I.            Reported Cases —  West, Stevens and Cranwell:

            West v. West, Record No. 0448-11-3, (December 13, 2011), deals with the finality of court decisions after a final decree and an appeal.  In this case, the court of appeals reversed and remanded to circuit court for recalculation of the maintenance cost of easements. Instead of limiting itself to the monetary issue, the circuit court proceeded in the context of the remand to change the easement’s physical dimensions.

            The “law of the case” dictates that any issue not appealed from a final order cannot be revisited after 21 days.[1]  Metes and bounds were not part of the appeal, so the trial court exceeded its authority in re-opening that issue in the context of the remand.

            The “mandate rule” limits trial court jurisdiction on remand to matters specifically addressed and to their antecedents.  For example, on a remand to revise a criminal sentence, the trial court cannot dismiss the underlying indictment; since the indictment is an essential prerequisite to the conviction and sentencing.  In other words, by dismissing a case, a trial court would be ignoring the appeals court directive to revisit a particular stage of the proceeding; and that is not allowed.

            The importance of West for family law practitioners is that material facts arising after the date of the appeal remain within the purview of the circuit court, and can be litigated at any time even if an appeal is unresolved.  Those new facts may deal with pendente lite support, custody or visitation.  Furthermore, when the trial court revises a temporary support award, it is not required to state the basis for its action.


            Stevens v. Stevens, Record No. 0498-11-3, (December 13, 2011), involves a husband who improvidently transferred inherited farm property out of a family trust (where his share was separate property, 100% his alone) into his name and his wife’s name (where it became marital property).  The key statutory provision is VA Code § 20-107.3(A)(3)(f), which states that “to the extent the property is retraceable by a preponderance of the evidence and was not a gift, the retitled property shall retain its original classification.”

            Husband made mistakes that cost him the “separate property” classification, and resulted in wife receiving part of his inheritance at equitable distribution (“ED”).  First, partial consideration for the transfer from the family trust was proceeds of sale of husband and wife’s home, which itself was marital property.  And second, nothing in the transaction with the trust mentioned the word “gift”.  (If the deed from the trust had said “This is not a gift,” then the result as to the inherited portion of the farm might have been different.)

            Cranwell v. Cranwell, Record No. 2677-10-4, (December 13, 2011) is a published decision partially reversing a support modification ruling by Judge Designate J. Howe Brown, in Arlington County (Virginia) Circuit Court.

            The parties were divorced in 2007 and wife received alimony and child support.  Husband (represented by Robert J. Surovell, Esq., of Fairfax) was seeking a reduction in both support amounts.  His attack on the alimony was an attempt to terminate it forever in accordance with their letter agreement, on the basis that wife was engaged in “cohabitation, analogous to a marriage” with a boyfriend she had been sleeping with for years.  Judge Brown correctly rejected this argument.  The parties had separate homes on opposite coasts of the U.S., no keys to each other’s residence, no assumption of marital duties and obligations, and very little personal property at the other’s home.  Bluntly stated, a cabin attendant from Virginia is not cohabiting with her Los Angeles boyfriend by sleeping at his place during her layovers on the West Coast.  The court points out that it is possible for two people to each have their own home and cohabit in one of them.  But it did not happen here.

            The second rationale for adjusting support seems obvious:  Virginia Code § 20-108.2(C) specifically includes spousal support in gross income.  Yet, Judge Brown excluded husband’s one-time, substantial spousal support arrearage payment from wife’s income because his alimony stream was so unpredictable.  The appeals court said that predictable or not, the money was paid; it had to be taken into consideration when calculating child support.           

            Ironically, the husband may not see any child support reduction on remand, even though he won his argument in the higher court.  If Judge Brown includes the lump sum spousal support payment towards the arrearage in re-calculating the presumptive guideline amount; he could then subtract that same amount from wife’s income as being a one-time aberration.  A deviation from guideline support, if it were introduced in writing in this two-step manner, would probably withstand appeal!

II. Unpublished Cases – Makoui and Coleman.

            Makoui v. Makoui, Record No. 0672-11-3, (November 22, 2011), addresses the validity of a premarital agreement (“PMA”).  Wife apparently lost her copy after signing and husband refused to provide her with another one, claiming he had torn it up and “it wasn’t for [wife] anyway.” 

            When the marriage unraveled, wife discovered husband had substantial stock he had not disclosed in the PMA, so she sought unsuccessfully to have the PMA set aside.  The circuit court found the agreement to be valid, and wife appealed.             
            The court of appeals affirmed, determining that wife had failed to prove by clear and convincing evidence that the PMA was unconscionable within the meaning of VA Code § 20-151(A).  Some of the stock listed in the PMA was not valued at trial.  Other assets in the PMA, when added to the stock actually valued in the PMA, brought husband’s declared net worth reasonably close the net worth wife proved at trial, so there was no egregious understatement of assets by the husband.  Wife failed to establish detrimental reliance on the PMA.  And finally, PMA’s can only be rescinded by mutual agreement in writing according to Virginia Code § 20-153, and there was no such writing here.  Consequently, it made no difference whether husband had destroyed the only original or not; the PMA was still in effect.

            Husband took a long time to produce the PMA in circuit court.  While he was delaying, his court-ordered support was higher than the PMA would have allowed.  After the court reviewed the PMA, it reduced support going forward but did not credit excess support in prior months.  The court of appeals found no abuse of discretion.


            Coleman v. Coleman, Record No. 0633-11-2, (November 22, 2011), re-stated the rule that imputed income is within the sound discretion of the trial court and will not be reversed unless plainly wrong or unsupported by evidence.  The opinion reversed and remanded a spousal support award because the trial judge did not refer in writing to the specific sections of Virginia Code § 20-107.1(E), as required by § 20-107.1(F).  All the judge had said to counsel was for them to run the numbers according to Henrico County guidelines.

III.  Circuit Court Opinions

            Carter v. Carter, City of Salem Circuit Court, CL 09-524, VLW 011-8-210, (November 16, 2011), is an equitable distribution case nominally involving adultery, but more cogently consisting of an outrageous case of spousal abuse. 

            This lengthy final decree is noteworthy for how badly husband behaved and how little his misconduct cost him in financial terms. The court describes husband as disingenuous, misleading and self-serving, yet those words seem to understate the severity of his conduct.  Wife had set aside her own education to home-school seven children over a period of sixteen years.  As a result of her activity in the home, she had no job skills and no gainful employment.  Husband voluntarily impoverished himself, cut off wife financially, and caused substantial marital funds to disappear — in a manner wife was unable to reconstruct —  immediately prior to the ED.  Husband reviewed wife’s expenditures and debit card on a daily basis (making her pay back any over-spending), followed her vehicle with a GPS tracker, and checked her cell phone activity.  He treated her like a child.  When she tried to escape from him by locking herself in a separate bedroom, he picked the lock.  He called down biblical admonitions.  Terrified, she became – according to the court — so oppressed, stressed and depressed that she had to flee. 

            Her adultery came later.  However, if you commit adultery in Virginia, you cannot receive spousal support unless there is manifest injustice.  The trial judge did not find manifest injustice on the facts presented here, so wife received no spousal support.  This is harsh, given her circumstances.  But with the court imputing an ability to earn the minimum wage (minus statutory support for her child out of wedlock), it does not appear to be clearly erroneous.

            The division of property tipped somewhat in wife’s favor.  Husband’s retirement was divided equally.  (His imputed income was $100,000.00 a year.)  Attorney fees and a $14,000 tax refund were split 50-50; and husband was required to pay the entirety of $3,675.00 in guardian ad litem fees.   Husband paid down the mortgage by $9,000.00 from date of separation to date of divorce, so the judge awarded him $9,000.00 of separate equity in the home, effectively reducing the marital equity by that amount.  Wife received 69% of the marital equity of $135,000.00, which came to $93,000.00.  This was $25,000.00 more than she would have had if the marital portion of the property had been divided equally.  (Presumably, this weighed the 20-107.3 factors, and took into account husband’s living rent-free in the former marital home.)

            The ED award is arguably within the realm of judicial discretion, yet wife did not fare well under the circumstances.  She had quit college in her third year when she became pregnant with the parties' first child and never went back.  Sixteen years made it a medium-length marriage.  The marital abuse by husband should have weighed heavily in the destruction of the marriage, while wife’s adultery after having been constructively driven out of the home should have counted less.  The marriage was already over.  Wife’s non-monetary contribution in home-schooling seven children should have fully counterbalanced husband’s earned income.  The $25,000.00 differential wife received in marital home equity could be earned back by Husband in three months; while at wife’s subsistence rate of pay (assuming she could find work), earning that amount would take over two years.

            This blogger is disappointed the Carter wife did not receive more of the marital estate.  But he recognizes the reality that Virginia has a Draconian spousal support forfeiture statute.  For abused, economically disadvantaged, adulterous parties to receive spousal support from a Virginia court despite their adultery will require changing the law.  However, if the Virginia General Assembly considers adultery to be a greater fault than the spousal abuse that may have led to it, don't look for change any time soon.

            Birchfield, Record Nos. 0938-11-3 and 0940-11-3, (November 29, 2011) is an unpublished per curiam opinion of the Court of Appeals of Virginia affirming termination of both parents’ parental rights.  Each parent had issues impacting their ability to raise children, and each failed to remedy the situation within a reasonable time.  Dad failed to remain in contact with the Department of Social Services when he was the sole parent at home.  Mom failed to complete her anger management class.  In this case it seems fair to say that the parents lost their kids at least in part due to reasons – unlike addictive behavior – that were entirely within their control.

[1] This is the “21-day rule” delimiting revisory power over a judgment.  It appears at Rule 1:1 of the Rules of the Virginia Supreme Court.  If a trial court is to revise a final order, then the revised order — and not just the motion requesting it — must be filed within the 21 days.