I. Linton, Record No. 2358-13-4, (June 17, 2014, Circuit Court Judge Jeffrey W. Parker) deals with equitable distribution, monetary award and separately titled marital property.
II. Carrithers v. Harrah, Record No. 0601-13-1 (September 2, 2014), involves the differing appealability of orders that are void ab initio or merely voidable.
III. Oley v. Branch, Record No. 1857-13-2, (September 9, 2014) determines whether a personal injury award with no income or lost-wages component, a Pell Grant, and free housing from mom constitute income for purposes of child support.
I. Linton examines what assets may be tapped to satisfy an equitable distribution award (“ED”) and a monetary award, in a divorce case.
There are two kinds of property, non-marital and marital. Non-marital is owned before the marriage, or acquired by gift or inheritance. It is not divisible on divorce, and remains with whomever owns it.
Linton involves marital property. Marital property is all other assets at time of parties’ last separation – everything accrued during the marriage by whatever means and however titled.
There are two kinds of marital property, jointly-owned and separately-owned. Both kinds may be the subject of an equitable distribution award, pursuant to VA Code Section 20-107.3 (C). Equitable distribution may be implemented by a court ordering a party to effectuate the sale or transfer or division of an asset, or by entry of a monetary award. A monetary award is a type of equitable distribution award; it is a judgment in favor of one party and against the other for some dollar amount.
Linton involved satisfaction of wife’s monetary obligation to husband under a property settlement agreement (“PSA”). The PSA left open the means of payment. In theory, wife had two choices: She could write husband a check, or she could transfer property to him with the same value as the award. (This blogger believes husband’s counsel may have committed a drafting error in failing to close this loophole: He failed to require in the agreement that wife pay cash, and then sealed his fate by conceding in court that his entitlement was a monetary award.)
Wife smartly chose to convey separate marital property — a limited partnership interest — which was property acquired during the marriage but titled in her name only. Husband, of course, objected to receiving a minority interest in a limited partnership. But, alas, the proverbial cat was already out of the bag.
The trial court (the Honorable Jeffrey W. Parker) authorized the property transfer pursuant to Code Section 20-107.3 (D), and the Court of Appeals affirmed.
The appellate court said that 20-107.3 (C) and (D) have to be read in harmony (in pari materia); that is to say, in a manner that is consistent with their plain meaning and avoids an absurd result. This means ED can apply to any marital property (paragraph C), but a monetary award has to be paid with cash or marital property unless the court approves a conveyance of separate property at payor’s request, in satisfaction of the award (paragraph D). Wife sought and received court approval here, so the trial court ED award is affirmed. Since husband’s argument is totally without merit (in other words, supported by neither statutes nor caselaw), wife’s request for attorney fees and costs is granted.
Ironically, husband could easily have gotten what he wanted if he had only locked it up at an earlier stage. He might have included in the PSA a sentence that wife’s transfer would be in cash or pursuant to 20-107.3 (C) [which prohibited the transfer of separate property in satisfaction of ED]. Had either of those payment qualifiers appeared in the agreement, husband would have been a winner; he would have saved the money he wasted on his lawyer and wife’s lawyer in the appeal.
Carrithers’ case in the Court of Appeals seems so misguided and lacking in merit that it is a wonder the appeals court did not sanction his counsel outright for even filing the matter.
Here is what happened:
After Carrithers pays no court-ordered child support for thirteen years, mom obtains a default judgment. Carrithers challenges the default, saying he was not properly served in connection with its entry. The trial enters an order that there was nothing wrong with service. A few days later, a second order awards attorney fees.
Carrithers appeals both orders. His appeal is timely as to the attorney fees but late as to the child support. The Court of Appeals says it cannot touch the child support default because dad missed the deadline for filing his appeal. The goes on to say it cannot review the attorney fee award because the only challenge to the fee award was an assertion that the default order was void, and that order never got properly appealed. Both orders stand.
Now, one can imagine Carrithers might feel “victimized” by mom’s $60,000 default judgment that he claims was never correctly served and that his lawyer has yet to challenge on the merits for the first time in the Court of Appeals. He is probably fuming. But what he does next is beyond reason. He appeals again, on the theory that a void order should be capable of being declared unenforceable at any time, and he never got his day in the appellate court.
This a big mistake, obviously. Carrithers already appealed the same issue on the same facts involving the same parties, and lost. You only get one bite of the apple.
There are two kinds of void orders, those that might have been valid but for some glitch in the facts or the law (these are called voidable), and those that could never in a million years be valid (void ab initio, or from the outset). A voidable order might one in which – as Carrithers alleges in his case — a party never got notice and an opportunity to defend. A void order might be one signed by someone who was not a judge, or not signed at all.
Carrithers’ conduct in appealing the same thing twice did not correspond to either kind of order, and made no logical sense. No surprise that he lost the second appeal, and got sanctioned a second time with attorney fees.
Here’s the rule about void and potentially void orders: Both kinds of orders can be appealed. If you are appealing from an order that might be valid (depending on whether you were properly served with process, for example), you have to appeal within the deadline. Carrithers was late appealing this “voidable” kind of order. After the trial court order becomes final because the appeal was late, it makes no difference any more if service was proper or not. The judgment is final. You cannot appeal again with a new lawyer or with arguments you forgot to make before – or with any arguments at all. That is the meaning of “final”.
If the order, on the other hand, can never be valid, you still only get one appeal. But the difference is that you are not held to the deadline. You could appeal five years after the 30-day appeals deadline ran out, and the Court of Appeals would still listen to you. But even in this rare case, you cannot keep appealing and appealing. In every case seeking to render an order void, there’s going to be a losing party. If we did not have the rule about finality of judgments (which lawyers call res judicata), losers would be appealing forever. They would never give up. Our courts would be so clogged with re-appeals and re-hearings that important work would no longer be done.
There is an important lesson here. When the facts don’t support you, the law does not support you, and the position you are taking makes no logical or practical sense, you are likely to not only be unsuccessful but also held responsible for attorney fees on the other side.