Charlottesville Divorce Lawyer Rob Hagy

Don't Allow your Ego to Sabotage your Case! Contested Divorces Call for an Attorney to Fight your Battles.

From the Circuit Court in Arlington County comes the appeal of Fox v. Fox, Record No. 1380-22-4, wherein Mr. Fox, pro se husband/appellant appealed the court's judgment granting the motion to remove a motion filed previously and imposing sanctions against him. And there's more. Appellant filed continual invalid motions in this case. 

The Court of Appeals proceeded without oral argument after reviewing the briefs and called the appeal wholly without merit. "Code § 17.1-403(ii)(a); Rule 5A:27(a). The trial court’s judgment is affirmed."

"On appeal, “we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Brandau v. Brandau, 52 Va. App. 632, 635 (2008) (quoting Smith v. Smith, 43 Va. App. 279, 282 (2004)). “That principle requires us to discard the evidence of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial.” Id. (quoting Petry v. Petry, 41 Va. App. 782, 786 (2003))."

After repeated show cause motions with failures to appear, Mr. Fox did not appear for a scheduled deposition and instead left the country to avoid the court's jurisdiction causing the court to bar any filings from him until he appeared personally.  After the divorce was ultimately granted, husband appealed the court's order awarding wife spousal support arrearages and child support.  The next year, husband sought permission to file a motion to correct the child support arrearage and modify his ongoing support obligation, but the court denied his motions until he posted a $25,000.00 bond. The ongoing filings and denial of motions continued with appellant even asking for a motion to be removed from the docket at 2:54 on a morning before court. Ultimately, Mr. Fox appealed to the Court of Appeals. 

"On appeal, husband generally alleges that the trial court erred by not granting his motion to “set aside, vacate[] and cancel” the orders finding him in contempt, imposing the “non-participation sanction,” and requiring the $25,000 participation bond. He also argues that the trial court erred by awarding wife attorney fees. Finally, he argues that “[i]t is now high time” to “dismiss” the divorce
case with prejudice given “there is no possible reason for it . . . to stay open,” as no “‘normal’ divorce issues remain to be adjudicated."

"Husband challenges the trial court’s award of attorney fees to wife because he did not make any false statements and “has no money and no income other than social security-type income.” He argues that under the “American rule,” wife was responsible for her own attorney fees even if she was the prevailing party. He also argues that attorney fees were not permissible under Code § 8.01-271.1 because he did not file a “false” “writing” with the trial court."

“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.” Rule 5A:18.“

The Cout of Appeals affirmed and remanded this case back to the Arlington Circuit Court. To conclude, Mr. Fox's arguments were noted as "serial filings" and were void of the rule of law, as a pro se party, he misread statutes that were not supported by authority.

Consult an attorney! The appellant was in over his head from the beginning and clearly and could have used the help of a professional while navigating the divorce, custody, visitation and child support matters instead of filing invalid motions and claiming that the American court rules were wrong.  

 

 

 

When is it NOT Best to Allow a 9-year-old to Testify in a Simple Modification of Visitation Hearing? Is 9 too Young?

This case, Michael Powell v. Melanie Knoepfler-Powell comes out of the Circuit Court of Fairfax County when the father appeals the Custody and Child Support Order entered on entered on May 9, 2022. Mr. Powell argues that the trial court erred by not modifying
his custodial time with the parties’ minor child and awarding Melanie Knoepfler-Powell (mother) with final decision-making authority regarding the child’s medical care. The father also believes the court erred by misinterpreting child's testimony (a 9-year-old) with her own hand-written notes. The parties were divorced in 2017 and in 2021, Mother dismissed a request allowing her to move to Alabama because Father objected requesting an injunction, so Mother filed a modification of the order, followed by Father also filing a modification. The Father knew he would be facing duty in Iraq soon and he did - from July 2020 to July 2021. The issue of the child testifying became the center of this case with the entire hearing seemingly surrounding around this 9-year old's testimony regarding visitation with her dad, which had never been of issued before. 

Father was living with his girlfriend and her daughter in the former marital residence, where the child grew up. Father claimed the child and his girlfriend’s daughter “get along great” but admitted that they had some “squabbles” like siblings do. Father described the child’s relationship with his girlfriend as “wonderful” and “growing.” At the end of the first day of trial, the trial court raised the issue of the child testifying and father reiterated his objection. Father emphasized that the trial court would hear from numerous witnesses who could testify about the child and her relationship with the parties, so it was “not necessary” for the child to “be exposed” to court. Father was concerned about the child’s well-being and the unknown “potential harm” to her for having to testify. He argued that the child’s well-being “outweighs the benefit . . . of being able to hear whatever [the child] might have to say.”
Mother’s counsel informed the trial court that she had spoken with the child about the court proceeding and the child wanted “to be heard.” How much input did the mother have here?  The court determined considering the child knew of the proceedings and there was no evidence that testifying would be “psychologically detrimental,” the trial court found “no reason to restrict the child from appearing.”

After hearing the parties’ arguments, the trial court found that testifying would not be “any more harmful [to the child] than already being in this . . . situation.” Following the trial court’s ruling, the child entered the courtroom and met the judge; she
stated that she had “brought a few notes” with her. The trial court told the child that she could refer to them if she wanted. The trial court then questioned the child regarding her competency to testify, and ultimately, neither party objected to the child’s qualifications for testifying.

The trial court questioned the child about her parents. The child explained that when father returned from Iraq and had more time to spend with her, she thought it was “good to see him a little bit,” but she was “used to hanging out with mom and stuff” and did not “want to go back.” When the trial court tried to clarify what she meant, the child did not have an immediate response. The trial court then asked her if she wanted to look at her notes. The child informed the trial court that they were “not really notes” because she “wrote a whole book about it.” The child shared her notes with the trial court and told the judge that she wrote it “yesterday and today.” The trial court told counsel that it had not decided whether it would consider her notes, but it wanted to “review [them].” After taking a “quick look” at the child’s notes, the trial court asked the child about her dog, with whom she said she was “[v]ery, very close.” Her notes contained references to her dad not taking her request to take her dog to the vet seriously and then telling her she didn't need to have her stuffed animal with her. The trial court then asked the child about her relationship with father. The child could not express to the trial court what father “could do better” to make things more “comfortable” for her. The trial court asked the child whether she had told father about “[s]ome of the things that [she] had in the notes,” and the child indicated that she had not because she was “worried” that he would not like them. The trial court suggested that she should tell him how she feels, but she was reluctant to do so. Further, the child testified that sometimes mother helped her express her feelings to father. The trial court then emphasized that it, not her parents, would be deciding what happened.
Ultimately, the child said that she wanted to live with mother and visit father when she wanted. She also indicated that she did not want her parents to call her “every day” when she was at the other parent’s house because sometimes, she was busy and did not want to talk. After counsel had a chance to ask questions of the child, the trial court asked the child about her stuffed animal, which was at mother’s house. The trial court returned the child’s notes to her. After the child left the courtroom, the trial court informed the parties that before it had returned the child’s notes to her, it had surreptitiously made a copy. The trial court indicated that it intended to share the child’s notes with the parties and wanted to admit the notes as a sealed demonstrative exhibit because the child adopted some of the contents as her testimony. The trial court informed the parties that it would hear any objections to it being admitted as demonstrative and whether it could consider the contents at the next hearing. The trial court noted that as a demonstrative exhibit, it had “no evidentiary value in and of itself.”

Mother did not think that she and father had been “effective joint decision-makers” and did not envision matters changing until the child had therapy. The trial court concluded that “for better or for worse,” the child’s “pillars of security [were] being threatened.” The trial court could not “disregard” the child’s feelings and agreed with the parties that therapy could help the child and her relationship with father. 

The trial court held that modifying visitation would be “damaging” to the child. The trial court further ordered the child to attend therapy with a counselor covered by insurance and of “mother’s choosing” to improve the relationship between the child and “both parents, but especially with . . . father.” The trial court also held that mother would have “final decision-making authority [for the child] with respect to issues of medical care which include mental health.”

Following the trial court’s ruling from the bench, father filed a motion to reconsider. The trial court denied father’s motion to modify custody and visitation and awarded mother with “final decision-making authority regarding all decisions about the child’s care which are medical in nature, including but not limited to decisions regarding the selection of a therapist for the minor child.” 

On appeal, the court upheld the trial court's decision but denies payment by Father of Mother's attorney's fees. 

This case, which seems to have originated as a simple visitation modification, where no real mention of issues with Dad were noted, this turned into a long trial, debating about the child testifying and the court letting a 9-year-old control the outcome. 

Too much weight placed on and given the given to the child here? 

"It Takes Two to Make a Thing (Marriage) Go Right"

From the Circuit Court of Hanover County comes the divorce case of Jennifer M. Payne v. David Ray Payne, Record No. 0065-22-2.

In this matter, on December 16, 2021, the Hanover County Circuit Court entered a final decree of divorce between Jennifer M. Payne (“wife”) and David Ray Payne (“husband”). On appeal, wife contends that the trial court abused its discretion by finding that she deserted the marriage, denying her an immediate award of permanent spousal support, and crediting husband for all mortgage and home equity line of credit (HELOC) payments he made from the separation to the date of the trial court’s letter opinion.

During testimony at trial, husband stated he earned just over $132,000 per year and had received an annual bonus in 2020 totaling approximately $18,000. Wife testified that the parties enjoyed a comfortable standard of living during the marriage, but the Husband
disagreed, and testified that the parties lived paycheck to paycheck, that wife earned approximately 37.000 a year, that he refinanced the HELOC on the marital home, and regularly consolidated credit card debt. The couple had a high amount of marital debt. 

By the end of 2018, wife began sleeping in a spare bedroom. During this time, wife struggled with anxiety and depression upon the children moving out of the marital home. Wife, who was accustomed to having a home “full of kids,” was left “alone a lot at the house.” She suffered panic attacks. She testified that the parties relationship got worse, and that she drank more frequently to ease her depression. Events in early 2019 consisted of wife moving in with her parents and telling husband she just needed out, to then moving back into the couple's spare bedroom at the marital home and telling husband she wanted to attend couples counseling, then in April, husband helped wife move into an apartment of her own, then eventually she moved back in with her parents. This all occurred within a few months. 

Ultimately in court wife admitted to falsifying her expenses and was likely discredited. Further, upon testimony from husband that his earnings were insufficient to pay wife any amount of spousal support, he testified that he borrowed money to pay part of the temporary spousal support amount. After wife moved out of the marital home, husband became solely responsible for the mortgage and
HELOC payments, as well as other marital debt. Husband argued that he could not continue paying spousal support because of the parties’ marital debts. He testified that he was also responsible for their adult children’s student loans if the children defaulted. While acknowledging that he had played golf, gone hunting, and travelled since the separation, husband stated that the vacations were paid for with his annual bonus. Both parties stipulated that since the separation, husband had paid the mortgage and HELOC
principal down by $14,321.86. 

Finally, the trial court granted husband a divorce on the grounds that wife willfully deserted the marriage, finding that “[n]either Wife nor Husband testified as to Wife’s reason for leaving the marriage” and that “Husband testified that he never wanted Wife to leave.” The trial court considered the factors enumerated in Code § 20-107.1(E), including the fault grounds for divorce, which it considered “heavily.” 

The wife appealed believing that she moved out to get better, not to abandon the marriage. The court disagreed writing, “Furthermore, a trial judge’s factual finding will ‘not be set aside unless plainly wrong or without evidence to support it.’” Id. (quoting Farley, 9 Va. App. at 328). However, this Court reviews de novo all issues of law, including those involving “examination of the proper interpretation and application of [Code § 20-91(A)(6)].” Dixon v. Dixon, 71 Va. App. 709, 718 (2020). a. Wife broke off marital cohabitation with the intent to end the marriage.

Wife challenges the trial court’s finding of desertion by asserting that her departure was justified by her mental health, arguing that “her leaving was not abandonment, it was for her to get better mentally.” Wife’s reason for leaving the marital home does not constitute legal justification for desertion under Virginia law. “[A] party may be justified in leaving a marital [home] even if grounds of divorce do not exist and may do so without committing desertion.” Kerr v. Kerr, 6 Va. App. 620, 624 (1988).

This case revolved around a wife with mental health concerns from being an empty nester who resorted to drinking, moving out, avoiding contributing financially to the couple's bills and essentially removing herself from the marriage. She said she wanted counseling and that husband never responded and this issue appears to have been discussed very little. Regardless of the ultimate case of the demise of this marriage, it certainly appears that the wife became apathetic once her children were out of the home. This is a normal and sad reality that occurs far too often. She viewed herself as alone and not part of a marriage mostly due to the husband's more active and social lifestyle. However, because she was working then stopped contributing financially in any manner, instead choosing to move out, her life appeared to unravel. Likely unaware of Virginia law, she never realized her actions reflected desertion and cause her to lose spousal support. But the rule of law and the court's decision was upheld. This however is a case that one would hope could have been avoided had there been more communication between the adult children and the husband getting involved. Perhaps this marriage could have been saved but it was not. 

Divorce is emotional, financially devastating and morally damaging to some parties. As a family law attorney, it is my desire and job to guide my clients through each stage of the tedious divorce process in a manner that is helpful, that follows the law, that benefits the children, if any, and finally, to a conclusion where my clients can see a future not a past. Please contact me at 434.293.4562 for a consultation today if you are in a situation where you have questions and concerns. 

Rob Hagy

Voluminous Filings and Amended Pleadings Do Not Necessarily Validate Claims or Assist with a Desired Outcome.

From the Circuit Court of Fairfax County comes Shiye Qiu v. Chaoyu Huang, Anna Ouspenskaya and Arlene Starace. Case No. Record No. 0459-22-4.

In this complex divorce case where Mr. Qui believes he is being conspired against by the wife and other parties, he argues that the court erred by sustaining appellee's joint demurrer and then dismissing his claims of tortious interference with his parental rights and a civil conspiracy against the three women. There is also his claim that the court dismissed his allegations of fraud against Ms. Starace. He further contends that the court erred by staying the proceedings, including discovery, prior to ruling on the demurrer.

Mr. Qiu (the father) and Sharon Yip (the mother) were married in 1995, and their daughter, M.Q., was born in 2005. The parties separated when M.Q. was eight years old. A few months later, the mother began divorce and custody proceedings and also sought pendente lite relief. Two years later, in 2016, while the divorce and custody proceedings were ongoing, the father filed a pro se tort complaint - the subject of appeal. In his complaint, he alleged that two of the mother’s acquaintances and one of her attorneys were tortiously involved in the custody dispute. In February 2017, the circuit court entered the final divorce decree and awarded joint legal custody of M.Q. to the parents, with primary physical custody to the mother.

Afterwards, the father retained counsel in the tort suit and obtained service of the complaint on the defendants, who challenged it with demurrers. The circuit court granted the father leave to amend various parts of the complaint on multiple occasions. In June 2019, he filed his fifth amended complaint, which was more than fifty pages long and contained nine counts. Additional facts that he pleaded made clear that none of the three women physically took M.Q. from the father or the mother. Instead, they merely encouraged and aided the mother in leaving the father and in obtaining a divorce and award of shared custody. 

At a scheduling conference in September 2019, trial was set for the following July. On February 14, 2020, while discovery was proceeding, the defendants filed a joint motion to stay the proceedings pending resolution by the Supreme Court of Virginia of an appeal in a separate, unrelated case, Padula-Wilson v. Landry, 298 Va. 565 (2020). They represented that
Padula-Wilson also involved a claim of tortious interference with parental rights. The defendants argued that the Supreme Court’s opinion was likely to be dispositive of the issues raised in the father’s complaint or at least to “set forth the parameters” under which his primary claims would be resolved. They also provided the court with copies of the briefs filed in Padula-Wilson and noted that oral argument in that case was “likely to occur in the next few months.” On February 28, 2020, the court granted the requested stay, which included discovery.

Three months after the motion was filed, on May 14, 2020, the Supreme Court issued its opinion in Padula-Wilson. Based on that decision, the defendants made a motion to lift the stay, withdraw their answers, and file a renewed joint demurrer to the father’s complaint. An order from July 16, 2020, granted the requests. On July 31, 2020, following a hearing, the court sustained the demurrer in all relevant respects, dismissing the tortious interference, fraud, and conspiracy claims against the three defendants, as well as other counts against Dr. Small. The court granted the father leave to amend one of the counts against Dr. Small. After additional proceedings, the father and Dr. Small reached a settlement, and the court dismissed the action with prejudice. The father then noted this appeal of the previously dismissed claims against Huang, Ouspenskaya, and Starace.

The father suggested that the complaint properly stated claims against the defendants for tortious interference with parental rights, fraud, and civil conspiracy. As a result, he contended that the circuit court erred by sustaining their joint demurrer to counts one through four, eight, and nine.

The Court of Appeals evaluated the father’s contentions under the standards for all demurrers. "The appellate court reviews a decision to sustain or overrule a demurrer de novo because that decision “involves issues of law.” Coutlakis v. CSX Transp., Inc., 293 Va. 212, 216 (2017). A demurrer “tests the legal sufficiency of facts alleged in pleadings, not the strength of proof.” Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 357 (2010) (quoting Augusta Mut. Ins. Co. v. Mason, 274 Va. 199, 204 (2007)). Consequently, a demurrer “can be sustained if the pleading, considered in the light most favorable to the plaintiff, fails to state a valid cause of action.” Hooked Grp., LLC v. City of Chesapeake, 298 Va. 663, 667 (2020) (quoting Welding, Inc. v. Bland Cnty. Serv. Auth., 261 Va. 218, 226 (2001)). In evaluating a demurrer, the appellate court “consider[s] as admitted the facts expressly alleged and those which fairly can be viewed as
impliedly alleged or reasonably inferred.” Id. (quoting Welding, Inc., 261 Va. at 226). As relevant to the first three assignments of error, the demurrer involved three potential legal theories for recovery: tortious interference with parental rights, fraud, and civil conspiracy.

"The holding in Padula-Wilson is sufficiently analogous to this case to control the outcome here. Further, to the extent the father contends that the defendants’ alienation efforts were for the ultimate purpose of interfering with his parental and custodial rights, these allegations fail to state a claim of tortious interference with parental rights as that action has been recognized in Virginia. This is so in part because, as explained more fully below, one cannot be permitted to do indirectly what he is forbidden from doing directly."

The court concludes: "For these reasons, we affirm the circuit court’s rulings sustaining the demurrer as to the challenged counts in the complaint and granting the motion for a stay of the proceedings."
Affirmed

This appellant would not concede and continued to file pleading after pleading to no avail. Fighting for our clients is valid but not inexpensive. When money isn't an option, it's often possible to lose sight of the facts and issue of the case. He didn't win so he kept fighting. Again, the court remains consistent and sides with the circuit court.

The Appeal of Spousal Support Because of a Life Changing Accident Doesn't Necessarily Mean Appellant Prevails

From the Loudoun County Circuit Court, comes record no. 0819-22-4, Frank Howard v. Suzanne Howard. whereby Frank Howard appealed the decision of the Circuit Court that prevented a change in the amount of spousal support agreed upon to be paid to Suzanne Howard. Several months after the court date, Mr. Howard was a pedestrian in an accident that left him needing multiple surgeries and a need to retire. Despite those facts, Mr. Howard ultimately didn't have a substantial change in financial circumstances after retiring and after receiving disability. However, Mr. Howard "believes the court erred by not admitting his testimony about how the parties reached the original agreement and not allowing him to question the wife about her income in 2019. After the circuit court sustained the wife’s relevance objections, however, the husband did not proffer the excluded testimony for the record. Similar to the situation with a continuance, “[w]hen evidence is excluded by the court, the aggrieved party must make a proper proffer of the excluded testimony to preserve the ruling for appellate review.” 

"The husband contends that the circuit court erred by finding that no material change in circumstances warranting modification of its spousal support award had occurred. Specifically, he believes that the court erroneously considered only his income and no other factors, such as the depletion of his assets and his inability to continue working. The husband argues that his injuries from the debilitating accident constituted “a totally unexpected and substantial material change in circumstances affecting his ability to pay spousal support.” In support, he suggests that his injuries “were so severe they affected every aspect of his life.”

"The circuit court did not abuse its discretion in denying the eleventh-hour motion to continue the hearing. We do not consider the husband’s challenge to the exclusion of certain testimony because the expected testimony was not proffered for the record. In addition, the record supports the circuit court’s conclusion that the husband failed to establish a material change in circumstances warranting a change in the spousal support award. For these reasons, the circuit court’s ruling is affirmed. We also deny the wife’s request for attorney fees and costs."

Ultimately, Mr. Howards accident and lifestyle changed did not prove to change his financial situation and the spousal support decision was upheld. Make sure to consult with an attorney well-versed in appeals before taking on the expense. The cause may not be worth the expense. 

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 [email protected]. 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 [email protected]. 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 [email protected]. 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.

 

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 [email protected]. Or, you can visit us online at www.charlovilttesledivorceattorney.com.- Rob Hagy