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Recent Decisions in Family Law - June 2015

Note Your Appeal with Specificity

Forte v. Newsome, 65 Va. App. 1 (2015)

(From the Circuit Court of the City of Hampton)

A Father appealed a circuit court dismissal of his appeal from the juvenile & domestic relations district court for failure to post an appeal bond. In his appeal, he also argued that the Division of Child Support Enforcement (DCSE) should not have been able to participate in the case. The Court of Appeals affirmed on both issues.

In December of 2011, the juvenile court ordered the Father to pay $1,237 in monthly child support to the Mother. He was also ordered to pay $18,872.50 in child support arrearages ($200 per month). Less than two years later, the Father moved to modify his child support obligation based upon a reduction in his income. The juvenile court denied the motion, find the Father had not proved a material change in circumstances.

The Father then sought to appeal his Motion to the circuit court and the juvenile court required an appeal bond in the amount equal to the total support arrearage, $24,328.91. The Husband objected to the imposition of the bond, arguing that a denial of his motion to amend future support did not require one. The circuit court stated that a court order cannot be separated by issue for an appeal; it stated that the appellant could not appeal the denial of his Motion without also appealing the arrearage amount. Thus, the circuit court held that the appeal bond was required and jurisdictional.

In its review, the Court of Appeals stated that the default principle is that no appeal bond shall be required of a party appealing an order from a juvenile court (see Code ยง 16.1-296(H)); however, there are certain exceptions including that a bond is required for that portion of any judgment establishing a support arrearage.

The Court of Appeals held that the appellant bears burden of establishing what he is appealing. The Court found that the Father had never stated that he was only appealing one portion of juvenile court order prior to his appeal to Court of Appeals and thus, the Court held the imposition of the appeal bond was appropriate. The Court affirmed.

Regarding the involvement of DCSE, the Court of Appeals stated that once DCSE becomes involved in a case, it is a party and person seeking to modify must notify DCSE. However, the appellant did not provide a complete record to the Court of Appeals and thus, the Court was unable to determine whether DCSE had ever become a "party" to this case. Thus, the Court was unable to find reversible error.

Be Mindful of the Court's 21 Day Jurisdiction Deadline

Bracaloni v. Edge, No. 1722-14-2, 2015 WL 3460640 (Unpublished, June 2, 2015)

(From the Circuit Court of Spotsylvania County)

A Mother appealed an order affirming a custody and visitation agreement between her, the child's father, and the paternal grandparents. The Mother argued that the court erred in entering the agreement without considering the best interest of the child. This agreement had been signed by all parties, their counsel, and the guardian ad litem the court had appointed for the child.

The Mother, represented during the negotiations and execution of the agreement, submitted two letters, pro se, to the judge, requesting that he reconsidering his entry of the order incorporating that Agreement. The court accepted these letters as a Motion to Reconsider and set a hearing date within twenty-one days of the entry of the order.

On the date of the hearing, the Mother appeared and informed the court that she had retained new counsel who was unavailable for that date. The court denied the Mother's request for a continuance because it would have lost jurisdiction over the matter after twenty-one date. Thus, the Mother proceeded pro se and the Motion was denied. The Order was not entered until after the twenty-one day cut-off.

The Court of Appeals held that it was unable to review the circuit court's second order (that denying the Motion to Reconsider) as the lower court had no jurisdiction to enter it due to its entry more than twenty-one days after entry of the final order. Therefore, the Court of Appeals found the Mother's appeal was without merit.

Note Your Objections with Specificity

Huck v. Huck, No. 1604-14-1, 2015 WL 3560792 (Unpublished, June 2, 2015)

(From the Circuit Court of the City of Norfolk)

A Father appealed the entry of a Final Order of Divorce, arguing that the trial court had erred by violating his due process rights, approving an incorrect date of separation, failing to take notice of the Mother's substance abuse and mental health issues and placing "undue weight" on his criminal record. He also argued that the guardian ad litem appointed for the children did not perform a complete and thorough investigation and reported false information and facts.

On June 25, 2014, in a letter opinion, the circuit court stated it intended to enter an interim order awarding joint legal custody to the parties, primary physical custody to the Mother and liberal visitation to the Father. The court wanted a review within 90 days. On July 29, 2014, the circuit court entered a final order of divorce outlining a similar custodial arrangement. The Father signed this Final Order "Seen and Objected To" but wrote nothing further.

The Court of Appeals held that "Seen and objected to" without further explanation is insufficient to preserve an issue for appeal. The Court noted multiple opportunities given to a litigant to preserve an objection including on a motion to strike, during closing argument, on a motion to set aside a verdict or on a motion to reconsider.

In his appeal, the Father neglected to provide the Court of Appeals with a complete record. Thus, the Court was unable to review whether the Father had ever preserved these issues and could look only to the Final Order. Thus, the Court held the appeal was without merit.

Unless Specifically Authorized, Do Not Unilaterally Stop Paying Support

Miller v. Green, No. 1993-14-3, 2015 WL 3873010 (Unpublished, June 23, 2015)

(From the Circuit Court of the City of Lynchburg)

A Wife appealed entry of a court order, assigning error to the trial court's retroactive termination of spousal support which order had found that the Husband was permitted to cease paying spousal support unilaterally without seeking the court's approval. The case was reversed and remanded.

The parties were divorced in 2011 and the parties' property settlement agreement was incorporated but not merged into the final order of divorce. The parties' agreement required the Husband to pay monthly spousal support to the Wife through 2018 and quarterly spousal support to the Wife until she turned 58. However, support payments could end prematurely if either party died, the Wife remarried, or upon clear and convincing evidence that the Wife was cohabitating with another person in a relationship analogous to marriage.

On July 21, 2014, the Husband alleged a violation of the cohabitation provision and filed a "Motion to Reinstate" in order to enforce the final order and agreement. The Wife was served on July 29, 2014. The Husband last made a support payment in June of 2014.

During the case, the Wife admitted that she had been cohabitating with another man since March 29, 2012. The court's order was entered in October of 2014; the Order terminated spousal support retroactive to May 29, 2013 and declared that no arrearage existed. The trial court stated that it believed that Husband's unilateral action was permitted under the Agreement.

In Commonwealth v. Skeens, 18 Va. App. 154 (1994) which related to child support, the Court of Appeals had held that child support payments required under valid court order become vested as they accrue and court is without authority to make any changes to past due installments.

In this case, the Court of Appeals held that logic dictates that the same should apply in spousal support matters. In addition, the Court examined whether the termination provision in the agreement was self-executing. The Court held that that terms "cohabitation" and "situation analogous to marriage" were both ambiguous and had not yet been the subject of litigation of the Court of Appeals. Also, the use of the words "clear and convincing language" was evidence enough for the Court to find that that the provision was not self-executing. Therefore, the Court reversed the trial court's decision and remanded to the circuit court for further determination.

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