton. He rejects the concurring view of Judge Humphries in regard to the
non-custodial parent issue. The dissenters believe that the legislature meant to exempt those
who get food stamps and Medicaid. Hodges v. Commonwealth (en banc), 45 Va. App. 118,
609 S.E.2d 61, 19 VLW 945 (2/16/05). The dissenters write a lengthy and very interesting
opinion on both these issues.
DIVORCE GROUNDS -- MARRIAGE BY FRAUD -- ADULTERY -- PROPERTY
DIVISION FACTORS
-- CATCHALL FACTOR -- DIVORCE/ANNULMENT
DISTINCTION. What to do with major fraud in the inducement to marriage when the
complaining party doesn’t seek annulment, but files for divorce instead, is the subject of a
colorful published opinion from the Court of Appeals in Ranney v. Ranney, 45 Va. App.17,
608 S.E.2d 485, 19 VLW 919 (2/1/05). Wife’s fraud was gross in that she not only disclosed
only one of four prior marriage to husband and on the marriage license application, when in
fact this was her fifth marriage, but still lied about having a college education immediately
beshrewed him after the wedding and throughout the marriage, and did her best to shop away
the $6.3 million in salary and stock options that the husband earned during the marriage
(wife having come into the marriage with $600,000). After they separated, wife sued for
divorce on desertion grounds and husband on grounds of a post-separation adultery. The
marriage was short, and thank God, childless. But husband’s other divorce ground was the
fraudulent inducement to the marriage, which could have been brought as an annulment
ground, but was properly thrown out upon a demurrer as a divorce ground. The trial court
found, and the Court of Appeals agreed, that neither party made significant non-monetary
contributions though husband made substantial monetary ones, while wife hung onto her
cash. Husband, the Court said, was “principally devoted to his work, lived modestly and
financed his wife’s lavish shopping and expenditures without significant objection” – while
finding that the wife was “largely self-absorbed, dominating and often threatened divorce.”
Husband tried to invoke the lies about prior marriage as a §20-107.3E factor. The Court of
Appeals held that trial courts do not have to give any weight to such fraudulent inducements,
but they can properly do so, in the right circumstances. The statute, after all, contemplates
unspecified miscellaneous factors. Here the trial court gave it some, but not controlling,
weight, and did not abuse its discretion in awarding the husband 2/3rds of the marital estate.
Could the trial court have awarded the wife nothing in this short and unhappy marriage?
Apparently not, for as the Court of Appeals sees it, that would have been giving the
fraudulent inducement controlling weight, treating the case as an annulment in disguise.
Apparently the judge just can’t give the wife nothing in a divorce case on any set of facts
whatever. This divorce ended up being awarded on one-year’s-separation grounds. The
Court of Appeals went back to one of its favorite theories, though, and labeled the wife’s
misrepresentations and her contributions to the dissolution of the marriage negative nonmonetary contributions. The Court also found harmless error in the trial court’s classifying
husband’s stock options as separate property. He could not exercise them until he had
23
remained with his employer a stated time. One month of his employment with this employer
was during the marriage, so he earned the right to the exercise during the marriage.
Nevertheless, the Court of Appeals noticed that the trial court had classified as marital all the
assets that were purchased with proceeds from the sale of these stock options.
PROPERTY DIVISION – FORMER MARITAL HOME – ORDERING TRANSFERRING
SPOUSE’S MORTGAGE LIABILITY ENDED BY REFINANCING, ETC. In an unusual
equitable distribution case, Bomar v. Bomar, ___ Va. App. ___, ___ S.E.2d ___, 19 VLW
1045 (3/8/05), the Court of Appeals tells a cautious trial judge that yes, he did have the
power to order a wife who was awarded the marital home to keep the husband off the
mortgage, and it reverses for his failure to do so. A judge might understandably say, as this
one did, that he could find nothing in §20-107.3 that authorizes ordering an party who is
awarded the house to refinance or sell by a certain date, but the Court of Appeals finds the
authority in the wording of Subsection C that authorizes awarding the debt along with the
equity. It’s there by natural implication, the Court finds. After all, the statute gives the
courts authority to order the recipient to sell the house, so why not this? The husband had
seen this issue coming, and testified that the wife had trouble paying her bills, and wife
testified that she had a poor credit rating. The judge awarded the wife the house and made
her solely responsible for the debt associated with it. The statute says a judge can condition
transfer of the real estate on a requirement that the recipient spouse “assume [the]
indebtedness secured by the property,” but the trial judge would not read into that a power to
order any acceleration of the payment -- but the Court of Appeals, in an opinion by Judge
Benton, finds the rest of it very simple. “Clearly,” the opinion says, “this grant of power” in
§20-107.3(C) to require the party to assume the indebtedness “encompasses the power to
condition the transfer upon terms that will not leave the other party at risk of financial ruin if
the receiving party is not financially responsible.” Saying “assume any indebtedness,” the
court says, “obviously means that the grantee agrees to discharge the indebtedness. This can
be done by refinancing, by paying the balance, or by paying according to the terms of the
instrument.” The court cites many real estate cases for this position. To the Court of
Appeals, “nothing in the statute suggests the trial judge did not have the power....” It is a
power simply “to order the usual and necessary incidents requisite to transferring the
property to reach an equitable distribution.” For good measure the court adds in a reassuring
footnote that “nothing in the statute bars the trial judge from ordering, if appropriate, that the
party receiving...indemnify and save harmless the other party from any claims arising out of
ownership and occupancy of the property.” The court goes on to supply, in another footnote,
a long string of recent Virginia circuit court opinions wherein judges did this or something
similar.
PROPERTY DIVISION – MARITAL/SEPARATE – NEW MILITARY BENEFIT – AS
PENSION – “CAREER STATUS BONUS” – SEPARATION AGREEMENTS – FIRST
IMPRESSION. Either a career Navy man divided with his wife in his separation agreement
a new kind of one-time benefit that didn’t exist yet, or it can’t be his separate property,
despite receipt after separation, because it is like a pension and serves to diminish the
expected pension. Either way is good enough to justify a trial court’s considering this
“career status bonus” or CSB/Redux benefit marital property, the Court of Appeals recently
held. In Boedeker v. Larson, 44 Va. App. 508, 605 S.E.2d 764_, 19 VLW 717 (12/7/04), the
Court of Appeals, after its inability to find any cases on such benefits, analyzed the intent of
Congress in the implementing legislation, 37 U.S.C. §322, and the Uniform Services Former
24
Spouse’s Protection Act, 10 U.S.C. § 1408, but then declared that such intent is irrelevant
here because the separation agreement text controlled, and it divided all “retirement or
pension types of accounts,” giving wife one-half the marital share. The Court apparently then
reasons that the CSB/Redux is a retirement or pension sort of account because the husband’s
election to receive it immediately reduces the amount of military retirement. Thus it must be
divided under the statutes concerning retirement benefits as marital property, rather than
treated as post-separation income. The Court considered cases from other jurisdictions that
have divided benefits that are not the same but similar. Incidentally, this is one of at least
two published opinions handed down on December 7 that declares that the man will not be
“permitted to approbate and reprobate,” which apparently means taking inconsistent
positions, such as dividing all pension-type benefits and then arguing that a new benefit
which comes along isn’t one.
PENSIONS – FEDERAL COURTS – SURVIVOR BENEFIT ELECTIONS –
ADMINISTRATIVE PROCEDURE ACT – FEDERAL AND STATE JURISDICTION –
BIFURCATION – DEATH INTERVENES. A pro se military ex-wife, "widowed" after
divorce, failed on all counts in her attempt to get the U.S. District Court for the Eastern
District of Virginia to grant her a survivor benefit never elected by her late ex-husband nor
granted to her by the New York divorce court. The husband died after a divorce had been
granted, but before equitable distribution in this bifurcated case had taken place. The ex-wife
sued the Army Board for Correction of Military Records, under the Administrative Procedure
Act, 10 U.S.C. §1447 et seq., for its failure to "correct the record" to give her the survivor
benefit. The court found that she had no right under that statute or any other , nor under the
doctrine of Bivens v. Six Unknown Named Agents [sic], 403 U.S. 388 (1971), to sue U.S.
Army officials acting in their official capacity for denial to her of due process. It granted
summary judgment for the Government. Alternatively, the Eastern District held that federal
courts lack jurisdiction over this claim because it is an attempt to involve federal courts in
state divorce marital property disputes. It rejected the wife's claim that she was still married
to the military officer when he died, since the divorce decree dissolves the marriage and
authorizes her to start using her maiden name. Since New York law certainly does not
conclusively hold that a woman in this ex-wife's position is still a wife after divorce, the
Correction Board did not arbitrarily and capriciously abuse its discretion. The court
alternatively concluded that this was not even a real APA claim at all, since in essence the
wife was simply asking the federal courts to second-guess a state divorce court or finish that
court's unfinished work interrupted by a party's death. Lammers v. Rumsfeld, ___ F. Supp.
2d ___, 19 VLW 687 (EDVA 11/17/04).
PROPERTY DIVISION – MARITAL/SEPARATE – AGREEMENT NOT TO COMPETE –
AS PROPERTY – DISCOVERY AND TRIAL TACTICS -- APPELLATE PROCEDURE
The Court of Appeals says some truly astonishing things in what appears to be a highly
unusual case – things which are likely to have unintended consequences for the next more
normal case that comes along. What is certain is that commentators are sure to extend the
court's unduly generalized pronouncements to all cases. As part of selling his company, the
husband, before marriage, signed an agreement not to compete, with a million-dollar quid
pro quo. The agreement was not to compete with the buyer for a year, the problem
apparently being that he didn't receive his million until the end of the year, and that was
when he was a married man. The Court of Appeals held that it was error to classify that
million dollars as separate property. For some unexplained reason, the Court of Appeals
25
goes on to comment that this is like a severance package and the forbearance to compete with
the other party is work that you perform during the whole time that the prohibition runs, and
therefore this was like the husband working and earning money (albeit by not doing anything
– or rather, not doing the one thing he would be an idiot to do) and therefore it's marital
earnings and can't be separate property. To the argument that the million-dollar payment is a
mere expectancy and we don't call those property, the opinion goes on to repeat that doing
nothing is earning income and income equals property, and that if the million dollars had
been earned by working during marriage it would surely be marital property, and by
fulfilling an obligation, however passively, during marriage, you are a workingstiff earning
marital wages. It concludes that this is property received during marriage and is not separate
property as defined by the Code (which might have been a good place to start and quit).
.
The husband called the non-compete payment part of his separate property, claiming
that it was part of his pre-marital sale of the company that he had earned entirely before
marriage and not during marriage, an argument which it would have been easy enough for
the Court of Appeals, or any other court in the land, to accept, but it was rejected in favor of
the wife's argument that husband's waiving his right to work and earn in his field of expertise
was an expenditure of marital property. The confounding of property and income concepts
permeates the opinion here. The husband argued that he earned the right to all of the income
the day he signed the agreement, 12 days before marriage, but the Court of Appeals says that
it took him the entire year of the contract term to earn it by not doing anything to violate the
contract.
DISCOVERY AND TRIAL TACTICS
The opinion also has some harsh words for judges who try to streamline, or as the
Court puts it, short-circuit, the rules and process of discovery. Wife was improperly kept
from putting on the testimony of experts whose reports she refused to produce, because the
husband had no right to ask for such relief if he hadn't gone through the entire plodding
process of asking for the information, not getting it, bringing a motion to compel, waiting
until that order was disobeyed, going back to court to argue about which sanction might be
appropriate, and getting a judge to impose the sanction of not putting on the evidence. That
apparently did not happen here. The court apparently had ordered the wife to produce the
experts, but the judge did not follow correct procedure because she just excluded the
evidence at trial, even though the husband had not gone through a Rule 4:12 motion for
sanctions. Cirrito v. Cirrito, 44 Va. App. 287, 605 S.E.2d 268, 19 VLW 658 (11/23/04).
APPELLATE PROCEDURE.
An extremely important point is the Court's disposition of the husband's common
sense argument that nobody ever proved where this money went, or that it was still around as
a fund to divide. In what should be an object lesson to all Virginia lawyers never to cite
logic, reason or common sense, the plain meaning of the statute, or anything similar as an
argument, the Court of Appeals held that husband could not make the argument that courts
can't divide a res which was never shown to exist because his brief did not cite cases for that
proposition. Once again the Court invokes Rule 5A:20(e), so incredibly popular of late, to
decline even entertaining this argument.
26
Among the disturbing things the Court goes on to say after having made its points is
that non-competition agreements are similar to severance packages and their monetary
proceeds constitute replacement of lost earnings for the future. It is apparently never made
plain anywhere in the opinion how much more than a million dollars the husband got for
selling his company, or whether the one million was all. What he did get was stock in the
buy-out company and a $375,000 per year job with it. For its holding, the court cites
Leuzkovich v. Leuzkovich, 26 Va. App. 702, 496 S.E.2d 157 (1998) for a prior holding that
severance pay is a "mere expectancy," although in the context of that case it was a mere
expectancy because it "has no value until the termination of employment." That's why the
judge was wrong when she held that as soon as the husband signed the contract (before
marriage), "the money was in the bank." The Court does not go into whether the said
hypothetical earnings would have been marital property if they had been spent on support of
the family and were no longer around for that reason.
MARRIAGE — VIRGINIA COUSIN MARRIAGE VOID IN OTHER STATE. An Arizona
case says that a legal Virginia marriage between two first cousins becomes void when they
move to Arizona. Cook v. Cook (Ariz. App. 1/13/05, 31 FLR 1136). Didn’t we all learn in
law school that a marriage valid in the state where it was contracted is valid anywhere, since
even though requirements for a valid marriage differ in each state, a marriage gets full faith
and credit unless it grossly violates a state public policy? Well, not any more. Arizona law
used to say that marriages valid under the laws of the place where they
are contracted remain valid in Arizona. But in 1996, when the homosexual marriage issue
first came up, the Legislature amended that law to add “except marriages that are voided and
prohibited by” a statute on that subject. The statute they cited included not only same sex
marriage but also other prohibited marriages, including first cousins. The court went on to
say that the couple in this case remain validly married because they moved to Arizona before
the law was amended. But for anyone who moved there after 1996, the rule would be
different.
CRIMINAL LAW — CONSTITUTIONAL LAW — FORNICATION AND POSSIBLY
ANY OTHER "INTIMATE RELATIONSHIP" PROTECTED. The Virginia Supreme Court
struck down a statute making fornication a crime, citing Lawrence v. Texas, the U.S.
Supreme Court decriminalizing sodomy. Martin v. Ziherl, 607 S.E.2d 367 (1/14/05, 31 FLR
1137). The ruling did not come in a criminal prosecution, so the state was not involved.
This was a suit for a tort of transmitting a sexual disease, and the defendant argued that the
plaintiff could not recover because she had been engaged in the crime of fornication at the
time the injury occurred, and in fact the injury was caused by her commission of that crime.
The trial court had said the fornication law was rationally related to valid purposes such as
protecting public health and encouraging marriage for the procreation of children. The state
interest the trial court cited was not in encouraging heterosexuality because it produces
children, but rather, “encouraging that children be born into a family consisting of a married
couple.” But the Supreme Court, in an opinion by Justice Lacey, held that there is “no
relevant distinction” between this case and Lawrence. The state interests that the trial court
cited are no longer sufficient because the Lawrence doctrine “sweeps within it all manner of
state’s interests and finds them insufficient when measured against the intrusion upon a
person’s liberty interests when that interest is exercised in the form of private consensual
sexual conduct between adults.”
27
So far the result is not too surprising. But how much further is the logic of the
Lawrence case going to go? What does this Martin opinion indicate about where the Court
will draw the line when sexual activity gets more mixed up with the kinds of cases we family
lawyers deal with, such as adultery in divorce? The court explains that Lawrence was not
about a fundamental right to perform specific acts, but was about “the right to enter and
maintain a personal relationship without governmental interference,” and that statutes
criminalizing certain acts were really aiming “to control a personal relationship” that people
have a liberty interest in – a right to have “a personal relationship ‘in the confines of their
homes and their own private lives’ and that an element of that relationship is...intimate
conduct.” It notes that Lawrence adopted Judge Stevens’ dissent in Bowers v. Hardwick,
which said that the Due Process Clause of the 14th Amendment protects “intimate choices by
unmarried as well as married persons.” This means that “Decisions by married or unmarried
persons regarding their intimate physical relationship” are protected.
Describing the rational-basis review that the statute in Lawrence was subjected to, the
Virginia court says that the U.S. Supreme Court’s finding that the sodomy statute “furthers
no legitimate state interests which can justify its intrusion into personal and private life of the
individual” is not limited to the state interests which were asserted by Texas in the Lawrence
case but “sweeps within it all manner of state interests and finds them insufficient” to justify
intrusion upon “private consensual sexual conduct between adults.”
So, what about conduct between one married adult and one adult who is not married
or married to somebody else? Well, first, this opinion talks repeatedly about the case of “two
unmarried adults” but that may just be because that was who involved in this case and that is
who would be subjected to the fornication statute rather than the adultery statute. Portions of
the opinion, citing the Stevens dissent in Bowers, do seem to refer to two different classes:
(1) two people within a marriage, whose sexual privacy has been protected ever since
Griswold v. Connecticut, and (2) a pair of unmarried people. But in its most absolute
statements, this opinion talks about “private consensual sexual conduct between adults” as its
standard for when there is an inviolable liberty interest.
The court takes pains to note that its ruling does not apply to anything involving
“minors, non-consensual activity, prostitution or public ...fornication,” but that list does not
mention any exception for adultery.
Submitting Articles and News
Family Law News encourages Section members to submit articles, newsworthy
information, etc. Articles should be typed, double-spaced, and of a length comparable to
what you have seen in this newsletter in the past, or shorter. If you can, send a computer
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be sent to the Editor at:
Richard E. Crouch
2101 Wilson Boulevard, Suite 950
Arlington, Virginia 22201
28
We print four issues a year. Until further notice
the deadlines are:
Fall August 10
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| Winter
| Summer
November 10
April 20
Please remember that content should be submitted well before the deadline to allow
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The Editor also actively solicits comments from Section members on what they
would like to see in the newsletter, would rather see less of, etc. Do not expect to see these
comments in print, however, as we do not have a letters column.
This opinion, like the Lawrence opinion
and Bowers before it, is about criminal
penalties, not civil penalties. In fact, this
decision clears the way to impose a civil
penalty on a fornicator who passes on a
social disease while exercising his liberty
interest in intimate conduct of a personal
relationship between consenting adults.
CRIMINAL
LAW
–
DOMESTIC
VIOLENCE – COHABITATION. A jury
instruction that defined “cohabitation” was
at issue in a criminal defendant’s appeal on
a domestic assault and battery conviction.
Since the statute refers to defenses against a
family or household member, the jury was
instructed that the Commonwealth had to
prove beyond a reasonable doubt that the
complaining witness had been cohabiting
with the defendant within the last 12
months.
On this point, Rickman v.
Commonwealth, 33 Va. App. 550, ___
S.E.2d ____ (2000), has construed the
“cohabitation” language of §18.2-57.2
before. The Rickman case talks about
employing a “totality of the circumstances”
analysis to decide whether the defendant
and victim cohabited, and the Court of
Appeals held that the trial judge correctly
refused an instruction the defendant had
wanted setting forth more of the Rickman
factors. The Court of Appeals says it was
incorrect and would have confused or
misled the jury. Cowell v. Commonwealth,
unpublished, 19 VLW 948 (2/1/05).
This all-dissolving liberty interest in
personal relationships probably will not
stop its rampage until it runs up against an
even more strongly asserted individual right
– people’s long-held freedom to contract a
marriage that is legally binding, that
involves a promise to “forsake all others” in
order to protect the interests of the spouses
and their children, that gives up some very
real options in order to gain a commitment
from the other person and build something
lasting for future generations. If that right
is not asserted, or does not prevail, then the
ultimate result of the movement to give
homosexuals a right to marry probably will
be a world in which no one has the right to
marry in any legally meaningful way.
What would that be like? Well, if you
happen to be a Virginian who married your
cousin and moved to Arizona, you already
know what that’s like.
DIVORCE GROUNDS – DESERTION/
SEPARATION – PENSION DIVISION
AND ALIMONY – DOUBLE DIP. An
unpublished opinion in Gruettner v.
29
In Gilliland v. Gilliland, 19 VLW 769
(11/16/04), the Court of Appeals reminds
us to read the text of Code Section 20-107.3
D very carefully as it declares that the trial
court has to have “approved the proposal”
of a husband to divide property in kind with
his wife in satisfaction of the monetary
award that has been ordered. In other
words, a man can’t pay out the wife’s
award in equitable distribution simply by
dividing the property with her, unless the
court approves that. A monetary award
seems to be the preferred or default remedy.
The unlucky husband in this case was
supposed to divide the 2002 value of his
truck with the wife rather than the 2004
date-of-trial value, but there’s nothing in
the record to show that he adduced
evidence of any alternative valuation. They
had got the valuation figures from the
husband’s discovery responses anyway, so
he can hardly complain.
Gruettner, 19 VLW 769 (11/16/04), gives
some insight into how the Court of Appeals
looks at the question of proof of desertion
or separation grounds these days. The
husband moved from “the marital home”
into a “second marital home,” the family’s
vacation lake house, and he argued on
appeal that this was not desertion. What
does the Court of Appeals look at?
Apparently, that no evidence showed they
“lived together on a continuous basis” after
this departure, and specifically at the fact
that husband (1) withdrew $100,000 from
their joint bank account before leaving,
without telling wife, (2) that he told the
wife he was not happy and was moving out,
(3) that he took clothing and other things
off walls and shelves, calling these items
his, and (4) that he drew up a list of
property
holdings
with
values.
Interestingly, the Court of Appeals says that
the instances of sexual intercourse between
the two spouses after this made no
difference, because they do not constitute
matrimonial cohabitation and there was not
a “resumption of marital duties or
cohabitation on a continuous basis.”
Husband did not show that he continued to
perform normal marital responsibilities “of
living together.” Needless to say, the Court
of Appeals found nothing wrong with the
double-dipping award, which divided
husband’s retirement accounts as property
and then divided his half again with the
wife in the form of alimony, because the
retirement was income to him.
CHILD SUPPORT – MODIFICATION –
DOWNWARD
–
JOB
LOSS
-“VOLUNTARY ACT” – FEMALE
FATHER. Is it actually possible for there
to be a child support reduction by reason of
the husband’s job loss that will be granted
at trial and upheld on appeal? Of course
it’s possible. And now we know just
exactly what it takes. What sort of facts
would produce such an unprecedented
result? A female husband? In Dorough v.
Dorough, an unpublished case at 19 VLW
814 (11/23/04), a husband, like others in
published Virginia imputation cases, was
fired after warnings about substandard
performance. But, as he testified later in
support of his child support reduction
petition, he took those warnings seriously.
After the warnings, he told his boss he was
getting counseling for “gender identity
disorder” in preparation for a sex-change
operation. Thereafter he was fired, the
employer’s letter said, for failing to attend
managers’ meetings and not completing
PROPERTY DIVISION – REMEDIES –
IN-KIND DIVISION OR MONETARY
AWARD – VALUATION – EVIDENCE.
An unpublished opinion in an appeal from
Southampton County serves as a disturbing
reminder of the square corners an appellate
court can make a trial judge turn when it
wants to, and procedural traps in equitable
distribution law that so many lawyers and
trial judges seldom give much thought to.
30
logical from a look at the Slip Opinion in
Key v. Key, unpublished, 19 VLW 814
(12/14/04). The Isle of Wight County
Circuit Court held that it had continuing
jurisdiction to decide custody, and awarded
it to the father, but the mother appealed,
arguing that it had lost its continuing
jurisdiction. The fact that the judge had
earlier made a handwritten order awarding
custody to the mother and that 21 days had
run, making this a final order, before he
acted again, should have nothing to do with
the UCCJEA case – except that the mother
argued on appeal that after that order, and
those 21 days, everyone had left this state.
(This is not something that the Record
definitively reflects.) Well if that happened,
the Court of Appeals agrees in its
unpublished opinion, the Isle of Wight trial
court would have lost its jurisdiction to
modify the order and turn the children over
to the father. As the UCCJA and UCCJEA
make clear, a state loses custody
jurisdiction once everybody leaves. After
that, the Virginia court would have to have
had modification jurisdiction, and a court
cannot have that without satisfying the very
rigid modification-jurisdiction requirements
of the UCCJEA, which begin with the state
having some basis of jurisdiction, and end
with no other state having valid UCCJEA
jurisdiction. Those findings were not made
here. The Court of Appeals does remand
this case for a hearing on whether the father
had indeed left the state as the mother
alleged. Making the matter sound even
more complicated, the Court of Appeals
runs through an explanation of other
categories of jurisdiction to establish that it
doesn’t have any firm knowledge whether
those might have applied either.
operational checklists. The poor thing tried
to find a lawyer to take his/her employment
discrimination case, but could not. In
finding another job, he –- uh, make that she
-- was always asked for work history, and
was forced to explain having worked at all
the earlier jobs “under his masculine
name.” She got an $8/hr. retail clerk job,
but that wouldn’t pay the child support
bills, so she went to circuit court and got a
reduction from $1098 a month to $319. Of
course the mother appealed –- and in the
unpredictable and unsettled state of today’s
law, who wouldn’t? –- but this job-losing
payor’s sad plight managed to evoke get
sympathy and understanding both at the
trial level and on appeal.
ALIMONY – LIMITED TERM. Is it really
possible to get alimony awarded for a term
of years, and have it upheld on appeal? Of
course it is. Just what fact pattern could
possibly produce that result? It was O.K.,
the Court of Appeals said in the
unpublished case of Holland v. Holland,
19 VLW 814 (12/7/04), to award $700 a
month for less than lifetime. It was not an
abuse of discretion, as the decision was
well supported by the record. The Court of
Appeals recites a few facts showing why it
wasn’t an abuse of discretion: the wife’s
income and expense statement was
considered inflated and was corrected, and
although the husband had much higher
earnings, he made the majority of the
monetary contributions and equal nonmonetary, the wife could not prove an
extravagant life style, and she was healthy
and able to work. The term of years was
six. The respective monthly earnings were
H $6200, W $813.
CUSTODY – INTERSTATE – UCCJEA –
CONTINUING
JURISDICTION
–
INTERACTION WITH RULE 1:1. What
appeared from the newspaper writeup to be
a very odd way to analyze and decide a
UCCJEA case appears considerably more
Finding no ambiguity in the continuingjurisdiction provisions of the UCCJEA,
§20-146.13(A), the Court of Appeals holds
that Virginia has exclusive continuing
jurisdiction if one of the parents continues
31
to live in this Commonwealth, and therefore
that the circuit court here would have had
continuing jurisdiction if the father had
continued to live here. This trial court had
expressly reserved ruling, however, on the
issue of whether this father continued to
live in Virginia despite being stationed in
North Carolina. It must now ascertain more
facts and make that legal determination. To
help with that, the Court of Appeals
includes, as a very long footnote, a virtual
law review article on what “living in” a
state means under the UCCJA in military
cases. It addresses the traditional preUCCJA continuing jurisdiction in child
custody and support cases under §20-108,
but recognizes that we now have the
UCCJEA, which states the requirements for
continuing jurisdiction in interstate cases.
It then goes to the Official Comments to
§146.13 to rule that if a child and both
parties
leave
Virginia,
continuing
jurisdiction is not reestablished by the
return of one of them. (Interestingly, the
Court cites a comparison to the Uniform
Interstate Family Support Act continuing
jurisdiction provisions, and its Official
Comments, on how one determines whether
a party has continued to live in a state for
these purposes.)
modifying a child custody order. What this
will do to interstate custody jurisdiction
litigation in this Commonwealth remains to
be seen, but the problem appears to be a
confusion of personal jurisdiction with
personal notice, which of course the
UCCJEA, in some form, requires.
The matter of UCCJEA continuing
jurisdiction’s establishment by proof of
“continuing to live” here is left somewhat
murky, but the court cites a North Carolina
case for the subtle distinction that being
stationed in North Carolina does amount to
"living" there for UCCJA (home state)
purposes, but implicitly holding that a
temporary absence from North Carolina
while stationed overseas for seven months
does not stop the serviceperson’s
“continuing to live” in the state. It also
cites a Georgia case stating that continuing
to live means just what it says and if the
Georgia General Assembly had intended
using residence or domicile, it would have
used those words.
PROCEDURE – ENTRY AND FINALITY
OF ORDERS -- UCCJEA. The Court of
Appeals in the unpublished Key opinion
above made some important points on
finality of orders. Building on its recent
published opinion in Vokes, 28 Va. App.
349, 504 S.E.2d 865 (1998), the appellate
court found that this judge entered a final
order when he signed (entered) a
handwritten order of April 22, 2003. There
was a post-it ™ note from the judge
directing the clerk not to record the order
because a typewritten order would be
substituted. In a later argument the judge
expressly stated that his concern had been
legibility on the court order books. Thus,
the Court of Appeals said, this disposed of
all issues and the only thing remaining to be
done, substituting the typed version, was a
“purely ministerial act.” The order was
entered when it was entered, and it matters
The trial court is also tasked with
ascertaining whether possibly Virginia reacquired home-state jurisdiction by the time
of the father’s July 21, 2003, modification
motion, though it does not look like there is
much chance of that. One very odd and
disturbing thing about this opinion is its
statement that the court will also have to
have personal jurisdiction over the mother
in order to have UCCJEA child custody
jurisdiction. Where this idea could have
come from, having been rejected under the
UCCJA and the UCCJEA by all states, is
never explained even though the court has a
two-page single-spaced footnote, wherein it
expressly states that it means personal
jurisdiction over the mother for purposes of
32
not that the court had not recorded it. The
fact that wife continued to have counsel of
record, to whom the husband’s lawyer
could effectively send papers, did nothing
to preserve the trial court’s subject matter
jurisdiction against the operation of the 21-
day rule, Rule 1:1. Thus when the mother
started (admittedly) defying the Virginia
judge’s visitation orders, and the husband
filed to modify custody, the Virginia court
had (if everyone truly had moved away)
lost subject-matter jurisdiction.
.
33
2004-2005 BOARD OF GOVERNORS
VIRGINIA STATE BAR FAMILY LAW SECTION
Edward D. Barnes, Chair
9401 Court House Rd., Suite A
Chesterfield, Virginia 23832
2425 Nimmo Pkwy., Bldg. 10, 4th Fl.
Virginia Beach, Virginia 23456
Cheryl W. Smith
5440 Peters Creek Road, Suite 103
Roanoke, Virginia 24019-3863
Cheshire I’Anson Eveleigh, Chair Elect
1 Columbus Center, Suite 1100
Virginia Beach, Virginia 23462-6765
Andrea R. Stiles
10900 Nuckols Road, Suite 200
Glen Allen, Virginia 23060
Brian M. Hirsch, Secretary
12110 Sunset Hills Road, Suite 401
Reston, Virginia 22090-3223
Craig E. White
P.O. Box 678
Leesburg, Virginia 20178-0678
J. Patrick McConnell, Immediate Past Chair
9302 Lee Highway, Suite 1100
Fairfax, Virginia 22031-1214
Professor Lynne M. Kohm
John Brown McCarty Professor
of Family Law
1000 Regent University Drive
Virginia Beach, Virginia 23464-9880
Richard Crouch, Newsletter Editor
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Peter W. Buchbauer
12 North Braddock Street
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Patricia Sliger, VSB Staff Liaison
707 East Main Street, Suite 1500
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Laura L. Dascher
P. O. Box 76
Covington, Virginia 24426
The Hon. Robert P. Frank
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Newport News, Virginia 23602
PLEASE NOTE:
Membership information for the Virginia
State Bar Family Law Section, and any
changes in your mailing address for the
newsletter, should be directed to the
Virginia State Bar, not to the Editor.
Kenneth B. Murov
716 J. Clyde Morris Blvd., Suite B
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Virginia State Bar
707 East Main Street, Suite 1500
Richmond, Virginia 23219-2800
DISCLAIMER
Statements of opinion, comments, and
everything that appears in these pages
constitute self-expression of the Editor and
contributors and cannot be attributed to the
Family Law Section or the Virginia State
Bar.
Paul F. Nichols
12660 Lake Ridge Drive
Woodbridge, Virginia 22192
Hon. Angela E. Roberts
1600 North 17th Street, Suite C181
Richmond, Virginia 23219-1214
The Hon. Anne Bonwill Shockley
34