I am reviewing four unpublished Virginia Court of Appeals opinions decided on November 20, 2012.
Woodell v. Lagerquist reversed a finding that a father was a “non-parent”, and restored his parental rights.
Here is what happened: Both parents signed an acknowledgement of paternity under oath and in full compliance with VA Code § 20-49.1. Their joint statement of facts on appeal denied fraud, duress or material mistake of fact associated with the acknowledgement – the only grounds for attacking the document. Thus, the acknowledgement was irrevocable and immutable; and as binding and conclusive as a judgment.
For some reason, the trial judge found that § 20-49.1 conflicted with § 20-49.10 which involves genetic testing. In a veiled rebuke clearly directed at the judge, the Court of Appeals recited the “plain language” of the Code and then laid out the “rather unusual facts”. The appellate court ruled that the Code provisions are not contradictory, the trial judge himself said the case was not about paternity, and the judge had not appointed the guardian ad litem who would have been required had the blood test statute been properly invoked.
The most unusual aspect of this decision is how dramatically the trial court misinterpreted the law.
Burns v. Burns recounts a familiar pattern of court proceedings followed by a consent order modifying custody and visitation, with nothing said about child support.
Later, when the support payor wants to modify support the question is whether the required material change dates from the consent order or from some earlier order or agreement.
Here, the pleadings and consent order did not mention support directly. A paragraph under the custody heading repeats the property settlement terms regarding private school tuition, bus, books and fees; applying them unchanged to a particular year; and then states that other provisions of the agreement and final decree remain in effect except as modified. The order does not use the word “reaffirm” or the word “support” anywhere.
The Court of Appeals looks outside the four corners of the consent order in reaching its conclusion that the parties did not modify support. The pleadings are silent on the subject. The consent order was not accompanied by VA Code § 20-60.3 language or a support worksheet, as would have been required with a support order. Thus, the conclusion is that the trial court erred in limiting the change-of-circumstances time frame to events after the consent order. The trial court should have allowed reference to events back to the date of the final decree. The case is reversed and remanded.
I thought the appellate court’s attention to the language of the agreement, the pleadings, the consent order and the missing statutory invocations and worksheet was meticulous and well handled. This decision is a useful example of how cases are decided. It is also a reminder of how important it is to be careful what you ask for. Since technically the private school tuition is part of child support, and the tuition was specifically discussed in the consent order (even though not modified), this ruling is a much closer call than Woodell.
David v. David examines the evidence necessary to convert assets and debt from separate to marital at equitable distribution (ED). This is a tough subject even for seasoned attorneys, and in this case each side scored a partial victory. Husband got to keep as separate property the appreciation on his separate brokerage account, while wife succeeded in getting the balances on credit cards for her separate business declared to be marital debt.
The Court of Appeals examined the trial transcript and sifted the evidence. Wife could not show husband exerted any “significant” personal effort beyond the selection of some stocks that increased in value (while others declined in value) during the marriage. Further, wife failed to directly connect his personal effort with any substantial appreciation or specific portion of the appreciation. She did not meet her burden of proof under Code § 20-107.3(A). Consequently, the $300,000+ of gains during the marriage stayed in husband’s pocket. The trial judge got this part of the ED trial wrong.
The wife did better with her credit card debt on the cards in her name that were nominally for her separate business. She got that debt labeled marital based on four categories of evidence at trial: (1) She paid household bills. (2) Husband confirmed it. (3) She introduced bank statements showing the expenses, including securing purchase of a Navigator with one of the cards. And (4), income of the separate business supported the family. The trial judge got this part of his opinion right.
Vannatta v. Vannatta is a spousal support appeal in which both parties lose for failing to read their appellate record more carefully before appealing.
These litigants might have saved some money by taking the following considerations into account:
A. Read the property settlement agreement and court orders carefully, word for word. If you are analyzing an agreement or a consent order, those are contracts. They are subject to rules of contract interpretation. Apply the rules.
B. It is exceedingly difficult to win an appeal based on an alleged error in applying VA Code § 20-107.1(E). That is the list of factors to be weighed in determining spousal support. If your trial judge says she considered all the factors, then that is all she is required to say. No particular weight is required for any factor.
C. Even if the order being appealed talks about some improper piece of evidence, you will not win your appeal unless it is absolutely clear that your trial judge relied upon it, and it is substantial enough to affect the outcome. Ambiguity is insufficient ground for reversal. The trial court is presumed correct.
D. A reservation is not a right. If your agreement reserves you a right to petition for and receive spousal support based on a list of future contingencies like death or remarriage, don’t complain to the Court of Appeals that you were only awarded support for a finite term of years. The phrase “petition and receive” does not mean the same thing as “receive”. In a contract, every word is presumed to have meaning and is to be interpreted in harmony with every other word to the extent possible. If your contractual right to support comes with a prerequisite; you must comply with the prerequisite. Here, that means you must petition for support. A judge did not re-write your contract by ending your support on a date certain.