Does lack of co-parenting justify a modification of child custody in Virginia?

Does lack of co-parenting justify a modification of child custody in Virginia?

Not necessarily according to Piccirillo v. Atkins, Record No. 2064-09-4 (Va. Ct. App. 2010), an unpublished case in which the Virginia Court of Appeals summarily affirmed the Virginia Circuit Court’s ruling granting physical custody of the parties’ child to the father.  Although the Virginia courts generally encourage co-parenting between parents and would like a child to have a close and continuing relationship with two fit parents, a lack of communication and co-parenting on the part of one parent will not necessarily result in a change of custody from that parent to the cooperative parent, if the best interests of the child are served by being in the custody of the non-cooperative parent.

The mother alleged four counts in which the trial court erred: (1) awarding custody to the father in light of the evidence and Virginia Code §20-124.3 factors; (2) not considering the father’s unilateral and deceptive relocation to Maryland as a “material change of circumstances”; (3) awarding custody to father even after establishing that the father did not want to co-parent with the mother or respect her wishes; and (4) awarding custody to the father when that decision had the effect of relocating the child to Maryland. Upon review, the Fairfax County Circuit Court affirmed the trial’s court’s decision and dismissed the appeal.

The parties were married one year when their only child together was born. Three years later, the parties separated, and they divorced two years after their separation.  Just prior to the divorce, the trial court entered a custody consent decree, awarding the parties shared joint legal and physical custody over the child, with custody rotating on a weekly basis. Both parties subsequently remarried.  The father filed a motion for a protective order against the mother and her new husband, after the child told the father that his stepfather had been abusing him without any intervention from the mother.  The Juvenile and Domestic Relations District Court issued a preliminary protective order and appointed a guardian ad litem for the child.  Although, the JDR court denied the motion for a protective order a month later, the mother was not able to see her child until the final custody hearing four months later.  Nevertheless, the guardian ad litem recommended counseling for the child.

Both parents filed motions for a change of custody in the Virginia Circuit Court. In addition, the father filed motion requesting that the court name a particular licensed clinical social worker for the child over the mother’s objections of bias, and that a custody evaluation be made, and the court granted the father’s motions. The trial judge the custody issues in January 2009, and after a review of Virginia Code §20-124.3, the court granted temporary physical custody to the father, giving the mother a transitional visitation schedule.  On June 25, 2009, the trial court reviewed what happened in the case since January and held that the parties would have joint legal custody with the father having physical custody in Maryland.

According to the mother, the Virginia Circuit Court judge erred because of the evidence at trial, the custody factors in the Virginia Code, and the father’s refusal to co-parent with the mother. As the trial judge established, however, the child’s best interests always play the most important role in consideration. See Farley v. Farley, 9 Va. App. 326, 387 S.E.2d 794 (1990). Moreover, unless the trial court abused its discretion or the evidence contradicts the court’s ruling, the appeal must affirm the lower court’s order. See Brown v. Brown, 30 Va. App. 532, 518 S.E.2d 336 (1999).

In addressing the mother’s argument that the trial court did not consider the factors in Virginia Code Section §20-124.3, the Court noted that the trial court had discussed them at length both in the January hearing and in the review at the June 2009 hearing. The mother alleged that the court should have taken the father’s e-mails, refusals to consider her requests, and his “deceptive” move to Maryland to be with his pregnant wife (rather than commuting between the Maryland home and the home in McLean, Virginia) into account before ruling. The Fairfax Court, however, found that it had been and continued to remain in the father’s custody, because he was comfortable there, and he was not comfortable in his mother’s home because of his stepfather.

Responding to the mother’s appeal, the Court noted Ferguson v. Stafford County Dep’t of Soc. Servs., 14 Va. App. 333, 417 S.E.2d 1 (1992), which states, “Where the record contains credible evidence in support of the finding made by that court, we may not retry the facts or substitute our view of the facts for those of the trial court.”  While the mother contended that the custody arrangement and the relocation to Maryland was not in the child’s best interests, the Court found that though the mother and stepfather’s relationship with the child had improved, it was still in the child’s best interests to live with his father and stepmother. To support this decision, the Court pointed to Sullivan v. Knick, 38 Va. App. 773, 568 S.E.2d 430 (2002) which establishes that the trial court’s decision must remain in place, unless evidence demonstrates that the decision was plainly wrong.  See also Parish v. Spaulding, 26 Va. App. 566, 496 S.E.2d 91 (1998) (holding that when deciding whether a child’s relocation is proper, the court must consider the child’s welfare as the primary concern). Therefore, the Virginia Court of Appeals summarily affirmed the Circuit Court’s ruling and held that physical custody would remain with the father.

You should consult with your Virginia child custody lawyer regarding the impact of a lack of co-parenting in your case.

Does the Virginia Juvenile and Domestic Relations District Court lose jurisdiction after a divorce is filed in Circuit Court?

Does the Virginia Juvenile and Domestic Relations District Court lose jurisdiction after a divorce is filed in Circuit Court?

It depends. In Deline v. Baker, Record No. 2801-09-1, (Va. App. 2010), the Virginia Circuit Court held that the juvenile and domestic relations district court had not lost jurisdiction to determine support because the circuit court never assumed jurisdiction over those issues.   In Virginia, both the Circuit Court, which has exclusive original jurisdiction over divorce cases, and the Juvenile and Domestic Relations District Court, which hears family law matters but not divorce, have concurrent or shared jurisdiction over child custody, child visitation, child support and spousal support or maintenance.  In certain cases, the Juvenile and Domestic Relations District Court can be divested of its jurisdiction, or power to hear a case, by the filing of a matter at the Virginia Circuit Court level.

In the Deline case, the Juvenile and Domestic Relations District Court had ordered the father to pay $233.20 per week for the support of his two minor children, and the Court, by an order in September 2002, set the arrearage at $6,455.44 to be paid in weekly installments. On October 22, 2002, the mother filed a bill of complaint with the Circuit Court of Virginia Beach requesting a divorce from the father, but nothing in the complaint addressed child or spousal support or a determination of custody or visitation.

The divorce case was referred to a commissioner in chancery, and the mother testified that she wished all outstanding orders in the juvenile case to “remain in place.” She also testified that the father owned $8,525,96 in arrearage for child support and $1,126.55 for medical expenses, yet she sought no judgment for those unpaid sums. In the final decree of divorce, the Circuit Court ordered that the mother should have custody and the father should have visitation rights, that the mother should pay the monthly medical insurance but all non-covered expenses were to be split equally, and that all further matters regarding child support, custody, and visitation should be transferred to the Virginia Beach Juvenile and Domestic Relations Court pursuant to Virginia Code §20-79(C).  The mother signed the final decree, saying “I Ask for This.” As a result of the final decree, the juvenile court on three separate occasions found the father in contempt, set arrearages, and sentenced the father to incarceration.

The mother subsequently filed a show cause motion with the juvenile court to establish the arrearages of the father. In response, the father filed a motion to dismiss and a motion to vacate, claiming that the Circuit Court retained jurisdiction over child support, and therefore, the juvenile court did not have the jurisdiction to enter contempt orders. The Virginia Juvenile and Domestic Relations District Court judge denied the father motions, found him in contempt, and established the arrearage payment at $53,021.32. Father appealed to the Circuit Court, and the mother filed a motion for summary judgment, alleging that the Circuit Court had not made any adjudication as to child support and left that jurisdiction with the Juvenile Court.

In his appeal, the father argued that in the divorce action the Circuit Court assumed jurisdiction over child support, thereby divesting the Juvenile Court of any jurisdiction.  In reviewing the evidence, the Circuit Court reviewed Virginia Code §16.1-244(A), which states, “When a suit for divorce has been filed in a circuit court, in which the custody, guardianship, visitation or support of children of the parties or spousal support is raised by the pleadings and a hearing, including a pendente lite hearing, is set by the circuit court on any such issue  . . . the juvenile and domestic relations district courts shall be divested of the right to enter any further decrees or orders to determine custody, guardianship, visitation or support when raised for such hearing and such matters shall be determined by the circuit court unless both parties agreed to a referral to the juvenile court.” In this case, the Court found that the final divorce decree addressed child support, arrearages, medical insurance and non-medical expenses, and transferred to the juvenile court all matters relating to the enforcement and/or maintenance of child support, custody, and visitation. As the Court pointed out, however, the mother never prayed for any relief on these issues.

To review the matter, the Court looked to the case law and established that according to Potts v. Mathieson Alkali Works, 165 Va. 196, 181 S.E. 521 (1935), the court cannot rule on or render judgment on any matter not in the pleadings. Furthermore, the Court established that based on Rogers v. Damron, 23 Va.App. 708, 479 S.E.2d 540 (1997), a court only has jurisdiction over the subject matter if it has jurisdiction over the cause of action and the relief sought. As the Court pointed out in Deline, it did not have subject matter jurisdiction to grant relief not sought by the mother in the divorce action. Therefore, according to Reid v. Reid, 24 Va. App. 146, 480 S.E.2d 771(1997), “The absence of a specific request for an adjudication of . . .  support precluded the court from obtaining jurisdiction over that subject matter.”

Although the father argued in his brief that the mother did ask for relief by signing the final divorce decree with “I Ask for This,” the Court dismissed his argument. As the Court noted, a court should not elevate an endorsement of an order to a prayer for relief in a pleading. See Baylor v. Commonwealth, 190 Va. 116, 56 S.E.2d 77 (1949). See also Burch v. Grace Street Bldg. Corp. 168 Va. 329, 191 S.E. 672 (1937).  In addition, the Court ruled that the father’s allegation that the mother was estopped from raising subject matter jurisdiction failed. According to Lucas v. Biller, 204 Va. 309, 130 S.E.2d 582 (1963), the court’s jurisdiction cannot be obtain by consent of the parties, waiver or estoppel. Here, the Court held that the Circuit Court had no subject matter jurisdiction to make determination concerning child support in the final divorce decree; therefore, those portions were null and void. As a result, the Juvenile Court still retained the jurisdiction to enter the contempt orders, and the support order was not terminated by operation of law. Therefore, the Circuit Court affirmed the Juvenile Court’s contempt orders were valid, and the father’s appeal failed.

You should consult with your Virginia family law lawyer concerning the appropriate court to pursue or defend your family law matters.

Is an order reinstating a Virginia divorce case after dismissal for inactivity an interlocutory order or a final order?

Is an order reinstating a Virginia divorce case after dismissal for inactivity an interlocutory order or a final order?

In the case of Bell v. Bell, CL 08-1083, the Virginia Circuit Court held that the previous order reinstating the divorce case was interlocutory and could be corrected by the trial court.

In Bell, the case began in June of 1995 when the parties filed for divorce.  In 1997, the action was referred to a commissioner in chancery, and two years later, the commissioner was made judge pro tem (a lawyer appointed by a judge to act as judge when the judge is disqualified or unable to try the case) in accordance with Virginia Code Section 17.1-110.  In 2005, the Court dismissed the action under Virginia Code §8.01-335(B) because there had not been an order or a proceeding in the past three years.

After the case was dismissed, the judge pro tem entered the wife’s ex parte order that the case be reinstated to resolve questions of equitable distribution, permanent spousal support, and attorney fees.  In April 2005, the Virginia Circuit Court judge examined the action of the judge pro tem in reopening the case and reaffirmed the appointment of the judge. For the next three years, both parties neglected to take any action in the proceeding, and the Virginia Circuit Court once again dismissed the case under Virginia Code §8.01-335(B).

In September 2008, the court reinstated the case upon the Wife’s ex parte order and reappointed the judge pro tem in order to resolve the question of contempt for failure to pay spousal support, an increase in spousal support, and equitable distribution of the martial property. The husband filed a motion to dismiss and nullify all orders of the case in October 2009, and the wife refused to respond. Upon examination, the Court found that no divorce had been granted to the parties. Pendente lite orders, however, had been entered in 1995 that enjoined the parties from disposing of any martial asset or demonstrating offensive conduct and also requiring payment of spousal support. That temporary spousal support had later been reduced in December of 1995. Furthermore, the court had entered an order enjoining the husband from making any additions to the marital home. Finally, in December 1999, the court overruled a plea of satisfaction and accord, and according to the record, that ruling was the last action taken in the case.

The husband argues that under Virginia Code §8.01-335(B), the parties must be given notice prior to the Court’s reinstatement of a case after its dismissal for inactivity.  According to his interpretation of the statute, the Court’s order reinstating the case and all subsequent orders were null and void because he did not receive any notice. Furthermore, he alleges that the appointment of the judge pro tem was null and void under Virginia Code §17.1-110 because he received no notice of that action as well.

The Court in Bell, however, rejected the Husband’s arguments. The Court affirmed that an order is void ab initio if the court did not have the jurisdiction to make that order. If the Court does have the jurisdiction to make that order, however, it is only a reversible error, and the order is voidable. See Hicks v. Mellis, 275 Va. 213, 219 (2008). Here, the Court ruled the jurisdiction to make the order was correct; therefore, the order to reinstatement the case was only a voidable error.

As the court affirmed, a voidable error can be correct in two ways: the parties can appeal to the Court of Appeals of Virginia or, if the case has not ended in a final order (but rather an interlocutory order), the trial judge can correct the error. See Freezer v. Miller, 163 Va. 180 (1934). See also Robbins v. Robbins, 48 Va. App. 466 (2006). In this case, the order reinstating the case in 2005 and reappointing the judge pro tem was an interlocutory order. The court determined that this order was improperly entered without notice to the parties, and it was vacated. Furthermore, the court ruled that all orders after the reinstatement were void ab initio because the court did not have the jurisdiction to make any orders in a discontinued case. Therefore, the court held the case had ended but stated that if the parties wished to obtain a divorce, they could file a new divorce action.

You should consult with your Virginia divorce lawyer concerning whether a given order is interlocutory or final.

Will a Virginia court reduce support obligations for a high income earner who accumulates substantial savings?

Will a Virginia court reduce support obligations for a high income earner who accumulates substantial savings?

Possibly, according to an unpublished opinion by the Virginia Court of Appeals in Trump v. Trump, Record No. 2475-09-4, (Va. App. 2010)  where a reduction in husband’s income might have constituted a material change in circumstances justifying a reduction in spousal support and child support, even though the husband was able to save a substantial amount of money each year.

The parties were married for twenty years and separated for nearly two years, before divorcing in 2007. In the final divorce decree, the Virginia Circuit Court ordered husband to pay spousal support of $4,500 per month, and his child support of $1,961 per month, based on income of $21,000per month.  A year later, the divorce court judge modified husband’s spousal support obligation to $3,670 and his child support obligation to $1,582 per month.

A year and a half later, the husband filed a motion to modify support further downward. When the trial court heard the evidence, husband testified that his income in 2007 was $21,000 per month, but by 2009 it had decreased to only $17,380 per month. After deliberation, the Virginia Circuit Court judge determined that husband had not undergone a material change in circumstances because he was still able to save almost $100,000 a year. Therefore, the court granted the wife’s motion to strike and dismissed the husband’s motion to modify support.

On appeal, the husband argued that the trial court erred by failing to grant his motion for reduction of his support payments based on his material change of circumstances.  The Court of Appeals recognized that the standard for review before a motion to strike requires viewing facts in the most favorable light for the plaintiff. According to James v. City of Falls Church, 280 Va. 31, 694 S.E.2d 568 (2010) (quoting Austin v. Shoney’s Inc., 254 Va. 134, 486 S.E.2d 285 (1997), “[A] trial court is required to accept as true all evidence favorable to a plaintiff and any reasonable inferences that may be drawn from such evidence. ‘The trial court is not to judge the weight and credibility of the evidence, and may not reject any inference from the evidence favorable to the plaintiff unless it would defy logic and common sense.” Under that standard, the court ruled that the trial court erred by concluding that the husband failed to present a prima facie case for a reduction in support based on his change in income. As Virginia Code §20-108 provides, the court may modify a decree of child or spousal support if the party seeking the modification establishes that the material change of circumstances occurred since the last hearing and justified an alteration. See Hiner v. Hadeed, 15 Va. App. 575, 425 S.E.2d 811 (1993). See also Furr v. Furr, 13 Va. App. 479, 413, S.E.2d 72 (1992).

In this case, the Virginia Circuit Court determined that the evidence established that the husband had suffered an income reduction from $21,000 per month in 2007 to $17,380 per month in 2009. Moreover, even though he had an increased income in 2008 because his businesses had conserved cash, his net income had decreased from 2007 to 2009. The appellate court held that the trial court erred by focusing on the 2008 figures and the savings deposits rather than reviewing the evidence in the most favorable light to the husband. As a result, the Court reversed the trial court’s decision and remanded the case for further proceedings.

You should consult with your Virginia divorce lawyer concerning the likely prospects for modifying a support obligation in your case.

Is a husband who unilaterally reduces his child support payments when one of two children reaches the age of majority in contempt of court in Virginia when no reduction is expressly provided for in the separation agreement?

Is a husband who unilaterally reduces his child support payments when one of two children reaches the age of majority in contempt of court in Virginia when no reduction is expressly provided for in the separation agreement?

Not necessarily, according to Hughes v. Hughes, No. 2602-09-4, where the Court of Appeals of Virginia reversed the Virginia circuit court’s finding that husband was in contempt of court, holding that while the husband owed an arrearage on child support payments, he had not willfully violated the Property Settlement and Separation Agreement (PSA).

At issue in this case was a dispute over child support owed following the divorce of the parties, who at the time of the divorce had two minor children. The Property Settlement and Separation Agreement (PSA) that had been incorporated into the divorce decree provided that the father would provide for the minor children in the amount of $1,175.00 per month until the children reached the age of 18 or up to 19, if they had remained in the mother’s home and were attending high school.  The separation agreement also included a provision for attorney’s fees to either party in the event of a successful enforcement of the agreement, or a successful defense to an action to enforce the agreement.

When the oldest child turned 18 years old, the father unilaterally cut his monthly child support payments in half.  The wife petitioned for a rule to show cause.  At the show cause hearing in the Virginia Circuit Court, the husband explained that he did not seek the court’s approval before reducing the amount of child support because he did not think it was necessary. The Circuit Court judge found that the property settlement agreement was incomplete, as it did not provide a method for calculating the amount of child support payments upon the emancipation of the first minor child, and the court would not supply the missing language for the parties.  The Virginia Circuit Court judge noted that he might not have found the husband in contempt of court if the husband had reduced child support in accordance with the Virginia child support guidelines under Virginia Code Section 20-108.2, which generate the presumptively correct amount of child support in a child support dispute.  Consequently, the Court found the husband in civil contempt, but allowed him to purge himself of contempt by paying the arrearage based on the full amount of child support.  The Virginia Circuit Court judge did note that it was a “close case” on the contempt issue because of the ambiguity of the agreement at issue.

On appeal, the husband argued that Virginia Code §20-109 permitted him to modify the child support amount without consulting the court or seeking permission. He argued that the section regarding incorporation should apply: “Unless otherwise provided for in such agreement or decree incorporating such agreement, such future modifications shall not require a subsequent court decree. The Virignia Court of Appeals rejected this argument, claiming that this provision only applies when the method of calculation is included in the agreement. See Shoup v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001)(en banc).  The Court of Appeals determined that because the language of the PSA was self-executing, the husband had to obtain court approval prior to modifying any support. See Goodpasture v. Goodpasture, 7 Va. App. 55, 371 S.E.2d 845 (1988) (holding that the proper remedy is to apply to the court for relief). See also Johnson v. Johnson, 1 Va. App. 330, 338 S.E.2d 353 (1986). Therefore, the Court affirmed the finding of the circuit court in holding Mr. Hughes to the payment of the arrearage.

The husband also argued that the trial court erred by finding him in civil contempt. The Court of Appeals reviewed the standard for contempt, establishing that the court may hold an offending party in contempt for acting in bad faith or willful disobedience of its order. See Alexander v. Alexander, 12 Va. App. 691, 406 S.E.2d 666 (1991).  However, the Court also noted in Winn v. Winn, 218 Va. 8, 235 S.E.2d 307 (1977) that contempt should only be found where a party violated the express terms of a court order.  Here, the Court of Appeals held that the husband, although he had willfully violated the divorce decree, had not violated an express duty of the PSA. Accordingly, the Court reversed the trial’s court determination.

Finally, the wife argued that she should receive attorney’s fee based on the provisions of the PSA. The Court of Appeals acknowledged that once the parties enter a valid and enforceable PSA, the judge may only use the terms of the agreement to make that determination. See Rutledge v. Rutledge, 45 Va. App. 56, 608 S.E.2d 504 (2005). The Court of Appeals in Hughes v. Hughes held that since the PSA in this case provided that the wife was entitled to “any reasonable expenses,” and, consequently, the trial court erred by refused to award them to the wife.

You should consult with your Virginia child support lawyer concerning any reduction of child support upon your child reaching the age of majority.

How does a Virginia Circuit Court judge make an equitable distribution award for a couple, who do not present sufficient evidence at trial, and who are suffering economic hardships such as job losses, repossession, and a bankruptcy?

How does a Virginia Circuit Court judge make an equitable distribution award for a couple, who do not present sufficient evidence at trial, and who are suffering economic hardships such as job losses, repossession, and a bankruptcy?

In the case of Whiteside v. Whiteside, CL09-1545, the Virginia Circuit Court judge simply declined to grant equitable distribution of the marital assets and allocation of the debts given the lack of evidence, but reserved wife’s right to receive spousal support at some point in the future, as permitted by Virginia Code Section 20-107.1(D).

Applying the dictates of Virginia Code §20-107.3, the Court considered all of the equities and made its determination regarding the assets of the parties.

First, the Virginia Circuit Court judge examined the real estate holdings the parties possessed during their marriage.  The evidence revealed that the parties had borrowed $243, 500.00 to purchase a house, which they refinanced for $283, 000.00 in 2007. However, they ceased making payments on the lien in October 200, and after missing 18 payments, the bank made a foreclosure sale in February 2010. The court noted that the deficiency could be considered a marital debt, but did not have evidence to determine whether a deficiency existed.  The wife had discharged her personal liability when she filed for chapter 7 bankruptcy.  The husband indicated that he intended to file bankruptcy and was upset that wife did not file a joint bankruptcy case with him. Moreover, while the parties owned a time-share condominium in Winter Garden, Florida, the parties did not present any evidence regarding its value. Neither party wanted the property or introduced sufficient evidence to determine its value or the debt against it.  Consequently, given the lack of evidence and the judge’s questionable conclusion that wife had “bankrupted” the debt [as contradicted by 11 U.S.C. 523(a)(16), which excepts from discharge post-petition homeowner association dues and condominium assessments for as long as the debtor or trustee has a legal, equitable, or possessory interest in the property, the court declined equitable distribution of the property and debt, and instead left the parties to their civil law remedies.

Second, the Court found that all of the credit accounts of the parties were separate. The husband testified about the balance on two credit cards, but introduced no documentary evidence in support of his testimony showing a breakdown of the debt or the balances on the date of separation.  The wife denied that the balances reflected marital debt.  The Court found that husband failed to meet his burden of persuasion, declined to determine whether the husband’s debt was marital debt and refused to allocate the debts, in accordance with the Virginia Supreme Court opinion of Gilliam v. McGrady, 279 Va. 703 (2010) .

Third, in regards to household furniture, goods, and furnishings, the wife testified that the husband had already removed personal property from the former marital residence.  Neither party introduced into evidence an inventory of the personal property with values.   The husband argued that the articles he took should not be considered an equitable distribution. The court, however, again to exercise its equitable distribution powers due to the lack of evidence.

Fourth, the couple presented evidence regarding the vehicles they owned. One of husband’s luxury vehicles had been repossessed due to a failure to make the monthly payments. Another luxury vehicle worth $3,775 was sold by husband for only $600, without any explanation from husband at trial.  The wife sold husband’s inoperable pickup truck for $150 when she was notified that the vehicle had to be moved or towed by VDOT.  Wife owned a 1997 Toyota 4Runner valued at $4,420.00. Considering the equities of the parties, the Court held that the wife would keep her vehicle and the husband was allowed to keep the proceeds from the sale of his luxury vehicle.

Finally, the court examined the bank accounts, request for attorney fees, and determination of spousal support.  The court found no evidence that the parties held any joint accounts. The wife had cashed in her profit sharing account for use for the children’s college costs, and the husband cashed in his retirement from both VDOT and Wal-Mart. And although the husband testified that the parties owed Roanoke County $328.00 in taxes and $506.00 to the IRS, the court could not find any documentation to support these figures and declined to make an equitable distribution.  In considering attorney fees, the court declined both parties’ requests for awarding costs to the other. Furthermore, while the court determined that both parties had need of spousal support, neither could support the other. The wife, after being unemployed for three months, had found a job. Yet even with her job, she had a deficiency in her budget in providing for herself and her children. The husband was not voluntarily unemployed because he made a showing that he was continually looking for a job while living on unemployment. However, because of husband’s unemployment, the court reserved wife’s right to receive support in the future.

You should consult with your Virginia divorce lawyer concerning how your economic difficulties will impact equitable distribution in your divorce case.

Where a spouse is served by publication in Virginia, will a divorce court allow an evidentiary hearing after dismissal based on a failure to file a timely answer following the re-opening of the case?

Where a spouse is served by publication in Virginia, will a divorce court allow an evidentiary hearing after dismissal based on a failure to file a timely answer following the re-opening of the case?

Not in Sharp v. Sharp, No. 2712-09-2, (Va. Ct. App. 2010), where the Virginia Court of Appeals summarily affirmed the ruling of the Circuit Court for the City of Hopewell, Commonwealth of Virginia, on wife’s second appeal of a dismissal.

The husband and wife were married for 21 years before the husband filed for a divorce.  The wife was served by publication, a process allowed in Virginia under Virginia Code Section 8.01-317 where a spouse whose whereabouts is unknown is notified of the divorce proceeding by an advertisement in the newspaper and/or posting at the courthouse door.  While service by publication can be used to obtain a divorce, it will not support a money judgment for support or equitable distribution of property because that kind of service does not confer personal jurisdiction over the defendant absentee spouse.  Six months after the divorce was granted, the wife filed a motion to re-open the case and set aside the default judgment.  The City of Hopewell Circuit Court judge granted wife’s motion and allowed her twenty-one days to file an answer.  The wife failed to file an answer in the 21 days and the husband filed a motion to dismiss, asking the Court to re-affirm the final divorce decree.  In response, the wife filed a responsive pleading opposing the husband’s motion, along with her late answer and counterclaim. Upon evaluating the motions, the trial court dismissed the case and affirmed the final divorce decree.  The wife subsequently filed two more motions to re-open the case and appealed, and in November 2009, the trial court again dismissed the matter. The first appeal was dismissed because wife failed to file a timely notice of appeal.

On appeal for the second time, wife argued that the trial court erred by dismissing the case and by abusing its discretion in not extending the time for her to file her answer to the complaint. The Virginia Court of Appeals ruled that wife’s claims were barred by res judicata. Res judicata is a legal doctrine that prevents a party from relitigating an issue already decided by a court on its merits.  ,  See Bates v. Devers, 214 Va. 667, 202 S.E.2d 917 (1974) .  The Supreme Court of Virginia, in the case of Lofton Ridge, LLC v. Norfolk Southern Rwy. Co., 268 Va. 377, 601 S.E.2d 648 (2004) described the application of the doctrine of res judicata as follows: “When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings, or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters, a new suit on the same cause of action cannot be maintained between the same parties.”  In this case, wife had previously appealed a decision of the Circuit Court of the City of Hopewell to the Virginia Court of Appeals on the grounds of error.  In her first appeal, wife had failed to file a timely notice of appeal.  The Court determined that wife’s second appeal was barred by the doctrine of res judicata, and refused to allow her to litigate again the issues she could have raised in her first appeal.

On appeal, wife also contended that the trial court erred in not conducting an evidentiary hearing on equitable distribution, child and/or spousal support, and attorney’s fees.  The Virginia Court of Appeals court could not determine whether wife had preserved this issue for appeal because she signed the final order “seen and objected to” with a statement of facts that did not reveal wife’s argument.  The appeals court noted that neither party presented any evidence or testimony at trial and that the wife failed to meet her burden in showing that the trial court had committed a reversible error. See Lutes v. Alexander, 14 Va. App. 1075, 421 S.E.2d 857 (1992). Because the appellate court will not search for errors or correct a party’s deficiencies to allow an appeal (See Buchanan v. Buchanan, 14 Va. App. 53, 415 S.E.2d 237 (1992) , the court held it would not address the final two questions presented in this appeal.

The appeals court did grant husband a reasonable amount of his attorney’s fees on appeal, using the standard of O’Loughlin v. O’Loughlin, 23 Va.App. 690, 479 S.E.2d 98 (1996).

You should consult with your Virginia divorce lawyer concerning the implications of setting aside a divorce decree based on service by publication.

Is a private school application a sufficient material change in circumstances in Virginia to modify a child support order?

Is a private school application a sufficient material change in circumstances in Virginia to modify a child support order?

Not in In re Marcel Minor, CL10-744, where the Richmond City Circuit Court judge held that the mother filing for the support change had not meet her burden of proof in establishing a material change in circumstances.

According to Virginia law, a parent can move for a modification of a child support order; however, as the Virginia Court of Appeals affirmed in Crabtree v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993), “Once a child support order has been entered, only a showing of a material change in circumstances will justify modification of the support award. The moving party has the burden of proving a material change by a preponderance of the evidence.”   This is the same standard for changes in child custody and visitation.  Thus, although the Virginia court has continuing jurisdiction over child custody, child visitation, and child support, the court will not allow a party to retry essentially the same case again and again, the party must first show that there has been a material change in circumstances justifying a change in custody, visitation, or support.  Both the moving party and the defending party must be prepared to address this threshold determination in any hearing on a motion to modify an existing order.

In this situation, the mother argued that her son’s application to private school qualified as a material change in circumstances warranting an increase in the father’s child support obligation. As the Richmond City Circuit Court judge recognized, a parent’s decision to enroll a child in private school should not be considered a cost in fixing child support obligations. See Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994)  . However, the judge did observe that an obligation to pay for private school could arise if the party demonstrated a substantial need of the child to attend private school and the parent has the ability to pay. See Joynes v. Payne, 36 Va. App. 401, 551 S.E.2d 10 (2001). See also Ragsdale v. Ragsdale, 38 Va. App. 283, 516 S.E.2d 698 (1999).  Moreover, the Court noted that under the deviation standards in Va. Code §20-108.1, the expenses for private school enrollment could become a factor in determining whether to adjust the presumptive child support figure

Here, the Court found that the mother’s evidence did not meet the burden of proof by a preponderance of the evidence.  Because the application for private school was merely pending and the expenses listed only estimates of the future arrangement, she had not shown a material change in circumstances to warrant a child support modification order. Therefore, the Court held that the prior order and support level would remain the same.

You should consult with your Virginia family law lawyer to determine if a material change in circumstances justifies a change in child custody, child visitation, or child support in your case.

 

Will a wife be entitled to receive a portion of her husband’s Virginia Retirement System pension beyond her portion of the marital share of the Educational Employees Supplemental Retirement System identified in the separation and property settlement agreement?

Will a wife be entitled to receive a portion of her husband’s Virginia Retirement System pension beyond her portion of the marital share of the Educational Employees Supplemental Retirement System identified in the separation and property settlement agreement?

Not in Roth v. Roth, Record No. 1332-10-4, where the Virginia Court of Appeals upheld the trial court’s decision that the pension payments were limited, and ex-wife could only receive those benefits that were originally contemplated by the parties in the agreement.

According to the Separation and Property Settlement Agreement, the parties agreed that wife would receive a monetary award from husband’s pension benefits in the Educational Employees Supplemental Retirement System. The agreement stipulated that the sum would equal forty percent of each payment or disbursement received, multiplied by a fraction representing the marital share, i.e., the numerator being the number of years the parties were married and the denominator being the total number of years of county employment. Furthermore, the agreement stated that it would serve as the authorization to the Virginia Supplemental Retirement System (the administrator of the pension benefits for the Fairfax County School Board) that wife should receive her share of the benefits upon payment of the pension plan.

After the parties submitted the agreed Qualified Domestic Relations Order (QDRO) naming wife as an alternate payee of husband’s pension interests, counsel for the Educational Employees Supplemental Retirement System (ERFC) of Fairfax County objected, insisting that the under the then-controlling Virginia Code provisions (§51-112 and §51-127), wife could not directly receive payments. However, these Virginia Code sections were later changed, and the applicable provisions under Title 51, section 51-127.1 were deleted.

As a result of the change in the Virginia Code, the Virginia circuit court judge entered an Amended Qualified Domestic Relations Order providing for wife’s interest payment in the Educational Employees Supplemental Retirement System (ERFC) on July 8, 1997. Furthermore, she would directly receive payments, in accordance with Va. Code §20-107.3 (G)(1). Effective July 1, 1999, she would receive payments representing forty percent interest in the marital share of Mr. Roth’s benefits under the ERFC. On June 30, 1999 Mr. Roth retired, and since retirement he has received benefits from the Virginia Retirement System instead of the ERFC due to his employment through the Fairfax Board of Educational.

In this case, Mrs. Roth argues that she should receive a fractional interest in Mr. Roth retirement as a result of his employment with the Fairfax Educational Board and the participation in the Virginia Retirement System. In determining this question, the Court noted the words of the General Assembly, stating, “Legislation which effects a change in the amount of the retirement benefit other than a post-retirement supplement shall be construed to effect only the benefits of those persons who qualify for retirement allowance on or after the effective date of the legislation.” Va. Code §51.1-124.8.

Mrs. Roth alleged that, even though the Virginia Retirement System was not in existence at the time the parties created their separation agreement, she should receive a portion of these payments because they constituted “retirement benefits through his employment.” Her counsel alleged that the word “including” in the agreement was a term of enlargement, thereby conveying other benefits not specifically enumerated. See Nextel WIP Lease Corp. v. Saunders, 276 Va. 509, 517, 666 SE2d 317 (2008).

The Court, however, rejected this argument, holding that the retirement benefits were an identifiable property interest rather than a mere expectancy. Furthermore, the Court held it was the existence of the retirement pension resulting from Mr. Roth’s employment that the parties specifically contemplated in the Agreement and nothing beyond those payments. Therefore, because the testimony supported the conclusion that the parties only contemplated those specific payments, the Court held that Mrs. Roth would only be entitled to receive pension benefits from his employment, not those upon his retirement.

You should consult with your Virginia divorce lawyer concerning your rights in your spouse’s retirement plans.

 

What remedy exists for the division of the residence of an unmarried couple in Virginia?

What remedy exists for the division of the residence of an unmarried couple in Virginia?

When a couple divorces in Virginia and are unable to agree on the division of their marital property and the allocation of their marital debts, either party can request the court to settle these matters under Virginia’s equitable distribution statute, found in Virginia Code Section 20-107.3 .  What happens to the property of a couple who live together, but are not married?  The typical remedy would be a request for a partition of the property, supported by Virginia Code Section 8.01-81. In Steenburgh v. Weaver, Case No. CR096000685-00, the Hanover Circuit Court recognized the right of the female partner to compel partition, and allotted the whole real property to her, with an award of contribution to her male partner.  Although the case does not directly concern the interplay between bankruptcy and divorce law in Virginia, it does shed light on the remedies available to a couple living together without marriage.

At issue in this case was a single-family residence located in Mechanicsville, Hanover County, Virginia, which the parties had acquired on November 30, 2000.  At that time, Ms. Steenburgh and Mr. Weaver were engaged in a romantic relationship, and over the next few years they resided in the Mechanicsville house and had a child together. After their relationship deteriorated, however, Ms. Steenburgh filed an action requesting partition.

According to the Hanover Court, the rule is if the property can be divided, then any co-owner can request partition. (See 14A Michies’ Jurisprudence, Partition, §19 (2008)).  Furthermore, the Court used the Virginia Code in determining how the partition should be made and what to do when partition was not the best option. Under Va. Code §8.01-83, “When partition cannot be conveniently made, the court may allot the whole to any party who will take it and pay in money their respective shares to the others, it may sell the whole and divide the proceeds, or it may sell a part and divide the rest.”

In this situation, the Court held that because the property at issue was a single-family residence in a subdivision, it could not be partitioned easily, and, thus, allotment in whole was the most appropriate remedy. To determine who would receive the allotment, the Court examined the facts and established that Ms. Steenburgh had provided for the down payment of the residence in the amount of $42,000. Furthermore, the Court found that Steenburgh had provided for significant improvements and upgrades made on the property.  Mr. Weaver, on the other hand, paid the mortgage and casualty insurance since the procurement of the property. Steenburgh alleged, however, that her contributions had transformed the house into a home, and the Court held that her argument was the most persuasive in why she should retain the property.

The Court concluded here that because Weaver had paid the principal in the amount of $22,109.04, his share should be compensated for the sake of fairness and equity. Furthermore, his contributions of $5,769.29 for insurance required compensation from Ms. Steenburgh. Therefore, the Court held that while Steenburgh retained the property, she had to compensate Weaver in the amount of $24,993 for his respective share of contributions to the residence.

You should consult with your Virginia family law lawyer concerning the division of property acquired in a non-marital domestic partnership.