On November 15, 2011, the Virginia Court of Appeals issued two unreported family law decision, Gibson v. Kappel and Pacot v. Pacot.  The cases dealt with grandparents winning sole custody from a mother; and with a husband winning back his pre-marital business after a trial court was clearly erroneous in distributing part of it to his wife. In both of these cases, the factual record overwhelmingly favored the winner on appeal.[1]
 
         The mother in Gibson had virtually no facts in her favor.  She had declined a primary role in her daughter’s life every time the issue had arisen.  She gave the father primary custody when they separated.  She gave physical custody to the grandparents when the girlfriend of the dad was found to have used crack cocaine, and the girlfriend’s son was found to have sexually abused Gibson’s daughter.  When mother and grandparents first went to court, mother consented to the grandparents having temporary custody.  By the time the juvenile court order became final, this 9-year-old had lived with her grandparents for a year and a half.  At the custody trial, the daughter’s therapist had been treating her for two years, while the mother’s expert had only been hired the day before trial!
 
         Gibson’s case was hopeless; she should never have appealed.  Although Virginia law favors parents over grandparents, significant facts and circumstances rebutted the parental-preference presumption:  The grandparents had addressed daily needs for a considerable time.  The mother had shown lapses in judgment, a failure to address needs, and disinterest in caring for her child.  The guardian ad litem testified the parties could not communicate, and the child needed protection from the impact of their “resentments, behavior and conduct.”  This mother apparently presented no evidence that might have helped her meet her burden of proof.
 
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         Mr. Pacot had a business before the marriage.  Wife claimed the business had become hybrid property – part marital and part separate – because husband’s personal efforts increased its value during the marriage.  But wife offered no evidence as what the business was worth when she married.  The trial judge awarded wife 40% of the business, and husband appealed.
 
         Do you see any problem with the circuit court giving wife part of husband’s company on these facts? 

         Sure you do!  Even someone who does not know the legal standard that is set forth at Virginia Code § 20-107.3 (A) and is not a lawyer should be able to recognize the problem here:  You cannot determine how much something increased in value if you don’t know the value that you are starting from!  The wife and the trial court did not see this.  The court of appeals saw it, reversed the decision, and remanded for “reconsideration and refashioning”.
        
 
        



[1]             The Gibson mother seemed oblivious to how little interest she had shown in her child. Similarly, the Pacot trial judge and the wife who appealed his ruling overlooked the fact that that you cannot claim something is worth more after marriage if you don’t know what it was worth on your wedding day

                      Studies suggest people miss things in plain view all the time, so it is unfair to fault anyone involved in these proceedings.  Maybe these cases are like the recent experiment with people concentrating on a basketball:  They did not notice when someone in a gorilla suit ran through the players.