Litigation Procedure and Law - § 8-1 (B) - § 8-1 (E)


2015---Forte v. Com., Dept. of Soc. Servs, 65 Va. App. 1
The circuit court did not err in determining that it lacked jurisdiction over Father’s appeal from the juvenile court’s order denying Father’s motion to reduce child support. Code of Virginia §16.1-296(H) requires the posting of an appeal bond when a party appeals “that portion of any order or judgment establishing a support arrearage.” The statute in conjunction with Virginia Court of Appeals precedent establishes that: (1) when required by Code §16.1- 296(H), the posting of a bond is mandatory, and failure to post the bond deprives the circuit court of jurisdiction to hear the appeal and results in dismissal of the appeal; (2) even when an appellant does not challenge the amount of the arrearage, if the arrearage is intrinsically and logically related to the issue appealed, he must post an appeal bond; and (3) an appellant who challenges an issue that is not intrinsically and logically related to the arrearages may do so without posting bond, but he must make clear to the court that his appeal does not challenge the support arrearage. Here, although Father sufficiently clarified with the circuit court that he was limiting his appeal to the denial of his motion to reduce child support, Father’s appeal was intrinsically and logically related to the arrearage assessment. Specifically, in any order directing Father to pay child support, Code §20-60.3(9) would have required the circuit court to determine the existence of and amount of any arrearages.

2008---Rosedale v. Rosedale, Va. Ct. of Appeals, Unpublished, No. 2414-07-4
Trial court erred in failing to authorize the return of the cash bond that husband posted to appeal the child support order from the juvenile court, after expressly finding that no arrearages existed at the time of trial.

2005---Sharma v. Sharma, 46 Va. App. 584
It is the appellant's responsibility to have the juvenile and domestic relations district court judge or clerk set and approve an appeal bond. The circuit court lacked jurisdiction to hear father's appeal of a child support increase, which resulted in an arrearage, where father failed to post an appeal bond, despite fact that court clerk set the appeal bond at “$0.” A bond set at $0 does not satisfy the purpose of an appeal bond, which is to provide assurances that any judgment rendered on appeal, if perfected, will be satisfied.

Where an arrearage arose due to the juvenile court's ruling on the effective date of an increase in support, the issues of the arrearage and the increase in support could not be separated on appeal, nor could the judgment appealed be deemed bifurcated. Thus, father could not argue, as justification for not posting an appeal bond pursuant to Va. Code §16.1-296(H), that he did not appeal the court's ruling on arrearage, but only the ruling with regard to the increase in support.

Va. Code §16.1-296(H) makes the posting of an appeal bond mandatory and jurisdictional. Va. Code §16.1-109 grants the court the authority to require new or additional security in the event that the appeal bond is deficient. However, where there is a total failure to comply with Va. Code §16.1-296(H), such as where there was no appeal bond posted, Va. Code §16.1-109 cannot be implored to cure the jurisdictional defect. Va. Code §16.1-109 presupposes that some appeal bond was posted, and merely grants the circuit court the authority to increase the bond.

2005---O'Hara v. O'Hara, 45 Va. App. 788
Attorney's fee provision in settlement agreement calling for attorney's fees in the event of a default did not cover proceeding to terminate spousal support.

2000---Mahoney v. Mahoney, 34 Va. App. 63
Trial court did not err in dismissing husband's appeal of a juvenile court order that found him in contempt for failure to pay support, due to husband's refusal to post the appeal bond set by the juvenile court. Husband specified in his notice of appeal that he was not appealing the portion of the juvenile court's order which set the arrearage amounts, but rather the jurisdiction of the court to enter any orders in the case. The Court of Appeals held that a challenge to the jurisdiction of the juvenile court to enter any order is necessarily a challenge to portion of the court's order setting the arrearage, and thus subject to the requirements to post bond. A bond must be posted in order to appeal a child support case from juvenile court.

1999---Smiley v. Erickson, 29 Va. App. 426
The juvenile court abused its discretion in setting a bond of $500 for an appeal of a judgment of arrearage of $18,975, as the bond amount was grossly inadequate to satisfy the requirements of Va. Code §16.1-296(H). Furthermore, the circuit court erred by denying mother's motion to require father to provide new or additional bond in an amount sufficient to satisfy the arrearage judgment of the juvenile court pending the appeal of that judgment.

1998---Taylor v. Taylor, 27 Va. App. 209
On an appeal from the juvenile court to the Circuit Court, an appeal bond is required only for that portion of the order establishing a support arrearage.

1997--- Comm. of Va., DSS, DCSE v. Walker , 253 Va. 319
Va. Code §16.1-296 places the burden on the party applying for the appeal to ask for and to have the district court set the bond and approve the surety. It is fundamental that the appealing party has the burden of perfecting his appeal. The statutory requirements for appeal bonds are mandatory, and failure to comply is a jurisdictional defect that cannot be corrected after the expiration of the time within which an appeal may be taken.

1996--- Avery v. Comm. of Va., DSS, DCSE, 22 Va. App. 698
Trial court erred in dismissing, for failure to post an appeal bond, an incarcerated father's appeal of a contempt order which found him in arrears and sentenced him to one year in jail for unpaid child support. A finding of contempt is not “an order establishing a support arrearage” pursuant to Va. Code §16.1-296(H). Father clearly sought only to appeal the contempt conviction and the jail sentence, as his counsel conceded the support arrearage judgment. Thus, father was entitled to an appeal to the circuit court without having posted a bond in the amount of the arrearages.

1995--- McCall v. Comm. of Va., DSS, DCSE, 20 Va. App. 248
Trial court did not err in dismissing, for failure to post an appeal bond, father's appeal of the juvenile court's civil contempt order setting child support arrearages, where father did not indicate or specify in his notice of appeal that he sought to appeal only the contempt conviction and sentencing rather than the issue of arrearages, and made no effort at trial to inform the circuit court that he intended only to appeal the contempt portion of the order.

(C)En Banc

2008---McKee v. McKee, 52 Va. App. 482
Grant of Wife's petition for en banc review voided the decision of the panel only as to the issues before the court en banc. (citing Ferguson v. Commonwealth, 52 Va. App. 324 (2008)).

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(D)Error / Standard of Review

(1) Abuse of Discretion

2015---Rubino v. Rubino, 64 Va. App. 256
The three principal ways in which a circuit court may abuse its discretion are: when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; or when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.

2014---Wroblewski v. Russell, 63 Va. App. 468
A trial court’s grant or denial of a continuance is reviewed on appeal for an abuse of discretion and prejudice to the party seeking the continuance. The absence of one renders inconsequential the presence of the other.

2012---Fox v. Fox, 61 Va. App. 185
The trial court has broad discretion in awarding and fixing the amount of spousal support. Appellate review is limited to determining whether the trial court clearly abused its discretion.

2010---Johnson v. Johnson, 56 Va. App. 511
It is firmly established that trial courts have the authority to interpret their own orders. On appeal, when construing a lower court's order, a reviewing court should give deference to the interpretation adopted by the lower court.

2010---Spreadbury v. Spreadbury, Va. Ct. of Appeals, Unpublished, No. 1053-09-4
The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion. Rice v. Rice, 49 Va. App. 192 (2006).

2003---Congdon v. Congdon, 40 Va. App. 255
When reviewing a trial court’s decision on appeal, the Court of Appeals views the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences. That principal requires the Court of Appeals to discard evidence of the appellant which conflicts, either directly or inferentially, with the evidence presented by the appellee at trial.

1993--- Bandas v. Bandas, 16 Va. App. 427
An abuse-of-discretion standard is applied in reviewing a trial court's award or denial of sanctions.

1992---Broom v. Broom, 15 Va. App. 497
Standard of review on appeal of an equitable distribution award requires that the appellate court presume the judgment of the trial court to be correct, and the party who asserts to the contrary is required to overcome the presumption by record proof. Unless it appears from the record that the judge abused his discretion, that he has not considered or misapplied one of the statutory mandates, or that the evidence fails to support the findings of fact underlying his resolution of the conflict, the equitable distribution award will not be reversed on appeal.

1990---Srinivasan v. Srinivasan, 10 Va. App. 728
On appeal, decisions concerning equitable distribution rest within the sound discretion of the trial court and will not be reversed unless plainly wrong or unsupported by the evidence.

(2)Insufficient Evidence/Contrary to Evidence

2013---Kellogg v. Kellogg, Va. Ct. of Appeals, Unpublished, No. 0025-13-4
When no controverted fact was passed on by the trial court, the trial court’s finding is not entitled to the same weight it would be accorded if reached in a factual situation upon conflicting evidence. (Citing Stroud v. Stroud, 49 Va. App. 359 (2007)).

1995---Bottoms v. Bottoms, 249 Va. 410
Absent clear evidence to the contrary in the record, the judgment of a trial court comes to the Court of Appeals with a presumption that the law was correctly applied to the facts.

1992---Schweider v. Schweider, 243 Va. 245
A face finder may not arbitrarily disregard uncontradicted evidence that is not inherently incredible.

1986---Dodge v. Dodge, 2 Va. App. 238
A judgment of the trial court will not be set aside on the ground that it is contrary to the evidence unless it appears from the evidence that such judgment was plainly wrong or without evidence to support it.

(3)Error of Law/Incorrect Standard

2012---Gerensky-Greene v. Gerensky, Va. Ct. of Appeals, Unpublished, No. 1801-11-4
The question of whether a particular order is a final judgment is a question at law that is reviewed de novo on appeal. (Citing Carrithers v. Harrah, 60 Va. App. 69 (2012)).

2010---Trump v. Trump, Va. Ct. of Appeals, Unpublished, No. 2475-09-4
According to well settled principles of appellate review, when the trial court grants a motion to strike the plaintiff's evidence, the appellate court reviews the evidence on appeal in the light most favorable to the plaintiff. (Citing Green v. Ingram, 269 Va. 281 (2005))

2010---Adcock v. Comm. DSS, DCSE, 56 Va. App. 334
In determining whether the trial court made an error of law, the appellate court reviews the trial court's statutory interpretations and legal conclusions de novo.

2008---Stacy v. Stacy, 53 Va. App. 38
A trial court's interpretation of marital agreements is an issue of law that the Court of Appeals reviews de novo.

(4)Harmless Error

2015--- Grant v. Quigley, Va. Ct. of Appeals, Unpublished No. 0999-14-4
Assuming the trial court erred in allowing Mother to testify to the child’s out-of-court statements related to alleged sexual abuse, such error was harmless. There was sufficient evidence, even without those out of court statements that the child was sexually abused, including the Mother’s and expert’s observations of the child’s peculiar behaviors, that the child reacted violently when Father’s name was mentioned, and that the child’s behavior had deteriorated such that she required hospitalization.

2014---Dritselis v. Dritselis, Va. Ct. of Appeals, Unpublished, No. 0530-14-3
Assuming the trial court improperly relied on a document containing hearsay, such error was harmless. Evidence admitted in error is harmless if it is merely cumulative of other, undisputed evidence. Cumulative testimony is repetitive testimony that restates what has been said already and adds nothing to it. Here, Wife tendered a report which contained hearsay statements regarding information contained in her tax returns. However, the hearsay statements regarding Wife’s tax returns were merely cumulative because Husband introduced Wife’s tax returns into evidence.

2013---James v. Owens, Va. Ct. of Appeals, Unpublished, No. 1830-12-1
The trial court’s error in excluding certain tax returns from evidence was harmless, where the court based its decision to exclude the tax returns on its prior ruling that the expert who created the tax returns was not qualified as an expert in subchapter S corporation tax preparation, and that the excluded returns were thus the work-product of a witness the court had already found to be incredible.

2013---Milam v. Milam, 65 Va. App. 439
“In order to constitute reversible error, a trial court’s ruling ‘must be material and prejudicial to the interests of the party complaining of it.’” (Citing CSX Transp., Inc. v. Casale, 247 Va. 180, 183 (1994), quoting Taylor v. Turner, 205 Va. 828, 831 (1965)). The introduction of hearsay evidence did not prejudice the Husband where the trial court did not base its award of the marital residence to the Wife on the basis of the alleged hearsay.

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.

2005---Schwartz v. Schwartz, 46 Va. App. 145
In Virginia, non-constitutional error is harmless when it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached, (citing Va. Code §8.01-678). If, when all is said and done, it is clear that the error did not influence the fact finder, or had but slight effect, the judgment should stand. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. If so, or if one is left in grave doubt, the judgment cannot stand, (citing Clay v. Commonweath, 262 Va. 253 (2001)).

2000---Hawthorne v. Smyth, 33 Va. App. 130
Where the right result has been reached but the wrong reason given, the Court of Appeals will sustain the result and assign the right ground.

1996---Schlenk v. Schlenk, Va. Ct. of Appeals, Unpublished, No. 2757-95-4
The trial court erred in holding that father was in arrears for child support based solely on the fact that the language of the parties settlement agreement upon which father relied when temporarily reducing his support was not specifically recited in the final decree of divorce. The parties' settlement agreement, which was incorporated into the divorce decree, allowed father to reduce his support when the children were in his custody. The divorce decree itself recited the monthly support amount, but did not specifically recite the reduction language of the agreement. Virginia law makes clear that where terms of a settlement agreement are incorporated into a decree, the agreement provisions are deemed to be terms of the decree, regardless of whether the decree recites them specifically. Thus, the trial court erred in basing its arrearage finding solely on the fact that the decree did not specifically recite the reduction language of the parties' agreement upon which husband relied.

However, the Court of Appeals found the error to be harmless on “wrong reason, right result” grounds. The parties' settlement agreement appeared to use the terms “visitation” and “partial custody” interchangeably, such that father's six-week period of “custody” during the summer was merely “visitation,” rather than a divestment of mother's primary physical custody. Thus, the language in the parties' settlement agreement stating that father owed support only while the children were in the mother's custody didn't apply here, because the children were always in mother's primary physical custody, despite father's extended periods of visitation.

(5)Invited Error

2012---Hart v. Hart, Va. Ct. of Appeals, Unpublished, No. 1724-11-1
The Court of Appeals refused to consider husband's appeal of the trial court's consideration of the guardian ad litem's recommendations regarding visitation. Though husband contested the admissibility into evidence of the guardian's written reports, husband conceded at trial that the trial court was required to consider the guardian's recommendations. An appellate court will not notice a claimed error which has been invited by the party seeking to take advantage thereof on appeal. A litigant cannot approbate and reprobate by taking successive positions in the course of litigation that are either inconsistent with each other or mutually contradictory.

2008---Bennett v. Bennett-Smith, Va. Ct. of Appeals, Unpublished, No. 1852-07-1
No litigant will be permitted to approbate and reprobate – to invite error, and then take advantage of the situation created by his own wrong. Appellants are not permitted to file for custody in Virginia, fail to advise the Virginia courts of their position that a child custody proceeding had previously been commenced in Kansas, litigate the custody matter in Virginia as if the Virginia courts had initial child custody jurisdiction, and then argue the Virginia courts only had temporary emergency jurisdiction that was lost when the JDR court failed to provide in its order a period of time for the appellants to obtain a Kansas order.

2006---Rahnema v. Rahnema, 47 Va. App. 645
An applicable court will not notice error which has been invited by the party seeking to take advantage of an appeal.

(6)Proof of Harm

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.

2013--- Vermillion v. Vagt, Va. Ct. of Appeals, Unpublished, No. 1165-12-4
Appellant argued that the trial court erred in establishing the date from which she was required to prove a material change in circumstances warranting a modification of custody. The Court of Appeals was unable to determine whether the error, if it occurred, prejudiced the Appellant, since she proffered no evidence at trial to assist the court in determining whether a material change in circumstances had occurred. An appellant court cannot determine proof of harm without a proffer of evidence relevant to the underlying issue. Absent proof of harm, the appellate court will affirm the decision of the trial court.


2015---Rubino v. Rubino, 64 Va. App. 256
On appeal, the judgment of the circuit court is presumed to be correct. The Virginia Court of Appeals views the facts, and all reasonable inferences from those facts, in the light most favorable to the party prevailing below.

2014---Cavallo v. Cavallo, Va. Ct. of Appeals, Unpublished, No. 0981-13-4.
Generally, the appellant has the burden of persuasion on appeal. However, in cases in which claimant with the burden of proof prevails at trial, the losing party can succeed on appeal merely by showing that the winner at trial failed to present a prima facie case.

2013---Kramer v. Kramer, Va. Ct. of Appeals, Unpublished No. 1502-12-3
The judgment of the trial Court is presumed to be correct. The burden is on the appellant to present the Court of Appeals with a sufficient record from which it can determine whether the trial court erred in the respect complained of. If the appellant fails to do this, the judgment will be affirmed.

(E)Law of the Case

2012---Griffin v. Griffin, Va. Ct. of Appeals, Unpublished, No. 1791-11-4
The circuit court did not err in changing the classification of property on remand. On the first appeal, the Court of Appeals reversed the trial court's equitable distribution determination in whole, finding that the trial court's determination of equitable distribution was so unclear that the Court of Appeals could not determine precisely how the court had classified, valued, or distributed the marital estate. Thus, the law of the case doctrine did not apply, the trial court's classification of the SEP IRA as separate property was no longer valid, and the circuit court was free to reclassify it as marital property on remand.

2011---Campbell v. Campbell, Va. Ct. of Appeals, Unpublished, No. 1481-10-2
The trial court properly held that the law of the case doctrine prevented wife from relitigating the issue of divorce where she failed to note an objection to that portion of the court's holding on the first appeal to the Court of Appeals. The trial court initially granted husband a divorce based on constructive desertion. Both parties appealed the trial court's order, but neither on grounds related to the divorce itself. On the first appeal, the Court of Appeals “reversed and annulled” the trial court's order and remanded the case to the trial court for further proceedings “in accordance with the views expressed in the opinion” of the Court of Appeals. Because neither party raised an objection to the divorce grounds, the Court of Appeals' opinion dealt only with equitable distribution issues to which the parties raised objections. Thus, the trial court's initial ruling on the issue of divorce became the law of the case.

Where material facts have changed between the first appeal and the second, the law of the case doctrine is inapplicable. Citing Rowe v. Rowe, 33 Va. App. 250 (2000). However, a party cannot rely on the “material change in facts” exception to the law of the case doctrine where the same party created the conflict in evidence as part of his/her litigation strategy.

The trial court properly refused to apply the “material change in facts” exception to the law of the case doctrine. In her initial cross-complaint for divorce, wife claimed that she shot husband in self-defense. At the initial trial, she took the 5th amendment when asked if she had shot husband. Though neither party raised on the first appeal an objection to the divorce portion of the trial court's initial order, wife attempted to relitigate the issue of divorce on remand, claiming at that point that, contrary to her initial admission, one of the parties' children had actually shot husband, and that wife initially took the blame to prevent criminal prosecution of the child. Because the “material change” alleged by wife arose solely from her litigation tactics, it did not apply here to circumvent the law of the case doctrine.

2011---Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1382-10-3
The law of the case doctrine does not apply to deprive the trial court of the ability to refuse to impute income in a support modification proceeding where it imputed income in setting support initially.

2010--- Broadhead v. Broadhead, Va. Ct. of Appeals, Unpublished, No. 0923-09-2
Trial court did not err in applying on remand the same level of income it imputed to wife in the initial trial, where wife conceded at the initial trial that she was voluntarily underemployed and failed to appeal the court's imputation of income to her at that time. Although wife argued on remand that husband had failed to carry his burden with regard to the imputation issue, the law-of-the-case doctrine precluded wife from relitigating the unappealed income imputation of the initial trial. If wife's employment situation had changed in the period between the adjudication of the first appeal and the hearing on remand, she bore the burden of showing that the imputation should be set aside based on changed circumstances. Without such a showing however, the law-of-the-case doctrine required that the court's prior decision to impute income to wife remain binding on the parties on remand.

2010---Miller v. Jenkins, Va. Ct. of Appeals, Unpublished, No. 0705-09-4
A case need not involve the exact line of litigation as prior cases and/or appeals in order for the law of the case doctrine to apply, as long as the parties and issues are identical to those in the previous case or cases. The trial court here did not err in applying the law of the case doctrine where the parties and issues involved were exactly the same as two previously litigated, appealed, and resolved chains of cases.

2008---Miller-Jenkins v. Miller-Jenkins, 276 Va. 19
The “law of the case” doctrine stated: When there have been two appeals in the same case, between the same parties, and the facts are the same, nothing decided on the first appeal can be re-examined on the second appeal. For the purpose of that case, though only for that case, the decision on the first appeal is the law. (Citing Steinman v. Clinchfield Coal Corp., 121 Va. 611 (1917)). Pursuant to this doctrine, when a party fails to challenge a decision rendered by a court at one stage of litigation, that party is deemed to have waived her right to challenge that decision during later stages of the “same” litigation. The doctrine applies both to issues that were actually decided by the court, and also to issues “necessarily involved in the first appeal, whether adjudicated or not.”

2004---Spriggs v. Spriggs, 43 Va. App. 510
When a trial court enters a divorce order that retains the matters of equitable distribution and support on the docket for later adjudication, thereby bifurcating the proceeding, Va. Code §20-107.3 requires the court to make an expressed finding that such bifurcation is “clearly necessary.” If the court fails to do so, the ruling is voidable and subject to challenge on direct appeal, but is not void ab initio. Thus, if neither party objects to or appeals such an order, then the order becomes and remains the law of the case.

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