The following are brief notes regarding family law cases decided by appellate courts in Virginia within the last ninety days. The notes below do not necessarily reflect every legal or factual issue dealt with in a particular case. For a more complete treatment of the holdings of each case, refer to entries in our Domestic Relations Case Finder   corresponding with the "additional case notes" sections cited below.

Virginia Supreme Court

Adcock v. Commonwealth of Va., DSS, DCSE, 282 Va. 383 (2011)

Mother’s suit to establish and collect child support arrearages was barred by 20-year statute of limitations set forth in Va. Code §8.01-251(A). The youngest child had emancipated and the ongoing support obligation had ceased more than 20 years prior to Mother’s suit to collect arrearages. Because support payments become judgments by operation of law on the date each payment becomes due but goes unpaid, the statute bars suits to collect such judgments if filed more than 20 years after the judgment. Court of Appeals reversed.

[Additional case notes found in §4-1(A)]

Schuman v. Schuman, 282 Va. 443 (2011)

The Court of Appeals erred in classifying wife’s stock options as her separate property based on the fact that the options would not vest until after the separation of the parties. By specifically stating in Va. Code §20-107.3(G)(1) that the marital portion of any deferred compensation may be allocated “whether vested or nonvested,” the General Assembly clearly indicated that the date of vesting is not, by itself, dispositive of whether the deferred compensation is marital or separate property. The General Assembly clearly intended for retirement accounts and similar plans to be treated uniformly. Thus, the marital share of deferred compensation should be calculated in the same manner as the marital share of pensions or other retirement benefits.

[Additional case notes found in §5-7(A)]

Virginia Court of Appeals - Published Opinions

Breit v. Mason, Va. Ct. of Appeals, No. 0337-11-1 (Dec. 28, 2011)

A known sperm donor who, at the request of a woman to whom he is not married, donates his sperm for the purpose of uniting that sperm with that woman’s egg to accomplish pregnancy through assisted conception and who, together with the biological mother, executes an uncontested acknowledgment of paternity under oath, pursuant to Va. Code §20-49.1(B)(2), is not barred from filing a paternity action pursuant to Va. Code §20-49.2 to establish paternity of the child resulting from assisted conception.

[Additional case notes found in §§ 3-5; 8-13; and 8-17(I)]

Nkopchieu v. Minlend, Va. Ct. of Appeals, No. 0500-11-4 (Dec. 20, 2011)

The trial court erred in holding, based on Court of Appeals decision in Hoy v. Hoy, 29 Va. App. 115 (1999), that it did not have the authority to enter a QDRO for purposes of garnishing father’s retirement account to satisfy $28,000 child support arrearage. Neither ERISA nor Virginia state law prohibit the attachment of a retirement account for purposes of satisfying state domestic support obligations. Hoy was distinguishable on facts, as the wife in that case attempted to re-open a divorce decree that had already become final for purposes of collecting spousal support arrearages, whereas here, the divorce case was ongoing.

[Additional case notes found in §4-1(A)]

Stevens v. Stevens, Va. Ct. of Appeals, No. 0498-11-3 (Dec. 13, 2011)

The trial court did not err in finding a farm that the parties purchased from husband’s parents’ trust during the marriage to be marital property. Though husband’s parents initially set up a trust that would cause husband, along with his brothers, to inherit the farm, husband, wife, husband’s brothers, and husband’s mother agreed that husband and wife would purchase the farm from the trust, and did so while the mother was still alive. The purchase removed the farm from the trust, and thus, no portion of the farm was left to be inherited by husband when husband’s mother died.

[Additional case notes found in §5-2(B)]

West v. West, Va. Ct. of Appeals, No. 0448-11-3 (Dec. 13, 2011)

The trial court erred in finding that it had no authority on remand to hear motions to modify child and spousal support filed after the original case was remanded to the trial court. The mandate rule does not apply to a modification of child support and spousal support, when the change of circumstances alleged in the modification petitions did not exist at the time of the order initially appealed, nor was the subject of the order appealed.

[Additional case notes found in §§4-2(L), 4-3(I), and 8-1(L)]

Cranwell v. Campbell, Va. Ct. of Appeals, No. 2677-10-4 (Dec. 6, 2011)

The trial court did not err in finding that wife was not cohabiting with her boyfriend in a relationship analogous to marriage, and thus, did not err in refusing to terminate husband’s spousal support obligation. Wife and the boyfriend resided in different cities, occasionally spent the night together when one party had traveled to the city where the other resided, kept only limited sundries at one another’s respective residences, and did not have keys to one another’s respective residences. Because the parties had not established a common residence, they were not cohabiting.

[Additional case notes found in §4-3(H)(2)]

Pilati v. Pilati, Va. Ct. of Appeals, No. 0762-11-1 (Dec. 6, 2011)

The trial court erred by failing to provide sufficient explanation for its decision regarding spousal support. Despite a number of factual disputes, including the cause of the breakdown of the marriage and the potential imputation of income to wife, the trial court’s letter opinion simply paraphrased the statutory factors and included only two factual findings – that the parties had been married for 22 years and had enjoyed a “high middle class” standard of living. Case remanded to trial court for sufficient explanation for award.

[Additional case notes found in §4-3(A)(1)]

Marrison v. Fairfax Cty. Dept. of Family Services, Va. Ct. of Appeals, No. 0174-11-4 (Nov. 8, 2011)

The requirement contained in Va. Code §16.1-251(B) – that, upon the taking of a child into custody pursuant to an emergency removal order, a hearing shall be had as soon as practical, but in no event later than five business days after the removal – is directory and procedural, rather than mandatory and jurisdictional. Thus, neither the juvenile court nor the circuit court on appeal lacked subject matter jurisdiction over the petitions for emergency removal. The statute contains no explicit penalty for failure to comply with the five-day requirement nor explicitly renders a hearing held beyond the five-day period invalid. Moreover, the respondents alleged no harm or prejudice caused by the failure to hold the hearing within the five-day period.

[Additional case notes found in §§8-14(B) and 8-28]

Driscoll v. Hunter, Va. Ct. of Appeals, No. 0084-11-3 (Oct. 25, 2011)

The trial court did not err in holding that husband’s retirement and resulting reduction in income did not warrant a modification of spousal support, despite the fact that husband was having to invade the principal of certain assets in order to meet his monthly expenses and support obligation. No special consideration is given to income from wages or salary over income from a payor’s other sources. The crucial question, once a material change in circumstances has been shown, is the ability of the supporting spouse to pay. The fact that the payor may have to draw from other sources, such as the principal of investment or savings accounts, in order to make his spousal support payment, does not by itself require the trial court to suspend or reduce his spousal support obligation. Evidence revealed that, despite the reduction in income that resulted from his retirement, husband had significant and sufficient assets with which to maintain his support obligation.

[Additional case notes found in §§ 4-3(D) and 6-10]

Virginia Court of Appeals - Unpublished Opinions

Pratt v. Pratt, Va. Ct. of Appeals, Unpublished, No. 2394-10-4 (Dec. 20, 2011)

The trial court erred in finding that wife’s personal efforts as a homemaker, efforts to decorate the house and contribute to the upkeep and maintenance of the house were sufficient to transmute the house into marital property. Husband acquired the home prior to the marriage, it remained solely titled in his name, and he remained solely obligated on all debt for it. Wife’s evidence demonstrated no value added by her efforts, nor were her efforts those considered by the law to be “significant” for purposes of transmutation. Furthermore, the trial court erred when considering evidence of “some payments” towards the mortgage with marital funds to be sufficient to transmute otherwise separate property to marital property. Said payments, unless sufficiently traced, constituted contributions of marital property to separate property, and were thus transmuted to separate property.

[Additional case notes found in §§5-2(B) and 5-2(D)]

Garner v. Ruckman, Va. Ct. of Appeals, Unpublished, No. 0344-11-4 (Nov. 29, 2011)

The trial court erred in finding that mother failed to make a prima facie case that her relocation to Pennsylvania was in the child’s best interests, and thus, erred in granting father’s motion to strike. The child was seven at the time of the hearing, had been primarily with the mother since birth, and had had limited visitation with the father until very recently. While mother attempted to expand father’s role in the child’s life, father refused reasonable requests of the mother to see the child during the Christmas holiday. Moreover, evidence on the record revealed significant concerns about the father’s ability to appropriately care for the child while in his care and provide a suitable, stable home environment for him.

[Additional case notes found in §3-2(F)]

Makoui v. Makoui, Va. Ct. of Appeals, Unpublished, No. 0672-11-3 (Nov. 22, 2011)

The trial court did not err in refusing to set aside a pre-marital agreement based on wife’s allegations of insufficient disclosure pursuant to Va. Code §20-151(A). The pre-marital agreement had exhibits identifying husband’s various stock holdings by company name and number of shares. Though some of the stocks listed did not have corresponding fair market values listed, the statute only requires that the disclosure be “fair and reasonable,” not that it include a present fair market value for each item of property disclosed. Husband’s disclosure satisfied that standard.

[Additional case notes found in §§6-11(G) and 6-13]

Coleman v. Coleman, Va. Ct. of Appeals, Unpublished, No. 0633-11-2 (Nov. 22, 2011)

The trial court erred in ordering final spousal support to be determined by using the local pendente lite spousal support guidelines. Though the court properly considered the factors of §20-107.1 and recited its consideration of those factors on the record, it then directed the attorneys to simply “plug in” the income numbers into the local guidelines, then entered an order based on those guidelines. The trial court didn’t actually fix the amount of spousal support, and nothing in the record indicated that the trial court knew what amount of support it was actually awarding when it announced its decision.

[Additional case notes found in §4-3(A)(1)]

Pacot v. Pacot, Va. Ct. of Appeals, Unpublished, No. 0642-11-3 (Nov. 15, 2011)

The trial court erred in classifying husband’s business as hybrid property. Husband incorporated the business prior to the marriage, and remained sole stockholder throughout the marriage. Wife presented no evidence of the value of the business at the time of the marriage, nor evidence with regard to any assets owned or debt incurred at the time of the marriage. Without evidence of the value of the company at the time of the marriage, the court could not determine whether the business had increased in value during the marriage through husband’s personal efforts. Thus, the trial court erred in finding that wife met her burden of proving the business to be hybrid property.

[Additional case notes found in §5-2(E)]

Gibson v. Kappel, Va. Ct. of Appeals, Unpublished, No. 0180-11-4 (Nov. 15, 2011)

The trial court did not err in finding the evidence sufficient for a child’s grandparents to overcome mother’s natural parent presumption, and did not err in finding that the best interests of the child warranted custody to the grandparents. The court noted that while the mother was not unfit, she demonstrated significant lapses in judgment and an inconsistent ability to address the child’s physical and emotional needs. While not having voluntarily relinquished parental rights, she had nonetheless abdicated responsibility for the day-to-day care of the child to the paternal grandparents over a number of years.

[Additional case notes found in §3-2(C)(1)]

Chittum v. Hippenstiel, Va. Ct. of Appeals, Unpublished, No. 0028-11-1 (Nov. 8, 2011)

The trial court did not err in determining adoption by the child’s stepfather to be in the child’s best interests and that a continued relationship between the child and her biological father would be detrimental to the child. Father saw the child for ten minutes when the child was one month old. One month later, he attempted to see the child again, but the mother denied his request because he was screaming, yelling, and driving erratically up and down the street on which she lived. Father also called the mother once, when the child was four years old. Other than those three occurrences, Father had never tried to contact or visit the child. Other than contesting paternity when the child was born, he had never filed any action seeking custody of or visitation with the child. Moreover, father had been incarcerated periodically throughout the child’s life for malicious wounding, violation of probation, and a third offense of assault and battery, and had a history of substance abuse and domestic violence. The child had lived with mother and stepfather since she was one and a half years old, and was thriving in the current, stable environment.

[Additional case notes found in §3-1(B)]

Eiseman v. Beaudoin, Va. Ct. of Appeals, Unpublished, No. 1473-10-1 (Nov. 1, 2011)

The trial court did not err in determining adoption by the child’s stepfather to be in the child’s best interests and that a continued relationship between the child and his biological father would be detrimental to the child. The biological father had exercised visitation on only seven occasions in three years, all of which were supervised by the mother. The biological father had a significant history of illegal drug use since 2002, and in 2007 and 2008, was convicted of a total of eleven criminal charges, including felonies for theft, forgery, and illegal drug offenses. The child had lived with the mother and stepfather since 2006, and evidence revealed that the child was thriving in the current environment.

[Additional case notes found in §3-1(B)]

Gudino v. Gudino, Va. Ct. of Appeals, Unpublished, No. 0068-11-2 (Nov. 1, 2011)

The trial court did not err in ordering mother to pay the pro-rata costs for her visitation with the children while the children were with her in the U.S., nor in requiring her to pay the entire costs of her visitation with the children in Japan, where they resided with the father. Despite the fact that the father earned significantly more than the mother, the father, as primary custodian, bore most of the costs of the children’s upbringing, and resided with the children in Tokyo, Japan, which the court noted was “one of the most expensive cities in the world.” The mother worked full-time and lived with her own father, and demonstrated through the hiring of an expert and the payment of over $150,000 in legal fees that she had the ability to pay the costs of visitation.

[Additional case notes found in §§3-2(A)(5); 3-2(K); and 3-4(D)]

Duva v. Duva, Va. Ct. of Appeals, Unpublished, No. 0117-11-1 (Oct. 25, 2011)

The trial court did not err determining that the equity in property owned by husband prior to the marriage and titled solely in husband’s name throughout the marriage was marital. The parties began renting the property during the marriage. The trial court properly classified the rental income as marital property, based on evidence that the personal efforts of the parties – (i) the decision to rent the house; (ii) painting the house; (iii); replacing a septic system; (iv) collecting rent; and (v) other managerial activities were responsible for the generation of rental income. Moreover, the rental income was deposited into a joint account, where it was combined with marital funds and used to pay mortgage principal.

[Additional case notes found in § 5-2(B)]

Parris v. Doctor, Va. Ct. of Appeals, Unpublished, No. 0081-11-1 (Oct. 18, 2011)

The trial court did not err in determining, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, that Virginia was an inconvenient forum for custody petitions filed by a maternal grandmother. The child had lived with the mother in South Carolina for two months prior to the filing of the grandmother's petitions, and had lived with the mother in North Carolina for two years prior to that. The child last attended school in North Carolina, the abuse alleged by the grandmother was alleged to have occurred in North Carolina, and the investigation regarding the abuse was done by child protective services in North Carolina.

[Additional case notes found in §3-2(E)]

Harnois v. Harnois, Va. Ct. of Appeals, Unpublished, No. 1571-10-1 (Oct. 11, 2011)

The trial judge did not err in refusing to recuse himself from a divorce case, despite the fact that he had presided over wife's previous actions for protective orders against husband. The party moving for recusal has the burden of proving the judge's bias or prejudice. In considering a motion to recuse, a trial judge must exercise reasonable discretion to determine whether he possesses such bias or prejudice as would deny a party a fair trial. The issue of bias is not automatically or inferentially raised merely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings.

[Additional case notes found in §9-8]

Ranjbar v. Ranjbar, Va. Ct. of Appeals, Unpublished, No. 2675-10-2 (Oct. 4, 2011)

The trial court erred in classifying parties' marital residence as hybrid property and awarding wife 45% of the equity therein, where evidence established that husband purchased the house in full, with cash, prior to the marriage, and that the parties had made no improvements to the home. Wife's testimony regarding her duties of cleaning and maintaining the home was not sufficient proof of "personal efforts" contributing to an increase in the value of the property.

[Additional case notes found in §5-2(E)]