(Posted June 27, 2024) While the attention of the appellate world focuses today on Those Other Robes, we in Virginia get a new opinion this morning from the jurists who call Ninth and Franklin home. The Supreme Court of Virginia hands down a single published opinion this morning. Powell v. Knoepfler-Powell addresses the use of a child’s notes in a custody-and-visitation hearing.

After two parents divorced, they agreed that the mother would have primary physical custody of the couple’s daughter; they further agreed on some fairly liberal visitation for the father. Four years later, the mother decided to move out of state. She accordingly filed a motion to permit her to take the girl with her. The father filed a cross-petition seeking physical custody if the mother did move, or to increase his visitation if she stayed in Virginia.

The mother eventually abandoned her plans to move and withdrew that request. That left only the father’s motion for more visitation, based on a change in his work duties that would allow him more time to care for the girl. At a hearing in circuit court, the judge agreed to allow the girl, then aged nine, to testify. When she did so, she told the judge that she had made some notes.

Today’s opinion describes what happened then:

After asking [the girl] some preliminary questions, the judge asked about the notes that she had previously mentioned. In response, [she] gave the notes to the judge. The judge then stated, “[j]ust so counsel know, I haven’t decided whether I will consider this. Let me just review it, and then I will show it to you.” Neither party raised any objections. The judge then told [the girl] that he was going to “take a quick look at [the notes], and then I will give it back to you.”

After looking at the notes, the judge asked her a few questions about their contents, which she answered. The court allowed the litigants’ counsel to ask questions, and they did. The judge then gave the notes back to the girl and allowed her to leave the courtroom.

The court then told the lawyers that during the child’s testimony, a law clerk had photocopied the notes; the judge promised to send copies to counsel. The court added, “we can argue as to what the Court may consider of this, but I would like to admit this as a demonstrative, because she did adopt some of this testimony. And to the extent that some of it is not – obviously, demonstrative means it has no evidentiary value in and of itself.”

The father’s lawyer noted an objection “for the record” – more on that troubling phrase later – and the judge overruled it and admitted the demonstrative exhibit. The court eventually issued a written opinion that denied the father’s request. It found that increasing the father’s visitation might be damaging to the girl, and based its decision in part on a few matters found in the notes. The Court of Appeals affirmed in an unpub.

Today the Supreme Court reverses, finding that the circuit court improperly considered uncorroborated matters in the notes. To be sure, the child’s testimony did address a few of the things in the notes; but key points in the circuit court’s ruling expressly relied on matters for which there was no corroboration. The court thus sends the case back down for reconsideration in light of its holdings.

I’ll add a few observations that occur to me. First, while the Supreme Court faulted the trial judge’s legal ruling, I found myself admiring him for the gentle way he handled the matter of taking testimony from a child of tender years. He went out of his way to make the child feel comfortable, and treated her with the utmost consideration. He even protected the litigants by telling the girl that if the lawyers were to object, it didn’t reflect poorly on her: “They are supposed to keep me in line, too.”

Second, I mentioned the words “for the record.” If you try cases in circuit court, I encourage you to remove this phrase from your courtroom vocabulary. It essentially means “so I can appeal your ruling.” Most judges will understand that it’s part of your job to preserve the record, and it’s unnecessary to emphasize the threat of taking an appeal. Just make your objection and leave “for the record” out of it.

Finally, one glaring preservation ruling caught my eye. Before the girl testified, the court instructed the lawyers to minimize their objections – “you can just say the word [objection]. If I need more, I will ask you for more.” This, too, was a way of minimizing the impact on the girl as she testified.

When the court decided to admit the notes as a demonstrative exhibit, the father’s lawyer obediently objected but didn’t add a lot of detail. That raises the question whether, by adhering to the court’s minimalist admonition, he violated Rule 5:25’s requirement that an objection state the grounds therefor with reasonable specificity.

Today’s opinion observes – correctly, in my view – that it’s easy to infer the grounds of the objection. The notes clearly contained hearsay and were not wholly corroborated. That should be enough in this context, right?

Wrong. Once again, the court today demonstrates that it is simultaneously a court of error correction, a court of law development, and a court of waiver embrace. After noting those perfectly reasonable inferences, the Supreme Court rules that we can’t know whether the father’s lawyer would have raised them or some other basis for the objection.

The court thus treats the objection as waived, citing the observation from previous cases that “it is ‘incumbent upon the litigants to make an appellate record.’” Today’s opinion doesn’t say how, exactly, the lawyer should have proceeded; just that he had to disobey the judge, and possibly intimidate a little girl, to articulate an objection that we can all understand without that detail.

I regard this holding as tone-deaf. Justice Powell, who authors today’s opinion for a unanimous court, essentially tells lawyers in this situation that it’s your predicament, not the court’s; that lawyers have to go and figure out for themselves how to solve such an intractable problem.

This is an eerie echo of the same justice’s opinion after a rehearing grant in the infamous Brandon v. Cox case from 2012 (284 Va. 251). The Supreme Court’s original opinion there had chided a litigant for not setting a hearing on a motion to reconsider before the circuit court lost jurisdiction.

The appellant there pointed out in a PFR that Rule 4:15 expressly bars parties from setting such hearings – only the court can do that – so the Supreme Court was faulting a lawyer for not doing something that its own rules forbade him to do. Faced with this impossible situation, the Supreme Court yanked the original opinion and substituted one acknowledging the rule, but adding unhelpfully that it’s still a lawyer’s obligation to get a ruling somehow. Again, the implicit holding was, “That your problem; not ours.”

I’m not absolutely certain about this, but I strongly suspect that none of the current seven justices have stood in the well of a trial courtroom in the past twenty or so years and uttered the phrase, “May it please the court; ladies and gentlemen of the jury ….” These justices are that far removed from the realities of trial-court advocacy. Hence a ruling like this. Now it’s your job to go and figure out what to do; the court won’t offer a clear path, or even a hint.