Charlottesville Divorce Lawyer Rob Hagy

Richmond City Circuit Court Dismissal of Termination of Parental Rights Case is Reversed in favor of Richmond DSS!

In this termination of parental rights case re the City of Richmond Department of Social Services v. J. Wells and D. Roane (biological parents), the Circuit Court dismissed the termination petition against Ms. Wells and Mr. Roane due to the DSS not providing clear and convincing proof that the biological parents or the caretakers had actually harmed the young child. Despite rib fractures, unusual inside back of the throat injuries and wrist injuries all at under 3 months old, the father canceling follow-up hospital appointments, convincing testimonies from therapists and professionals concerned with the behavioral patterns of the parents and the lack of completion of most DSS suggested services - even after one year - the Circuit Court ruled that the child was better off with the biological parents. 

On appeal from the Richmond Department of Social Services the Court of Appeals reviews excerpts from the Circuit Court hearing and includes as part of their decision:   

"At the end of the case, the court ruled that the Department failed to carry its burden under either Code § 16.1-283(B) or (C)(2). The court determined that the Department failed to prove that mother and father were the individuals responsible for causing J.R.’s injuries, which the court considered to be a prerequisite for termination. The court cited due process concerns and stated, “In this [c]ourt, it matters who did it and when.” It found that the Department was required to present “more substantial evidence implicating each one of the persons.” The court also ruled that the Department did not prove that termination was in J.R.’s best interests. The court referred to J.R. calling mother “mom,” found that there was evidence J.R. and his biological family had a “connection,” and pointed out that the grandmothers had raised “about ten [other] children” without claims of abuse. The court further found that the child’s injuries did - 10 - not amount to a “death-like situation” and commented that “you’ve got a bruise and you’ve got fractures. And fractures are easy to occur. There are people walking down the street and get fractures or trip up and get fractures. So there’s no explanation of that fracture process.” The court also noted that father took J.R. to the skeletal survey and queried, “[W]ould somebody beat up a kid and then take him to the hospital?” Five months later, on September 20, 2021, the court entered the final order denying the Department’s petition to terminate mother and father’s parental rights and remanding the case to the JDR court.

Continuing its review of the Circuit Court's hearing and dismissal of the termination, the Court of Appeals boldly disagrees on every issue with the City of Richmond Circuit Court in reaching its decision and ultimately stated: 

 Based on the record before us and applicable law, we are compelled to hold that the court’s decision to dismiss the termination petition was plainly wrong and without evidence to support it because the Department’s evidence established the elements of Code § 16.1-283(B) by clear and convincing evidence. Accordingly, we reverse the judgment of the circuit court, terminate mother and father’s parental rights under Code § 16.1-283(B), approve the Department’s foster care goal of adoption, and remand the matter to the circuit court for any other further proceedings as necessary. See Code § 16.1-283(F).

Local courts do not always get it right. This one did not, and the Appeal prevailed providing help and hope for this child. The Rule of Law stands as your best advocate and an Appeal is a legitimate option! 

 

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at rob@robhagylaw.com. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

Lack of Engagement, Lack of Follow Through and More and More Drugs, lead to Termination of Parental Rights.

Out of Chesterfield County comes this Appeal of a Termination of Parental Rights case. 

In Cannon v. Chesterfield-Colonial Heights Department of Social Services, father appeals the Termination of Rights ruling from the Circuit Court of Chesterfield County because his motion for continuance (due to a change in his attorney three months prior) on the last day of trial was denied. Of mention, father had previously appealed the JDR termination ruling to Circuit Court. 

“The decision of whether to grant a continuance is committed to the discretion of the trial court. We will reverse ‘a trial court’s ruling on a motion for a continuance . . . only upon a showing of abuse of discretion and resulting prejudice to the movant.’” Shah v. Shah, 70 Va. App. 588, 593 (2019) (alteration in original) (quoting Haugen v. Shenandoah Valley Dep’t of Soc. Servs., 274 Va. 27, 34 (2007)).

"Father contends that the circuit court abused its discretion by denying his motion for a continuance. We disagree".

The 2 minor children, both born into addiction, now have the opportunity to live healthy and productive lives without the interference of drugs. Again, the DSS does the hard but necessary thing and takes these very young children out of a no-win situation. A 15-month-old experiences withdrawal for 4 months! If ever you have seen a drug addicted baby in the NICU, it is a sight you do not forget. 

"When S.C. first entered foster care, she was fourteen months old and weighed only fifteen pounds. While in foster care, S.C. steadily gained weight, reaching 25.8 pounds by the time of the circuit court hearing. S.C. also completed feeding and speech therapy and was “a very active and busy little girl” according to her foster mother. D.C. experienced withdrawal symptoms for four months after being born substance exposed, however during the circuit court hearing, both children were described as “developmentally on target.”

While the appeal was denied based on appropriate legal merits, what was not denied was a chance at life for the 2 minor children who did not have the ability to detox or thrive on their own. This is another case where the best interests of the children prevail. 

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at rob@robhagylaw.com. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

 

Broken parental relationships and the importance of the GAL!

This case comes from the Circuit Court in Amherst County. 

 Appellant Christopher Hill disputes both of the Amherst County Circuit Court's decisions to grant custody to the mother and finding there was no good reason to remove and replace the GAL. In Christopher Hill v. Shanita Hill, the father was mostly absent from his twin girl's lives. When he did see them, it was volatile, with him calling them "bullies" and ultimately causing them to be afraid of him. He did however move from Florida to Virginia to try to build a relationship with them, but it just didn't happen. Mr. Hill has PTSD and was on medication and believed that to be the reason he was so easily agitated. He also claimed that because the GAL in their case knew the judge's wife, that she should be removed. 

  "In these two appeals Christopher O. Hill (father) challenges the circuit court’s custody and visitation order, as well as its denial of father’s motion to remove the children’s guardian ad litem (GAL). Father argues that the judge in the Amherst County Juvenile and Domestic Relations District Court (the JDR court) was biased. Upon reviewing the record and briefs of the parties on appeal, we conclude that the circuit court did not err. Accordingly, we affirm the circuit court’s judgment." After hearing the evidence and arguments, the circuit court found that, notwithstanding father’s “sweeping allegations,” there was no basis for father’s claim that the GAL was not qualified. The circuit court further found that “knowing someone doesn’t create a conflict of interest.” The circuit court accepted the GAL’s proffers that she had not discussed employment with the judge’s wife until after the JDR court hearing. The circuit court found that there was no conflict of interest. The circuit court further explained that “this is an appeal de novo as if no hearing had occurred in [d]istrict [c]ourt,” and there was “no legal basis” to remove the GAL. Mother presented evidence that father had had very limited visitation with the children between December 2019 and May 2021. At father’s last visitation in May 2021, mother felt uncomfortable and asked her brother to come by. When mother’s brother arrived, father chased his car and told him to “get out [of] the car and fight him like a man.” Father also yelled towards the children, frightening them enough that one child grabbed a baseball bat. The police were called to help diffuse the situation. Mother suggested to father that he schedule a visit with the children at the YWCA, but father was reluctant to do so because he did “not feel comfortable or safe in Amherst County” after the previous visitation incident. Mother also testified that the weekly telephone calls between father and the children were “Not good.” She had to be the one to call father, because the children did not want to do so. Mother testified that the children frequently cried and were “frustrated” after speaking with father, who told them they were “mean” and called them bullies. Father had a “live-in care giver” who slept in his room which left his second bedroom available for his children. He participated in counseling, through “Telehealth,” to address his “chronic PTSD, depression, anxiety, [and] insomnia” and was compliant with his medications. Father claimed he was stable and not a risk to the children. The circuit court found that father’s relationship with the children was “broken.” Although the circuit court recognized that father had “come a long way,” the circuit court found that “the father’s got issues he’s dealing with, he needs to get his situation completely stabilized.” The circuit court granted sole custody to mother. The circuit court awarded visitation to father through the YWCA’s supervised visitation program and “additional contact with the children in the therapeutic counseling session.” The circuit court maintained father’s weekly telephone visitation with the children for thirty minutes.

In these appeals the Court affirmed the Circuit Court's rulings awarding custody to the mom and finding no fault with the GAL. The facts spoke for themselves in these appeals. 

It is always the hope of the courts to see co-parenting work and benefit all parties and for relationships with children restored however that isn't always the case, at least not immediately. Ultimately, finding for the best interests of the children is the outcome the courts and the GAL's seek. 

Wife Fails to Appear at Her Requested Divorce Reconsideration Hearing; Court of Appeals Upholds Circuit Court Decision.

From the Circuit Court for Henrico County comes the divorce case of Grant v. Grant.

On November 29, 2021, the circuit court entered a final decree of divorce and granted husband a divorce on the grounds of living separate and apart for more than one year. The circuit court noted that although husband properly attempted to serve the complaint, wife failed to file an answer within the required period. The final decree included a handwritten notation including wife’s name and address and that she “objected to” the final decree. Above wife’s name appeared to be wife’s signature. The circuit court directed the clerk’s office to send attested copies of the divorce decree to husband’s counsel and wife. To follow, on December 3, 2021, wife asked the circuit court to reconsider the divorce decree, alleging that another person forged her signature on the document. By order entered December 7, 2021, the circuit court set a hearing on wife’s request for December 13, 2021 and directed the clerk to forward copies of that order to the parties. By order entered December 14, 2021, the circuit court dismissed the request because neither husband nor wife appeared at the hearing.

The wife appealed the dismissal on December 29, 2021.

Ultimately on appeal, the court affirmed the ruling of the circuit court. While the circuit court, after granting the divorce, permitted wife a hearing within 21 days after judgment to explore her allegations of fraud, she failed to appear at the hearing, and the court lost jurisdiction over the case without a hearing or ruling upon the issues raised.

 

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at rob@robhagylaw.com. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

 

 

 

Husband's Failure to Follow Rule 5A:B(a) Leads Court of Appeals to Affirm Award of Attorney's Fees.

In the divorce case of Major v. Dack, the Circuit Court for Arlington Couty, awarded Wife, Ms. Dack, attorney's fees in the amount of $210,095.81. Mr. Major, the Husband, appealed the decision to award attorney's fees based upon his claim that he was not allowed to provide evidence rebutting the award.

Over the course of the litigation, wife filed three motions to compel husband to fully respond to her discovery requests and to award her attorney fees. The parties agreed to resolve each motion, and the circuit court reserved wife’s request for attorney fees under her first two motions for resolution at the final hearing in the case.

The Court of Appeals unanimously held that no oral argument was necessary as the Mr. Major had failed to timely file a transcript or a written statement of facts in support of his claims. Instead, the evidence was filed with the Court of Appeals and not with the clerk's office. The failure by Mr. Major to abide by Rule 5A:B(a) led to the decision to affirm the Circuit Court's award of attorney's fees to Ms. Dack.

Costly mistake!

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at rob@robhagylaw.com. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

Trial Court’s Award of Attorney Fees to Wife was Reasonable!

In the case of Arastoo Yazdani v. Soraya Sazegar, a published decision from the Virginia Court of Appeals, the judgement of the trial court was affirmed where husband did not clearly and unambiguously waive his right to appeal the issue of attorney fees in the separation agreement the parties entered into.  And, further, the trial court's decision in awarding the wife attorneys fees was also affirmed.

Wife was visiting the United States on a tourist visa when she met husband on an online.  After a brief courtship, the parties married. A year and a half later wife discovered husband was still receiving messages from the same dating service that husband used to meet wife. Wife confronted the husband who left the residence. Wife then filed for divorce on grounds of desertion in July 2020. Husband answered with a counterclaim, alleging in part that wife’s “cruelty and emotional abuse” justified his departure from the marital home.

Four months after these initial filings, wife could no longer afford legal counsel, so her attorney had to withdraw from representing her any further on the divorce. About eight months later, however, wife borrowed $18,000 from her daughter so she could again retain her prior lawyer to assist with preparations for trial set for November 2021. Upon being re-hired, wife’s counsel issued discovery requests including interrogatories and requests for production in August 2021. Husband responded to wife’s counsel on the day discovery
was due, writing “I understand that the date to respond to your Discovery Request is today” and “I will consult my attorney . . . to provide a response.” Wife, through counsel, provided husband another six days to comply with the discovery requests, but husband again failed to comply. Three days following the extended deadline, husband continued to claim that his attorney would contact
wife’s counsel soon. Wife’s counsel never heard from any attorney. Wife’s counsel then filed a motion for sanctions in September 2021, and husband—now represented by counsel—filed a flurry of motions in response seeking leave to amend his counterclaim, to continue the trial, and for an extension of time to respond to wife’s discovery requests. In particular, husband sought leave to amend his existing counterclaim to add an allegation that wife only sought to marry him to obtain a green card, calling the marriage a “green card sham.” He also suggested wife could be subject to criminal penalties for violating immigration law.

After a hearing on the pending motions, the court denied husband’s request for a continuance, granted the motion for leave to amend his counterclaim, issued an order to compel discovery responses from husband, and awarded wife $1,500 in attorney fees.  The new allegations in the counterclaim led to depositions in October 2021, one month before trial. On the first day of trial (about a year and a half after the parties’ separation), wife presented her case-in-chief. Husband did not pursue cross-examination to bolster his allegations of “cruelty and emotional abuse” or his claims that wife entered the marriage for fraudulent purposes. At the close of day one, the court encouraged the parties to settle the matter. They reached consensus that night and formally signed the Agreement the next morning, presenting it to the court before the second day of trial was set to begin. The parties agreed to a no-fault divorce and settled all issues but attorney fees. The Agreement stated that “[t]he parties agree that they shall reserve the issue of Wife’s request for . . . attorney[] fees . . . for arguments to be heard by the Alexandria City Circuit Court.” Moreover, the parties “agree[d] to follow the ruling of the Court upon the Court making its determination regarding” attorney fees. The court asked the parties whether they wanted to proceed with the matter of attorney fees that day, or whether they needed more time. Wife’s counsel said she was ready to proceed. Husband’s counsel did not respond or make any objection. Wife then argued that husband had unnecessarily delayed settlement of the divorce, forcing
her to borrow money from her family to pay for legal fees. She also argued that husband had refused to respond to discovery requests, requiring the court to issue an order to compel, and still provided incomplete documentation of his finances even after that order.

Finally, she argued that husband’s annulment claim based on alleged “green card fraud”—added late in the proceedings and
ultimately retracted by husband—had been “deeply insulting” to wife. Husband responded that he lacked counsel when he was receiving discovery requests, claimed that he had requested mediation with wife, and argued that he had provided all financial
information to which he had reasonable access. He also argued that negotiation was a normal part of the litigation process and that he was not responsible for wife’s legal expenses because the court could not have granted a divorce until one year following separation anyway. After considering the parties’ arguments, the court awarded $33,948.64 in attorney fees to wife, finding that husband unnecessarily delayed settlement and resisted discovery. The court also noted that wife “can’t be faulted for not being willing to sit down and have a four-way conference or mediation” when husband had failed to produce necessary discovery such that she was not “in possession of documents pertaining to debt and assets to facilitate a successful meeting.” In sum, the judge stated that “efforts were made over and over again . . . to try and resolve this matter,” but husband “was so resistant [to settling] that . . . it required a motion to compel and sanctions to get him to finally produce some, but not all,” of the discovery wife had a right to receive.
Finally, the court deducted from the total fee award the fees expended before wife’s motion for pendente lite relief (filed at the same time as her original complaint) as well as its prior fee award from the hearing on the motion for sanctions.

Husband appealed the trial court's decision to award wife attorneys fees and the wife countered by arguing that husband
expressly waived any appeal of the attorney fee award in the Agreement. 

Husband did not clearly and unambiguously waive his right to appeal. A party may waive by contract any right conferred by law or contract. Agreements between divorcing spouses are no exception. Waiver is the voluntary and intentional abandonment of a known legal right, advantage, or privilege.  It flows naturally from the requirement that a waiver of a right be knowing, intelligent, and voluntary and that an agreement to waive a right must be clear and unambiguous. Here, the parties’ agreement contains no language expressly waiving a right to appeal the circuit court’s attorney fee award. Rather than stating, for example, that the circuit court’s determination would be non-appealable, the parties instead agreed to “reserve” the issue of attorney fees for argument before the circuit court and to “follow the ruling” of that court.

As for the issue of attorneys fees, circuit courts have broad statutory authority to award attorney fees in a domestic relations matter.  And in this case, the parties expressly agreed to submit the issue of attorney fees to the trial court. Marital property settlements entered into by competent parties upon valid consideration . . . are favored in the law and such will be enforced unless their illegality is clear and certain.

In deciding whether to award attorney fees in a divorce matter, a trial court may consider the unique equities of each case and may consider factors including “ability to pay a fee, the party’s degree of fault in bringing about the dissolution of the marriage, and whether the party unnecessarily increased litigation costs through unjustified conduct.  The award must be reasonable “under all of the circumstances revealed by the record. The trial court has wide latitude in this context, and we reverse only for abuse of discretion.

Here, the trial court awarded fees because of the delay in litigation husband caused by resisting discovery, forcing wife to move to compel, and then providing only some of the required documents in response to the court’s order to compel. The court noted that wife made repeated efforts to resolve the matter through counsel, then after she could no longer afford an attorney, by acting pro se. And the record shows that husband’s decision late in the litigation to seek annulment alleging that the marriage was fraudulent—a claim he eventually dropped—required additional costly depositions. When a party unnecessarily prolongs litigation, it increases the amount of attorney fees the other party incurs and is a relevant factor for a trial court to consider in awarding attorney fees. For example, we have found that attorney fees were justified when a wife caused delay in litigation by failing to complete auction procedures (after requesting the family business be auctioned), failing to execute a deed until compelled to do so, being slow to respond to discovery, and failing to produce an accounting even after receiving several continuances. 

None of husband's attempts to deflect blame for the protracted litigation on wife were valid. There was no evidence to suggest that the circuit court’s award of attorney fees was an abuse of discretion.

 

Appeals Court Affirms a Fairfax County Circuit Court's Termination of Parental Rights

In a Termination of Parental Rights case where the Fairfax County Department of Social Service prevailed, only the father appealed the decision. Fairfax County DSS v. Odoms proved to be a true best interest of the child case. 

This case involved a mother who was diagnosed as psychotic and unaware she was pregnant until 34 weeks at which time she arrived at the hospital agitated and delivered a baby. Father arrived, denied child was his, refused to sign birth certificate but after mother was detained temporarily in the hospital the father remained present. CPS received a complaint shortly thereafter of abuse and neglect and the child was removed from the mother's home. With most of the case sealed, it soon became clear that neither father nor mother were going to engage with or complete the DSS process to bring the child home. With the father's lengthy criminal history and the mother unable to parent, the termination was granted. 

The Court of Appeals said:

Father contends that the child was removed from his custody because of mother’s “extreme mental health issues” and her inability to care for S.O. He argues that once paternity was established, he completed all court-ordered obligations and demonstrated his ability to provide and care for S.O. Father’s argument focuses solely on the reasons the child was removed from mother’s care, and he ignores the fact that the child was removed from his custody because of his “extensive criminal history, untreated mental illness, and unstable housing.” Although father signed the initial releases that allowed the Department to monitor his progress, once they expired, he refused to sign new ones—preventing the Department from monitoring his compliance with services. 

Further, father’s volatile behavior was a significant hurdle to the Department’s attempts to provide him with services to remedy the conditions. Father’s behavior caused him to be denied entry to the required nurturing parenting program, and it forced the Department to suspend visitation and ultimately change his visitation from in-person to virtual visits. He walked out of his first parent-child assessment, and when he returned, the evaluator felt that he self-sabotaged by how he behaved. He also failed to comply with the drug screening, and the one time he did comply, he tested positive for marijuana use. Thus, as the circuit court found, father did not take advantage of the services and efforts made by the Department and other agencies. Father was unable to recognize the seriousness of mother’s mental illness or its effect on his plans to care for S.O. Nor was he able to regulate his behavior and refrain from acting in an aggressive and disruptive way. Based on the evidence presented and father’s own behavior during the hearing, father “suffer[ed] from a significant condition that affects his mental health,” and despite taking medication, the condition was “not completely under [his] control.” Accordingly, we cannot say that the circuit court erred when it concluded that father had not remedied the conditions that resulted in the Department taking custody of S.O. “It is clearly not in the best interests of a child to spend a lengthy period of time waiting to find out when, or even if, a parent will be capable of resuming his [or her] responsibilities. Termination affirmed. 

An outcome where this child will be given a chance at life! Sometimes complete termination of parental rights is the only just outcome!

If need assistance with your divorce, or if you have questions about appeals or attorneys fees, please feel free to call us at (434)293-4562 or email us at rob@robhagylaw.com. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy 

Exception to Hearsay Rule Allowed - but Trial Court Errs in Striking Irresistible and Impulse Insanity Defense in Wife's Murder!

COURT OF APPEALS OF VIRGINIA Present: Judges Fulton, Ortiz and Raphael Argued at Norfolk, Virginia -WILLIAM WINN KHINE OPINION BY v. Record No. 0900-21-1 JUDGE STUART A. RAPHAEL SEPTEMBER 13, 2022 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE, Rufus A. Banks, Jr., Judge Catherine French Zagurskie, Chief Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant. David A. Mick, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. Following a bench trial,the trial court convicted appellant William Winn Khine of firstdegree murder for killing his wife, Khin Shwe. On appeal, Khine challenges the trial court’s decision to admit a witness’s hearsay statement that Shwe said the day before she was killed that she planned to tell Khine that she wanted a divorce. Khine also challenges the trial court’s ruling, at the close of evidence, to strike Khine’s irresistible-impulse insanity defense. We find no error in the evidentiary ruling because the statement about Shwe’s divorce plans was admissible under the state-of-mind exception to the hearsay rule. But the trial court erred in striking Khine’s insanity defense because it failed to view the evidence in the light most favorable to Khine. Under that standard, Khine met his burden of production on his affirmative defense. The trial judge, sitting as the factfinder, should have instead determined whether Khine carried his burden of persuasion to prove by a preponderance of the evidence that Khine was totally deprived PUBLISHED - 2 - of the ability to resist the voices that he claims commanded him to kill his wife. So we vacate the conviction and remand the case for further proceedings consistent with this opinion. BACKGROUND1 On March 10, 2017, Khine strangled Shwe to death with his hands and a pair of pajama bottoms. Shwe also suffered blunt-force trauma to her head and upper arms, consistent with contusions caused by someone trying to control her. At the urging of his friend, Khine called 911 to report what he had done, telling the 911 operator that he had heard voices “controlling his mind” that told him to strangle Shwe. Khine reiterated his claim to the responding officers. The officers found Shwe’s body and the pajama bottoms in the house. Khine did not conceal the evidence. Khine was arrested and found competent to stand trial by two psychologists. One of them, Dr. Evan S. Nelson, described Khine’s account of the voices that he claimed to be hearing: Mr. Khine explained that he heard voices even now at the jail. . . . He could have a conversation with the voices but did not like to respond [to] them, and he did not find the voices to be a pleasant or enjoyable experience; he preferred to sleep as a means to cut them off. . . . Mr. Khine claimed that the voices sometimes told him to do things, like start a fight with the other inmates. However, nowadays he resisted doing what they proposed. The grand jury returned an indictment for first-degree murder under Code § 18.2-32. The trial court granted defense counsel’s motion for a psychological evaluation of Khine’s sanity at the time of the offense. The court appointed Dr. Ann Vanskiver, a clinical psychologist, to perform an independent evaluation. The parties stipulated that Dr. Vanskiver was “an expert qualified to testify as to the Defendant’s mental status at the time of [the] offense.” 1 Although parts of the record are sealed, this appeal requires unsealing certain portions to resolve the issues raised by Khine. To the extent that certain facts are found in the sealed portions of the record, we unseal those portions only as to those specific facts mentioned in this opinion. The rest remains sealed. See Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). - 3 - After studying Khine’s case and meeting with him three times, Dr. Vanskiver reported that, “at the time of the offense, Mr. Khine was responding to delusional thoughts and auditory hallucinations, resulting in his actions.” Khine heard a voice that he called “the voice controller.” Khine said that the voice controller commanded him to kill his wife. Khine “understood that his actions were wrong . . . and he understood that the consequences of his actions would result in his wife’s death.” Still, Dr. Vanskiver found “evidence to suggest that [Khine] was experiencing symptoms to the extent of impairing his ability to resist the impulse to commit the offense” and that Khine “believed that the nature of the voice controller was that he needed to follow [its] commands.” She explained that Khine “was unable to rationally think through the reality of the situation, and assaulted his wife, following the directives of the voices he was hearing.” Dr. Vanskiver found that “Khine was indeed suffering from the symptoms consistent with an acute episode of psychosis at the time of the alleged offense.” She added that her investigation satisfied her that Khine was not overstating his symptoms and that he was not malingering. The case was tried without a jury. The trial court denied Khine’s motion to strike the Commonwealth’s evidence and his renewed motion to strike after the defense rested. In its rebuttal case, the Commonwealth called two witnesses: a neighbor, Crystal Rosario, and a co-worker, Rebecca Simonton. Rosario testified that she had communicated with Khine nearly daily for nine months and had never observed him talking to himself or acting as if he were interacting with someone not present. Simonton testified that, the day before Khine killed Shwe, she witnessed Khine and Shwe leaving their store; both were visibly upset and Khine appeared angry. Simonton also testified, over Khine’s objection, that Shwe told her she was planning to tell Khine that she wanted a divorce. After receiving all evidence and hearing closing arguments, the trial court granted the Commonwealth’s motion to strike Khine’s insanity defense, finding as a matter of law that Khine - 4 - failed to show that he was “totally deprived of the mental power to control or restrain” his actions. The court then convicted Khine of first-degree murder. The court sentenced Khine to forty-five years in prison with fifteen years suspended and a fine of $1,000 (which the court suspended). ANALYSIS Khine argues that the trial court erred in admitting Simonton’s testimony—that Shwe said she planned to tell Khine she wanted a divorce—because the Commonwealth failed to show that Shwe’s statement was communicated to Khine. He argues that the trial court erred in striking his insanity defense because, taking the facts in the light most favorable to Khine, he satisfied his production burden to show that an irresistible impulse caused him to kill Shwe. And he argues that the evidence was insufficient to convict him of first-degree murder because he was not guilty by reason of insanity. A. Shwe’s statement that she planned to tell Khine that she wanted a divorce was admissible under the Hillmon doctrine (Assignment of Error 1). We review a trial court’s evidentiary ruling under an abuse of discretion standard. Campos v. Commonwealth, 67 Va. App. 690, 702 (2017). If an admissibility determination involves a question of law, however, we review that issue de novo. Beckham v. Commonwealth, 67 Va. App. 654, 658 (2017). And by definition, a trial court “abuses its discretion when it makes an error of law.” Porter v. Commonwealth, 276 Va. 203, 260 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Va. R. Evid. 2:801(c). Hearsay is inadmissible unless permitted by an exception, and the party offering the evidence must “clearly show” that the exception applies. Clay v. Commonwealth, 33 Va. App. 96, 104 (2000) (en banc), aff’d, 262 Va. 253 (2001). - 5 - Khine argues that the trial court erred in admitting Simonton’s hearsay testimony that Shwe said she planned to tell Khine she wanted a divorce. Simonton’s statement was hearsay because it was offered for the truth of the assertion that Shwe planned to tell Khine that she wanted a divorce: Q[:] What was that statement [Shwe] made to you regarding her relationship on March 9th? A[:] She told me she was going to ask [Khine] or tell him she wanted a divorce. The Commonwealth offered that evidence to show Khine’s motive for killing Shwe and to prove that he committed first-degree murder, which requires a “willful, deliberate, and premeditated killing.” Code § 18.2-32. The Commonwealth maintains that Shwe’s hearsay statement was properly admitted under the state-of-mind exception, which permits a “statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).” Va. R. Evid. 2:803(3). “Generally, statements made by a crime victim that show the victim’s state of mind are admissible as an exception to the hearsay rule, provided the statements are relevant and probative of some material issue in the case.” Clay v. Commonwealth, 262 Va. 253, 257 (2001). “The key to the admissibility of evidence showing a victim’s state of mind is thus its relevance to a material issue in the case.” Hodges v. Commonwealth, 272 Va. 418, 436 (2006). “[F]or the state of mind of the victim to be relevant to prove the state of mind of the accused, some nexus must exist which inferentially implicates the accused,” such as “‘previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant.’” Clay, 33 Va. App. at 105 (quoting Hanson v. Commonwealth, 14 Va. App. 173, 188-89 (1992)). - 6 - Khine is correct that some statements by decedents that illuminate their state of mind have been held to be inadmissible when the prosecution failed to show that the statement was communicated to the defendant. In Hodges, for instance, the Supreme Court held that it was error to admit a witness’s statement that the murder victim said she planned to testify against the defendant because there was “no evidence” that the victim’s intent “was ever communicated” to the defendant. 272 Va. at 437-38. Likewise, we found in Hanson that the trial court erred in admitting a witness’s statement that the murder victim—the defendant’s roommate—said that he planned to move out and that the defendant was not paying his share of expenses. 14 Va. App. at 187-88. Although those statements reflected the victim’s state of mind, they were not relevant to the defendant’s motive absent evidence that the victim’s statements were “communicated to” the defendant. Id. at 188. But Shwe’s statement here falls into a different category because it was offered as evidence to show that Shwe herself acted in accordance with her own stated intention: to tell Khine that she wanted a divorce. That statement was admissible under the Hillmon doctrine, Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-96 (1892), which our Supreme Court adopted in Hodges. See Hodges, 272 Va. at 442; Kent Sinclair, The Law of Evidence in Virginia § 15-20[c], at 1074 (8th ed. 2018) (“Any uncertainty about the vitality of the Hillmon Doctrine was swept away in the Supreme Court of Virginia’s decision in Hodges v. Commonwealth.”). Hillmon was a life-insurance dispute in which the insurer defended against a claim on the policy on the ground that the named insured, Hillmon, was not really dead and that the decedent was actually Frederick Walters. 145 U.S. at 287. The decedent was killed by an accidental shooting at Crooked Creek. Id. The Court held that there was no error in admitting a letter from Walters in which he wrote that he planned to travel with Hillmon from Wichita to Crooked Creek. Id. at 288, 294-96. The Court explained that the statement was admissible, - 7 - no[t] . . . as proof that [Walters] actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon than if there had been no proof of such intention. Id. at 296. Applying the Hillmon doctrine in Hodges, our Supreme Court held that the trial court properly admitted a witness’s testimony that, the day before she was killed, the victim said she was “going to meet” the defendant and “would be right back.” 272 Va. at 425, 442. That statement “was admissible as proof of [the victim’s] intent and the corresponding probability that she indeed met [the defendant] on the day of her disappearance.” Id. at 443.2 Although neither party has cited the Hillmon doctrine, we find it controlling here. Just like the decedent’s statements in Hillmon and Hodges, Shwe’s statement that she was going to “tell [Khine] she wanted a divorce” was admissible as evidence that Shwe acted in accordance with her plan. Simonton further testified that Shwe told her that plan the day before the killing and that Simonton later saw the couple leaving the store together, with Khine visibly upset. Taken together, that evidence “made it more probable . . . than if there had been no [such] proof,” Hillmon, 145 U.S. at 296, that Shwe carried through with her stated intent. Accordingly, we find no error in the trial court’s decision to admit that evidence. 2 The Supreme Court of Virginia first cited Hillmon in Karnes v. Commonwealth, 125 Va. 758, 764 (1919). See Hodges, 272 Va. at 442 n.15. But the principle has an even older pedigree in the Commonwealth. See Cluverius v. Commonwealth, 81 Va. 787, 804-10 (1886) (holding that the trial court properly admitted the decedent’s statement in a letter about her intent to leave for Richmond as evidence that she acted accordingly); Dock v. Commonwealth, 62 Va. (21 Gratt.) 909, 913-14 (1872) (holding that the trial court properly admitted the decedent’s statement that he planned to go by the defendant’s residence to see if he could employ him). - 8 - B. The trial court erred in determining that Khine had not satisfied his burden of production on his insanity defense (Assignment of Error 2). In Virginia, “insanity is an affirmative defense that the defendant must establish to the satisfaction of the fact finder.” Brown v. Commonwealth, 68 Va. App. 746, 795 (2018); Taylor v. Commonwealth, 208 Va. 316, 322 (1967) (same). Virginia recognizes two tests for determining whether a defendant is not guilty by reason of insanity: the M’Naghten test and the irresistible-impulse doctrine. Vann v. Commonwealth, 35 Va. App. 304, 313 (2001). Under the M’Naghten test, [I]t must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. Price v. Commonwealth, 228 Va. 452, 457 (1984) (quoting M’Naghten’s Case, 10 Cl. & F. 200, 210, 8 Eng. Rep. 718, 722-23 (1843)). By contrast, “[t]he irresistible impulse defense is available when the accused’s mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act.” Vann, 35 Va. App. at 313 (quoting Bennett v. Commonwealth, 29 Va. App. 261, 277 (1999)). That impairment must exist “at the time” of the offense. Id. at 313-14. Khine based his insanity defense only on the irresistible-impulse doctrine. “To present evidence of insanity to the fact finder, an accused must first make a prima facie showing that his evidence meets the requirements of the affirmative defense.” Morgan v. Commonwealth, 50 Va. App. 120, 126 (2007). “Prima facie evidence is ‘[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.’” White v. Commonwealth, 272 Va. 619, 626 (2006) (quoting Black’s Law Dictionary 598 (8th ed. 2004)). The evidence to satisfy the defendant’s production burden on an insanity defense must amount “to more than a scintilla.” Herbin v. Commonwealth, 28 Va. App. 173, 181 (1998). A trial court - 9 - properly strikes a defendant’s insanity defense if the defendant fails to satisfy his burden of production. Vann, 35 Va. App. at 312-14. Assuming the defendant satisfies his production burden, he must then also satisfy his burden of persuasion that he is not guilty by reason of insanity, as Virginia allocates “both the burden of production and the burden of persuasion” to the defendant to prove an insanity defense. Morgan, 50 Va. App. at 134. The defendant “bears the burden of proving the defense [of insanity] by a preponderance of the evidence.” Brown, 68 Va. App. at 795. “This does not shift the ultimate burden of proof which rests upon the Commonwealth to prove the commission of the alleged offense beyond a reasonable doubt.” Taylor, 208 Va. at 322. In granting the Commonwealth’s motion to strike, the trial court set forth the correct legal standard for a defendant to prove an irresistible-impulse insanity defense: “that his mind has become so impaired by [a mental] disease that he is totally deprived of the mental power to control or restrain his act.” See, e.g., Morgan, 50 Va. App. at 127 (“The irresistible impulse defense is available ‘where the accused’s mind has become “so impaired by disease that he is totally deprived of the mental power to control or restrain his act.”’” (quoting Godley v. Commonwealth, 2 Va. App. 249, 251 (1986))); see also Thompson v. Commonwealth, 193 Va. 704, 717 (1952) (same); Dejarnette v. Commonwealth, 75 Va. 867, 878 (1881) (“some unseen pressure on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coercion which, while its results are clearly perceived, it is incapable of resisting”). While the defendant is “able to understand the nature and consequences of the act charged against him and to perceive that it is wrong, [he] is unable, because of such mental disease, to resist the impulse to do it.” Thompson, 193 Va. at 717 (quoting 14 Am. Jur. Criminal Law § 35, at 793). Such an “irresistible impulse” must be “distinguished from mere passion or - 10 - overwhelming emotion not growing out of, and connected with, a disease of the mind.” Id. (quoting 14 Am. Jur., supra). In granting the Commonwealth’s motion to strike Khine’s insanity defense, the trial court determined that Dr. Vanskiver “did not address [Khine’s] inability to control his actions or restrain himself.” The court said that she failed to testify that Khine was “powerless to control himself.” But the trial court erred in reaching those conclusions because it failed to consider the evidence in the “light most favorable” to Khine, the non-moving party. Herbin, 28 Va. App. at 181. Viewed in that light on the motion to strike, the evidence sufficed to show that Khine killed his wife because he was “totally deprived” of the mental power to control or restrain his actions. Dr. Vanskiver opined that, “at the time of the offense, Mr. Khine was responding to delusional thoughts and auditory hallucinations, resulting in his actions. That is, he was unable to rationally think through the reality of the situation, and assaulted his wife, following the directives of the voices he was hearing.” (Emphasis added). Dr. Vanskiver’s opinion was buttressed by statements from Khine that, taken in the light most favorable to him, supported that he lacked any control over his actions. Khine said that “the voice it was hurting me, it was telling me to go to work, the controller he attacked me. It was like I can’t control my mind.” Dr. Vanskiver noted that Khine also told the 911 operator that the voices “pushed me to kill”; “I don’t do it somebody pushed me in my mind.” Dr. Vanskiver testified that Khine “believed that the nature of the voice controller was that he needed to follow its commands.” She concluded that Khine “was indeed suffering from the symptoms consistent with an acute episode of psychosis.” “Additionally, . . . there is evidence to suggest that [Khine] was experiencing symptoms to the extent of impairing his ability to resist the impulse to commit the offense.” (Emphasis added). - 11 - To be sure, there is some ambiguity and lack of forcefulness in Dr. Vanskiver’s words. They could be narrowly construed to mean that Khine suffered partial impairment, or more liberally construed to mean a total impairment of Khine’s ability to control his actions. But the trial court was required on the motion to strike to accept as true all the evidence favorable to Khine, as well as all reasonable inferences that could be drawn from that evidence. Green v. Ingram, 269 Va. 281, 290 (2005). The court had to “resolve any reasonable doubt as to the sufficiency of the evidence,” id., in Khine’s favor. And the court could not “judge the weight and credibility of the evidence,” nor “reject any inference from the evidence favorable to [Khine] unless it would defy logic and common sense.’” Id. (quoting Upper Occoquan Sewage Auth. v. Blake Constr. Co., 266 Va. 582, 590 n.6 (2003)). Under that standard, the evidence from Dr. Vanskiver supported Khine’s affirmative defense that he was totally unable to resist the voice in his head that commanded him to kill his wife. Because the trial court failed to apply the correct legal standard, it erred in granting the Commonwealth’s motion to strike. What is the appropriate appellate remedy? The Commonwealth argues that it would be a remand to the trial court without requiring the case to be retried: Because the trial court found as a matter of law Khine did not meet his burden of production there was never an opportunity to address whether Khine met his burden of persuasion. Therefore, . . . the appropriate remedy should be remand, to allow the circuit court to determine whether Khine met his burden of persuasion. Commonwealth Br. 26 n.5. Although Khine requests and prefers a new trial, his counsel agreed at oral argument that it would not be error to remand the case to the trial court to determine whether Khine satisfied his burden of persuasion. While “we are not bound by . . . the parties’ agreement on an issue of law,” Moonlight Enters., LLC v. Mroz, 293 Va. 224, 234 n.5 (2017), we agree that the remand described by the - 12 - Commonwealth is most appropriate. Because the Commonwealth moved to strike Khine’s affirmative defense during its closing argument, all the evidence had been presented. The only question was how the trial court, sitting as the factfinder, should weigh the evidence. In analogous circumstances, we have said that when the trial court applied “an incorrect legal standard[,] . . . the proper appellate response is to vacate the convictions and remand the case to the trial court with instructions.” Edwards v. Commonwealth, 49 Va. App. 727, 742 & n.2 (2007); see also Orndorff v. Commonwealth, 271 Va. 486, 505 (2006) (“Because the circuit court employed an improper legal standard in exercising its discretionary function, the standard of appellate review examining whether the court abused its discretion could not be applied. Instead, the proper remedy for the circuit court’s error was to remand the case to that court for proper application of the [correct standard].” (citation omitted)). The same is true here. On remand, the trial court should determine whether Khine carried his burden of persuasion to prove by a preponderance of the evidence that he acted under an irresistible impulse to kill his wife.3 CONCLUSION The trial court did not err in admitting Simonton’s hearsay testimony that Shwe said she planned to tell Khine that she wanted a divorce. But it did err when it granted the Commonwealth’s motion to strike Khine’s insanity defense as a matter of law and failed to evaluate that defense on the merits. We therefore vacate the conviction and remand for further proceedings consistent with this opinion. Affirmed in part, reversed in part, and remanded. 3 Because we remand this case to the trial court for further proceedings, Khine’s third assignment of error is moot: whether the “trial court erred by convicting Mr. Khine of firstdegree murder instead of finding that Mr. Khine was not guilty by reason of insanity.

WIFE CAN'T SHARE INCREASE IN RETIREMENT ACCOUNT VALUE!

Wife can’t share increase in retirement account value

The North Carolina Court of Appeals recently ruled that appreciation in a husband’s retirement account that occurred after a couple separated could not be divided at divorce.

The couple in question got married in 1995 and had four children together before the wife filed for divorce in 2016. According to the wife, they separated in August 2015 when the husband “willfully abandoned” her.

When they got married, the husband worked for IBM. Before the marriage, he acquired a retirement plan from IBM which he later rolled into a Vanguard account that, on the date the couple separated, was worth $412,000, of which the court deemed $100,000 to be marital property and $312,000 to be separate property. By the time of distribution, the account had increased to $496,000 ($120,000 in marital property and $376,000 in separate property). Despite that split, the court divided the entire $84,000 in passive gains, deciding that the husband hadn’t established any of this increase as separate property.

But the court of appeals reversed, finding that the trial court should have only included the $20,000 increase in the marital portion as part of the estate and ordering that it to go back and redistribute the assets accordingly.

Mother Agrees to Temporary Paternal Custody for Reunification then Court Awards Father Primary Custody

In the March 8, 2022 case of Cathryn Rose Rainey v. Chad Christopher Rainey, a published opinion, the Virginia Court of Appeals ruled that the trial court did not err in awarding sole legal and physical custody of the children to father but did err in giving father the power and sole discretion regarding mother’s visitation with the children. 

On appeal, mother contended that the trial court failed to identify the basis of its ruling orally or in writing as required under Code § 20-124.3. Additionally, she claimed the trial court erred by abdicating its authority to decide visitation and by granting father, in consultation with counselors, the power to decide when and whether to expand her visitation and lastly, she appeals the court's decision awarding custody to the father.

This case stemmed from a marriage where father traveled often, and children had a close relationship with grandmother, who was a caretaker as well to father admitting to an affair in 2016 and wife filing for divorce. In 2017 father abuses mother while wrestling for the phone in front of children and children become hesitant about seeing father.  

Initial ruling was primary custody to mother and visitation with father with intention of rebuilding relationship. Reunification went so poorly that father ended attempts at visitation in 2019 until relationships could be restored. Mother continued to take children to therapy. Father then filed motions with the JDR court to either transfer physical custody to him or increase his visitation. He alleged that mother had failed to facilitate visitation and had not supported the relationship between father and the children. Mother agreed. Mother testified that she agreed to switch custody to father to encourage the children’s relationship with father, and father did not dispute that mother agreed to the temporary custody arrangement for this purpose.

The court continues: 
"The temporary order explained it was the parties’ intention to work toward shared physical custody. The testimony and evidence at trial showed that mother believed this arrangement would be temporary".

Instead, since consenting to this arrangement, mother had not seen her children since July 3, 2019. The children have also not seen grandmother, a daily presence in their lives, since July 2019, though father has allowed daughter to exchange occasional letters with grandmother.

"D. Father and the Counselors Strictly Limit the Children’s Contact with Mother. The reunification program to get father back in the children’s lives was premised on immersing the children in contact with father. It is apparent that mother struggled with the
relinquishment of her children, and her loss of contact with them, shortly following the July 3, 2019 transfer of custody to father. Dr. Nelson referred to this as “buyer’s remorse.”

Dr. Nelson prepared reports in connection with the custody and visitation proceedings; in the July 31, 2019 report Dr. Nelson explained daughter had written mother that she wanted to come home because she was unhappy, mistreated, and no one was listening to her. Following this communication, mother wrote a letter to daughter and tried to deliver it through one of the therapists involved in the case. In the offending letter—in addition to urging daughter to give father a chance—mother wrote: “I know you are scared, sad, confused [sic] and angry right now. You are feeling like you are being punished and you are, but not for anything you did." You don’t deserve this.” Dr. Nelson was concerned that this type of language was counter-productive to reunification and, in conjunction with mother’s difficulty with therapy, Dr. Nelson concluded that mother should not have any unsupervised contact with the children. Mother and daughter were also caught passing notes clandestinely—without counselor permission—through an intermediary at daughter’s gymnastics class. This raised concerns for the counselors about mother’s boundaries and ability to follow rules.

On October 9, 2019, following a hearing, the JDR court found a material change in circumstances had occurred since December 22, 2017 and entered an order in both children’s cases explaining its reasoning. It found that father made efforts to improve his relationship with his children, including therapy. Based on the September 2019 report from Dr. Nelson, which it incorporated into the order, the JDR court found that mother had undermined father’s reunification with the children by sending letters with alienating language to daughter. Mother was ordered not to have any contact with the children other than through therapeutic letter writing. The JDR court order gave father discretion as to when to increase mother’s visitation beyond counselor-assisted letter writing and required mother to solely bear the cost of a paid supervisor if one was chosen. Father has had the authority to permit visitation since that time.
Dr. Nelson completed yet another report dated July 17, 2020. She continued to show concern over mother’s disengagement with reunification letter writing and found that the children were having issues with mother’s lack of communication. She opined that, if mother refused any sort of supervised or therapeutic visitation, mother should have no contact. Mother did not agree that visitation should be supervised, but her non-compliance with the prescribed counselor-assisted letter writing remained an obstacle to further contact.

Following the award of custody to the father, mother appealed. 

Haupt, the reunification counselor, testified that the reunification with the father had been successfully resolved. The children were quick to embrace reunification and testimony established there were marked improvements in the children’s relationship with
father within one week, to the point that they had resumed calling him “dad” and were laughing and engaging with him.
The evidence presented at trial was consistent with Dr. Nelson’s opinion that mother had been a loving, fit parent to the children prior to the custody and visitation issues with father. Dr. Nelson found mother to continue to have significant anger towards father. Dr. Nelson and Kniffen were concerned about the damage mother would do to the children’s relationship with father if given unsupervised visits. At trial, mother continued to deny any role in the children’s prior distress at visiting father. Mother’s only treating physician, expert psychiatrist Dr. Paul Spector, testified at trial. He saw mother six times, and he found no issues with mother other than Adjustment Disorder due to estrangement from her children. Dr. Spector stated that mother was fully capable of handling visitation and functioning well. He “ran her through the mill” and found no mental disease or reason for medication. He noted that the children had superb grades while in her care and that is usually a sign that home life is stable. He explained that when he saw her, she no
longer had custody of her children and she was “understandably, extremely distressed, at not being able to even see her children.” The other counselors and therapists involved did not speak with Dr. Spector.

Both parties submitted written findings of fact prior to their closing arguments at trial. The trial court found on behalf of father, and asked father to draft the order after consultation with mother. The parties were unable to agree on the language of the order—father submitted a letter to the judge explaining that the parties could not come to an agreement and were not able to schedule a hearing before the judge to resolve the disagreement about the order. The trial court wrote a letter to the parties indicating that it reviewed the parties’ findings of fact and proposed final orders and found father’s proposed final order was consistent with its ruling and
intent. Father’s proposed final order largely mirrored his previously submitted findings of fact. The trial court instructed mother to endorse father’s draft order and note her objections. The final order awarded father sole legal and physical custody. The visitation instructions crafted in the JDR court were essentially reimposed. Mother’s contact with the children was limited to letter writing; her therapist would provide approved letters to Kniffen, the children’s therapist, and the letters would then be provided to the children who would receive them with Kniffen. Mother would be required to review letters from the children with a therapist. Father was instructed to consult with the children’s therapists and expand (or rather, initiate) mother’s visitation to therapeutic visits when “Mother is appropriate and will not cause harm to the children.” Father was given sole discretion to decide when to progress beyond therapeutic visits
to supervised visitation with a supervisor of his choosing, though mother was ordered to pay the costs for father’s chosen supervisor.
Mother timely appealed to this Court.

ANALYSIS
I. Standard of Review
We review the trial court’s decisions on custody and visitation for an abuse of discretion.
Wynnycky v. Kozel, 71 Va. App. 177, 193 (2019) (“[A] trial court’s determination with regard to
[custody and] visitation is reversible only upon a showing that the court abused its discretion.”
(quoting Bedell v. Price, 70 Va. App. 497, 504 (2019))). “A trial court ‘by definition abuses its
discretion when it makes an error of law.’” Chaney v. Karabaic-Chaney, 71 Va. App. 431, 434
(2020) (quoting Shooltz v. Shooltz, 27 Va. App. 264, 271 (1998)).

Mother’s position that the trial court failed to comply with the governing statute is grounded in its instructions to endorse father’s draft
order, which reflected father’s proposed findings of fact, along with her objections to it. The actions taken by the trial court in this regard are not prohibited by law and occur with some frequency.

This case aptly illustrates the complications that can arise when one parent is given power over visitation for the non-custodial parent. From the time the JDR court delegated its power to determine visitation to father, giving him sole control over visitation since July 3, 2019, the children have not been permitted to see mother—not even in a therapists’ office, let alone in a non-therapeutic setting.

CONCLUSION
The trial court erred in giving father the power to determine mother’s visitation. We reverse the trial court’s ruling on visitation and remand the case for full review of that issue. We otherwise affirm the final custody and visitation order.
Affirmed in part, reversed in part and remanded. 

 

 

Virginia Court of Appeals: A Closer Look With Charlottesville Divorce Attorney Rob Hagy: Lisa J. Wills v. W. Neil Wills

On February 9, 2021, the Virginia Court of Appeals issued the decision of Lisa J. Wills v. W. Neil Wills. Let's take a closer look at the case to see why the Virginia Court of Appeals ruled like it did.

In this case, Husband and wife were married on December 11, 2004, in Arlington, Virginia. They had one child, who was still a minor at the time of the circuit court proceedings. Husband and wife last separated on July 13, 2015, after which there was no reconciliation. On August 25, 2016,husband filed a complaint for divorce based on the parties’ having been separated for more than one year. The complaint requested that the court affirm, ratify, and incorporate into a court order the agreement entitled “Postnuptial Agreement” that was signed by the parties on January 8, 2005. Wife filed an answer stating that the parties had separated and reconciled on several occasions following the signing of the Postnuptial Agreement and asking the court to find that the agreement was abrogated by one of these subsequent reconciliations pursuant to Code § 20-155.

The circuit court found that the agreement was abrogated by Code § 20-155 when the parties separated and then reconciled on
one or more occasions following the signing of the agreement. Examining Code § 20-155, the trial judge stated, “Married persons, whether happily married or separated, may enter into an agreement to settle their respective property rights should the marriage subsequently dissolve, and should they separate or remain separated and then reconcile after signing the agreement, the agreement is abrogated unless the writing otherwise provides.” Thus, the circuit court essentially concluded that it was irrelevant whether the agreement was entered into with the intent to separate or with the intent to remain married.

The husband appealed and contends that the circuit court erred in ruling that the Postnuptial Agreement was abrogated based on the parties’ separating and reconciling subsequent to their signing the agreement. Husband argues that the last sentence of Code § 20-155 does not apply to the parties’ Postnuptial Agreement because that sentence applies only to separation agreements
and property settlement agreements, which he defines as “agreements entered into while separated or as an incident of separating with an intent of either indefinite separation or future divorce.” He argues that, because the parties signed the Postnuptial Agreement with the intent to remain married, the Postnuptial Agreement is not affected by the last sentence of Code § 20-155.

The circuit court in this case applied the last sentence of Code § 20-155 to all marital agreements settling property rights. However, that interpretation is inconsistent with the statute’s plain language. The first sentence of Code § 20-155 permits married persons to enter into the same types of agreements as parties intending to marry. See Code §§ 20-147 through 20-154 (governing premarital agreements). The second sentence of Code § 20-155 also addresses “marital agreements,” explaining an alternate manner in which “such agreement[s]” may be executed. The final sentence of Code § 20-155, however, does not use the words “marital
agreements” or refer back to “marital agreements” by using the words “such agreement[s].” Instead, in the last sentence of Code § 20-155, the General Assembly used the terms “separation or property settlement agreement.”

Having concluded that the last sentence of Code § 20-155 applies only to “separation or property settlement agreement[s],” the next question before the Court was whether the Postnuptial Agreement at issue in this case was a “marital agreement” or both a “marital agreement” and “a separation or property settlement agreement.” If the agreement falls only within the former category, then it was not affected by the last sentence of Code § 20-155 and not abrogated by one of the parties’ subsequent reconciliations. If the agreement was both a “marital agreement” and “a separation or property settlement agreement,” then the agreement was abrogated by one of the
parties’ subsequent reconciliations.

In order to determine what type of agreement the parties signed, we look to the agreement itself. When the parties set out the terms of their agreement in a clear and explicit writing then such writing is the sole memorial of the contract and . . . the sole evidence of the agreement. The agreement is entitled “Postnuptial Agreement,” and it recites that the parties were married on December 11, 2004. It states that “each party is aware of the fact that by virtue of their marriage, each shall or may acquire certain rights in the property of the other, either during their mutual lives or upon the death of either party” and that they “desire by this agreement to settle and determine their respective property rights and all other rights and demands arising out of the marriage relationship.” The agreement contains various provisions governing how the parties will act during the marriage and how those obligations will change in the event of a divorce or separation.

For example, it provides that husband will name wife as the primary beneficiary in his will “so long as the parties are neither separated nor divorced.” It provides that both parties waive their rights to spousal support but requires husband to pay wife $5,000 per full
year for the first five years of their marriage and then $10,000 per full year for the next five years of their marriage for a maximum payment of $75,000. It also requires husband to pay wife $2,000 per full year of marriage into a retirement account of her choosing until she turns sixty, unless the parties separate, in which event the payments will be terminated.

The agreement requires husband to maintain a life insurance policy on himself with wife as the beneficiary that will remain “in full force and effect so long as the parties are not separated.” It also provides that the division of property shall be in accordance with the Postnuptial Agreement “[i]n the event of separation, divorce, or death.

Certainly, the Postnuptial Agreement at issue is a “marital agreement” as it was an agreement between married people “settling the rights and obligations of either or both of them” regarding matters upon which Code §§ 20-155 and 20-150 specifically permit them to contract. See Code § 20-150 (enumerating subjects permissible in premarital contracts). It is also clear that the agreement is not a separation agreement as the terms of the agreement anticipate a continuing marriage, including requiring husband to make yearly payments to wife during the marriage. Although the Postnuptial Agreement addresses the parties’ rights and obligations in
the event of a divorce or separation, those potential events are treated as contingencies – not imminent likelihoods. Therefore, because the agreement is not a separation agreement, the remaining question is whether the agreement is a “property settlement agreement.”

In Virginia, spouses in the process of separating often enter into agreements that they entitle “property settlement agreements” in order to settle any obligations between them relating to property and support.

See 24A Am. Jur. 2d Divorce and Separation § 972 (“If spouses, upon their separation or impending divorce, create a contract that, considered as a whole, evidences that the parties intended it to be a final settlement of all obligations between them concerning
their property of any kind, courts consider it to be a property settlement agreement.” (emphasis added)). While no Virginia appellate court has expressly stated that a property settlement agreement refers only to an agreement made in connection with the dissolution of a marriage, the Supreme Court has strongly suggested that it was the legislature’s intention in drafting the last sentence of Code § 20-155 for agreements signed during separation proceedings to be abrogated when the legislature chose to use the term “property settlement agreement.” In Flanary v.Milton, 263 Va. 20, 23 (2002), the Supreme Court stated that “the 1998 amendment to Code
§ 20-155 [which added the final sentence to the statute] anticipates agreements made during proceedings for dissolution of a marriage, by providing that a signed separation or property settlement agreement is abrogated if the parties reconcile unless otherwise specifically provided in the agreement.” (Emphasis added). The Supreme Court’s interpretation comports with the
plain language of the statute as it accounts for the General Assembly’s decision to use the words “separation or property settlement agreement” – rather than “marital agreement” – in the statute’s final sentence. Therefore, we hold that only separation and property settlement agreements, which are marital agreements made in connection with the dissolution of a marriage
or a separation, are abrogated by a reconciliation between the parties.

Turning to the agreement at issue, we conclude that the Postnuptial Agreement at issue here was not a “property settlement agreement” as that term is used in Code § 20-155. The agreement was signed less than a month after the parties were married with the intent that their marriage continue. The terms of the Postnuptial Agreement show that it was intended to provide the parties with the same rights and obligations as a premarital agreement, which Code § 20-155 expressly permits. The agreement was not made in connection with the dissolution of the marriage or a separation. Consequently, the last sentence of Code § 20-155 does not apply to
this Postnuptial Agreement, and the agreement was not abrogated by one of the parties’ later separations and reconciliations. Accordingly, we reverse the circuit court and remand the case for proceedings consistent with this opinion, given that the Postnuptial Agreement at issue here was still in effect – not abrogated – at the time of the divorce.

If you are considering a prenuptial agreement, postnuptial agreement, or a separation or property settlement agreement, consult with an experienced domestic relations attorney in your area.

-Rob Hagy, Charlottesville Divorce Lawyer.