Month: July 2017

Will a Virginia court award attorney’s fees to a husband in a divorce case when the husband refused to make efforts to settle?

Not in Blackwell v. Blackwell, Record No. 1229-10-2,  (Va. App. 2010), where the Virginia Court of Appeals held that the husband’s appeal from the Circuit Court of Chesterfield County lacked merit because the wife’s motions and depositions were not frivolous, and the award of attorney’s fees was within the court’s reasonable discretion given that the husband had not attempted to settle the issues of the case.

The parties were married for four years before they separated for a year and subsequently divorced. The husband filed a complaint for a no-fault divorce in the Circuit Court of Chesterfield County. The wife filed an answer and counterclaim and submitted discovery requests to husband. At the final hearing, the Chesterfield County Circuit Court judge accepted the parties’ arrangement in awarding the marital home to the husband.  In addition, the Court equitably divided the parties’ retirement, ordered the parties to sell and split the profits of their joint timeshare, and awarded attorney’s fees to the wife.

Following entry of the final decree of divorce, the husband appealed, arguing that the Chesterfield County Circuit Court judge should not have awarded attorney’s fees to the wife for three reasons: 1) she filed a “frivolous” motion to compel then failed to appear in court; 2) she took “frivolous” de bene esse depositions; and 3) purposefully extending the court proceedings.

First, he asserted that the wife’s motion was “frivolous” because it did not comply with Rule 4:12 (a) and the wife did not appear at the hearing. The wife had not shown up at the hearing when she learned that the matter had not been put on the court’s docket; the husband was present, but the matter was not heard. On appeal, the Virginia Court of Appeals held the wife’s motion had not been frivolous, and the divorce court judge was not in error by awarding attorney’s fees to the wife.

Second, the husband challenged the court’s award because the wife took “frivolous” de bene esse depositions of himself and herself .  In reviewing the case, the court noted that the wife’s counsel only questioned the husband regarding the former martial residence and the timeshare. Because the Chesterfield County Circuit Court accepted evidence by deposition and the questions concerned equitable distribution, the Virginia Court of Appeals held that the depositions were not frivolous.

Finally, the husband argued that he should have received the award of the attorney’s fees because the wife had engaged in vexatious conduct. Upon review, however, the court found no evidence of vexatious conduct; rather, it noted that the wife had only objected to the husband’s entry of the final divorce decree because he had not resolved the equitable distribution issues. Furthermore, the court held that there were no unreasonable delays in the proceedings.

In reviewing the law and standard of review for appeals, the Virginia Court of Appeals noted that “As long as evidence in the record supports the trial court’s ruling and the trial court has not abused its discretion, its ruling must be affirmed on appeal.” Brown v. Brown, 30 Va. App. 532, 538, 518 S.E.2d 336, 338 (1999).   “[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion and is reviewable on appeal only for an abuse of discretion.” Richardson v. Richardson, 30 Va. App. 341, 516 S.E.2d 726 (1999) .  Although the husband alleged that the trial court erred in its award, the Court reaffirmed the standard in McGinnis v. McGinnis, “The key to a proper award of counsel fees [is] reasonableness under all of the circumstances revealed by the record.” McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985).   Because the record and the evidence indicated that the award was reasonable based on the facts and circumstances of the case, the court found that the husband’s appeal lacked merit. Moreover, the Virginia Court of Appeals stated that because the husband filed his complaint for divorce without trying to settle the issues and then tried to obtain a divorce without resolving equitable distribution or otherwise settle the case, the trial court correctly awarded the attorney’s fees to the wife.

You should discuss whether you might be awarded attorney fees in your divorce case with your Virginia divorce attorney or Richmond divorce lawyer James H. Wilson, Jr.

 

 

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Can a husband who prevents his foreign born wife from entering the U.S. obtain a divorce in Virginia?

Not in the case of Subramanian v. Ravichandran, Case No. CL-2010-4118 (Va. App. 2012), where the Virginia Circuit Court judge denied a divorce to a husband who frustrated his wife’s re-entry into the United States, on the equitable grounds of unclean hands.

The parties were married in India and subsequently moved to Virginia, where the wife retained a H-4 Dependent Visa (meaning her visa for residence in Virginia and travel to and from the United States depended upon her husband). After approximately a year of marriage, the wife returned to India, and according to the husband, the parties intended the separation remain permanent. Two years later, the husband filed a complaint for divorce in Virginia, seeking a divorce on the grounds of desertion and/or mental cruelty, or alternatively, one year of separation, pursuant to Virginia Code §20-91(9). The wife filed a response to the complaint, and in her response she alleged that the husband was restricting her from entering the United States to contest the divorce. (Due to her H-4 visa, she could not return without the husband’s consent). The Circuit Court held a hearing where the husband presented evidence to obtain a divorce under Virginia Code §20-91(9), and during the hearing he admitted to refusing the wife’s re-entry into the country.

In determining whether to grant the divorce, the Circuit Court examined the issue of whether the husband was entitled to a divorce when he had admitted to restricting his wife’s entry into the United States to contest the divorce. According to the husband, his petition was simply an ex parte divorce action, and given that he is a Virginia resident and has met the statutory requirements of Virginia Code §20-91(9), the Court must enter the divorce, regardless of his wife’s absence and the cause for her absence. The Court noted that under Virginia Code§20-91(9), either spouse may petition for a divorce if the parties have lived separate and without cohabitation for a period in excess of a year. In addition, the Court may grant an ex parte divorce when the defendant is absent or the Court lacks jurisdiction. See Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894 (Va. Ct. App. 1994).

Here, the Court disagreed with the husband’s position on the issue and affirmed that this case was not an ex parte divorce, because the wife had filed an answer in which the wife expressed a desire to contest the divorce. Furthermore, it could not be an ex parte matter, because by filing her answer, the wife consented to the Court’s jurisdiction. See Nixon v. Rowland, 192 Va. 47 (1951)(holding that a general appearance in a case grants the court jurisdiction over the person). In addition, the Court stated that the wife’s absence and the reason for her absence were significant in determining whether to grant the divorce. As the Court noted, under Virginia law, a party coming before a court of equity must have clean hands, and that party must refrain from an inequitable or wrongful conduct in the subject or case at issue. Richards v. Musselman, 221 Va. 181, 267 S.E.2d 164 (1980) (noting that the Court may deny equitable relief to any party who comes to court with unclean hands). Because a divorce case is an equitable proceeding, it falls under the purview of this doctrine. See Dritselis v. Dritselis, 2005 Va. App. 451 (Va. Ct. App. 2005). Therefore, the husband’s actions played a role in determining whether he possessed clean hands before the court.

Upon a review of the evidence, the Circuit Court held that the husband did not have clean hands and, thus, was not entitled to the relief sought by his divorce action. Because the husband affirmatively restricted his wife’s re-entry to contest the divorce, he clearly acted wrongfully, and the doctrine of unclean hands applied. In addition to those reasons for denial of the husband’s petition, the Court affirmed that entry of a final divorce decree would prevent the wife from seeking either spousal support or equitable distribution. See Toomey v. Toomey, 251 Va. 168, 465 S.E.2d 838 (1996) (holding that the trial court loses jurisdiction to decide support issues twenty-one days after the final decree has been entered). In this case, that decision would foreclose any option for the wife to litigate those issues, because she could not gain access to the Court. This inequity and the husband’s unclean hands, therefore, gave the Circuit Court the basis for its denial of the husband’s divorce request under Virginia Code §20-91(9).

You should contact your Virginia divorce lawyer or Richmond divorce lawyer James H. Wilson, Jr., to discuss how actions leading to the filing of the divorce case may affect the outcome.

Will a Virginia court reduce spousal support when the husband loses his job?

Not always, according to the unpublished opinion of  Lewis v. Lewis, Record No. 1230-10-2 (Va. App. 2010), where the Court of Appeals of Virginia determined that the husband’s termination did not reflect a material change of circumstances bearing on his ability to pay the support amounts entered in the final divorce decree.

The parties were married for thirty-nine years prior to their separation, and the final divorce decree was entered two years later. In the final decree, the Circuit Court established the guidelines for the husband’s payment of spousal support. At the time of the divorce, the husband was employed and earning a fairly substantial income and the wife was unemployed.

Seven years later, the husband’s position was eliminated, and he was forced to pay for his own medical insurance benefits. Consequently, the husband filed a motion to reduce or terminate his spousal support. At that time, the wife was middle-aged and suffered from a serious degenerative disease. The husband, prior to the filing of his motion, however, had purchased a second residence with his fiancée. Thus, at the time of hearing, he owned two residences: his primary residence with no mortgage and a second home with mortgage payments and necessary repairs. At the hearing, the Virginia Circuit Court held that the husband did not prove a material change in circumstances, because “[w]hile there has been a slight reduction in [the husband’s] income due to his termination, [husband] continues to own substantial assets and has voluntarily taken on financial obligations.”

In his appeal, the husband argued that the Circuit Court erred by comparing his income and expense statement at the time of the divorce with his income and expense statement at the time of the hearing. At the hearing, the Circuit Court concluded that the financial reports reflected a decrease of only a few hundred dollars. In addition, the fact that the husband “voluntarily obligated himself on a mortgage for the second house” and had substantial assets (including the houses and funds in a bank account and 401(K) plan) supported a finding of no material change in circumstances. Furthermore, the Court found that the husband’s expenses were “inflated” because they included his fiancée’s expenses as well as his own. Therefore, the Circuit Court ruled that there had been no material change.

In reviewing the husband’s appeal, the Court of Appeals noted Virginia Code §20-109, which states, “Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance . . . as the circumstances may make proper.”  Moreover, the Court recognized that the party moving for a modification of support bears the burden of proving both a material change in circumstances and that the change warrants a modification of support. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 383 S.E.2d 28 (1989). That material change in circumstances “must bear upon the financial needs of the dependent spouse or the ability of the supporting spouse to pay.” Hollowell v. Hollowell, 6 Va. App. 417, 369 S.E.2d 451 (1988). In this case, the Court of Appeals found that the evidence supported the Circuit Court’s decision and affirmed that there had been no material change in circumstances warranting a reduction or elimination of the husband’s spousal support obligations.

You should consult with your Virginia divorce lawyer, or Richmond divorce lawyer James H. Wilson, Jr., Attorney & Counsellor at Law, to discuss your propects for a modification of spousal support.