Charlottesville Divorce Lawyer Rob Hagy

Trial Court Correctly Picked The Much Earlier Separation Date-Intent to Separate Doesn't Have To Be Continuous.

In the case of Lisann v. Lisann, the Virginia Court of Appeals, in a published opinion, upheld the trial court's determination that the parties separated on July 14, 2014, and that the trail court correctly relied on that separation date when making its equitable distribution award. Husband contended that the trial court erred in finding that the parties’ separation date was in July 2014 rather than December 2018—the date on which husband contends that he intended the separation to be permanent. This dispute about the separation date matters because it impacts the trial court’s equitable distribution and spousal support determinations.

Husband argued that wife’s conciliatory statements and activities subsequent to July 14, 2014, show that wife did not
continuously maintain the intent to permanently separate after that date. Husband further contends that the trial court erred in relying on the July 2014 separation date when determining its equitable distribution award and spousal support award. Addressing husband’s argument requires this Court to resolve an issue of first impression in Virginia: whether a party who
intends to separate permanently at the commencement of the statutory separation period for a no-fault divorce must—to preserve the separation date—continuously maintain the intent to separate permanently throughout the separation period. 

As a matter of first impression, the Virginia Court of Appeals held that a party seeking a no‑fault divorce under Code § 20-91(A)(9) is not required to show that either party continuously maintained, throughout the statutory period, an intent to separate permanently. The statutory intent requirement under Code § 20-91(A)(9) is satisfied when, at the commencement of the statutory separation period, a party has the intent to separate permanently. Therefore, the trial court did not err in finding that the parties’ separation date was July 14, 2014, and not December of 2018.

If you have questions about your separation, please contact our office at (434) 293-4562.

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.

Postnuptial Agreement Still In Effect After Separation and Reconciliation.

In the case of W. Neil Wills v. Lisa J. Wills, the Virginia Court of Appeals, in a published opinion, ruled that the trial court erred in finding the parties’ Postnuptial Agreement was abrogated under Code § 20 155 by one of their later separations and reconciliations and, accordingly, the agreement was still in effect at the time of the parties’ divorce

Postnuptial Agreement Was Not Abrogated Pursuant to Code Section 20-155 By Later Separations and Reconiliations.

In the case of Lisa J. Wills v. W. Neil Wills, a published opinion, the Virginia Court of Appeals ruled that the trial court did not abuse its discretion in declining to award appellant additional attorney’s fees, but did err in finding the parties’ Postnuptial Agreement was abrogated under Code § 20-155 by one of their later separations and reconciliations.

Two New Virginia Court of Appeals Opinions Released on February 9th, 2021!

The Virginia Court of Appeals issued two related opinions on February 9th, 2021:

1.  Lisa J. Wills v. W. Neil Wills; and 

2.  W. Neil Wills v. Lisa J. Wills.

Virginia Court of Appeals: A Closer Look With Charlottesville Divorce Attorney Rob Hagy: Clyde Carleton Koons, IV, f/k/a Clyde Carleton Crane, IV v. Leslie Elizabeth Crane

On February 2, 2021, the Virginia Court of Appeals, in the case of *, a published opinion, ruled that the trail court did not err in imposing sanctions or awarding wife attorney’s fees where husband was properly served with the rule to show cause and evidence was sufficient to find appellant in willful contempt.

After a 14-year marriage, husband and wife were divorced by final decree entered in 2016. The divorce decree incorporated the parties’ property settlement and support agreement (“PSA”). The divorce decree required husband to pay the mortgages on the parties’ two condominiums.

The PSA provided that the condominiums would be sold, and the aggregate net sale proceeds would be divided equally. If husband failed to pay the mortgages, then it would be charged against his share of the net proceeds and paid to the wife. Further, the PSA specified that husband would pay $5,000 of wife’s attorney’s fees “upon the sale of the first of the real properties to sell.”

Significantly, the divorce decree listed a street address in Woodland, Washington as husband’s residential address and required that the parties “give each other and this court at least thirty days[’] advance written notice of any change of address.”

In a paragraph entitled “Knowledge of Residence,” the PSA specifically required the parties to notify each other of a change in residential address: “For so long as any obligation of this [PSA] remains unexecuted and either party still has obligations hereunder, each shall keep the other informed of his or her address of residence.”

Husband failed to pay the mortgages on the condominiums resulting in foreclosure on the properties. As a result, wife filed a show cause against him. The show cause was served upon husband’s “mother-in-law/co-resident” at the Washington address husband provided in the divorce decree in 2018.

However, after the divorce decree was entered, husband had emailed the wife in 2017 and told her he had a new address: a P.O. Box in Saudi Arabia.

Wife took the position that husband never provided her with an updated residential address as required by the divorce decree.

Husband filed a special appearance and moved to quash service of process and dismiss the show cause rule for lack of service. At the hearing, husband argued that the Washington residence might have been “the place [he] was last found” and “the last address that [he] submitted to the court,” but it was not his “usual place of abode” as required by Code § 8.01-296(2)(a). Husband emphasized that he informed wife of his move to Saudi Arabia in July 2017, well before she attempted personal service on him at the Washington address in December 2018. Husband’s evidence consisted of a de bene esse deposition transcript of his father-in-law, resident owner of the Washington address, who testified equivocally about husband’s residence. Although his father-in-law testified that husband “moved out of our house when he got the job in Saudi [Arabia],” he further stated that husband’s intent was to remain in Saudi Arabia only as long as he “could handle it” and husband had returned to the Washington residence in summer 2018 and winter 2017. Husband did not introduce any other evidence demonstrating that he abandoned the Washington abode or established a new residence elsewhere.

The trial court held that service of process on husband was valid and denied his motion to quash. Specifically, the court ruled that husband was properly served pursuant to Code § 8.01-296(2)(a), which provides for substituted service by delivering pleadings to a family member at a person’s “usual place of abode.” The court found that the process server delivered the show cause rule to husband’s mother-in-law in December 2018 at the Washington address listed in the divorce decree. The court further found that although husband emailed wife in July 2017 that he was working in Saudi Arabia and provided a post office box, he did not notify wife or the court of any change in his residential address as required by the divorce decree, and therefore the Washington address remained his usual place of abode.

The VCA upheld the ruling of the trial court noting that Code § 8.01-274.1 states that a “rule to show cause entered by the court shall be served on the person alleged to have violated the court order, along with the accompanying motion or petition and any affidavit filed with such motion or petition.”

Husband asserts that because the statute uses the words “served on the person,” the amended show cause rule and accompanying affidavit must be hand-delivered to him.

However, the phrase “served on the person” refers to the multiple methods for obtaining in personam (“personal”) jurisdiction over a party, which include substituted service pursuant to Code § 8.01-296(2).

Code § 8.01-296(2) provides the requirements for service of process “upon natural persons” as follows:

“2. By substituted service in the following manner:

“a. If the party to be served is not found at his usual place of abode, by delivering a copy of such process and giving information of its purport to any person found there, who is a member of his family, other than a temporary sojourner or guest, and who is of the age of [sixteen] or older; or”

“b. If such service cannot be effected under subdivision [(2)(a)], then by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode[.]”

Either method of substituted service — on a family member or by posting — is valid service upon a “natural person[]” if it occurs at the party’s “usual place of abode.” Under Code § 8.01-296(2), substituted service at a party’s usual place of abode may give a court jurisdiction over that person.

Because husband was a nonresident, Virginia’s long-arm statute applied and supported a conclusion that substituted service of the show cause rule was valid in this case. See generally Code § 8.01-328.1. The long-arm statute permits a Virginia court to exercise personal jurisdiction over certain nonresidents, such as husband, who have spousal support obligations in Virginia. See Code § 8.01-328.1(A)(8)(i)-(ii). These provisions of the long-arm statute do not require personal service on the nonresident. See id. Therefore, substituted service in Washington was sufficient to give the Virginia court personal jurisdiction over husband and thus satisfy the requirement of Code § 8.01-274.1 that a show cause rule be “served on the person.” See also Code § 8.01-107.3(K)(2).

Here, the court found that the Washington address was husband’s usual place of abode. The show cause order and sworn petition were served on husband’s mother-in-law at the Washington address that husband provided in the divorce decree as his residential address of record. See Code § 8.01-326 (stating that the return of service by a private process server “shall be evidence of the facts stated therein”). The court found insufficient evidence that husband had permanently abandoned that usual place of abode. Husband never notified wife or the court of any change in his residential address as required by the divorce decree. Although he sent wife an email entitled “change of address” in July 2017, he merely provided a post office box for a company in Saudi Arabia and not a new residential address. Further, the court found that the deposition testimony from husband’s father-in-law demonstrated that husband returned to the Washington residence on multiple occasions, as recently as summer 2018. Husband did not produce a driver’s license or bank account with another address, and he did not testify that he resided at a new address. The record therefore supports the court’s factual finding that husband’s presence in Saudi Arabia was temporary and that the Washington address remained his usual place of abode.

Because husband did not comply with his financial obligations, the condominiums sold at foreclosure auctions for less than their fair market values. Pursuant to the parties’ PSA, the court ordered that each party would receive half of the net proceeds from the foreclosure sales. Additionally, as a contempt sanction for husband’s violation of the divorce decree, the court ordered that wife receive half of the difference between what the properties would have sold for at non-foreclosure sales (i.e., fair market value) and the actual foreclosure sale prices. In calculating the sanction amount, the court deducted the commissions actually earned by the commissioner of sales at foreclosure, as well as the commissions that would have been earned by a realtor in hypothetical sales on the open market.

Husband contends that the court erred by considering the difference between the foreclosure prices of the condominiums and their fair market values. According to husband, the PSA limited the court’s authority to equally divide the proceeds of $6,067.55 that remained after the condominiums were sold at foreclosure.

A court has broad discretion to fashion a sanction upon finding a party in contempt. “Upon a finding of contempt, a trial judge has discretionary power to enforce decrees of the court.” “This includes the power, in the court’s ‘sound discretion,’ to determine the ‘degree of punishment.’”

Paragraph 7(E) of the PSA states that “net proceeds” from the sale of the properties shall be paid in equal shares to the parties after the payment of any commissions and liens or other expenses of sale. It further provides that any delinquent payments made by a party “shall be charged against his or her share of the net proceeds and paid to the other party.” Husband argues that because this provision of the PSA expressly addressed sales proceeds and delinquent payments, the court’s sanction inappropriately rewrote the parties’ agreement.

However, the matter before us is a sanction for contempt, not an appeal from an award of spousal support or modification of a property settlement agreement. Accordingly, these cases do not support husband’s contention that the parties’ PSA limited the court’s authority to fashion a sanction for contempt. Here, at the time that the PSA was executed, the parties intended that the condominiums would be sold for their fair market value and the proceeds would be divided equally. However, because of husband’s noncompliance, the properties were sold at foreclosure, resulting in reduced proceeds. The court enforced Paragraph 7(E) of the PSA by ordering that the net proceeds of the foreclosure sale be divided in half and distributed to each party.

Contrary to husband’s argument, however, Paragraph 7(E) of the PSA did not preclude the court’s discretionary authority to order an additional monetary award to wife — consisting of the difference between the properties’ fair market values and the foreclosure proceeds — as a sanction for husband’s noncompliance with his financial obligations under the divorce decree. See Kahn v. McNicholas, 67 Va. App. 215, 228-29 (2017) (holding that the equitable distribution statute, Code § 20-107.3(K)(2), authorizes enforcement of monetary awards through circuit court’s contempt power).

Mother Understood Nature And Legal Consequences of Consent to Adoption, Could Not Overturn the Adoption.

In the case of Shannon Kathleen Smith Hurt Lively v. Paulette Holland Smith and Link Monroe Smith, the Virginia Court of Appeals, in a published opinion, held that  there was no error in trial court’s finding that Code § 63.2-1216 is not unconstitutional as applied to the facts of this case where mother did not lack understanding of the nature and legal consequences of her consent to the adoption of her child by her grandparents.

Mother and father had a child. The father was abusive and he and mother divorced.  Mother was sentenced to four years incarceration and asked her parents to assume custody of the child. Approximately 2 years later and while the mother was still incarcerated, the maternal grandparents petitioned the court to adopt the child. The adoption was initiated to prevent the abusive father from getting custody of the child. Mother executed a consent to adoption form and shortly thereafter a final order of adoption was entered. Mother was subsequently released from prison, petitioned for custody and that petition was denied due to the adoption order. Mother then sought to set aside the adoption. Maternal grandmother demurred stating that Code Section 63.2-1216 foreclosed mother’s challenge to the adoption.

The trial court agreed with mother that, since she was incarcerated, she should have had a guardian ad litem appointed pursuant to Code Section 8.01-9 and that her rights to due process and equal protection had been violated by the failure to appoint a guardian. However, the trial court ruled that Code Section 63.2-1216 was not unconstitutional as applied to her case. Mother appealed.

The question is whether, assuming arguendo that the circuit court was correct with respect to the issue of mother’s entitlement to a guardian ad litem and the violation of mother’s rights, the facts of this case support mother’s argument that she did not understand the nature and consequences of her consent and the adoption and thus was denied due process.

The VCA held that the evidence supported the trial court’s finding that there was no misunderstanding of the nature of the adoption.

-Mother signed the consent to adoption.

-Mother corresponded with the adoption attorney about the adoption.

-The adoption attorney spoke with the maternal grandparents about the finality of the adoption and neither of them indicated that they did not understand that the adoption would be anything else other than final.

-The maternal grandfather had several phone conversations with mother where the words adoption were used.

-The maternal grandmother talked to the mother over the phone about the adoption and never told mother that the adoption would be temporary.

-Mother knew the objectives of the adoption were to protect the child from the abusive father.

-There had been a previous custody proceeding involving the parties so evidence supports a reasonable inference that mother knew the adoption was a new legal arrangement that went beyond what mere custody provided.

-Since mother was in favor of the adoption to prevent child from going to abusive father, it was difficult to conclude that mother didn’t know the permanency of the adoption wouldn’t apply to her as well.

-Mother saw the adoption order entered in 2011 when she returned from prison, but she waited until 2015 when the maternal grandparents went through a divorce to file for custody and then another three years to file the petition to set aside the adoption.

-Therefore “it is clear from the totality of the facts supports a finding that mother did not lack understanding of the nature and legal consequences of her consent and the adoption. The statute at issue here, Code Section 63.2-1216, provides that six months after the date of entry of an order of adoption that has not been appealed, that order becomes ‘final for all purpose’ and ‘shall not be subject to attack…for any reason,’ including those alleged here.’”

-Rob Hagy

Mother Could Not Overturn Adoption Where She Knew The Nature and Legal Consequences of Her Consent to Adoption.

On October 20, 2020, in the case of Shannon Kathleen Smith Hurt Lively v. Paulette Holland Smith and Link Monroe Smith, the Virginia Court of Appeals, in a published decision, upheld a trial court's finding that Code § 63.2-1216 is not unconstitutional as applied to the facts of this case where appellant did not lack understanding of the nature and legal consequences of her consent to the adoption of her child by appellees.

Mother and father had a child. The father was abusive and he and mother divorced.  Mother was sentenced to four years incarceration and asked her parents to assume custody of the child. Approximately 2 years later and while the mother was still incarcerated, the maternal grandparents petitioned the court to adopt the child. The adoption was initiated to prevent the abusive father from getting custody of the child. Mother executed a consent to adoption form and shortly thereafter a final order of adoption was entered. Mother was subsequently released from prison, petitioned for custody and that petition was denied due to the adoption order. Mother then sought to set aside the adoption. Maternal grandmother demurred stating that Code Section 63.2-1216 foreclosed mother’s challenge to the adoption.

The trial court agreed with mother that, since she was incarcerated, she should have had a guardian ad litem appointed pursuant to Code Section 8.01-9 and that her rights to due process and equal protection had been violated by the failure to appoint a guardian. However, the trial court ruled that Code Section 63.2-1216 was not unconstitutional as applied to her case. Mother appealed.

The question is whether, assuming arguendo that the circuit court was correct with respect to the issue of mother’s entitlement to a guardian ad litem and the violation of mother’s rights, the facts of this case support mother’s argument that she did not understand the nature and consequences of her consent and the adoption and thus was denied due process.

The Virginia Court of Appeals held that the evidence supported the trial court’s finding that there was no misunderstanding of the nature of the adoption"

-Mother signed the consent to adoption.

-Mother corresponded with the adoption attorney about the adoption.

-The adoption attorney spoke with the maternal grandparents about the finality of the adoption and neither of them indicated that they did not understand that the adoption would be anything else other than final.

-The maternal grandfather had several phone conversations with mother where the words adoption were used.

-The maternal grandmother talked to the mother over the phone about the adoption and never told mother that the adoption would be temporary.

-Mother knew the objectives of the adoption were to protect the child from the abusive father.

-There had been a previous custody proceeding involving the parties so evidence supports a reasonable inference that mother knew the adoption was a new legal arrangement that went beyond what mere custody provided.

-Since mother was in favor of the adoption to prevent child from going to abusive father, it was difficult to conclude that mother didn’t know the permenancy of the adoption wouldn’t apply to her as well.

-Mother saw the adoption order entered in 2011 when she returned from prison, but she waited until 2015 when the maternal grandparents went through a divorce to file for custody and then another three years to file the petition to set aside the adoption.

Therefore “it is clear from the totality of the facts supports a finding that mother did not lack understanding of the nature and legal consequences of her consent and the adoption. The statute at issue here, Code Section 63.2-1216, provides that six months after the date of entry of an order of adoption that has not been appealed, that order becomes ‘final for all purpose’ and ‘shall not be subject to attack…for any reason,’ including those alleged here.’”

Trial Court Could Depart From Child Support Guidelines Due To Unreimbursed Medical Expenses.

In the case of Ridenour v. Ridenour, the Virginia Court of Appeals, in a published decision, ruled that the trial court did not abuse its discretion in fashioning the child support award after finding that application of the child support guidelines was unjust and inappropriate and Code § 20-108.2(D) did not require any unreimbursed medical expenses be categorically excluded from child support calculations a matter of law.

The husband appealed from the final decree of divorce which awarded the wife child support in the monthly sum of $10,336. Husband contends that the trial court erred by deviating from the child support guidelines to include expenses for one of the children’s occupational therapist. Husband contends that such expenses were required to be treated as unreimbursed medical expenses and, therefore, excluded from the calculation of the child support award.

This Court disagrees. The applicable statutes do not mandate that the child’s occupational therapy expenses be treated only as unreimbursed medical expenses and categorically excluded from consideration when fashioning a child support award. The statutory scheme maintains the discretion of trial courts to evaluate the facts of individual cases and deviate from the child support guidelines in appropriate circumstances.

Father Had Standing to Contest Adoption Because He Timely Registered With the Virginia Birth Father Registry.

On July 14, 2020, in the case of John Berry v. Mary Barnes, Tricia Ann Scanlon and Donald Edward Scanlon, the Virginia Court of Appeals, in a published opinion, ruled that the trial court erred in finding appellant lacked standing where a man may timely register with the Virginia Birth Father Registry within ten days of a child’s birth regardless of whether he has been notified previously of the Registry pursuant to Code 63.2-1250(F).

In this case, unmarried parents conceived a child. Father accompanied mother to two adoption agencies for more information about adoption but objected at both agencies.  One of the agencies connected mother with a prospective adoptive couple and worked to facilitate the adoption. That agency sent father a letter informing father of the Virginia Birth Father Registry (“VBFR”) as required by Virginia Code Section 63.2-1250(F).

Thereafter, the adoptive parents filed a petition in the juvenile and domestic relations district court requesting that the court accept mother’s consent pursuant to Code Section 63.2-1233. The same day as the filing father received notice that he was registered with the VBFR. The child was born two days later. At the next hearing, the prospective adoptive couples petition was heard. The juvenile court said that although father had registered, he had not “timely” registered.

Father appealed to circuit court. In response, mom revoked her consent to the adoption. A hearing was scheduled in circuit court.  The prospective adoptive parents filed a plea in bar alleging father lacked standing. The circuit court agreed with the prospective adoptive parents finding that father lacked standing to bring the appeal per the VBFR Act.

This appeal followed.

This was a parental placement adoption. Where a birth mother places a child for adoption, consent to adoption must also be executed “by any man who is an acknowledged father under Section 20-49.1, is an adjudicated father under Section 20-49.8, is a presumed father…, or has registered with the” VBFR.

Consent of the birth father is not required when birth father is not married to the mother of the child at the time of the child’s conception or birth if the putative father named by the birth mother did not register with the VBFR.

A man timely registers when the registration “is received by the Department [of Social Services] within (i) ten days of the child’s birth or (ii) the time specified in Subsection C or F.” Virginia Code Section 63.2-1250(E). According to F, “[r]egistration is timely if the signed registration form is received by the Department [of Social Services] within 10 days of personal service of the written notice or within 13 days of the certified mailing date of the written notice.  The person service or certified mailing may be completed either prior to or after the birth of the child.”

Father had standing because he did timely register. Father filed within ten days pursuant to 63.2-1250(E)(i). The child was born on August 28, 2019. The father had until September 7, 2019 to register. The father sent to the DSS the required form dated August 21, 2019, and received on August 26, 2019, a return letter from the Department notifying him that his “name ha[d] been entered into the” VBFR.  Therefore, the father was timely registered before the consent hearing.  That Code section provides to distinct circumstances in which registration with the VBFR is timely.  Both parties agree that father filed within ten days of the child’s birth which is alternative (i), but did not file within the time specified in subsection F, which is alternative (ii).

The trial court erred because it held that once the time period began to run pursuant to alternative (ii), the father couldn’t timely register using alternative (i). In essence, the court interpreted the statute to say a registration is timely if it is completed “by the earlier of alternative (i) or (ii),” but the statute is clear.

Trial Court Erred In Offsetting Husband's Equitable Distribution Monetary Award Against Wife's Spousal Support Award.

In the case of Jerry Dixon v. Rebecca Dixon, the Virginia Court of Appeals ruled, in a published opinion, that the trial court erred by offsetting husband's equitable distribution monetary award against wife’s spousal support award

In fashioning the equitable distribution award, the circuit court determined that the husband was entitled to “a credit” for $157,250, half of the parties’ equity in the marital home. The court also awarded the wife $1,500 monthly spousal support. It provided as follows:

"[T]he duration of spousal support must be tempered by the aforementioned credit of $157,250 [the husband] received in the equity of the marital home. That credit will serve to shorten the period of spousal support. Had the Court not awarded support but rather made a reservation to [the wife], the statutory presumption would have been that the right would continue for one half the duration of the 28 year marriage. Though not mandated, the Court takes guidance from that in concluding that a support duration of a similar time period—fourteen years (one half of 28)—would be appropriate. However, after applying the credit to [the husband] of his share of the equity [in] the marital home (or $157,250), the Court calculates that an award of spousal support for approximately 5.25 years (or 63 months) is appropriate."

Accordingly, the court ordered that the husband pay the wife the monthly amount of $1,500 in spousal support for sixty-three months.

The offset of the husband’s monetary award against the end of the wife’s spousal support award was based on the assumption that the wife would otherwise be due spousal support for fourteen years after the divorce decree was entered, the duration that the court noted that it would have imposed absent the “credit.” However, certain events can trigger the end of the duty to pay spousal support. Generally, spousal support terminates when either party dies, the supported party remarries, or the supported party lives with someone in a relationship analogous to marriage for one year or more. See Code § 20-109(A), (D). Therefore, the effect of offsetting the monetary award against spousal support was to make the award conditioned on future circumstances.

The question here is whether, in light of the applicable statutory provisions, the circuit court had authority to attach contingencies based on future events to a monetary award issued under Code § 20-107.3(D).

The equitable distribution statute provides, in pertinent part, that based on a variety of factors, a court granting a divorce “has the power to grant a monetary award, payable either in a lump sum or over a period of time in fixed amounts, to either party.” Code § 20-107.3(D). The various factors relevant to determining a monetary award do not encompass the future continuity of a spousal support award. See Code § 20-107.3(D)-(E). The statute expressly provides that a court “shall determine the amount of any such monetary award without regard to maintenance and support awarded for either party.” Code § 20-107.3(F) (emphasis added). Further, the statute does not permit conditioning payment of such an award on future circumstances. See generally Code § 20-107.3(D) (not listing any future circumstances as relevant).

In contrast, the equitable distribution statute provides for conditional monetary awards in distributing pension, profit-sharing, deferred compensation, or retirement benefits (hereafter referred to collectively as retirement benefits).

“[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.” Fox, 61 Va. App. at 196. The inclusion of statutory language indicating that monetary awards based on retirement benefits are contingent on the actual distribution of those benefits signals that the omission of language permitting conditional monetary awards under subsection (D) was intentional. Therefore, based on the plain language of the statute, it does not authorize a general equitable distribution monetary award that is contingent on future circumstances.

Supporting this interpretation of the plain meaning of Code § 20-107.3(D) is the purpose of equitable distribution. A monetary award to equitably distribute marital property “involves an adjustment of the equities, rights and interests of the parties in marital property.” Patel v. Patel, 61 Va. App. 714, 729 n.8 (2013) (quoting Stumbo v. Stumbo, 20 Va. App. 685, 691 (1995)). “The clear legislative intent embodied in [Code § 20-107.3] is to maintain an appropriate separation between considerations of . . . spousal support and considerations of an equitable division of marital wealth. This is appropriate because support and equitable distribution awards are based on entirely different considerations and serve entirely different purposes.” Williams v. Williams, 4 Va. App. 19, 24 (1987). See generally Patel, 61 Va. App. at 729 n.8 (“Spousal support involves a legal duty flowing from one spouse to the other by virtue of the marital relationship.” (quoting Stumbo, 20 Va. App. at 691)). On the “termination of the marriage [,] . . . whatever marital wealth has been accumulated is to be equitably distributed at that time.” Reid, 7 Va. App. at 565. A court shall base the division of marital property, “the amount of any monetary award,” and “the method of payment” on a variety of circumstances. Code § 20-107.3(E). The relevant factors largely pertain to the parties’ marriage and contributions to the family. See Code § 20-107.3(E)(1)-(2), (5), (10). Such factors require the court to consider evidence of events prior to the date of the hearing.7 In short, the division of marital property and related monetary awards generally are grounded in the past and not based on the parties’ future circumstances. See Reid, 7 Va. App. at 565 (“Code § 20-107.3 provides for the equitable distribution of the accumulated marital wealth between the marital parties . . . .”). This approach logically stems from the purpose of equitable distribution to allocate the parties’ rights and interests in marital property, which typically have accrued prior to the time of separation or the evidentiary hearing. See id. An exception to this general rule exists for retirement benefits, which are necessarily “future oriented.