Litigation Procedure and Law - § 8-15 (H) - § 8-17 (E)

(H)       Void/Voidable

2016---Host v. Host, Va. Ct. of Appeals, Unpublished, No. 2134-14-4
The Court of Appeals had jurisdiction to consider a voidness challenge on a petition for rehearing despite the fact that the issue had not been raised in the initial appeal. A voidness challenge can be raised at any time that the appellate court has jurisdiction over the matter, except in cases where the challenge itself has been previously raised and litigated to a final judgment. Because the Court of Appeals had not yet issued its mandate to the lower court and because a petition for rehearing was timely filed, the matter remained in the breast of the Court.

2012---Amin v. County of Henrico, 61 Va. App. 67
An order which is void ab initio is a complete nullity, and it may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner. An order that is merely voidable is subject to direct attack at any time before the judgment becomes final, but is not subject to collateral attack.

2012---Zedan v. Westheim, 60 Va. App. 556
The trial court did not err in finding the decree of annulment voidable rather than void ab initio, despite wife’s failure to provide husband with notice of the presentation of the decree pursuant to Va. Code §20-99.1:1. An order is void ab initio if entered by a court without subject matter jurisdiction or personal jurisdiction, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court could not lawfully adopt. The trial court had subject matter jurisdiction over the annulment pursuant to Va. Code §20-89.1. Moreover, because husband filed an answer, without making any special appearance to contest jurisdiction, he submitted to the personal jurisdiction of the court.

2012--- Russell v. Russell, Va. Ct. of Appeals, Unpublished, No. 2599-11-1
Though the circuit court lost active jurisdiction over custody matters incident to the parties’ divorce when husband appealed a custody order to the Court of Appeals, the circuit court did not lose subject matter jurisdiction over custody pending husband’s appeal. Thus, additional orders entered by the circuit court regarding custody while husband’s appeal was pending were not void ab initio, but, at best, only voidable.

2010---Deline v. Deline, Va. Ct. of Appeals, Unpublished, No. 2801-09-1
Where wife did not request in her complaint for divorce that the circuit court deal with the issue of child support, the portions of the divorce decree “reserving” child support, ordering the maintenance of health insurance, and setting father’s child support arrearages were void for lack of jurisdiction. That wife endorsed the divorce decree containing those provisions without objection was not sufficient to confer jurisdiction on the court, as the endorsement of an order is not a prayer for relief in a pleading. Thus, the juvenile court had jurisdiction to enter contempt orders against husband for child support arrearages after the divorce decree was entered.

2009---Schwenk v. Schwenk, Va. Ct. of Appeals, Unpublished, No. 2273-08-2 
Failure to comply with Rule 1:13  renders an order voidable, not void ab initio. (citing Singh v. Mooney, 261 Va. 48, 51 (2001)

2009--- Attiliis v. Attiliis,  Va. Ct. of Appeals, Unpublished, No. 1087-08-4
Because a trial court lacks the authority to order a person to obtain life insurance on himself for the benefit of a former spouse, provisions of divorce decrees or orders requiring as much are void.

2007---Whiting v. Whiting, 262 Va. 3
Va. Supreme Court reversed judgment of Court of Appeals that a final divorce order entered without notice of endorsement of Husband was void ab initio, when, after Court of Appeals decision in this case, the Virginia Supreme Court held, in Napert v. Napert, 261 Va. 45 (2001), that orders entered in violation of Rule 1:13  (endorsement or reasonable notice of presentation of orders required unless dispensed with by Court) are merely voidable, not void ab initio. A voidable order is not subject to collateral attack and must be challenged within twenty-one days pursuant to Rule 1:1. Because Husband failed to challenge final order of divorce within twenty-one days, Order remained in full force and effect. 

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.

2004---DeAvies v. DeAvies, 42 Va. App. 342
Whether an alleged error by a trial court renders its order void turns on the subtle, but crucial, difference between the power of a court to adjudicate a specified class of cases, commonly known as subject matter jurisdiction, and the authority of a court to exercise that power in a particular case.

Trial court properly denied husband’s motion to vacate a final divorce decree, filed over one year after the decree was entered, despite husband’s argument that the decree, which memorialized a property settlement and spousal support agreement between the parties, violated the signature requirements of Va. Code §20-109(C) and §20-149. The alleged failure to abide by the signature requirements of §20-109(C) and §20-149 did not implicate the court’s subject matter jurisdiction. Thus, even if the decree was entered in violation of the statutes, it was merely voidable rather than void ab intio. Therefore, husband was entitled to attack the decree only through a timely filed and ruled upon motion for reconsideration, by direct appeal to the Court of Appeals, through an independent action pursuant to Va. Code §8.01-428; or pursuant to a bill of review if filed within the limitations of Va. Code §8.01-623.

2000---Com. Ex. Rel. Breakiron v. Farmer, 32 Va. App. 430
Child support order entered against man who was not the actual father.  A judgment obtained by fraud is voidable and can be challenged by direct appeal or by attack in an independent proceeding.

1997---Steinberg v. Steinberg, Va. Ct. of Appeals, Unpublished, No. 2557-96-2
Generally, a judgment or decree rendered by a court having jurisdiction over the parties and over the subject matter must be challenged by direct appeal and cannot be attacked collaterally. A party may, however, assail a void judgment at any time, by direct or collateral attack.

A judgment obtained by extrinsic fraud is void, and therefore, subject to direct or collateral attack. A judgment obtained by intrinsic fraud is merely voidable and can be challenged only by a direct appeal or by a direct attack in an independent proceeding. “Intrinsic” fraud includes perjury, use of forged documents, or other means of obscuring facts presented before the court and whose truth or falsity as to the issues being litigated are passed upon by the trier of fact. A collateral attack on a judgment procured by intrinsic fraud has been deemed not warranted because the parties have the opportunity at trial through cross-examination and impeachment to ferret out and expose false information presented to the trier of fact. (Citing Peet v. Peet, 16 Va. App. 323 (1993))

1994 --- Kelley v. Kelley, 248 Va. 295
The trial court had jurisdiction to declare a provision of the parties’ settlement agreement that purported to eliminate Husband’s duty of support towards the parties’ minor child null and void, even though Wife failed to challenge the incorporation of the agreement into the parties’ divorce decree within 21 days as required by Rule 1:1. The provisions of the settlement agreement were void as against public policy. As a result, the portion of the parties’ divorce decree that incorporated provisions was also void. It is firmly established that a void judgment may be attacked and vacated in any court at any time, directly or collaterally.

1993---Peet v. Peet, 16 Va. App. 323
A judgment obtained by extrinsic fraud is void, and subject to direct or collateral attack. Extrinsic fraud consists of conduct which prevents a fair submission of the controversy to the court. A collateral challenge to such a judgment is allowed because such fraud perverts the judicial processes and prevents the court or non-defrauding party from discovering the fraud through the regular adversarial process. A judgment obtained by intrinsic fraud is merely voidable, and thus subject only to attack on a direct appeal or a direct attack in an independent proceeding. Intrinsic fraud includes perjury, use of forged documents, or other means of obscuring facts presented before the court and whose truth or falsity as to the issues being litigated are passed upon by the trier of fact.

Husband failed to prove extrinsic fraud sufficient to support a finding that a prior consent order was void, where wife misrepresented to the parties’ daughters, whom husband had subpoenaed to testify to perjury committed by wife at a prior hearing, that the case had settled and that their appearance was no longer necessary. While wife’s actions were improper, she never made a false representation to husband as to their expected absence at the hearing, but merely stated to him that they would not be present. Rather than simply sign off on the consent order presented by wife, husband could have compelled the daughters’ attendance through enforcement of his subpoenas.

1935---Potts v. Mathieson Alkali Works, 165 Va. 196
A decree cannot be entered in the absence of pleadings upon which to found the same, and if so entered, it is void.

  (I)       Consent Orders

2012---Burns v. Burns, Va. Ct. of Appeals, Unpublished, No. 0359-12-4
Ordinarily, a trial court's interpretation of its own orders is entitled to deference on appeal. However, consent orders are treated differently. Although a consent order is a court order, it is contractual in nature and should be construed as though it were a contract. (Citing Newman v. Newman, 42 Va. App. 557 (2004)).

2004---Newman v. Newman, 42 Va. App. 557
The statutory requirement that parties sign the agreements under §20-109(C) does not, either linguistically or legally, exclude them from doing so through their attorneys.  An attorney acting with actual authority may sign a consent decree on his client’s behalf and thereby satisfy the signature requirement of §20-109(C).

2004---DeAvies v. DeAvies, 42 Va. App. 342
Trial court properly denied husband’s motion to vacate a final divorce decree, filed over one year after the decree was entered, despite husband’s argument that the decree, which memorialized a property settlement and spousal support agreement between the parties, violated the signature requirements of Va. Code §20-109(C) and §20-149. The alleged failure to abide by the signature requirements of §20-109(C) and §20-149 did not implicate the court’s subject matter jurisdiction. Thus, even if the decree was entered in violation of the statutes, it was merely voidable rather than void ab intio. Therefore, husband was entitled to attack the decree only through a timely filed and ruled upon motion for reconsideration, by direct appeal to the Court of Appeals, through an independent action pursuant to Va. Code §8.01-428; or pursuant to a bill of review if filed within the limitations of Va. Code §8.01-623.

  (J)       Written v. Oral

2015---Rubino v. Rubino, Va. Ct. of Appeals, Published, No. 0595-14-1
It is well settled law in Virginia that a court speaks through its orders, and those orders are presumed to accurately reflect what transpired. Here, although the transcript of the proceedings indicates that the trial court may not have relied on an inapplicable statute in making a child custody determination, the trial court’s final order clearly reflects that the court relied on the statute and, as such, constituted an error of law.

2008--- Anonymous B v. Anonymous C, et al,  51 Va. App. 657
When a court’s statements from the bench conflict with its written order, the order controls.  However, in construing an order of a lower court that does not conflict with the transcript, a reviewing court may consider the lower court’s statements from the bench to determine what construction a lower court has placed on its own order.

2007---Hosier v. Hosier, Va. Ct. of Appeals, Unpublished, No. 0767-06-1
The entry of a later written order does not affect the enforceability of an oral order from the bench during the period prior to the entry of the written order. Were it otherwise, a litigant could disobey an oral order with impunity and immunize himself from punishment by delaying the entry of the written order until after the contemptuous behavior has run its course.

  (K)       Declaratory Judgments

2010---Trimble v. Trimble, Va. Ct. of Appeals, Unpublished, No. 2394-09-4
Virginia's declaratory judgment statutes (Va. Code 8.01-184, et. seq.) provide a mechanism for resolving uncertainty in controversies regarding legal rights, without requiring one party to invade the asserted rights of another in order to permit an ordinary civil action for damages. A declaratory judgment action, which is preventive relief, may only be obtained when an actual controversy exists. The declaratory judgment statutes are to be liberally interpreted and administered with a view to making courts more serviceable to the people.

Even though date by which wife was required to list house for sale or pay husband had not yet arrived, wife’s suit for declaratory judgment requesting the court to interpret the relevant provision of the parties’ settlement agreement presented a justiciable controversy between the parties. How the court would interpret the agreement with regard to what she would owe husband under her respective options was highly relevant to how she might elect to proceed, and she risked suffering greater adverse consequences by waiting until the deadline to take action.

An appeal of a declaratory judgment action which arises out of a divorce case is to be taken to the Court of Appeals, not directly to the Supreme Court.

  (L)       Interest on Judgments

2011---Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1381-10-3
Va. Code §20-78.2 mandates interest on support arrears at the judgment interest rate, unless the obligee, in a writing submitted to the court, waives the collection of interest. However, failing to introduce evidence with regard to the interest owed, or failing to specifically request interest, is not tantamount to waiving the collection thereof.

2003---Buchanan v. Buchanan, Va. Ct. of Appeals, Unpublished, No. 2244-02-2
The trial court ordered interest to run on a monetary award beginning thirty days after entry of the final decree of divorce. The decree provided an option for Husband to pay the monetary award in installments. Husband argued that the trial court lacked the authority to order interest to accrue on amounts that have not yet “come due.” Pursuant to Code of Virginia Code §8.01-382, a trial court has the discretion to award interest and determine when it should begin to accrue. The trial court did not err in the trial court’s decision to include interest.

1988---Pledger v. Pledger, 6 Va. App. 627
The trial court erred in awarding Wife interest on her portion of the Husband’s retirement from the date of the entry of the final decree of divorce. A property settlement agreement that awarded Wife one-half of the present cash value of Husband’s pension payable only when he began receiving retirement benefits, and provided that the award be “entered as a judgment” did not entitle Wife to interest on her portion of Husband’s retirement account until the payment became due either upon Husband’s retirement or his receipt of a lump sum payment.

  (M)       Dismissal

2013---Milot v. Milot, Va. Ct. of Appeals, No. 0337-13-2
In February 2002, Wife filed complaint for divorce against Husband. In March 2003, the trial court entered a pendente lite order requiring appellee to pay spousal support and child support. Between the entry of the pendente lite order in March 2005 and August 2007, no action or proceeding was taken in the case. The trial court dismissed the case pursuant to Code of Virginia §8.01-335(B) (which allows the court to strike from its docket any case pending for more than three years without an order or proceeding). Wife claimed that the dismissal order violated her due process rights because she did not receive notice prior to or after its entry. The Court of Appeals held that the dismissal did not violate due process because Code of Virginia §8.01-335(B) allows for a post-deprivation remedy (reinstatement on motion filed within one year from the date of the order).

  (N)       Docketing

2003---Owens v. Owens, 41 Va. App. 844
The trial court did not err in ordering that the monetary equitable distribution award be docketed four months from the date of the final decree. Va. Code §20-107.3(D) states that an equitable distribution award constitutes a judgment within the meaning of Va. Code §8.01-426 and shall not be docketed by the clerk unless the decree so directs. The date chosen for docketing the judgment lies in the sound discretion of the court.

  § 8-16. Parties

  (A)       Death

2013--Forest v. Forest, Va. Ct. of Appeals, Unpublished, No. 0836-12-4
A divorce suit abates when one party dies while the suit is pending and before a decree on the merits. Where a party dies after the entry of the final divorce decree, the party’s death does not abate pending litigation between the parties.

2002---Utsch v. Utsch, 38 Va. App. 450
Appeal did not abate due to Husband’s death.  Va. Code §8.01-20.

  (B)       Necessary/Indispensible Party

2015 --- Palermo v. Epple, Va. Ct. of Appeals, Unpublished, No. 1966-14-4
Child’s ex-stepmother was a necessary party to a custody and visitation modification proceeding where the ex-stepmother had been awarded visitation with the child in the underlying custody and visitation case. Because custody and visitation time with a child is a zero-sum calculation, no other party had the “same interest” as the ex-stepmother, and accordingly her interest could not be adequately protected absent her joinder as a party.

2011---Michael E. Siska Revocable Trust v. Milestone, 282 Va. 169
All persons interested in the subject matter of a suit and to be affected by its results are necessary parties. The necessary party doctrine serves two purposes: first, it permits the court to determine the rights of all persons interested in the subject matter of the litigation so that the resulting order is fair to everyone it binds; second, it avoids further litigation.

2011--- Dover v. Walker, Va. Ct. of Appeals, Unpublished, No. 0142-11-4
The Court of Appeals cannot hear an appeal unless all indispensable parties are included on the notice of appeal. A person is an indispensable party “where an individual is in the actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the plaintiff’s claim. Asch v. Friends of Mount Vernon Yacht Club, 251 Va. 89 (1996). A necessary or indispensible party is so bound up with that of the other parties, that his/her legal presence as a party to the proceeding is an absolute necessity, without which the court cannot proceed. Yopp v. Hodges, 43 Va. App. 427 (2004).

Court of Appeals dismissed guardian ad litem’s appeal based on guardian’s failure to provide notice of appeal to father of child, who court deemed an indispensible and necessary party.

  § 8-17. Pleadings

  (A)       Amendment

2015---MacDougal v. Levick, 66 Va. App. 50
Although the parties had been litigating the divorce matter for over two years at great expense, the trial court did not err in granting Husband leave to amend his pleadings to request an annulment. Amendment serves the underlying policy of litigating the actual controversy between the parties, rather than the approximation of it that was initially pleaded. Moreover, public policy forbids that a party should be barred from bringing a suit to declare null a marriage which never had any valid existence.

2009---Ritter v. Ritter, Va. Ct. of Appeals, Unpublished, No. 0622-09-4
Trial court did not err in refusing to allow husband to amend his answer to wife's divorce complaint. While Rule 1:8 requires leave to amend to be "liberally granted in furtherance of the ends of justice," such amendments are not matters of right, and should not be permitted to delay, impede, or embarrass, the administration of justice. Here, husband was granted leave to file a late answer eleven months after wife filed her complaint, but was barred from filing a cross-complaint. Husband sought affirmative relief in the form of spousal support in his answer, which the court found to be an attempt by husband to circumvent the trial court's bar against filing a cross-complaint. Allowing husband's request would have inevitably resulted in delay, as no discovery had been conducted regarding spousal support, and the scheduling order in place left only four days for the completion of discovery from the date husband filed his answer. Thus, without a continuance, no discovery could be had regarding spousal support.

1996---Brugger v. Brugger, Va. Ct. of Appeals, Unpublished, No. 2446-95-4
Wife’s reference in her cross-bill to “property issues that need to be resolved” did not constitute a request for equitable distribution under Gologanoff v. Gologanoff, 6 Va. App. 340 (1988).
Trial court did not abuse discretion in permitting wife to amend her cross-complaint to include a request for equitable distribution where, although both parties had prepared for trial on equitable distribution, husband withdrew his request for that relief on the eve of trial.

1995--- Murphy v. Murphy, Va. Ct. of Appeals, Unpublished, No. 0071-95-4
Trial court did not err in denying husband leave to amend his answer to include a request that the court determine child support, where husband failed to raise the issue of child support in his answer to wife’s complaint or at the depositions in lieu of trial, which he failed to attend. Instead, husband initially joined in wife’s request that the agreement of the parties be incorporated in its entirety, and only requested leave to amend after all of the evidence was in and the court was prepared to enter a final decree.

1993---Mechtensimer v. Mechtensimer, 246 Va. 121
Trial court does not have jurisdiction where amended motion for judgment filed without leave of court.

1982---Roberts v. Roberts, 223 Va. 736
The trial court did not abuse its discretion in denying Husband’s motion to file a supplemental bill of complaint alleging Wife’s adultery. A party’s right to file late pleadings, whether amended or supplemental, rests in the sound discretion of the court. In this case, the court noted that the first act of adultery alleged by Husband allegedly occurred three days after Husband’s motion for leave to file his amendment charging such adultery. The court was free to conclude that Husband’s motion was not made in good faith, but was merely an effort to avoid the spousal support previously awarded in the case, in the hope that evidence of adultery might later be found.

  (B)       Answer

1989---Emrich v. Emrich, 9 Va. App. 288
The decision to grant or deny an extension to file an answer where the time for doing so has expired rests within the sound discretion of the trial court. In determining whether a trial court has abused its discretion by granting or denying leave to file a late pleading, the existence or absence of good cause for the delay, together with other compelling circumstances, control the determination. Trial courts may properly refuse an extension of time to file responsive pleadings where the delay is due to the negligence or carelessness on the part of a party. Inadvertence or failure to exercise due diligence under the circumstances in responding to legal process does not constitute a reasonable or legal excuse for failure to comply with the filing requirements. Conversely, circumstances which support an extension of time include lack of prejudice to the opposing party, the good faith of the moving party, the promptness of the moving party in responding to the opposing party’s decision to progress with the cause, the existence of a meritorious claim or substantial defense, the existence of legitimate extenuating circumstances, and the justified belief that suit has been abandoned or will be allowed to remain dormant on the docket.

Cohabitation between husband and wife during the pendency of a divorce suit is considered a sufficient reason for the defendant to believe that the plaintiff spouse has abandoned the suit, and a justification for not appearing to make a defense.

  (C)       Complaints, Cross-Complaints, Counterclaims

2009---Ritter v. Ritter, Va. Ct. of Appeals, Unpublished, No. 0622-09-4
Trial court did not err in finding the affirmative defenses and requests for affirmative relief contained in husband's answer to be analogous to a cross-complaint, and did not err in striking those defenses and requests from husband's answer. One of the primary purposes of a cross-bill is to obtain "affirmative relief on behalf of the defendant or defendants filing such a bill," Brewer v. Brewer, 199 Va. 626 (1958). Furthermore, where a defendant has set up a claim for affirmative relief in a defensive pleading, the court, in order to do complete justice between the parties and avoid a multiplicity of suits, may in its discretion treat an answer as a cross-bill. Shevel's Inc.-Chesterfield v. Southeastern Associates, Inc., 228 Va. 175 (1984).

Husband was given leave to file a late answer eleven months after wife filed her complaint, but was denied his request to file a cross-complaint. Instead, husband filed an answer containing twenty-three paragraphs of allegations of fault against wife and asking that the court deny wife's request for divorce, grant him a divorce, and grant him spousal support. The court held that husband's affirmative defenses and requests for affirmative relief were an attempt to circumvent the court's order prohibiting him from filing a cross-complaint, and therefore struck all defenses and requests for affirmative relief.

  (D)       Demurrers

2015---Bozsik v. Bozsik, Va. Ct. of Appeals, Unpublished, No. 1468-14-1
The trial court erred in granting Husband’s demurrer to Wife’s complaint for possession of real property on grounds that Wife had forfeited her interest in the property. Although the parties’ premarital agreement provided that Wife’s interest in the property would terminate upon Wife’s ceasing to occupy the property as her primary place of abode, Wife’s failure to occupy was the result of her compliance with the trial court’s pendente lite order entered during the divorce. Thus, the trial court made it impossible for Wife to satisfy the premarital agreement’s residency provision. Accordingly, Husband’s demurrer was not properly sustainable.

2005---Cabaniss v. Cabaniss, 46 Va. App. 595
While one of the main uses of a demurrer is to challenge a pleading as failing to state a cause of action or to state facts upon which relief can be granted, a demurrer is also used to assert the lack of potential or active jurisdiction.  

Even though a motion for judgment or a bill of complaint may be imperfect, when it is drafted so that the defendant cannot mistake the true nature of the claim, the trial court should overrule the demurrer.

2004---Sullivan v. Sullivan, 42 Va. App. 794
Allowing reconsideration of a child’s best interests in custody proceedings upon an allegation of a substantial change in circumstances is meant to avoid the bar that would be otherwise imposed by res judicata. Trial court did not err in overruling father’s demurrer to mother’s petition for modification ofcustody, despite the fact that since the court of appeals reversed the trial court’s prior ruling allowing mother to relocate with the child and remanded the case to the trial court, the child had not yet been returned to Virginia.

Upon reviewing a demurrer, the court will accept the facts alleged in the pleading as true to determine the legal sufficiency of the claim. If the facts, taken as true, allege a cause of action cognizable in Virginia and upon which relief can be granted, the demurrer should be denied.

1999---Martone v. Martone, 257 Va. 199
In ruling on a demurrer, a court is entitled to take judicial notice of the record in a prior case when the Plaintiff refers to the prior case in a pleading, and specifically bases his or her right of action on something contained in the record of the prior case.

1995--- Zdanis v. Deely, Va. Ct. of Appeals, Unpublished, No. 1078-94-4
The trial court erred in sustaining wife’s demurrer to husband’s complaint where husband alleged that wife told him that her attorney represented both her and husband’s interests, and that, based on the special relationship of trust between he and wife, he relied on wife’s statement in choosing not to retain independent counsel. Husband’s allegations stated a prima facie case of extrinsic fraud, and were thus sufficient to withstand demurrer.

1988---Rosillo v. Winters, 235 Va. 268
A demurrer admits the truth of all material facts properly pleaded. Under this rule, the facts admitted are those expressly alleged, those which fairly can be viewed as impliedly alleged, and those which may be fairly and justly inferred from the facts alleged.

  (E)       Inconsistent Positions

2015 – Groo v. Burton, Va. Ct. of Appeals, Unpublished, No. 0408-15-4
The Court of Appeals refused to consider Father’s argument that, because Mother presented evidence first, the trial court erred in granting her motion to strike Father’s evidence. Because Father agreed to allow Mother’s witness to testify first, he cannot argue on appeal the trial court erred in granting Mother’s motion to strike on the basis that Mother presented evidence first.

2012---Patron v. Furtado, Va. Ct. of Appeals, Unpublished, No. 0719-12-2
The trial court did not err in refusing to classify a jointly titled property where both parties requested at trial that the court refrain from doing so. Though husband assigned error to the trial court’s ruling on appeal, a litigant is not allowed to approbate and reprobate, occupying inconsistent positions in the course of the same litigation. This prohibition against approbation and reprobation forces a litigant to elect a particular position, and confines the litigant to the position he first adopted. (Citing Matthews v. Matthews, 277 Va. 522 (2009)).

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