Evidence

§ 7-1. Hearsay
§ 7-2. Impeachment
§ 7-3. Judicial Notice
§ 7-4. Opinion
(A) Expert
(B) Lay
§ 7-5. Parol Evidence
§ 7-6. Presumptions and Inferences
§ 7-7. Privilege
(A) Self Incrimination
(B) Attorney – Client
§ 7-8. Prior Acts
§ 7-9. Psychological Evidence
§ 7-10. Relevance
§ 7-11. Burden of Proof
(A) Preponderance
(B) Clear and Convincing
(C) Beyond a Reasonable doubt
(D) De Novo
(E) Prima Facie case
§ 7-12. Witnesses
(A) Competency
(B) Appearance at Hearing
(C) Private Detectives
(D) Witness Credibility
§ 7-13. Affidavits
§ 7-14. Fault
§ 7-15. Unfairly Prejudicial
§ 7-16. Best Evidence Rule
§ 7-17. Attorney’s Fees

Chapter 7EVIDENCE

§ 7-1. Hearsay

2015--Salvato v. Salvato, Va. Ct. of Appeals, Unpublished, No. 0399-15-4
Mother’s hearsay objection to a psychologist’s statements regarding the child’s statements to her was properly overruled by the trial court. The psychologist was authorized by a previous agreed upon order to make recommendations regarding the child’s best interests with respect to visitation, and the psychologist relied on the children’s statements to form her opinions regarding visitation.

2013 ---Godoy v. Commonwealth of Virginia, Va. Ct. of Appeals, No. 0369-12-4.
The trial court did not abuse its discretion in admitting telephone records into evidence. The admissibility of automatically self-generating (by computer) telephone records created contemporaneously with the placement or receipt of a telephone call is not governed by hearsay principles. The test for determining the admissibility of relevant records generated without human input is reliability.

2013---Cruz v. Cruz, 62 Va. App. 31
Wife was not entitled to rely on an affidavit as evidence under Code of Virginia §20-106(A)(iii) where Husband made an appearance in the case and contested the divorce. Husband’s motion to strike was granted.

2012---Tucker v. Clarke, Va. Ct. of Appeals, Unpublished, No. 0037-12-4
The trial court properly refused to allow mother to admit into evidence e-mails, which she had written to the child’s teacher. Although mother argued that the e-mails were offered to show her state of mind at the time, the trial court held that the e-mails could have been written by mother for use in litigation, and were thus self-serving. Declarations of a witness made out of court are not admissible for the purpose of corroborating his/her testimony in court. Mother was instead permitted to testify and explain her actions and the circumstances arising from the incident without asking the trial court to infer meaning from the e-mails.

2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
In determining whether an unavailable child’s out-of-court statements regarding sexual abuse are admissible pursuant to Va. Code §63.2-1522, the court must not only consider the twelve factors set forth in Va. Code § 63.2-1522(D) to determine whether the child’s statements possess the necessary particularized guarantees of trustworthiness and reliability, but must support any rulings pertaining to those factors with findings on the record, and must do so with regard to each statement made by the child.
The trial court erred in excluding all out-of-court statements made by the child regarding alleged sexual abuse without adequate support in the record as to the court’s determinations on reliability and trustworthiness for each and every statement that was excluded.
The trial court did not err in concluding that a child’s disclosures of sexual abuse to a doctor, although made in the presence of a social worker and a police detective, lacked particularized guarantees of trustworthiness and reliability pursuant to Va. Code 63.2-1522. Evidence revealed that the statements by the child were repeated after prompting through leading questions; the doctor’s notes failed to indicate with any degree of specificity what other questions were asked of the child; no recordings of the sessions with the doctor were made; and the doctor violated the protocol of the forensic model that she purported to follow.
The trial court erred in refusing to permit the mother from offering into evidence the out-of- court statement made to her by a third party, where mother’s purpose for offering the statement was not to demonstrate the truth of the statement, but instead to explain why mother acted the way she did. “The hearsay rule does not operate to exclude evidence of a statement, request, or message offered for the mere purpose of explaining or throwing light on the conduct of the person to whom it was made.” (Fuller v. Commonwealth, 201 Va. 724 (1960)).

2010--- Andrews v. Creacey, et. al., 56 VA. App. 606
Whether an extrajudicial statement is hearsay depends on the purpose for which it is offered and received into evidence. If the statement is received to prove the truth or falsity of its content, then it is hearsay and, in order to be admissible, must come within one of the many established exceptions to the general prohibition against admitting hearsay.

The trial court did not err in admitting the report of husband’s guardian ad litem, wherein the guardian stated that husband expressed to him the desire to have a divorce, under the “state of mind” exception to the hearsay rule. If a declarant’s state of mind is relevant to the case, then his declarations as to his state of mind are admissible if the statements meet two additional conditions: (i) the statement must refer to a presently existing state of mind; and (ii) there must be no obvious indication of falsification or contrivance. Here, husband’s statement expressed a presently existing state of mind – i.e., his intent to divorce. His state of mind was central to the proof of divorce and therefore highly relevant.

2006---Rahnema v. Rahnema, 47 Va. App. 645
Hearsay admitted may still be entitled to little or no evidentiary weight. (Trial court is evidence gatekeeper, and also fact finder.)

2005---Fields v. Dinwiddie County Department of Social Services, 46 Va. App. 1
Any error in admitting letters written by health care providers, which purportedly contained hearsay, was not reversible. Excluding any hearsay evidence the trial court admitted erroneously, the Department of Social Services nevertheless proved that termination of parental rights was in the child’s best interests.

2002---Almond v. Commonwealth, Va. Ct. of Appeals, Rec. No. 3071-01-2 (December 17, 2002)
The “recent complaint exception” to the hearsay rule does not require the trial court to make express factual findings prior to admitting a recent complaint into evidence. The “timeliness” question under the “recent complaint exception” asks whether the complaint has been made without a delay which is unexplained or is inconsistent with the occurrence of the offense. The initial determination is committed to the sound discretion of the trial court, and thereafter, is a matter for the trier of fact to consider in weighing the evidence.

Trial court did not err in admitting out-of-court complaint by child of sexual abuse under the “recent complaint exception” to the hearsay rule, despite the fact that the statement was made seven months after the alleged abuse. Evidence that the child feared that her mother would not believe her and continued to fear her abuser was sufficient explanation for the delay, and such delay is consistent with the “all too common circumstances surrounding sexual assault on minors.”

2001---Myers v. Commonwealth, Va. Ct. of Appeals, Unpublished, No. 0651-00-1
Trial court did not err in admitting 9-year-old sodomy victim’s out-of-court statement that she “wished she were dead,” made after the abuse and related by the victim’s mother, as the statement was not offered for the truth of the matter asserted but instead to show the victim’s behavioral changes following the event. Those changes were likely to have resulted from a traumatic experience and the statement fit the “then existing mental, emotional, or physical condition” exception to the hearsay rule.

2000---Patterson v. Nottoway Co. Dep’t of Social Services, Va. Ct. of Appeals, Unpublished, No. 2528- 99-2
Trial court did not err in allowing a psychologist who had interviewed mother’s children to testify to facts reported to her by the children. Such statements were not inadmissible hearsay, as they were facts, rather than hearsay opinions, considered by the psychologist in forming her opinion as to mother’s perception of reality, and thus fell within the scope of Va. Code 8.01-401.1.

1999---Peters v. Hagerman, Va. Ct. of Appeals, Unpublished, No. 2901-98-4
Home study reports filed in adoption proceedings pursuant to Va. Code §63.2.1232 are not inadmissible hearsay, as they are required and authorized to be presented to the court by statute.

1998---Fairfax Co. Dep’t of Family Services v. Neidig, Va. Ct. of Appeals, Unpublished, No. 1304-97-4
Va. Code § 63.2-1522 (formerly §63.1-248.13:2), which allows for the admission into evidence of an out-of-court statement made by a child, age twelve or under at the time the statement is offered into evidence, describing any act of a sexual nature performed with or on the child by another if certain requirements are met, does not create a presumption, rebuttable or otherwise, that such a statement made by a child is true. Instead, it provides that these out-of-court statements are admissible under certain circumstances, one of which is that the statements “possess particularized guarantees of trustworthiness and reliability.” Thus, a court’s ruling that statements are admissible under this section is a ruling only on the threshold question of admissibility and does not establish the weight to be given to the evidence itself.

1997---Braxton v. Commonwealth, 26 Va. App. 176
Trial court did not abuse discretion when admitting 3-year-old child’s out-of-court statement to a family friend that a man had struck the victim on the head. The utterance, which was unsolicited, fell under the “excited utterance” exception to the hearsay rule because of the child’s age, evidence that the child had been in shock from the time he was discovered until he made the utterance, and evidence of blood on the child indicating that he had observed the attack. The statement was relevant as to how the victim’s injury was sustained and of the gender of the attacker.

1996---Jenkins v. Commonwealth, 22 Va. App. 508
Trial court did not err in admitting statement made by child to psychologist that the child had “been sexed,” over the hearsay objection by the defendant. The child’s statement assisted the expert in identifying the stressor underlying the child’s mental condition. The expert did not recite the details of a specifically identified offense, nor did he offer any description of the abuser. The statement was not offered for the truth of the matter asserted, but to demonstrate the information forming the basis for the psychologist’s diagnosis of the child’s adjustment disorder.

1989---Kauffman v. Commonwealth, 8 Va. App. 400
Trial court did not err in refusing to allow three friends of a child suicide victim to testify that the victim told them she had been molested by her father in the past. The Court of Appeals held that complaints of children claiming that they were sexually abused, without more, are not admissible under the “then existing mental, emotional, or physical condition” exception to the hearsay rule.

1987---Martin v. Commonwealth, 4 Va. App. 438 (1987)
Trial court did not err in admitting testimony of a 13-year-old babysitter as to a 23-month-old child’s statement that “that boy put his pee-pee on me,” when the babysitter asked him “what was wrong” after hearing him scream. The child’s statement was an excited utterance, despite the fact that the utterance was in response to a general query by the babysitter, because the query had not suggested the content of the victim’s response or corrupted the reliability of the statement. The court also noted that the statement had particular reliability due to the child’s young age.

1986---M.E.D. v. J.P.M., 3 Va. App. 391
Trial court erred in refusing to admit statements made by a child to a psychiatrist and psychologist describing sexual abuse by the child’s father. The statements formed the basis for the doctors’ expert opinions, and were of the type normally relied upon by psychiatrists and psychologists as a basis for expert opinions as to whether sexual abuse occurred. Va. Code 8.01-401.1 excepts from hearsay such statements. Furthermore, statements and assertive actions by the child were admissible to prove the child’s state of mind, based upon the testimony of both experts that, regardless of whether the father actually abused the child, the child believed that the father abused her.

1985---Church v. Commonwealth, 230 Va. 208
A 7-year-old child’s out-of-court statement to her mother that sex was “dirty, nasty, and it hurt” was properly admitted by the trial court over a hearsay objection because it was not offered to show the truth of the matter asserted, but was instead offered to show the child’s attitude towards sex – an attitude likely to have been created by a traumatic experience.

1976---Inge v. Commonwealth, 217 Va. 360
The trial court did not err in refusing testimony by a witness as to a statement the witness previously made outside of court. Self-serving declarations of a witness made outside of court, even if the witness is available and testifies in court, are nonetheless hearsay.

§ 7-2. Impeachment

2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
Evidence may be inadmissible for one purpose yet admissible for another. The trial court did not err in admitting into evidence findings of the Department of Social Services for the purpose of showing the bias of a witness employed by the Department, despite having previously refused to admit the findings for the purpose of establishing the facts within.

2007---John Crane, Inc. v. Jones, 274 Va. 581
Trial court did not err in allowing testimony by Defendant company’s custodian of records as to the improper discovery responses of the company, despite the fact that the company conceded the impropriety of the responses. Although a party may not impeach its own witness, the custodian was not called solely to be impeached himself, but was called to demonstrate a larger pattern of untruthful behavior by the company.

§ 7-3. Judicial Notice

2014 --- Barnes v. Barnes, 64 Va. App. 22
In a proceeding to modify Husband’s spousal support obligation, the trial court did not err by refusing to take judicial notice of Husband’s prior income recorded twenty years earlier in a Virginia Court of Appeals opinion involving the same parties and the same subject matter. Although the taking of judicial notice is generally within the trial court’s discretion, that discretion is not unlimited. Both trial courts and appellate courts may take judicial notice of the case records in the proceeding at bar. Additionally, appellate courts may take judicial notice of prior proceedings in the same case and of their own records in other cases. A trial court, however, may not travel outside the record of the case at bar to take judicial notice of proceedings in another case, even between the same parties and in the same court, unless those proceedings are put into evidence. This rule, however, does not prohibit the introduction of a certified copy of another court’s records into evidence. Here, Husband did not offer the prior Virginia Court of Appeals opinion into evidence.

2009---Mercurio v. Mercurio, Va. Ct. of Appeals, Unpublished, No. 0401-09-2
A trial court may take judicial notice of those facts that are either (1) so generally known with the jurisdiction or (2) so easily ascertainable by reference to reliable sources that reasonably informed people in the community would not regard them as reasonably subject to dispute. The taking of judicial notice is generally within the discretion of the trial court. Taylor v. Commonwealth, 28 Va. App. 1 (1998).

1989---Lassen v. Lassen, 8 Va. App. 502
The trial court erred in taking judicial notice of an American Jurisprudence Deskbook on Compound Interest and Annuity Tables for purposes of valuing a pension. Courts may take judicial notice of facts commonly known from human experience, but facts which are not commonly known must be proved. The individual and extrajudicial knowledge of a judge cannot be used to dispense with proof of facts not properly the subject of judicial notice, and cannot be resorted to for the purpose of supplementing the record. A judge may use authoritative sources to refresh his memory upon matters properly subject to judicial notice, but the mere appearance of facts within publications such as encyclopedias, textbooks, and dictionaries does not mean that such facts can be judicially noticed unless they are such as to be part of a common knowledge.

§ 7-4. Opinion

(A) Expert

2015--- Grant v. Quigley, Va. Ct. of Appeals, Unpublished No. 0999-14-4
The trial court did not err in allowing Mother’s expert to testify that her observations of the parties’ child were consistent with a sexually abused child. Although the expert did not treat the child, the expert met with the child on at least seven separate occasions. The court, as fact finder, was free to determine the weight to be given to the expert’s testimony.

2014---deCamp v. deCamp, 64 Va. App. 137 (2014)
The trial court did not err in refusing to give any weight to testimony by Husband’s expert regarding the cost and availability of housing for Wife. The expert’s testimony was based solely on facts and search parameters provided by Husband rather than on any facts established by the other evidence in the record and without any reference to Code §20-107.1(E)’s statutory factors. Expert testimony is generally admissible if it will assist the factfinder in understanding the evidence about the credibility of the expert witness and the weight to be accorded the evidence is a matter exclusively in the province of the factfinder and is not ordinarily subject to appellate review. The expert’s testimony had no probative value and did not assist the trial court in understanding the evidence.

2014---LaBrie v. LaBrie, Va. Ct. of Appeals, Unpublished, No. 1894-14-2
A fact finder is not required to accept the testimony of an expert witness merely because he or she is qualified as an expert.

2013---Pliuskaitis v. Pliuskaitis, Va. Ct. of Appeals, Unpublished, No. 0423-13-4
The trial court did not abuse its discretion in accepting the valuation of the parties’ business offered by Wife’s expert witness. A court may choose between the conflicting assessments of experts as long as the finding is supported by the evidence. The trial court found Wife’s expert more credible than Husband’s expert based, in part, on her superior experience and credentials. The trial court also found Husband’s expert’s opinions questionable based on her failure to consider the IRS debt owed by the business and her failure to assign a value to the business.

2013---James v. Owens, Va. Ct. of Appeals, Unpublished, No. 1830-12-1
The Court of Appeals could not address the merits of the father’s contention that expert testimony was improperly excluded because the father failed to proffer the expected testimony of the expert. Where expert testimony is rejected before it is delivered, an appellate court has no basis for adjudication absent a proper proffer of evidence on the record.

2012---Wilson v. Britton, Va. of Ct. Appeals, Unpublished, No. 2344-11-1
Where the trial court allowed an expert for mother to testify to the expert’s conclusions, it was harmless error for the trial court to then refuse to admit the expert’s written report into evidence.

The trial court did not err in admitting a psychologist’s report where the parties agreed to submit to a parental capacity and psychological evaluation, and where the psychologist testified to the same conclusions as were contained in the report. The weight and credibility to be given to the opinion of an expert is a question for the trier of fact. (citing Vissicchio v. Vissicchio, 27 Va. App. 240, 247 (1998)).

2012---Naseer v. Moghal, Va. Ct. of Appeals, Unpublished, No. 2570-11-4
Trial court did not err in accepting testimony of husband’s expert, a Pakistani lawyer, and giving it more weight than the testimony of wife’s expert, who was not a Pakistani lawyer, on matters pertaining to the interpretation of Pakistani divorce law. Where experts offer conflicting testimony, it is within the sound discretion of the trial court to select either opinion. (Citing Rowe v. Rowe, 24 Va. App. 123 (1997)).

2012---Jaouni v. Salah, Va. Ct. of Appeals, Unpublished, No. 0168-11-4
The trial court did not err in permitting a licensed psychologist to testify as to whether he felt alleged incidents of abuse had occurred, despite the fact that the psychologist’s evaluation of the child and parties occurred after the juvenile court had already entered a protective order, and despite the fact that he did not investigate the origin of each and every bruise on the child. The psychologist’s investigation was not limited only to the time frame subsequent to the entry of the protective order, as he performed a detailed and thorough investigation of an extensive range of materials and witnesses. Moreover, the fact that he had not investigated the origin of each and every single bruise did not render his testimony speculative or based on insufficient factual foundation.

2007---John Crane, Inc. v. Jones, 274 Va. 581
A party is not relived from its disclosure obligation under Rule 4:1(b)(4)(A)(i) simply because the other party has some familiarity with the witness or has deposed the witness regarding the substance of his opinions. Such a rule would impermissibly alter a party’s burden to disclose, and instead impose an affirmative burden on the non-disclosing party to ascertain the substance of the expert’s testimony.

Trial court did not err in refusing to allow an expert to testify regarding levels of asbestos in ambient air, where nothing in the Defendant’s expert witness disclosure referenced that particular subject matter. That the Plaintiff questioned the expert at his deposition regarding his opinions on the subject did not matter, as the Defendant still had the duty to disclose those opinions pursuant to Rule 4:1(b)(4)(A)(i).

Trial court did not err in refusing to allow Defendant’s expert to testify where Defendant, despite disclosing the topic on which the expert intended to testify, failed to disclose the substance of the expert’s opinion in the pre-trial disclosures and failed to include in the pre-trial disclosures the report prepared by the expert.

2002---Pritchett v. Commonwealth, 263 Va. 182
Although an expert may testify to a witness’s mental disorder and the hypothetical effect of that disorder on the witness’s situation, an expert witness may not express an opinion as to the veracity of a witness because such testimony improperly invades the province of the factfinder to determine the reliability of a witness. An expert witness’s broad statement that the Defendant “just went along with what [the police officers] said” was inadmissible because it could be construed as an evaluation of the unreliability of the Defendant’s confession and a comment on the truth of the Defendant’s trial testimony contradicting that confession.

2000---Patterson v. Nottoway Co. Dep’t of Social Services, Va. Ct. of Appeals, Unpublished, No. 2528- 99-2
Trial court did not err in allowing a psychologist who had interviewed mother’s children to testify to facts reported to her by the children. Such statements were not inadmissible hearsay, as they were facts, rather than hearsay opinions, considered by the psychologist in forming her opinion as to mother’s perception of reality, and thus fell within the scope of Va. Code 8.01-401.1.

2000---Thompson v. Thompson, Va. Ct. of Appeals, Unpublished, No. 1779-99-2
Nothing in Va. Code §8.01-401.3(B) bars introduction by one party of expert witness testimony designed to impeach the testimony of the other party’s expert witness.

1997---Street v. Street, 25 Va. App. 380
Trial court was justified in finding Husband’s conduct suspect, and was not required to give any weight to uncontradicted expert opinion regarding Husband’s mental condition.

1996---Cole v. Cole, Va. Ct. of Appeals, Unpublished, No. 1570-95-1

Trial court did not err in rejecting opinion of mother’s expert where the expert admitted that she had not met the father, that she had little information about the child’s life with the father, and that she based most of her conclusions about father on information received solely from the mother.

1996---Jenkins v. Commonwealth, 22 Va. App. 508
Trial court did not err in admitting statement made by child to psychologist that the child had “been sexed,” over the hearsay objection by the defendant. The child’s statement assisted the expert in identifying the stressor underlying the child’s mental condition. The expert did not recite the details of a specifically identified offense, nor did he offer any description of the abuser. The statement was not offered for the truth of the matter asserted, but to demonstrate the information forming the basis for the psychologist’s diagnosis of the child’s adjustment disorder.

1996---David A. Parker Enterprises, Inc. v. Templeton, 251 Va. 235
An expert’s opinion is admissible in evidence if it will assist the fact finder about a matter that is not within the range of common knowledge. An expert’s opinion is inadmissible, however, if it relates to matters about which the fact finder is equally as capable as the expert of reaching an intelligent and informed opinion.

1995---Lee Gardens v. Arlington County Board, 250 Va. 534
An individual unqualified to obtain a real-estate appraiser’s license is not qualified to testify as an expert witness as to the value of real estate. Va. Code §54.1-2011 prohibits, subject to specifically enumerated exceptions, anyone, including a licensed real estate broker who does not have a real estate appraiser’s license, from testify for compensation about the value of real estate in any court proceeding.

1995--- Snyder v. Snyder, Va. Ct. of Appeals, Unpublished, No. 2147-94-4
Trial court did not err in accepting husband’s valuation of property and rejecting the expert opinion of a real estate appraiser who testified on wife’s behalf, where cross-examination of the expert established the expert’s unfamiliarity with the subject property and errors in the expert’s report. Although expert testimony may be the preferable method for valuing marital property, the finder of fact is not required to accept as conclusive the opinion of an expert. (Citing Lassen v. Lassen, 8 Va. App. 502 (1989))

1993---Stratton v. Stratton, 16 Va. App. 878
Trial court did not err in refusing to accept husband’s expert’s valuation of a business. While expert testimony is preferable for valuing marital property, it’s not necessarily dispositive. Though husband’s expert testified that the business had no value, wife presented contrary lay evidence regarding the value of the business, demonstrated the financial history of the business, and demonstrated that the business had generated the primary source of income for the parties during the marriage.

1986---M.E.D. v. J.P.M., 3 Va. App. 391
Trial court erred in refusing to admit statements made by a child to a psychiatrist and psychologist describing sexual abuse by the child’s father. The statements formed the basis for the doctors’ expert opinions, and were of the type normally relied upon by psychiatrists and psychologists as a basis for expert opinions as to whether sexual abuse occurred. Va. Code 8.01-401.1 excepts from hearsay such statements. Furthermore, statements and assertive actions by the child were admissible to prove the child’s state of mind, based upon the testimony of both experts that, regardless of whether the father actually abused the child, the child believed that the father abused her.

1980---Spruill v. Commonwealth, 221 Va. 475 (1980)
A medical opinion based on a "possibility" is irrelevant, purely speculative and, hence, inadmissible. In order for such testimony to become relevant, it must be brought out of the realm of speculation and into the realm of reasonable probability; the law in this area deals in "probabilities" and not "possibilities."

1956---Haynes v. Glenn, 197 Va. 746
It is universally recognized that opinion testimony of non-experts who have sufficient knowledge of the value of the property in question or have had ample opportunity for forming a correct opinion as to it is admissible. Moreover, it is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of such testimony is, of course, affected by his knowledge of value.

(B) Lay

2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
The trial court did not err in allowing a lay witness – a professional counselor who treated the child – to testify as to whether she had observed anything in her treatment of the child that gave her concern about the child being sexually abused. Though the counselor was not qualified as an expert witness, her testimony in response to the question fell under the “collective facts” exception to the rule otherwise baring lay witnesses from testifying as to opinions. Her statements were not mere “opinions,” but rather impressions drawn from collected, observed facts and her reactions to those observations.

2005---Mullen v. Mullen, 45 Va. App. 289
Trial court did not err in accepting mother’s uncontradicted testimony regarding her child’s disabilities as sufficient evidence to establish “severe and permanent” disability for purposes of Va. Code § 20-124.2(c). There is no requirement that a child’s “severe and permanent” disability be established by expert testimony. The longstanding Virginia rule is that a witness need not be a medical expert to offer testimony concerning a person’s physical condition. The fact that the mother was a lay witness rather than a medical expert goes to the weight of her testimony, not her competency to testify.

1993---Stratton v. Stratton, 16 Va. App. 878
Trial court did not err in refusing to accept husband’s expert’s valuation of a business. While expert testimony is preferable for valuing marital property, it’s not necessarily dispositive. Though husband’s expert testified that the business had no value, wife presented contrary lay evidence regarding the value of the business, demonstrated the financial history of the business, and demonstrated that the business had generated the primary source of income for the parties during the marriage.

1956---Haynes v. Glenn, 197 Va. 746
It is universally recognized that opinion testimony of non-experts who have sufficient knowledge of the value of the property in question or have had ample opportunity for forming a correct opinion as to it is admissible. Moreover, it is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of such testimony is, of course, affected by his knowledge of value.

§ 7-5. Parol Evidence

2016---Lewis v. Lewis, Va. Ct. of Appeals, Unpublished, No. 1042-15-1
The trial court did not err in hearing parol evidence on the question of whether the parties’ settlement agreement contained a mutual mistake. In suits to reform a written instrument or the ground of mutual mistake, parol evidence is always admissible to establish whether the agreement actually contained a mistake and to determine how the agreement should be reformed.

2016---McDaniel v. Griffith, Va. Ct. of Appeals, Unpublished, No. 0597-15-3
Although the trial court’s introduction of parol evidence was erroneous, such error was harmless. The parol evidence adduced at trial merely established that the parties intended to build their home “together.” Because the agreement provided that the intention of the parties was to build a home and to equally share construction costs, the parol evidence was merely cumulative.

2007---Barker v. Hutson-Wiley, 2007 Va. App. Unpublished, 112
Trial court did not err in excluding parole evidence where the Property Settlement Agreement plainly declared the parties’ intent that the Property Settlement Agreement operate as their sole agreement.

2002---Utsch v. Utsch, 38 Va. App. 450
Parole evidence should be allowed to determine Husband’s intent.

2000---Campbell v. Campbell, 32 Va. App. 351
Where there is no ambiguity in the terms of a contract, the court must construe it as written, and not search for the meaning beyond the pertinent instrument itself.

2000---Shoup v. Shoup, 31 Va. App. 621
Parole evidence may be allowed where writing is ambiguous, vague or indefinite.

§ 7-6. Presumptions and Inferences

2006---Rahnema v. Rahnema, 47 Va. App. 645
Trial court did not err in enforcing marital agreement after finding Husband’s evidence of bigamy unpersuasive and in entering order dismissing his annulment action with prejudice. The court correctly applied the clear and convincing standard which, when applied to annulment claims alleging bigamy, provides the appropriate counterpoint to the strong

2006---Rahnema v. Rahnema, 47 Va. App. 645
Virginia Law recognizes a spoliation or missing evidence inference, but treats it as a mere permissible inference rather that a true presumption.

2002---Lehman v. Lehman, 38 Va. App. 598
Court orders carry a presumption of correctness. The presumption is against finding contracts void on public policy grounds.

1986---Collier v. Collier, 2 Va. App. 125 (1986)
The rule is firmly established in Virginia that a divorce decree based solely on depositions is not as conclusive on appellate review as one based upon evidence heard ore tenus, but such a decree is presumed correct and will not be overturned if supported by substantial, competent and credible evidence.

1962---Manassas Park Development Co. v. Offutt, 203 Va. 382
The mailing of a properly addressed and stamped letter raises a presumption of receipt of the letter by the addressee. A denial of receipt of the letter by the addressee raises a question of fact.

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