TWO RECENT CAV RULINGS ON EQUITABLE DISTRIBUTION AND FINALITY OF ADMINISTRATIVE APPEALS

In two opinions handed down last week, the Court of Appeals of Virginia affirmed the allocation of responsibilities among a trial court and a commissioner in chancery, and sharpened the focus of the finality doctrine in the context of an administrative appeal.

In Morrill v. Morrill, the en banc court renders a 6-5 decision on an equitable distribution question. Specifically, the court finds that the trial court, not the commissioner, has the responsibility to make equitable distribution of the divorcing parties’ property. In doing so, the trial court is not bound to accept the commissioner’s findings on issues that bear upon the issue of equitable distribution.

After the commissioner’s hearing, the court received additional evidence relating to the question of whether the wife had engaged in forgery. The commissioner had found the evidence on this question to be “in equipoise.” The majority specifically approves of this measure, but a strong dissent argues that the evidence should not have been admitted. It contends that pursuant to the decree of reference, the commissioner is the proper authority to receive evidence of the parties’ behavior, and the court is thereafter permitted to receive separate evidence only on the question of the effect that behavior had upon the marriage.

Two little words illustrate the importance of this case to domestic relations practitioners: en banc. Unpublished opinions of the court have little or no precedential value; panel decisions have significant precedential value and should always be heeded. But an en banc ruling carries the strongest precedential value of all of the court’s pronouncements, since all of the judges of the court take an active role in the decision. Even a sharply divided ruling, such as this one, takes on added weight in this context.

The court also decides DPOR v. Lancaster, an administrative appeal involving two real estate agents. The court dismisses this appeal without prejudice, finding that the order appealed from was interlocutory and not appealable.

Briefly stated, the Real Estate Board imposed discipline on two licensed agents. The agents appealed to the Circuit Court under the Administrative Process Act. The Circuit Court affirmed two of the three counts in the underlying proceeding, but remanded the remaining count to the Board for further fact-finding. The Board appealed this decision, but the Court of Appeals finds that the remand is not a final order subject to appeal. Since the trial court “has yet to render his decision regarding Count I,” the remand order is not a final judgment.

The court also declines to consider a separate issue raised by the agents, whether the trial court should have found the Board to be in default after the matter reached that court. That issue, too, is determined to be interlocutory; since the trial court still has control over the proceedings, it can still make (or modify) an order regarding filing of the Board’s pleadings.