Family law appeals in Virginia frequently get dismissed because of technical mistakes in the appeal process. Huck and Bracaloni, decided June 2, 2015, are the most recent examples in a seemingly endless stream of cases where litigants run afoul of Court of Appeals rules.
Huck v. Huck (Record No. 1604-14-1) involves a husband represented himself on an appeal. Wife filed nothing and the GAL filed only a letter and a copy of his report. Husband still lost despite the lack of opposition. Perfecting an appeal can be complicated; in my opinion, Huck’s biggest enemy was the rules.
Husband’s issues were a violation of due process, a factual error, and improper weighing of the evidence. However, the appeals judges never got past his procedural mistakes. Unfortunately even if everything had been done right procedurally, my view is that Huck would still likely have lost. His issues were not ones where you ever have much chance of winning on appeal.
Huck is a six-paged opinion, more pages than I expected considering his failure to present any of his issues to the trial judge.
It is a basic rule: If you do not give the trial court a chance to correct mistakes, you cannot complain on appeal. There are four (4) ways to give the trial judge an opportunity to make things right: motion to strike, closing argument, motion to set aside the verdict, and motion to reconsider. Huck did none of them. He violated other rules by not presenting a statement of facts and by failing to cite legal authorities. (You cannot simply declare something is wrong; you have to find a statute, constitution, or Virginia appeals case that backs you up.)
Huck demonstrated a common misconception about the appeals process. You do not get to do your case over. You have to show what was done before, how you timely complained, how it was not remedied despite your complaint, and why it is wrong. Even if you establish all that, mistakes by trial judges have to make a difference. If the case could come out the same way despite correction of everything you are arguing on appeal, then you fall within the wide latitude given judges to weigh the facts, and you still lose.
Appellant wife, Ms. Bracaloni, also washed out on appeal, despite her substantial effort. Bracaloni v. Edge, (Record No. 1722-14-2). She entered into a consent custody agreement on the eve of trial. But she quickly changed her mind about what she had agreed to, alleging she had been “pressured” to sign. Ms. Bracaloni apparently terminated the lawyer who had represented her at the time she signed that agreement. And the judge entered a “final order” ratifying the contract.
Ms. Bracaloni’s second lawyer could not come to court within 21 days of entry of that final order, so she wrote two (2) letters that the judge treated as a motion to reconsider. Without lawyer number two in the courtroom to help her, Ms. Bracaloni had to represent herself at the hearing. You know how that goes: The judge declined orally to set aside the consent agreement.
Next, the 21-day revisory power of the court ran out, and the final order approving the agreement became non-modifiable by the trial court. [I wonder if the second lawyer told Mrs. Bracaloni what trouble she would face if the “final” order was not modified, vacated or suspended within 21 days. She might have a malpractice claim if she formally retained him before her time expired, and she then blew past her deadline without being warned.]
Ms. Bracaloni filed a statement of objections after the 21 days expired. The judge entered his second final order – also after the 21 days had expired — denying those objections. The second final order was not appealed.
With lawyer number three, Ms. Bracaloni appealed the first final order. She explained in her brief that the trial judge got notice of the errors being appealed when she placed them in her statement of objections.
Do you see the problem?
The trial judge never had a chance to remedy the alleged errors in the record, because he did not get notice of those errors until more than 21 days after entry of the first final order – which is the order being appealed! In other words, the first final order was already locked in stone by the time the statement of objections was filed.
If lawyer number three had appealed the second final order instead of the first one, then the requirement of providing notice and an opportunity to correct mistakes would have been satisfied, because the statement of objections was filed before the second final order was entered. [I guess lawyer number three did not realize he appealed the wrong order. I wonder if Ms. Bracaloni might have a malpractice claim against lawyer number three, for stating in his appellate brief that the only chance given the trial judge to rectify his errors came more than 21 days after entry of the order being appealed.]
After being battered (figuratively) at every stage of the judicial process, Ms. Bracaloni was required to pay attorney fees of the paternal grandparents of her children, in addition to her own three lawyers. Thus, even when they hire counsel – as I always recommend litigants do – people can have a tough time.