This is a review of the Virginia Court of Appeals (VACA) decisions handed down on May 7, 2013 in Tsoucalas and Richter (unpublished), and Zedan (published).


            Tsoucalas is an appeal by Lawrence D. Diehl, one of the premier divorce lawyers in Virginia.  You would expect an attorney with his experience and reputation to be at least partially successful, and he is.  VACA reversed an equitable distribution award that violated the parties’ pre-marital agreement (PMA).  But for the PMA, husband might have owed wife a reimbursement of the $135,000 she invested in his separately owned home, pursuant to the “commingling” statute, § 20-107.3(A)(3(g).

            Diehl lost his other argument, seeking reimbursement of husband’s “household expenses”.  The PMA, “poorly drafted” but unambiguous and fully compliant with VA Code § 20-149[1] said all purchases and debts during the marriage were separate property, with this exception: "The parties will maintain a joint bank account to be designated 'Household Account' and to be used for this purpose.  The funds included in this account from time to time are to be community property or to be treated as such for the purposes of this agreement."

            The parties never set up that bank account.  Therefore, no provision of the PMA provided for adjustment of “household expenses”.  Moreover, in the context of Virginia law on the PMA date, no statutory authority existed for adjusting parties’ contributions to living expenses, either.  (The law changed in 2006, with VA Code § 20-107.3(A)(3)(g) allowing for tracing of “separate to separate” contributions.)[2]

            VACA, in addressing the PMA de novo as required, never expressly declares whether or not the bank account was a material element of the paragraph.  By implication, though, the court clearly determined that it was.

            The lawyer for appellant in Richter, Fairfax County attorney William L. Schmidt, is another pillar of the family law bar in Virginia.  Unlike Lawrence D. Diehl in Tsoucalas, however, Schmidt came up empty-handed.  This demonstrates that even skilled, reputable counsel cannot guarantee appellate success.

            Richter is a grandparent visitation case.  PB’s parents never married.  His dad died.  Later, he lived with mom and his paternal grandparents for 19 months.  Then mom relocated with PB and cut off grandparent visitation.

            The grandparents sued for visitation.  They asked for an expert to study PB.  The trial court said “no” to protect PB, who was four years old.  The Court of Appeals affirmed.

            A parent’s fundamental right to raise a child is constitutionally protected, and the attempt of a non-parent to overcome a parent’s objection to visitation must meet an exceptionally high standard.  The standard in Virginia is expressed as follows:

  • “For the constitutional requirement to be satisfied, before visitation can be ordered over the objection of the child’s parents, a court must find an actual harm to the child’s health or welfare without such visitation.” A court reaches consideration of the “best interests” [of the child] standard in determining visitation only after it finds harm if visitation is not ordered.

Williams v. Williams, 256 Va. 19, 22, 501 S.E.2d at 418 (1998).

            Furthermore, ““[T]he actual-harm test cannot be satisfied by a showing that it would be better, desirable, or beneficial for a child to have visitation with a non-parent.”  Griffin v. Griffin, 41 Va. App. 77, 84, 581 S.E.2d 899, 902 (2003), (internal quotation marks and citation omitted).

            The trial judge wrote twenty pages of reasons why PB needed to be protected from possible emotional harm resulting from expert evaluation.  VACA found plenty of justification for concluding that the court’s ruling was not plainly wrong or without evidence to support it.  VA Code § 8.01-680.[3]

            Another high hurdle for grandparents is the appellate standard of review for discovery decisions.  Unless the discovery ruling was “improvident” and “affected substantial rights,” it will not be disturbed on appeal.  Here, as well, VACA upheld the trial judge’s refusal to permit the expert to interact with the child, despite the grandparents’ request pursuant to Rule 4:10.

            I believe the bottom line in Virginia is that if you are a non-parent and the child is a toddler, your chance of obtaining court-ordered visitation is pretty slim.

            Zedan seems to achieve a Virginia high-water mark for brazen misconduct by a party and incompetence of the attorney handling their appeal.  In a fifteen-page published opinion, VACA reviews the law of appeal bonds and delivers appellate counsel a sound and – in this blogger’s opinion — roundly deserved verbal drubbing.

            This is an eight-year marriage annulled due to husband’s bigamy.  Husband’s child support arrearage exceeded two hundred thousand dollars;  and husband had two successive, meritless cases in the Virginia Court of Appeals.  The first appeal got slapped down with the child support judgment reaffirmed and an award of supplemental attorney fees.  Then, Fairfax Circuit Court Judge Brett Kassabian ordered the two hundred thousand dollar bond released to mom.

            In arguing for the return of the cash bond to the dad in his second appeal, dad's counsel apparently did things that, in this reporter’s opinion, may be worse than not knowing the law.  He argued the contrary of record evidence.  He selectively ignored facts.  And he advocated an understanding of the trial court opinion that was “simply incorrect”.  Counsel argued case law that was “not even remotely on point” and that had in any event been rendered obsolete "long ago" as a result of statutory changes.  Finally, counsel's proposed interpretation of Virginia statutes on appeal bonds made no logical sense and led to an absurd result.

            Lawyers not infrequently make procedural errors costing their clients an appeal.  But it is a rare case in which arguments are so unsubstantiated, so contrary to the law and evidence, and so incredible that the Court of Appeals instructs the lower court to award attorney fees.

[1] Virginia Code Sec. 20-149 provides: “A premarital agreement shall be in writing and signed by both parties. Such agreement shall be enforceable without consideration and shall become effective upon marriage.”
[2] The trial judge ruled the joint-account PMA paragraph “void”.  I believe “inapplicable” would have been a more appropriate term to describe a unfunded account.
[3] “When a case, civil or criminal, is tried by a jury and a party objects to the judgment or action of the court in granting or refusing to grant a new trial on a motion to set aside the verdict of a jury on the ground that it is contrary to the evidence, or when a case is decided by a court without the intervention of a jury and a party objects to the decision on the ground that it is contrary to the evidence, the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.”  [Emphasis added]. VA Code § 8.01-680