Articles Posted in Family Law

by
Contrary to the conclusions of the lower courts in this divorce case, Richard Levick’s marriage to Deborah MacDougall was not voidable or void ab initio, and therefore, the circuit court had authority to distribute the marital assets consistent with the marital agreement and to continue its adjudication of the divorce proceeding. During a divorce proceeding ten years after the marriage of the parties, Levick asserted for the first time that his marriage to MacDougall was void ab initio, and therefore, he could repudiate a marital agreement requiring him to pay spousal support and to distribute the marital assets. The circuit court agreed and ruled that the marriage was void ab initio. The court of appeals reversed in part, concluding that the marriage was merely voidable, not void ab initio. The Supreme Court reversed, holding that Levick failed to rebut the strong presumption favoring the validity of his marriage. View "Levick v. MacDougall" on Justia Law

Posted in: Family Law

by
Samantha Cucco filed for divorce from Michael Luttrell. The circuit court entered a final decree of divorce that incorporated a Property, Custody, and Support Settlement Agreement (the PSA) executed by the parties. Pursuant to the PSA, the divorce decree provided that Luttrell’s monthly spousal support payments to Cucco would terminate “as a result of action by the Court taken pursuant to [Va. Code 20-109]…relative to cohabitation.” Luttrell later filed a motion for adjustment of spousal support, alleging that Cucco had been cohabiting continuously with her fiancee for at least one year. In response, Cucco argued that because her relationship was with another woman, she was not “cohabiting” within the meaning of section 20-109(A). The circuit court concluded that only opposite-sex couples could cohabit for purposes of section 20-109(A), denied Luttrell’s motion, and awarded Cucco attorney’s fees pursuant to the cost-shifting provision in the PSA. The Court of Appeals affirmed. The Supreme Court reversed the judgment of the Court of Appeals and vacated the award of attorney’s fees, holding that the Court of Appeals erred when it concluded that same-sex couples cannot “cohabit” for purposes of section 20-109(A). Remanded. View "Luttrell v. Cucco" on Justia Law

Posted in: Family Law

by
Gary Wooten purchased property before marrying Iracy Wooten. Gary subsequently executed a deed of trust to secure a loan. Thereafter, Gary conveyed the property to himself and Iracy as tenants by the entirety. Approximately two weeks later, the lender recorded the deed of trust executed solely by Gary. Five years later, the lender filed suit against Gary and Iracy seeking a judicial reformation of the deed of trust to include Iracy as grantor or to declare her interest in the property to be encumbered by the deed of trust. Iracy responded that she knew nothing of the deed of trust or the loan and first learned of them during divorce proceedings with Gary. Meanwhile, a final divorce decree was entered ordering that the property be sold and any remaining proceeds be divided equally between the parties. In the lender’s proceeding, the lender argued that Iracy was judicially estopped from denying that her interest was subject to Gary’s deed of trust and that the divorce decree justified this conclusion. The circuit court granted summary judgment in favor of the lender. The Supreme Court reversed, holding that the circuit court erred in applying the doctrine of judicial estoppel based solely upon the divorce decree. Remanded. View "Wooten v. Bank of Am., N.A." on Justia Law

by
When Paul Lee and Lisa Spoden divorced, Lisa held an ownership interest in Lee’s company, Strategic Health Care Company, Inc. (“SHC”). As part of the divorce proceeding, Lee and Spoden entered into a written agreement (the “Term Sheet”) that operated as a property settlement agreement. Spoden subsequently filed a breach of contract complaint against Lee and SHC claiming that they had violated the Term Sheet. Thereafter, Spoden filed a petition for a rule to show cause against both Lee and SHC. In the contempt proceeding, the trial court concluded that Lee had not violated the Term Sheet and that SHC was not bound by the Term Sheet. Thereafter, Lee and SHC unsuccessfully moved for summary judgment in the breach of contract action based on res judicata. The jury eventually returned a verdict for Spoden and awarded her $138,880 in damages. The Supreme Court reversed in part and remanded, holding that the trial court (1) erred in failing to dismiss Spoden’s claims that had already been decided in the contempt proceeding; (2) erred in excluding evidence related to the trial court’s ruling in the contempt proceeding as it related to the ownership of certain property; and (3) did not err in denying the defendants’ motion to vacate the judgment as excessive. View "Lee v. Spoden" on Justia Law

Posted in: Family Law

by
In this matter concerning the care and custody of the children of Kristin Burns, the circuit court enjoined Burns from pursuing any further action until after she completed certain mental and parental fitness evaluations. On March 25, 2015, the court denied Burns’ motion for leave to file documents in this matter for the reasons stated in its previous order. On the fifteenth day after entry of the March 25, 2015, when her petition for review was due, Burns dispatched the petition to the Clerk’s Office of the Court of Appeals by pre-paid transmittal with a third-party commercial carrier for next-day delivery. The Court of Appeals denied the petition as untimely, concluding that Burns did not file the petition within fifteen days of entry of the March 25, 2015 order. The Supreme Court reversed, holding (1) for purposes of Va. Code 8.01-626, a petition for review is deemed to have been “presented to a judge of the Court of Appeals" when it has been filed with the Clerk’s Office of the Court of Appeals; and (2) therefore, Burns’ petition was timely filed with the Court of Appeals. View "Burns v. Sullivan" on Justia Law

by
Mother and Father (“Parents”) were the parents of twin girls. Mother was a member of the Citizen Potawatomi Nation (“Tribe”), Father was not a member of any tribe, and the children were either members of, or eligible to be members of, the Tribe. The Dinwiddie Department of Social Services (DDSS) filed petitions to terminate Parents’ parental rights. The Juvenile and Domestic Relations District Court (“J&DR court”) denied the petitions. The DDSS appealed. The Tribe and Parents sought to transfer the case to tribal court. The trial court held that good cause existed not to transfer the proceeding to tribal court and denied the motion to transfer. The court then terminated Parents’ parental rights. The court of appeals reversed the trial court's decision on the motion to transfer, vacated the award terminating Parents' parental rights, and remanded. In so doing, the court rejected the traditional “best interests of the child” test in favor of a more limited test involving a substantial risk of harm to a child arising from the transfer to a tribal court. The Supreme Court affirmed and remanded in light of the standards articulated by the court of appeals in Thompson v. Fairfax County Dep’t of Family Servs. View "Dinwiddie Dep’t of Social Servs. v. Nunnally" on Justia Law

by
Shellie Rae Rose filed a petition for a protective order against Jeffrey Paul Stephens, her former boyfriend. After a hearing, the circuit court granted Rose’s petition, concluding that Rose had been reasonably placed in apprehension of bodily injury by Stephens’ actions, which constituted stalking. Stephens appealed, arguing that the evidence did not establish the elements of stalking because Rose failed to show that he directed “an act of violence, force or threat” toward her. The Supreme Court affirmed, holding that there was sufficient evidence to support the circuit court’s finding of stalking on the part of Stephens, and therefore, the court did not err in granting Rose’s petition for a protective order. View "Stephens v. Rose" on Justia Law

Posted in: Family Law

by
Stacy McMahon (McMahon) and Melanie White Wirick (Wirick), formerly Melanie White, were the biological parents of Addison Grace White (Addison). McMahon and Wirick were never married. When Addison reached school age, the parties agreed that McMahon would have primary physical custody of Addison during hte school year and Wirick would have primary physical custody during the summer. McMahon later filed a petition seeking to change Addison’s surname from White to McMahon. Wirick objected to the name change. The trial court denied the petition, concluding that a name change was not in Addison’s best interest. The Supreme Court affirmed, holding that the trial court (1) did not err to the extent that it relied on the holding in Spero v. Heath to determine whether the name change was in Addison’s best interest; and (2) did not err in concluding that the name change was not in Addison’s best interest. View "McMahon v. Wirick" on Justia Law

Posted in: Family Law

by
Husband filed a complaint seeking a divorce from Wife. The circuit court granted the divorce and equitably distributed Husband’s and Wife’s property and debt. Husband appealed the equitable distribution award because it classified the increase in value of Husband’s investment/brokerage account as marital property, despite the fact that Husband owned the account before the marriage and both Husband and Wife agreed the account was separate property. The court of appeals reversed, concluding that Wife, the non-owning spouse, had the burden of proving that the substantial appreciation in the value of the account was proximately caused by Husband’s significant personal efforts during the marriage and was therefore marital property, and that Wife failed to carry her burden. The Supreme Court reversed, holding that the court of appeals erred in determining that the non-owning spouse has the initial burden of proving that significant personal efforts or marital contribution caused a substantial increase in the value of separate property. Remanded. View "David v. David" on Justia Law

Posted in: Family Law

by
Child was conceived in vitro using Father's sperm and Mother's egg. After Child was born, Father voluntarily signed an acknowledgment of paternity jointly with Mother pursuant to Va. Code 20-49.1(B)(2). The couple later separated, and Father filed a petition to determine parentage and establish custody and visitation, arguing that the acknowledgment of paternity created a final and binding parent-child legal status between Father and Child. Mother filed pleas in bar asserting that Father was barred from being Child's legal parent because he and Mother were never married and Child was conceived through assisted conception. The circuit court sustained the pleas in bar and dismissed the remainder of Father's petition seeking custody and visitation. The court of appeals reversed. The Supreme Court affirmed, holding (1) the assisted conception statute does not operate to divest individuals of the ability to establish parentage solely due to marital status under the circumstances presented in this case; (2) the assisted conception statute does not violate equal protection but, if not harmonized with another statute to allow unmarried fathers parentage of their children, would violate constitutional rights to due process; and (3) acknowledgments of paternity executed pursuant to section 20-49.1(B)(2) are enforceable. View "L.F. v. Breit" on Justia Law