§ 9-1.   Alienation of Affections
§ 9-2.   Bankruptcy
§ 9-3.   Change of Name
§9-4.    Duress
§9-5.    Fraud   
§9-6.    Husband-Wife
(A)       Liability
(B)       Death

Chapter 9


§ 9-1.   Alienation of Affections

2016 --- McGrath v. Dockendorf, 292 Va. 834
Virginia’s “Heart Balm” Statute, Code of Virginia § 8.01-220, prohibits actions for alienation of affections; breach of promise to marry, and criminal conversation. However, the statue does not bar an action in detinue to recover a conditional gift, such as an engagement ring, that was given in contemplation of marriage.

§ 9-2.   Bankruptcy

2008---Marvin v. Marvin, 51 Va. App. 619
An award for attorney’s fees incurred by a mother in a contempt proceeding arising out of a father’s violation of a custody and visitation order was “in the nature of support of the child” and, thus, a “domestic support obligation” as defined by 11 U.S.C. §101(14A). Accordingly, the trial court did not err in exempting the attorney’s fees from a discharge in bankruptcy.
Bankruptcy courts and state courts maintain concurrent jurisdiction to decide exceptions to discharge arising under 11 U.S.C. §523.

2008--- Stacy v. Stacy, 53 Va. App. 38
Under bankruptcy law, an obligation “in the nature of support” that benefits an ex-spouse is non-dischargeable even if the obligation is interpreted by the court not to constitute spousal support under state law.

2008--- Rogers v. Rogers, 51 Va. App. 261
A court may not order a lump sum spousal support award to compensate a non-debtor spouse for the other spouse’s discharge of marital obligations in bankruptcy, as this would impermissibly intrude upon federal bankruptcy jurisdiction.  However, where a material change in circumstances due to bankruptcy otherwise occurs, a court may modify a spousal support order.

Trial court erred in basing an award of spousal support to wife upon the presumption that Husband would receive a discharge of joint credit card debt in pending bankruptcy proceedings.  The Court’s decree ordering husband to pay the credit card debt as part of its equitable distribution award was a valid, enforceable obligation that qualifies as “debt” for purposes of the bankruptcy statute prohibiting the discharge of certain debts.   Therefore, the Court erred in speculating as to the future results of the pending bankruptcy proceeding in setting its spousal support award.

Congress amended the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 to prohibit discharge of debt “to a spouse, former spouse, or child of the debtor…that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a government unit.”  The plain language of the statute provides that all debts meeting the statutory criteria of Bankruptcy Code §523(a)(15) are nondischargeable. 

Although the bankruptcy statute speaks of debts to “a spouse, former spouse, or child of the debtor,” courts have held that joint credit card debt allocated to one spouse in a property settlement agreement or court decree may fall within the scope of the statute.  As the court noted in Douglas v. Douglas, 369 B.R. 462 (Bankr. E.D. Ark. 2007), “in the case of an obligation to pay a debt owed to a third party, it is the obligation to hold the spouse or former spouse harmless that is presumptively nondischargeable.”

2000--- Brogan v. Brogan, 31 Va. App. 769
Husband’s obligation to pay Wife a portion of his pension was not a debt that would be dischargeable in post-divorce bankruptcy.

2000--- Fleming v. Fleming, 32 Va. App. 822
Where Wife files for bankruptcy thereby avoiding agreement to pay debt, court cannot order spousal support in absence of requests for spousal support and for rescission.

1996--- Allocca v. Allocca, 23 Va. App. 571
Husband's discharge in bankruptcy of a joint debt, acquired by the parties after entering into a settlement agreement, did not constitute a repudiation of the parties' settlement agreement where Husband had fully performed all obligations owed to wife under the agreement prior to seeking the discharge. The parties acquired the debt jointly and severally during a brief period of reconciliation after having entered into the settlement agreement, and as such, the joint debt in question was never addressed in the agreement. Because husband owed no duty to wife pursuant to the agreement in relation to this debt, his discharge of the debt in bankruptcy did not constitute repudiation sufficient to allow wife to rescind the agreement.

1995--- Bogart v. Bogart, 21 Va. App. 280
A bankruptcy court’s refusal to approve a settlement agreement between husband and wife, on grounds that the agreement was not in the best interest of the debtor-wife and her creditors, did not deprive the circuit court of jurisdiction to determine the enforceability of the agreement and equitable distribution in general. The bankruptcy court specifically lifted its stay and allowed the state court to proceed on the issues of equitable distribution, and retained jurisdiction over only the allowance of claims against wife’s estate “as that estate shall be constituted pursuant to the Order of the State Court.”

1994--- Carter v. Carter, 18 Va. App. 787
Trial court did not err in allowing wife to rescind the settlement agreement entered into by the parties, due to husband's seeking and accepting discharge in bankruptcy from his obligations to wife under the agreement. The agreement contained a clause providing either party the right to sue for breach or to rescind the agreement in the event the other party failed to perform his/her obligations under the agreement. By obtaining a discharge of debts owed to wife in bankruptcy, husband "failed to perform" his obligations under the agreement, thereby entitling wife to rescind.

§ 9-3.   Change of Name

1996--- Long-Molnar v. Dean, Va. Ct. of Appeals, Unpublished, No. 0464-96-1
Trial court did not err in granting father’s request to change the child’s last name to include the last name of the father. Despite the father’s failure to acknowledge the child as his own at birth, when a subsequent paternity test revealed that the child was indeed the father’s, the father began exercising visitation and paying support as ordered by the court. Moreover, a psychologist recommended the change in name and testified that it would be in the best interests of the child.

§ 9-4.   Duress

§ 9-5.   Fraud

2014---White v. White, Va. Ct. of Appeals, Unpublished, No. 0903-14-4
The trial court did not err by registering a foreign child custody order over Mother’s extrinsic fraud challenge. Extrinsic fraud requires a showing that the prevailing party kept the unsuccessful party away from court by a false promise of compromise, or purposely kept the unsuccessful party in ignorance of the suit. In all such instances, the unsuccessful party is really prevented from having a trial by the fraudulent contrivance of his adversary. Here, Father allegedly told Mother before the trial that he would not attend so long as the Swiss authorities prevented Mother from leaving Switzerland. Nevertheless, Father traveled to Virginia and attended the trial in Mother’s absence. Regardless, Father’s statement to Mother did not prevent her from having a trial because she was ably represented by her attorney during the trial in Virginia.

2014--- Harris v. Harris, Va. Ct. of Appeals, Unpublished, No. 2123-13-2
The trial court did not err in dismissing Husband’s complaint requesting rescission of the parties’ post-nuptial agreement, which the trial court had incorporated into the final decree of divorce entered over four years earlier. Void judgments, including those procured by extrinsic fraud, can be attacked at any time directly or collaterally. Extrinsic fraud consists of conduct that prevents a fair submission of the controversy to the court. A post-divorce claim of fraud in the procurement of a marital agreement does not amount to extrinsic fraud because it involves a challenge that could have been raised in the divorce proceedings. Here, Husband failed to demonstrate that Wife engaged in extrinsic fraud because he only alleged that Wife’s concealment of debts induced him to sign the agreement, an argument that Husband could have raised during the divorce proceedings.

2003--- Buchanan v. Buchanan, 266 Va. 207
In an appeal from consolidated divorce and fraudulent conveyance proceedings, Wife was properly permitted to pursue payment from Husband under the fraudulent conveyance statute, Va. Code §55-80, where Husband conveyed $4,750 and $12,250 respectively to his father and mother, and the trial court’s orders directing that a special commissioner hold certain funds did not create constructive trusts.  Wife was an “other person” who “may be” entitled to payment under the fraudulent conveyance statute.

1993--- Peet v. Peet, 16 Va. App. 323
Fraud consists of a false representation of a material fact, made intentionally and knowingly, with the intent to mislead, upon which the defrauded person relies to his detriment. Husband did not prove a misrepresentation sufficient to establish fraud where wife told husband that his daughters, whom husband had subpoenaed to testify as to perjury committed by wife at a prior hearing, would not be present for the hearing. Although wife procured their absence at the hearing by misrepresenting to them that the case had settled, she made no such false representation to husband, who retained the option to compel their attendance through enforcement of his subpoenas rather than sign off on the consent order.

1989--- Derby v. Derby, 8 Va. app. 19
To have an agreement declared invalid on grounds of unconscionability, constructive fraud, or duress, the party contesting the agreement must prove the allegations by clear and convincing evidence. 

“Constructive fraud” is a breach of legal or equitable duty which, irrespective of moral guilt, is declared by law to be fraudulent because of its tendency to deceive others or violate confidence.  Thus, to determine fraud, the relationship between the parties and the duties, if any, owed to one another define the standards by which their conduct and transaction will be judged.  Although marriage is a confidential relationship of trust imposing the highest fiduciary duty upon spouses in their intermarital dealings, that fiduciary or confidential relationship ends when husband and wife separate and employ attorneys to negotiate an agreement in settlement of their property rights.

Trial court erred in finding that wife committed fraud by approaching husband with a settlement agreement, which wife’s attorney had sent to husband’s attorney but which husband’s attorney had yet to talk with husband about, and having husband execute the agreement under the mistaken impression that doing so would allow him to save his marriage.  Although evidence supported the trial court’s finding that husband signed the agreement hoping to save his marriage, the recitals in the agreement which he signed acknowledged that a divorce suit was pending and that the agreement would be ratified, approved, and incorporated into a final order of divorce.  Wife did not misrepresent or conceal the terms or effect of the agreement or do any act sufficient to constitute fraud.  Wife owed no fiduciary duty to husband, and did not act fraudulently by simply using to her advantage the fact that husband may have been fostering some hope of reconciliation.

1995--- McFadden v. McFadden, Va. Ct. of Appeals, Unpublished, No. 2086-94-2
Although blood test results indicated that husband was not the father of one of the children of the parties, husband failed to make a prima facie case of fraud by wife with regard to the paternity of the child. Wife testified that she was shocked to learn the results of the test, and testified that though she never disclosed to husband or anyone else that she was raped during the marriage, she nonetheless had no reason to believe that husband had not fathered the child. Based on the evidence presented, the trial court did not err in finding that husband failed to establish that wife had intentionally and knowingly made a false representation of a material fact with the intent to mislead husband.

1991--- Batrouny v. Batrouny, 13 Va. App. 441
The trial court did not err in finding that Wife had intentionally defrauded the court by representing one of the parties’ two children as born of the marriage when she knew Husband was not the biological father. When charging a party with fraud, the charging party must prove “a false representation, of a material fact, made intentionally and knowingly, with intent to mislead, reliance by the party misled, and resulting damage to the party misled.” Wife admitted that she had always known the child was not born of the marriage and a paternity test confirmed that Husband was not the child’s father. When combined with Wife’s assertion in her pleadings that the child was of the marriage, this evidence was sufficient for Husband to carry his burden of proving each of the factors of fraud by clear and convincing evidence. Although Husband’s paternity had been tacitly determined in the prior divorce action, principles of collateral estoppel may not be invoked to sustain fraud. Accordingly, Husband had no obligation to support the child of whom he was not the biological father.

1929 --- Haynes v. Bunting, 152 Va. 395
The trial court did not error in ruling to set aside a deed from grantor mother to grantee son. The court held that the transaction between mother and son contained several suspicious circumstances that shifted the burden to the son to dispel the conclusion of fraudulent intent, and the son did not meet the burden.

§ 9-6.   Husband – Wife

(A)  Liability

(B)  Death

2013--- Hillman v. Maretta, U.S. Supreme Court, No. 11-1221
The Federal Employees’ Group Life Insurance Act of 1954 (FEGLIA) established a life insurance program for federal employees. Under FEGLIA, a federal employee may designate a beneficiary to receive the proceeds of his life insurance at the time of his death. A Virginia statute, Va. Code §20-111.1(A) (“Section A”), provides that a divorce or annulment revokes a beneficiary designation in any written contract by a spouse which provides for the payment of any death benefit to the other spouse. In the event that Section A is preempted, Va. Code §20-111.1(D) (“Section D”) creates a cause of action which renders the former spouse liable for the amount of the insurance proceeds to the person who would have received them had Section A continued in effect.

In 1996, Husband named his then-spouse, Judy Maretta as the beneficiary of his FEGLIA policy. Husband and Maretta divorced in 1998. Four years later, he married Jacqueline Hillman. Husband never changed his FEGLIA policy, and, as a result, it continued to identify Maretta as the beneficiary at the time of his death in 2008. Hillman filed a claim for the proceeds of Husband’s policy, but the FEGLIA administrator informed her that the proceeds would accrue to the named beneficiary, Maretta. Maretta filed a claim for the proceeds and collected $124,558.03.

Hillman sued Maretta in Virginia court, seeking recovery of the proceeds under Va. Code §20-111.1(D). The parties agreed that Section A is pre-empted by federal law. Maretta argued that Section D is also pre-empted under federal law. A Virginia circuit court found Maretta liable to Hillman under Section D for FEGLIA policy proceeds. The Virginia Supreme Court reversed, concluding that Section D is pre-empted by FEGLIA. The U.S. Supreme Court affirmed the decision of the Supreme Court of Virginia and held that Section D of the Virginia statute is pre-empted by FEGLIA. State law is preempted to the extent of conflict with a federal statute. Such conflict occurs when compliance with both laws is impossible or when the state law interferes with the purposes and objectives of Congress. The Court determined that Section D conflicts with FEGLIA because it interferes with Congress’ objectives to allow federal employees to select a beneficiary and to ensure that insurance proceeds are actually paid to that beneficiary.

2012--- Maretta v. Hillman, 283 Va. 34
The trial court erred in finding that Va. Code §20-111.1(D) was not preempted by federal law governing the Federal Employees’ Group Life Insurance Act (FEGLIA), and thus erred in finding that a former spouse who remained the designated beneficiary of her former husband’s life insurance was personally liable to husband’s current widow for any benefits the former spouse received.

Va. Code §20-111.1(A) mandates that a decree of annulment or divorce automatically revokes any revocable beneficiary designation contained in a then-existing written contract providing for the payment of a death benefit to the other party. Va. Code §20-111.1(D) provides that, in the event §20-111.1(A) is preempted by federal law, a former spouse who receives payment of a death benefit to which she would not be entitled, because of §20-111.1(A), is personally liable to the person who would have received the benefit but for the preemption of §20-111.1(A).

Federal law governing payment of FEGLIA benefits requires payment to the designated beneficiary, and only the designated beneficiary. Congress, in passing laws governing FEGLIA, evinced a clear intent to establish an inflexible rule that the insured’s choice controls, absolutely. Thus, state law which creates a personal liability to that designated beneficiary to some other individual nullifies the insured’s choice and frustrates the deliberate purpose of Congress. Va. Code §20-111.1(D) conflicts with federal law governing FEGLIA by standing as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, and thus, is preempted by federal law. (Note: Opinion contains thorough treatment of general law regarding preemption.)

2012--- Keith v. Lulofs, Va. S.Ct., No. 110433
The trial court did not err in refusing to find that “mirror” wills executed by husband and wife were irrevocable upon the death of either before the other. Unlike contracts, wills generally are unilaterally revocable and modifiable. A will does not become irrevocable or unalterable simply because it is drafted to “mirror” another testator’s will. If, however, reciprocal testamentary provisions are made for the benefit of a third party, there is sufficient consideration for the contractual element of a will to entitle the beneficiary to enforce the agreement in equity, provided the contract itself is established. Proof of the contractual nature of an agreement between testators memorialized in reciprocal wills must be “clear and satisfactory.” Such proof may expressly appear in the language of the instrument, or it may be supplied by competent witnesses who testify to admissions of the testators, or it may result as an implication from the circumstances and relations of the parties and what they have actually provided for by the instrument.

Here, no evidence existed to establish that mirror wills executed by husband and wife were contractual in nature. Moreover, despite argument from the appellant-beneficiary, the fact that the husband and wife purchased a life insurance policy for purposes of estate planning seven years after the execution of the mirror wills was insufficient alone to establish that the wills constituted a contract between the parties.

2012--- Tuttle v. Webb, 284 Va. 319
If property was transferred by the decedent during the marriage with the written consent or joinder of the surviving spouse, the value of the transferred property is not included in the transferring spouse’s augmented estate. See Virginia Code §64.1-16.1(B)(i). A check written from the husband to the wife out of jointly owned funds represented the husband’s consent to the transfer of joint property to the wife alone, but it did not signify his consent to remove the property from or diminish the value of the wife’s estate. The husband’s written consent to or joinder in the subsequent gift to the son was required, and the circuit court erred in excluding the sum from the wife’s augmented estate.

2004--- Estate of Hackler v. Hackler, 44 Va. App. 51
A divorce suit abates when one party dies while the suit is pending and before a decree on the merits, as death terminates the marriage and therefore renders the divorce suit moot as it relates to the parties’ marital status.

Despite the fact that the trial court entered a show cause against husband, while husband was still alive, for violating pendente lite orders, the trial court erred by entering an order, after husband’s death, that the conservator pay wife $77,000 out of husband’s estate to purge the contempt. Once husband died, the trial court lost jurisdiction to dispose of the contempt holding because the divorce suit itself had abated. A civil contempt may be prosecuted in the cause out of which it arose and not as a separate proceeding. When the jurisdiction to enter a decree in the main cause ends, no jurisdiction survives as to matters purely ancillary to that object.