The Virginia Court of Appeals issued four (4) unreported decisions on 30 July 2013 that are worthy of consideration.  The cases of Naseer, Sewell, Macione and Harris will each be discussed in turn.  The opinions of the court are here:


            Naseer is about bigamy.  Wife concealed that she was married to someone else when marrying Moghal.  She may or may not have genuinely believed she was divorced when her spouse said “I divorce you!” three times.  In any event, she never mentioned the incantation to Moghal, and it was insufficient to end her marriage under Virginia law.

            While the trial court considered whether Naseer was married to Moghal or not, it awarded (and he paid) $27,000 in temporary spousal support.  Later, the trial court ruled Naseer had committed bigamy when she attempted to marry Moghal while married to someone else.  The court annulled the putative marriage to Moghal as void ab intitio, and ordered Naseer to pay Moghal back the $27,000 she had received from him.

            The Court of Appeals declared that temporary support is provisional; it can always be reversed.  The same is not true of support pursuant to a final order. Also, a judgment of annulment at trial is always interlocutory if there is an issue of support repayment still pending.


            Sewell involves a husband seeking  to reduce spousal support.  After a 27-year marriage, the parties had averaged Sewell’s last three years of earnings in calculating alimony, because his income fluctuated so widely.  Spousal support was $9,000 a month, subject to modification upon proof of a material change in circumstances.

            In the year following his divorce, husband voluntarily switched to a lower-paying job for reasons that might have justified the job change, had he corroborated them, but his own testimony was his only evidence.  It was not enough to lift his conduct out of voluntary impoverishment or neglect.  Husband failed to meet his burden of proof that lower-paid employment was reasonable, and that it was fair of him to force his ex-wife to gamble that her alimony might go up or down.  The trial court found no material change in circumstances.

            The Court of Appeals agreed, saying that there is no hard and fast rule about a material change of circumstances affecting spousal support.  The appeals court was not going to second-guess judicial discretion of the trial judge.  Furthermore, the burden of proof is no different when attempting to modify support set by consent agreement than it is when modifying support imposed following an adversary proceeding.

            Husband made four important mistakes:

            (1) He should never have averaged his most recent three years of income to determine spousal support.  He should have used only the most recent 12 months.  If you do three-year averaging to set support, then you may have present three years of new evidence to modify support.  That would not have occurred to me, and I am sure it surprised husband.  When Sewell petitioned to lower his support, it had only been one year since the divorce.  The court had insufficient data to find a material change!

            (2) Sewell changed to a lower paying job of his own free will.  When income dropped even further, he expected ex-wife to share the pain based on his word, unsupported by documents or corroborating testimony.  He failed to prove the necessity that he take a lower-paying job.

            (3)            According to the appeals decision, Sewell understated income and failed to update discovery responses when true (significantly higher) income figures became available.  This muddled the issue of earnings, blindsided the spouse at trial and annoyed the court.  If you violate court rules (or pepper your evidence with half-truths, implausible omissions, or outright falsehoods), your credibility may suffer.

            (4)            Husband should not have encouraged the Court of Appeals to speculate that his past twelve months of income would continue over the coming two years.  Everyone knew he had up-and-down income, including him.  And the next two years of figures are not available yet.  If you recommend a formula that cannot be used because two-thirds of the required data is missing, and the court adopts the recommendation, you may have doomed your case.

            At the conclusion of the Sewell opinion, the court declares that earnings data preceding the most court ruling on support may be re-useable not as stand-alone evidence, but in a blended combination with new evidence for the purpose of showing a “trajectory of income that continued to deteriorate”.  In my view, this is surprising.

Here’s why:

            If Sewell permits substantive evidence previously considered to be re-introduced in a later proceeding and ruled on for a second time, it may be a judicial exception to res judicata.[1] Sewell holds, in dictum, that reintroduced evidence involving the same issue and the same parties is admissible a second time, provided that it is blended with new evidence that is substantially similar.  Trial courts can now reconsider at a modification hearing the weight and credibility of the same identical evidence whose credibility and weight they assessed and passed judgment on in the past.
            Traditionally, the time line for defining admissible evidence regarding a material change of circumstances commences on the date of the last support order.  Now, based on Sewell, it may start earlier.  It may be difficult to ascertain exactly when it starts.    I could be wrong, but that certainly seems to be what the court is saying.


            Macione involves a husband recovering his separate property after placing it in joint names with his wife.

The case applies Virginia Code § 20-107.3(A)(3)(h), which provides,

                    “No presumption of gift shall arise under this section where (i) separate property is commingled with jointly owned property; (ii) newly acquired property is conveyed into joint ownership; or (iii) existing property is conveyed or retitled into joint ownership.”

            Interestingly, the trial court found by clear and convincing evidence that the marriage was a joint enterprise, and that husband’s transfer of property into joint names transmuted his separate property into marital property of the parties.  The court of appeals politely says “We disagree …”  It then states that the record contains “no evidence or admissions from husband”.  That’s right, no evidence at all!  It is a rare case where the trial judge says there was clear and convincing evidence, and the appeals court says there was none.


            Harris is an example of bad drafting in a property settlement agreement, compounded by a failure to read the agreement carefully before filing an appeal.  Essentially, the agreement says attorney fees are payable in the event of default.  The parties fight in court over the interpretation of their agreement.  Husband prevails, and asks for reimbursement of attorney fees.  The court says no fees, because there was no default.

[1] 'It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action.'

Petrus v. Robbins, 196 Va. 322, 83 S.E.2d 408, 412 (Va., 1954)