The Virginia Supreme Court not too long ago addressed when one could be convicted of DUI in Virginia when there is no evidence that the intoxicated criminal defendant found present in the vehicle actually drove the vehicle in Nelson v. Commonwealth, 281 Va. 212 (2011).  The upshot of that case was the establishment of the following rules:

             (i) If the engine is running, then guilty of DUI.  See, e.g., Williams v. City of Petersburg, 216 Va. 297 (1975);

             (ii) If the engine is not running but the key is in the on/accessory position, then guilty of DUI.  See, e.g., Nelson v. Commonwealth, 281 Va. 212 (2011);

             (iii) If the engine is not running and the key is in the off position, then not guilty of DUI.  See, e.g., Stevenson v. City of Falls Church, 243 Va. 434 (1992). 

Well, the Virginia Supreme Court recently reconsidered the rule established in Stevenson in Enriquez v. Commonwealth, Record No. 110818 (2012).  The court in that case basically held that the dissent in Stevenson had it right when it said:

“Ordinary experience tells us that one in a drunken stupor in the driver’s seat of a vehicle is likely to arouse abruptly, engage the motive power of the vehicle, and roar away imperiling the lives of innocent citizens.  This sequence of events easily can occur where, as here, a drunk is sitting behind the steering wheel of a motor vehicle alone, with the key already in the ignition.  From a mechanical standpoint, the vehicle is capable of being immediately placed in motion to become a menace to the public, and to its drunken operator.”

The court overturned the decision in Stevenson and established its new bright line rule:

“[W]e establish the rule that when an intoxicated person is seated behind the steering wheel of a motor vehicle on a public highway and the key is in the ignition switch, he is in actual physical control of the vehicle and, therefore, is guilty of operating the vehicle while under the influence of alcohol within the meaning of Code § 18.2-266.” 

As such, it no longer makes a difference whether the key is in the on/accessory position, as in Nelson, or in the off position, as in Stevenson.  It only matters whether the key is in the ignition itself.  So the key is the key to the DUI . . . 

In the case of McDonough v. McDonough (CL-11-229), the Fauquier County Circuit Court divorced a husband and wife.  The husband was awarded primary physical custody of six children, four of whom had special needs.  The parties were also awarded half of the equity in the marital property/debt except for the marital residence.  The court chose instead to award the husband more of the equity in the marital residence using the following analysis:

            “Several of those children are still young and will require hands-on care for a number of years.  The Husband will have this responsibility, plus the necessity of earning a living and keeping his job.  He needs to have assets to do this, even if it means downsizing the residence.  

             Therefore, the Court will award the Husband 60 % of the marital equity of the home and 40 % of the same to the Wife.”

The court’s decision appears altogether equitable given the facts of the case.  The court’s stated rationale is nevertheless interesting given its limited statutory authority.

Va. Code § 20-108.1(B) outlines factors that the court must take into consideration in deviating from the presumptive amount of child support.  Those factors include “arrangements regarding custody of the children . . . ,” “debts of either party arising during the marriage for the benefit of the child,” and “any special needs of a child resulting from any physical, emotional, or medical condition.”  In other words, this court had available to it factors tailor made to meet the future needs of the children and to provide the children’s primary physical custodian with the resources needed to meet them.  Nevertheless, the court chose to use property distribution as the means to achieve this end probably because it realized that the wife could not afford to pay any additional support each month moving forward.

Va. Code § 20-107.3(E), on the other hand, outlines the factors that the court must take into consideration in dividing up the marital property and debt.  That section states: 

“E. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;

3. The duration of the marriage;

4. The ages and physical and mental condition of the parties;

5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;

6. How and when specific items of such marital property were acquired;

7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;

8. The liquid or nonliquid character of all marital property;

9. The tax consequences to each party;

10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and

11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.”

None of these factors mention children.  None of these factors mention anything having to do with their needs.  None of these factors mention anything about providing resources for their care moving forward.  Instead, these factors are almost solely focused on the past or present.  Their lone future concern is the age, physical or mental conditions of the parties.  Moreover, the court in this case did not explicitly enter any monetary award which would otherwise have allowed for application of the last catch-all factor.  Nevertheless, the court in this case awarded more of the equity in the marital residence to the husband specifically because of his responsibility to care for his children. 

In conclusion, fair result?  Sure.  Questionable justification?  Absolutely.  Moral?  The catch-all is often the court’s be-all end-all.      

Socrates was then then sentenced to death.

According to Virginia Code § 18.2-250(A)(a): “It is unlawful for any person knowingly or intentionally to possess a controlled substance.” The Virginia Court of Appeals recently got to test this code section’s definition of “knowingly” in Christian v. Commonwealth, 2012 Va. App. LEXIS 47 (2011).  Did the Virginia Court of Appeals accept the Socratic view of knowledge and undo, in some small part, the injustice once done to the wisest Athenian?  Of course not. That would be silly.

In Christian, a police officer found an off-white rock in an opaque bag in the defendant’s possession. Upon seeing the rock, the officer believed, correctly, that the rock was crack cocaine. The defendant told the officer that he found the bag on the ground, that he thought the rock was an illegal drug and that he thought he could sell it for a few dollars. The defense argued that he did not know that the rock was an illegal drug.  He just found it!  He was not a drug dealer himself and his mere hope that he could sell the rock as an illegal drug did not rise to the level of knowledge needed to convict him under Virginia Code § 18.2-250.  The trial court disagreed and he convicted of possession.  The Virginia Court of Appeals upheld the conviction.  It agreed that knowledge of possession was present because: (i) the defendant attached value to the rock by keeping it instead of discarding it, (ii) the defendant intended to profit by selling the rock, (iii) the rock looked like crack cocaine, (iv) the rock was found in a park where drug offenses are known to occur, and (v) the defendant stated that he believed the rock was an illegal drug.

For Socrates, the defendant’s small scintilla of doubt would have made it impossible to prove that he had knowingly possessed a controlled substance.  For the Virginia Court of Appeals, however, it appears that the defendant’s belief that he knows something is sufficient to prove knowledge of possession.[1]

Here is the original post: http://www.salawfirm.com/blog/1140/.

Police searches are legal in essentially three situations: (i) after a legal arrest, (ii) after a legal investigatory stop, and (iii) after receiving consent from the person to be searched.[1] The police need some degree of suspicion that a crime is afoot or else their arrest or investigatory stop will be deemed an unreasonable search or seizure under the 4^th Amendment of the U.S. Constitution.  The police are therefore forced to seek consent to search when lacking sufficient suspicion that a crime is afoot.

The law is consequently full of tales of consensual searches. Virginiajudicial opinions alone make 289 references to “consent to search” according to Lexis.  People appear to be routinely consenting to police searches of their pockets, their cars, their homes and their possessions. It’s a shocking result when one considers that people are allowing absolute strangers to rummage through their stuff.

So why do people allow it to happen?  Well, what sounds like a simple request to search on paper often sounds more like a demand in person. Indeed, what sounds like a simple request to search on paper often is ripe with the implication that punishment will follow from refusing to allow the search in person, whether it be performing the search anyway or deriving a negative inference that something illegal is happening. These nuances are often not addressed in judicial opinions. These opinions instead brush over them as if people consent to police searches like this:

     Officer:        Good afternoon sir! How are you friend?

     Citizen:        I’m doing quite well. How are you?

     Officer:        Wonderful. You know what would be fun for us to do? If I did a pat-down search of you and checked your pockets. Sound good?

     Citizen:        That does sound like fun! Go ahead! I consent!

The Virginia Court of Appeals case, Hargrove v. Commonwealth, 2012 Va. App. LEXIS 25 (2012), is no different. In that case, a police officer confronted the defendant, asked the defendant if he had “anything illegal,” including weapons or drugs, and then asked if the defendant (who had responded “no”) would prove it by allowing the officer to pat him down and search his pants pockets. The defendant, who had drugs in gym shorts pockets underneath his outer pants, consented. The officer searched the defendant’s outer pants pockets and found nothing illegal. The officer then asked for permission to search the defendant’s gym shorts pockets. The defendant said that there were no such pockets and tried to hide them. The officer searched the defendant’s gym shorts pockets anyway. The trial court held that this particular search was legal despite the absence of consent.  The Virginia Court of Appeals agreed. It held that the officer had reasonable suspicion that the defendant committed a crime because he lied about his interior pockets, tried to hide his interior pockets, and did so after agreeing to a search of his outer pockets. It did not bother addressing the legality of the initial search that led to everything. It just assumed that reluctantly granted permission to search still constitutes permission. 

So what can we learn from Hargrove?  You do not need to cooperate. Your cooperation could lead to incrimination. And your refusal to cooperate, without more, is not enough to justify the officer from seizing you under the case of Illinois v. Wardlow, 528 U.S. 119, 125 (2000).

Virginia Code § 20-107.3 defines separate property as, inter alia, all property, real and personal, acquired by either party before the marriage, and marital property as, inter alia, all property acquired by each party during the marriage which is not otherwise separate property.  So what happens when you receive a wedding ring before the officiant pronounces you husband and wife?  Would not the ring be treated as separate property because it was acquired before the actual marriage? 

The Norfolk City Circuit Court recently held that it does not care about such mere fractions of time in Chavez v. Chavez (CL10-6528).  In that case, the wedding ring at issue was given on the day of marriage but mere minutes before the marriage became official.  The wife argued that the wedding ring was her own separate property not subject to equitable distribution because she acquired it immediately before the marriage.  The court disagreed.  The court held that the law does not care about mere fractions of a day unless justice requires it.  The court, therefore, held that the wedding ring was marital property subject to equitable distribution because it was acquired during the day of marriage and justice did not require it to take into consideration the fact that the ring was really acquired mere minutes before the officiant pronounced the parties husband and wife. 

Virginia Code § 19.2-392.2 states:

“If a person is charged with the commission of a crime or any offense defined in Title 18.2, and

1. Is acquitted, or

2. A nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151, he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.”

In MacDonald v. Commonwealth (Case No. CL2010-13130), the Fairfax County Circuit Court was forced to interpret what constitutes a charge that is otherwise dismissed.  In that case, the petitioner sought to expunge his charge of reckless driving.  In the earlier case, the prosecution moved to reduce the charge of reckless driving to improper driving under Va. Code § 46.2-869 in exchange for his pleading guilty to the same.  The motion was granted and he pled guilty to improper driving.  He, therefore, was not acquitted of reckless driving nor was that charge nolle prossed. 

So was the reckless driving charge otherwise dismissed?  The Fairfax County Circuit Court said that it had been otherwise dismissed despite the plea agreement.  The petitioner was therefore able to expunge his charge for reckless driving.    

The Virginia Court of Appeals was tasked with answering this question in Nkopchieu v. Minlend, Record No. 0500-11-4 (2011).  In that case, the parties had two children during their brief marriage.  The father became obligated to pay pendente lite child support to the tune of $2,000.  He chose to flee the country rather than pay any child support.  His wife, accordingly, sought entry of a qualified domestic relations order at trial.  She wanted the court to assign her some of his employee retirement benefits order at the time of their divorce so that she could collect at least some of his astronomical child support arrears ($28,163.66).[1]  The trial court said that it could not do so under the past precedent of Hoy v. Hoy, 29 Va. App. (1999).  The wife appealed. 

The Virginia Court of Appeals reversed.  It held that Hoy was distinguishable.  In that case, the mother sought to reopen a divorce action for the purpose of entering a qualified domestic relations order.  She wanted the court to assign her some of her ex-husband’s employee retirement benefits so that she could collect at least some of his astronomical spousal support arrears ($84,000).  The trial court said that it could not.  The Virginia Court of Appeals affirmed the decision.  It held that the trial court lost jurisdiction over the action 21 days after entry of the final order of divorce under Virginia Supreme Court Rule 1.1.  It also held that it did not have continuing jurisdiction to modify orders dividing retirement accounts under Va. Code § 20-107.3(K)(4) because the divorce order was entered prior to July 1, 1982 and that it couldn’t have used that code section anyway to now divide up retirement benefits because to do so serve to impermissibly modify the substantive terms of the final order of divorce that had already divided up the marital estate.  Indeed, the assignment she was seeking was from an employee retirement account that did not even exist at the time of their divorce.  The Nkopchieu case, however, was different.  Neither Rule 1.1 nor Virginia Code § 20-107.3(K)(4) was implicated because the divorce case was still active, i.e., no final order had ever been entered.  Hoy, therefore, was inapplicable.

The Virginia Court of Appeals thus was forced with determining whether this division was permissible under its state law.[2]  It essentially held that it had the power to assign the ex-husband’s employee retirement benefits because all of its past caselaw has made clear that the financial support of children is one of its most important concerns.[3]  It buttressed its decision by referencing Va. Code § 20-107.2, which states, inter alia, that a court may make such further decree as it deems expedient concerning the support of the minor children of the parties upon their divorce.  It nevertheless went so far as to hold that the mother’s request in this case would be viable even if the parties had never been married.

The Virginia Court of Appeals left open numerous questions.  Was the crux of the court’s decision the timing aspect of it or the fact that child support was at issue?  Was the court’s invocation of statutory authority necessary to its decision or superfluous?  How would the court handle someone trying to have a qualified domestic relations order entered for child support purposes after divorce?  How would the court handle someone trying to have a qualified domestic relations order entered for spousal support purposes before divorce? 

Time will tell  . . .

Virginia Code § 16.1-278.17:1 obligates juvenile and domestic relations courts to use the following formula to determine the presumptive amount of pendente lite spousal support:

If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income.

The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to current financial circumstances that indicates the presumptive amount is inappropriate.  The formula does not apply if the combined monthly gross incomes exceed $10,000.

This code section’s mandated formula does not apply to final awards of spousal support in juvenile and domestic relations district courts.  This code section’s mandated formula also does not apply to either pendente lite or final awards of spousal support in circuit courts. 

Nevertheless, various courts do use such formulas as mere local guidelines.  For example, Fairfax County and Henrico County Circuit Courts use the above formula to determine the appropriate amount of spousal support.  The Richmond and Harrisonburg courts use their own local formulas to determine the appropriate amount of spousal support.  These local guidelines act as mere rules of thumb.  They do not create presumptions.  And they are not supposed to be used as substitutes for the hard decisions that need to be made under Virginia law, in particular the factors that must be considered under Va. Code § 20-107.1(E).  The Virginia Court of Appeals articulated this fact succinctly in Coleman v. Coleman, Record No. 0633-11-2 (2011).

In that case, the Henrico County Circuit Court went through the following process in awarding spousal support to the wife.  It first found that the husband had gross income of $230,000 per year and that the wife had imputed gross income of $25,000 per year.  It next considered the factors under Virginia Code § 20-107.1(E) (e.g., the standard of living established during the marriage).  It lastly instructed counsel to plug their respective monthly gross income numbers into the local formula to determine the final award of spousal support.  The husband objected.  He argued that the court should have established the amount of spousal using the factors.  The trial court disagreed and the husband appealed.  The Virginia Court of Appeals reversed the trial court’s decision.  It held that the trial court erred because it had no idea what amount of spousal support it was awarding when it entered its decision.  It just gave lip service to the factors and then farmed out the actual calculation of final spousal support to the attorneys.  In sum, the court committed clear legal error by using the local guidelines as an absolute substitute for the factors under Va. Code § 20-107.1(E).

For those who are married, Va. Code § 20-107.3 provides for the equitable distribution of the marital property and debt upon divorce.  In particular, subsection (C) grants circuit courts the authority to, inter alia, order the transfer of an interest in jointly owned property to either of the parties or to permit either party to purchase the interest of the other and direct the allocation of the proceeds. 

For those who are unmarried or married but do not jointly own real property as tenants by the entireties, Va. Code § 8.01-81, et seq., grants circuit courts the authority to, inter alia, compel partition of property jointly owned as tenants in common or joint tenants.[1]  In particular, the circuit courts are granted the authority to settle all questions of law affecting legal title to the real property involved.  This includes determining what each owner’s interest is in the real property based upon their ratable contributions to it.  This also includes accounting for the same when disposing of the real property, whether dividing it in kind between the co-owners (e.g., awarding one owner the 5 acres with the mansion on it and awarding the other the 20 acres with the small cottage on it), apportioning it to one co-owner (e.g., allowing one owner to buyout the other’s interest in the property), or ordering its sale. Grove v. Grove, 100 Va. 556 (1902).

Which one is better for you?  Call us . . .   

In any action in which a decree for divorce is entered on the grounds set forth in subdivision A (9) of § 20-91 and in which custody or visitation is at issue, there shall be a rebuttable presumption that it is in the best interests of the child that the parents be awarded joint physical custody and that no parent's share of physical custody shall be for a period of less than two-fifths of the child's time. Such an award shall be made in all cases absent evidence demonstrating that such an award is not in the best interests of the child.

This language creates numerous incentive problems.  Persons seeking primary physical custody of the children will obviously want to avoid the presumption if possible.  They will therefore have at least the following two options: (i) petition the juvenile and domestic relations district court for custody, or (ii) file in the circuit court for a fault-based divorce, like adultery, cruelty, or abandonment.  They will therefore have to wrangle with the following: (i) should we file in the juvenile and domestic relations district court knowing we might have two trials on the same subject if the trial court’s decision is appealed as of right to the circuit court, or (ii) should we ratchet up the ill will between the parties, and therefore ratchet down the likelihood of settling the case, by filing for divorce on the grounds of adultery, cruelty, abandonment or the like?   

This language also poses numerous questions.  Why would we ever want this incentive structure?  What is the logic behind making the presumption applicable in the circuit court but not in the juvenile and domestic relations district court?  Will we be using the code’s definitions for day (i.e., 24 hour period) and half day (i.e., an overnight but less than 24 hour period) when we determine 40 % of the child’s time?  Doesn’t the section’s last sentence eviscerate the presumption altogether? 

Well, we shall see . . .    

Va. Code § 20-107.1 states:

“ . . . [N]o permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91. However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.”

The Salem Circuit Court addressed the manifest injustice exception in Carter v. Carter (CL-09-524).  In that case, the parties had 7 children together during their 16 year marriage.  The wife, on one hand, quit her collegiate education to home school all of the children.  She did not work at all during their marriage.  She relied, instead, on her husband to provide her with financial resources.  The husband, on the other hand, completed his engineering education during the marriage.  He earned about $100,000 per year at the time of trial.    

The husband also subjected his wife to extensive emotional abuse.  He was altogether controlling, critical and unemotional.  He treated his wife like a child.  He refused to discuss any of her concerns.  He created an unrealistically low budget for her.  He tracked all of her expenditures on a daily basis.  He demanded reimbursement from her if she exceeded his budget even though she did not have any work income. She was, as a result, in constant debt to him.  He also controlled her access to her car keys and cell phone.  The wife was altogether so terrified of her husband that she would often lock herself in her room and go to bed fully clothed with her cell phone and purse while he struggled to gain access by picking the lock. 

Thus, it should come as little surprise to learn that the wife left her husband.  She started dating another man and had his child soon thereafter.  The husband, nevertheless, did not take the news of her dating sitting down.  He attempted to prevent her from leaving the house.  He hid her car keys.  He installed a GPS monitoring system on her car.  He hired a private detective to follow her.  He transferred all but $200 out of their joint funds to an account in his sole name and denied her access to their joint credit cards.  He told her that she would never see her children again.  He excluded her outright from continuing to school the children.  He also began to alienate the children from her.  He told the children that she did not love them anymore.  He told the children that she was leaving her rather than him.  He encouraged the younger children to ask questions about her sex life.  He encouraged the older children to belittle her.  He even went with their oldest son to her paramour’s house where they each screamed for her to not defile herself.  He would not let her care for children anymore and obtained temporary custody of them by giving them a false impression that she was a threat to the children because of mental issues.  He also took a voluntary pay cut at work, which he claimed was for the purpose of allowing him more time with the children but was instead likely designed to reduce the likelihood that he would have to pay her ample child and/or spousal support.  He, lastly, engaged in a romantic relationship with the children’s nanny, which culminated in their marriage the morning after the last court hearing.  He had lied about the existence of his relationship with the nanny at court the prior afternoon. 

Despite the husband’s loathsomeness, he made out like a bandit at trial.  The court awarded him primary physical custody of the children.  The children apparently grew to hate their mother to such an extent that the court apparently had no choice but to give him primary physical custody of them until their relationships with their mother were mended.  The court also awarded him meager child support from the wife per the statutory guidelines.  The court also awarded him 41 % of the marital estate as follows:

                 Wife                                                   Husband

Marital Residence: $93,196.92 (69%)   Marital Residence: $41,871.08 (31%)

Retirement Account:$64,412.81 (50%) Retirement Account: $61,412.80 (50%)

2007 Ford Van: $13,005.00 (100%)     2004 Chevy SUV: $12,940.00 (100%)

2009 Tax Return: $6,907.50 (50 %)     2009 Tax Return: $6,907.50 (50 %)

TOTAL:  $177,522.23 (59 %)             TOTAL: $123,131.38 (41 %)

The husband, therefore, left the marriage with the children, the martial residence, an automobile unencumbered by any debt, $64,412.80 in illiquid retirement savings, $6,907.50 in liquid cash available for investment, $8,333.33 per month in gross work income, and de minimis child support.  The wife, on the other hand, left the marriage with an automobile unencumbered by any debt, $64,412.81 in illiquid retirement savings, and $100,104.12 in liquid cash available for investment, which would equate to $2,002.08 per year or $166.84 per month at 2 % per annum.  She also left with no job and no loving children to care for. 

Oh, and the wife was also not awarded spousal support despite presently only having the possibility of earning $166.84 per month.  It did not bother discussing her need for spousal support, his ability to pay her spousal support or the standard of living they established during their long marriage together.  The court instead held in one concise sentence that she was barred from receiving spousal support as an adulterer and that it would not be a manifest injustice for her to not be awarded spousal support in this case.  The court did not even bother to discuss their relative economic circumstances or their respective degrees of fault in the downfall of the marriage.

This case, therefore, serves as quite the cautionary tale.  Adultery after the marital separation can still be an absolute bar to one receiving spousal support even if one suffers under the most egregious financial and emotional circumstances.  Caveat adulterer!  Adulterer beware![1]

Virginia Code § 18.2-60(A)(1) states:

Any person who knowingly communicates, in a writing, including an electronically transmitted communication producing a visual or electronic message, a threat to kill or do bodily injury to a person, regarding that person or any member of his family, and the threat places such person in reasonable apprehension of death or bodily injury to himself or his family member, is guilty of a Class 6 felony.

In Summerlin v. Commonwealth, 37 Va. App. 288 (2002), the Virginia Court of Appeals interpreted this statute to require only proof that the defendant intended to make and communicate the threat and that the threat was in fact made.  In Holcomb v. Commonwealth, the Virginia Court of Appeals recently made clear that this rule stands regardless of the defendant’s intentions regarding who will read his communication.  If he intended the communication to be read by only one other person, the court does not care.  If he intended the communication to be read by millions, the court does not care.  If he never intended for the communication to be read by the victim, the court still does not care.  As such, the court had no trouble whatsoever finding the defendant’s postings on MySpace to be electronic communications subject to this statute. 

The court, moreover, had little trouble affirming the trial court’s finding that his postings of his rap lyrics were themselves threats against the mother of his child.  His rap lyrics were peppered with enough specific references to the mother and her family, including her maiden name, their ongoing contentious custody dispute, and her restraining order against him, to render what otherwise would be hardcore rap lyrics into actual threats to the victim.  Consider these choice nuggets:

`Poof! Make ya daughter disappear like 2pac!

He knew now what he do like 2 cops

With no vest, off'd with 2 shots

Thru the chest from 2 blocks!

`Custody battles, restraining orders

Bitch made me go mad I just had to stab her

Blind now I see her true colors

On the front cover of The World's Most Murdered Mothers

By Americas Most Wanted Fathers’

`Still psychotic runnin' wit the hatchet

Never lettin' go ya throat becomes my obsession

Slit throats, blood flows, forever dead and never woke

Bitch don't get choked, sit down ho, don't provoke.

In sum, veiled threats on social networking sites are fair game for prosecution on Va. Code § 18.2-60.1(A)(1).[1] 

Va. Code § 18.2-266 makes it unlawful for any person to drive or operate any motor vehicle while under the influence of alcohol.  The Virginia Supreme Court has held that operating includes starting the engine or manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion, which altogether means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle.  Stevenson v. City of Falls Church, 243 Va. 434, 438 (1992) (holding that the intoxicated defendant was not operating the vehicle because his key was only in the off position in the ignition).  The Virginia Supreme Court had therefore created the following rule regarding intoxicated persons behind the wheel of their unmoving vehicle: if the engine is running, than guilty of DUI; if the key is merely in the off position in the ignition, than not guilty of DUI.  But what if the engine is not running but the key is in the on/accessory position in the ignition?  That is, what if the only remaining step to starting the engine is turning the key over?   

The Virginia Supreme Court got to answer this question in Nelson v. Commonwealth, Record No. 10039 (2011).  In that case, the criminal defendant was found slumped over the wheel of his vehicle.  He had urinated on himself, he had feces on his pants, and he would later prove to have a blood alcohol content of 0.40.  He claimed that he had gone out to his car to smoke because he was not allowed to do so in his rental house.  He apparently had been listening to the radio because his car key was found to be in the on/accessory position of the ignition.  The Fairfax County Circuit Court found him guilty of his fourth DUI offense under these facts.  The Virginia Court of Appeals affirmed that decision.  The Virginia Supreme Court likewise affirmed.  The Court simply held that the defendant’s action in turning the key to the on/accessory position was an action taken in sequence up to the point of activation of the vehicle’s motive power.  The Honorable Justice Koontz dissented by holding that the defendant’s action was taken in a sequence up to the point of turning on the radio and other accessories (i.e., not to the point of activation of the vehicle’s motive power).

The majority’s decision is certainly reasonable under both past caselaw and risk-based policy considerations.[1]  It also doesn’t make much sense.  The majority, no doubt, understands that the normal sequence to activate a vehicle’s motive power involves: (i) insertion of the key in the off position, (ii) turning the key to the on/accessory position, and (iii) turning the key over further to start the engine.[2]  Thus, the mere insertion of a key in the off position should also constitute an action taken in sequence up to the point of activation using the majority’s logic.  In other words, it too should constitute operation of the vehicle using the majority’s logic.  But, we know that this cannot be true under the holding in Stevenson.  So, why did the majority employ this argument at all?  Why did it try to fit these “square” facts into the “round” language found in Stevenson?  Why didn’t they merely address these issues head on by stating that the key’s placement in the on position involves the use of the vehicle’s electrical equipment, which by itself constitutes operation of the vehicle, and also constitutes the penultimate step towards activating its motive power, which gets at the heart of Stevenson? 

God is in the radio.  And so may be a DUI . . .   

We hear you VSB!

Disclaimer:  While Solan | Alzamora vigorously strives to produce the best blog posts the world has to offer, every one of its blog posts is different.  Past mind-blowingly successful blog posts in no way guarantee future mind-blowingly successful blog posts.

Va. Code § 20-124.1 defines custody as follows:

Joint custody means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child's primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child. 

Sole custody means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.

Virginia courts, nevertheless, rarely award only “joint custody” or “sole custody” to one or both parents.  Virginia courts, instead, often award “joint legal custody” between the parents with one parent receiving “primary physical custody” and the other parent receiving rights of “visitation.”  This means that the parents will have joint responsibility for the child’s care and joint authority to make decisions concerning the child while the child lives primarily with one parent and secondarily with the other parent through regular visits.  This occurs despite the absence of a statutory definition for physical custody, primary physical custody or visitation.  This also occurs under the expectation that the parent receiving visitation must exercise care and control of the child during said visitation even if he or she is not a joint legal custodian statutorily imbued with responsibility for the child’s care or authority to make decisions concerning the child.

The Virginia Court of Appeals took this framework into consideration in determining whether the Chesapeake County Circuit Court had authority to terminate a father’s petition to voluntarily terminate his parental rights in Cartwright v. Cartwright, 625 S.E.2d 691 (Va. App. 2006).  The mother in this case had sole custody of the children while the father had rights of visitation.[1]  The father, nevertheless, petitioned for relief from the “care and custody” of the children under Va. Code §§ 16.1-277.02 and 16.1-278.3.  The mother did not object to the petition.  The trial court dismissed the father’s petition. 

The Cartwright Court had little trouble affirming the trial court’s decision.  The Court held that one must have custody in the first instance to petition for relief from care and custody.  The Court added that it must assume that the legislature chose its words with care and, notably, the legislature made no mention of relief from any visitation rights or obligations.  Thus, the father’s petition to relieve himself from the care and custody of the children could never be granted because the children were neither in his care or custody because the mother had sole custody. 

This decision is not particularly surprising.  The father was apparently never explicitly awarded custody of the children, the code only speaks to relief from custody under narrow circumstances likely not applicable to the father’s situation, and he was probably only trying to terminate his child support obligation anyway. 

The opinion is nevertheless interesting.  The court’s formalistic opinion is based upon the rule of statutory construction that assumes the legislature chooses its words with care.  This rule is highly questionable in theory but even more so in practice given the definition of custody under Va. Code § 20-124.1.  Indeed, the legislature decided to give joint custody three different definitions, one of which is a catch all that effectively means that joint custody means whatever the judge says.  The legislature also decided to define sole custody to effectively mean only sole legal custody considering its definition is almost identical to the definition of joint legal custody and it is entirely lacking a physical component which is not the case for joint physical custody.  The definition of custody is, therefore, redundant at times, circular at times, capable of any meaning at times, and missing an essential element at times.  Chooses its words wisely, huh?

This all begs the question of how far this decision extends.  Does it really only mean that one cannot voluntarily terminate his or her parental rights pursuant to these code sections if the other parent has sole legal custody?  What would happen if one parent was awarded the statutory definition of sole custody (i.e., sole legal custody) but was also awarded the statutory definition of joint physical custody of the children (e.g., shared physical care on an alternating week schedule)?  Would that parent still be deemed a “non-custodial” parent for the purposes of terminating his or her parental rights? 

This further begs the question of why we label separated parents in such a manner.  Does anyone at all benefit from having one parent labeled a non-custodial parent?  Do children benefit from this?

The Honorable Judge Doherty of the Salem County Circuit Court and the Honorable Judge Fisher of the Newport News Circuit Court each believe that the Virginia Code plainly prohibits actions to recover an engagement ring or its value in damages.  These courts have good reason to believe so.  First, Virginia’s Heart Balm Statute states that no civil action shall lie for breach of promise to marry. Va. Code § 8.01-220.  Because your former fiancée breached his or her promise to marry, you cannot bring a civil action to recover the engagement ring or its value in damages.  Second, Virginia’s Statute of Frauds states that no action shall be brought upon any agreement made upon consideration of marriage unless it is in writing and signed by the party to be charged.  Va. Code § 11-2.  Because your unwritten agreement to give the engagement ring was entirely predicated on marriage, the agreement is unenforceable despite any breach on your former fiancée’s part.  As such, the aforementioned judges dismissed their respective cases prior to trial in Holmburg v. Ferrell, 69 Va. Cir. 348 (Salem 2005) and Goergalas v. Kilgore, 73 Va. Cir. 36 (Newport News 2006).  

The Retired Honorable Judge McWeeny of the Fairfax County Circuit Court disagreed in Harrison v. Yarbrough, 1992 WL 8846201 (Fairfax 1992).  The determinative issue in his view was the scope and purpose behind the Heart Balm Statue.   The majority of jurisdictions believe that such statutes were enacted to abolish extortion in the form of “marry me or pay me for my humiliation, suffering, depression resulting from your refusal to do so.”  These jurisdictions therefore interpret such statutes to only prohibit actions for generic damages, like the aforementioned humiliation, suffering and depression.  These statutes were never designed to prohibit actions attempting to recover property given as an engagement gift or its value.  Thus, Virginia’s Heart Balm Statute is never implicated in these types of cases.  Therefore, we are left with nothing more than a common law action for return of a gift (i.e., the engagement ring) that was never completed because the condition precedent (i.e., marriage) never happened.[1] 

In sum, the ability to recover an engagement ring or its value in damages under this scenario is almost entirely contingent upon the presiding judge’s willingness to read past the plain language of the Heart Balm Statute.  If he or she will do so, you might win.  If he or she will not, you will lose.

Campbell v. Campbell, 2011 Va. App. LEXIS 263 (2011) provides a nice illustration of the atypical facts needed to achieve an ample deviation.  In that case, the wife claimed that the husband was seriously assaulting their son.  Wife admitted at trial that she shot her husband so as to protect herself and her son.  Wife later claimed upon remand of a different appeal of the decision that her son actually shot her husband.  Regardless of whoever pulled the trigger, the husband lived to see 38 % of the marital estate go to his wife per order of the Albemarle County Circuit Court.  Wife’s appeals followed, including her most recent one in which she alleged that it was an error to award her only 38 %. 

The Virginia Court of Appeals upheld the trial court’s award without much effort.  It essentially held that it was not an abuse of discretion to award her that amount regardless of whether she shot her husband.  The court held that it was the law of the case that she shot him and therefore the award was not plainly wrong.  The court further stated that even if that fact were not the law of the case, then the award was still not plainly wrong.  Indeed, the fact that she admitted to the shooting surely facilitated the dissolution of the marriage, regardless of whether she actually did it.  Even if she was lying, the fact that she would have chosen to protect her son rather than preserve the marriage surely facilitated the dissolution of the marriage as well.  In sum, the wife deserted her husband regardless of whether she actually shot him and the award to her of a mere 38 % was not plainly wrong. 

 “If any person, being married, shall, during the life of the husband or wife, marry another person in this Commonwealth, or if the marriage with such other person take place out of the Commonwealth, shall thereafter cohabit with such other person in this Commonwealth, he or she shall be guilty of a Class 4 felony. Venue for a violation of this section may be in the county or city where the subsequent marriage occurred or where the parties to the subsequent marriage cohabited.”  Va. Code § 18.2-362

“(a) The following marriages are prohibited: (1) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties . . .” Va. Code § 20-38.1

“If any person marry in violation of § 20-38.1 he shall be confined in jail not exceeding six months, or fined not exceeding $500, in the discretion of the jury . . .”  Va. Code § 20-40.

The Amelia County Commonwealth’s Attorney’s Office convicted a defendant of felony bigamy when he: (i) married one woman in 1995, (ii) never divorced her, and (iii) married another woman in 2005.  The defendant argued on appeal that he could not be convicted of having multiple marriages because his second marriage was void ab initio under Va. Code § 20-43.  In other words, he could not be convicted of having two marriages if the second marriage never existed in the first instance under Va. Code § 20-43 (“All marriages which are prohibited by law on account of either of the parties having a former wife or husband then living shall be absolutely void, without any decree of divorce, or other legal process.”).  It was simply a legal impossibility for anyone to be convicted for felony bigamy so long as bigamous marriages were defined as void ab initio.

The Virginia Court of Appeals upheld the conviction on appeal in Cole v. Commonwealth, 712 S.E.2d 759, 2011 Va. App. LEXIS 255 (2011).  The Virginia Court of Appeals found the defendant’s argument too clever by half.  It held that the second marriage is still illegal despite the fact that it is treated as if it does not exist.  In fact, its illegality is precisely why it is treated as if it does not exist.  The Virginia General Assembly would surely not engage in the “manifest absurdity” of enacting a completely useless law.

This decision is worth highlighting for at least two reasons.  First, it provides an additional illustration of the fact that the Virginia appellate courts will continue to “fix” the Virginia General Assembly’s drafting errors.  Second, it reminds us that bigamous marriages can cause a great deal of harm to the second spouse.  Indeed, the second spouse cannot receive spousal support or a share of the marital property per an equitable distribution precisely because there was no marriage in the first instance that would grant the trial court authority to do so.  See, e.g., Kleinfield v. Veruki, 7 Va. App. 183; 372 S.E.2d 407 (1988); Wallace v. Kilgore, 68 Va. Cir. 40 (2005) (Spotsylvania Cty.).  Considering that there is essentially a complete dearth of reported caselaw indicating that restitution is adequately available to the second spouse in a criminal prosecutions for bigamy or that equitable estoppel is adequately available to protect the second spouse in a civil case, can we really expect a criminal prosecution for bigamy to ever properly provide compensation to the second spouse who missed out on years of education, training and skills needed to earn on his/her own or likewise missed out on his/her other spouse’s savings, investment, retirement accounts, etc., all funded with marital funds but held entirely in the other spouse’s name?  Why is there not an independent civil remedy that would allow the aggrieved spouse some form of compensation akin to an actual divorce? 

The Virginia Code has two nearly identical provisions that criminalize harassment over essentially the telephone, radio and internet.  They say:

Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.  Va. Code § 18.2-427 (hereinafter “telephone harassment statute”).

 If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.  Va. Code § 18.2-152.7:1 (hereinafter “computer harassment statute”).

The Virginia Court of Appeals was tasked with defining “obscene” under these code sections (specifically the telephone harassment statute) in Allman v. Commonwealth, 43 Va. App. 104, 596 S.E.2d 531 (2004).  That court chose to import the definition of obscene from a different code section that reads:

“The word “obscene” where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.”  Va. Code § 18.2-372.

This definition of “obscene” is essentially the definition of “pornographic” that the United States Supreme Court came up with years before in Miller v. California, 413 U.S. 15 (1973).  Thus, according to the court, “obscene” essentially meant “pornographic” under the telephone harassment statute and presumably the same would be true under the computer harassment statute given their nearly identical language.[i] 

The Virginia Court of Appeals finally got the chance to define “obscene” under the computer harassment statute years later in Barson v. Commonwealth, 2011 Va. App. LEXIS 228 (2011).  A panel of that court held that obscene under the computer harassment statute means the same thing as it does under the telephone harassment statute, i.e., pornographic.  As such, it held that the evidence presented at trial was insufficient as a matter of law to support conviction.  Barson, 2011 Va. App. LEXIS 228, *1 (2011).  That same court, now sitting for a rehearing en banc, reconsidered its position and finally held, in so many words, that it messed up in Allman v. Commonwealth.   Specifically, it overruled that decision and held that “obscene” should be defined using its common usage, which the court implies is its standard dictionary definition of “disgusting to the senses” or “offensive or revolting as countering of violating some ideal or principle.” Barson, 2011 Va. App. LEXIS 228, *17 (2011).   Consequently, the trial court in that case got it right when it convicted the Defendant Barson under the computer harassment statutes for this wonderful behavior:   

“A.B. testified that she received eighty-seven e-mails between May 1, 2009 and May 14, 2009 [from her husband/appellant, Barson], and she received hundreds more over the span of the next six months.

The subject lines of the e-mails included phrases such as, “[A.B .] has sex with anonymous strangers on Craigs [sic] List Ads while husband lives in hotel working 3 jobs,” “I wanted [D] and your cousins to know about your new hobby of soliciting sex on CL,” and “Coke Whore Baby Killer Mom's Club Needs to Know.” In the e-mails themselves, appellant wrote such things as “[You have] BORDERLINE PERSONALITY DISORDER look it up when you get off your knees from CL,” and “I work my ass off and you suck off and fuck strangers on Craigs [sic] List,” and “I told [M] ․ how you sucked off [D's] roommate 3 days in AZ ․ wanted to jump [D's] bones after 10 years killing your baby because it was a bother to you both and then picked [C] the coke dealer up at Rio fucked his brains out and vacuumed his baby to death for an eight ball.” The messages contained phrases such as, “my dad said you had a job ․ or blowjob? Which one do you get paid for and which is free? Not like you didn't suck off [J.L.] or looney [R] for an eightball!!!! If you didn't have crooked teeth and huge thighs you might be able to make money spreading your legs and sucking off Joe Pintos (strangers) [sic].” Appellant also sent a couple of messages from his cell phone along those same lines, alleging “STD['s] from risky gutter sex,” and stating its “time to put your big girl pants on and get a job not take them off and give a blowjob.”  Barson, 2011 Va. App. LEXIS 228, *2 (2011).   

This all is to say that it is a new day for victims of obscene harassment.  Idiots who write and say such unkind things will now have far less change of wiggling out of a conviction now that obscene means obscene once again.    

In the case of Damankah v. Damankah (CL-09-000345), the Salem Circuit Court determined that husband’s student loan debt acquired during the marriage and prior to the final separation of the parties was marital debt subject to apportionment under Virginia Code § 20-107.3.  The court then apportioned the entire debt to husband.  The court held:

“Although testimony was presented in the instant case that a portion of the student loan was used directly for family living expenses, no evidence was presented as to what portion of the loan was spent for those expenses.  Husband contends that the entire loan was for marital purposes because part was used directly for living expenses and part to enable him to increase his earnings for the benefit of his family.  He concludes, therefore, that it is a marital debt.  Wife denies that.  The Court cannot guess or speculate as to the facts of a case or the actual division or expenditure of loan proceeds.  The student loan debt solely in Husband's name was obviously used, at least in part, for the direct support of the family, and it did increase Husband's earnings.  Considering the limited evidence before  the  Court,  the  factors  set  forth  in  §  20-107.3(E),  Code  of  Virginia  (1950),  as amended,  especially those  factors  dealing with the length of  this marriage, the health of  the  parties,  the  actual  grounds  for  divorce,  Husband's  stated  but  unproven  reason  for leaving  the  family,  the  disparity  in  education,  the  original  purpose  of  the  loan,  the lifetime benefits to be  received from that debt by Husband, the present and future earning potential  of  Husband and Wife and the disparity therein, the Court finds  that Husband's student loan has been proven to be marital property.   For the reasons set forth herein, the Court  finds  that  the  debt  should be paid in  full  by  Husband,  the  same  as  if  it  were  his separate debt.  No  portion  of  it  will  be  assigned  to  the  Wife,  and  neither party will  be required to pay an equitable distribution award to the other.”

That the court apportioned the entire student loan debt to husband is not surprising given the facts recited above, particularly that the marriage lasted no more than 8 years prior to the marital separation and that the husband alone would benefit from his education moving forward.  That the court determined that the student loan debt was marital debt in the first instance is also not surprising, considering it was incurred during the marriage and used for clearly marital purposes.  The interesting nuance is that the court bothered to look at the factors under Va. Code § 20-107.3(E) to help him determine that the student loan debt was marital. 

The Virginia Code’s language defining separate and marital debts is relatively straightforward.  Virginia Code § 20-107.3(A)(4) and (5) state:

“4. Separate debt is (i) all debt incurred by either party before the marriage, (ii) all debt incurred by either party after the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and (iii) that part of any debt classified as separate pursuant to subdivision A 5. However, to the extent that a party can show by a preponderance of the evidence that the debt was incurred for the benefit of the marriage or family, the court may designate the debt as marital.

5. Marital debt is (i) all debt incurred in the joint names of the parties before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, whether incurred before or after the date of the marriage, and (ii) all debt incurred in either party's name after the date of the marriage and before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent. However, to the extent that a party can show by a preponderance of the evidence that the debt, or a portion thereof, was incurred, or the proceeds secured by incurring the debt were used, in whole or in part, for a nonmarital purpose, the court may designate the entire debt as separate or a portion of the debt as marital and a portion of the debt as separate.”

The student loan debt in this case was incurred in husband’s name after the date of the marriage and before the date of the last separation of the parties.  The court apparently received no evidence suggesting that the student loan debt was used for a nonmarital purpose.   Instead, the student loan debt was used to finance the husband’s education and pay some living expenses.  So the student loan debt was clearly marital debt under Va. Code § 20-107.3(A)(5). 

Nevertheless, the court looked at Va. Code § 20-107.3(E) in determining whether the student loan debt was marital or separate debt.  That section states:

“E. The amount of any division or transfer of jointly owned marital property, and the amount of any monetary award, the apportionment of marital debts, and the method of payment shall be determined by the court after consideration of the following factors:

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;

3. The duration of the marriage;

4. The ages and physical and mental condition of the parties;

5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;

6. How and when specific items of such marital property were acquired;

7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;

8. The liquid or nonliquid character of all marital property;

9. The tax consequences to each party;

10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and

11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.”

There is nothing in Virginia Code § 20-107.3 permitting the court to consider the factors above in determining whether a debt is marital or separate and the plain language of subsection (E) makes clear that it has nothing to do with determining whether a debt as either marital or separate.  Rather, that section is brought to bear only after a debt has been determined to be marital.  Indeed, the appellate caselaw supports this:  "The court first must classify the property as either [separate, marital, or part separate and part marital property].  The court then must assign a value to the property based upon evidence presented by both parties.  Finally, the court distributes try property to the parties, taking into consideration the factors presented in Code § 20-107.3(E)."  Alphin v. Alphin, 15 Va.  App. 395, 424 S.E.2d 572 (1992).  Besides, it certainly makes sense for the court to make decisions about how to apportion a marital debt by taking into consideration the length of the marriage, the health of  the  parties,  the  actual  grounds  for  divorce, the reasons for the dissolution of the marriage, the disparity in education between the parties,  the  original purpose of the debt,  the lifetime benefits to be  received from that debt, and the present and future earning potential  of the parties.  It makes little sense for the court to take that evidence into consideration when determining whether a debt is marital or separate.  So why did the court do so when there is no statute or case law telling it do so or even giving it the authority to do so?

The Washington County Circuit Court in the case of In re: Brian Keith Justice (CL11-74) bases its uninteresting answer ("yes") on an interesting rationale.  The court in that case needed to determine whether the petitioner, who had earlier entered into a civil union with his partner in Iowa, was either: (i) seeking to change his name for a fradulent purpose, or (ii) that his requested name change would infringe upon the rights of others.  Va. Code Sec. 8.01-217(C).  The court found that his requested name change was not sought for a fradulent purpose because the petitioner testified: (i) that he was aware that same-sex marriages are prohibited in Virginia, (ii) that he did not intend to hold himself out as part of a married couple, (iii) that he understood that the name change would not grant him marital rights, and (iv) that he only sought the name change so that all of the persons in his household would share the same last name.  The court likely did not consider grounds (i) and (iii) as essential to its decision because it is doubtful that it would have found a fradulent purpose if, say, the petitioner had stupidly believed that he was gaining marital rights merely by changing his name.  Ground (ii), therefore, was most likely the lynchpin behind the court's decision.  If so, it is rather surprising to think that this court might have construed the petitioner's desire to hold himself out as part of a married couple pursuant to his prior civil union and subsequent name change as a "fradulent purpose."  And it begs the question whether the court would find such a "fradulent purpose" if the petitioner had in fact been married in a state that grants same-sex marriages rather than mere civil unions.

Introduction

          Can you change your child's last name after divorce?  What if the other parent objects? 

The Code

            A person seeking a change of name for themselves or their minor child can petition, under oath, the circuit court where that person, or his or her minor child, resides for an order changing that person’s name.  Virginia Code Ann. § 8.01-217(a) and (b).  If a minor child’s name is sought to be changed, the parent who does not join in the application shall be served with reasonable notice of the application pursuant to Va. Code Ann. § 8.01-296 and, should such parent object to the change of name, a hearing shall be held to determine whether the change of name is in the best interest of the child.  Va. Code Ann. § 8.01-217(a).  The court, shall, unless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others or, in a case involving a minor, that the change of name is not in the best interest of the minor, order a change of name.  Va. Code Ann. § 8.01-217(c)

Caselaw and Analysis

            Section 8.01-217(c) appears to create a presumption that the minor child’s name shall be changed as desired unless it would not be in the child’s best interest.  The Supreme Court of Virginia, however, has flipped this apparent presumption on its head.  Instead, the person seeking the name change has the burden of proving, through clear and convincing evidence, that the change of name is in the child’s best interest.  Further, should a parent object to a change from his or her surname, the Court has created a list of factors one of which must be met for the change to be ordered.

Flowers v. Cain

            The seminal case of Flowers v. Cain, 237 S.E.2d 111 (Va. 1977) creates the basic presumption in favor of the status quo and outlines the factors that will permit a deviation.  In Flowers, the parties married and had children. Id. at 112.  The couple later divorced and the children went to live with their mother (“Mother”).   Id.  Thereupon, Mother married the children's stepfather (“Stepfather”).  Id.  Mother and Stepfather wanted to change the children’s surnames to Stepfather’s surname.  Id.  The children were about 7 years and 1 months and 5 years and 9 months old, respectively, at the time Mother and Stepfather petitioned for the name changes.  Id.  The trial court ordered the name change, and the father appealed.  Id.

            The Supreme Court of Virginia reversed.  Id. at 115.  It stated its “reluctance to change the name of a child over the objection of the natural father,” and its agreement that “in the face of such objection and the absence of substantial reasons, the change should not be ordered.”  Id. at 113.  Instead, in general, a change of name will not be ordered unless:

(1) The father has abandoned the natural ties ordinarily existing between parent and child,

(2) The father has engaged in misconduct sufficient to embarrass the child in the continued use of the father’s name,

(3) The child otherwise will suffer substantial detriment by continuing to bear the father’s name, or

(4) The child is of sufficient age and discretion to make an intelligent choice and he desires that his name be changed.  Id.

Using these factors, the Supreme Court of Virginia considered the facts of the case. Father visited the children once in a while, but he had not abandoned the children.  Id. at 114.  Indeed, he provided them with regular child support.  Id.  Further, no evidence was offered of him committing embarrassing acts or the like.  Id.  The lone evidence offered that the children would suffer from continuing to bear Father’s name occurred when the children thought their surname was changed to Stepfather's surname upon Mother’s remarriage.  Id. at 113-114.  The Court stated that such confusion was a mere inconvenience and typical of the behavior of a child of divorced parents.  Id. at 114.  With no “substantial reason” to change the children’s name over Father’s objection, the Court held that the trial court erred in permitting the change and reversed its decision.  Id. at 115. 

 The Scope of Flowers: The Factors Applied

            Since Flowers, there have been but two appellate court cases that address the scope and meaning of the Flowers factors.  In May v. Grandy, 528 S.E.2d 105 (Va. 2000), a married couple had a child (“Child”), who adopted her father’s (“Father”) surname.  Id. at 106.  Later, the couple divorced and Child went to live with her mother (“Mother”).  Id. at 107-108 (Koontz, J., dissenting).  Mother later remarried.  Id.  Mother, per Child's wishes, desired to change Child's surname to her stepfather’s surname.  Id. at 106.  Child had been using Father's surname for about 12 years at the time Mother petitioned the trial court for the change.  Id.  Nevertheless, Child had been asking to have her surname changed for the past four years.  Id.  Further, Father had not seen or spoken with Child for 2 1/2 years due to "job schedule and traveling."  Id.  The trial court granted the name change, and Father appealed.  Id. 

            The Supreme Court of Virginia affirmed the trial court’s decision.  Id. at 107.  While the court did not find that Father abandoned Child, it did hold that the trial court was entitled to place great weight upon Father’s general absence from Child’s life.  Id.  Further, it noted that the trial court considered Child’s desire for the name change given her age and level of maturity.  Id.  Hence, the Court’s decision implied that a petitioner need not prove literal abandonment of the child.  Instead, proof of a failure to foster a meaningful relationship with a child should suffice.

            In Spero v. Heath, 593 S.E.2d 239 (Va. 2004), the Supreme Court of Virginia considered the “embarrassment” factor.  In that case, the father-petitioner offered evidence that the mother-objector “had been convicted of ‘driving under the influence of alcohol within one year’ of the child’s birth.”  Id. at 240.  The Court held that this conviction “did not rise to the level of misconduct sufficient to embarrass the child in the continued use of the parent’s surname.”  Id. at 241.  Hence, the Court implied that a crime that is malum prohibitum rather than malum in se is an insufficient ground to permit a name change over an objection. 

            The Frederick Circuit Court reached a similar conclusion years before in the case of In re Change of Name of Stickel, 11 Va. Cir 42 (1986) (Frederick County).[1]  In that case, the mother-petitioner offered evidence that the father-objector used alcohol and marijuana on a “rather frequent basis,” and had done so in the presence of the child.  Id. at 43.  Further, she offered evidence that he had been put in jail for a week, Id., due to traffic violations.  Id. at 44.  The Court held that these facts were “too insubstantial to warrant [a change of name]” and that his traffic crimes “involved no moral turpitude.”  Id.  Of note, the Court chalked up the father’s behavior to the wildness of youth, and reasoned that he had otherwise been an excellent father despite problems with the mother.  Id.   

The Scope of Flowers: Application to Different Facts

            Despite the dearth of Flowers factors cases, various appellate courts have held that Flowers is not limited to the scenario where the father challenges the petition of his ex-wife.  Instead, Flowers creates a presumption in favor of the status quo, whatever that might be.  For example, in Beyah v. Shelton, 344 S.E.2d 909 (Va. 1986), a mother petitioned to change the child’s surname, which had been her father’s since birth despite the fact that mother and father never married, to her stepfather’s surname.  Id. at 910.  The trial court granted the name change, Id., despite none of the Flowers factors being met.  Id.  at 911.  The Supreme Court of Virginia reversed.  Id.  It held that Flowers controlled despite the distinguishing fact that the parties had never married.  Id.  Such a distinction was one of form and not of substance.  Hence, the case was almost indistinguishable from Flowers.  Id.   

            The Court held likewise in Rowland v. Shurbutt, 525 S.E.2d 917 (Va. 2000).  In that case, a child born out of wedlock was given the surname of her mother’s husband at the time, who was not the child’s father.  Id. at 918.  Indeed, the mother and father of the child had never married.  Id.  After the mother divorced her then husband, the father petitioned to change the child’s surname to his surname.  Id.  The trial court granted the name change, Id., despite none of the Flowers factors being met.  Id. at 919.  The Supreme Court of Virginia reversed without so much of a mention of the distinguishing fact that the father was the petitioner in the case.  Id.  Instead, the Court used the Flowers factors to reverse.  Id.  Hence, as Justice Koontz argued in dissent, the Court erased, without mention, the central thrust of Flowers that it is in the best interests of the child to have his or her father’s surname.  Id. at 920 (Koontz, J., dissenting). 

            The Court in Spero v. Heath, 593 S.E.2d 239 (Va. 2004), followed through on the implication in Rowland that Flowers creates a presumption in favor of the status quo and not a presumption in favor of the father.  In that case, the mother, when pregnant, told the father that he was not the child’s father.  Id. at 240.  Hence, the child was born with her mother’s surname.  Id.  Later, the father was able to prove his parentage through DNA testing.  Id.  He thereupon petitioned the court to change his child’s surname to his surname.  Id.  The trial court granted the name change, Id., despite none of the Flowers factors being met.  Id. at 241.  The Supreme Court of Virginia reversed.  Id.  It held that despite the use of gender specific language in its prior cases (e.g., Flowers), nothing in the language of Va. Code Ann.  § 8.01-217 suggests a presumption in favor of the father’s surname or that the mother should have the burden of proof for or against a name change.  Id. at 240.  Thus, the Court presumed that the status quo was in the child’s best interests and reversed the trial court’s decision using the Flowers factors.  Id. at 241.

            One notable exception is the Virginia Circuit Court case In re Change of Name of J.R.O., 27 Va. Cir. 260 (1992) (Loudoun County).[2]  In that case, a child (“Child”) born out of wedlock was given the surname of his mother (“Mother”).  Id.  Indeed, the parties were separated at the time of Child’s birth.  Id.  Later, Mother married another man (“Stepfather”), with whom she had another child.  Id.  She then petitioned the Loudoun Circuit Court to change Child’s surname to that of Stepfather’s surname.  Id.  Child’s natural father (“Father”), however, objected to the name change.  Id.  The Circuit Court ordered the name change because it was in the best interest of Child.  Id. at 262.  More important, it did not use the Flowers factors in protecting the status quo.  Id. at 262.  The Court held this case distinguishable from Flowers and its progeny because Child shared a surname with Mother, the petitioner, and not with Father, the objector.  Id.  Indeed, the Court held that “there is no indication that the maintenance of [Child’s] birth name will affect his relationship with his father.”  Id.  In essence, the Court held that there was nothing for Father to object over and therefore he could not reap the benefit of the Flowers factors.  Hence, the Court considered what was in Child’s best interest unencumbered by a presumption in favor of the status quo.  Id.

Conclusion           

            The cases above lead to the following rule of law: a name will not be changed over a parent’s objection unless the petitioning parent proves one of the following:

(1) That the objecting parent has not fostered the parent-child relationship;

(2) That the objecting parent has engaged in bad behavior sufficient to embarrass the child;

(3) That the child will suffer substantial harm in not using the petitioning parent’s surname; or

(4) That the child is of sufficient age and intelligence to change his/her name and desires the change.

Note, however, under the Loudoun Circuit Court’s logic in In re Change of Name of J.R.O., 27 Va. Cir. 260 (1992) (Loudoun County), the objecting parent must be objecting to a change from his or her surname for this rule to control.  Otherwise, the petitioner need just prove that the change is in the child’s best interests. 

            Though the outer limits of these factors are unclear, Jane’s case for a name change over John’s objection will be stronger to the extent its facts are similar to those in May v. Grundy and dissimilar to those in Flowers v. Cain or In re Change of Name Stickel.  That is, Jane has a greater likelihood of success if John has made, in essence, little to no effort to be a father to Jack.  If John has not fostered a meaningful relationship with Jack in the past 2 1/2 years or more, then Jane should be successful in getting Jack’s last name changed to Smith.  In addition, Jane has a greater likelihood of success if John has engaged in substantial bad behavior sufficient to embarrass Jack.  A one-week jail term for parking traffic offenses might be insufficient.  A more substantial jail term for a crime malum in se might suffice.  Moreover, recreational drug use in the child’s presence might also be insufficient, especially if there is no evidence that the child was harmed through such use.  Further, Jack’s input could be determinative.  If Jack is a teenager, his desire for a name change should be a sufficient ground for permitting the change.  If Jack is younger, his desire for a name change will have to be coupled with another Flowers factor for a court to order the change.

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