Litigation Procedure and Law - § 8-20 - § 8-28
§ 8-21. Soldiers and Sailors Civil Relief Act
(B) Continuance
2009---Tye v. Tye, Va. Ct. of Appeals, Unpublished, No. 0833-08-1
Trial court did not abuse its discretion in denying husband’s motion for continuance, which husband sought on the morning of trial. Husband sought the continuance so that his third attorney, whom husband had retained the morning of the trial but who was unable to attend on that date, could represent him. Trial court noted husband’s failure to cooperate with his first two lawyers, both of whom had withdrawn, husband’s failure to respond to discovery, husband’s previous failure to comply with numerous court orders, and the fact that the trial date had been set five months earlier.
1986---Venable v. Venable, 2 Va. App. 178 (1986) (NLA)
In considering a request for continuance, the court is to consider all the circumstances of the case.
2010---Trump v. Trump, Va. Ct. of Appeals, Unpublished, No. 2475-09-4
The trial court erred in granting wife’s motion to strike husband’s evidence in support of his motion to modify child and spousal support. Although wife attempted to contradict husband’s evidence of reduced revenue from his business by showing that husband’s savings had increased during the period in which husband alleged the decrease in revenue, the trial court, when evaluating the motion to strike, was required to accept as true all evidence favorable to husband and any reasonable inferences deducible therefrom, rather than judge the weight and credibility of the evidence, unless the evidence defied logic and common sense.
2009---Chaplain v. Chaplain, Va. Ct. of Appeals, Rec. No. 2582-08-1
The standard that governs the trial court’s review of the plaintiff’s evidence before granting a motion to strike requires the trial court to accept as true all the evidence favorable to the plaintiff as well as any reasonable inference a factfinder might draw therefrom which would sustain the plaintiff’s cause of action. The trial court is not to judge the weight and credibility of the evidence, and may not reject any inference from the evidence favorable to the plaintiff unless it would defy logic and common sense.
2005---South v. South, Va. Ct. of Appeals, Unpublished, No. 0700-04-2
Trial court’s failure to apply the correct legal standard in ruling on a mother’s motion to strike the evidence resented by the grandparents was harmless error. In order to survive the motion to strike, the grandparents’ had to establish a prima facie case that the child might suffer actual harm if custody was granted to the mother. The trial court incorrectly sustained the motion based on the grandparent’s failure to prove either that custody with them would be in the child’s “best interests,” or that the mother was “unfit.” The Court of Appeals held that the grandparents failed to make a prima facie case as they presented no evidence of any actual harm to the child if placed in mother’s custody.
1998---Shooltz v. Shooltz, 27 Va. App. 264
Motion to strike speculative expert testimony granted and upheld on appeal.
2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Rec. No. 2232-09-2
Trial court did not err in denying mother’s motion to nonsuit, despite the fact that the motion was made prior to the case having been submitted to the judge for final decision. In cases where allegations of child sexual abuse have been presented, and a preliminary protective order has been issued pursuant to those allegations, an alleged abuser’s right to nonsuit must be subordinate to the welfare of the child. Because both the father and the guardian ad litem objected to the nonsuit, and because the mother, rather than a true plaintiff, was actually a respondent and subject to the protective order herself, allowing mother to nonsuit the case would subvert the purposes of Va. Code §16.1-253. The trial court properly recognized that, though the petition was originally brought in the name of the mother, it was brought for the benefit of the child. Therefore, the mother’s right to advocate for the protective order on behalf of the child could be transferred to another party of interest – namely, the father and/or the guardian ad litem.
2010---Sharman v. Gillepsie and Hakes, Va. Ct. of Appeals, Unpublished, No. 0140-09-2
Generally, cross petitions filed after a motion for nonsuit has been filed need not be considered in a court’s decision to grant or deny a nonsuit.
2007---Ipsen v. Moxley, 49 Va. App. 555
Husband voluntarily taking a nonsuit in a pending divorce case does by operation of law terminate Wife’s right to further pendente lite spousal support. However, if there is a juvenile spousal support order that was granted prior to the divorce proceeding, the granting of the voluntary nonsuit automatically and effectively restores the juvenile court’s jurisdiction and operation of its prior support order.
2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Rec. No. 2232-09-2
The trial court did not err in refusing to allow mother to call the child to testify where the parties had previously stipulated that the child was “unavailable” pursuant to Va. Code §63.2-1522. Considering that the parties agreed to the stipulation and the court found the stipulation to be in the best interests of the child at the outset of the trial, the child was, for all intents and purposes, no longer available to testify.
Once a valid stipulation has been agreed to, there can be no objection to it.
2006---Rahnema v. Rahnema, 47 Va. App. 645
A stipulation of counsel, particularly when relied upon by a court, cannot later be unilaterally withdrawn.
2004---Boedeker v. Larson, 44 Va. App. 508
Trial court did not err in binding husband to his original agreement regarding the share of his military bonus that wife was entitled to receive. Despite the fact that husband changed his position regarding whether wife was entitled to the bonus at all when he filed his motion to reconsider, the trial court found that, at the initial hearing, wherein husband admitted that wife was entitled to receive a share of the bonus, husband and wife, through their attorneys, agreed upon the amount that wife was to receive.
2007---Campbell v. Campbell, 49 Va. App. 498
Trial court abused its discretion, as a matter of law, by preventing Husband from cross-examining Wife’s witnesses due to the time limits it imposed and that such error was not harmless.
2003---Johnson v. Commonwealth, 40 Va. App. 605
Allowing a child rape victim to testify via two-way closed circuit television did not violate the Confrontation Clause, as it still afforded the Defendant the opportunity for contemporaneous cross-examination, still required the child witness be found competent to testify, still required the witness to testify under oath, and allowed for the judge, jury, and defendant to be able to view the demeanor of the witness as she testified.
2002---Parrish v. Commonwealth, 38 Va. App. 607
Trial court did not err in allowing a six-year-old child to testify via closed-circuit television in criminal prosecution against father for sexual abuse, after finding, based on expert testimony that the child would suffer severe emotional trauma if forced to testify in open court, that the child was “unavailable” to testify. The expert testified that the child had attention deficit problems, was not a verbal child, did not deal with stress well, and exhibited significant behavioral problems whenever her future court appearance was mentioned.
1986---Venable v. Venable, 2 Va. App. 178 (1986) (NLA)
When a trial court, in the exercise of its discretion, holds an ore tenus hearing, and one of the parties requests an opportunity to be present, to be heard, and to cross-examine adverse witnesses, due process requires that the court afford the litigant that opportunity. However, the trial court is not required to exercise that opportunity for the litigant. It is not the responsibility of the court to schedule the litigants depositions, or to subpoena the witnesses.
(I) Motion to Rehear, Reconsider, Re-open Case
2011---Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1381-10-3
The trial court did not err in allowing the petitioner to reopen her case immediately after the respondent’s motion to strike, for purposes of allowing the petitioner to put on evidence regarding support arrearages. Though the traditional standard for motions to rehear or reopen is to correct an error on the face of the record or to admit and consider newly discovered evidence, where the request to reopen the case occurs before the entire record is closed, the trial court has the discretion to allow for the additional presentation of evidence to ensure that the whole case is presented for the best advancement of the ends of justice.
2011--- Carr v. Carr, Va. Ct. of Appeals, Unpublished, No. 2704-10-4
Trial court did not err in denying mother’s motions for clarification and for reconsideration without granting mother a hearing for purposes of receiving testimony or evidence on the motions. The mother had filed numerous motions and the court had held two evidentiary hearings prior to the entry of the final order. Mother’s motion for clarification and motion for reconsideration raised no new issues. Thus, the court did not err in denying the motions without first conducting a hearing.
2010---Buniva v. Buniva, Va. Ct. of Appeals, Unpublished, No. 1669-09-2
After a court has concluded an evidentiary hearing during which each party had ample opportunity to present evidence, it is within the court’s discretion to refuse to take further evidence on the subject. To establish entitlement to rehearing, a petitioner must show either an error on the face of the record or some legal excuse for his failure to present his full defense at or before the time of the entry of the decree. (Citing Holmes v. Holmes, 7 Va. App. 472 (1988)).
The trial court did not err in refusing to grant wife a rehearing for purposes of presenting expert testimony by her accountant as to the tax consequences of her requested spousal support award, despite wife’s argument that she had not secured the witness prior to trial because she was under the mistaken impression that the tax consequences of any support award were not in dispute. Wife had ample time prior to trial to secure the witness, and moreover, failed to ask for a continuance before or during the evidentiary hearing for that very purpose.
1998---Vokes v. Vokes, 28 Va. App. 349
The thirty-day period of Rule 5A:6(a) cannot be tolled by either the filing of a post-judgment motion to set aside or reconsider the judgment or the pendency of such a motion on the thirtieth day after final judgment. In order to toll the limitations of Rule 5A:6(a) and Rule 1:1, the trial judge must do more than merely express a desire to consider action or take the issue under advisement; rather, the trial judge must issue an order modifying, vacating, or suspending the order within twenty-one days of entry.
Statement in final order that father’s motion to transfer custody “shall remain on the docket of this court for further hearing” was insufficient to toll the thirty-day period of Rule 5A:6(a), where the trial court expressly stated on the record when entering the order that the sole purpose of the future hearing was to hear “after-discovered evidence” on mother’s motion to rehear rather than to rehash that which had already been presented.
The trial court lacked jurisdiction to award father attorney’s fees and guardian ad litem costs upon denial of mother’s motion to rehear, as more than twenty-one days had passed since the court entered a final order granting husband’s motion for custody, upon which mother’s motion to rehear was based.
1995---Collins v. Alexander, Va. Ct. of Appeals, Unpublished, No. 0168-95-2
In order to demonstrate entitlement to a rehearing, a petitioner must show either an “error on the face of the record, or...some legal excuse for his failure to present his full defense at or before the time of entry of the decree.”
2011--- Switzer v. Fridley, et al., Va. Ct. of Appeals, Unpublished, No. 1986-10-3
The trial court did not err in sanctioning father, pursuant to Va. Code §8.01-271.1, by requiring that he obtain leave of court before filing further pleadings and motions regarding custody or visitation of his child. Father had filed numerous motions and other pleadings over a ten year period, most of which were barred by res judicata, aimed solely at harassing opposing parties and the court, and/or otherwise meritless.
2010--- Herrel v. Herrel, Va. Ct. of Appeals, Unpublished, No. 1670-09-3
Trial court did not err in concluding that it had no authority to grant wife's request for relief against ex-husband's prior counsel for costs and fees incurred by wife as a result of husband's and his prior counsel's twelve-year delay in presenting the court with a QDRO for purposes of dividing husband's pension, pursuant to the divorce decree. Even if husband's prior counsel, who never moved for or sought entry of an order of withdrawal, were found to have still been husband's counsel of record twelve years after the entry of the divorce decree, wife's right to any relief in the form of sanctions was against husband himself, not against husband's counsel. Neither Va. Code §8.01-271, which authorizes sanctions based on the contents of pleadings, nor Rule 4:12, which authorizes such an award based on violation of discovery orders applied here, and the court otherwise lacked “inherent authority” to impose as a sanction against the attorney the awarding of attorney’s fees and costs requested here. Thus, wife's motions against husband's former counsel were inappropriately directed.
2007---Switzer v. Switzer, 273 Va. 326
Court of Appeals abused discretion in summarily dismissing Father’s appeals based on Father’s failure to pay a monetary sanction imposed by the Court of Appeals in another case. Court of Appeals ordered that Father not file additional appeals until he paid a $500 sanction for filing a frivolous CHINS appeal. Father noted an appeal of that judgment, but never paid. Later, Court of Appeals summarily dismissed Father’s petitions for appeal of separate Circuit Court divorce and custody rulings, based solely on his failure to pay sanction from CHINS appeal. Va. Supreme Court held that the dismissals were “unduly severe and not narrowly tailored to correct the problem” of frivolous appeals, as the sanction “barred all future appeals, regardless of their subject matter or merit…effectively closing the doors of the Court of Appeals to the Father for any appeal involving any subject.”
Court’s imposition of a sanction will not be reversed on appeal unless the court abused its discretion in 1) its decision to sanction the litigant, or 2) in the court’s choice of the particular sanction employed.
§ 8-25. Sealing/Sequestering Court Record
2009---Shiembob v. Shiembob, Va. Ct. of Appeals, Rec. No. 0135-09-1
Va. Code §20-104 provides that, upon motion of a party in a divorce action, a trial court may order all or part of the record sequestered. However, the desire of the litigants alone is not sufficient reason to override the presumption of openness otherwise afforded circuit court records under Va. Code §17.1-208. Nor are risks of damage to professional reputation, emotional damage, or financial harm, stated in the abstract, sufficient reasons to seal judicial records.
Trial court did not err, on wife's motion, in vacating its previous order sealing the entire record. The information that husband sought to protect from public record related to stock trading decisions he made during his employment as a financial advisor. Husband's undefined concern that, if made open to the public, such decisions could harm his professional reputation, was not sufficient to rebut the presumption of openness of judicial records.
1987---Townes v. Commonwealth, 234 Va. 307
The right of self-representation is not a license to fail to comply with the relevant rules of procedural and substantive law. A Defendant who represents himself is no less bound by the rules of procedure and substantive law than a defendant represented by counsel.
2011---Tucker v. Clarke, Va. Ct. of Appeals, Rec. No. 2496-09-4
The trial court did not err in granting father decision-making authority regarding the child’s education and daycare arrangements, where the mother had placed the child in three different day care facilities in three years, had used at least three different baby sitters in the same period, and had used a nanny to care for the child for extended periods of time, even when the mother wasn’t working. Where the parents’ exercise of joint responsibility for and authority to make decisions for the child is not consistent with the child’s best interest, the court may modify their joint legal status by fashioning and applying any combination of joint legal and physical custody which the court deems to be in the best interest of the child.
§ 8-28 Statutory Interpretation/Construction
2011---Marrison v. Fairfax Cty. Dept. of Family Services, Va. Ct. of Appeals, No. 0174-11-4
The Supreme Court of Virginia has recognized a critical distinction between a lack of subject matter jurisdiction and the unique statutory framework whereby a court can acquire the authority to exercise subject matter jurisdiction. Where a statute contains prohibitory or limiting language, the statute is mandatory, and a court cannot exercise its subject matter jurisdiction if the requirements of the statute have not been met. In contrast, where a statutory directive is merely directory and procedural, as opposed to mandatory and jurisdictional, failure to comply with the statutory requirement does not necessarily divest the court of the power to exercise its subject matter jurisdiction. Stated more directly, the failure to follow a procedural requirement will not prevent a court from exercising its subject matter jurisdiction unless a party can show some harm or prejudice caused by the failure to follow the procedural requirement.
The plain language of a statute determines whether it is mandatory and jurisdictional or directory and procedural. The use of “shall” in a statute requiring action by a public official is directory and not mandatory unless the statute manifests a contrary intent. To determine whether a statute manifests a contrary intent, the Court must determine whether the statute contains prohibitory or limiting language.
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.
2011---Copeland v. Todd, Va. S. Ct., No. 100929
Where the words used in a statute are not sufficiently explicit, we may determine the intent of the legislature from the occasion and necessity of the statute being passed or amended; from a comparison of its several parts and of other acts in pari materia; and sometimes from extraneous circumstances which may throw light on the subject.
2011---Bergaust v. Flaherty, 57 Va. App 423
Where a statute contains no express definition of a term, the legislature’s intent is inferred from the plain meaning of the language used. Courts must give proper grammatical effect to the arrangement of words in the statute and must presume that the legislature understood the basic rules of grammar when drafting the statute. Every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary. At all times, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction. Ultimately, courts must search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.
2010--- Andrews v. Creacey, et. al., 56 VA. App. 606
In interpreting a statute, courts endeavor to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature. Statutes which have the same general or common purpose or are parts of the same general plan are ordinarily considered as in pari materia. Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law. They should be construed so as to harmonize the general tenor or purport of the system and make the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness.