Consistent with my last blog post, the party appealing was the loser in four consecutive Virginia Court of Appeals cases decided in September and October 2012.  The cases are McPhail, Lilley, Ellis and Smith, and you can locate them by word-search on this Website:


            The property settlement agreement (PSA) says child support starts upon sale of the house sale or on May 1, 2010. The parties are both living in the house. Dad starts support May 1, 2011 when house sells.  The trial court says dad owes a year of back support.

            Dad loses his appeal for several reasons.  Imposing a “first event to occur” standard in the selection of a child support commencement date – as between two future events — is consistent with getting the parties into separate residences as soon as possible.  The trial judge was correct to interpret the PSA that way, and in ruling that the PSA was not ambiguous.

            If a lower court ruling can be supported by facts in evidence, the appeals court is not going to change the decision. Besides, dad argued below that the PSA was not ambiguous, therefore he cannot argue on appeal that it was ambiguous.  That would deprive the lower court of an opportunity to fix anything it did wrong.


            Dad lost in juvenile court, and lost twice in circuit court.  He then appealed with no transcript and no statement of facts.  All five arguments on appeal were rejected on the technicality that the court of appeals could not determine what had happened in the trial court.  These traps for the unwary appellant are in the court of appeals’ rules at 5A:8(c) and 5A:(18).


            This is a sad case in which dad serves his prison time, gets clean, and still loses his child.  His history of drug use, criminal behavior, and two years without seeing his daughter added up to the clear and convincing evidence required to terminate his parental rights.  The dad was incarcerated in New York, and even after his release in August 2012 would have had a year of limited permission to leave that state.  The decision contains many Virginia citations to the legal standards applied in this type of case.


            Wife appeals from her divorce and custody trial, claiming 24 errors by the trial court, but only briefing 16 of them.  All 24 are rejected based on violations of procedural rules.  You do not get special treatment because you are unfamiliar with the appeals process!

            Appealing a case properly is like completing a checklist before flying an airplane. If you do not file a flight plan, check the weight and distribution of your cargo, review the weather, verify proper operation of your vertical stabilizers and other equipment, the flight instructor will not let you off the ground. 

            I will not list all the technical errors here, but I will name a few to give you an idea what a disaster this was.  Appellant omitted appellee documents from the appendix [Rule 5A:25(d)]; failed to place appendix documents in chronological order [5A:25(e); did not give the trial judge a chance to fix mistakes [5A:18]; and on some issues did not explain why the judge was wrong [5A:20].

            Wife represented herself on the appeal, which may help explain how she could be sabotaged by so many problems.