Charlottesville Divorce Lawyer Rob Hagy

Another Lesson About Properly Preserving Appellate Issues

In the case of Brown v. Commonwealth of Virginia, the Virginia Court of Appeals, in an unpublished opinion, ruled that the Defendant was improperly convicted of misdemeanor abuse and neglect in violation of Virginia Code Section 18.2-371 because 18.2-371 is not a lesser included offense of the felony violation of 18.2-371.1, which was the code section under which the Defendant was indicted.

Analysis:  This case wasn't really about whether or not Virginia Code Section 18.2-371 was a lesser included offense of Virginia Code Section 18.2-271.1.  According to Virginia law, a lesser included offense is an offense which is composed entirely of elements that are also elements of the greater offense. An offense is not a lesser included offense of another if each offense contains an element that the other does not.  Interestingly, the defense attorney and the Commonwealth's Attorney agreed during this trial that the misdemeanor the Defendant was convicted of was not a lesser included offense of the felony on which she was indicted.

The case was really about whether or not the Defendant preserved the lesser included offense so that the Virginia Court of Appeals could hear the case.  During closing argument, the defense attorney stated that he would "defer to the court" since the court indicated that it believed the offense it convicted the defendant of committing was a lesser included offense of the indicted offense.  This did not waive the Defendant's objection to the court's classification of the offense as a lesser included offense.  Counsel for the defendant raised the issue on multiple occassions during the trial and plainly stated the arguments against the classification.  The issue was whether the defendant invited the error by deferring to the judge's classification.  The Court of Appeals ruling in this case reflects the fact that counsel for defendant was "simply recognizing the court's authority to interpret the law" rather than inviting the erroneous ruling.  I interpret this as a situation where the defense attorney following proper professionalism did not want to argue with the judge once the judge made it's intention to classify the offense as a lesser included offense.  However, it is always important to do whatever is necessary to preserve any appealable issues.  The Virginia Court of Appeals and the Virginia Supreme Court strictly applies its requirements that objections be preserved at the trial court level and dimissses many appeals each year for the failure to do so.

The Virginia Court of Appeals Issued No Published Opinions Yesterday

and issued three unpublished opinions.

How Divorce Impacts Your 401(k)

MSN. com and 360divorce.com have posted another outstanding article on the impact of divorce on your finances.  Click here to read more about 401(k)'s and how divorce can affect your 401(k) plan or your rights in your spouse's 401(k) plan.

How to Avoid Making Costly Financial Mistakes During your Divorce

MSN.com posted an article today from divorce360.com discussing some of the financial mistakes spouses make during a divorce.  This is a great article on how to separate the emotional from the financial aspects of the divorce, which is an excellent way to keep your overall divorce costs to a minimum.  Please click here to read the article in its entirety. 

Mr. Hagy Attends the 2008 Annual Divorce Practice Seminar Titled "Good, Better, Best, Perfecting the Appeal of Your Family Law Case"

On February 19, 2008, Mr. Hagy attended the 2008 Annual Divorce Practice Seminar Titled "Good, Better, Best, Perfecting the Appeal of Your Family Law Case".  Here is a list of the topics covered at the seminar:

Proper Preservation of Appeal Issues at Trial Level, Making the Record for Appeal, and Use of Motions to Reconsider • Trial-level issues such as making proper and specific evidentiary objections and objections as to relief granted, as well as preservation of those objections for appellate review. • Utilization of post-trial motions to preserve objections, proper assembly of the record through obtaining transcripts and/or statements of facts, and issues relating to bond requirements and staying of enforcement while the appeal is pending.  Selection of Appeal Issues, Compliance with Part 5A of the Rules of the Supreme Court of Virginia, Standards of Review and Effective Brief Writing • Trial-level issues such as making proper and specific evidentiary objections and objections as to relief granted, as well as preservation of those objections for appellate review • Designation of the record on appeal, strategies for selecting appeal issues • Compliance with all facets of Part 5A of the Rules and avoiding procedural default as a result of noncompliance • Exposing procedural default by the other side and techniques for presenting persuasive briefs Motions Practice, Attorney Fee Awards, Effective Techniques of Oral Argument and Remedies on Appeal • Motions practice before the Court of Appeals • Curing procedural errors • Requests for attorney fee awards • Preparation for oral argument • Proper focus of your oral argument • Strategies for presenting persuasive oral argument and remedies available on appeal

Trial Court Could Not Presume Husband Would Receive Discharge of Debt In Bankruptcy In Setting Spousal Support

In the case of Rogers v. Rogers, the Virginia Court of Appeals, in a published opinion, ruled that the trial court erred in awarding spousal support when it concluded it could not compare earlier expense figures to newly provided business expense figures and in presuming appellant would receive a discharge of debt in bankruptcy proceedings.