Interminable Marriage is Condoned in Virginia

In my view, Allen v. Allen, Record No. 1702-15-4 (VA Ct. App., August 30, 2016), misses a major public policy issue and then misconstrues the parties’ separation agreement. Husband breaches an agreement to stay married for 20 years. He obtains a much earlier divorce from the trial court. I. The Court of Appeals erroneously fails to declare that the parties’ mutual prohibition against divorcing for two decades violates the public policy of the Commonwealth. The U.S. Supreme Court has recognizes that states’ statutory authority over divorce is a reflection of public policy: “The State, representing the collective expression of moral aspirations, has an undeniable interest in ensuring that its rules of domestic relations reflect the widely held values of its people. “Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute […] 5

Hague Convention “Habitual Residence” Newly Defined by Virginia Court of Appeals, But It Points to Korea

Coe v. Coe, Record No. 0854–15–4, decided on July 26 2016, adopts the U.S. Court of Appeals Fourth Circuit definition of habitual residence for purposes of the Hague Convention on Civil Aspects of International Child Abduction. Habitual residence is not defined in the Hague Convention, but in Virginia it now consists of the place where a child has been “physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.” Most remarkable about this opinion is not its adoption of a widely-respected definition of “habitual residence”; but the fact that appellant’s case was so weak, and his counsel was so heavily criticized by the appellate court. Briefly, here are the facts: Daughter was born in 2007. The parties lived in Arizona until 2011 when mother moved to her native Korea with daughter and father went to Afghanistan. Later that year, they vacationed in Phuket, Thailand. Father obtained an Arizona divorced in 2012, and returned to the States in 2014 taking up residence in Virginia. At the end of 2014, father sent mother and daughter plane tickets to visit him from Korea. Immediately when they arrived, father hid their passports […] 5

Weise v. Weise – Commentary

Analysis: Weise Facts: The Husband invested separate money in the purchase of the jointly titled marital home, which was always marital property. The home was refinanced three times through joint loans. In the third refinance, the parties took out some cash that they divided 50/50. Issue: Was the husband’s separate investment traceable back to his separate funds despite the refinances and 50/50 payout of some cash, or did his money become marital property? Ruling: Husband can and did trace the origin of his separate contribution to the acquisition of marital property, and wife was unable to prove the husband’s contribution was intended as a gift from the husband to her. Comment: If it’s a gift, get it writing! 5

Walson v Walson

37 Va. App. 208, 208, 556 S.E.2d 53, ___ (2001) Comment by Olivier Denier Long, Esq. — WALSON throws out an agreement between counsel because the agreement was not in writing signed by the parties. I disagree with the majority in this this two-to-one opinion. Judge Rosemarie Annunziata is absolutely right in her dissent. I believe an attorney should always be presumed to act as agent for his or her client and to possess apparent authority. A client should always be considered to be bound by the attorney’s conduct under general principles of agency law. However, the Court of Appeals ruling is the law. The lesson to attorneys is make sure any agreement about anything involving an attorney and a client is memorialized in a writing signed by the client. It can even be a faxed signature. +++ Walson v. Walson, 37 Va. App. 208, 556 S.E.2d 53 (2001) IN THE COURT OF APPEALS OF VIRGINIA ARGUED AT ALEXANDRIA, VIRGINIA FAYE E. WALSON v. ROBERT C. WALSON Record No. 1701-00-4 Decided: December 18, 2001 Present: Judges Annunziata, Bumgardner and Clements FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, M. Langhorne Keith, Judge Reversed and remanded. [Page 210] COUNSEL Betty A. Thompson […] 5

Miederhoff v Miederhoff

Miederhoff v. Miederhoff, 38 Va. App. ___ 2372012, ___ S.E.2d ___ (2002) What does this case say? A minor child is entitled to child support by court order. The parents agree that if Dad pays college expenses for the child and does not challenge custody, Mom will waive (not claim) the child support due for that child. Mom waits until the child is not longer eligible for child support (a “complete change of custody”) and Dad finishes paying college expenses. Then she goes to court to try to collect the child support arrearage. The court says Mom gave up her right to collect the child support because she made an oral contract with Dad. Dad fully performed the contract. The money Dad paid the college benefited the child just as child support would have if Dad had paid it directly to Mom.  Why is this case important? This is a bad decision for children. This case allows the parent paying support to — in certain circumstances — strip away child support of a minor child by making “non-conforming” payments to a third party. This type of contract is enforced only if: There is an agreement between the parties that modifies […] 5

Civil Liability Opinions

Understanding the Legal Process | EZ Justice, PLC Lawyers Like State’s Civil Liability System Jan 24, 2002 BY ALAN COOPER TIMES-DISPATCH STAFF WRITER © 2002, Richmond Newspapers Inc. Top corporate counsels view Virginia’s civil liability system as the second most favorable to business among the 50 states, according to a survey conducted by Harris Interactive. Only Delaware ranked higher. Washington, Kansas and Iowa rounded out the top five. Those perceived as the worst were Mississippi, West Virginia, Alabama, Louisiana and Texas. Hired by the U.S. Chamber of Commerce, Harris Interactive made the ratings based on phone interviews with 824 senior attorneys at companies with annual revenue of at least $100 million. Almost half were from companies with annual revenue of $1 billion or more. The respondents were asked to rank the states in areas such as the overall treatment of tort and contract litigation, class actions, punitive damages, timeliness and the impartiality and competence of judges, and the predictability and fairness of juries. Virginia was in the top five in the overall treatment of litigation, punitive damages, timeliness and judicial competence. The state ranked 19th in jury predictability and 15th in fairness of juries. More than three-fourths of the respondents […] 5

Schwartz v Schwartz Analysis

Schwartz v. Schwartz | EZ Justice, PLC Analysis: Schwartz Facts: The children’s therapist testified in a show cause hearing (in which the father tried to establish the mother was in contempt for violating a prior court order). The therapist said that the mother denigrated the father in front of the children. Fairfax Circuit Court Judge Jonathan Thatcher found the mother to be in contempt, largely on the basis of this testimony. Ruling: Virginia Code Section 20-124.3.1 prohibits testimony concerning a parent by a therapist for anyone (parent or child) without consent of both parents, in a case involving custody or visitation. Comment of Olivier Long: Would the result have been different if the father had called the therapist to the witness stand only to talk about the best interest of the child, and not about conduct of the mother? Such testimony might be allowed in a custody or visitation hearing, but it would not be relevant to a hearing for the purpose of establishing the mother had violated a court order by criticizing the father in front of the children. 5

Comments: O’Hara V O’Hara

O’Hara v. O’Hara – Comments by Mr. Long | EZ Justice, PLC Analysis: O’Hara Facts: The PSA (Property Settlement Agreement) says support ends after one year of cohabitation analogous to marriage. Issue: Does support payor have to prove the cohabitation using the clear and convincing statutory standard, or the preponderance of the evidence contract standard? Ruling: The burden of proof for contracts applies. There is no public policy exception that would override the contract language, as there is in the termination of spousal support upon remarriage. Comment of Olivier Long: If the PSA prohibits termination of spousal support “for any reason,” the support termination statute overrides the contract provision, and spousal support still terminates upon remarriage. Only a PSA specifically referencing and rejecting the support termination provision of the Virginia Code will succeed in continuing spousal support despite remarriage! The lesson of O’Hara is to always be specific in contract drafting. Otherwise, Virginia law may lead to a result you did not expect! 5

O’Hara v O’Hara

O’Hara V. O’Hara | EZ Justice, PLC Analysis: O’Hara v. O’Hara COURT OF APPEALS OF VIRGINIA Present: Chief Judge Fitzpatrick, Judge Clements and Senior Judge Coleman Argued at Alexandria, Virginia TIM PRICE O’HARA v. Record No. 0038-04-4 SANDRA H. O’HARA OPINION BY JUDGE SAM W. COLEMAN III JUNE 7, 2005 SANDRA H. O’HARA v. Record No. 0087-04-4 TIM PRICE O’HARA FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Jeffrey W. Parker, Judge Robin C. Gulick (T. Huntley Thorpe, III; Gulick, Carson & Thorpe, P.C., on briefs), for Tim Price O’Hara. Ann M. Callaway for Sandra H. O’Hara. Tim Price O’Hara (husband) appeals a decision of the trial court denying his petition to terminate his spousal support obligation. On appeal, husband contends the trial court erred by: (1) ruling husband had the burden to prove by clear and convincing evidence that Sandra H. O’Hara (wife) habitually cohabitated with another person in a relationship analogous to marriage for more than one year; (2) failing to grant the petition to terminate spousal support pursuant to the terms of the parties’ property settlement and separation agreement; and (3) failing to award husband attorney’s fees. Wife filed a cross-appeal, contending the trial court erred by: (1) […] 5

Analysis of Fowlkes v Fowlkes

Analysis of Fowlkes v. Fowlkes | EZ Justice, PLC Analysis: Fowlkes Facts: Husband and wife build an addition on wife’s separate property using only the separate funds of each party. Ruling: Wife’s separate property remained 100% hers. She resisted placing the property in joint names, and her resistance led to the breakup of the marriage. Comment of Olivier Long: If the husband had made the same investment of his separate funds in property that was marital and had he been able to trace the money back to a separate account of his, the result might have been different. This case demonstrates the importance of a premarital agreement or consultation with an attorney before investing money in property belonging to someone else! 5