Litigation Procedure and Law - § 8-17 (F) - § 8-18

(F) Sufficiency

2013---Starling v. Starling, Va. Ct. of Appeals, Unpublished, No. 0589-13-3
Wife’s mistaken request in her cross complaint for equitable distribution pursuant to Code of Virginia §20-107.1 (instead of §20-107.3) was a mere scrivener’s error, and was sufficient to put Husband on notice that equitable distribution was at issue. Code of Virginia §8.01-428(B) allows a trial court to correct clerical mistakes. Scrivener’s or similar errors in the record, which are demonstrably contradicted by all other documents, are clerical mistakes. Here, the divorce litigation had been pending for over six years; Husband had previously acknowledged that wife had requested equitable distribution in her cross complaint; the parties had conducted extensive discovery regarding equitable distribution; and husband raised the issue for the first time after trial.

2013---Bousman v. Lhommedieu, Va. Ct. of Appeals, Unpublished No. 2289-12-4.
A demurrer is sufficient where it gives adequate notice of the issues presented to the court for ruling. The requirements for pleading are not so strict as to demand specificity beyond that necessary to clearly inform the opposite party of the true nature of the claim or defense pled.

2009---Kappeler v. Kappeler, Va. Ct. of Appeals, Unpublished, No. 0292-09-4
Although most types of judicial relief may not be awarded if the requesting party does not expressly request it in the pleadings, "substantial compliance" usually suffices in the context of domestic relations cases (citing Gologanoff v. Gologanoff, 6 Va. App. 340 (1988)), if the pleadings provide a "fair warning of the general form of relief sought," (citing O'Rourke v. Vuturo, 49 Va. App. 139 (2006)).

Trial court did not violate "due process principles" by allowing mother to present evidence regarding father's hostility during visitation exchanges, despite mother's failure to specifically plead the hostility as a material change in circumstances in her motion to increase child support. Mother's motion alleged that she had "elected to establish after school child care arrangements for the children." Father's cross motion to reduce child support cited Va. Code §20-108.2(F) and asserted that his "willingness and availability to provide child care" constituted a material change in circumstances justifying a reduction in support. Together, those pleadings put the issue of child care expenses squarely before the court. Furthermore, the best evidence that the pleadings put father on notice of the issue was that the father expressed no surprise at the hearing about the hostility issue, either during argument of counsel or the presentation of evidence.

2005---D’Ambrosio v. D’Ambrosio, 45 Va. App. 323 (2005)
Trial court did not err in altering a custody decree to grant medical decision making authority to the mother, despite the fact that neither party specifically requested such a change. Both parties mentioned an issue of “competing physicians” in their respective motions, and both parties included a general prayer that the court “grant such other relief as equity deems appropriate.” Furthermore, both parties addressed the issue of “competing physicians” in their opening statements. Because the relief was consistent with allegations in the petitions and arguments made at trial, and because Va. Code §20-108 gives the court clear authority to modify a custody decree in the best interests of the child, Father’s argument that he was “not on notice” that such medical decision making authority was at issue was meritless.

2005---Cabaniss v. Cabaniss, 46 Va. App. 595
Trial court did not err in finding personal jurisdiction over Husband pursuant to the long-arm statute based on allegations in Wife’s Complaint that i) the parties were married in 1982; ii) the wife was domiciled in and a bona fide resident of Virginia; iii) Husband lived abroad; iv) the parties last cohabitated in Lexington, Virginia; v) on March 19, 2002, Husband, at that time gone from the marital residence, called Wife and informed her that the marriage was over; and vi) since that date Husband had not returned to the matrimonial domicile. Husband’s argument that the Complaint did not sufficiently state that the parties had been maintaining a matrimonial domicile at the time they separated, as required by the long-arm statute (8.01-328.1(A)(9)), is without merit. Given the allegations contained in the Complaint, Husband “could not have been mistaken” that Wife was alleging that the parties had been maintaining a matrimonial domicile at the time of their separation upon which wife’s action for divorce was based.

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.

2002---Smith v. Smith, 38 Va. App. 113
Wife’s answer was a sufficient request for equitable distribution.

1997---Wilson v. Wilson, 25 Va. App. 752 (1997)
Discovery, document production, or other relief is not allowed in absence of a pleading placing the issue before the court.

1988---Gologanoff v. Gologanoff, 6 Va. App. 340
The trial court did not err in finding that Wife had successfully requested a monetary award under Code § 20.107.3 when she filed a "Motion for Determination of Marital Property Rights" separate from her answer and cross-bill, but within the twenty-one-day period allotted to her to file responsive pleadings. To hold otherwise would be to put form over substance.

1986---Boyd v. Boyd, 2 Va. App. 16
Wife’s prayer in her Answer for “such other and further relief as to equity may seem meet and the nature of her case may require” was insufficient for purposes of asserting a claim for spousal support.

1935---Potts v. Mathieson Alkali Works, 165 Va. 196
The basis of every right of recovery under our system of jurisprudence is a pleading setting forth facts warranting the granting of the relief sought. It is the sine qua non of every judgment or decree. No court can base its decree upon facts not alleged, nor render its judgment upon a right, however meritorious, which has not been pleaded and claimed. Pleadings are as essential as proof, the one being unavailing without the other. A decree can not be entered in the absence of pleadings upon which to found the same, and if so entered, it is void. Every litigant is entitled to be told by his adversary in plain and explicit language what is his opponent’s ground of complaint or defense. The issues in a case are made by the pleadings, and not by the testimony of witnesses or other evidence.

(G) Void

2006---Jones v. Jones, 49 Va. App. 31
Wife’s appeal dismissed where her attorney filed the notice of appeal while suspended from practicing law in Virginia. A pleading signed by an attorney not licensed to practice law in Virginia is invalid and has no legal effect.

(H) Sanctions

2017---Kahn v. McNicholas, Va. Ct. of Appeals, No. 0982-16-4
The trial court did not err in refusing to impose sanctions on Wife and her attorney for mischaracterizing payments owed by Husband to Wife as “spousal support” in her show cause petition. Code of Virginia § 8.01-271.1 provides that the signature of an attorney or party on a pleading constitutes certification that the pleading is well grounded in fact, and authorizes a court to impose sanctions on an attorney or party who signs a pleading in violation of the rule. Nothing in the statute, however, gives a trial court the authority to sanction a party for an inadvertent mistake. Here, although the parties expressly waived any rights to receive spousal support in their property settlement agreement (“PSA”), the final decree of divorce (which Husband prepared), nevertheless described his payment obligations as spousal support. The ambiguity created from the contradictory language used in the PSA and the final decree, along with Wife’s consistent acknowledgement throughout the contempt proceeding that her reference to the payment obligations as spousal support was in error, ultimately resulted in no prejudice to Husband.

2011---Johnson v. Woodard, 281 Va. 403
Va. Code § 8.01-271.1 authorizes sanctions only of an attorney or part-litigant who violates the duties of the statute. The statue does not determine the imposition of sanctions against non-parties.

2010---Broadhead v. Broadhead, Va. Ct. of Appeals, Unpublished, No. 0923-09-2
A trial court must employ an objective standard of reasonableness in evaluating an alleged violation of Va. Code §8.01-271.1. Under this standard, the trial court should consider whether, after reasonable inquiry, counsel could have formed a reasonable belief that the pleadings were well-grounded in fact, warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and not interposed for an improper purpose.

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.

(I) Pleas in Bar

2019---Baldwin v. Baldwin, Va. Ct. of Appeals, Unpublished, No. 0310-19-4
A plea in bar is not a proper pleading with respect to a petition for a protective order for three reasons. First, a protective order is distinguished from other types of civil proceedings, namely, it has no basis in common law pleadings and is solely a creature of statute – the aim of which is to protect the health and safety of the petitioner – and the penalties for violation of a protective order range from contempt of court to criminal penalties. Second, a plea in bar responds to a complaint, and a petition for a protective order is not a complaint. Third, a protective order is not a cause of action as contemplated by Virginia caselaw.

2011---Breit v. Mason, Va. Ct. of Appeals, No. 0337-11-1
A plea in bar asserts a single issue, which, if proved, creates a bar to the plaintiff’s recovery. Where no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented. In doing so, the facts stated in the plaintiff’s petition are deemed true. However, if the parties present evidence on the plea ore tenus, the trial court’s factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.

§ 8-18. Pretrial

(A) Discovery

(1) Depositions

2009---Kapur v. Kapur, Va. Ct. of Appeals, Unpublished, Record No. 0363-08-4
Trial court erred in imposing sanctions precluding Husband from introducing evidence at the hearing on support and equitable distribution based on his failure to attend a scheduled deposition, because no order compelling Husband’s attendance at a deposition was ever entered. (see Brown v. Black, 260 Va. 305 (2000), which held that the entry of and failure to obey an order compelling discovery is a prerequisite for an order imposing sanctions under Rule 4:12(d).)

(2) Interrogatories, Requests for Production, Requests for Admission

2006---Kawar v. Bouk, 71 Va. Cir. 295
Defendant’s objections were deemed waived due to its failure to timely file them under Va. Rule 4:8(d) or to request and be granted by the Court a “longer time” in which to file responses.

2004---Cirrito v. Cirrito, 44 Va. App. 287
Trial court failed to follow proper procedure regarding the identification of experts and erred in imposing sanctions on wife for failing to make an expert disclosure in the absence of a specific Rule 4:1 request that she do so. Wife responded to some of husband’s requests for admissions with statements that she was unable to admit or deny, as she had not yet identified experts needed to do so. Husband contended that his simultaneously-served interrogatories, which requested only that wife identify the basis for any refusal to admit the requests for admissions, constituted a request that she disclose such experts and provide their reports. Despite the fact that husband never expressly requested that wife identify experts pursuant to Rule 4:1, the trial court found that the requests for admissions and the corresponding interrogatories sought the same information as a Rule 4:1 request for identification of experts, and ordered wife to identify her experts and provide their reports. The Court of Appeals held that because husband had not specifically requested expert disclosure pursuant to Rule 4:1, the trial court lacked the authority to order wife to so disclose.

1990---Vienna Props., Inc. v. Cudd, 21 Va. Cir. 395
By failing to timely raise objections to plaintiff’s discovery, the defendant waived his objections.

1970---Rakes v. Fulcher, 210 Va. 542
One purpose of discovery procedures is to obtain evidence in the sole possession of one party and unobtainable by opposing counsel through independent means. However, discovery procedures were not intended to open an attorney’s files to opposing counsel, nor were they intended to afford an attorney the luxury of having opposing counsel investigate his case for him. When both parties have an equal opportunity to investigate, as is the case where all witnesses are made known and are available to both sides, additional discovery regarding those witnesses should not be granted.

(3) Motion to Compel

(4) Sanctions

2015---Gregory v. Gregory, Va. Ct. of Appeals, Unpublished, No. 1367-14-4
The trial court erred in failing to award attorney’s fees to Husband for Wife’s failure to comply with the court’s orders compelling discovery. Wife’s failure to respond to Husband’s discovery requests caused Husband to incur significant fees in prosecuting multiple motions to compel. Moreover, the trial court did not find that Wife’s opposition to Husband’s motions to compel was substantially justified, or that an award of fees to Husband would have been unjust. Accordingly, Husband was entitled to fees for obtaining Wife’s compliance with the court’s orders.

2010---Spreadbury v. Spreadbury, Va. Ct. of Appeals, Unpublished, No. 1053-09-4
On appeal, a trial court’s decision regarding discovery disputes will be set aside only if the court abused its discretion. Rule 4:12 governs the imposition of sanctions for failure to make discovery, and when a party fails to respond to discovery requests, Rule 4:12(b)(2)(B) permits the court to enter an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters into evidence.

Where wife on two occasions refused to comply with court orders to respond to husband’s discovery requests, the trial court did not err in prohibiting wife from opposing the claims or defenses of husband, from introducing any evidence to support claims she made or intended to make against husband which were the subject of husband’s discovery requests, or from introducing any matters into evidence which were the subject of the discovery requests. Furthermore, the trial court did not err in refusing to permit wife to introduce evidence related to any property she claimed was separate other than the separate property she listed on bankruptcy schedules that she provided to the bankruptcy court.

2009---Kapur v. Kapur, Va. Ct. of Appeals, Unpublished, Record No. 0363-08-4
Trial court erred in imposing sanctions precluding Husband from introducing evidence at the hearing on support and equitable distribution based on his failure to attend a scheduled deposition, because no order compelling Husband’s attendance at a deposition was ever entered. (see Brown v. Black, 260 Va. 305 (2000), which held that the entry of and failure to obey an order compelling discovery is a prerequisite for an order imposing sanctions under Rule 4:12(d).)

2004---Estate of Hackler v. Hackler, 44 Va. App. 51
Where husband refused to answer discovery regarding financial and asset information in divorce proceeding, and refused to abide by pendente lite orders to provide support and maintenance, the trial court had the authority under Rule 4:12 to appoint a conservator to take over and manage husband’s assets, to pay support from husband’s accounts, and to acquire the information requested by wife in discovery.

(5) Expert Disclosures

2015---Aratoon v. Roberts, Va. Ct. of Appeals, Unpublished, No. 0529-14-4
Although Wife failed to timely disclose her expert witness’ report prior to trial, the trial court did not abuse its discretion by permitting the expert to testify because Husband learned sufficient information from a prior evidentiary hearing to adequately prepare to cross-examine the witness and because Husband failed to allege any prejudice resulting from the untimely disclosure.

2011---Landrum v. Chippenham and Johnston-Willis Hospitals, Inc., 282 Va. 346
The lower court did not abuse its discretion in excluding plaintiff’s expert witnesses, which ultimately resulted in dismissal of the plaintiff’s case. The plaintiff repeatedly failed to obey the court’s pretrial orders to timely disclose the substance of facts and opinions and a summary of grounds for each opinion to which her experts would testify.

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.

2004--- Cirrito v. Cirrito , 44 Va. App. 287
Trial court failed to follow proper procedure regarding the identification of experts and erred in imposing sanctions on wife for failing to make an expert disclosure in the absence of a specific Rule 4:1 request that she do so. Wife responded to some of husband’s requests for admissions with statements that she was unable to admit or deny, as she had not yet identified experts needed to do so. Husband contended that his simultaneously-served interrogatories, which requested only that wife identify the basis for any refusal to admit the requests for admissions, constituted a request that she disclose such experts and provide their reports. Despite the fact that husband never expressly requested that wife identify experts pursuant to Rule 4:1, the trial court found that the requests for admissions and the corresponding interrogatories sought the same information as a Rule 4:1 request for identification of experts, and ordered wife to identify her experts and provide their reports. The Court of Appeals held that because husband had not specifically requested expert disclosure pursuant to Rule 4:1, the trial court lacked the authority to order wife to so disclose.

(6) Physical and Mental Examination

2018--- Sims-Bernard v. Bernard, Va. Ct. of Appeals, Unpublished, 0918-17-2
The trial court did not violate Mother’s due process rights by requiring a psychological evaluation prior to ruling on her motion to modify custody and visitation. Code of Virginia § 20-124.2(D) expressly authorizes a court deciding custody or visitation to “order an independent mental health or psychological evaluation to assist the court in its determination of the best interests of the child.” Here, the trial court had reason, based on findings in the prior custody and visitation order, to require an independent evaluation of mother’s mental health before determining if a change of custody or visitation was in the children’s best interests. Although Mother’s interests in the care, custody, and control of her children is recognized under Virginia law as a fundamental liberty interest, the children’s welfare, not Mother’s due process right to a prompt trial, is the paramount concern in a custody and visitation proceeding.

2013-- Richter v. Manning, Va. Ct. of Appeals, Unpublished, No. 1166-12-4
The trial court did not err when it denied appellants’ motion to order a Rule 4:10 examination of the minor child to determine whether actual harm occurred when the mother withheld visitation from paternal grandparents. While the circuit court acknowledged appellants’ belief that a Rule 4:10 examination could potentially produce evidence relevant to a determination of actual harm, a party’s mere assertion that a discovery tool is necessary for him to investigate fully and prepare his case is insufficient as a statement of good cause.

(B) Scheduling Orders

2017---Reaves v. Tucker, Va. Ct. of Appeals, 67 Va. App. 719
Code of Virginia § 8.01-4 provides that trial courts “may prescribe certain docket control procedures which shall not abridge the substantive rights of the parties nor deprive any party the opportunity to present its position as to the merits of a case solely due to the unfamiliarity of counsel of record with any such docket control procedures.” One such docket control procedure is expressly created in Rule 1:18, which provides for the entry of a pretrial scheduling order in civil cases. In order for Rule 1:18 scheduling orders to facilitate the orderly administration of cases, however, they must be enforced by the trial courts. There is little point in issuing such orders if they amount to nothing more than a juristic bluff, obeyed faithfully by conscientious litigants, but ignored at will by those willing to run the risk of unpredictable enforcement. (Quoting Rahnema v. Rahnema, 47 Va. App. 645 (2006)). The impartial, consistent enforcement of scheduling orders provides systemic benefits to litigants and trial courts alike.

The trial court did not err by enforcing the deadlines provided by its pretrial scheduling order. Neutral procedural rules, including those providing for a trial court to enter pretrial scheduling orders, allow courts to set limits and mark off boundaries without regard to which side stands to gain or lose. When courts apply procedural rules dispassionately and neutrally to every litigant, everyone else knows exactly what is expected of them and, hopefully, will rise to the occasion. Trial court’s must consider requests for extensions to the deadlines set forth in pretrial scheduling orders in view of the unique circumstances of the each case, including the effect an extension would have on other scheduled parts of the litigation. Here, the pretrial scheduling order provided that continuances would be granted only for good cause shown. Good cause simply means the burden placed on a litigant usually by court rule or order to show why a request should be granted or an action excused. Wife, as the party seeking an extension of the pretrial scheduling order’s deadlines, failed to meet that burden.

The trial court did not err in preventing Wife from presenting exhibits and witnesses at trial other than for rebuttal and impeachment purposes. The trial court’s pretrial scheduling order provided that any exhibit or witness not identified fifteen days before trial would not be received in evidence, except in rebuttal or for impeachment. Wife failed to identify any exhibits or witnesses in accordance with the pretrial scheduling order, and she admitted at trial that she was not prepared and had no exhibits or witnesses to present. Moreover, although the scheduling order preserved Wife's ability to present rebuttal evidence and witnesses, she chose not to do so. There was little reason for the trial court to enter the scheduling order if it was nothing more than a juristic bluff, obeyed faithfully by Husband who filed his list of exhibits and witnesses by the deadline, but ignored by wife, who did not.

2014---deCamp v. deCamp, 64 Va. App. 137
The trial court did not err by refusing to admit updated information from Husband’s expert which the expert acquired during a month trial intermission, after Wife had rested her case. The trial court’s pretrial scheduling order required the parties to exchange exhibits fifteen days before trial. By the time the trial reconvened, Wife had already fully presented her case based upon the evidence available to both parties at the time the trial commenced, and it would have been fundamentally unfair to allow Husband to offer evidence that wife was wholly unaware of until after she rested her case.

2006---Rahnema v. Rahnema, 47 Va. App. 645
To be effective, pretrial deadlines in Rule 1:18 scheduling orders must be enforced by Virginia trial courts.

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