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Divorce

11/24/2009
Mark D. Dix
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Tardiness Not Tolerated In Divorce Cases

In Bennett v. Bennett, the Virginia Court of Appeals held that challenges to a divorce decree filed after 21 days had passed were unacceptable.

In June 2008, husband filed for divorce in Newport News Circuit Court. Depositions were taken to establish relevant information in anticipation of the divorce, and the court granted husband's final decree of divorce shortly thereafter. A week after the court issued the divorce, wife filed an answer. Three weeks later wife argued that the initial divorce decree was in violation of court rules, and asked the circuit court to vacate the divorce decree.

The Virginia Court of Appeals held that, even if there was a violation of the rules of court, the circuit court no longer had jurisdiction to vacate the divorce decree. Essentially, once three weeks pass, trial courts in Virginia are without power to modify or nullify their orders.

Because divorce and other orders are only subject to modification for a short period of time, it is essential to retain counsel that will be attentive to the deadlines in your case. It is similarly important that your attorney be conversant with you regarding the disposition of your case in the trial court and your options for appealing the decision if desired. This case also reiterates a little-known fact: that procedural rules of court can be as crippling to your case as the substantive law.

Labels: appeal divorce

10/29/2009
M. Scott Bucci
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Divorce Appeal Dismissed For Inadequate Pleading

In Kablach v. Kablach, the Virginia Court of Appeals affirmed the trial court's holdings, all of which were in wife's favor. In this case, husband and wife married in 1983. In 1999, wife had brain surgery and suffered decreased mental capacity as a result. In 2002, husband moved from the marital residence and began using joint assets for business transactions in his name only. In late 2002, husband had a separation agreement drawn up and executed by his diminished wife. The agreement provided for a limited amount of spousal support for a defined duration and a limited equitable distribution award.

After consulting an attorney, wife filed suit in circuit court, seeking to set aside the separation agreement. The trial court found the wife did not have the mental capacity to enter into the separation agreement, and it amended the divorce decree to provide extended monetary benefits to the wife.

Husband appealed the trial court's revision of the divorce decree. However, in the appeal he submitted to the Court of Appeals, husband failed to a transcript of the relevant proceedings from trial court for the appellate court to review. Failing to include the trial transcript violates Supreme Court of Virginia Rule 5A:27 and precluded the court of appeals from finding for the husband. In addition, husband failed include the principles of law to guide the court in his arguments and did not cite to any legal authorities. Both of these failures violate Supreme Court Rule 5A:20. On these grounds, the court of appeals summarily affirmed the trial court and upheld its revised divorce decree in favor of the wife.

There are two lessons to be learned from this case. First, take care to review the rules of court in whatever venue your lawsuit is being filed. The rules of court are often as important as the substantive law; both can preclude a ruling in your favor. Second, it is good practice to seek a local attorney who is familiar with the local rules of court as well as trial and appeal procedures.

Labels: appeal divorce

10/21/2009
M. Scott Bucci
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Failure To Attend Divorce Hearing Costs Husband Thousands

In Darley v. Darley, the Virginia Court of Appeals summarily affirmed the Prince William County Circuit Court’s award of spousal support to Ms. Darley.

The Darleys were married in 1971. During their marriage, Mr. Darley was in the military. In 1999, husband and wife separated and husband moved to Panama. Since 2001, husband paid $500 per month in spousal support according to a spousal support order in Virginia Juvenile and Domestic Relations Court. Sometime in 2007, husband obtained a divorce in Panama, and in 2008 he asked the Prince William County court to acknowledge to foreign divorce. Because he still lived in Panama, the husband did not attend the divorce hearing. The wife testified that she was unemployed and unable to find work. She was also on Social Security and relied on her children and credit cards to meet her living expenses. Without testimony from the husband, the court awarded wife 50% of the husband’s military retirement pay, $600 per month in spousal support (rather than $500), and $1,500 in attorney’s fees.

The husband challenged this decision, arguing that the trial court could not award so much to his former wife when there was no evidence that he had any income in addition to his military retirement pay. He also argued that the increase in support was unwarranted. Citing the husband’s failure to appear at the divorce hearing, the court affirmed both decisions of the trial court. Since the husband did not appear to testify about his sources of income or to refute the wife’s testimony about her costs of living, he was unable to challenge the trial court’s rulings.

Labels: appeal divorce

Labor & Employment, Civil Rights and Discrimination

4/15/2009
Mark D. Dix
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Whistleblowers win partial victory

The U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia reversed a lower court’s decision to set aside a $10 million verdict rendered by a jury against a government contractor and in favor of two whistleblower employees of the company, in a civil fraud case arising as a result of government contractor services provided by the company in Iraq.

Labels: appeal fraud labor and employment qui tam whistleblower

Evidence

4/22/2009
Hunter W. Jamerson
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Virginia Supreme Court to Consider Podiatrist Evidence

The Virginia Supreme Court in Richmond today announced that it will hear the appeal of an injured Roanoke man. The injured railroad worker sought to introduce causation evidence at trial from a treating podiatrist. His request was denied by a Roanoke trial judge, however, because podiatrists do not have same statutory exemption under Virginia law that chiropractors enjoy. That may change, however, after the Virginia Supreme Court considers the case.

Labels: appeal evidence expert