Litigation Procedure and Law - § 8-20 - § 8-30

§ 8-20. Settlement

§ 8-21. Soldiers and Sailors Civil Relief Act

§ 8-22. Trial

(A) Closing Argument

(B) Continuance

2018--- Oberlander v. Oberlander, Va. Ct. of Appeals, Unpublished, No. 1817-17-1
The trial court’s denial of husband’s motion to continue did not deprive him of the right to retain counsel of his choice. After husband’s prior counsel withdrew from representation, husband had nearly three months prior to trial obtain new counsel, and the record contains no information about why this was not enough time for husband to hire a new attorney. Further, the record does not show what efforts husband had undertaken to hire new counsel or how much additional time he needed. Finally, husband gave no explanation for why he waited until only one week before trial before moving to continue.

2017---Reaves v. Tucker, Va. Ct. of Appeals, 67 Va. App. 719
The trial court did not abuse its discretion my denying Wife’s oral motion for a continuance made at trial. The decision to grant a motion for a continuance is within the sound discretion of the trial court and must be considered in view of the circumstances unique to each case. The burden is on the party seeking a continuance to show that it is likely that the extension of time will resolve the problem on which the party based its request for the continuance. Here, although Wife was proceeding pro se, she was aware more than six months earlier that the scheduling order had been entered and had set the date for trial. Further, although Wife argued that she should be represented by counsel in a “case of this magnitude,” her lack of representation was not a new circumstance. Her prior attorney had withdrawn by court order entered over three months prior to trial. Further, Wife admitted she was unprepared for trial and had not brought the documents or witnesses she needed. Wife did not argue to the court the length of continuance she was requesting, nor did she give the court assurance that after the continuance she would be better prepared to argue her case. Accordingly, it was not error for the trial court to proceed with the trial on the day it was scheduled.

2015---Boatwright v. Wise County Department of Social Services, Va. Court of Appeals, No. 0789-14-3
Father was unable to establish an abuse of discretion in the trial court’s granting of a continuance, nor a resulting prejudice, because he failed to object to the other party’s motion for the continuance.

2014---Wroblewski v. Russell, 63 Va. App. 468
Trial court did not err in refusing to grant wife a continuance where the matter had already been continued on Wife’s motions three times and Wife had over two months to obtain new counsel prior to the final hearing and chose not to do so. A circuit court’s ruling on a motion for a continuance will be rejected on appeal only upon a showing of abuse of discretion and resulting prejudice to the movant.

2013---Collins v. Collins, Va. Ct. of Appeals, Unpublished, No. 0862-12-4
Upon hearing argument on both parties’ motions to reconsider, the trial court did not err in granting husband a continuance to obtain a full audit of his business by a Certified Public Accountant while the case remained in the breast of the court. A rehearing will be granted if a petitioner demonstrates either: (1) error on the face of the record; or (2) some legal excuse for his failure to present his full defense at or before the time of entry of the decree. The husband produced substantial evidence, either not produced or not available at the earlier trial, which demonstrated an error on the face of the record.

2013--Willson v. Willson, Va. Ct. of Appeals, Unpublished, No. 1187-12-2
The trial court did not err in denying a motion for continuance despite Wife’s claim that medical issues prevented her from retaining counsel until shortly before trial. Wife filed a Motion for Continuance on January 24, 2012 for a trial set for March 9, 2012 based on claims that medical issues prevented her from retaining counsel until January 20, 2012. She also claimed that her medical issues prevented her from assisting her counsel in preparing for trial and participating in trial on March 9, 2012. The trial court did not abuse its discretion in declining to grant the continuance given that Wife presented no corroborating evidence at her motions hearing, showed no prejudice from the denial of her motion and had the opportunity to present her case and be represented at trial.

2009---Tye v. Tye, Va. Ct. of Appeals, Unpublished, No. 0833-08-1
Trial court did not abuse its discretion in denying husband’s motion for continuance, which husband sought on the morning of trial. Husband sought the continuance so that his third attorney, whom husband had retained the morning of the trial but who was unable to attend on that date, could represent him. Trial court noted husband’s failure to cooperate with his first two lawyers, both of whom had withdrawn, husband’s failure to respond to discovery, husband’s previous failure to comply with numerous court orders, and the fact that the trial date had been set five months earlier.

1986---Venable v. Venable, 2 Va. App. 178
In considering a request for continuance, the court is to consider all the circumstances of the case.

(C) Juries

(D) Motion to Strike

2018 --- Chung v. Chung, Va. Ct. of Appeals, Unpublished, No. 0325-18-4
The trial court erred in awarding Wife spousal support where it granted Husband’s motion to strike Wife’s complaint for divorce which contained the only request for spousal support by either party. The law in effect when the code was filed governs, so the legislative enactment changing the law on this issue that was enacted during the pendency of this case did not apply.

2015---Groo v. Burton, Va. Ct. of Appeals, Unpublished, No. 0408-15-4
The standard of review for a motion to strike is whether the plaintiff’s evidence supports a prima facie case. The trial court must accept the plaintiff’s evidence as true, granting to it all reasonable inferences that can be derived therefrom, and then determine whether it is conclusively apparent that the plaintiff has proven no cause of action against the defendant.

2014---Wroblewski v. Russell, 63 Va. App. 468
Striking a pleading has the effect of withdrawing any claims rooted in that pleading from consideration by the court. A claim that is grounded upon a stricken pleading does not linger on in special form before the court – it is interred and removed from consideration.

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

2012---Jordan v. Jordan, Va. Ct. of Appeals, Unpublished, No. 0698-11-2
A motion for summary judgment is not in effect a motion to strike. A motion for summary judgment is granted only where there are no material facts genuinely in dispute. In contrast, a motion to strike tests the legal sufficiency of a pleading to determine whether the litigant has made a prima facie case. Finding that there are no material facts genuinely in dispute is not the same as accepting as true all evidence favorable to a plaintiff and any reasonable inferences that may be drawn from such evidence. (Citing Chaplain v. Chaplain, 54 Va. App. 762 (2009)).

2010---Trump v. Trump, Va. Ct. of Appeals, Unpublished, No. 2475-09-4
The trial court erred in granting wife’s motion to strike husband’s evidence in support of his motion to modify child and spousal support. Although wife attempted to contradict husband’s evidence of reduced revenue from his business by showing that husband’s savings had increased during the period in which husband alleged the decrease in revenue, the trial court, when evaluating the motion to strike, was required to accept as true all evidence favorable to husband and any reasonable inferences deducible therefrom, rather than judge the weight and credibility of the evidence, unless the evidence defied logic and common sense.

2009---Chaplain v. Chaplain, 54 Va. App. 762
The standard that governs the trial court’s review of the plaintiff’s evidence before granting a motion to strike requires the trial court to accept as true all the evidence favorable to the plaintiff as well as any reasonable inference a factfinder might draw therefrom which would sustain the plaintiff’s cause of action. The trial court is not to judge the weight and credibility of the evidence, and may not reject any inference from the evidence favorable to the plaintiff unless it would defy logic and common sense.

2005---South v. South, Va. Ct. of Appeals, Unpublished, No. 0700-04-2
Trial court’s failure to apply the correct legal standard in ruling on a mother’s motion to strike the evidence presented by the grandparents was harmless error. In order to survive the motion to strike, the grandparents’ had to establish a prima facie case that the child might suffer actual harm if custody was granted to the mother. The trial court incorrectly sustained the motion based on the grandparent’s failure to prove either that custody with them would be in the child’s “best interests,” or that the mother was “unfit.” The Court of Appeals held that the grandparents failed to make a prima facie case as they presented no evidence of any actual harm to the child if placed in mother’s custody.

1998---Shooltz v. Shooltz, 27 Va. App. 264
Motion to strike speculative expert testimony granted and upheld on appeal.

(E) Non-Suit

2013---Tureson v. Open System Sciences of Virginia Inc. (Maxfield), Fairfax Circuit Court, No. CL 2012-323.
The circuit court held that an attorney’s fee award cannot include fees from the parties’ nonsuited case, even though the parties’ agreed to incorporate the discovery from the nonsuited case into the subsequent action. On November 8, 2010, the Plaintiff sued the Defendant alleging, inter alia, breach of contract. The Plaintiff nonsuited the action prior to trial. On January 6, 2012, the Plaintiff filed a subsequent suit. The parties agreed to incorporate the discovery from the previous, nonsuited action into the current action. The jury returned a defense verdict on the breach of contract claim. The Defendants claimed attorney’s fees and costs. The Plaintiff challenged the court’s ability to grant attorney’s fees for work on the nonsuited action, despite the parties’ consent order allowing previous discovery to apply to the second action. The underlying contract provided for attorney’s fees and reasonable costs to the “prevailing party” in litigation. The court determined that the Defendants could not recover attorney’s fees for the nonsuited action because the Defendants did not prevail in the nonsuited action.

2012---Gerensky-Greene v. Gerensky, Va. Ct. of Appeals, Unpublished, No. 1801-11-4
An order granting non-suit is subject to the provisions of Rule 1:1, and, like all final judgments, remains under control of court for 21 days after entry. (Citing Johnson v. Woodard, 281 Va. 403 (2011)). However, the trial court may avoid the application of the 21-day period by including specific language in the order that the court is retaining jurisdiction to address matters still pending before the court. A mere indication that the court intends to rule on pending matters, however, is insufficient to negate the finality of the order.

The trial court retained jurisdiction to consider a motion for sanctions more than 21 days after entering an order granting non-suit, where the court specifically struck through language stating that the order was final and handwrote “and this cause is continued.”

Motions to modify custody and visitation brought under Va. Code §20-108 constitute a “cause of action” or “claim” subject to nonsuit under Va. Code §8.01-380.

The trial court did not err in granting mother’s nonsuit of her motion to modify custody and visitation. The parties had not yet concluded the submission of oral arguments, and thus, the case had not yet been submitted to the court for decision.

2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
Trial court did not err in denying mother’s motion to nonsuit, despite the fact that the motion was made prior to the case having been submitted to the judge for final decision. In cases where allegations of child sexual abuse have been presented, and a preliminary protective order has been issued pursuant to those allegations, an alleged abuser’s right to nonsuit must be subordinate to the welfare of the child. Because both the father and the guardian ad litem objected to the nonsuit, and because the mother, rather than a true plaintiff, was actually a respondent and subject to the protective order herself, allowing mother to nonsuit the case would subvert the purposes of Va. Code §16.1-253. The trial court properly recognized that, though the petition was originally brought in the name of the mother, it was brought for the benefit of the child. Therefore, the mother’s right to advocate for the protective order on behalf of the child could be transferred to another party of interest – namely, the father and/or the guardian ad litem.

2010---Sharman v. Gillepsie and Hakes, Va. Ct. of Appeals, Unpublished, No. 0140-09-2
Generally, cross petitions filed after a motion for nonsuit has been filed need not be considered in a court’s decision to grant or deny a nonsuit.

2007---Ipsen v. Moxley, 49 Va. App. 555
Husband voluntarily taking a nonsuit in a pending divorce case does by operation of law terminate Wife’s right to further pendente lite spousal support. However, if there is a juvenile spousal support order that was granted prior to the divorce proceeding, the granting of the voluntary nonsuit automatically and effectively restores the juvenile court’s jurisdiction and operation of its prior support order.

(F) Opening Statements

(G) Stipulations

2015 --- Ozfidan v. Ozfidan, Va. Ct. of Appeals, Unpublished, No. 1265-14-2
In its equitable distribution award, the trial court erred in declining to award Husband a credit toward his share of the marital debt, when Wife had argued said credit to be fair and appropriate. Although Wife’s generalized request for relief in her divorce complaint may have enabled the trial court to deny the credit to Husband, Wife submitted a document during trial indicating that Husband should receive a credit toward the apportionment of marital debt and argued the same during closing argument. Thus, Wife placed a specific limitation on the generalized relief she sought in her complaint.

2011--- Parikh v. Parikh, Va. Ct. of Appeals, Unpublished, No. 1989-10-4
A stipulation contemplates an agreement between counsel respecting business before a court. If the stipulation was agreed to there can be no objection to it.

2011--- Anonymous C v. Anonymous B, Va. Ct. of Appeals, Unpublished, No. 2232-09-2
The trial court did not err in refusing to allow mother to call the child to testify where the parties had previously stipulated that the child was “unavailable” pursuant to Va. Code §63.2-1522. Considering that the parties agreed to the stipulation and the court found the stipulation to be in the best interests of the child at the outset of the trial, the child was, for all intents and purposes, no longer available to testify. Once a valid stipulation has been agreed to, there can be no objection to it.

2006---Rahnema v. Rahnema, 47 Va. App. 645
A stipulation of counsel, particularly when relied upon by a court, cannot later be unilaterally withdrawn.

2004---Boedeker v. Larson, 44 Va. App. 508
Trial court did not err in binding husband to his original agreement regarding the share of his military bonus that wife was entitled to receive. Despite the fact that husband changed his position regarding whether wife was entitled to the bonus at all when he filed his motion to reconsider, the trial court found that, at the initial hearing, wherein husband admitted that wife was entitled to receive a share of the bonus, husband and wife, through their attorneys, agreed upon the amount that wife was to receive.

(H) Witness Examination

2007---Campbell v. Campbell, 49 Va. App. 498
Trial court abused its discretion, as a matter of law, by preventing Husband from cross-examining Wife’s witnesses due to the time limits it imposed and that such error was not harmless.

2003---Johnson v. Commonwealth, 40 Va. App. 605
Allowing a child rape victim to testify via two-way closed circuit television did not violate the Confrontation Clause, as it still afforded the Defendant the opportunity for contemporaneous cross-examination, still required the child witness be found competent to testify, still required the witness to testify under oath, and allowed for the judge, jury, and defendant to be able to view the demeanor of the witness as she testified.

2002---Parrish v. Commonwealth, 38 Va. App. 607
Trial court did not err in allowing a six-year-old child to testify via closed-circuit television in criminal prosecution against father for sexual abuse, after finding, based on expert testimony that the child would suffer severe emotional trauma if forced to testify in open court, that the child was “unavailable” to testify. The expert testified that the child had attention deficit problems, was not a verbal child, did not deal with stress well, and exhibited significant behavioral problems whenever her future court appearance was mentioned.

1986---Venable v. Venable, 2 Va. App. 178 (1986)
When a trial court, in the exercise of its discretion, holds an ore tenus hearing, and one of the parties requests an opportunity to be present, to be heard, and to cross-examine adverse witnesses, due process requires that the court afford the litigant that opportunity. However, the trial court is not required to exercise that opportunity for the litigant. It is not the responsibility of the court to schedule the litigants depositions, or to subpoena the witnesses.

1985 --- Massey v. Commonwealth, 230 Va. 436
The trial court improperly excluded a witness’s corroborative testimony. Corroborative testimony and cumulative testimony are not the same thing. Cumulative testimony is repetitive testimony that restates what has already been said and adds nothing to it. It is testimony of the same kind and character as that already given. Where evidence is merely cumulative, its introduction may be limited by the court. Corroborative evidence is evidence that does not emanate from the party’s mouth, does not rest wholly upon the party’s credibility, but is evidence that adds to, strengthens, and confirms the party’s testimony. In this case, the witness offered eyewitness testimony regarding the behavior of the parties prior to the defendant’s alleged rape of the victim. The witness’s testimony contained facts not mentioned by the defendant or any other witness and corroborated the defendant’s claims regarding the victim’s conduct.

1912---Smith v. Stanley, 114 Va. 117
The general rule is that, during cross-examination, if the party wishes to cross-examine a witness as to matters other than those stated in the examination-in-chief, he should do so by making the witness his own and calling him as such in the progress of the case.

(I) Motion to Rehear, Reconsider, Re-open Case

2011---Barrett v. Comm. of Va., DSS, DCSE, Va. Ct. of Appeals, Unpublished, No. 1381-10-3
The trial court did not err in allowing the petitioner to reopen her case immediately after the respondent’s motion to strike, for purposes of allowing the petitioner to put on evidence regarding support arrearages. Though the traditional standard for motions to rehear or reopen is to correct an error on the face of the record or to admit and consider newly discovered evidence, where the request to reopen the case occurs before the entire record is closed, the trial court has the discretion to allow for the additional presentation of evidence to ensure that the whole case is presented for the best advancement of the ends of justice.

2011--- Carr v. Carr, Va. Ct. of Appeals, Unpublished, No. 2704-10-4
Trial court did not err in denying mother’s motions for clarification and for reconsideration without granting mother a hearing for purposes of receiving testimony or evidence on the motions. The mother had filed numerous motions and the court had held two evidentiary hearings prior to the entry of the final order. Mother’s motion for clarification and motion for reconsideration raised no new issues. Thus, the court did not err in denying the motions without first conducting a hearing.

2010---Buniva v. Buniva, Va. Ct. of Appeals, Unpublished, No. 1669-09-2
After a court has concluded an evidentiary hearing during which each party had ample opportunity to present evidence, it is within the court’s discretion to refuse to take further evidence on the subject. To establish entitlement to rehearing, a petitioner must show either an error on the face of the record or some legal excuse for his failure to present his full defense at or before the time of the entry of the decree. (Citing Holmes v. Holmes, 7 Va. App. 472 (1988)).

The trial court did not err in refusing to grant wife a rehearing for purposes of presenting expert testimony by her accountant as to the tax consequences of her requested spousal support award, despite wife’s argument that she had not secured the witness prior to trial because she was under the mistaken impression that the tax consequences of any support award were not in dispute. Wife had ample time prior to trial to secure the witness, and moreover, failed to ask for a continuance before or during the evidentiary hearing for that very purpose.

1998---Vokes v. Vokes, 28 Va. App. 349
The thirty-day period of Rule 5A:6(a) cannot be tolled by either the filing of a post-judgment motion to set aside or reconsider the judgment or the pendency of such a motion on the thirtieth day after final judgment. In order to toll the limitations of Rule 5A:6(a) and Rule 1:1, the trial judge must do more than merely express a desire to consider action or take the issue under advisement; rather, the trial judge must issue an order modifying, vacating, or suspending the order within twenty-one days of entry.

Statement in final order that father’s motion to transfer custody “shall remain on the docket of this court for further hearing” was insufficient to toll the thirty-day period of Rule 5A:6(a), where the trial court expressly stated on the record when entering the order that the sole purpose of the future hearing was to hear “after-discovered evidence” on mother’s motion to rehear rather than to rehash that which had already been presented.

The trial court lacked jurisdiction to award father attorney’s fees and guardian ad litem costs upon denial of mother’s motion to rehear, as more than twenty-one days had passed since the court entered a final order granting husband’s motion for custody, upon which mother’s motion to rehear was based.

1995---Collins v. Alexander, Va. Ct. of Appeals, Unpublished, No. 0168-95-2
In order to demonstrate entitlement to a rehearing, a petitioner must show either an “error on the face of the record, or...some legal excuse for his failure to present his full defense at or before the time of entry of the decree.”

(J) Due Process

2017---Tidwell v. Late, Va. Ct. of Appeals, No. 1388-16-4
The trial court did not violate Father’s due process rights by refusing to read Father’s pre-trial brief. Due process of law requires that a person shall have reasonable notice and a reasonable opportunity to be heard before an impartial tribunal before any binding decree can be passed affecting his right to liberty or property. Here, the Court of Appeals noted that Father did not cite any legal authority, nor could it find any, supporting Father’s argument that a Virginia trial court is required to read a pre-trial brief prior to the hearing on the matter. Moreover, even assuming the trial court was required to read Father’s pre-trial brief, the trial court’s failure to do so resulted in no prejudice to Father because the trial court heard and considered the same evidence and argument as that provided in the pre-trial brief.

2016 --- Stephens v. Chrismon, Va. Ct. of Appeals, Unpublished, No. 1932-15-1
The circuit court did not violate Father’s due process rights by dismissing Father’s case. The certificates of service attached to Mother’s motions and notices of hearing indicated that they were mailed to Father at the same address that was on file with the court. Additionally, Father acknowledged receipt of Mother’s motion for sanctions in a letter to the circuit court and admitted in his briefs to the Court of Appeals that he was at the courthouse on the date of the sanctions hearing, but failed to attend the hearing. Accordingly, the record clearly indicated that Father had reasonable notice of the hearings and that no further notice was necessary.

2014---Menninger v. Menninger, 64 Va. App. 616
The trial court erred by not allowing Husband to present evidence at a show cause hearing. Due process of law requires that a person shall have reasonable notice and a reasonable opportunity to be heard before an impartial tribunal before any binding decree can be passed affecting his right to liberty or property. This due process right includes the right of a party charged with contempt to testify, examine the opposing party, and call witnesses in defense of the alleged contempt. Here, the issue involved a question of whether Husband received a distribution from his retirement account, which Husband denied receiving. The trial court acknowledged that the issue was complex and could not be decided in the thirty minutes scheduled for the hearing. Nevertheless, the court declined to reschedule the hearing and, without allowing Husband an opportunity to present evidence and cross-examine witnesses, entered an order requiring Husband to pay Wife a portion of the alleged distribution.

1991---Eddine v. Eddine, 12 Va. App. 760
The trial court correctly found that pro se Husband’s failure to receive notice because he moved from the marital residence and the court’s jurisdiction without notifying the clerk of his new address did not deprive Husband of due process. The requirements of the due process clause are satisfied if a party has reasonable notice and reasonable opportunity to be heard and to present his claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it. The practicalities and particularities of the case must be considered in determining whether those requirements are reasonably met. An elementary requirement of due process in any proceeding is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection. Such notice must afford a reasonable time for those interested to make their appearance. Husband unquestionably received such notice where he was served with process, made an appearance and had an opportunity to present his objections, appeared and actively participated in the proceeding prior to the entry of a decree of divorce, and appeared and actively participated in Wife’s appeal.

Due process does not require actual notice to a party of the date of a trial or hearing after he or she has been properly made a party to the proceeding. The legislature may prescribe the kind of notice and the manner in which such notice shall be given if it is reasonable under all the circumstances and affords the party affected a reasonable opportunity to be heard. In this case, Code of Virginia § 8.01-319(A) required Husband, as a pro se litigant, to file with the clerk a written statement of his place of residence and mailing address, and to inform the clerk in writing of any changes to his residence and mailing address during the pendency of the action. Thus, Husband’s failure to receive notice because he moved from his residence without notifying the clerk of his new address did not deprive him of due process of law. To hold otherwise would allow a litigant disappointed in the direction litigation might be taking to thwart the authority of the court by leaving the area without notifying the court of his or her new address.

(K) Waiver

2015---MacDougal v. Levick, 66 Va. App. 50
Although Husband had withdrawn various challenges to the validity of the parties’ marital agreement, the trial court did not err in concluding that Husband had not waived his right to challenge the agreement on grounds that the parties’ marriage was a nullity. A waiver is an intentional relinquishment of a known right and it is usually a question for the trier of fact. The essential elements of waiver are knowledge of the facts basic to the exercise of the right and intent to relinquish that right. Waiver of a legal right will be implied only upon clear and unmistakable proof of the intention to waive such right. The burden rests on the party relying on a waiver to prove the elements by clear, precise and unequivocal evidence. Here, at the time Husband withdrew his initial challenges to the parties’ marital agreement, he had not yet discovered the grounds that led to the eventual annulment of the marriage and concurrent invalidation of the marital agreement.

§ 8-23. Venue

§ 8-24. Sanctions

2014---Rogers v. Rogers, Va. Ct. of Appeals, Unpublished, No. 1562-13-4
The trial court did not abuse its discretion in awarding sanctions to Father where Mother filed a motion to enjoin Father from sending child to boarding school approximately six months after a court ruling specifically allowing the Father to do so. A reasonable inquiry by Mother or her counsel should have revealed that the court had previously ruled on this issue.

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