Divorce Appeal Dismissed For Inadequate Pleading

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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