Month: May 2017

Where a spouse is served by publication in Virginia, will a divorce court allow an evidentiary hearing after dismissal based on a failure to file a timely answer following the re-opening of the case?

Not in Sharp v. Sharp, No. 2712-09-2, (Va. Ct. App. 2010), where the Virginia Court of Appeals summarily affirmed the ruling of the Circuit Court for the City of Hopewell, Commonwealth of Virginia, on wife’s second appeal of a dismissal.

The husband and wife were married for 21 years before the husband filed for a divorce.  The wife was served by publication, a process allowed in Virginia under Virginia Code Section 8.01-317 where a spouse whose whereabouts is unknown is notified of the divorce proceeding by an advertisement in the newspaper and/or posting at the courthouse door.  While service by publication can be used to obtain a divorce, it will not support a money judgment for support or equitable distribution of property because that kind of service does not confer personal jurisdiction over the defendant absentee spouse.  Six months after the divorce was granted, the wife filed a motion to re-open the case and set aside the default judgment.  The City of Hopewell Circuit Court judge granted wife’s motion and allowed her twenty-one days to file an answer.  The wife failed to file an answer in the 21 days and the husband filed a motion to dismiss, asking the Court to re-affirm the final divorce decree.  In response, the wife filed a responsive pleading opposing the husband’s motion, along with her late answer and counterclaim. Upon evaluating the motions, the trial court dismissed the case and affirmed the final divorce decree.  The wife subsequently filed two more motions to re-open the case and appealed, and in November 2009, the trial court again dismissed the matter. The first appeal was dismissed because wife failed to file a timely notice of appeal.

On appeal for the second time, wife argued that the trial court erred by dismissing the case and by abusing its discretion in not extending the time for her to file her answer to the complaint. The Virginia Court of Appeals ruled that wife’s claims were barred by res judicata. Res judicata is a legal doctrine that prevents a party from relitigating an issue already decided by a court on its merits.  ,  See Bates v. Devers, 214 Va. 667, 202 S.E.2d 917 (1974) .  The Supreme Court of Virginia, in the case of Lofton Ridge, LLC v. Norfolk Southern Rwy. Co., 268 Va. 377, 601 S.E.2d 648 (2004) described the application of the doctrine of res judicata as follows: “When the second suit is between the same parties as the first, and on the same cause of action, the judgment in the former is conclusive of the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined, within the issues as they were made or tendered by the pleadings, or as incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters, a new suit on the same cause of action cannot be maintained between the same parties.”  In this case, wife had previously appealed a decision of the Circuit Court of the City of Hopewell to the Virginia Court of Appeals on the grounds of error.  In her first appeal, wife had failed to file a timely notice of appeal.  The Court determined that wife’s second appeal was barred by the doctrine of res judicata, and refused to allow her to litigate again the issues she could have raised in her first appeal.

On appeal, wife also contended that the trial court erred in not conducting an evidentiary hearing on equitable distribution, child and/or spousal support, and attorney’s fees.  The Virginia Court of Appeals court could not determine whether wife had preserved this issue for appeal because she signed the final order “seen and objected to” with a statement of facts that did not reveal wife’s argument.  The appeals court noted that neither party presented any evidence or testimony at trial and that the wife failed to meet her burden in showing that the trial court had committed a reversible error. See Lutes v. Alexander, 14 Va. App. 1075, 421 S.E.2d 857 (1992). Because the appellate court will not search for errors or correct a party’s deficiencies to allow an appeal (See Buchanan v. Buchanan, 14 Va. App. 53, 415 S.E.2d 237 (1992) , the court held it would not address the final two questions presented in this appeal.

The appeals court did grant husband a reasonable amount of his attorney’s fees on appeal, using the standard of O’Loughlin v. O’Loughlin, 23 Va.App. 690, 479 S.E.2d 98 (1996).

You should consult with your Virginia divorce lawyer concerning the implications of setting aside a divorce decree based on service by publication.

Is a private school application a sufficient material change in circumstances in Virginia to modify a child support order?

Not in In re Marcel Minor, CL10-744, where the Richmond City Circuit Court judge held that the mother filing for the support change had not meet her burden of proof in establishing a material change in circumstances.

According to Virginia law, a parent can move for a modification of a child support order; however, as the Virginia Court of Appeals affirmed in Crabtree v. Crabtree, 17 Va. App. 81, 88, 435 S.E.2d 883, 888 (1993), “Once a child support order has been entered, only a showing of a material change in circumstances will justify modification of the support award. The moving party has the burden of proving a material change by a preponderance of the evidence.”   This is the same standard for changes in child custody and visitation.  Thus, although the Virginia court has continuing jurisdiction over child custody, child visitation, and child support, the court will not allow a party to retry essentially the same case again and again, the party must first show that there has been a material change in circumstances justifying a change in custody, visitation, or support.  Both the moving party and the defending party must be prepared to address this threshold determination in any hearing on a motion to modify an existing order.

In this situation, the mother argued that her son’s application to private school qualified as a material change in circumstances warranting an increase in the father’s child support obligation. As the Richmond City Circuit Court judge recognized, a parent’s decision to enroll a child in private school should not be considered a cost in fixing child support obligations. See Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994)  . However, the judge did observe that an obligation to pay for private school could arise if the party demonstrated a substantial need of the child to attend private school and the parent has the ability to pay. See Joynes v. Payne, 36 Va. App. 401, 551 S.E.2d 10 (2001). See also Ragsdale v. Ragsdale, 38 Va. App. 283, 516 S.E.2d 698 (1999).  Moreover, the Court noted that under the deviation standards in Va. Code §20-108.1, the expenses for private school enrollment could become a factor in determining whether to adjust the presumptive child support figure

Here, the Court found that the mother’s evidence did not meet the burden of proof by a preponderance of the evidence.  Because the application for private school was merely pending and the expenses listed only estimates of the future arrangement, she had not shown a material change in circumstances to warrant a child support modification order. Therefore, the Court held that the prior order and support level would remain the same.

You should consult with your Virginia family law lawyer to determine if a material change in circumstances justifies a change in child custody, child visitation, or child support in your case.

 

Will a wife be entitled to receive a portion of her husband’s Virginia Retirement System pension beyond her portion of the marital share of the Educational Employees Supplemental Retirement System identified in the separation and property settlement agreement?

Not in Roth v. Roth, Record No. 1332-10-4, where the Virginia Court of Appeals upheld the trial court’s decision that the pension payments were limited, and ex-wife could only receive those benefits that were originally contemplated by the parties in the agreement.

According to the Separation and Property Settlement Agreement, the parties agreed that wife would receive a monetary award from husband’s pension benefits in the Educational Employees Supplemental Retirement System. The agreement stipulated that the sum would equal forty percent of each payment or disbursement received, multiplied by a fraction representing the marital share, i.e., the numerator being the number of years the parties were married and the denominator being the total number of years of county employment. Furthermore, the agreement stated that it would serve as the authorization to the Virginia Supplemental Retirement System (the administrator of the pension benefits for the Fairfax County School Board) that wife should receive her share of the benefits upon payment of the pension plan.

After the parties submitted the agreed Qualified Domestic Relations Order (QDRO) naming wife as an alternate payee of husband’s pension interests, counsel for the Educational Employees Supplemental Retirement System (ERFC) of Fairfax County objected, insisting that the under the then-controlling Virginia Code provisions (§51-112 and §51-127), wife could not directly receive payments. However, these Virginia Code sections were later changed, and the applicable provisions under Title 51, section 51-127.1 were deleted.

As a result of the change in the Virginia Code, the Virginia circuit court judge entered an Amended Qualified Domestic Relations Order providing for wife’s interest payment in the Educational Employees Supplemental Retirement System (ERFC) on July 8, 1997. Furthermore, she would directly receive payments, in accordance with Va. Code §20-107.3 (G)(1). Effective July 1, 1999, she would receive payments representing forty percent interest in the marital share of Mr. Roth’s benefits under the ERFC. On June 30, 1999 Mr. Roth retired, and since retirement he has received benefits from the Virginia Retirement System instead of the ERFC due to his employment through the Fairfax Board of Educational.

In this case, Mrs. Roth argues that she should receive a fractional interest in Mr. Roth retirement as a result of his employment with the Fairfax Educational Board and the participation in the Virginia Retirement System. In determining this question, the Court noted the words of the General Assembly, stating, “Legislation which effects a change in the amount of the retirement benefit other than a post-retirement supplement shall be construed to effect only the benefits of those persons who qualify for retirement allowance on or after the effective date of the legislation.” Va. Code §51.1-124.8.

Mrs. Roth alleged that, even though the Virginia Retirement System was not in existence at the time the parties created their separation agreement, she should receive a portion of these payments because they constituted “retirement benefits through his employment.” Her counsel alleged that the word “including” in the agreement was a term of enlargement, thereby conveying other benefits not specifically enumerated. See Nextel WIP Lease Corp. v. Saunders, 276 Va. 509, 517, 666 SE2d 317 (2008).

The Court, however, rejected this argument, holding that the retirement benefits were an identifiable property interest rather than a mere expectancy. Furthermore, the Court held it was the existence of the retirement pension resulting from Mr. Roth’s employment that the parties specifically contemplated in the Agreement and nothing beyond those payments. Therefore, because the testimony supported the conclusion that the parties only contemplated those specific payments, the Court held that Mrs. Roth would only be entitled to receive pension benefits from his employment, not those upon his retirement.

You should consult with your Virginia divorce lawyer concerning your rights in your spouse’s retirement plans.

 

What remedy exists for the division of the residence of an unmarried couple in Virginia?

When a couple divorces in Virginia and are unable to agree on the division of their marital property and the allocation of their marital debts, either party can request the court to settle these matters under Virginia’s equitable distribution statute, found in Virginia Code Section 20-107.3 .  What happens to the property of a couple who live together, but are not married?  The typical remedy would be a request for a partition of the property, supported by Virginia Code Section 8.01-81. In Steenburgh v. Weaver, Case No. CR096000685-00, the Hanover Circuit Court recognized the right of the female partner to compel partition, and allotted the whole real property to her, with an award of contribution to her male partner.  Although the case does not directly concern the interplay between bankruptcy and divorce law in Virginia, it does shed light on the remedies available to a couple living together without marriage.

At issue in this case was a single-family residence located in Mechanicsville, Hanover County, Virginia, which the parties had acquired on November 30, 2000.  At that time, Ms. Steenburgh and Mr. Weaver were engaged in a romantic relationship, and over the next few years they resided in the Mechanicsville house and had a child together. After their relationship deteriorated, however, Ms. Steenburgh filed an action requesting partition.

According to the Hanover Court, the rule is if the property can be divided, then any co-owner can request partition. (See 14A Michies’ Jurisprudence, Partition, §19 (2008)).  Furthermore, the Court used the Virginia Code in determining how the partition should be made and what to do when partition was not the best option. Under Va. Code §8.01-83, “When partition cannot be conveniently made, the court may allot the whole to any party who will take it and pay in money their respective shares to the others, it may sell the whole and divide the proceeds, or it may sell a part and divide the rest.”

In this situation, the Court held that because the property at issue was a single-family residence in a subdivision, it could not be partitioned easily, and, thus, allotment in whole was the most appropriate remedy. To determine who would receive the allotment, the Court examined the facts and established that Ms. Steenburgh had provided for the down payment of the residence in the amount of $42,000. Furthermore, the Court found that Steenburgh had provided for significant improvements and upgrades made on the property.  Mr. Weaver, on the other hand, paid the mortgage and casualty insurance since the procurement of the property. Steenburgh alleged, however, that her contributions had transformed the house into a home, and the Court held that her argument was the most persuasive in why she should retain the property.

The Court concluded here that because Weaver had paid the principal in the amount of $22,109.04, his share should be compensated for the sake of fairness and equity. Furthermore, his contributions of $5,769.29 for insurance required compensation from Ms. Steenburgh. Therefore, the Court held that while Steenburgh retained the property, she had to compensate Weaver in the amount of $24,993 for his respective share of contributions to the residence.

You should consult with your Virginia family law lawyer concerning the division of property acquired in a non-marital domestic partnership.