VBA News Journal
•
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The Official Publication
of The Virginia Bar Association
Volume XXX, Number 8
December 2004/January 2005
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President
E. Tazewell Ellett, Alexandria
President -elect
James V. Meath, Richmond
THE VIRGINIA BAR ASSOCIATION
VOLUME XXX, ISSUE 8 • DECEMBER 2004/JANUARY 2005
4•
President’s Page:
The Art of Baton-Passing
E. Tazewell Ellett
8•
VBA Community Service Program
A letter from Justice Harry L. Carrico, tales from 2004 Community
Service Program participants and how to sign up for 2005
10 •
Preview of the 115th VBA Annual Meeting
CLEs, speakers, social events and much more
14 •
Many Thanks to the VBA Foundation Patrons for 2004
16 •
Legal Focus/Domestic Relations:
Imputation of Income to a Party
Who Is Seeking Spousal Support
Brett R. Turner
19 •
Legal Focus/Domestic Relations:
You’ve Got to Sign Your Love Away
Glenn C. Lewis
24 •
Calendar
Immediate Past President
Frank A. Thomas III, Orange
Young Lawyers Division Chair
King F. Tower, Richmond
Young Lawyers Division Chair-elect
R. Braxton Hill IV, Richmond
Law Practice Management Division Chair
Gant Redmon, Alexandria
Chair, Board of Governors
William R. Van Buren III, Norfolk
Board of Governors
The Officers and
Hon. William G. Broaddus, Richmond
Ann T. Burks, Richmond
William E. Franczek, Norfolk
Marilynn C. Goss, Richmond
Prof. Roger D. Groot, Lexington
Glenn C. Lewis, Fairfax
Hon. William C. Mims, Leesburg
G. Michael Pace Jr., Roanoke
Glenn W. Pulley, Danville
Nancy N. Rogers, Richmond
Gregory T. St. Ours, Harrisonburg
Hon. Pamela M. Sargent, Abingdon
Hon. Diane M. Strickland, Roanoke
Member of ABA House of Delegates
David Craig Landin, Richmond
Legislative Counsel
Hon. Anthony F. Troy, Richmond
Robert B. Jones Jr., Richmond
Anne Leigh Kerr, Richmond
Executive Vice President
Charles Breckenridge Arrington Jr.
Director of Programs
Brenda J. Dillard
Director of Finance
Amy B. Cathey
VBA News Journal Editor
Caroline B. Cardwell
OUR MISSION
The Virginia Bar Association is a voluntary
organization of Virginia lawyers
committed to serving the public and the
legal profession by promoting the highest
standards of integrity, professionalism,
and excellence in the legal profession;
working to improve the law and the
administration of justice; and advancing
collegial relations among lawyers.
•
On the Cover: The John Marshall House in Richmond, bedecked with bunting in
honor of the upcoming 250th anniversary of the birth of “The Great Chief Justice.”
Throughout the anniversary year of 2005, watch for more information about
anniversary-related events in VBA publications and at www.vba.org. Photo by Caroline
Cardwell. One hundred forty photographs of Virginia courthouses are contained in
Virginia’s Historic Courthouses, written by John O. and Margaret T. Peters with a foreword
by the late Justice Lewis F. Powell Jr.; photographs by John O. Peters; published by
University Press of Charlottesville; and sponsored by The Virginia Bar Association. To
order the book, call the VBA at (804) 644-0041 or 1-800-644-0987.
VBA NEWS JOURNAL, the official publication of The Virginia Bar Association (ISSN 1522-0974,
USPS 093-110), is published eight times per year (December/January, February/March,
April/May, June/July, August, September, October and November). Membership dues
include the cost of one subscription to each member of the Association. Subscription price
to others, $30 per year. Statements or expressions of opinion appearing herein are those
of the authors and not necessarily those of the Association, and likewise the publication
of any advertisement is not to be construed as an endorsement of the product or service
unless specifically stated in the advertisement that there is such approval or endorsement.
Periodicals postage paid at Richmond, VA 23232. POSTMASTER: Send address changes
to The Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219.
PRESIDENT’S PAGE
The Art of Baton-Passing
by E. Tazewell Ellett
When I was in high school, I loved
the sport of track. I participated in
several types of events, including the
hurdles and the jumps, but one of the
more challenging was the relay
races. The relay race is the only
track event where one participates
with a team, as opposed to
individually. Individual performance
during each participant’s run is
certainly important, but the real
measure of a relay team is how the
members pass the baton. A strong
individual run can be negated by a
poor baton pass to the next team
member, while a weak individual run
can be overcome by a smooth,
precise pass.
Smooth, precise baton passes in
track don’t just happen. They are the
result of strong focus, timing, and
coordinated effort by the two runners
involved. If the passing runner’s pace
is too slow, or he fails to reach out
far enough with the baton, the
receiving runner may have to slow
down his starting pace, losing
valuable time – or at worst, may not
receive the baton at all before
crossing the outside handoff line,
disqualifying the whole team. If the
receiving runner’s pace is too slow,
the passing runner will quickly
overtake him, again losing valuable
time. A perfect handoff requires
close coordination, an equal pace by
both runners at the instant of handoff,
and a smooth transfer of the baton
between the left hand of the passer
and the right hand of the receiver.
Baton-passing is important in
organizations as well. Smooth baton
passes between outgoing and
incoming leaders are crucial, not
only to the effectiveness of their
individual performances, but to the
effectiveness of the whole
organization as well. Outgoing
Every member of our Association
carries the VBA baton in one way or
the other during the course of the year,
and at the end of every year the VBA
baton is passed, not just to the next
year’s VBA leaders, but to the next
year’s members, including that year’s
new class of VBA members – the latest
link in an unbroken chain of
distinguished Virginia lawyers
stretching back more than 115 years.
leaders who slow down too quickly,
or don’t focus on an effective
handoff, can really hamstring the new
leadership. Likewise, incoming
leaders who either move ahead
without receiving a proper handoff
from their predecessors, or who get
up to speed too slowly, inevitably
hurt the performance of the
organization.
In The Virginia Bar Association,
our Board Operations Committee in
recent years has focused heavily on
the importance of smooth,
coordinated, and complete batonpassing between the outgoing and
incoming leaders of our VBA
Sections, Committees, Divisions, and
other working groups. The month or
two before and after the VBA Annual
Meeting in January is a critical time
in this regard, because the transfer of
leadership in these VBA working
groups typically occurs at the Annual
Meeting. Each year we ask all
outgoing leaders of VBA working
groups to use this time wisely.
On the VBA Board, the task of
passing the baton is simplified by a
structure which provides for only
one-third of the Board members to
turn over each year. Among the
VBA’s officers, the task is likewise
facilitated by our tradition of having
4/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
the President, President-Elect, and
Chair of the Board work closely
together as a team during the course
of the year. These mechanisms
ensure that as Board members and
officers graduate from their positions,
those who remain behind have a
strong corporate memory as a
foundation for future action.
Despite these helpful transitionfacilitating mechanisms, it is still
important for each VBA officer to
focus on a proper baton pass to his or
her successor. As I approach the end
of my year as VBA President, I will
be spending considerable time doing
just that. And while I will be passing
the baton directly to my very capable
successor, Jim Meath of Williams
Mullen, in many ways I will be
passing it to you, the membership, as
well. Every member of our
Association carries the VBA baton in
one way or the other during the
course of the year, and at the end of
every year the VBA baton is passed,
not just to the next year’s VBA
leaders, but to the next year’s
members, including that year’s new
class of VBA members – the latest
link in an unbroken chain of
distinguished Virginia lawyers
stretching back more than 115
years. Because each 2005 member
DECEMBER 2004/JANUARY 2005
of our Association will be helping to
carry the VBA baton next year, each
of them is entitled to a smooth
handoff that lets them know the
direction in which we are headed, the
steps we have taken during the year,
and the steps we should be taking in
the future. In the remainder of this
article I am going to try to provide
such a handoff.
Our Current Course
During Anita Poston’s Presidency
in 2000, the VBA Board developed,
under Jeanne Franklin’s able
leadership, a strategic plan
containing five priority goals:
1. Enhancing the VBA’s legislative
program.
2. Creating an in-depth, broadbased initiative to address the full
dimensions of being a legal
professional.
3. Increasing the level of public
understanding of, and confidence in,
the judicial system.
4. Collaboration with other bar
associations, with a particular
emphasis on local bar associations.
5. Examining the VBA’s financial
and governance infrastructure in
light of a changing environment and
fostering greater interaction with the
Young Lawyers Division to further
strategic goals.
This plan has been our guiding
compass since it was developed,
and the Association has been
methodically implementing it, one
step at a time, ever since. Among
the many implementation steps
taken in recent years are the
creation of VBA Board standing
committees, a VBA Law Practice
Management Division including all
VBA members, and a permanent
VBA Membership Committee; the
development of the Virginia
Barristers Alliance insurance
subsidiary; the development of the
concept of VBA Regional Advisory
Committees (RACs); the revamping
of our process for the development
of our annual legislative program;
and the initiation of the practice of
annual VBA President visits to the
managers of leading law firms in
DECEMBER 2004/JANUARY 2005
selected regions of the
Commonwealth.
Steps Forward in 2004
I am pleased to report that in
2004 the strategic plan
implementation continued at an
energetic pace, with several notable
developments, while our existing
Association working groups
continued their valuable efforts. In
January at the Annual Meeting we
launched the permanent VBA
Community Service Program, whose
mission is “To encourage, increase,
support, and make more effective
and efficient, the participation in
nonlegal community service and pro
bono publico legal service by
lawyers licensed in the
Commonwealth of Virginia.” The
program, co-chaired by Ron
Randolph, and Justice Harry
Carrico, is governed by the VBA
Community Service Program
Council, which is comprised of
lawyers from all regions of the
Commonwealth and all types of
practices. It includes in-house
corporate counsel, government
counsel, law school professors and
administrators, and law students. The
program’s centerpiece is the
Community Servant/Pro Bono
Servant Program, a pledge drive
designed to encourage all Virginia
lawyers (not just VBA members) to
pledge at least 50 hours every year
to nonlegal community service or pro
bono publico legal service. At press
time, over 22,000 hours of service
had been pledged by Virginia
lawyers in this program this year!
The Community Service Program has
also done considerable work in
preparing for next year, when it will
host a mini service fair and present a
program on serving effectively on
nonprofit boards at the VBA Annual
Meeting, and launch a law school
version of its Community Servant/Pro
Bono Servant Program.
The VBA this year also launched
Regional Advisory Committees in the
Capital, Blue Ridge, and Southside
Regions, chaired by Elaine Jordan,
Greg St. Ours, and Glenn Pulley,
respectively. We now have RACs up
and operating in all regions of the
state. These RACs will be the eyes
and ears of the Association, and the
focal point for Association activities
and membership efforts, in their
respective regions.
To further the VBA’s long-standing
efforts to reach out to categories of
lawyers that are not as well
represented in the VBA as we would
like, I appointed this year four
“Membership Outreach Task
Forces” to focus on the needs of
Government, Legal Aid, Minority,
and Transition (retired/substantial
change in practice) lawyers,
respectively. Those task forces were
ably chaired by Gail Marshall, Larry
Harley, Marilynn Goss, and Hugh
Patterson. All four task forces
produced very thoughtful reports and
recommendations. I have tasked the
Membership Committee with
studying these reports and
recommending to the Board
appropriate follow-up actions.
The Membership Committee,
chaired by Glenn Lewis, forged
ahead with other membership-related
activities this year, including holding
membership outreach receptions in
Southwest Virginia and Northern
Virginia (arranged by the RACs in
those regions), developing tracking
data for membership statistics,
monitoring and aiding RAC
development, and creating a
procedure, and implementing a
program, to encourage members who
have not yet returned their dues
statement to renew their VBA
membership.
In order to assist the Membership
Committee, I focused considerable
time this year on Southwest Virginia
and Northern Virginia, meeting with
law firm managers and lawyers, and
speaking at VBA CLE programs and
membership outreach receptions
held in each area. On two delightful
trips to Southwest Virginia, one in
April and one in October, I visited
with lawyers in Norton, Wise,
Grundy, Tazewell, Pulaski, Marion
and Abingdon. I also had very
informative visits to Legal Aid offices
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/5
throughout the state, made speeches
to several statewide and local bar
associations, and spoke to, and
visited, law students at Appalachian
University, University of Richmond,
George Mason University, and the
University of Virginia Law Schools.
The VBA revised the Patron
program this year, converting it to a
VBA Foundation Patron program in
which contributions are made to the
Foundation, whose funds are used to
support the charitable and public
interest activities of the Association.
Three Patron contribution levels were
created to provide more options for
our contributors, and we strongly
encourage all our members to
consider supporting our charitable
and public interest activities through
a generous Patron contribution.
Our Law Practice Management
Division, chaired by Gant Redmon,
continued its leading work this year.
At the Annual Meeting in
Williamsburg the LPMD presented
the Managing Partners Roundtable
Luncheon and programs on how
demographics will affect our lives
and law practices, and tips and
techniques for managing documents
and information. The Division also
conducted a traveling CLE program
on time management, networking,
and mentoring in Wise, Grundy,
Falls Church, Pulaski, and Abingdon,
and presented a program on
“Conflicts Between Lawyers and
Their Clients” at the VBA Summer
Meeting. Looking ahead to the 2005
VBA Annual Meeting, the Division
will present there programs on
business development (marketing)
and serving effectively on nonprofit
boards (co-sponsored by the
Community Service Program).
The Young Lawyers Division’s
activities in 2004, as usual, are too
numerous to fully recount. A few
highlights though. The YLD, chaired
by King Tower, won first place in the
ABA Awards of Achievement in the
comprehensive category, second
place in the service-to-the-public
category, (for the Advance Medical
Directive Project), and Honorable
Mention in the service-to-the-bar
category (for the Professionalism
CLE program). Matt Cheek was
responsible for preparing the
successful applications for these
awards. The YLD also continued to
expand its activity at the law schools
in Virginia, increasing to six the
number of YLD Law School Councils.
These Councils allow law students to
interact with VBA lawyers for career
planning, social, and service
purposes. Their popularity continues
to grow, and they should be an
integral part of the VBA’s
membership efforts in years to come.
The YLD also rolled out this year the
YLD Division News, an electronic
newsletter. This is the first electronic
newsletter in the VBA, and again, the
YLD is leading the way! Other
significant YLD activities this year
were the seminar on legal topics for
artists, sponsored by the Lawyers for
the Arts Committee, which is chaired
by Jennifer McClellan and Leigh
Hudgins, and the hosting and
coordinating of the regional contest
of the National Moot Court
Competition. This highly successful
event, which brought great credit to
the VBA, was handled by the YLD’s
Moot Court Committee, co-chaired
by Eve Campbell and Monica
McCarroll. Congratulations again to
the YLD for all its good work and
much-deserved recognition!
The VBA’s Sections and
Committees continued their excellent
service to their members, the
profession, and the public this year. I
would like to particularly compliment
the Health Law Section for its most
impressive legislative agenda, which
received high praise from the
General Assembly, and the Labor
and Employment Law Section, which
had record attendance at this year’s
Annual Conference on Labor
Relations and Employment Law.
Congratulations also to the Criminal
Law Section for its very successful
Capital Defense Workshop.
I am proud to report that the VBA
also continued this year its
distinguished tradition of confronting
and addressing important, but
sometimes troubling, issues of the
6/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
day relating to the administration of
justice. The Board authorized me as
VBA President to sign a letter from
the Presidents of all the statewide bar
associations in Virginia to all
Virginia lawyers noting the financial
crisis faced by Legal Aid
organizations throughout the state
and requesting that lawyers make a
financial contribution to the Legal
Services Corporation of Virginia
(LSCV). The VBA also supported
adequate funding for LSCV in the
General Assembly. I sought to further
assist in this effort by visiting several
Legal Aid offices across the state and
devoting the President’s Page in the
September issue of the News Journal
to Legal Aid issues.
On the issue of lawyer community
service, VBA representatives crisscrossed the state this year
publicizing our new Community
Service Program and delivering the
VBA’s message that lawyer
professionalism requires a lifestyle
that includes service to one’s
community. We have spoken to
dozens of lawyer groups in many
forums on this issue, and I devoted
the April/May issue President’s Page
in the News Journal to this subject to
further broadcast the message.
The VBA also confronted this year
the troubling issues related to
Virginia’s indigent defense and
capital defense systems. The Board
approved resolutions stating that the
VBA agrees with the conclusion of
the studies that have determined that
these systems contain “fundamental
deficiencies and [are] deeply flawed,
and believes that [each of these
systems] requires extraordinary
remedial action on the part of the
Governor, Lieutenant Governor,
Attorney General, General
Assembly, and Judicial Council of
Virginia.”
Early in the year I appointed an
Ad Hoc Board Committee on
Virginia’s Indigent Defense and
Capital Defense Systems to examine
the issues related to these systems
and provide recommendations to the
Board. That Committee, chaired by
Board member Roger Groot, has now
DECEMBER 2004/JANUARY 2005
provided to the Board an interim
report focused on issues related to
Virginia’ indigent defense system.
The officers will be using this interim
report as a basis for meetings with
senior state government officials on
the matter. The Committee is now
examining the issues related to
Virginia’s capital defense system,
and plans to report to the Board on
those issues when that examination is
complete.
The VBA this year also designated
VBA representatives to serve on the
Virginia State Bar Task Force on
Indigent Defense.
In order to further publicize the
troubling facts related to the state’s
indigent defense and capital defense
systems, I devoted the President’s
Pages in the August and October
issues, respectively, of the News
Journal, to those matters.
The VBA Criminal Law Section
and the Committee on Special Issues
of National and State Importance
also presented, at the VBA Summer
Meeting, programs focused on issues
related to when the innocent are
accused and convicted, and the
Virginia death penalty system,
respectively.
Finally, this year the Board
embarked on an effort to develop a
VBA “Most Wanted” List, which will
serve as an ongoing list of the issues
of the day which are most important
to the VBA. This list, which we
expect to finalize in the near future,
will assist the Association in our
public education, lobbying, and
membership efforts.
Future Steps
The leadership of the VBA in
recent years has put considerable
thought into the direction the
Association should take to best serve
its members, the bar, and the
Commonwealth in the coming
decades. The current course is a
sound one, and it should be pursued
energetically until changing
circumstances dictate a course
correction. I cannot predict what
specific challenges to the profession
and our justice system may lie
DECEMBER 2004/JANUARY 2005
ahead. Nevertheless, regardless of
what those challenges might turn out
to be, I urge the Association to
address them by faithfully continuing
each of these revered VBA traditions:
· Provide a welcoming
“community of lawyers” for
practitioners of all types and stripes
throughout Virginia, while
recognizing that there are increasing
challenges to the preservation of
such a community.
· Continue membership outreach
to under-represented categories of
Virginia lawyers.
· Epitomize moral bravery by
confronting and addressing the
important issues of the day relating
to the profession and the justice
system.
· Be an objective and principled
opinion leader.
· Pursue objective law reform
based purely on the public interest.
· Speak out publicly on the issues
in all corners of the Commonwealth.
· Relentlessly reach out to local
bar associations, other statewide bar
associations, managers of law firms
and other lawyer employers,
individual lawyers and judges, law
schools, and law students
everywhere in the state.
· Continue to speak for the poor
and oppressed and those who have
no other voice.
· In the ever-changing political
landscape, fiercely defend the
principles of government checks and
balances, separation of powers,
independence of the judiciary, and
the strength, vitality and objectivity
of the court system.
· Encourage lawyers to serve their
community, and especially the
powerless and defenseless, through
both nonlegal community service
and pro bono publico legal service.
· Zealously promote lawyer
professionalism in all its aspects, the
practice of law as a “high calling,”
and a professional lifestyle that is
healthful and personally rewarding.
* * * * *
In closing, I want to sincerely
thank all those who have worked so
hard for the Association this year,
have assisted me at every turn, and
have made this such a delightfully
rewarding experience for me. All of
you have ably carried the VBA baton
in your own special way. It is not
practical for me to mention all of
you, so a general, but heartfelt,
“thank you” will have to do.
I would like to single out at this
point the following persons: Jim
Meath and Bill Van Buren, for your
extraordinarily helpful advice,
counsel, and support as fellow
officers; each member of the Board,
as every one of you inspired and
supported me; Breck Arrington,
Brenda Dillard, Amy Cathey and the
entire VBA staff, who carried me on
your shoulders throughout the year;
Ran Randolph and Justice Harry
Carrico, whose steady and persistent
hands guided the new Community
Service Program to an
extraordinarily successful initial
year; King Tower and Brack Hill,
who demonstrated through your
stellar leadership of the YLD that the
best of the VBA is yet to come; Gant
Redmon, who became only the
second Chair of the LPMD, and
guided that Division to another very
productive year; and last, but
certainly not least, Glenn Lewis, who
as Chair of the Membership
Committee loyally and tirelessly
promoted the VBA throughout the
entire year.
Thanks to all of you. It has been
an honor and a privilege to serve
with you, and to serve as the
Association’s President. I shall never
forget it! VBA
In Memoriam
Virginius R. Shackelford Jr.
1916-2004
President, The Virginia Bar Association, 1964-65
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/7
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In January 2004, The Virginia Bar
Association launched its Community Service Program after
three years of preparation. The Program, open to all members of the legal
profession in Virginia, asked participants to perform at least 50 hours of pro bono publico
legal service and/or nonlegal community service during 2004. More than 400 lawyers and judges signed up
for the Program’s initial year, pledging well over 20,000 hours of volunteer service.
As the Program begins its second year, its leaders seek wider involvement by VBA members; those who sign up for
2005 will join the 2004 participants as charter members of this groundbreaking effort. The commitment amounts
to roughly four hours per month, a level of service most lawyers are already meeting in their personal and
professional lives.
Joining the Community Service Program is easy: VBA members can indicate interest on their 2005 dues
statements; download forms in PDF format from www.vba.org (which also answers frequently asked questions about
the Program); call the VBA office at (804) 644-0041; or sign up in person at the VBA Annual Meeting.
Doing good will make you feel good — and your joining the Program may encourage others to join as well!
8/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
DECEMBER 2004/JANUARY 2005
Tales from lawyers who made the commitment in 2004
Lending legal assistance to landlords and Helping homeless men with substance
abuse problems in Lynchburg
tenants in Northern Virginia
“I have found one way for a transactional
lawyer who has two left feet in a
courtroom to be of help to Legal
Services. Our local program
created a Landlord-Tenant Pro
Bono Attorney program and
provided an excellent training
of the lawyer volunteers. As I
interview the clients and learn
more
about
their
circumstances, I understand
their fatigue at how one
problem just compounds
another. I spend a lot of time
working with the client to
understand how to look at
documents, how to handle
negotiation discussions, how to
handle everyday business. Aside from
the immediate issue bringing a client in
for assistance, I hope the time spent with people
who are struggling to make ends meet, helps them see
themselves with dignity, more confidence and hope,
and enables them to handle everyday choices with just
a bit more know-how. I think we just have to keep on
trying to lend assistance, as we would want someone
to do for us.”
Name withheld by request, Northern Virginia
Putting givers and needs together
to benefit Hampton Roads charities
“While cleaning out my parents’ home, my siblings and I
discovered that none of us wanted a particular item – it
was too good to put out for a pickup, but it was difficult
and time-consuming to find a charity that could take it.
Then I had a brainstorm: why not use the Internet to
make it easier? I worked with a local foundation to
establish a website, www.gift-link.org, which connects
charitable impulses to charitable needs in the Hampton
Roads area. It has been described by the Virginian-Pilot
as ‘sort of a reverse eBay, except no money changes
hands.’ With more than 40 charities now participating,
visitors to the site can search by organization or by item
to find information. In addition to donating items, people
can also contribute money to cover needs such as school
supplies.”
Name withheld by request, Virginia Beach
A law student launches a career
through volunteering on the Peninsula
“I’m still a student, but I can’t wait to sign up as a VBA
Community Service partner. I volunteer at the PORT
Homeless Shelter and as a CASA in Newport News. Both
programs definitely make a difference in my community
and in the lives of the persons they serve.”
Elizabeth Bircher, Yorktown
DECEMBER 2004/JANUARY 2005
“My primary form of regular public service
for the past four years has been in
serving as an overnight volunteer at
a shelter for homeless men with
substance abuse problems. I stay
overnight, from 11 p.m. to 8
a.m., one night a month, get
to sleep about six hours,
answer the phone and
respond to any questions or
needs that the men have
(which are few because the
men are pretty self-sufficient,
but once in a while someone
wants to talk to a lawyer). I
am
also
helping
the
shelter review their lease form.
The commitment does not take away
significant time from my other activities,
and allows me to personally help people
who have been way less fortunate than I have.”
David Neumeyer, Lynchburg
Making Portsmouth patients smile
with a certified therapy dog
“I have a certified therapy dog. Bailey and I try to go to
the Maryview Rehab Center in Portsmouth at least every
other week but my goal is once a week. We love going and
he always brings a smile to an unexpecting patient. I
hope it provides the patients with a few minutes of
distraction from what they are experiencing. I quickly
learned that there is a level of comfort that a dog can
offer that no human can match. I will definitely continue
to take Bailey and hope to certify one of my other dogs as
well.”
Nicole Duke, Norfolk
Transforming girls’ lives at a group home
reminds a Richmonder of her blessings
“One of the most meaningful community activities for
me has been volunteering once a month at a group home
for girls. My interactions with them are a constant
reminder of how fortunate I have been in my life and the
need for society to do more to help its children. Watching
the transformation of some of the girls is truly amazing.
When they feel secure, receive the assistance they need
to help them grow, and are valued as unique human
beings, they thrive.”
Name withheld by request, Richmond
If you participated in the VBA Community Service
Program in 2004, we’d love to hear your story!
What was your volunteer service? How did helping
others make you feel? Send an e-mail to
[email protected] with your comments for
possible publication in future issues.
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/9
The 115th Annual Meeting
of The Virginia Bar Association
January 20-23, 2005 • Colonial Williamsburg
Dine with the Presidents at the Friday banquet
Friday night festivities are always spectacular features
at our Winter Meeting and this year’s is certain to be no
exception. The Colonial Fife and Drum Corps concludes
our black-tie reception and ushers in the elegant annual
banquet. A few selective awards will be given with
special entertainment provided by the University of
Virginia’s Miller Center of Public Affairs. “Dinner with the
Presidents: Power and Personality in the White House Tapes”
is a fascinating audiovisual presentation by Professor
Timothy Naftali using actual audio from the Oval Office
tapes secretly recorded from the Roosevelt through the
Nixon Administrations. Immediately following the
banquet will be our traditional President’s Reception. Join
us for this memorable evening!
Litigation track offers three programs
Specific for litigators is a three-program CLE track: On
Friday morning at 9:30 a.m. the Labor Relations and
Employment Law Section will conduct the ethics
program, “The Ethical Implications of Improper Conduct
in Discovery and at Trial: An Interactive Clinical
Presentation with Commentary From the Bench,”
followed by an 11 a.m. presentation by the Civil
Litigation Section, Construction and Public Contracts Law
Section and the Virginia Joint Committee on ADR called
“Arbitration: A Welcome ADR Compromise or an
Uninvited Guest?” To round out the weekend, another
presentation by the Civil Litigation Section will take place
on Saturday morning at 10:30 a.m., “What Every 21st
Century Lawyer Should Know About Electronic
Discovery.” Collectively, these programs alone provide
for 4.5 CLE credit hours (1.5 Ethics).
Programs on wellness, nonprofit board service
VBA members and their spouses and guests are invited
to join the Law Practice Management Division for a
program entitled, “Not for Lawyers Only: The Importance
of Mental and Physical Well Being in Life and Practice.”
This program, being conducted in cooperation with the
Lawyers Helping Lawyers Program, is scheduled for
Friday morning from 9:30 to 11 a.m. Immediately
following is a collaboration with the Community Service
Program called “Board Walk—Walking the Talk:
Pragmatic Pointers for Nonprofit Board Service.”
Managing partners are invited to luncheon
The Law Practice Management Division is continuing
its commitment to provide a forum for managing partners
of any and every size firm to address matters that are
often only discussed behind closed doors. This year’s
program, scheduled for Saturday from 1 to 2:30 p.m.,
amply meets that requirement. “Making Rain—Steadily
and Abundantly! . . . For the Managing Partners of ALL
Firms” is being presented by consultant and law firm
marketing expert Ross Fishman.
Schedule of Events
Thursday, January 20, 2005
Friday, January 21, 2005
10 a.m.-5 p.m.
Virginia Law Foundation Board and Committee Meetings
8 a.m.-6 p.m.
Registration and Information
Noon-4:30 p.m.
VBA Board of Governors Luncheon/Meeting
8:15-9:15 a.m.
Continental Breakfast
Courtesy of Virginia Business Magazine
2-6 p.m.
Registration and Information
5 -6 p.m.
Friends of Bill W. (Open meeting.)
6:30-7:30 p.m.
Welcome Reception
Courtesy of Colonial Williamsburg
7:30-9:30 p.m.
Virginia Law Foundation Fellows
Dinner and Induction Ceremony
10/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
8:30-9:30 a.m.
Past Presidents Council Breakfast
8:30-9:30 a.m.
Section and Committee Business Meetings
8:30 a.m.-5 p.m.
Exhibits
9:30 a.m.-12:30 p.m.
CLE Programs: Concurrent Sessions
(See separate listing.)
DECEMBER 2004/JANUARY 2005
Features and Highlights
Author Dean King to appear at B&A luncheon
The Books & Authors Luncheon Program, now in its
second year, will take place on Saturday from 1 to 2:30
p.m., immediately following the midday reception. This
year’s featured writer is Dean King, author of nine books,
including the national best seller Skeletons on the Zahara:
A True Story of Survival. We are excited about continuing
this new program at our meeting and hope you will enjoy
this year’s presentation by the Committee on Special
Issues of National and State Importance. An additional
fee is required for lunch.
White-collar, political cases are session topic
In recent years we have seen national media attention
on white-collar and political cases such as those
involving Martha Stewart, Enron and Whitewater. The
VBA Committee on Special Issues of National and State
Importance, together with the Criminal Law and
Corporate Counsel Sections, have organized “What Do
You Do When the Feds (Are About To) Arrive? White
Collar and Political Cases.” Henrico County’s
Commonwealth’s Attorney Toby Vick will moderate a
panel that is expected to include Bob Ray, chief deputy
and successor to Special Counsel Kenneth Starr, and Paul
Thomson, noted energy lawyer and former Deputy
Assistant Administrator for Criminal Enforcement at
USEPA, and Gretchen Shappert, U.S. Attorney for the
Western District of North Carolina. This promises to be
an engaging forum for an intellectual exchange that we
hope will be both intriguing and useful as we all try to
figure out where the lines are in this sensitive area.
Spouses and guests are invited and encouraged to attend.
10 a.m.-Noon
YLD Law School Liaison Recruiting Roundtable
10-11:30 a.m.
Spouse/Guest Program: A Culinary Demonstration and
Tasting (Separate registration and fee required.)
Legacy Series examines Va. lawyer presidents
As part of the continuing Legacy Series offered in
collaboration with the Virginia Historical Society, the
VBA Committee on Special Issues of National and State
importance is pleased to present a luncheon program,
“Virginia: The Mother of America’s Lawyer Presidents,”
on Friday from 12:30 to 2 p.m. Twenty-five of America’s
43 presidents, including four Virginians, have been
trained in the law and have practiced before the bar for
at least some portion of their professional careers. Lee
Shepard, a contributor to a new volume examining the
careers and administrations of “America’s LawyerPresidents,” will briefly review the professional lives of
Virginia’s lawyer-presidents, in the context of the legal
worlds in which they practiced.
Join the VBA Community Service Program
It has been a better-than-expected first year for the
VBA Community Service Program which was officially
kicked off at the 2004 Annual Meeting. We are hoping
for even greater participation in 2005. There will be a
Community Service Program booth in the exhibit area for
first-time sign-ups as well as for current participants to
renew their commitments. For VBA members who need
some ideas on types of community service and/or pro
bono publico service opportunities, there will be a “minifair” consisting of exhibit booths with representatives
from different organizations available to elicit your
interest and answer your questions.
MORE >
2-4 p.m.
General Session (2.0 CLE Credits): “What Do You Do
When the Feds (Are About to) Arrive? White Collar and
Political Cases.” A presentation by the Committee on
Special Issues of National and State Importance, the
Criminal Law Section and the Corporate Counsel Section.
12:30-2 p.m.
VBA Legacy Series Program and Luncheon: “Virginia: The
Mother of America’s Lawyer Presidents.” A presentation
by legal historian E. Lee Shepard, senior archivist of the
Virginia Historical Society. (Register separately—additional
fee for lunch.)
5-6 p.m.
Friends of Bill W. (Open meeting.)
12:30-2 p.m.
YLD Executive Committee and Council Luncheon and
Passing of the Gavel
7-9:30 p.m.
Banquet (black tie)
Banquet Courtesy of The McCammon Group
“Dinner with the Presidents”
Entertainment provided courtesy of Wachovia Bank
12:30-4:30 p.m.
Virginia Association of Defense Attorneys
Board Meeting and Luncheon
DECEMBER 2004/JANUARY 2005
6 -7 p.m.
Reception (black tie)
Courtesy of LexisNexis
continued on next page
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/11
Continuing Legal Education
Friday, January 21, 2005
9:30-11 a.m.
Domestic Relations Section and the Virginia Joint
Committee on Alternative Dispute Resolution: “A New
ADR Model for the 21st Century: An Introduction to
the Collaborative Family Law Process.” (1.5 Credits)
9:30-11 a.m.
Labor Relations and Employment Law Section: “The
Ethical Implications of Improper Conduct in Discovery
and at Trial: An Interactive Clinical-Video
Presentation with Commentary From the Bench.”
(1.5 Credits/1.5 Ethics)
9:30-11 a.m.
Law Practice Management Division and the Virginia
Lawyers Helping Lawyers Program: “Not for Lawyers
Only: The Importance of Mental and Physical Well
Being in Life and Practice.” (No Credits)
9:30-11 a.m.
Wills, Trusts and Estates Section: “The Proposed
Virginia Version of the Uniform Trust Code: An
Analysis.” (1.5 Credits)
11 a.m.-12:30 p.m.
Law Practice Management Division and Community
Service Program: “Board Walk — Walking the Talk:
Pragmatic Pointers for Nonprofit Board Service.”
(1.5 Credits)
Schedule of Events
Friday, January 21, 2005 (cont.)
9:30-11 p.m.
President’s Reception
Courtesy of Hogan & Hartson, LLP, and Williams Mullen
10:30 p.m.-12:30 a.m.
YLD “After-Hours” Social
Members of the Young Lawyers Division are invited to
participate in some after-hours “gambols,” popular
tavern games of Colonial times.
Courtesy of Williams Mullen
Saturday, January 22, 2005
8-9 a.m.
Annual Breakfast and Business Meeting
(Spouses and guests are welcome.)
Courtesy of Minnesota Lawyers Mutual Insurance Company
and Virginias Legal Directories
12/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
11 a.m.-12:30 p.m.
Civil Litigation Section, Construction and Public
Contracts Law Section and Virginia Joint Committee on
Alternative Dispute Resolution: “Arbitration: A
Welcome ADR Compromise or an Uninvited Guest?”
(1.5 Credits)
11 a.m.-12:30 p.m.
Real Estate Section: “A Fair Trade is No Robbery —
Like Kind Exchanges and Tenants in Common
Transactions.” (1.5 Credits)
12:30-2 p.m.
VBA Legacy Series Luncheon and Program: “Virginia:
The Mother of America’s Lawyer Presidents.” A
presentation by the Virginia Historical Society.
Spouses and guests welcome to attend. (No Credits)
SEPARATE REGISTRATION/FEE
2-4 p.m.
General Session/Special Issues of National and State
Importance, Criminal Law Section and Corporate
Counsel Section: “What Do You Do When the Feds (Are
About to) Arrive? White-Collar and Political Cases.”
(2.0 Credits)
Spouses and guests of VBA members can enjoy a special
culinary demonstration and tasting (separate
registration and fee required) on Friday, January 21, from
10 to 11:30 a.m. Spouses and guests are welcome to
attend other programs; check the schedule for dates,
times and special registration fees (if applicable).
8:30 a.m.-1:30 p.m.
Registration
8:30 a.m.-12:30 p.m.
Exhibits
9 a.m.-Noon
CLE Programs: Concurrent Sessions
(See separate listing.)
Noon-1 p.m.
Reception
Courtesy of SunTrust Bank
1-2:30 p.m.
Managing Partners Revenue Enhancing Luncheon
Program: “Making Rain— Steadily and Abundantly! . . .
For the Managing Partners of ALL Firms.”
Courtesy of BB&T
Sponsored by the Law Practice Management Division
(Register separately—additional fee for lunch.)
DECEMBER 2004/JANUARY 2005
and Other Programs of Interest
Saturday, January 22, 2005
9-10:30 a.m.
Environment, Natural Resources and Energy Law
Section: “Hot Topics in Environmental Law.” (1.5
Credits)
9-10:30 a.m.
Health Law Section: “Health Care Costs Are
Skyrocketing: Legislative Approaches to Health Care
Reform. What Can We Expect at the State and
Federal Levels?” (1.5 Credits)
9-10:30 a.m.
Intellectual Property and Information Technology Law
Section: “Eye of the Beholder: Client Perceptions of
Ethics Issues in Intellectual Property Law (Further
Expanded and Enhanced).” Part III of a Three-Part
Series. (1.5 Credits/1.5 Ethics)
9-10:30 a.m.
Transportation Section: “Show Me (At Least Some of)
the Money: Transportation Funding in Virginia.” (1.5
Credits)
10:30 a.m.-Noon
Business Law Section: “The New Realities of the
Venture Capital Markets in Virginia.” (1.5 Credits)
10:30 a.m.-Noon
Civil Litigation Section: “What Every 21st-Century
Lawyer Should Know About Electronic Discovery.”
(1.5 Credits)
10:30 a.m.-Noon
Elder Law Section: “A Double Dose of Elder Law: 1)
Representing Incapacitated Clients; 2) Elder Law
Attorneys Selling Financial Products.” (1.5 Credits)
10:30 a.m.-Noon
Domestic Relations Section: “Take Your Job
Suggestion and Shove It! Imputation of Income,
Defined Duration and Vocational Rehabilitation
Experts in Support Cases.” (1.5 Credits)
1-2:30 p.m.
Managing Partners Revenue Enhancing Luncheon
Program: “Making Rain — Steadily and Abundantly!
For the Managing Partners of ALL Firms.” A
presentation by the Law Practice Management
Division. (No Credits) SEPARATE REGISTRATION/FEE
1-2:30 p.m.
Books & Authors Luncheon Program: Dean King,
author of Skeletons on the Zahara. A new VBA series
featuring presentations by writers whom we all need to
know. Spouses and guests welcome to attend. (No
Credits) SEPARATE REGISTRATION/FEE
Registration information has been mailed to all VBA members and is available online at www.vba.org.
FOR THE FIRST TIME, ONLINE MEETING REGISTRATION IS AVAILABLE TO VBA MEMBERS!
1-2:30 p.m.
Books and Authors Luncheon Program
Dean King will be this year’s featured artist for this event
which is one of the VBA’s newest traditions at the Annual
Meeting. Mr. King will be available immediately following
the program for a book signing of his most recent national
best seller, Skeletons on the Zahara.
Courtesy of Hunton & Williams
(Register separately—additional fee for lunch.)
2:30-5 p.m.
Board of Governors Meeting
Make your room reservations by phone, fax or mail.
Please return the form provided in the registration
brochure with your payment or credit card information
to Colonial Williamsburg Company, Attn: Group
Reservations Manager, P.O. Box 1776, Williamsburg,
Virginia 23187, fax (757) 220-7729, or call 1-800261-9530.
For more information about Colonial Williamsburg
and its programs, visit www.history.org. Colonial
Williamsburg merchandise is available online at
www.williamsburgmarketplace.com.
REMEMBER:
the 115th VBA Summer Meeting
will be held July 14-17, 2005,
at The Greenbrier!
DECEMBER 2004/JANUARY 2005
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/13
SUSTAINING PATRONS
$250
Hon. G. Steven Agee, Salem
Peter A. Arntson, Fairfax
Hon. William G. Broaddus, Richmond
Ann T. Burks, Richmond
Hon. Gary L. Close, Culpeper
James R. Cottrell, Alexandria
Hon. John J. Davies III, Culpeper
John D. Epps, Richmond
Patricia K. Epps, Richmond
Jeanne F. Franklin, Alexandria
Martin A. Gannon, Alexandria
Hon. Vernon M. Geddy Jr., Williamsburg
Ilona E. Grenadier, Alexandria
Robert B. Jones Jr., Richmond
Hon. M. Langhorne Keith, Fairfax
Heman A. Marshall III, Roanoke
Frank W. Morrison, Lynchburg
Hon. Daniel F. O’Flaherty, Alexandria
Philip W. Parker, Roanoke
George H. Roberts Jr., Lexington
Nancy N. Rogers, Richmond
Robert E. Shoun, Fairfax
Thomas G. Slater Jr., Richmond
Hon. Franklin M. Slayton, South Boston
Betty A. Thompson, Arlington
Hon. Anthony F. Troy, Richmond
Anne Marie Whittemore, Richmond
Gary L. Wilbert, Charlottesville
John M. Wilson Jr., Roanoke
F. Blair Wimbush, Norfolk
$ 1 0 0
Charles B. Arrington Jr., Richmond
J. Edward Betts, Richmond
David P. Bobzien, Fairfax
Thomas C. Brown Jr., McLean
Marshall M. Curtis, Reston
E. Tazewell Ellett, Alexandria
G. Franklin Flippin, Roanoke
William E. Franczek, Norfolk
Allen C. Goolsby, Richmond
F. Claiborne Johnston Jr., Richmond
James V. Meath, Richmond
Stephen C. Price, Leesburg
Gant Redmon, Alexandria
Douglas P. Rucker Jr., Richmond
Dexter C. Rumsey III, Irvington
Hon. Pamela M. Sargent, Abingdon
Hon. Charles M. Stone, Martinsville
Hon. Diane M. Strickland, Roanoke
Frank A. Thomas III, Orange
Lucia Anna Trigiani, McLean
William R. Van Buren III, Norfolk
P A T R O N S
LEADERSHIP PATRONS $500
MANY THANKS
TO OUR
VBA
FOUNDATION
PATRONS
FOR 2004
Hon. David H. Adams, Norfolk
Harry L. Addison III, Norfolk
Hon. Leslie M. Alden, Fairfax
George R. Aldhizer Jr., Harrisonburg
Hon. William N. Alexander II, Rocky Mount
Prof. Neill H. Alford Jr., Charlottesville
Hon. Thomas M. Ammons III, Virginia Beach
Hon. Hunter B. Andrews, Hampton
Kathleen I. Andrews, Springfield
Hon. Rosemarie Annunziata, Fairfax
Hugh T. Antrim, Richmond
Hon. Jonathan M. Apgar, Roanoke
Thomas L. Appler, Fairfax
Frank B. Atkinson, Richmond
Sidney J. Baker, Williamsburg
James E. Ballowe Jr., Arlington
James L. Banks Jr., McLean
Prof. Jayne W. Barnard, Williamsburg
John S. Barr, Richmond
Kyle F. Bartol, Alexandria
Ronald C. Barusch, Washington, D.C.
William M. Baskin, Great Falls
John J. Beardsworth Jr., Richmond
Prof. Thomas F. Bergin, Charlottesville
Lee E. Berner, McLean
Sidney L. Berz, Virginia Beach
Hon. Garland L. Bigley, Dinwiddie
James C. Bishop Jr., Roanoke
Thomas O. Bondurant Jr., Richmond
Prof. Richard J. Bonnie, Charlottesville
Lewis T. Booker, Richmond
Hon. Daniel R. Bouton, Orange
Leo J.M. Boyd, Richmond
Robert F. Boyd, Norfolk
Prof. Kathryn W. Bradley, Charlottesville
William E. Bradshaw, Big Stone Gap
Mark D. Braley, Richmond
Evans B. Brasfield, Richmond
Hon. H. Harrison Braxton Jr., Fredericksburg
Shannon J. Briglia, Vienna
Peter E. Broadbent Jr., Richmond
Robert L. Brooke, Richmond
Ann M. Brose, Washington, D.C.
Delmar L. Brown, Richmond
James F. Brown, Charleston, W.Va.
Richard Brown, Williamsburg
Hon. Albert V. Bryan Jr., Alexandria
Robert P. Buford Jr., Richmond
A. Davis Bugg Jr., Irvington
Hon. Rudolph Bumgardner III, Staunton
Robert L. Burrus Jr., Richmond
Robert W. Busby Jr. , Washington, D.C.
Stephen D. Busch, Richmond
Harris D. Butler III, Richmond
Hon. M. Caldwell Butler, Roanoke
Lloyd Lee Byrd, Richmond
Hon. Robert L. Calhoun, Alexandria
Paul K. Campsen, Norfolk
David A. Capozzi, McLean
Susanne H. Carnell, McLean
Alfred L. Carr, Fairfax
Hon. Harry L. Carrico, Richmond
Joseph C. Carter Jr., Richmond
Miles Cary Jr., Richmond
Richard H. Catlett Jr., Richmond
Hon. Edward T. Caton III, Virginia Beach
L B Chandler Jr., Charlottesville
James L. Chapman IV, Norfolk
R. Harvey Chappell Jr., Richmond
Malcolm M. Christian, Richmond
Hon. Mark C. Christie, Ashland
Clyde R Christofferson, Reston
14/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
Martin F. Clark, Stuart
W. Garland Clarke, Kilmarnock
Hon. John E. Clarkson, Norfolk
Hon. Whittington W. Clement, Richmond
Hon. George M. Cochran, Staunton
John V. Cogbill III, Richmond
Edwin S. Cohen, Charlottesville
Hon. Marvin F. Cole, Richmond
Hon. Samuel W. Coleman III, Richmond
Stacy M. Colvin, Richmond
C. Lacey Compton Jr., Woodbridge
Hon. Glen E. Conrad, Roanoke
Hon. H. Vincent Conway Jr., Newport News
Anthony E. Cooch Jr., Fairfax
Hon. Talmage N. Cooley, Waynesboro
Pamela C. Cooper, Washington, D.C.
Timothy A. Coyle, Norfolk
Hon. C. Richard Cranwell, Roanoke
James Smyth Cremins, Richmond
Francis N. Crenshaw, Norfolk
Hon. Robert B. Cromwell Jr., Virginia Beach
David F. Dabbs, Richmond
James A.L. Daniel, Danville
Lawrence C. Darlak, Reston
Hon. Beverly A. Davis III, Rocky Mount
Hon. Mark S. Davis, Portsmouth
Terry H. Davis Jr., Norfolk
Robert B. Delano Jr., Richmond
Hon. Rodham T. Delk Jr., Suffolk
Douglas W. Densmore, Roanoke
Hon. Ray W. Dezern Jr., Norfolk
Prof. A. Mechele Dickerson, Williamsburg
Thomas W. diZerega, Upperville
Prof. John E. Donaldson, Williamsburg
John B. Donohue Jr., Richmond
Benjamin R. Dorsey IV, Richmond
W. Birch Douglass III, Richmond
Hon. Robert G. Doumar, Norfolk
Mark S. Dray, Richmond
Richard W. Driscoll, Alexandria
Hon. Jay E. Dugger, Hampton
Hon. Nelson T. Durden, Hampton
C. Thomas Ebel, Richmond
M. Richard Epps, Virginia Beach
Reid H. Ervin, Norfolk
R. Craig Evans, Mechanicsville
Bernard M. Fagelson, Alexandria
Hon. George C. Fairbanks IV, Williamsburg
James B. Feinman, Lynchburg
Hon. Walter S. Felton Jr., Williamsburg
Todd M. Fiorella, Norfolk
Jud A. Fischel, Warrenton
F. Rodney Fitzpatrick, Roanoke
James W. Fleet, Mobile, Ala.
John R. Fletcher, Norfolk
George M. Foote, Washington, D.C.
James H. Ford, Martinsville
Hon. Dixon L. Foster, Irvington
Hon. Calvin W. Fowler, Danville
Hon. Paul D. Fraim, Norfolk
Hon. Humes J. Franklin Jr., Staunton
Hon. Jerome B. Friedman, Norfolk
Gloria L. Freye, Richmond
Lane R. Gabeler-Millner, McLean
Griffin R. Garnett Jr., Arlington
Joseph E. Gibson, Charlottesville
Gerald E. Gilbert, McLean
Tracy A. Giles, Roanoke
Hon. J. Samuel Glasscock, Suffolk
Allen J. Gordon, Chesapeake
Barbara W. Goshorn, Palmyra
Marilynn C. Goss, Richmond
DECEMBER 2004/JANUARY 2005
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Robert W. Mann, Martinsville
Howard W. Martin Jr., Norfolk
Wade W. Massie, Abingdon
Vincent J. Mastracco Jr., Norfolk
Roderick B. Mathews, Richmond
Ronald M. Maupin, Spotsylvania
Robin J. Mayer, Lexington
J. Robert McAllister III, Fairfax
Thomas W. McCandlish, Richmond
Eugene W. McCaul, Mechanicsville
Jennifer L. McClellan, Richmond
William J. McConnell, Fort Myers, Fla.
Kristine H. McCord, Arlington
Howard C. McElroy, Abingdon
John D. McGavin, Fairfax
Hon. John J. McGrath Jr.,
Luray/Harrisonburg
Katharine W. McGregor, Vienna
Charles W. McIntyre Jr., McLean
James R. McKenry, Norfolk
James S. McNider III, Hampton
Thomas F. McPhaul, Norfolk
David S. Mercer, McLean
Louis A. Mezzullo, Richmond
Hon. Thomas J. Michie Jr.,
Charlottesville
Hon. Joseph W. Milam Jr., Danville
Daniel J. Miller, Norfolk
G. Kenneth Miller, Venice, Fla.
Hon. Nathan H. Miller, Harrisonburg
H. Victor Millner Jr., Chatham
Hon. William C. Mims, Leesburg
Robert T. Mitchell Jr., Winchester
Eric H. Monday, Stuart
Hon. Willard J. Moody, Portsmouth
Hon. Norman K. Moon, Lynchburg
Thurston R. Moore, Richmond
Tyler Moore, Roanoke
Hon. Henry C. Morgan Jr., Norfolk
Jennifer A. Mullett, Arlington
G. Marshall Mundy, Roanoke
Hon. W. Tayloe Murphy Jr., Richmond
L.C. Musgrove, Roanoke
William A. Noell Jr., Norfolk
Eugene L. Nuckols, Pulaski
Robert C. Nusbaum, Norfolk
William P. Oberndorfer, Bridgewater
Charles W. O’Donnell, Falls Church
Hon. Norman Olitsky, Norfolk
Robert M. O’Neil, Charlottesville
J. Lee E. Osborne, Roanoke
Samantha S. Otero, Richmond
Stephen D. Otero, Richmond
Aubrey J. Owen, Winchester
G. Michael Pace Jr., Roanoke
Fred W. Palmore III, Richmond
Sharon E. Pandak, Prince William
David W. Parrish Jr., Charlottesville
John W. Patterson, Savannah, Ga.
Hon. Henry Clyde Pearson, Salem
Hon. Carleton Penn, Leesburg
Hon. Nicholas E. Persin, Grundy
H.G. Peters III, Bristol
Gary G. Peterson, Vienna
Gordon P. Peyton Jr., Alexandria
Thomas C. Phillips Jr., Abingdon
Hon. Von L. Piersall Jr., Portsmouth
C. Cotesworth Pinckney, Richmond
T.L. Plunkett Jr., Roanoke
Anita O. Poston, Norfolk
James S. Powell, Littleton, Colo.
Hon. Robert L. Powell, Pearisburg
Lisa A. Price, Washington, D.C.
Glenn W. Pulley, Danville
Hon. Ford C. Quillen, Gate City
Gordon F. Rainey Jr., Richmond
Alfred M. Randolph Jr., Norfolk
William M. Richardson, Richmond
Michael L. Rigsby, Richmond
John Ritchie Jr., Charlottesville
James C. Roberts, Richmond
Hon. Ralph B. Robertson, Richmond
Hon. Joshua L. Robinson, Luray
Agustin E. Rodriguez, Richmond
William F. Roeder Jr., McLean
Frank W. Rogers Jr., Roanoke
Thomas L. Roland, Norfolk
Thomas H. Rose Jr., Stony Creek
Hon. Stephen D. Rosenthal,
Richmond
Aubrey J. Rosser Jr., Altavista
Hon. Jane Marum Roush, Fairfax
Harry P. Rowlett, Jonesville
R. Bradley Runyan, Washington, D.C.
C. Edward Russell Jr., Norfolk
John F. Rutledge, Arlington
Hon. Edward L. Ryan Jr., Richmond
Hon. Toy D. Savage Jr., Norfolk
Tim Schulte, Richmond
Robert D. Seabolt, Richmond
V. R. Shackelford Jr., Orange*
Virginius R. Shackelford III, Orange
Earl E. Shaffer, Arlington
John S. Shannon, Norfolk
Joseph M. Sharnoff, Oakton
Hon. William H. Shaw III, Gloucester
John C. Shea, Richmond
Prof. Robert E. Shepherd Jr.,
Richmond
Hon. Paul F. Sheridan, Arlington
Harriette H. Shivers, Roanoke
Deronda M. Short, Newport News
David G. Shuford, Richmond
Joseph F. Silek Jr., Front Royal
Stuart A. Simon, Richmond
Hon. Arthur W. Sinclair, Haymarket
Prof. Kent Sinclair, Charlottesville
Nicholas G. Sladic II, Glen Allen
Alexander H. Slaughter, Richmond
Hon. Dennis J. Smith, Fairfax
R. Gordon Smith, Richmond
Margaret H. Smither, Richmond
Paul R. Smollar, Washington, D.C.
John D.K. Smoot Jr., Alexandria
Hon. Beverly W. Snukals, Richmond
Roy D. Snyder Jr., Alexandria
David H. Spratt, Fairfax
Hon. Joseph E. Spruill Jr.,
Tappahannock
Gregory T. St. Ours, Harrisonburg
Thomas Stark III, Amelia
Harold E. Starke Jr., Richmond
DONORS
Michael W. Graff Jr., McLean
B. Page Gravely Jr., Glen Allen
Lynn C. Greer, Richmond
John L. Gregory III, Martinsville
Phillip S. Griffin II, Winchester
Hon. Charles D. Griffith Jr., Norfolk
Prof. Roger D. Groot, Lexington
Robin C. Gulick, Warrenton
Douglas L. Guynn, Harrisonburg
Joseph C. Gwaltney, Arlington
Virginia H. Hackney, Richmond
Grayson P. Hanes, Falls Church
John W. Hanifin, Ocean Ridge, Fla.
Reno S. Harp III, Richmond
Joseph E. Hartman, Washington, D.C.
Joseph R. Hartsoe, Washington, D.C.
James H. Harvell III, Newport News
William G. Haskin Jr., Virginia Beach
James W. Haskins, Martinsville
John T. Hazel Jr., Manassas
Hon. William D. Heatwole,
Waynesboro
John B. Hemmings, Lexington
George H. Hettrick, Richmond
C. Thomas Hicks III, McLean
R. Braxton Hill IV, Richmond
Hon. Marvin C. Hillsman Jr.,
Harrisonburg
Glenn M. Hodge, Harrisonburg
Hon. William H. Hodges Jr.,
Virginia Beach
Michael J. Holleran, Reston
Hon. William J. Howell, Fredericksburg
Richard W. Hudgins, Newport News
James V. Ingold, Fairfax
Robert J. Ingram, Pulaski
Hon. Avelina S. Jacob, Leesburg
John T. Jessee, Roanoke
Harry M. Johnson III, Richmond
Hugh J.M. Jones III, Lynchburg
Hon. James P. Jones, Abingdon
Hon. W. Wellington Jones, Suffolk
Elaine R. Jordan, Richmond
Jesse P. Kanach, Washington,D.C.
Grace W. Kao, Alexandria
Stephanie L. Karfias, Richmond
John F. Kay Jr., Richmond
Helen L. Kemp, Richmond
Peter J. Kenny, Charlottesville
Hon. Donald H. Kent, Richmond
Anne Leigh Kerr, Richmond
Hon. Edward S. Kidd Jr., Roanoke
Donald E. King, Richmond
Melissa L. Klemens, Gaithersburg, Md.
J. Sloan Kuykendall III, Winchester
Hon. Elizabeth B. Lacy, Richmond
Kathy Ann Ladun, Washington, D.C.
David Craig Landin, Richmond
Hon. Edward E. Lane, Richmond
Hon. James V. Lane, Harrisonburg
Chiswell D. Langhorne Jr.,
Washington,D.C.
William A. Lascara, Virginia Beach
Victor W. Lavenstein, Petersburg
Thomas O. Lawson, Fairfax
William J. Lemon, Roanoke
Hon. Louis R. Lerner, Hampton
Glenn C. Lewis, Fairfax
Hon. Charles F. Lincoln, Marion
E. Eugene Luther, Annandale
Matthew J. MacLean, McLean
Marcia M. Maddox, Vienna
Wallace L. Chandler, Richmond
Cynthia L. Ewing, Chesapeake
Julia A. Lake, Springfield
Michael H. Levinson,
Virginia Beach
R. Peyton Mahaffey, Fairfax
James H. Maloney, Falls Church
Mary Ellen Maxfield, Arlington
Hon. Peter W. Steketee, Manassas
Hon. J. Warren Stephens,
Newport News
Hon. Roscoe B. Stephenson Jr.,
Covington
Hon. L. Neil Steverson, Richmond
Hon. F. Bradford Stillman, Norfolk
Hon. M. Lee Stilwell Jr., Danville
Phillip C. Stone, Bridgewater
Hon. William F. Stone Jr., Roanoke
Robert E. Stroud, Charlottesville
G. R. C. Stuart, Abingdon
Joseph M. Sullivan, Fairfax
Timothy J. Sullivan, Williamsburg
Frank L. Summers Jr., Staunton
Hon. James R. Swanson, Salem
Hon. Jay T. Swett, Ivy
Hon. Harry T. Taliaferro III, Warsaw
Frederick R. Taylor, Arlington
J. Hume Taylor Jr., Norfolk
Hon. Lydia C. Taylor, Norfolk
Hon. Douglas O. Tice Jr., Richmond
King F. Tower, Richmond
Hon. Russell I. Townsend Jr.,
Chesapeake
Hon. Wenda K. Travers, Manassas
Hon. James C. Turk, Roanoke
Hon. George D. Varoutsos, Arlington
Patrick W. Vaughan III, Herndon
Wilson F. Vellines Jr., Staunton
Hon. Arthur B. Vieregg Jr., Fairfax
Edward B. Walker, Roanoke
M. Bruce Wallinger, Harrisonburg
Edmund L. Walton Jr., Reston
Guilford D. Ware, Norfolk
G. William Watkins, Waynesboro
Fletcher D. Watson, Covington
Robert B. Webb III, Tysons Corner
Michael S. Weisberg, Norfolk
Hill B. Wellford Jr., Richmond
Hon. John E. Wetsel Jr., Winchester
Hon. Kim Slayton White, Halifax
Samuel I. White, Virginia Beach
Robert C. Whitestone, Fairfax
Hon. Henry H. Whiting, Winchester
William J. Williams, Irvington
J. Paul Williamson, Washington, D.C.
Hon. Gordon F. Willis, Spotsylvania
Hon. Robert B. Wilson V, Hampton
Sara Redding Wilson, Manakin-Sabot
Robert C. Wood III, Lynchburg
Hon. Thomas H. Wood, Staunton
Hon. Clifton A. Woodrum III,
Roanoke
Roland C. Woodward, Richmond
Hon. Dean S. Worcester, Leesburg
Hon. Archer L. Yeatts III, Richmond
James M. Young, Salem
Paul A. Zucker, Falls Church
* Deceased
Hon. Dennis F. McMurran,
Portsmouth
Hugh S. Meredith, Virginia Beach
Douglas B. Mishkin, Washington, D.C.
John C. Smuck, Washington, D.C.
J. Raymond Sparrow Jr., Fairfax
R. Allan Wimbish, Virginia Beach
Listings current as of December 10, 2004
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/15
LEGAL FOCUS/DOMESTIC RELATIONS
Imputation of Income to a Party
Who Is Seeking Spousal Support
by Brett R. Turner
Two or three generations ago, with
most women working in the home
and not earning a salary, spousal
support was a simpler issue than it is
today. The court measured the wife’s
reasonable needs, compared them to
the husband’s reasonable ability to
pay, and made its final award.
Today, with women either
employed or employable in the
workplace, an additional step has
been added to the process. Not only
are women capable of earning a
salary, but they also often own
substantial property. Thus, after
measuring the wife’s reasonable
needs, the court must discount those
needs by the amount which the wife
is reasonably able to contribute to
her own support.1 To coin a phrase,
the court must look to the wife’s “net
needs”—the difference between the
base amount of her reasonable
needs, and her own capacity to meet
them.
Because so many women have
earning capacity in modern divorce
cases, there has been significant
growth in Virginia case law on
imputation of income to a spouse
who is receiving support.2 The
purpose of this article is to set forth
the basic elements of that case law.
While the primary focus will be upon
spousal support cases, the standard
discussed here also applies to child
support.
General Standard
“The burden is on the party
seeking the imputation to prove that
the other parent was voluntarily
foregoing more gainful employment,
either by producing evidence of a
higher-paying former job or by
showing that more lucrative work
was currently available.” Niemiec v.
Commonwealth ex rel. Niemiec, 27
Va. App. 446, 451, 499 S.E.2d 576,
579 (1998). Thus, there are two
distinct bases upon which income
can be imputed to a support
recipient. First, income can be
imputed if the recipient voluntarily
left a former position which offered
higher wages than the recipient
presently earns. Second, income can
be imputed if a position offering
higher wages is “currently
available,” and the recipient is
voluntarily refusing to accept it.
This general standard assumes
that the court has already decided
that the spouse receiving support has
a currently operative duty to work.
Where the parties have agreed
during the marriage that one spouse
will remain home and care for
children until they reach a certain
age, the court is allowed to consider
that factor in setting support, and to
rule that the spouse in question has
no duty to work until the children
reach the agreed-upon age.3 The
court is also allowed to order that the
custodial parent not be required to
work, or at least not work full time, if
the children have special needs
which are best met in the home.4
Former Position
Under Niemiec, imputation of
income based upon a previouslyearned salary is an alternative to
proof that a better position is
presently available. Thus, when
relying on the former position prong
of the Niemiec test, the spouse
paying support need not prove that
any position is presently available to
16/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
the spouse receiving support. The
theory, of course, is that the recipient
would still have the former position if
he or she had not left it voluntarily.
The former position theory does
not apply to literally every former
position which the recipient has ever
held. The best policy discussion is
from a trial court case:
[The former job theory] is
premised on the concept that the
pre-change employment is
evidence of ability to pay or
earning capacity. When the job
change is recent it is reasonable
to project income based on the
pre-change employment. But as
more time passes, it might not be
reasonable to project income
based upon the pre-change
employment. Businesses change.
Job markets fluctuate. Over time
many factors beyond the control
of a spouse or parent can affect
income. If they exist, then they
should be considered by a court
in deciding a support modification
motion.5
Appellate case law applying the
theory usually speaks in terms of
“recent” prior employment, without
providing a more specific definition.6
Cases accepting the theory have
usually involved earnings less than
two years old.7 The fact that the
earnings were from employment with
the other spouse’s business during
the marriage does not itself prevent
imputation.8 Cases rejecting the
theory have involved earnings more
than 10 years old.9
A considerable grey area exists
between the relatively recent
earnings in the former set of cases,
and the relatively outdated earnings
DECEMBER 2004/JANUARY 2005
DECEMBER 2004/JANUARY 2005
ABOUT THE AUTHOR
in the latter set of cases. Only a few
decisions have considered cases
falling within this area, and the
results have generally depended
upon the facts. A Loudoun County
case rejected prior earnings which
were only five years old:
[The husband] offered evidence
that the Wife made over $50,000
in the telecommunications
industry at Sprint when she left in
1995. The Husband offered
merely his opinion that the Wife
could be hired and retrained to
make up for whatever she lost
due to the changes in technology
since 1995. Both parties agreed
that the technology of the
telecommunications industry has
changed since 1995. The
Husband offered no evidence of
current entry level salaries in the
same industry or what she could
earn with retraining. Without
more, the Husband has not met
his burden to prove that the Wife
is voluntarily underemployed.10
The result reached was obviously
heavily dependent upon evidence of
specific changes in the
telecommunications industry during
the five-year period. This
dependency suggests that the nature
of the field of prior employment can
be an important variable in
determining when prior employment
is sufficiently “recent” to serve as a
basis for imputing income.
Where the prior position involved
only part-time work, it is error to
impute income based upon full-time
employment at the same rate.11 The
past availability of a part-time
position is no guarantee that a fulltime position is actually available. In
addition, some employers
compensate full-time employees at a
lower salary rate, because they
receive health insurance or other
fringe benefits. A full-time salary
could be imputed, of course, under
the second prong of the Niemiec test.
Prior salary is a valid basis for
imputing income only where the
spouse left the position voluntarily. In
Srinivasan v. Srinivasan, 10 Va. App.
728, 396 S.E.2d 675 (1990), the
Brett R. Turner is a Senior Attorney with the National Legal Research Group in
Charlottesville, specializing in the field of family law. He is author of Equitable
Distribution of Property (West Group 2d ed. 1994), a leading nationwide
treatise on equitable distribution, and editor-in-chief of the monthly law
journal Divorce Litigation. Together with Laura W. Morgan, he is also author
of Attacking and Defending Marital Agreements (American Bar Association
Family Law Section 2001), the first nationwide treatise to address validity
and construction of antenuptial and separation agreements from the
viewpoint of the attorney who must deal with them after they have already
been signed. A regular speaker at CLE seminars, he has almost 20 years of
experience researching family law issues for attorneys all across the nation.
His law degree is from the University of North Carolina at Chapel Hill, and he
is a member of the North Carolina Bar Association.
wife had been employed for a
number of years at George Mason
University, but she lost that position
in 1982 when she did not obtain
tenure. At a support hearing roughly
six years later, neither the trial court
nor the appellate court paid any
particular attention to the wife’s
former salary, and a decision
imputing income to the wife was
ultimately reversed. The salary at
issue was somewhat dated, but the
wife’s field (Indian art and religion)
was not an area which changes
greatly in short periods of time. A
more significant factor may have
been that the wife’s loss of tenure
was to all indications involuntary.
Present Position
The second prong of the Niemiec
test allows imputation of income
based upon the salary which the
spouse receiving support
hypothetically could earn at a new
position. To meet this prong, the
spouse paying support must prove
(1) that the position is presently
available; (2) that the spouse
receiving support would probably be
hired if he or she applied for the
position; and (3) the specific salary
offered by the position.
Many attempts to rely upon this
prong have foundered upon the rock
of the first element—the requirement
that the position be presently
available. It is clearly not sufficient
to prove that the spouse receiving
support is generally qualified for a
position in a certain field; there must
be proof that there are specific
positions available in that field.12
There is some suggestion that the
court is not required to impute
income based upon an available
position which would require a major
interstate relocation.13
In addition to proving that a
position is presently available, the
spouse paying support must also
prove that the spouse receiving
support would probably be hired to
fill it. This requirement cannot be
met simply by showing available
positions advertised in a newspaper
or on the Internet.14 Many such
advertisements are answered by a
large number of qualified applicants,
so that the position is actually
available only to persons with higher
credentials than those expressly
stated in the advertisement. Some
institutions advertise positions only
as a formality, when in reality the
person who will fill the position has
already been chosen. Still other
employers have requirements which
they will not state openly in an
advertisement. For example, no
employer would openly admit to a
reluctance to hire older
homemakers, or applicants of a
particular race or gender, yet such
reluctance exists at times in the
workplace. An advertisement, by
itself, is not sufficient proof that the
spouse receiving support would
actually be hired into the advertised
position.
Of course, an advertisement can
certainly be in some instances a
good indication that the support
recipient is qualified to fill a
particular open position. The
important point is to make certain
that the advertisement is reviewed by
a person with the expertise to
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/17
consider the many possible factors
lurking beneath the surface of the
advertisement.
This observation leads logically to
a discussion of the single most
important type of evidence for
imputing income under the second
Niemiec prong: the testimony of a
vocational expert. Vocational experts
have the skill to determine when a
position is actually available and
whether a particular person is likely
to be hired to fill it. Many such
experts will rely upon a variety of
hearsay sources, including the job
advertisements which are so
problematic when considered by
themselves. This is not an
evidentiary problem, for experts are
allowed to rely upon hearsay facts in
reaching their opinions, so long as
the facts are traditionally relied upon
by experts in the field.15 Vocational
experts necessarily rely upon
advertisements and other job listings
in determining whether persons are
employable. So long as a vocational
expert has actually assessed the
various factors which could
potentially operate beneath the
surface of a job listing, an expert
opinion based upon the job listing
can be admissible and persuasive.
Virginia has only begun to scratch
the surface of the many questions
posed by the use of vocational
experts in divorce cases. Increased
use of vocational experts is probably
the greatest change the nationwide
law of spousal support since the
introduction of limited duration
support in the 1970s,16 so the
Commonwealth is not alone in
feeling its way into this new area.
After reviewing case law across
the nation for purposes of another
article,17 the author concluded that
the most important element of
persuasive vocational testimony is
specificity. The expert should state
that spouse X is qualified to fill
positions A, B, and C, that those
positions are presently available, and
that spouse X would probably be
hired for those positions if he or she
applied for them. It is helpful to have
the expert refer to specific job
listings, not as evidence in and of
themselves, but as part of the basis
for the expert’s opinion that the
positions are available. Do not
neglect to have the expert state a
specific salary or salary range for
each available position; imputed
income cases can be lost for failure
to prove salary, just as personal
injury cases can be lost for failure to
prove damages.18
While expert testimony is most
common way to prove the
availability of a new position, it is
important not to neglect another
potential source: concessions by the
spouse receiving support. If that
spouse admits that employment is
available at a stated amount, the
court is permitted to accept that
admission, even in the absence of
supporting evidence.19
Conclusion
In a world in which both husband
and wives are generally employed
during the marriage, the law should
generally encourage both husbands
and wives remain employed after the
marriage ends. The doctrine of
imputed income is essentially the
device used by the law to enforce the
duty to work. Where the duty to work
applies to a support recipient to
begin with, the doctrine of imputed
income should apply as well.
At the same time, it is absolutely
essential in all contexts that imputed
income be based upon a factually
realistic assessment of the salary
which the spouse in question is
actually capable of earning. The twoprong Niemiec test recognizes this
requirement by linking the amount of
imputed income to actual salaries
earned through past or available
present employment. While the test
imposes an evidentiary burden on the
spouse paying support, its consistent
use should go a long way toward
ensuring that imputed income
findings are solidly based in
economic reality.
NOTES
1. On the law, of course, Virginia has always
considered the wife’s earning capacity as a
factor in setting support:
It must also be borne in mind that the
appellee is a young woman, only 28
18/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
years of age, and that under modern
conditions there is open to her practically
every avenue for making money that is
open to her husband . . . that her time is
her own; that she has no right to remain
idle at the expense of her former
husband; and that it is her duty to
minimize his loss, albeit it was through
his fault that she was compelled to ask
that the contract of marriage be
rescinded.
Barnard v. Barnard, 132 Va. 155, 111 S.E. 227,
230 (1922). But cases in which the wife actually
had earning capacity were once rare upon the
facts, so that case law on the issue was
seriously underdeveloped. In the past 20 years,
with women having earning capacity on the
facts in the great majority of all cases, case law
on the issue has grown dramatically.
2. While most support recipients are women,
some support recipients are men. This article
will consider case law discussing imputation of
income to any recipient of spousal support,
regardless of gender.
3. See Va. Code Ann. § 20-107.1(E)(11); Massa
v. Massa, 2004 WL 612836 (Va. Ct. App. 2004).
Since there is no comparable provision under
the law of child support, Massa raises the
possibility that the law of imputing income
might be different under the law of child support
than under the law of spousal support, where
the parties agreed that one of them should
limit work time to care for young children.
4. Driskill v. Driskill, 2004 WL 1486958 at *3
(Va. Ct. App. 2004) (where “the parties’ son had
special educational and other needs including
counseling, tutoring, and medical care,” trial
court did not err by failing to require that the
wife accept additional employment).
5. Cherpes v. Cherpes, 2003 WL 22257982 at
*6 (Va. Loudoun County Cir. Ct. 2003).
6. E.g., Mir v. Mir, 39 Va.App. 119, 130, 571
S.E.2d 299, 304 (2002) (“There is no evidence
in the record that husband . . . had recently left
a job that paid a similar amount”); Miklovic v.
Napier, 2002 WL 1796990 at *2 (Va. Ct. App.
2002) (“Appellant is an articulate, educated
professional, with marketable skills evidenced
by recent, well-compensated employment”).
7. See Silberblatt v. Silberblatt, 1999 WL
1129653, *3 (Va. Ct. App. en banc 1999) (initial
support case; wife worked as a nurse in
husband’s medical practice until divorce filed,
and worked several days per month for third
party during pendency of practice); Miklovic v.
Napier, 2002 WL 1796990 (Va. Ct. App. 2002)
(husband lost employment on September 10,
2001, and filed motion to reduce support on
the same day); Tatum v. Tatum, 2000 WL
1774173 (Va. Ct. App. 2000) (wife left a nursing
position to attend seminary in July, 1998;
hearing on modification held in March of 1999);
Kaminsky v. Kaminsky, 2002 WL 31802736
(Va. Fairfax County Cir. Ct. 2002) (husband left
employment in March, 2000; modification
proceedings filed in April, 2002).
8. See Silberblatt v. Silberblatt, 1999 WL
1129653, *3 (Va. Ct. App. en banc 1999) (relying
in part on wife’s earnings working as a nurse in
husband’s medical practice). There was no
suggestion in the evidence that the wife was
treated differently because she was married to
the husband, and her earnings with the
husband’s practice were generally consistent
with her earnings in other employment. If the
evidence shows that the terms of employment
DECEMBER 2004/JANUARY 2005
were influenced by the existence of the marital
relationship, prior earnings working for a
spouse’s business should logically be less
relevant. Such influence could exist where the
spouse was given the job only because of the
marital relationship, or where the existence of
the marital relationship resulted in a salary
which was either lower or higher than
commercially reasonable.
9. See Carr v. Carr, 2002 WL 927601 at *4 (Va.
Ct. App. 2002) (“[w]ife, a nurse, had not worked
outside the home for fifteen years prior to the
parties’ separation”); Grover v. Grover, 2001
WL 1356495 at *2 (Va. Ct. App. 2001) (wife
“had not worked as a medical technician for
over twenty years”).
10. Balleweg v. Balleweg, 2000 WL 511824
(Va. Loudoun County Cir. Ct. April 24, 2000).
11. Joynes v. Payne, 36 Va. App. 401, 551
S.E.2d 10 (2001) (part-time salary of $80,990
per year was not evidence of full-time earning
capacity of $170,386 per year; imputing
earnings only at the lower amount); see also
Hoegle v. Hoegle, 2004 WL 351145 (Va. Fairfax
County Cir. Ct. 2004) (wife was last employed
one and one-half years ago at part-time
position earning $40,000 per year; refusing to
impute income at rate higher than $40,000 per
year, on grounds that the wife’s alcoholism
and absence from the job market would prevent
her from earning higher amount).
12. See Srinivasan v. Srinivasan, 10 Va. App.
728, 396 S.E.2d 675, 679 (1990) (error to
impute income to wife, “an expert in oriental
studies, concentrating in Indian art and religion,
with a knowledge of the Sanskrit language”; no
proof that position was presently available);
Pellegrin v. Pellegrin, 2002 WL 119711 (Va. Ct.
App. 2002) (expert testimony that general
market for mental health counselors was strong
was not sufficient to show that a position is
presently available, particularly where wife’s
had little experience in the field and her diligent
job search had been unsuccessful); Brooks v.
Brooks, 2001 WL 15701 at *1, *4 (Va. Ct. App.
2001) (wife had not worked as a teacher since
1977, though she had renewed her teaching
certificate; “wife conceded that she could earn
$27,500 as a teacher, [but] there was no
evidence presented regarding the availability
of teaching positions in wife’s field (English
and drama)”; “We cannot say the court abused
its discretion by refusing to impute income to
wife before she had a reasonable period of
time to re-enter the job market”); Goldman v.
Goldman, 2003 WL 23272407, *3 (Va. Fairfax
County Cir. Ct. 2003) (wife had not worked as a
nurse since 1984, although she had retained
her nursing license; rejecting physicianhusband’s argument that wife needed only a
five-week refresher course to be immediately
employable; under Srinivasan, refusing to
impute income).
13. See Turonis v. Turonis, 2003 WL 941199,
*6 (Va. Ct. App. 2003) (“wife was capable of
earning $100,000 to $130,000 per year in the
Washington, D.C., area, where she and husband
resided at the time of their separation, and
$75,000 per year in the Atlanta, Georgia, area,
where she moved after the parties’ separation
in order to be closer to her family”; trial court
properly imputed income of $75,000); see also
Reece v. Reece, 22 Va.App. 368, 376, 470
S.E.2d 148, 152 (1996) (listing eight factors to
be considered in determining whether refusal
to accept employment in another geographic
area is voluntary; on the facts, trial court
properly refused to impute income to support
payor).
14. Hanyok v. Hanyok, 2002 WL 1837869 at *5*6 (Va. Ct. App. 2002) (husband’s testimony as
to job listing on the Internet was inadmissible
hearsay); Grover v. Grover, 2001 WL 1356495
at *2 (Va. Ct. App. 2001) (husband’s opinions
based upon advertisements and Internet
research were unreliable).
15. Va. Code Ann. § 8.01-401.1 (2004).
16. Virginia allows limited duration support
only in cases filed after July 1, 1998, but limited
duration support was recognized in most other
states roughly 15 to 30 years earlier. See Brett
R.
Turner,
“Rehabilitative
Alimony
Reconsidered: The ‘Second Wave’ of Spousal
Support Reform,” 10 Divorce Litigation 185
(October 1998).
17. Brett R. Turner, “Earning Capacity and
Spousal Support: The Uses and Abuses of
Vocational Evidence in Divorce Cases,” 14
Divorce Litigation 213 (December 2002).
18. Where employment is available but the
salary is not proven, it may be possible to
impute income at the statutory minimum wage.
See Bonin v. Bonin, 2003 WL 22518409 (Va.
Fairfax County Cir. Ct. 2003). The minimum
wage will obviously be less than most spouses
are capable of earning, and its use is proper
only where proof exists that employment at
minimum wage is actually available.
19. See Hatloy v. Hatloy, 41 Va. App. 667, 588
S.E.2d 389 (2003) (husband admitted that he
could reasonably be expected to earn $1,000
per month at one job and $600 per month at
another; court had little difficulty holding that
his earning capacity was $1,600 per month).
LEGAL FOCUS/DOMESTIC RELATIONS
You’ve Got to Sign Your Love Away*
by Glenn C. Lewis
Frank Morrison and Ann Vaden
recently approached me about
presenting a program on premarital
agreements for the VBA and Virginia
CLE. On looking into the matter, I
soon learned nothing had ever been
written or presented focusing on what
I believed are the real-life problems
and challenges we face in this
important arena. I quickly accepted
the assignment with two provisos:
1. There would be just one live
presentation (with all the video
replays they desired); and
2. We could focus on what I
thought was important, whether or not
it meshed with conventional wisdom.
Writing the materials and
presenting this program were a
DECEMBER 2004/JANUARY 2005
daunting challenge. More to the
point, the feedback received that day
and from dozens since has
contributed to what has proven to be
one of my most satisfying teaching
adventures, ever. Almost without
exception, comments consistently
have included expressions of relief
that someone else has shared the
surprising pain, discomfort and
profound sense of responsibility
flowing from such representation.
It is unnecessary here (and
impossible given constraints of space
and time) to recount everything that
leads to these conclusions and
observations. However, it does seem
worthwhile to share at least a
glimpse of what may provoke such
strong reactions and emotions in
experienced and grizzled lawyers,
some of whom have always appeared
impervious to such distractions.
Why do sparks fly so quickly when
*With apologies to fans of the Beatles for the title of this monograph. Further, I wish to
acknowledge Laura O. Pomeroy and Dennis Belcher of McGuireWoods LLP in Richmond, who
deserve attribution for what was borrowed from their outstanding presentation: “Until Death
Do Us Part: And then the premarital agreement controls.” Finally, my thanks and credit to
Greg Goldberg, currently a third year law student at the George Mason School of Law, and a
law clerk with The Lewis Law Firm, for all his hard work in assisting with the production of this
article, and the program and paper which spawned it.
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/19
ABOUT THE AUTHOR
we discuss and consider the subject
of premarital agreements (PMAs)?
Well, for starters, by definition,
PMAs are the antithesis of romance.
Think about it: Someone’s fiancée,
on the brink of life’s greatest quest
for fulfillment, enters your office as
does no other client: Daydreaming of
unbridled happiness, relentless
passion…everlasting love. We begin
the ordeal by raising least desirable
outcomes. We dwell on worst-case
scenarios, on divorce and death.
Prospective spouses seek PMAs
for a myriad of reasons, many good,
some terrible. Upon death or divorce,
they may want to ensure that
property distribution does not occur
as otherwise prescribed by statute.
Or, if one was previously married to
another for a long time, he or she
may wish to protect against a new
spouse sharing in the wealth of the
first marriage, to the detriment of
older or adult children, or even
grandchildren.
Perhaps the client may simply
wish to guard against a bad marriage.
By illustration, if marriage ends in
separation within five or 10 years of
the wedding, the couple may intend
that no property or wealth changes
hands, that husband and wife both
return, as close as is practical, to
prior economic positions.
The list goes on. There are dozens
more scenarios sensibly leading to
consideration of a PMA. No matter
what applies, I forcefully argue that
the highly professional and ethical
practitioner has one duty,
overarching all others:
Honor the relationship and
first, do no harm.
It may seem strange I would
borrow from the medical profession
for such a singular commandment.
Well, arriving at a valid and
enforceable PMA is a delicate
process. However dramatic it
sounds, I promise it is true. The
nature and tone of negotiations
demand precision in thought, word,
and action. Consequences for doing
otherwise can be cosmic. A single
misstep or thoughtless word spoken
can haunt a relationship for decades.
A tiny miscue can doom the
Glenn Lewis, a member of the VBA Board of Governors, is Chairman and
Founder of The Lewis Law Firm, P.C. — based in Washington, D.C., with a
national law practice emphasizing family and matrimonial law. He is a former
chair of the VBA Domestic Relations Section, co-chair of the VBA Coalition on
Family Law Legislation, a frequent lecturer for continuing legal education
programs and author of articles on family law. He is also chief legal analyst and
commentator for BBC World TV. For nearly three decades, he has been at the
helm of groundbreaking developments in family law. A perennial selection by
his peers for inclusion in The Best Lawyers in America, Lewis is also a
Diplomate and Fellow of the American Academy of Matrimonial Lawyers. In
March 2000, Washingtonian magazine published the only comprehensive
survey ever taken of divorce lawyers in the D.C. metropolitan area, in which
Lewis was cited by his peers as one of the top two divorce lawyers in the area,
and the top trial attorney in Northern Virginia.
marriage from the outset.
We recently consulted with a man
married to the heiress apparent to
one of the nation’s great media
empires. After catching the wrath of
his dynastic wife and rumpled from
several nights on his buddy’s couch –
away from his three young children –
he came in to discuss options. He
produced a 20-something-page PMA
the couple had signed. He offered a
sad rendition of their zealous (in
retrospect, ill-advised) disputes over
seemingly important, if arcane,
details, such as elective shares and
intestate rights. As this poor soul sat
there, clinging unrealistically to a
glimmer of a hope of reconciliation,
he openly reflected on what he now
saw as the imprudence of his former
counsel – a high-priced and wellknown lawyer – and disclosed his
long held notion that the very process
of negotiating the agreement had
sullied the marriage long before vows
were exchanged. Before either said,
“I do,” they were already ‘done,” the
marriage doomed from the get-go.
PMAs distributing property rights
upon divorce are a relatively new
creation, rooted in less than a half
century of jurisprudence. Prior to
1970, many courts held such
agreements per se invalid, reasoning
that enforcement would encourage
divorce and leave economically
inferior spouses dependent on state
treasuries for support. Eventually a
burgeoning nationwide divorce rate,
and the advent of the “no fault”
divorce, led the Supreme Court of
Florida in 1970, to validate the first
divorce provisions in a PMA in
Posner v. Posner, 233 So.2d 381
(Fla. 1970).
20/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
For the next 13 years, state courts
following those decisions evaluated
PMAs according to common law
contract principles. They held that as
long as PMAs complied with both
substantive and procedural
safeguards for the economically
inferior or less sophisticated
prospective spouse, PMAs could
alter property distribution rights upon
divorce or death and not trespass on
sound public policy.
Thereafter, in 1983, to offer a
more general framework for state
legislatures and courts, the National
Conference of Commissioners of
State Laws promulgated the Uniform
Premarital Agreement Act. In the
years that followed, the District of
Columbia and 25 states, including
Virginia, codified some form of the
UPAA into law.
The Virginia Premarital
Agreement Act (Virginia Act),
enacted in 1985, governs all PMAs
executed after July 1, 1986. Virginia
courts will enforce PMAs signed
earlier, if they otherwise would be
valid contracts. The leading Virginia
opinion on pre-Virginia Act PMAs is
Batleman v. Rubin, 199 Va. 156
(1957). Batleman required that a
PMA must contain a fair and
reasonable provision for the
economically inferior party (the
“wife”). Id.
Absent a fair and reasonable
provision for the “wife,” the
proponent of the agreement must
prove that both parties: (1)
Completely disclosed their assets;
(2) Voluntarily signed the PMA; (3)
Individually received independent
legal counsel; and (4) Fully
understood their respective legal
DECEMBER 2004/JANUARY 2005
rights before signing. Id. Also under
Batleman, where a PMA provides the
economically inferior party with less
than one-third of a couple’s
combined assets, the proponent must
overcome a presumption of invalidity
with proof that full disclosure of
assets took place. Id.
The Virginia Act, comprised of
Sections 20-149 through 20-155 of
the Virginia Code maintains
decidedly less stringent requirements
than Batleman. Under the Virginia
Act, courts presume that a written
and signed PMA is valid and
enforceable. Burdens of proof shift to
the agreement’s opponent.
Specifically, an opponent must
demonstrate that: (1) He or she did
not sign the PMA voluntarily; or (2)
The PMA is unconscionable, and no
full disclosure of assets took place,
and the opponent did not waive the
right to a full disclosure of assets.
Va. Code § 20-151.
* * *
In addition to more obvious ways,
PMAs are unique from ordinary
contracts in that the act of marriage
takes the place of traditional
consideration. In fact, there is no
additional consideration required for
finding a PMA valid and enforceable.
Va. Code §20-149. In form, a PMA
should contain six general parts: (1)
information about prospective
spouses, (2) definitions, (3) recitals,
(4) substantive provisions, (5)
signatures, and (6) appendices.
Perhaps the most overlooked or
underutilized of these PMA elements
are recitals. Attorneys frequently
squander strategic opportunities by
reducing recitals to fine print or
boilerplate provisions. Given that the
Virginia Act presumes recitals in a
PMA are factually true, the skilled
practitioner will maximize use of
recitals, to the client’s advantage.
Va. Code § 151(B). For instance, an
attorney whose client opposes a PMA
may properly resist inclusion of
standard language or stipulations in a
PMA aimed at ensuring the
agreement’s enforceability. This is
particularly true where such
language is nonspecific or otherwise
inapplicable to the circumstances of
DECEMBER 2004/JANUARY 2005
a given case.
Similarly, one representing the
party advocating for an agreement
can make equally effective use of
recitals. One television personality
approached us with a daunting task:
He sought a PMA within one week of
his wedding. In most cases, we “just
say no” to this kind of request. A
last-second PMA is almost always a
bad idea because courts may give
undue weight to proximity of the
wedding in determining how truly
“voluntary” each signature is.
However, once he readily agreed to
accept the risks and caveats
compelled by the situation, we
agreed to try.
This particular man was in his
70s. He had amassed millions of
dollars in assets throughout a
majestic career in broadcasting. His
fiancée was much younger, virtually
penniless, and had never even tried
to begin writing a curriculum vitae.
Through use of carefully crafted
recitals, we were able to account for
their enormous differences in wealth,
bargaining power, and sophistication.
We also were able to make effective
use of references to the obvious
limits of the marriage’s potential
duration. This was done by gaining
and including her stipulation that,
given her man’s advancing age and
colossal success, she could never
make a marital contribution sufficient
to matter.
To this day almost 10 years later,
they remain happily married. The
agreement seems stronger than ever,
as he works well into his 80s.
Substantive provisions in PMAs
require the utmost thought, care, and
tact. Therein rest potentially lifealtering consequences for wives,
husbands, parents, children,
stepchildren, grandchildren, and
others. The Virginia Code permits
PMAs affecting rights in eight
substantive areas: (1) Future
property; (2) Altering the status of
property; (3) Conditions to change
status of property on a given event;
(4) Spousal support; (5) Formation of
instruments to carry out the
agreement; (6) Insurance death
benefits; (7) Choice of law; and (8)
Contracting in an area not
contravening public policy or
criminal law. Va. Code §20-150.
In PMAs, process is everything. It
begins with the attorney and client.
Before approaching the other side’s
counsel, we should gather as much
information as possible about both
parties. This not only includes bottom
line financial data, but also each
party’s expectations, hopes, dreams,
fears, perceptions of what would best
serve him or her, and each of their
likely perceptions on where they
stand with one another. Also, we want
an informed “guesstimate” on both
parties’ tolerance for risk and for
what might offend their respective
sensibilities, i.e., are we dealing with
the emotional analogue of the
“eggshell skull.” Or, to cut to the
chase, “Will he/she hold our
discussions against you, forever?”
The attorney then develops a
strategic plan and negotiation
strategy consistent with these data
and the client’s goals. For the
proponent of an agreement, the goals
are relatively simple: Structure the
agreement to protect his/her client’s
interest(s), while, to the extent
possible, not disserving the other’s. If
you have a party less sanguine about
the wisdom of having a PMA, the
assignment gets a bit more dicey,
and difficult to identify. The attorney
will explore different approaches with
this client. In some cases, a
seemingly counterintuitive tactic
may best serve the relationship. For
example, where a future wife’s
wealthy parents force her to pursue a
PMA, the husband may wish to sign
the proposed PMA exactly as
proposed, to the letter and comma.
This takes a good deal of courage,
but in the right circumstance (such
as knowing negotiations will lead
nowhere, are likely to be contentious
and will probably irreparably damage
a once sacred mutual trust), this can
be the very best move you can make,
and your finest hour as a lawyer.
Conundrums which flare up in
PMAs can take on the look of a bar
exam and professionalism question,
all rolled into one. Example: While
representing one opposing a PMA,
THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/21
you develop a strong basis to
question the sincerity or commitment
of the opponent, the proponent of the
PMA. A “moment” is reached: The
lawyer must decide how far to go,
even as relates to counseling the
client. PMA negotiations provide an
opportunity to expose the proponent’s
“other face.” It may be that an
aggressive counterproposal might
trigger an ugly reaction. This may
reveal a dark side to your client that
he or she never described or knew of.
Your client may find cause to
reconsider the marriage. Of course,
don’t go jumping off every bridge you
reach! If these insights expose little
more than an unpleasant personality
trait, perhaps you let it go. However,
if you lie awake some night, and
come to realize your insomnia is due
to your certainty that you have
witnessed real warning signs for
future abuse, or indications of
present psychopathology, you will
soon wonder if your client is about to
enter into a lifetime of an abusive
relationship. In that miserable
moment, I question your professional
right to walk away from such a clear
signal, without first confronting your
client. Either way, one or both of the
parties may seriously reconsider the
marriage, and all because of
something you have said. Talk about
high stakes!
The dangers are obvious. To be
sure, on the upside, a prospective
spouse involved in a speedy
courtship or unenlightened about his
or her fiancée’s insincere or worse
motivations may avoid years of
misery, in part due to your insight
and courage in sharing it.
Regardless, do not be naïve: Even if
you save the client from decades of
hell for this good deed, you will
surely be punished! It is hard to
visualize a happy ending between
client and attorney after such a point
is reached. Yet, where this has
happened (as we have seen on
occasion), it can be quite fulfilling,
and in our experience has led to a
grateful client and years of thanks
and happy referrals for your good and
noble efforts.
There are countless ways to
approach PMA negotiations in a
client’s best interests. Perhaps most
illustrative is a what-not-to-do
scenario that arose in my practice
several years back. A young
prospective wife read about our firm
and called us, in a panicked state.
Her prospective husband was a
professional athlete who had just
signed a guaranteed contract worth
over $20 million during the first two
years of their marriage, through
salary and endorsements. This was
no “locker room tryst” gone awry:
She was already the mother of his
five-year-old child, and was seven
months pregnant with his second.
The day before the couple was to
leave town for Las Vegas to wed, the
athlete’s high-profile New York
attorneys had faxed the prospective
wife a 30-page single-spaced
proposed PMA for her signature.
After quickly calming the prospective
wife and hurriedly reviewing the
document, we immediately set up a
conference call with the prospective
wife, the athlete, and his counsel. In
the intervening hours, we repeatedly
refused to speak with counsel alone,
continuing to insist that both parties
join us on the conference call.
Within seconds of the call starting,
the New York “suits” demanded our
client sign the onerous and obnoxious
document. Waiting until they were
done, I paused, then launched into
my own short speech. I spent a brief
moment addressing both parties
hoping to strike a chord of decency
in a young athlete, deafened by his
handlers’ “advice,” until then blind
to the consequences of their advice,
and the effect it had on his fiancée.
Following another brief silence, the
suits went after my client again; that
is, until the athlete told them to shut
up and hang up. To my delight, the
athlete realized what many
prospective spouses and what many
more practitioners never do: These
negotiations were about to cost him
the chance at a happy life with his
true love and the mother of his
children. He bested his emotionless
attorneys that afternoon and quite
smartly put his fortune at risk. His
respect, love, trust for his wife, and
22/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL
noble act impressed his future bride.
They remain happy ever after. (Well,
at least so far, so good.)
* * *
This was obviously a once in a
lifetime event, and yes, it could have
gone terribly wrong and been a
disaster. I mention it only with the
hope you might think back on it if
presented with such an opportunity to
do the “right thing.” Experienced
colleagues in the profession can
share these same types of war
stories. Situations range from
marginalized mail-order brides to
wretched dirty old men. Our mission
as attorneys is nonetheless clear.
Premarital agreements are easily
trivialized and discounted in
importance: They bring in miniscule
fees and invite disproportionate
liability. Negotiating PMAs is not a
joyful exercise. Exceptions prove
rules, and my happy stories aside,
clients cannot generally be counted
on to thank you for working hard on
their PMA. Whatever, we still owe
our clients a duty to advise when a
PMA is or is not necessary, to
understand the consequences of our
carelessness, and to use every ounce
of our skills and experience on this
sacred and dangerous mission. We
must devote all we have to PMAs,
same as we would to pricier and less
demanding exercises. Above all,
beyond concerns of professional
liability, we must be ever mindful of
our potential destructive powers, and
constructive possibilities. We should
avoid being the inappropriate cause
of the demise of a relationship,
particularly when that relationship
was entrusted to us by someone
intent on the chance for a long and
prosperous life.
If these thoughts and observations
leave you less than enthused, or if
you do not share these values or
comprehend why my approaches
might work for you, all I ask is that
you rethink the matter. Either way,
merely by engaging in such analysis
and reflection, and permitting
yourself to consider these issues, a
very serious practice area may be
elevated, inevitably for the good of
all. VBA
DECEMBER 2004/JANUARY 2005