I’ve not blogged for a while, but an uptick in visitors encourages
me to check in.
I challenge myself sometimes by predicting the winning party in
new Virginia family law appellate opinions, before I look to see if I am
right. My forecast is a subjective assessment of counsel and trial
judges that I am familiar with, and an intuitive adjustment for my
admittedly unscientific impression that most appellants lose, especially if an
opinion is unreported.
I seem to correctly guess the outcome more than half the time, even
without knowing the facts or the issues on appeal. Someone might design
software weighting each factor that I consider (for example, years of
experience), in calculating appellate odds. But few would pay for this.
And even they did, appellants’ psychological motivation is often so strong that
warnings from software or counsel are likely to be ignored.
Meanwhile, the Virginia Court of Appeals (“VACA”) continues to
rebuff appellants that in my view should never have appealed —
in cases like Goodwin and Hart.1 I will explain why:
Goodwin v. Flinn:
Goodwin, the wife, was penny-wise in trial court, foregoing both
a court reporter and an attorney; and then pound-foolish in appealing
weak facts with no record, utilizing legal counsel. She incurred
substantial losses in both venues, and the part of her case that was
remanded probably netted her less money than she spent on
At the heart of this case was a swap of the Charlottesville
residence for a beach house in the Outer Banks. Wife balked at the
paperwork, fearing husband would not produce the cash. The
settlement agreement did not provide for simultaneity of exchange,
husband had already lined up most of the cash, and apparently no
one thought of placing his cash in escrow. I bet wife was recalcitrant
because she had no lawyer. In any event, her hesitancy was
catastrophic. Husband lost a job and the beach property went into
Why a party whose unjustified suspicion wrecked the property
settlement would choose to appeal with no transcript is difficult to
Wife lost other arguments as well: She misconstrued the
moment when a trial court loses jurisdiction to correct clerical
mistakes due to an appeal; apparently because her appeals counsel
misread “plain” language of the Virginia Code. And she was
unsuccessful regarding attorney fees that VACA deemed reasonable
and within the trial court’s sound discretion.
Hart v. Hart:
This case was over-litigated below, and appealed on
extraordinarily weak facts. What person described at trial as
“exceedingly evasive, uncooperative, and paranoid throughout this
case” would try to get out of supervised visitation by appealing? One
possessing those qualities, I imagine.
While husband seemed brazen after being described as
impulsive and abusive; his lawyer appears to have been just as
thoroughly misguided. Husband’s appellate counsel relied on a line
of cases that applies to a parent and third party, but has nothing to do
with a mother and father.
On top of all that, husband attacked the evidentiary import of
wife’s evidence. That argument rarely works, as the weight of
evidence and credibility of witnesses is a matter of sound judicial
discretion. The trial judge had described wife as consistent, calm,
reliable and organized.
When the trial judge believes your opponent and does not
believe you, and you are charged with abusing alcohol and
prescription drugs, acting erratic and evasive, and displaying
selective memory; you should not appeal. And you certainly should
not – in your appellate brief – accuse the trial judge of disposing of
evidence with a chain saw.
1 Goodwin v. Flinn, Record No. 1413-11-2, June 5, 2012.
Hart v. Hart, Record No. 1724-11-1, June 5, 2012.
2 The trial judge misread the property settlement agreement and placed a greater
financial burden on wife than the parties had agreed to.