This monograph reviews ten (10) Virginia family law appellate decisions handed down in 2009. The text of the opinions is available here.

            Appeals from circuit court to the Court of Appeals can be expensive. In addition, they are usually unsuccessful.[1] My impression is that they most often fail to change the trial judge's ruling for one of three (3) reasons:

            First, a final judgment of the circuit court is presumed correct if the transcript contains facts to support it, and if the judge makes no mistake in applying the law. In other words, unless a trial judge is completely off the rails, an appeal will get you nowhere.

            Second, if a judge gives multiple reasons for an outcome, and the evidence could support at least one of them, the decision will be affirmed. This is the result even if all other  reasons given for the judge's opinion constitute reversible error! Shrewd judges provide alternative reasons for each appealable decision; in effect, hedging their bet. If the appeals court finds any of their justifications for a decision is plausible (and that they followed the law), then their ruling is vindicated.

            Third, any procedural mistake (for example, not complaining immediately about an error at trial, failing to list an issue among questions on appeal, or providing no case citations or timely transcript to the Court of Appeals) generates an automatic rubber-stamp: “Decision affirmed.”

            Anyone can appeal, and many people do. There are so many appeals, in fact, that a significant number seem to fit these profiles: the litigation gambler leveraging weak odds with money to burn; the sore loser reacting emotionally to a disappointing outcome; or the innocent layman ill-informed by less-than-thorough counsel.

            A good percentage of Court of Appeals opinions are “unpublished”; these are cases considered too unimportant to serve as precedent for anyone besides the parties.  Yet significant or not, almost all are unanimous — three votes to zero. Despite the large number of appeals and theories of relief, controversy among jurists on an appellate panel is quite unusual.


            Enough with generalizations, though; what about the ten cases?

            The largest thematic category presents facts so bizarre that one is tempted to ask the person who appealed (or the errant judges in Sims and Fulton), “What were you thinking?”



Fact Pattern

Legal Issue


Bailey v. Bailey

Record No. 2057-08-1

May 26, 2009

Husband is so mentally ill it’s not even close. He steps out of an asylum momentarily to sign a dramatically partisan agreement drafted by his wife pro se, giving her everything. A judge tosses out the contract. The wife appeals.

Competency and coercion.

Wife loses the appeal. The trial judge was right: Husband was incompetent and the agreement is void.

Cmsr., Department of Social Services v. Fulton, Record No. 0152-09-1, October 13, 2009

Fulton is convicted of drugging his daughter’s 12-year-old best friend before sexually abusing her, possibly in his daughter’s presence. He did not appeal that conviction, but did appeal the terminating of parental rights as to his daughter, who may have observed the incident.

Was the DSS/CPS administrative ruling fatally flawed by not being recorded, or by its reliance on a sexual abuse conviction involving another child?

No, no, those are both losing arguments. The appeals court quotes extensively from the record. The weird facts are matched only by the trial court decision (later reversed) determining the charge to be “unfounded” despite overwhelming evidence. Further comment on the decision appears here.

Sims v. Sims, Record No. 3101-08-2, December 15, 2009

Wife was pro se, destitute, and a public charge. After a 38-year marriage, husband (represented by counsel) persuaded her to sign away spousal support and all property except a used car and essentially the clothes on her back. Husband reaps a windfall consisting of $200,000.00 of equity in the marital home, his $124,000.00 retirement, and $2,400.00 a month of other retirement income.

Was the separation agreement unconscionable?

You bet! The inadequate value of the wife’s share of the marital estate — plus the wife’s pecuniary necessities – trigger the ruling. The court does not even need to consider the possibility of overreaching.

Kilby v. Culpeper County Department of Social Services, Record No. 0446-09-4, October 27, 2009

Kilby is convicted of “felony assault resulting in serious bodily injury” or felony sexual assault”. He failed to prevent his son’s repeated sodomizing of his daughter over 12 months. Kilby appeals the termination of his parental rights, making the claim that the court did not find him to be an unfit parent.

Did the underlying facts support a conviction of “felony assault”?







            The next largest group of decisions involves misconstruing statutes or case law. If each appellant had read more carefully, they might have decided not to appeal.


Robinson v. Robinson

Record No. 0872-08-3

May 5, 2009

Husband won his first appeal, in a decision requiring lower court to identify what provisions of 20-107.3 it had relied upon in dividing property. Appealing again, he alleges the trial court needed assign weight to each criterion.

Did the trial court need to state explicitly how much emphasis it placed on each equitable distribution criterion upon which it relied?

No, the statute does not mandate that.

Doering v. Doering, Record No. 1234-06-2, May 19, 2009

The parties signed a support agreement. At the divorce trial, the court found a material change in husband’s circumstances, reduced his support in the final decree, and declined to incorporate the agreement into the order. Wife appealed all three actions by the trial court.

Does VA Code Sec 20-109.1 require that the parties’ agreement be incorporated into an order of the court before the court modifies it?

No. The language of the statute specifically says that incorporation is optional. Husband’s income had declined significantly. The court was fully justified in finding a material change of circumstances, since the agreement permitted support modification on that basis.

Stroud v. Stroud, Record No. 1135-08-4, June 16, 2009

A lesbian receiving court-ordered support cohabited for more than thirty days in a relationship analogous to marriage. The parties’ agreement said such conduct would be a material change of circumstances. When the husband learned the wife was cohabiting with her lover, he stopped paying support.   In Stroud I, the Court of Appeals declared that a same sex couple could be the subject of a romantic cohabitation clause. Now Husband is back, this time to overturn the trial judge’s ruling that he owed attorney fees for breaching the agreement.


Does support payor owe attorney fees when wife violated the agreement first, he stopped paying support, and she sued him?

Yes. Husband violated the support order by terminating his payments. Wife’s violation may have been prior in time, but it remained unproven at that point; husband could not unilaterally disregard the support order. Romantic cohabitation is not a self-executing condition like a child coming of age; it has to be established at a hearing. Husband defaulted on the agreement by falling behind on support, so he now owes attorney fees.


            The Court of Appeals remand in Sheimbob is paradoxical. Sheimbob v. Sheimbob, Record No. 0135-09-1, November 24, 2009. The case deals with the labeling and tracing of marital and separate property incident to divorce. The issue remanded involves husband’s deposit of his separate money into wife’s separate account. The trial court calls it separate property conveyed as a gift. Because the judge did not say if the money was marital or separate after it was deposited, the appellate court remanded that issue for clarification.

            Here is the confusion: (a) Intra-spousal gifts are always separate property of the recipient; and (b) The husband's deposit into a separate financial account of the wife becomes her separate asset pursuant to Sec. 20-107.3(A)(3)(d) absent tracing, and there was no tracing performed here. This perplexing remand might be an application of the adage that no one can be expected to understand everything all of the time.

            Finally, I mention two opinions offering well-reasoned clarification of procedural issues in the areas of equitable distribution and spousal support.

            Duva is important to the understanding of separate and hybrid property. Duva v. Duva, 55 Va. App. 286, 685 S.E.2nd 842 (2009).  [See also Duva v. Duva, Record No. 0117-11-1, October 25, 2011.]  The opinion states characterization occurs at acquisition, not at some later time. The decision presents a cogent explanation of how marital or separate property may become hybrid under Virginia law.  

            Brown stands for the proposition that a new court order that does not supplant – and is not incompatible with – a prior order, should be enforced along with the prior order. Brown v. Brown, Record No. 0663-08-1, April 7, 2009. The facts involve amortization of a spousal support arrearage where the original obligation remains unchanged.

[1] Out of these ten (10) decisions, the Court of Appeals affirmed five, reversed three, and twice affirmed or reversed different parts of the same case. All ten were unanimous opinions by three-judge panels, written by just one of the panelists.