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.  

 

 

 

Wife Properly Awarded Child Support Appeal Bond.

In the case of Zedan v. Westheim, the Virginia Court of Appeals, in a published opinion, ruled that the trial court property awarded wife an appeal bond of approximately of $221,000.00 after the case was remanded back to the trial court from the Virginia Court of Appeals.  The husband posted the appeal bond to suspend execution of a judgment for child support arrearages against him while he appealed to the Virginia Court of Appeals.  While the husband was not found to be in contempt of court on appeal, the Virginia Court of Appeals did uphold the child support arrearage and remanded the case to the trial court for the trial court to "determine how father should be brought into compliance with the support provisions of the annulment decree."  Upon remand, the trial court released the appeal bond to the wife and not the husband.  The Virginia Court of Appeals did not need to enter any new award against the husband.The purpose of an appeal bond is not to secure payment of all damages incurred as a result of the suspension of the execution of the judgment.  While the Virginia Court of Appeals ruled in favor of the husband on the contempt issue, it ruled against the husband and in favor of the wife on all the other issues before the Virginia Court of Appeals including that of the child support arrearage.  Father could have appealed just the contempt conviction, but instead he appealed the contempt conviction and the child support arrearage.  As a result, he assumed the risk that he would lose the appeal bond.  Also, the actual language of the Virginia Court of Appeals' order remanding the case did not instruct the trial court to determine whether the child support provisions should be enforced at all.  Rather, the Virginia Court of Appeals instructed the trial court to determine how to enforce the child support provisions.  Therefore, by releasing the bond, the trial court complied with the mandate of the Virginia Court of Appeals. Husband was not denied due process by this action.  Finally, the remedy the husband seeks, the return of the bond, would lead to an absurd result under Virginia law.  If husband's argument was upheld, he would have received the appeal bond back if he won or if he lost. 

-Rob Hagy, Charlottesville Child Support Lawyer.  For help with your child support issue, please call me at 434.293.4562 or email me at [email protected].  I look forward to helping you.

 

 

Circuit Court Afforded Mother a De Novo Review on Appeal.

In the case of Huston v. Huston, the Virginia Court of Appeals, in an unpublished opinion, ruled that a circuit court judge did not improperly base its ruling on the decision of the juvenile and domestic relations district court in violation of mother's statutory right to a de novo appeal where the circuit court judge commented that he reached his own conclusions in the case and his reasoning was similar to the lower court judge's.

Procedural Default on Appeal Prevents Husband from Arguing that Second Mortgage Constituted Waste of Marital Assets

In the case of Bailee v. Bailee, the Virginia Court of Appeals, in an unpublished opinion, ruled that it could not hear Husband's appeal of a decision denying his motion asking the court to consider a second mortgage taken out by his Wife as waste of marital assets.  Husband failed to obey Rule 5A:18 which requires him to state his objection to the dismissal.

Court's Refusal to Transfer Spousal Support Matters from Virginia to Texas Could Not Be Appealed.

In the case of Kotara v. Kotara, the Virginia Court of Appeals, in an unpublished decision, ruled that it could not enterain an ex-husband's appeal of a circuit court decision denying his motion to transfer spousal support matters from Virginia to Texas.  Husband moved to transfer jurisdiction from Virginia to Texas on the basis of the forum non conveniens doctrine.  The Virginia court denied the motion.  Ex-husband appealed.  The Virginia Court declined to hear ex-husband's appeal because he rmoved to transfer a non-existant case.  Before moving to transfer jurisdiction, ex-husband should have moved to modify support, which was what he was trying accomplish in Texas.  Therefore, the order was not a final order or an interlocutory order and could not be appealed to the Virginia Court of Appeals.

Judge Pro Tempore's Order Was Not a Final Order Subject to Appeal.

In the case of de Haan v. de Haan, the Virginia Court of Appeals, in a published opinion, dismissed a father's appeal where the father tried to appeal a custody and visitation order issued by a judge pro tempore.  The Virginia Court of Appeals determined that it lacked subject matter jurisdiction to hear the appeal because the judge pro tempore's order constituted an interlocutory appeal.  The judge pro tempore's order did not adjudicate the "principles of the cause".  In other words, the judge pro tempore's order was not final because it didn't decide all of the other issues in the case such as divorce and equitable distribution.

Failure to File Transcript or Written Statement of Facts Prevents Appeal

In the case of Brown v. Ketchum, the Virginia Court of Appeals, in an unpublished opinion, declined to hear an appeal where the appealing party, the father, failed to file a a transcript or written statement of facts.  Either of the two would have been necessary for the Court to descern what transpired in court during this custody and visitation proceeding.

Child Support Case Could Be Nonsuited on De Novo Appeal

In the case of DCSe ex rel Charlotte Stone Abediyi v. Ferguson, the Roanoke Circuit Court held that the Division of Child Support Enforcement could nonsuit a child support petition it filed following a de novo appeal to circuit court.  The father claimed he intended to file a counterclaim in the case, but failed to actually file a pleading with the court asserting the counterclaim.  Therefore, the bar against a nonsuit without an adverse parties' consent where the parties have filed cross claims did not apply.

No Appeal Clause of Property Settlement Agreement Binding and Results in Dismissal of Appeal

In the case of Burke v. Burke, the Virginia Court of Appeals, in a published opinion, ruled that wife's appeal of a trial court decision to the Virginia Court of Appeals was barred because the parties' property settlement agreement contained language barring an appeal.

Court of Appeals Upholds Child Support, Spousal Support and Equitable Distribution Rulings: Failure to Follow Appellate Procedure Again Prevents Consideration of Some Issues

In the case of Buch v. Buch, the Virginia Court of Appeals, in an unpublished opinion, upheld the trial court's child, spousal, and equitable distribution rulings. 

As for the matter of spousal support, the husband argued that the trial court’s determination of wife’s income and need and husband’s ability to pay was contrary to the evidence and that the trial court's award of spousal support for an indefinite duration was an abuse of discretion based upon the evidence presented.   

Whether and how much spousal support will be awarded is a matter of discretion for the trial court.  In fixing the amount of the spousal support award, a trial court’s ruling will not be disturbed on appeal unless there has been a clear abuse of discretion. We will reverse the trial court only when its decision is plainly wrong or without evidence to support it.

In this case, the trial court considered the statutory factors for awarding spousal support as set forth in Virginia Code Section 20-107.3(E). The trial court awarded wife spousal support of $2,000 per month. The trial court explained that it arrived at this figure by establishing wife’s base salary as a teacher and determining that her base income would be supplemented by some amount of tutoring.  Additionally, the trial court considered the standard of living established during the marriage and found that wife cannot approximate her marital lifestyle without spousal support.  The trial court also found that wife’s monetary and nonmonetary contributions combined were at least as substantial as husband’s income and her flexibility in career choice allowed him the ability to focus on his job.  The trial court complied with Code § 20-107.1 by considering the statutory factors and making appropriate findings identifying the factors supporting the spousal support award. As a result, the trial court did not abuse its discretion.

Husband also claimed on appeal that the court's ruling obligating him to pay by pay half of the children’s unspecified extracurricular expenses.  He argued that the court had already considered these expenses when arriving at wife’s spousal support award.  The Virginia Court of Appeals did not agree.  The trial court's order provides that any activity must be agreed to by the parties.  Therefore, he will not be subject to pay half of any activity unless he agrees to the activity. Moreover, wife had requested that husband pay a greater share of the children’s expenses.

As for the equitable distribution issues, the Virginia Court of Appeals refused to take up the matters citing Rule 5A:20 and Rule 5A:18. Rule 5A:20(e) requires that an appellant’s opening brief contain "[t]he principles of law, the argument, and the authorities relating to each question presented." Unsupported assertions of error "do not merit appellate consideration." Here, husband’s brief fails to comply with Rule 5A:20(e) because it solely relied on unpublished legal opinions as authority.  Moreover, husband failed to present any legal argument predicated on the legal analyses in these opinions, relying instead on conclusory statements. "‘Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration.’"

As for the child support issue, the matter of the allocation of a tax exemption, the husband waived that argument by failing to object to the trial court's refusal to grant him the exemption in violation of 5A:18.

As a result of these failures, the Virginia Court of Appeals granted wife's request for attorneys fees to defend the appeal, and remanded the case back to the trial court for a determination of the amount of the fees.

Trial Judge Erred in Denying Mother a Trial De Novo on Appeal to Circuit Court

In the case of Alexander v. Flowers, the Virginia Court of Appeals, in a published opinion, ruled that the trial judge erred in telling a mother appealing a JDR custody decision that if she had no new evidence to present, as indicated by his reading of the JDR trial transcript, he would leave custody with the father and in addition, impose a large attorney's fee award against the mother.