Archives:
October 2004 (PDF) September 2004 (PDF)
August 2004 (PDF)
June/July 2004 (PDF)
April/May 2004 (PDF)
February/March 2004 (PDF)
December 2003/January 2004 (PDF)
October/November 2003 (PDF)
September 2003 (PDF)
July 2003 (PDF)
June 2003 (PDF)
April 2003 (PDF)
March 2003 (PDF)
January 2003 (PDF)
December 2002
October 2002
September 2002
July 2002
June 2002
April 2002
March 2002
January 2002
December 2001
October 2001
September 2001
July 2001
June 2001
April 2001
March 2001
January 2001
December 2000
October 2000
September 2000
July 2000
June 2000
April 2000
March 2000
January 2000

Articles in the following issues are available from the VBA office:
December 1999
October 1999
September 1999
July 1999
June 1999
April 1999
March 1999
January 1999
December 1998
October 1998
September 1998

NOTE: Certain links in past issues' text may no longer be active.

Articles from the VBA Journal, 1975-98
Copies of VBA Journal articles are available from the VBA office, (804) 644-0041 or thevba@vba.org.

Advertising rates and specifications

November 2004
Volume XXX, Number 7 (PDF)

President’s Page:
Law Practice as a ‘High Calling’: Developing a ‘Sense of Where You Are’
E. Tazewell Ellett

Legal Focus/Domestic Relations:
Appellate Pitfalls in Recent Family Law Cases
Lawrence D. Diehl

Legal Focus/Domestic Relations:
12 Simple Rules for Deviating from the Child Support Guidelines
Laura W. Morgan

Legal Focus/Domestic Relations:
Don’t Lose Your Case Before It’s Argued
Shelly R. James

Across the Commonwealth
Bestselling author Dean King will speak at VBA Annual Meeting • Virginia ADR Joint Committee plans programs for January and will celebrate “March is Mediation Month” • Letters of intent for Virginia Law Foundation 2005-06 grants due next month • Dates to remember for 2005 General Assembly and where you can get legislative information

News in Brief

Calendar

President’s Page:
Law Practice as a ‘High Calling’: Developing a ‘Sense of Where You Are’
E. Tazewell Ellett

Look in the mirror.
What do you see?

Looked in the mirror lately? What do you see? I am not talking about your physical appearance. What do you see in terms of the human being and the professional you have always wanted to be?
When we went to law school and embarked on our legal careers, many of us, I am sure, did so with a very clear vision and purpose of practicing law as a “high calling,” and as a means of achieving a fulfilling and enjoyable life. I am confident that most, if not all, of us still have that vision and purpose for our chosen life’s work. Nevertheless, I think we have to acknowledge that we live in a time and a society where strong economic, sociological, and technological forces and trends are buffeting our profession, and our individual professional and personal lives as well. I am concerned that, collectively as a profession, and individually as professionals, we are not giving these forces and trends, and the impacts they are causing, the full measure of attention they deserve.
I submit that our lofty vision and purpose remain as valid today as when we originally set our course in the practice of law, but that in order to fulfill them, each of us must periodically assess the forces and trends currently affecting our law practice and our life, take stock of their impact, and make adjustments to keep us on our desired course, just as a sailor must monitor changes in winds and tides and make the necessary adjustments to his sails to efficiently reach his destination. Borrowing from the title of John McPhee’s popular book about Bill Bradley’s playing days at Princeton, we need to develop “A Sense of Where [We] Are,” and to react accordingly. Our individual health, and our collective health as a profession, depend on it.

Forces and Trends Affecting the Legal Profession
Permit me to focus on some of the forces and trends that I see as impacting most significantly on the legal profession today. While each of us could probably come up with our own equally valid list, I would like to mention a handful that cause me the greatest concern.

1. Economic pressures pushing the legal profession to behave more like a business, and less like a profession.
Our profession is facing significant economic pressures that encourage lawyers and law firms to treat the practice of law more as a business and less as a profession or “calling.” Among the symptoms are significant pressures for both law firm associates and partners to bill ever higher numbers of billable hours, and for partners to bring in more and more business.

2. Technology advances pushing lawyers to work at a faster and faster pace, and virtually every waking hour.
The development of voice mail and e-mail, and the use of cell phones, Palm Pilots, and BlackBerries (or “Crackberries” as they have so aptly been dubbed) have resulted in a faster and faster pace of law practice in which lawyers feel pressure to carry their work with them wherever they are, and to respond on a faster and faster basis. Virtually no time of the day is considered “off limits” for cell phone or Palm Pilot/BlackBerry usage, and clients push for near immediate responses to their requests. As a result, lawyers feel like they are always working, or at least always “on call.”

3. “Generation X” philosophy.
Demographers who have studied “Generation X” indicate that this younger generation, as a whole, is far less interested in joining and participating in groups, and far less loyal to groups they do join, than previous generations. The members of this generation also are more insistent on balancing work and life, and spending more time with their family. This generational philosophy has major ramifications for employers, including law firms, and groups that depend on volunteer members and participants, such as local and statewide voluntary bar associations and charitable and pro bono publico service organizations.

4. Certain in-house counsel who view themselves as businessmen, and not under the same ethics and professionalism constraints as private practice lawyers.
In the United States we have recently experienced very public examples of some in-house corporate counsel who apparently view their role as that of a businessman virtually unconstrained by any ethics or professionalism constraints. Such an attitude not only harms the corporation itself, but it can place very dangerous demands on outside counsel as well. While the recent public examples of this were extremely egregious, outside counsel also experience less obvious problems with in-house counsel pushing them ever nearer to the ethical/professional danger zone.

5. Lawyer advertising that demeans the profession and the justice system.
Lawyer advertising is here to stay, because the United States Supreme Court has determined that it is protected “commercial speech.” Nevertheless, even protected “commercial speech” may be subjected to reasonable government restrictions. I am very concerned about some of the lawyer advertising I see and hear in Virginia, and from my discussions with many other Virginia practitioners, I know that I am not alone in this regard. My most serious concern is the spread of lawyer advertising that subtly suggests that the justice system is broken, unfair, and unreliable, and that the only way a member of the public can achieve “justice” or the promised “higher level of justice,” is by hiring the lawyer or law firm that is the subject of the advertisement. In this regard, I fully agree with my colleague Robert B. Altizer of Tazewell, who in a Virginia State Bar President’s Page in the Virginia Lawyer stated:

We surely must have an obligation to uphold the public confidence and trust in the integrity of our legal system.
. . . Freedom to advertise carries with it another choice – the freedom not to advertise, or to advertise in such a way that we promote public confidence and trust in our profession and our system of justice.
. . . . There are certain behaviors that, while legally permissible, are not only beneath the dignity of our profession, but also undermine the public’s regard for our justice system.

In my view, the time has come for the Virginia State Bar to take strong action against lawyers and law firms that undermine the public’s confidence in our justice system through such advertising.

6. “Scorched earth” litigation tactics aimed at harassing and injuring an adverse party in litigation.
The practice of engaging in “scorched earth” litigation tactics aimed at harassing and injuring an adverse party in litigation and making it more costly and burdensome (and less likely) to reach a fair resolution on the merits is steadily growing in Virginia by all accounts. This practice is entirely inconsistent with the lawyer’s role as an officer of the court and of the legal system. In addition, it frays the public’s confidence in the legal system as a fair and efficient dispenser of justice, and it does untold damage to relations within the legal community and the quality of lawyers’ professional lives.

7. The “hired gun” approach to law practice.
Some lawyers take a “hired gun” approach to the practice of law. Virtually no pursuit is off limits, and no client request is turned down. This leads to highly questionable projects and tactics which demean, and reduce public confidence in, lawyers and the legal system. The role of the lawyer as an independent, objective officer of the court who zealously advocates for his client, but unflinchingly observes ethical, professional, and legal limits—even in the face of client objections—is the very foundation of our profession.

Impacts of These Forces and Trends on the Legal Profession
Over time, all these forces and trends, working in concert, have produced some very noticeable impacts on the legal profession, which our profession ignores at its peril. Among them are the following:

• A feeling that there is not enough time to do anything but billable work.
• A faster and faster pace of law practice.
• A feeling that one is always working.
• Difficulty in relaxing during “free” time.
• Lack of satisfaction with the amount of work one is doing, no matter how much it is.
• Less day-to-day personal interaction among lawyers, and more electronic interaction (a form of “electronic isolation”).
• More impersonal relationships between lawyers, leading to less close personal bonds between them.
• Less mentoring (informal or formal) of younger lawyers by more senior lawyers.
• Less time spent with family and friends.
• Less incentive to engage in activities other than billable work (including community service, pro bono publico legal service, bar association service, and service in government office, including elective office).
• Erosion of professional courtesy and civility, and a loss of community and collegiality in the legal profession.
• Lawyer burnout and departure from the profession.
• Lack of a feeling of fulfillment during the course of one’s legal career for those who remain in the profession.
• Generally less satisfaction in the practice of law.
• Law firm difficulties in recruiting and retention of lawyers.
• Poor public perception of lawyers, their professionalism, and the legal system.

How Have These Forces and Trends Impacted You?
Judge Carl Horn III, U.S. Magistrate Judge for the Western District of North Carolina, has written an excellent book on this subject entitled Lawyer Life – Finding a Life and a Higher Calling in the Practice of Law. In that book, which I strongly recommend to you, Judge Horn discusses many of these forces and trends and their consequences for the profession, law firms, and individual lawyers. He also suggests positive steps that can be taken by individual lawyers, law firms, law schools, and the organized bar to address these problems. The impacts of these forces and trends on individual lawyers, and the steps that can be taken to address these impacts, vary considerably from lawyer to lawyer. Only you can assess where you stand today, at this point in your career, in terms of the impacts on your professional and personal life and goals. And only you can decide what, if anything, to do about it. The important thing, it seems to me, is for you to develop for yourself “A Sense of Where You Are,” and to decide on your personal action plan. I hope that the following questions will help you do just that:

• Do you feel like you are always working?
• Do you always feel dissatisfied with the amount of work you are doing and wish that you could be doing more?
• On evenings, weekends, and holidays, do you have a hard time relaxing?
• Do you feel like you are not spending an adequate amount of time with, and energy on, family and friends?
• At the office do you feel that you do not have sufficient interaction with other lawyers?
• If you are a younger lawyer, do you feel that you have not received adequate mentoring (formal or informal) from more senior lawyers?
• If you are not a younger lawyer, do you feel like you are not spending enough time mentoring (formally or informally) younger lawyers?
• Do you feel that you are not spending adequate time serving your community through non-legal community service, pro bono publico legal service, or bar association service?
• Do you have an interest in government service at either the local, state, or federal level (including elective office), but feel constrained from serving?
• Are you a “slave” to your e-mail and voice mail?
• Do you feel “electronically isolated”?
• Do client in-house counsel or other client representatives increasingly push you to do things that are beyond what you believe to be the ethical, professional, or legal limits?
• Do clients demand responses of you so quickly that you feel you are running a significant risk of making a mistake or committing malpractice if you accede to their requests?
• If you advertise —
— Do your ads overpromise or overstate your capabilities?
— Do your ads suggest that a member of the public will not receive justice or an appropriate “level of justice” if they do not hire you?
— Do your ads, subtly or otherwise, tend to undermine the public’s confidence in our justice system?
— Do you feel that you have to advertise, or advertise in a particular way, in order to be able to compete effectively?
• If you do not advertise —
— Has your practice been hurt by advertising of other lawyers the content of which you believe to be inappropriate?
• Do you engage in “scorched earth” litigation tactics aimed at harassing and injuring an adverse party in litigation?
— If so, do you do this because you believe you have to in order to be able to compete effectively?
• Have you or your client been the victim of such “scorched earth” litigation tactics?
• Do you take the “hired gun” approach to the practice of law, agreeing to pursue virtually all requests by your clients, so long as the client is willing to pay for your time?
• Do you treat other lawyers with a lack of civility and respect when your respective clients are in adversarial positions?
• Does your professional demeanor, regardless of how effective it is, lessen public respect for lawyers and/or the legal system?
• Do you feel unfulfilled by, or dissatisfied with, your current practice of law?
• Would you like to make fundamental changes in your current practice of law?
• Does your law firm or other employer have unrealistic or unhelpful policies or practices relating to any of these issues?

What Can You Do About It?
If you find that you are somewhat off course in your effort to practice law as a “high calling,” what can you do about it? In many cases, the previous section’s questions themselves provide a good starting point for appropriate countermeasures. But as Judge Horn notes in Lawyer Life, attitudinal changes are every bit as important as discrete action steps, and perhaps an essential prerequisite to such steps. Some of the best suggestions I have heard on the subject of attitudinal changes are:

• Care passionately about character.
• Act like a professional in every aspect of your life.
• Remember the “citizen” part of “citizen-lawyer.”
• Lead by example.
• Follow the “Golden Rule” in your professional life as well as your personal life.
• Steadfastly maintain your core values and professional independence, even in the face of a marketplace that often demands expediency.
• Embrace the pursuit of law as a “high calling” as a higher priority than the pursuit of financial rewards.
• Seriously question personal behaviors aimed at building up more wealth than you really need at the expense of time with family and friends and services to one’s community.
• Be willing to say “no” to a client, especially when it relates to ethics, professional, and legal limits.
• Make sure that there is a part of your life that is never “for sale,” regardless of the price offered.
• Be willing to “fire” a client and/or leave your law firm or other place of employment if necessary to maintain your core values and professional independence.

* * * * *
I encourage you, from time to time in your legal career, to think about the personal vision of the practice of law you had when you began your legal career. Focus on all the changes that have occurred in society and in our profession since then, and take stock of where you are. Adjust your work and personal habits as necessary, but hang on tightly to that vision, and the core values and professional independence that go with it. And don’t wait until the end of your career, when it is too late to get back on course.

Start today!

Look in the mirror. What do you see? Return to Top

Legal Focus/Domestic Relations:
Appellate Pitfalls in Recent Family Law Cases
Lawrence D. Diehl

In reviewing the voluminous number of family law related opinions of the Virginia Court of Appeals over the past few years, two noticeable trends have occurred which merit comment as appellate pitfalls in this area of practice. First, the increasing scrutiny by the appellate court of the quality of the record and merit of arguments leading to the dismissal of many issues pursuant to Rule 5A:20(e) of the Rules of the Supreme Court of Virginia. Second, the resolution of equitable distributions cases in the appellate court based upon the quality of evidence in attempting to meet the burden of proof on various issues ranging from the classification or valuation of property, to tracing, or to the establishing of an alternate evaluation date.

The purpose of this article will be to briefly discuss and analyze these developing areas of appellate practice and to provide to the family law appellate practitioner practical suggestions to avoid the adverse consequences that can result if these areas are not properly addressed in the appeal process.

Prior to 2002, the dismissal of appellate cases in the area of family law on procedural grounds generally arose out of the failure of trial counsel to properly or timely note exceptions to the trial court’s ruling in the record pursuant to Rule 5A:18. This Rule stated that unless an objection to a ruling of the trial court was stated together with the grounds thereof at the time of the ruling, the issue would not be considered by the appellate court on appeal. See Lee v. Lee, 12 Va. App. 512, 404 S.E. 2d 736 (1991) The contemporaneous objection requirement was generally met if stated clearly in the record, or was the subject of exceptions filed with the decree itself, or was the subject of a motion for reconsideration. A review of the appellate cases in the later 1990s and 2000s by this author generally showed a decreasing number of dismissals on this ground, hopefully indicating that the lessons learned from Lee and subsequent appellate cases had been taken to heart by trial practitioners in protecting the record for appeal.

However, what was the remedy for inadequate briefs filed by counsel or the lack of bona fide authority on the issues even where the issues were properly preserved by Rule 5A:18? In perhaps an effort to encourage only meritorious issues being raised on appeal, to discourage frivolous appeals and to encourage the increased quality of briefing in general, the Court of Appeals has recently focused on the use Rule 5A:20(e) as a means of addressing these issues. Rule 5A:20(e) requires that the “principles of law, the argument and the authorities relating to each question presented” be included in the appellant’s brief.

In one of the earlier cases citing this rule, Shaffer v. Shaffer, Case No. 3329-02-4 (Unpublished Opinion, Va. Ct. App. 7/29/03), Judge Kelsey of the Court of Appeals interpreted this rule to mean that statements unsupported by argument, authority or citations to the record “do no merit appellate consideration”. In Shaffer, the appellant raised 29 issues in its appeal. The appellate court noted that “husband’s brief provides inadequate citation either to the record or to supporting principles of law” It noted that said brief addressed the issues in a “cursory, perfunctory manner.”

Based upon Rule 5A:20(e) the court precluded the review of 17 of the issues, which were summarily dismissed and not even addressed in the remaining part of the appellate decision. In a loud message to practitioners, the court properly noted that the preclusion of considering such issues was “in the face of such an inadequate attempt at appellate adequacy.” And what was the consequence of the failure to meet this rule? The appellate court noted the deficiency of the brief and awarded the appellee on remand “all attorneys’ fees incurred on appeal.”

Since Shaffer, an informal review of all family law appellate decisions, whether published or unpublished, indicates over 50% of such cases having at least one issue summarily dismissed based on this rule. For example, in Courembis v. Courembis, __ Va. App. ___, ___ S.E.2d ___ (2004), the appellate court dismissed 4 of husband’s issues because the questions presented did not reference pages in the appendix where the issues were preserved. And most recently, in an unusual effort to provide finality to a most contentious case, notwithstanding the court’s findings that there had been a lack of compliance with Rule 5A:20(c) or (e), the appellate court addressed the issues not properly addressed in the record merely to “ring the curtain down” on the protracted litigation. The message, however, is clear- failure to comply strictly with Rule 5A:20(e) will result in the summary dismissal of those issues which have not met the standards of such rule. See also Roberts v. Roberts, 41 Va. App. 513, 586 S.E.2d 290 (2003); Kane v. Szymczak, 41 Va. App. 365, 585 S.E.2d 349 (2003).

So how does the appellate practitioner protect the appeal against the use of this rule? The following practice hints are not only suggested, but are probably mandated by the implementation of this rule as adopted by the Court of Appeals:

1. Make sure that you make a detailed and specific reference in the record to the specific parts of the appendix, including the specific page references to testimony and exhibits, for each issue or question presented. DO NOT make general or generic arguments that cannot be supported by specific parts of the appendix record.

2. Do not make frivolous appeals merely to appease your client. If an appeal issue is not supported by the record, don’t include that issue as a “shotgun” approach to see what sticks. Limit your appeal to those issues which truly have merit.

3. Make sure you cite current specific case law or statutory authority. Mere arguments without specific citation to case law or supporting statutes invites dismissal. And a hefty award of attorney’s fees against your client for the cost of appeal if requested by the appellee can be expected.

This author, quite frankly, is delighted to see this trend and encourages the appellate court to continue to use this Rule where appropriate. The result of the use of this rule will be to provide increased quality and professionalism in the appellate process. It will make the review of a particular case easier for the appellate courts by having organized and better referenced briefs. And, hopefully, it will discourage frivolous appeals and issues which waste the time of the already burdened appellate courts. It is a welcome and needed trend in the view of this author.

The second focus of numerous appellate decisions over the past few years has been the resolution of equitable distribution cases based upon the success or failure to meet the burden of proof on the issue at the trial level. This has been the topic of a recent extensive CLE seminar outline presented by this author entitled “The Burden of Proof In Equitable Distribution Cases,” presented by the VBA Domestic Relations Section with the Virginia CLE (2004).

The need to meet the burden of proof includes presenting sufficient evidence to support a position on such issues as the classification or valuation of property, the request for an alternate valuation date, the tracing of assets for hybrid classifications of property, the hybrid claim of an increase in value of separate property, and the division of property. The general rule applicable to all of these types of issues is that where you are the proponent of that issue, you have the burden of proof to sufficiently prove said issue at the trial level. See Bowers v. Bowers, 4 Va. App. 610, 359 S.E.2d 546 (1987)

Typical of the recent trend of these cases is the appellate ruling in West v. West, Case No. 0075-03-2 (Unpublished Opinion, Va. Ct. App. 10/14/03). In West, the court made numerous rulings on the classification of property that reversed the trial court, all of which were essentially based upon the failure of the party to meet the burden of proof on the issue at the trial level. The trial court, for example, erroneously classified husband’s Hong Kong bank account as marital property where the evidence showed that the account was opened after the parties last separation. Where the wife presented no evidence that the account had any pre-separation funds sufficient to rebut the presumption that the account was separate, the trial court’s classification of the account as marital was reversed. And as to an initial deposit of $52,000 by husband from an inheritance into the parties jointly titled marital residence, where there was no evidence of a gift to the marriage, the trial court’s classification of the entire equity as marital was error. The husband had sufficiently met his burden of proof to prove a separate contribution which should have been awarded in accordance with the Brandenburg methodology approved in Hart v. Hart, 27 Va. App. 46, 497 S.E.2d 496 (1998).

Another example of the failure of a party to meet the required burden of proof is the holding in Zalusky v. Zalusky, Case No. 0199-02-4 (Unpublished Opinion, Va. Ct. App. 11/19/02). Where the wife had funded a joint bank account with the proceeds of the sale of her pre-marital home, but where marital deposits were thereafter placed into the account and other debts were paid from the account which exceeded the amount of the initial separate deposit, the trial court’s classification of the account as separate was error. The account should have been classified as marital.

The practical guidance to the family law practitioner is to make sure that adequate proof of classification or other issues is presented at the trial level. The more documentation to prove the tracing or linkage between an asset and its current value, the better. Merely relying on oral testimony without adequate documentation greatly enhances the risk that such proof will not be accepted by the trial court and will not meet you burden of proof. Generally, such inadequacy of proof and the trial court’s rejection of such proof has been upheld by the appellate courts. See Anderson v. Anderson, 29 Va. App. 673, 514 S.E.2d 369 (1999); Hoffman v. Hoffman, Case No. 0136-03-4 (Unpublished Opinion, Va. Ct. App. 5/11/04) (husband’s “bare assertions” that the source of his brokerage account was from separate funds without any documentation to verify his claim, was insufficient evidence to prove that the account was separate, citing Anderson).

In order to provide a summary of the various issues that are involved in equitable distribution cases, the statutes that may be applicable to such issues, the identity of the party who bears the burden of proof on an issue, and the supporting or relevant case law on each issue, attached to this article is a chart entitled “Summary of Burden of Proof In Equitable Distribution Cases” (see below).

By understanding this chart and understanding who has the burden of proof on these issues and by further studying the various cases to analyze the nature and quality of proof that has been required by the appellate courts in reviewing the trial court’s ruling on the issues, the appellate family law practitioner will greatly increase its chances of success both at the trial court level and the appellate level in the review of the record.

About the Author: Lawrence D. Diehl is a sole practitioner whose practice is limited to family law. He practices in the Hopewell and Richmond area and co-counsels in cases throughout the state. He received his B.A. degree from Bucknell University and his J.D. degree from the Marshall-Wythe School of Law of the College of William and Mary. He has received the Virginia State Bar Family Law Section’s Lifetime Achievement Award and Virginia CLE’s Gardener G. DeMallie Jr. Award, and is a Fellow of the American Academy of Matrimonial Lawyers. Diehl has served as president of both the Virginia Chapter of the American Academy of Matrimonial Lawyers and the Metro Richmond Family Bar Association, and is a former chair of the VSB Family Law Section, among other professional activities. He is a frequent lecturer at continuing legal education programs and has authored a number of articles and books on family law issues.

Return to Top

Legal Focus/Domestic Relations:
12 Simple Rules for Deviating from the Child Support Guidelines
Laura W. Morgan

The Federal Mandate and Deviation
In 1987, the advisory panel of the Office of Child Support Enforcement prepared its recommendations for the development of child support guidelines to be used nationally. As a result of this study, Congress enacted the Family Support Act of 1988. 42 U.S.C. §§ 654, 666-667. The Family Support Act mandated that by 1994, states implement presumptive, rather than advisory, guidelines:

There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.
42 U.S.C. § 667(b)(2).

Federal law also requires that each state: (1) establish criteria under which application of the guidelines might be unjust or inappropriate, and require that when the decision-maker deviates from the guidelines, the decision-maker must make written findings as to why the guideline amount is unjust or inappropriate; (2) require that the guidelines be used not only to establish initial support awards, but for any subsequent modification of the award. Id.

Consistent with the requirements of the Family Support Act of 1988, the federal regulations also require that the state guideline must provide that in any judicial or administrative proceeding for the award of child support, there shall be a rebuttable presumption that the amount of the award that would result from the application of the state’s guideline is the correct amount of child support to be awarded, and that a written finding or specific finding on the record in any proceeding for an award of child support that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption, as determined by the criteria established by the state. Such criteria must take into consideration the best interests of the child. Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines, and must include a justification of why the order varies from the guidelines.

The Advisory Panel on Child Support Guidelines also recommended to the states that they follow certain principles in enacting their guidelines:

1. Both parents should share legal responsibility for support of their children, with the economic responsibility divided between the parents in proportion to their income;
2. The subsistence needs of each parent should be taken into consideration in setting child support, but in virtually no event should the child support obligation be set at zero;
3. Child support must cover a child’s basic needs as a first priority, but, to the extent either parent enjoys a higher than subsistence-level standard of living, the child is entitled to share in the benefit of that improved standard;
4. Each child of a given parent has an equal right to share in that parent’s income, subject to factors such as age of the child, income of the parent, income of a current spouse, and the presence of other dependents;
5. Each child is entitled to determination of support without respect to the marital status of the parents at the time of the child’s birth. Consequently, the guidelines should be used equally in cases of paternity, separation, and divorce;
6. Application of the guidelines should be sexually nondiscriminatory;
7. A guideline should not create extraneous negative effects on the major life decisions of either parent. In particular, the guideline should avoid creating economic disincentives for remarriage or labor force participation;
8. A guideline should encourage the involvement of both parents in the child’s upbringing. A guideline should take into consideration the financial support provided by parents in shared physical custody and extended visitation arrangements.

By requiring the states to establish child support guidelines, the federal government hoped to accomplish four main goals, each goal corresponding to the perceived problems of the common law method of determining child support: (1) increase the adequacy of child support awards; (2) increase the consistency and predictability of child support awards; (3) increase compliance through perceived fairness of child support awards; and (4) increase the ease of administration of child support cases.

All states’ child support guidelines are based on assumptions about economic expenditures in the average family. These assumptions are derived from statistical data gathered by numerous federal and state agencies concerning the average cost of raising average children. The guidelines are thus stating, in essence, “When the average set of circumstances underlying the guidelines is true, then support shall be X amount of dollars.” In most cases, the facts will be reasonably close to the assumptions made by the state’s guideline drafters. In some cases, however, the facts will differ materially from the guideline assumptions. Where such a material difference exists, a deviation from the guideline amount is warranted. As stated in Keplinger v. Keplinger, a Kentucky case, “child support is not a science, it’s an art.”

Deviation is not permitted, of course, merely because there is some minor degree of variance between the actual facts and the guideline assumptions. If this were true, deviation would be possible in every case; no case will ever match the guidelines assumptions point for point.

Constant and regular deviation from the guidelines would make the guidelines superfluous, for the guideline amount would never apply. What the law requires instead is that there be a material difference between the actual facts and the guideline assumptions. A material difference is one that meets a minimum standard of size and/or significance. The precise level of difference is difficult to state, but it must be sufficient to overcome the presumption that the guideline amount is correct.

Clearly, then, one must understand and be able to articulate the underlying economic precepts of a state’s child support guidelines in order to be able to argue factors that should be considered by the decision-maker in determining whether to deviate from the guidelines’ presumptive amount.

Only when the assumptions underlying the guidelines are false in the particular case before the court can deviation be had.

A simple illustration will suffice on this point. The child support guidelines assume a particular tax burden on the working parents. This assumption of 10 percent federal tax rate plus a designated state tax rate is found in Robert Williams’s Development of Guidelines for Child Support Orders (Advisory Panel on Child Support Guidelines, 1987). Because of this assumption, one can argue that tax free income should be “grossed up” to account for the extra income. E.g., Pinto v. de la Piedra, 11 Va. Law Wkly. 18 (Fairfax 2/14/1996); Fay v. Fay, 19 Cir. Ct. 124664 (Fairfax County 4/8/1994).

Another example: Child support guidelines assume ordinary expenditures on public education. Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994). Obviously, if more than “ordinary” expenses are being paid, deviation is appropriate. Joynes v. Payne, 36 Va. App. 401, 551 S.E.2d 10 (2001) (trial court had statutory authority to order upward deviation from child support dictated by guidelines for payment of child’s private school tuition; trial court found both that there was demonstrated need for child to attend private school and that obligor parent had ability to pay). Knowledge, therefore, of what amount is “presumed” for education is necessary in order to argue for a deviation based on extraordinary educational expenses.

RULE #1: Know the assumptions behind the guidelines.

RULE #2: Become familiar with development of guidelines for child support orders (Advisory Panel on Child Support Guidelines, 1987).

Virginia’s Guidelines
In 1990, the legislature enacted the Virginia Child Support Guidelines, Va. Code §§ 20-108.1, 20-108.2, which, pursuant to the federal mandate, created a rebuttable presumption that the guideline amount is the appropriate amount of support in determining child support. The trial court has discretion to deviate from the guidelines “where their application would be unjust or inappropriate.” The test for abuse of discretion in reviewing the trial court’s decision is whether the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Section 20-108.2 provides:

A. There shall be a rebuttable presumption in any judicial or administrative proceeding for child support under this title or Title 16.1 or 63.2, including cases involving split custody or shared custody, that the amount of the award which would result from the application of the guidelines set forth in this section is the correct amount of child support to be awarded. In order to rebut the presumption, the court shall make written findings in the order as set out in § 20-108.1, which findings may be incorporated by reference, that the application of the guidelines would be unjust or inappropriate in a particular case as determined by relevant evidence pertaining to the factors set out in §§ 20-107.2 and 20-108.1. The Department of Social Services shall set child support at the amount resulting from computations using the guidelines set out in this section pursuant to the authority granted to it in Chapter 19 (§ 63.2-1900 et seq.) of Title 63.2 and subject to the provisions of § 63.2-1918.

The deviation factors are set out in § 20-108.1:

In order to rebut the presumption, the court shall make written findings in the order, which findings may be incorporated by reference, that the application of such guidelines would be unjust or inappropriate in a particular case. The finding that rebuts the guidelines shall state the amount of support that would have been required under the guidelines, shall give a justification of why the order varies from the guidelines, and shall be determined by relevant evidence pertaining to the following factors affecting the obligation, the ability of each party to provide child support, and the best interests of the child:
1. Actual monetary support for other family members or former family members;
2. Arrangements regarding custody of the children;
3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation;
4. Debts of either party arising during the marriage for the benefit of the child;
5. Debts incurred for production of income;
6. Direct payments ordered by the court for health care coverage, maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child and costs related to the provision of health care coverage pursuant to subdivision 7 of § 20-60.3;
7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
8. Age, physical and mental condition of the child or children, including extraordinary medical or dental expenses, and child-care expenses;
9. Independent financial resources, if any, of the child or children;
10. Standard of living for the family established during the marriage;
11. Earning capacity, obligations and needs, and financial resources of each parent;
12. Education and training of the parties and the ability and opportunity of the parties to secure such education and training;
13. Contributions, monetary and nonmonetary, of each party to the well-being of the family;
14. Provisions made with regard to the marital property under § 20-107.3;
15. Tax consequences to the parties regarding claims for dependent children and child care expenses;
16. A written agreement between the parties which includes the amount of child support;
17. A pendente lite decree, which includes the amount of child support, agreed to by both parties or by counsel for the parties; and
18. Such other factors, including tax consequences to each party, as are necessary to consider the equities for the parents and children.

Therefore, there is a three-step process:

1. Always figure the presumptive award first. Scott v. Scott, 12 Va. App. 1245, 408 S.E.2d 579 (1991). RULE #3.

2. Then present the case for a deviation from the guidelines, as the burden of proof is on the party seeking the deviation. Remember, you are saying that this case is not an ordinary case. You must show the court how it is not ordinary. Vissicchio v. Vissicchio, 27 Va. App. 240, 498 S.E.2d 425 (1998) (father failed to overcome statutory presumption that child support guidelines calculation was correct, despite his claim that trial court should have deviated from guidelines to account for father’s transportation costs; although arrangements regarding custody of children were permissible basis for deviation, father cited no authority for proposition that trial court was required to deviate from guidelines). RULE #4.

3. Justify the deviation with written findings on the record. Princiotto v. Gorrell, 42 Va. App. 253, 590 S.E.2d 626 (2004); Head v. Head, 24 Va. App. 166, 480 S.E.2d 780 (1994). RULE #5.

Remember that decisions concerning child support rest within the sound discretion of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the evidence. Mir v. Mir, 39 Va. App. 119, 571 S.E.2d 299 (2002), so make your record complete.

Virginia Case Law
Let’s categorize these deviation factors:
1. Reasons for deviating down: Extra expenses of the parents
Factors 1, 2, 4 and 5.
2. Reasons for deviating up: Extra income of the parents
Factors 3 and 7.
3. Reasons for deviating down: Extra income of the child
Factor 9.
4. Reasons for deviating up: Extra expenses of the child
Factors 6 and 8.
5. Reasons that could go either way
Factors 10, 11, 12, 13, 14, 15, 16, 17 and 18.

RULE #6: Don’t ask for a deviation down based on a child’s actual expenses. The guidelines have made a normative judgment that a certain amount of support is appropriate at a certain income level.

1. Actual Monetary Support of Other Family Members or Former Family Members.
Zubricki v. Motter, 12 Va. App. 999. 406 S.E.2d 672 (1991): Statute providing that “actual monetary support for other children” may rebut presumption that amount of child support awarded according to guidelines is correct amount does not require that support order or agreement be in effect in order for court to consider parent’s obligation to other children.
Farley v. Liskey, 12 Va. App. 1, 401 S.E.2d 897 (1991): “Actual monetary support for other children” under statute providing that actual monetary support for other children, other family members or former family members is a valid factor to consider when determining child support obligation does not refer to obligation arising before child support obligation in question.

2. Arrangements Regarding Custody.
This probably should have been taken out of the deviation factors after the statute was amended to reflect parenting time.
Baumgartner v. Moore, 14 Va. App. 696, 419 S.E.2d 291 (1992): Periodic visitation of children of short duration that does not reduce cost to primary custodian may not be used to reduce child support amount.
Farley v. Liskey, 12 Va. App. 1, 401 S.E.2d 897 (1991): Arrangements regarding custody of child which actually reduced costs to primary custodian may be used to rebut presumptive amount of child support under guidelines; however, periodic visitation of short duration which does not reduce cost to primary custodian may not.
Pharo v. Pharo, 19 Va. App. 236, 450 S.E.2d 183 (1994): Trial court’s written finding that application of statutory shared custody support guidelines would seriously impair wife’s ability “to maintain minimal adequate housing and provide other basic necessities for the child” was insufficient to warrant departure from shared custody guidelines and to base husband’s child support obligation on sole custody guidelines.
Com. Dept. of Social Services Div. of Child Support Enforcement on Behalf of Hogge v. Hogge, 16 Va. App. 520, 431 S.E.2d 656 (1993): Custodial parent’s denial of visitation to noncustodial parent was not grounds for trial court’s deviation in presumptive amount of child support under child support guidelines; child’s financial well being should not be jeopardized to punish custodial parent for failing to provide noncustodial parent with visitation.

3. Imputed Income.
Most states compute imputed income and then add it to income. It doesn’t make sense to impute income, and then not use it as income. Perhaps a legislative change in this regard would be in order.

RULE #7: The record must reflect voluntary suppression of income and earning capacity. A rehabilitation expert should be consulted.
Mir v. Mir, 39 Va. App. 119, 571 S.E.2d 299 (2002): When asked to impute income to a parent for purposes of deciding whether to deviate from the presumptive amount of child support, the trial court must consider the parent’s earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and children.

Niemiec v. Com., Dept. of Social Services, Div. of Child Support Enforcement ex rel. Niemiec, 27 Va. App. 446, 499 S.E.2d 576 (1998): Except as provided by statute, court determining child support is required to impute income to parent who is found to be voluntarily underemployed. If the court imputes income to a parent in child support proceeding, it must make written findings explaining why imputed income to parent would make it unjust or inappropriate to award presumptive amount of child support.

When asked to impute income to a parent, the trial court must consider the parent’s earning capacity, financial resources, education and training, ability to secure such education and training, and other factors relevant to the equities of the parents and children. See Brooks [v. Rogers], 18 Va.App. [585, 592, 445 S.E.2d 725, 729 (1994) ] (citing Code § 20-108.1(B)). The burden is on the party seeking the imputation to prove that the other parent was voluntarily foregoing more gainful employment, either by producing evidence of a higher-paying former job or by showing that more lucrative work was currently available. See Brody [v. Brody], 16 Va.App. [647, 651, 432 S.E.2d 20, 22 (1993)]; Hur v. Virginia Dept. of Social Services Div. of Child Support Enforcement ex rel. Klopp, 13 Va.App. 54, 61, 409 S.E.2d 454, 459 (1991); see also Antonelli v. Antonelli, 242 Va. 152, 154, 409 S.E.2d 117, 119 (1991). The evidence must be sufficient to “enable the trial judge reasonably to project what amount could be anticipated.” Hur, 13 Va.App. at 61, 409 S.E.2d at 459.

4. Debts of Either Party Arising During the Marriage for the Benefit of the Child.

5. Debts Incurred for the Production of Income.
Wouldn’t this be “double counting” a debt, since the payment of the debt is deductible from income in the case of the self-employed?

6. Direct Payments for Health Care Coverage, Life Insurance Coverage, Education Expenses, or Other Court Ordered Direct Payments for the Benefit of the Child.

7. Extraordinary Capital Gains
This is an attempt to overcome the problem of extraordinary capital gains not being considered income.

Smith v. Smith, 18 Va. App. 427, 444 S.E.2d 269 (1994): Where capital gains realized by husband were extraordinary and had been used to provide for parties’ separate maintenance and reduce their joint debt, they would have warranted downward deviation from presumptive amount of child support if they had been included in husband’s gross income.

Riggins v. O’Brien, 34 Va. App. 82, 538 S.E.2d 320 (2000): Unspecified amounts of capital gains allegedly received by a former wife upon the sale of her residence did not justify deviation from child support guidelines.

RULE #8: Always consider nonrecurring income as a source for deviation, since it cannot be considered income.

8. Age, physical and mental condition of the child or children, including extraordinary medical or dental expenses, and child-care expenses.

Albert v. Albert, 38 Va. App. 284, 563 S.e.2d 389 (2002): Trial court, in ordering former husband to pay for portion of children’s unreimbursed medical care expenses, was not plainly wrong in accepting former wife’s explanations of why she took the children to particular health care providers.

Private School.
Joynes v. Payne, 36 Va. App. 401, 551 S.E.2d 10 (2001): In determining whether husband could be required to pay for private educational expenses, even though such expenses exceeded child support guidelines, commissioner in chancery was not required to give greater weight to certain factors; commissioner was merely required to consider factors in determining whether there was a need for child to attend private school, and whether parents possessed ability to pay.

Ragsdale v. Ragsdale, 30 Va. App. 283, 516 S.E.2d 698 (1999): Trial court’s deviation from child support guidelines in requiring husband to pay for private school for children was warranted, in light of evidence that children were enrolled in private school during the marriage and after husband and wife separated, and that children performed well while attending private school.

Solomond v. Ball, 22 Va. App. 385, 470 S.E.2d 157 (1996): There was insufficient justification for trial court’s further deviation from presumptive child support amount in ordering increase in divorced noncustodial parent’s support obligation to enable children to attend more expensive private school, though custodial parent testified that more expensive private school was preferred institution, where trial court merely stated that it would be in children’s best interests to take advantage of opportunity to attend more expensive private school, and record did not demonstrate need of either child that was not being adequately met at their current private school.

9. Independent Financial Resources of the Child.
Rinaldi v. Dumsick, 32 Va. App. 330, 551 S.E.2d 10 (2000): In determining whether application of child support guidelines would be unjust or inappropriate, trial court properly could consider as independent financial resource of the child both his Supplemental Security Income (SSI) and his wages from part-time employment. However, trial court was not required to deviate from presumptive child support guidelines amount based on child’s Supplemental Security Income (SSI) benefits and his wages from part-time employment.

Note that the vast majority of states do not consider SSI benefits as fair game. Some have reasoned that federal preemption prevents the court from considering SSI benefits as income to either a parent or child; others have reasoned that SSI, as a need based benefit, should not as a matter of public policy be considered.

Riggins v. O’Brien, 34 Va. App. 82, 538 S.E.2d 320 (2000): Uniform Gifts to Minors Act (UGMA) accounts controlled by former husband for his children were not “independent financial resources” of the children within the meaning of statute permitting deviation from child support guidelines based on children’s independent financial resources.

RULE #9: Don’t ask for a deviation based on extra income of children.

10. Standard of Living Family Established During the Marriage.

11. Earning Capacity, Obligations, Needs and Financial Resources of Each Parent.
L.C.S. v. S.A.S., 19 Va. App. 709, 453 S.E.2d 580 (1995): Trial court abused its discretion in failing to deviate from presumptive amount of child support based on husband’s financial resources and potential income from those resources, where husband was incarcerated and had no current income and wife had budget shortfall of approximately $5,000 per month, and child required medical and psychological treatments because of genetic disease and alleged sexual abuse by husband.
Howe v. Howe, 30 Va. App. 207, 516 S.E.2d 240 (1999): When determining child support, the emphasis should be on including, not excluding, income especially where including the income more accurately reflects a parent’s economic condition and financial circumstances for that year.
Goldhamer v. Cohen, 31 Va. App. 728, 525 S.E.2d 599 (2000): In determining whether to deviate from the child support guidelines amount on ground that inclusion of a gift in gross income is unjust or inappropriate, factors that chancellor may consider include, but are not limited to: whether the financial resources were used to reduce marital debt, enhance the marital estate or benefit any child; whether the asset is received with regularity; whether the asset is liquid; and whether the asset or property is income-producing.

RULE #10: In high income cases, deviate down only when income is extraordinarily high; children are entitled to share in the “good fortune” of their parents.

12. Education and Training of the Parties and Ability and Opportunity of the Parties to Secure Such Education and Training.

13. Contributions, Monetary and Non-Monetary, to the Well-Being of the Family.

14. Provisions Made With Regard to Marital Property.
Scott v. Scott, 12 Va. App. 1245, 408 S.E.2d 579 (1991): Provisions of separation agreement may be considered in awarding child support if they are consistent with best interests of child as determined in accordance with factors set forth in child support guidelines.

15. Tax Consequences to the Parties Regarding Claims for Dependent Children and Child Care Expenses.
Since the statutory change allowing the court to order a party to relinquish the right to a deduction, the older cases (e.g., Dietz) are not apropos.

RULE #11: Only child-related tax consequences may be considered when arguing for a deviation; the tax consequences of alimony and property division are not a reason to deviate.

16. Written Agreement of the Parties.
Shoup v. Shoup, 37 Va. App. 240, 556 S.E.2d 783 (2001): Where the court affirms, ratifies, approves, and incorporates a child support agreement into its divorce decree, in whole or in part, it has necessarily exercised its discretion and determined that the agreement is consistent with the best interests of the child.
Gallagher v. Gallagher, 35 Va. App. 470, 546 S.E.2d 222 (2001): An agreement that itself establishes or modifies a child support obligation, rather than only the terms or method of payment, is not enforceable absent court approval, because it impinges on the child’s right to support and the court’s continuing jurisdiction to decree it.
Saleem v. Saleem, 26 Va. App. 384, 494 S.E.2d 883 (1998): Although statute authorizes trial court to deviate from presumptive child support guideline amount upon consideration of written agreement between parties which includes amount of child support, this variance provision has limited scope and can be considered only after procedure mandated by statute is followed, that is, only after calculation of presumptive amount is made.
Moreno v. Moreno, 24 Va. App. 227, 481 S.E.2d 482 (1997): Although statutory child support sections guidelines provide rebuttable presumption of amount of child support to be paid, trial judge may determine that contractual amount of child support is fair and equitable without requiring evidence and without determining precise presumptive amount of support.
Princiotto v. Gorrell, 42 Va. App. 253, 590 S.E.2d 626 (2004): Trial court deviation from the child support guidelines was not an abuse of discretion; trial court calculated the presumptive award under the guidelines and then found that mother had a long history of financial irresponsibility, and the parties’ separation agreement, which required father to directly pay most of the expenses of the parties’ children, required father to pay more than the presumptive amount under the child support guidelines.

RULE #12: A good agreement in the best interests of the child is the best reason to deviate, and the most common reason. Put your drafting skills to work.

17. Pendente Lite Decree.

18. Other Factors Including Tax Consequences to Each Party, as Are Necessary to Consider the Equities for the Parents and Children.
Calvert v. Calvert, 18 Va. App. 781, 447 S.E.2d 875 (1994): Income tax burden of award of spousal support is not acceptable justification for deviating from presumptive amount of child support.

Conclusion
The guidelines did not mean that lawyers were turned into calculators. Rather, the presence of deviation factors gives the lawyer the opportunity to use his or her lawyering skills to best advantage in securing an appropriate child support award. In the words of a Kentucky case, “Child support is an art rather than a science.” Keplinger v. Keplinger, 839 S.W.2d 566 (Ky. Ct. App. 1992). Be an artist.

About the Author: Laura W. Morgan owns and operates Family Law Consulting in Charlottesville. She chairs the Child Support Committee of the ABA Family Law Section and is the author of Child Support Guidelines: Interpretation and Application (Aspen Law & Business, 1996 & supps.), the leading treatise on child support guidelines in the U.S.. Her website, SupportGuidelines.com, has been selected as one of the Best Legal Websites by American Lawyer Media, as well as a Lawyers Weekly USA Top Ten Web Pick, a LegalOnline Web Pick, and a JURIST Best of the Web Family Law selection. As a national expert on child support, she has acted as special consultant to many state child support guidelines review commissions, as well as to the Canadian government. She is the co-author of Attacking and Defending Marital Agreements (ABA 2001) and The Spousal Support Handbook (ABA 2004). She teaches the Advanced Family Law course at the U.S. Judge Advocate General School, and is a prolific lecturer, editor and writer on family law issues.

Return to Top

Legal Focus/Domestic Relations:
Don’t Lose Your Case Before It’s Argued
Shelly R. James

Domestic relations cases are a small percentage of the cases heard by the Virginia appellate courts. In 2003, of the 3292 appeals, of right or by petition, that the Court of Appeals considered, only 277 cases were classified as involving domestic law.1 Since 2002, the Supreme Court has published only two opinions directly involving domestic proceedings.2

However, every party dissatisfied with the final ruling of a trial court in a domestic case has the right to appeal to a panel of the Virginia Court of Appeals, pursuant to Code § 17.1-403(3). In order to inform a client about this right, protect that right to appeal, and evaluate the likely outcome of an appeal, attorneys need to be aware of the procedures, both at the trial and at the appellate level, that increase the chances of success.

Even at the trial level, attorneys need to consider the implications of their actions for appeal. Most importantly, the issue(s) upon which the appeal will be based must be raised at the trial level. As Supreme Court Rule 5A:183 makes clear, “No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to constitute a question to be ruled upon on appeal.” (Emphasis added.) Rule 5A:20 also requires that an appellant in the opening brief provide “a clear and exact reference to the page(s) of the transcript, written statement, record, or appendix where each question was preserved in the trial court.”

To preserve an issue, an attorney must do more than state, “I object;” some argument for the objection must be presented to the trial court. As the Court of Appeals recently explained in Courembis v. Courembis, 43 Va. App. 18, 26-27, 595 S.E.2d 505, 509-10 (2004), signing a document as “seen and objected to” is insufficient to preserve an argument about equitable distribution and spousal support awards, and a plain statement that the trial court should deny a request for attorney’s fees is also insufficient. In Budnick v. Budnick, 42 Va. App. 823, 842-43, 595 S.E.2d 50, 59-60 (2004), the Court of Appeals noted that the appellant asked the trial court to reconsider various rulings, but did not specifically mention the reservation of spousal support. Therefore, the Court found Rule 5A:18 precluded consideration of the issue on appeal.

Additionally, making one argument on a particular issue will not preserve all arguments related to that issue. In Courembis, 43 Va. App. at 27-28, 595 S.E.2d at 510, the Court noted that, at trial, the appellant argued his wife did not prove a need for spousal support, but on appeal he argued that the amount of the award was inequitable and against public policy. The Court of Appeals found his argument was not preserved.

Attorneys can preserve issues by raising an argument in closing, as the Court of Appeals suggested in Harrison v. Tazewell County, 42 Va. App. 149, 159, 590 S.E.2d 575, 580 (2004). However, if an attorney has not preserved an issue for appeal and notices the error while the case is within the jurisdiction of the trial court,4 then some action can be taken to correct the error. While Rule 5A:18 says the objection must be stated at “the time of the ruling,” in divorce cases the objectionable ruling generally is not made until the conclusion of the case when the trial court announces its decision from the bench or by a letter opinion. This circumstance allows the filing of a memorandum of law before the ruling is announced or the submission of a motion to reconsider after the ruling is made, as the Court of Appeals explained in Smith v. Smith, 18 Va. App. 427, 433, 444 S.E.2d 269, 273-74 (1994). However, an attorney should ask the trial court to rule on this motion.

In Princiotto v. Gorrell, 42 Va. App. 253, 262-63, 590 S.E.2d 626, 631 (2004), the Court of Appeals remanded a case to give the trial court an opportunity to rule on a motion filed by a party, but on which the trial court never ruled.

Some confusion has surrounded the use of “seen and objected to” language. While attorneys should use this language when signing orders to which they object, “seen and objected to” does not preserve an issue for appeal. This language does not specify an objection as required by Rule 5A:18 and does not adequately notify the trial court, as the Court of Appeals explained in Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 926 (2000).

Attorneys should do more than write reasons for the objection on the final page of an order. If counsel did not make the argument earlier in the hearing, this objection may not preserve the issue because the trial court never rules on it. As the purpose of Rule 5A:18 is “to allow the trial court to correct in the trial court any error that is called to its attention,” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc), and Rule 5A:18 specifically mentions rulings of the trial court, the appellate courts may not find such an objection is sufficient. The best policy for preserving issues regarding the final rulings of a divorce or custody proceeding is to present arguments to the trial court, either in oral argument or written memorandum, or to make a detailed motion for reconsideration after the ruling is announced.

If an attorney has not preserved an evidentiary issue for appeal by making a timely objection or request during the hearing, then the issue is probably defaulted. For example, in Budnick, 42 Va. App. at 844-45, 595 S.E.2d at 60-61, the Court found, as the appellant did not ask to cross-examine opposing counsel on the issue of attorney’s fees until after the fees were awarded, the request was not timely and was properly rejected. If the trial court had allowed the cross-examination, however, the Court of Appeals may have considered the issue preserved.

To perfect an appeal in a domestic law case, a notice of appeal must be filed with the trial court and the Court of Appeals within 30 days of the entry of the final order, under the provisions of Code § 8.01-675.3 and Rule 5A:6. All opposing counsel must receive notice, which can include the guardian ad litem.5 An appeal bond must be filed in accordance with Code § 8.01-676.1.

A transcript of the hearings relevant to the issues raised on appeal must be filed with the clerk of the circuit court within 60 days of entry of the final order, following the provisions of Rule 5A:8. In the alternative, Rule 5A:8 allows the filing of a written statement of facts. However, counsel should be very careful in drafting such statements. For example, in Crawley v. Ford, 43 Va. App. 308, 597 S.E.2d 264 (2004), the Court of Appeals found the record was inadequate to decide the issues raised on appeal, as the written statement of facts failed to include necessary information. A written statement of facts also needs to include proof that the issue(s) were preserved for appeal, as suggested by Rule 5A:20.

Using the record sent to the appellate court under Rule 5A:10, the parties designate the contents of an appendix, as provided by Rule 5A:25. In domestic cases, the appendix can be very long and expensive to produce. Attorneys should review the record and include only the parts necessary for understanding and addressing the issues on appeal. If a party designates substantially irrelevant material, then the appellate court may order that party pay the added costs of the designation, as the Supreme Court did in Metrocall v. Continental Cellular, 246 Va. 365, 376-77, 437 S.E2d 189, 195 (1993).

In preparing briefs, attorneys should review the requirements of Rules 5A:20 and 21. For appellants’ briefs, attorneys not assume that more issues are better. Often when attorneys include a number of issues, several of the issues are not preserved or presented as required by Rules 5A:20 and 21, as illustrated in Hoebelheinrich v. Hoebelheinrich, 43 Va. App. ___ (Rec. No. 2359-03-3, August 3, 2004), Courembis, 43 Va. App. 18, 595 S.E.2d 505, and Budnick, 42 Va. App. 823, 595 S.E.2d 50, all cases affirming the trial court’s rulings. An attorney’s time and efforts are better used by determining which issues are strongest and then concentrating on those issues, rather than using a “shotgun” approach which can annoy the appellate court. Appellees should consider arguing not only the substance of the issues, but also the failure of an appellant to preserve the issues.

While attorneys should examine the opposing party’s filings to ensure compliance with the Rules, arguments based on failure to comply with the Rules should request only permissible sanctions. In Morrill v. Morrill, 43 Va. App. ___ (Rec. No. 1461-03-4, August 17, 2004), although one party failed to comply with the margin requirement for briefs, the party raising the issue was ordered to pay attorney’s fees for the related argument because the requested relief (disallowing oral argument) was not permitted under Rule 5A:4(c).

Many attorneys believe that oral argument is not important to the outcome of appellate cases. However, oral argument can clarify a position, answer questions that the judges have about the record or the argument, and bring to the appellate courts’ attention cases published after the filing of the briefs. In order to fully advocate a client’s position, an attorney should take advantage of this opportunity to persuade the appellate court.

Finally, attorneys should not forget that the situation in a domestic case can change as an appeal goes forward. If an attorney is asking the appellate court to overturn the trial court’s decision, then the attorney should ask for a stay of the trial court’s order or an injunction, as suggested by the Court of Appeals in Sullivan v. Jones, 42 Va. App. 794, 810 n.1, 595 S.E.2d 36, 44 n.1 (2004). In Spero v. Heath, 267 Va. 477, 479, 593 S.E.2d 239, 240 (2004), a case involving a petition to change a child’s surname, the trial court entered an order suspending “the effect” of its ruling, pending the outcome of the appeal. If an attorney or a client is concerned about the effect of allowing the trial court’s order to stand while the appeal is pending, then one of these options should be considered.

NOTES
1. These statistics were obtained from the Clerk’s Office of the Virginia Court of Appeals.
2. These cases are Utsch v. Utsch, 266 Va. 124, 581 S.E.2d 507 (2003), and Riggins v. O’Brien, 263 Va. 444, 559 S.E.2d 673 (2002). A few additional cases address issues of family law, but do not arise directly from divorce, support, or custody proceedings. For example, Flanary v. Milton, 263 Va. 20, 556 S.E.2d 767 (2002), arose in the context of a petition for a family allowance where the husband died while a divorce petition was pending.
3. As domestic cases have an appeal as of right to the Court of Appeals, and the Supreme Court hears few domestic cases, this article will emphasize the Rules and procedures applicable in the Court of Appeals. Supreme Court appeals generally have the same requirements and concerns.
4. Under Rule 1:1, the trial court has 21 days from entry of a final order to act on a party’s motion or suspend the final order.
5. The Court of Appeals has ruled in Hughes v. York County, 36 Va. App. 22, 548 S.E.2d 237 (2001), and Watkins v. Fairfax County, 42 Va. App. 760, 595 S.E.2d 19 (2004), that the guardian ad litem is a necessary party and must be notified of the appeal under Rule 5A:6. In Yopp v. Hodges, 43 Va. App. ___ (Rec. No. 3165-02-3, July 6, 2004), two judges of the Court of Appeals found a guardian was not a necessary party in a visitation case, distinguishing Hughes; Judge Clements dissented. The best practice on appeal, therefore, is to notice the guardian ad litem in any case.

About the Author: Shelly James is an associate in the Law Office of Franklin Blatt in Harrisonburg. She is a graduate of James Madison University, received a master’s degree from the University of Pittsburgh, pursued graduate study at the University of Massachusetts, and received her J.D. with distinction from the University of Iowa College of Law, where she was editor-in-chief of the Journal of Corporation Law, a member of the Stephenson Trial Competition Team, and received both the American Jurisprudence and Little Brown Awards. She is a former law clerk to Judge Robert P. Frank of the Court of Appeals of Virginia, a former Assistant Attorney General of Virginia and a former assistant Commonwealth’s attorney in Newport News. In addition to being a lecturer and presenter at professional conferences, she has been an adjunct instructor of public speaking at Christopher Newport University and Thomas Nelson Community College and has directed forensics and debate programs at Wright State University, the University of Massachusetts and King’s College.

Return to Top

Across the Commonwealth

titleBestselling author Dean King will speak at VBA Annual Meeting
The Virginia Bar Association will welcome bestselling author Dean King, a native Richmonder, as the featured speaker for its Books and Authors Luncheon during the 115th Annual Meeting, to be held in Colonial Williamsburg January 20-23.

A native of Richmond, King is the author of nine books, including the recent national bestseller Skeletons on the Zahara: A True Story of Survival (Little, Brown), about the wreck of the Connecticut merchant brig Commerce on the west coast of Africa in 1815 and the enslavement and escape of her crew.

During his research less than a month after 9/11, King trekked the Sahara on camel and on foot. Kirkus Reviews called Skeletons “a jaw-dropping story . . . exquisite and excruciating screw-turning” and the San Francisco Chronicle dubbed it “one of the most absorbing and satisfying books to come out in a very long time.” Skeletons is currently in development as a feature film at DreamWorks.

King is also the author of Patrick O’Brian: A Life Revealed (Henry Holt), about the enigmatic author of the Aubrey-Maturin novels (upon which last year’s hit film “Master and Commander: The Far Side of the World” was based). The L.A. Times called this Daily Telegraph book of the year “rich with literary insight…crisp and engaging.” King’s writing has also appeared in Esquire, Men’s Journal, National Geographic Adventure and the New York Times.

More information about the Annual Meeting will be mailed to VBA members, printed in the VBA News Journal and posted on www.vba.org. Members can make their room reservations now by calling 1-800-261-9530. Return to Top

Virginia ADR Joint Committee plans programs
The Virginia Alternative Dispute Resolution Joint Committee will co-sponsor two programs at the upcoming VBA Annual Meeting in Williamsburg. “An Introduction to the Collaborative Law Process” will be co-sponsored with the VBA Domestic Relations Section and a program on arbitration will be co-sponsored with the VBA Civil Litigation and Construction and Public Contracts Law Sections. Specific details will be announced at a later date.

The ADR Joint Committee will be recognizing “March is Mediation Month” in 2005 and is currently seeking individuals who would be interested in working with the subcommittee to develop a program to expand knowledge and understanding of alternative dispute resolution in the Commonwealth of Virginia. Please contact Morna Ellis at mpe@cmgmediates.com or Geetha Ravindra at gravindra@courts.state.va.us if you are interested in volunteering to assist in this project.

Visit www.vba.org for more information about the Joint Committee and the VBA Annual Meeting Return to Top

December 8 is due date for letters of intent for ’05-06 VLF grants
The Virginia Law Foundation, a 501(c)(3) not-for-profit organization, is now accepting Letters of Intent from organizations wishing to request grant support for the 2005-06 grant cycle (July 1, 2005, through June 30, 2006). Letters of Intent to be submitted under the VBA umbrella should be prepared in the name of The Virginia Bar Association Foundation and must reach the VBA office at 701 East Franklin Street, Suite 1120, Richmond, Virginia 23219, no later than December 8, 2004, for Executive Committee approval and signing on behalf of the VBA Foundation. Funds are expected to be awarded to support programs which promote or provide improvements in the administration of justice, legal services to the poor, education of the public about the law and the legal profession, and public service internships for Virginia law students. Letters of intent should be submitted on a special form (available from the VBA office) which includes instructions for preparing required information. VBA staff can be reached to assist with basic information about The Virginia Bar Association Foundation and preparation of Letters of Intent by calling (804) 644-0041. Return to Top

Dates to remember for 2005 General Assembly
As leaders and staff of The Virginia Bar Association put final touches on legislative proposals for the 2005 Virginia General Assembly during the VBA Legislative Workday on November 16, the following projected session dates and deadlines (based on previous session calendars) loom just ahead:
December 13: All requests for drafts of legislation to be prefiled to Legislative Services by 5 p.m.
December 31: All drafts of legislation to be prefiled returned for requester’s review by midnight.
January 7, 2005: All requests for redrafts and corrections for legislation to be prefiled to Legislative Services by 5 p.m.; all requests for drafts, redrafts and corrections of legislation creating or continuing a study to Legislative Services by 5 p.m.
January 11: All covered drafts of legislation to be profiled available at Legislative Services by noon. All requests for drafts, redrafts and corrections for first-day introduction bills to Legislative Services by 5 p.m.
January 12: General Assembly convenes at noon. Joint Assembly. Prefiling ends at 10 a.m. Continued legislation reported. Last day to file with the clerk charter, claims, local fiscal and correctional impact, sales and property tax exemption, and VRS bills and legislation creating or continuing a study.
January 18: Special and continuing joint order following morning hour to hold elections for seats or offices held by incumbent justices and judges, members of the Judicial Inquiry and Review Commission, and gubernatorial and circuit court appointees.
February 8: Crossover. Each house to finish its own legislation, except the Budget Bill.
February 9: Each house may consider only legislation and amendments of the other house, except the Budget Bill.
February 26: Adjournment sine die.
March 28: Last day for the Governor to act on legislation by midnight.
April 6: Reconvened session.
Information on 2004 bills of interest to the VBA remains available on the legislation page at www.vba.org until early January; 2005 bills will be added as bill numbers and summaries become available. For researchers, bill information as far back as 1994 is online at leg1.state.va.us, and General Assembly information is posted at legis.state.va.us. VBA members also have access to current political/governmental news through a link to StatePulse.com, which is usually available only to subscribers. Return to Top

Dates announced for VBA meetings in 2005
Mark these dates of scheduled VBA events on your calendar for 2005:
April 8-10: VBA Board of Governors, The Tides Inn, Irvington.
April 15-17: VBA Bankruptcy Law Section Conference, The Tides Inn, Irvington.
April 29-May 1: VBA/YLD Executive Committee and Council Meeting, The Sanderling.
July 14-17: 115th VBA Summer Meeting, The Greenbrier.
September 9-10: VBA Labor Relations and Employment Law Conference, Hilton Oceanfront, Virginia Beach.
September 30-October 2: VBA/YLD Executive Committee and Council Meeting, The Boar's Head Inn, Charlottesville.
October 7-9: VBA Board of Governors, Hotel Roanoke.
October 21-22: Boyd-Graves Conference, Hotel Roanoke. Return to Top

2005 is coming — resolve to get involved!
The VBA seeks members who are interested in serving on VBA committees and section councils in the coming year.
For appointment to a VBA committee, contact President-elect Jim Meath at (804) 783-6412 or jmeath@williamsmullen.com.
For election to a VBA section council, contact the appropriate section chair (consult the section pages at www.vba.org for information).
For appointment to a Young Lawyers Division committee, contact Chair-elect Brack Hill at (804) 697-1408 or bhill@cblaw.com.
For appointment to a Law Practice Management Division committee, contact Chair Gant Redmon at (540) 983-7654 or gredmon@rpb-law.com.
For information on any appointment, contact Breck Arrington at the VBA office, (804) 644-0041, or cbarrington@vba.org. Return to Top

News in Brief

James W. Morris III of Richmond, a VBA Life Member, has been elected president of the American College of Trial Lawyers. A partner in the firm of Morris & Morris, he has been identified by the National Law Journal as one of the top third-party (tort liability) trial lawyers in the United States. He has also been included in The Best Lawyers in America and in the “Legal Elite” of Virginia Business. Morris, a member of the VBA Civil Litigation Section, was presented the Award for Excellence in Civil Litigation by the Virginia Association of Defense Attorneys in 1995.

The Association of Corporate Counsel (ACC) recently presented its 2004 Robert I. Townsend, Jr. Award for Member of the Year to Andrea L. Bridgeman, a VBA member and assistant general counsel of Freddie Mac in McLean. This award annually recognizes an ACC member who has provided distinguished service and demonstrated an ongoing commitment to the association’s success. Bridgeman is a past chair of the state and local bar corporate counsel sections, a member of the VSB Council and on the faculty of the mandatory professionalism course. In addition, she helps lead Freddie Mac’s highly recognized, award-winning pro bono program, sits on the Board of Legal Services of Northern Virginia, and is president of the Potomac Legal Aid Society. She worked with ACC and bar leaders to help craft Virginia’s Corporate Counsel Registration Rule and to permit the attorneys registered to participate fully in civil pro bono legal work. She received an A.B. degree cum laude from Bryn Mawr College and her J.D. degree from the University of Virginia.

Richmond-based LandAmerica Financial Group, Inc., one of the nation’s leading providers of real estate transaction services, has announced that Theodore L. Chandler Jr., a VBA member, will become President and CEO effective January 1, 2005. Chandler is currently serving as LandAmerica’s President and Chief Operating Officer. Prior to joining LandAmerica full time, Chandler practiced law for 22 years at Williams Mullen where he served on the board of directors and led the corporate and securities team. He is a past chair of the VBA Law Practice Management Section (now Division). Return to Top