I. Anthony v. Skolnick-Lozano, (No. 1270-13-2, March 4, 2014), Published
II. Weedon v. Weedon, (No. 1378-13-2, May 6, 2014), Unpublished
III. Cleary v. Cleary, (No. 1343-13-4, May 13, 2014), Published
These Virginia Court of Appeals cases clarify pre-marital contributions to another spouse’s separate property (Anthony), the 21-day limit on equitable distribution (“ED”) appeals (Weedon), [nonexistent] appellate jurisdiction over a show-cause denial (Weedon), and the mandatory content of time-delimited spousal support orders (Cleary).
When a multi-part statute has leading sections that specifically apply before marriage and after marriage, [20-107.3(A)(1) and (A)(2)]; and a subsequent statutory section that is silent about when it applies; then does the later section [20-107.3(A)(3)(g) deal with before marriage, after marriage, or both? Which period or periods of time do you think should apply?
Anthony answers this question logically, and convincingly. Section 20-107.3(A)(3)(g) must apply before and after marriage. No statutory wording justifies disregarding traced contributions to another party’s separate property before the marriage, as the Anthony wife contends.
The Anthony husband also misconstrues 20-107.3(A)(3)(g). He claims all he has to do to recover a $14,000.00 pre-marital contribution to wife’s house is prove he paid the money. That is not enough, obviously.
The statute says:
“When the separate property of one party is commingled into the
separate property of the other party, or the separate property of
each party is commingled into newly acquired property, to the
extent the contributed property is retraceable by a preponderance
of the evidence and was not a gift, each party shall be reimbursed
the value of the contributed property in any award made pursuant
to this section.”
Code § 20-107.3(A)(3)(g) (emphasis added).
Wife did not contend husband’s money was a gift. But husband was entitled to get back only the appreciation or depreciation of the contributed property, not the contributed property itself. Think of it this way: The $14,000.00 was an investment, the value of which might go up or down. In fact, the house burned down after the marriage, and nobody introduced evidence of how much wife received in insurance proceeds.
A home reduced to ashes is almost definitely worth a different amount at ED than when husband contributed money. This is not rocket science. If the Virginia legislature had intended money-in to equal money-out, they would have said each party shall be reimbursed the contributed property instead of the value of the contributed property. Read the statute!
Weedon appears to be an equally straightforward failure to understand a plain, unambiguous statute – this time regarding the appeal of a show cause outcome.
At ED, marital real estate is awarded to wife. Husband refuses to sign a deed effectuating the property transfer. Wife files a rule to show cause, and at the hearing the trial court declines to hold husband in contempt.
Wife appeals, claiming the judgment awarded her property and husband wouldn’t convey it. It looks like a no-brainer to win this appeal, right? Not so fast!
The statute, Code Section 19.2-318, says that:
“[f]rom a judgment for any civil contempt of court an appeal may be taken to the Court of Appeals.” (Emphasis added.)
Wife failed to obtain a finding of contempt. The time to appeal the ED award expired. And the real property is still in both names.
The court of appeals fits the denial of relief squarely within the Virginia Supreme Court ruling in Jenkins:
In Jenkins, the Supreme Court held that, “[i]f the General Assembly intended to create appellate jurisdiction to review a judgment refusing to hold a person in civil contempt, it would have used a phrase [in Code § 19.2-318] such as ‘judgment concerning’ or ‘judgment regarding’ any civil contempt.” Id. at 47-48, 704 S.E.2d at 583 (emphasis added). The Supreme Court “conclude[d] that Code § 19.2-318 does not provide appellate jurisdiction for either this Court or the Court of Appeals to review the judgment of the circuit court dismissing the rule to show cause and refusing to hold [a party] in civil contempt of court.” Id. at 48, 704 S.E.2d at 583.
This blogger agrees that a “judgment for any civil contempt” means no appeal absent a contempt finding. But despite Jenkins and Weedon being correct decisions, the Code section that they interpret raises a major concern:
What if the trial judge erred, and husband really is in contempt?
If the trial judge erred, wife is in an impossible situation. She is deprived of the benefit of an ED award favorable to her, and she cannot appeal. Until she dies or enters into a sales contract, no material change in circumstances would appear to support a renewed show cause petition.
While this real property is languishing as a tenancy in common with a former spouse, it is at least in theory vulnerable to foreclosure by wife’s creditors or husband’s, and wife is unfairly deprived of the tenancy by the entireties protection that would be available to her with a new spouse.
Wife might not have the financial means to pay husband the $84,000.00 cash award that he received in another part of the ED judgment, unless and until she can refinance the joint real estate. No lender is likely to loan her money on property titled with an ex-spouse, and nothing motivates the ex-spouse to sign loan documents.
Furthermore, even if wife dies or enters into a sales contract, husband may argue res judicata. He may assert that his failure to sign the exact same deed has already been judicially determined not to be contempt.
The Virginia legislature should amend Code § 19.2-318 so that it refers to a ‘judgment concerning’ or ‘judgment regarding’ any civil contempt.” This would close a loophole that can only benefit a vengeful or recalcitrant contemnor.
Wife’s claim for attorney fees failed as well, making her a particularly unfortunate double-loser. The court of appeals ruled that dismissal of the show cause was not plainly wrong or without evidence to support it. If evidence exists that husband’s conduct was anything but contempt, it is not clear from the appellate opinion what that evidence might be.
Cleary is about spousal support for a period of years, inadequately justified in the trial judge’s order.
There are two categories of spousal support orders, according to Virginia Code section 20-107.1(F).
The first type of support order is one granting, reserving or denying support. This sort of order must have written findings identifying the 20-107.1(E) factors that support the award.
The second type of support order is “periodic support for a defined duration”. For this kind of award,
“[f]indings shall identify the basis for the nature, amount and duration of the award and, if appropriate, a specification of the events and circumstances reasonably contemplated by the court which support the award.”
The trial judge’s divorce judgment is reversed for the reason that “neither the final decree nor any ruling from the bench connected the factual findings to the limited duration of the award.”
Periodic support, such as rehabilitative alimony, is premised on the idea that the support recipient may be able to get back on their financial feet after the marriage, if they receive financial assistance for a limited period of time. The reason the statute requires more of an explanation in this circumstance is that when the matter returns to court, it is necessary to determine whether the support recipient has become self-sufficient or not.
Unless support of a defined duration has the additional written explanation, the award ignores the second sentence of Code section 20-107.1(F). Interpretations that give meaning to all provisions of a statute are always preferred over a construction that renders certain words or phrases meaningless.