Litigation Procedure and Law - § 8-11 - § 8-13

§ 8-11. Equity

(A) Generally

2015—MacDougal v. Levick, 66 Va. App. 50
Equitable doctrines such as laches and estoppel are generally rejected in divorce suits because the body of divorce law is now chiefly statutory in character.

2000—Hawthorne v. Smyth, 33 Va. App. 130
A court will not compel a vain and useless undertaking.

1995—Buxbaum v. Buxbaum, 20 Va. App. 181
Even a court of equity, in an effort to do equity, cannot disregard the provisions of a lawful decree, nor is such a court justified in offsetting against payments required to be made under such a decree voluntary payments.

(B) Laches

2002—Bazzle v. Bazzle, 37 Va. App. 737
Laches is the neglect or failure to assert a known right or claim for an unexplained period of time under circumstances prejudicial to the adverse party. The burden of proving laches and prejudice is uponthe litigant asserting the defense. When a trial court considers the defense of laches, it does not apply an absolute rule such as a statute of limitations, but instead examines each case in light of the particular circumstances. Therefore, whether a claim is barred by laches is primarily a decision resting within the discretion of the trial court. Absent an abuse of that discretion, the decision will not be overturned on appeal.

1992—Bennett v. Comm. of Va. DSS, DCSE, 15 Va. App. 135
The doctrine of laches may not be interposed by the obligor spouse to a spousal support arrearage claim.

(C) Declaratory Judgment

2011—Prizzia v. Prizzia, 58 Va. App. 137

If the fugitive disentitlement doctrine applies in a particular case, the remedy afforded by the doctrine is a dismissal of the litigant’s claims or a complete bar to the litigant’s participation in the action. If a lesser alternative to such an extreme remedy is available, the doctrine does not apply. The doctrine and its various rationales do not grant a non-fugitive party a right to the imposition of any particular lesser remedy in a specific case.

Where husband did not request that wife be barred from pursuing her action, but instead simply requested that she be forced to appear in person rather than via telephonic deposition, he acknowledged that a remedy less than dismissal or complete bar was available. Thus, he could not successful argue that the court erred in refusing to apply the fugitive disentitlement doctrine to wife.

2009—Miller v. Jenkins, Va. 54 Va. App 282 (June 23, 2009)
Circuit court had no jurisdiction to entertain action for declaratory judgment where other remedies were available to the party seeking the judgment. When appellant opposed appellee’s motions to register and enforce out-of-state custody orders in the trial court, she pursued those other available remedies. The harm she alleged “may be suffered” had, in fact, already been suffered, as the appellee had already moved to register and enforce the orders.

(D) Injunctions

2009—Miller v. Jenkins, Va. 54 Va. App 282 (June 23, 2009)
Trial court did not err in dismissing claims for injunctive relief, as appellant had and was currently pursuing an adequate remedy at law by defending against appellee’s motion to register and enforce custody orders. Courts will not enjoin the prosecution of an action at law when the defendant can make a full and adequate defense in such action.

2005—D’Ambrosio v. D’Ambrosio, 45 Va. App. 323 (2005)
To secure an injunction, a party must show irreparable harm and the lack of an adequate remedy at law. The injunction must also be specific in its terms, and it must define the exact extent of its operation so that there may be compliance. In other words, the injunction should set forth what is enjoined in a clear and certain manner and its meaning should not be left for speculation or conjecture.

Trial court erred in granting injunction prohibiting the father from “making defamatory comments about the mother to third parties.” The mother presented no evidence that, absent the injunction, she would be irreparably harmed, nor did she demonstrate the lack of an adequate remedy at law, as a common law action for defamation would have been available had the father actually made defamatory comments. Moreover, the injunction was vague and overbroad, in that it failed to adequately delineate which of the father’s potential comments might violate the injunction.

(E) Unclean Hands

2015—Bajgain v. Bajgain, 64 Va. App. 439
The “clean hands” doctrine is unavailable to a party when it is asserted in the context of equitable distribution proceedings or in the context of the determination of spousal support pursuant to Code §20-107.1. Although divorce cases appear on the chancery side of the docket, the many statutory limitations placed on divorces differentiate those cases from ordinary suits in equity.

2011—Harris v. Va. Dept. of Soc. Srvc’s, DCSE, Va. Ct. of Appeals, Unpublished, No. 2703-10-3
Trial court did not abuse discretion in applying the doctrine of unclean hands to deny father’s motion to reduce child support due to a $2,649 arrearage that husband had accumulated prior to his loss of employment. (NOTE: The Court of Appeals specifically noted that the trial court did not appear to have denied the motion based solely on the arrearages and the application of the unclean hands doctrine, but also on grounds that husband failed to carry his burden of proof because he failed to offer evidence as to his expenses or changes in the child’s needs.)

(F) Fugitive Disentitlement Doctrine

2011—Morrison v. Morrison, 57 Va. App. 629
The Fugitive Disentitlement Doctrine springs from the inherent power of courts to enforce their judgments and protect their dignity. In essence, it provides that a fugitive from justice may not seek relief from the judicial system whose authority he/she evades. The doctrine applies in both criminal and civil cases. In order to employ the doctrine, the record must show (i) that the party against whom the doctrine is advanced is a fugitive; (ii) that there is a nexus between the current case and the party's status as a fugitive; and (iii) that dismissal is necessary to effectuate the policy concerns underlying the doctrine. Some of the policy concerns include prejudice to the opponent, delay, frustration, and unenforceability. Use of the doctrine must be a reasonable response to the problems and the needs of the case. Because it is a severe sanction, the court must exercise discretion in determining whether to apply the doctrine.

Although a litigant may qualify as a fugitive by fleeing the jurisdiction, a litigant may also “constructively flee” by remaining outside the jurisdiction and refusing to return.

Cases involving custody are in an entirely different category than other issues for fugitive disentitlement purposes. The best interests of a child are paramount in custody disputes, and barring a parent who has lost a child from even arguing that the child was wrongfully removed to another country is too harsh, particularly in the absence of any showing that the fugitive status has impaired the rights of the other parent. This is not to say that the doctrine should never be applied in custody cases, but simply that it should be used sparingly and where there is no significant negative impact on the best interests of any children.

The Court of Appeals refused to apply the fugitive disentitlement doctrine to bar mother’s appeal of a Virginia trial court’s refusal to register a Michigan custody order. Although the mother was a fugitive from outstanding arrest warrants in Michigan and from a federal indictment for parental kidnapping, her status as a fugitive had no nexus to her appeal of the Virginia court’s refusal to register the prior order. Her request for registration resulted, not from her absconding from Michigan to Austria with the child or from her refusal to submit to the jurisdiction of the Michigan courts, but from father’s actions in bringing the child back to Virginia. Furthermore, the father was not prejudiced in the present appeal by her refusal to submit to the jurisdiction of a Michigan court, as the Virginia courts had not been asked to determine custody, but instead, to simply give full faith and credit to the Michigan custody order.

(G) Accounting

1992—Gaynor v. Hird, 15 Va. App. 379
The trial court erred in refusing to award Wife the fair market rental value of her interest in the parties’ former marital residence. Code of Virginia § 8.01-31 provides that “[a]n accounting in equity may be had against any fiduciary or by one joint tenant, tenant in common, or coparcener for receiving more than comes to his just share or proportion, or against the personal representative of any such party.” Upon the parties’ divorce, their former marital residence, which they had owned as tenants by the entirety, became their property as tenants in common pursuant to Code § 20-111, and thus fell within the scope of Code § 8.01-31. The Supreme Court of Virginia addressed this issue in Early v. Friend, 57 Va. 21, wherein the Court held, that “[w]hen instead of renting it out, [the co-tenant in possession] occupies and uses the whole [property] to the exclusion of his co-tenants, and thus, in effect, becomes himself the renter, . . . the just and true rule is, to charge him with a reasonable rent for the use and occupation of the property in the condition in which it was when he received it, and to hold him accountable to his co-tenants for their just shares of such rent.” Accordingly, Wife is entitled to an accounting from the date of the divorce, which initiated the commencement of the parties’ tenancy in common.

(H) Constructive Trusts

1991---Richardson v. Richardson, 242 Va. 242
The trial court did not err in imposing a constructive trust in favor of Wife after Husband died intestate. During the marriage, Husband’s mother gifted to Husband a parcel of real property on which Husband and Wife placed a trailer and resided with their children. When, Husband filed for divorce, he conveyed the property back to his mother in an effort to exclude it from distribution as part of the divorce. Fearful that Wife might file suit against her, Husband’s mother conveyed the property to Husband’s brother. When Husband died intestate 12 years after filing for divorce, his brother still held title to the property, and Husband and Wife were still married and continued to live on the property.

The Supreme Court considered whether, viewing the record in the light most favorable to Wife, the trial court’s imposition of a constructive trust was based on clear and convincing evidence that Husband’s brother would be unjustly enriched if allowed to retain the property. Husband’s mother and brother each claimed that they did not hold the land for Husband’s benefit. Wife testified that Husband and Husband’s mother said the land was Husband’s “any time he wanted.” The parties’ children testified to similar statements by their father about the land. Based on this testimony and the circumstances surrounding the transfer, the Court found that Husband’s mother and brother were not beneficial owners of the property and any disposition of the property by either of them during Husband’s lifetime would have been subject to Husband’s wishes. Furthermore, although Husband’s and Wife’s relationship was volatile when Husband filed for divorce, Wife testified that it had been stable since and “great” in the two years preceding Husband’s death. Additionally, Wife had cared for Husband’s mother throughout their relationship. Finally, Wife had lived on the property since 1972. The Court found that these circumstances provided ample evidence that Husband’s brother would be unjustly enriched, and Wife unjustly deprived, if the Court permitted Husband’s brother to retain the property.

§ 8-12. Estoppel

2011—Pramagioulis v. Pramagioulis, Va. Ct. of Appeals, Unpublished, No. 1437-10-2
Trial court did not err in finding that husband was equitably estopped from contesting spousal support, where husband and his attorney specifically promised to wife, prior to her signing a settlement agreement wherein she waived spousal support, that husband would continue to support her and provide her with additional funds to meet her basic expenses. Wife had significant psychological conditions, and, according to the testimony of her counselor, was very gullible. She thought that the settlement agreement was being entered into solely for the purpose of enabling husband to receive a bond for his business.

2000—Whiting v. Whiting, 32 Va. App. 192
Husband was estopped from contesting validity of decree as he had relied upon decree in remarrying.

1996—Twinam v. Twinam, Va. Ct. of Appeals, Unpublished, No. 0765-96-4 (Nov. 12, 1996)
The trial court did not err in finding that wife was equitably estopped from contesting the validity of a modification to the parties’ settlement agreement, where wife’s primary argument against the modification was that her and husband’s signatures to the modification were not notarized, and thus not executed “with the same formality” as the original agreement. The modification was in writing and signed by both parties, and both parties operated under the modification for over five years. Wife’s conduct in signing the modification and accepting modified child support payments by husband induced husband to believe that the modification was uncontested. Moreover, mother’s challenge, if successful, would result in a substantial back debt owed by father.

1993---Webb v. Webb, 16 Va. App 486
Husband, who fraudulently induced Wife to enter into a marital agreement, argued that Wife was estopped from repudiating the agreement due to his partial performance under the agreement. The equitable remedy of estoppel was unavailable to Husband due to the doctrine of “unclean hands.” Where the fraudulent acts of a party cause another party to enter into a contract, the party guilty of fraud is not entitled to restitution for his or her performance or partial performance under the contract.

1990—Slagle v. Slagle, 11 Va. App. 341
The trial court did not err in determining that collateral estoppel barred Husband from challenging his paternity and attendant obligation to support the minor child where the final divorce decree stated that the child was born of the marriage. Under the principle of collateral estoppel, the parties to the first action and their privies are precluded from litigating in a subsequent action any issue of fact actually litigated and essential to a valid and final personal judgment in the first action. Incorporated in the parties’ final decree of divorce was the trial court’s finding that the child was born of the marriage. Implicit in that ruling was a finding by the court that Husband was the father of the child, and thereby obligated to make support payments until the child reached the age of majority. The issue of Husband’s paternity had thus already been conclusively adjudicated in the final divorce decree.

In order to establish a collateral estoppel bar, the party asserting collateral estoppel must establish by a preponderance of the evidence that the precise issue or question sought to be precluded was raised and determined in a previous action. Before finding that a party has met this burden, the trial court is required to determine exactly what was decided in the earlier trial. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.

1976—T. v. T, 216 Va. 867
To establish equitable estoppel, it is not necessary to show actual fraud, but only that the person to be estopped has misled another to his prejudice, or that the innocent party acted in reliance upon the conduct or misstatement by the person to be estopped. Elements necessary to establish equitable estoppel, absent a showing of fraud and deception, are (i) a representation; (ii) reliance; (iii) a change of position; and (iv) detriment.

Husband was equitably estopped from pleading the statute of frauds to avoid liability for child support for wife’s illegitimate child. Prior to marriage, husband promised wife that if she married him rather than moving and placing the child for adoption, he would care for the child “as if it were his own.” Wife changed her plans, married husband, and substantially performed her obligation under the agreement until husband rendered further performance impossible by seeking an end to the marriage

§ 8-13. Guardian ad Litem

2018—Sims-Bernard v. Bernard, Va. Ct. of Appeals, Unpublished, 0918-17-2
The trial court did not err in awarding guardian ad litem fees in excess of $11,000 or in ordering Mother to pay approximately $10,000 of the guardian’s fees. Although Mother relied on Code of Virginia §§ 16.1-267 and 19.2-163 to support her contention that the trial court erred, those sections are inapplicable because they pertain to juvenile and domestic relations district court cases and criminal cases respectively. This is a custody and visitation case which took place entirely in the circuit court. Further, the record demonstrates that Mother’s actions unnecessarily increased the expense necessary to conclude the case. Between the initial court proceeding when the guardian was appointed, and the final ruling approximately a year and a half later, the parties were required to attend four separate hearings at Mother’s request to address her refusal to undergo an independent psychological evaluation and her repeated, unsuccessful attempts to convince the court to dispense with the requirement.

2015—Aratoon v. Roberts, Va. Ct. of Appeals, Unpublished, No. 0529-14-4
The trial court erred in appointing a guardian ad litem sua sponte to determine whether Husband qualified for disability benefits and to present evidence of the same. Husband was already represented by counsel and the evidence regarding Husband’s alleged disability, which was presented prior to the trial court’s appointment of a guardian, was inconclusive. The circumstances of the case provided no statutory basis on which a guardian could be appointed.

2015—Lowe v. DCSE, Va. Ct. of Appeals, Unpublished, No. 0834-14-2
The trial court did not err in denying Father’s request for a guardian ad litem because, although Father was incarcerated, he was not a party defendant to the lawsuit. Rather, Father was the party who filed the action in the court to amend his child support obligation. Code of Virginia § 8.01-9(a) provides that a person under a disability, including a convicted felon who is incarcerated, shall be appointed a guardian ad litem when he is a “party defendant.” The statute is not concerned with the capacity of a person under a disability to sue, but with the protection of such person when named as a defendant in a lawsuit. The filing of a lawsuit is a plaintiff’s affirmative act that does not carry with it the need for the type of court-initiated protection which may exist when a person with a disability is required to defend himself in litigation that he did not initiate.

2014—Azam v. Miah, Va. Ct. of Appeals, Unpublished, No. 0884-14-2
The trial court did not abuse its discretion in declining to appoint a guardian ad litem for the child. A trial court has the discretionary power to appoint a guardian ad litem in a contested custody case when it finds that the best interests of the child are not adequately protected by the parties. Here, although the child was available to speak with the trial court, such conversation with the child was unnecessary because the trial court could ascertain the best interests of the child from parties’ and witness’s testimony.

2011—Breit v. Mason, Va. Ct. of Appeals, No. 0337-11-1
Trial court abused discretion in appointing as guardian ad litem for child an attorney previously hired by and paid by mother to represent the child. Prior to the appointment, the attorney admitted that she had not met with the child, inquired as to the relationship the child had with the biological father, or done any investigation of the biological father, despite having taken an identical position as the mother in seeking to bar biological father’s petition to establish paternity.

2011—Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
While Va. Code § 16.1-278.19 is clearly designed to give the trial court authority to shift the burden of attorney’s fees and costs from one party to the other, it does not set out a requirement that a guardian ad litem’s fees must be divided among the parties based on their relative financial abilities. Moreover, under Va. Code § 16.1-267(A), the court is required to assess the total costs of the guardian ad litem’s representation of the child against both parents. Although that statute is silent as to how to apportion those costs between the parents, the trial court has discretion in doing so.

2010—Evans v. Evans, Va. Ct. of Appeals, Unpublished, No. 1936-09-3
Trial court did not err in ordering husband to pay 80% of the guardian ad litem’s fees, based on findings by the court that husband “created the majority” of the need for the guardian’s extensive time on the case.

2003—Kane v. Szymczak, 41 Va. App. 365
The decision to appoint guardian fees between both parties or to one party alone is a matter within the trial court’s sound discretion.

2003—Ferguson v. Grubb, 39 Va. App. 549
The trial court did not err in continuing the appointment of a guardian ad litem after having deemed the custody matters before it ended. Va. Code § 20-124.2 grants a court continuing authority and jurisdiction to make additional orders necessary to effectuate and enforce court-ordered custody and visitation arrangements. Thus, once a court has ruled on matters relating to custody and visitation of minor children, the court retains jurisdiction throughout the minority status of the child involved. That authority includes the power to order the continued appointment of a guardian ad litem until the children have reached the age of majority.

Trial court did not err in allowing the guardian ad litem to utilize staff members to carry out duties such as home visits. There is no authority standing for the proposition that a guardian ad litem is barred, in an appropriate case, from utilizing court-approved or designated staff to assist with fulfilling his/her obligations as guardian ad litem.

1993—Verrocchio v. Verrocchio, 16 Va. App. 314
The trial court in a divorce case has authority to appoint a guardian ad litem, and to apportion the costs among the parties. A finding that the appointment is necessary and would be in the best interest is an essential prerequisite.

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