(Posted November 2, 2017)


Alas, the wrong team won the World Series last evening. My beloved Dodgers needed to win eleven games in the postseason, and they went 10-5, falling one victory short in a scintillating Series. So be it; this was a wonderfully successful season.

The justices sensed that I need something to distract me, so they’ve given us two published opinions this morning. Let’s take a look.



Lawyers handling probate matters are accustomed to running their reports by a commissioner of accounts, a delegee of the circuit courts. In Gray v. Binder, we see what happens when a litigant chooses to go straight to the commissioner, bypassing that pesky court.

Gray is the step-grandson of a decedent who made a will half a century ago. The will made specific bequests, including one to Gray’s mother, expressing a “desire that she use it for the education of” Gray.

The grandfather must have made it to a ripe old age, because he outlived everyone mentioned in the will except Gray. A lawyer qualified as personal representative, and due to Gray’s assertion of an interest in the half-million-dollar estate, the attorney wrote to a local commissioner, asking for aid and direction. The commissioner agreed to help.

Commissioners probably do this all the time, but they generally do so after an order of reference from a court. This time, the attorney, in his capacity as personal rep, filed his petition directly with the commissioner. The commissioner heard evidence and issued a ruling against Gray and in favor of some of the decedents’ cousins. The circuit court confirmed the report and entered judgment accordingly. Gray appealed, but the justices refused it in 2015.

Wait; what? You’re probably asking why we have a published opinion if the Supreme Court refused to grant a writ. The reason is that the probate process wasn’t over:

On May 4, 2016, the Commissioner filed a routine debts and demands report with the circuit court, authorizing the Administrator to “distribute the remainder of the estate to the beneficiaries after the final payments of any administrative expenses and debts known to the fiduciary.”

Gray saw an opportunity here: He filed exceptions to the new report, and when the trial court ruled against him, he appealed that judgment. In his appeal, he asserted that the commissioner didn’t have subject matter jurisdiction over the initial proceeding. And since the circuit court’s jurisdiction was derivative of the commissioner’s, that meant the entire previous proceeding was a nullity. That looked intriguing enough to a writ panel that the court agreed to hear the appeal.

Today, in an opinion by the chief justice, the court first dispenses with the cousins’ contention that Gray’s objection came to late, since he never raised it in the earlier proceeding or appeal. That gets nowhere; an objection to subject-matter jurisdiction can come at any time, since SMJ isn’t subject to waiver.

That proves to be the extent of Gray’s victory today; on the substance of the case, the court rules that it can’t review an objection to the commissioner’s subject-matter jurisdiction. That’s because, under the Constitution and Code of Virginia, the Supreme Court has the power to review circuit courts; not commissioners. The opinion notes simply that the circuit court certainly had subject-matter jurisdiction over an aid-and-direction petition, and that’s all the appellate court can touch. The court accordingly affirms.

Justice McCullough files a short and interesting concurring opinion. He notes that there may well be a thorny legal issue over whether a commissioner can hear matters without an order of reference. But the procedural posture of this case bars review of that question, so it’ll have to wait for another appeal on another day.

Domestic relations

Anybody who knows anything about weddings knows that the celebrants have to have a marriage license. That little detail seems to have slipped the minds of the happy couple in Levick v. MacDougall. They fell in love, picked a date, recruited a rabbi, and showed up for the ceremony without ever thinking to get that slip of paper.

No problem, the rabbi assured them. Just go get one, send it to me, and when I receive it I’ll sign the marriage certificate. That worked for the couple, and on December 21, 2002, they exchanged vows. Two weeks later, they went to the courthouse and got the license, which is officially known as a marriage register. At that point, according to today’s opinion, the ostensible husband told his ostensible wife “that he would mail the marriage register out right away to the rabbi, and she agreed and kissed him goodbye.” He dutifully put the register in the mail.

The rabbi was traveling, so he didn’t receive the document until January 21, a full month after the ceremony. He signed it that day – stating that the marriage had taken place January 21 instead of back in December – and regarded that the parties were married.

The parties thought so too, including several years later when the bloom and the rose had long since parted company. As the marriage deteriorated, the parties signed a marital agreement by which the ostensible husband, Mr. Levick, would pay his ostensible wife, Ms. MacDougall, $150,000 annually in spousal support and would agree to generous equitable distribution for her benefit, all in the event of divorce.

That proved to be prescient; the parties did indeed file for divorce. During the pendency of those proceedings, Mr. Levick filed a pleading asserting that the marriage was void ab initio because of the difference in the dates on the register. This, as you will readily understand, makes a great deal of difference to the parties: If there was no marriage, then there’s no basis for the marital agreement, and the ostensible husband will save himself a lot of coin.

The circuit court ruled in favor of Mr. Levick, ruling that he wasn’t a husband at all. The Court of Appeals sort-of affirmed, holding that the marriage was voidable, not void. It still ruled in favor of Mr. Levick.

Today, a sharply divided Supreme Court reverses and remands. The majority finds that while this arrangement may be novel, it isn’t absolutely forbidden by our marriage statutes, and in that context, Virginia’s strong presumption in favor of marriages compels the conclusion that the parties were an actual husband and an actual wife; nothing putative about it.

I am not accustomed to giving orders. I’m outranked at home, where The Boss can outvote me, 1-1. Here at my office, when my legal assistant tells me I have to do something, I do it; I know what’s good for me. But I beg your leave, my dear readers, to issue an order to you, here and now: If you have even the slightest intellectual curiosity about the law – and I presume that you do, or else you wouldn’t have this site bookmarked – you MUST, thou SHALT, read this slip opinion, including the dissent. Justice Kelsey writes for the majority and Justice Powell pens the dissent. Both are fascinating pieces of reading, with each side firing legal volleys in what brought to mind for me an 18th Century naval battle between frigates. Each side has several convincing points to make. I won’t prejudice you; go click on the link above, read it, and see where your sentiments lie. I thoroughly enjoyed the experience, and so, I confidently predict, will you.