In Cruz, (published), Fairfax Circuit Judge Brett Kassabian[1] had properly dismissed a divorce case when wife had no live witness to corroborate the parties’ separation.
     
            Wife presented an affidavit, but the new VA Code Sec. 20-106(A)(iii) says you can only use an affidavit when there is no responsive pleading or no appearance on the other side.  Wife admitted husband’s counsel made an appearance but argued his pleading was late.  The Court of Appeals interpreted the statute by emphasizing that the preposition utilized is “or”, not “and”.  After Wife admitted the other side made an appearance, she could not use an affidavit.  The existence or non-existence of a responsive pleading became immaterial.

            This decision applied the “plain language” rule of statutory construction.  Since the statute was unambiguous, this case should never have been appealed.

            An interesting sidebar in Cruz is a warning to aggressive, trial-by-ambush defense counsel:  If you enter an appearance for the defense on the eve of a divorce trial, expect sanctions in the form of attorney fees.  Another dictum is that Judge Kassabian had ruled an untimely pleading was not a responsive pleading.  Had that been an issue before the appeals court, I suspect Judge Kassabian might have been reversed.  In this blogger’s view, the term “responsive” addresses the content of the pleading exclusively; it says nothing about its date of filing.

            Anderson, (unpublished), joins a seemingly interminable litany of appellate cases doomed before they are filed:  A hapless pro se party causes a train wreck in the lower court and thinks she can fix everything by hiring counsel and taking an appeal.  Almost invariably she cannot; the damage is already done.

            Here, wife made four catastrophic mistakes.  She went to court with no lawyer (mistake #1) for determination of a child’s school.  Fairfax Circuit Judge R. Terrence Ney not only selected dad’s school in neighboring Prince William County, but also transferred primary custody to dad.  Wife neglected to mention at the hearing that the court erred by changing custody when the only issue presented was choice-of-school.  (Mistake #2).

            Mom understandably felt blindsided, and filed a motion to reconsider.  That was the correct swing of the bat with insufficient force.  She failed to obtain an order to vacate, modify or suspend the final custody judgment within twenty-one days.  (Mistake #3).  After twenty-one days, the judgment became final; Judge Ney lost jurisdiction to modify, vacate or suspend.  Frequently, non-lawyers are confused by this.  The judge could still change the order, of course, but only upon proof of a material change in circumstances and the best interest of the child.  The court's error-correcting authority over the judgment would have at that point have disappeared.  Think of it as being like poured concrete:  After twenty-one days you can still take it out with a jackhammer but you can no longer move it around.]

            Mom appealed. (Mistake #4).  The Court of Appeals pointed out summarily that the motion to reconsider had not been ruled upon within twenty-one days. (Judge Ney issued a ruling, but did so after expiration of the twenty-one day period.)  If a trial court does not rule in a timely manner on a motion to reconsider, then the issue cannot be appealed.

            This is such a pitfall for the unwary practitioner that it bears re-stating:  If you note the substantive basis for your later-appealed objection orally (on the record), or at the foot of an order, and the judge does not correct the material abuse of discretion or clearly erroneous ruling within twenty-one days; then you may appeal.  However, if (as in Anderson) the only way that you bring the error to the lower court's attention is through a timely motion for reconsideration, then your right to appeal the error disappears after twenty-one days unless the court denies your motion before the revisory period expires.



[1] Judge Kassabian may be the only judge in recorded history to receive appellate affirmances in unrelated cases mentioning bigamy in a period of less than seven days.  The cases are Cruz and Zedan, discussed above.