CAV ISSUES TWO DOMESTIC RELATIONS RULINGS
On Tuesday, the Court of Appeals released two opinions in domestic relations cases. Both opinions contain discussions of appellate issues that relate to cases in other practice areas.
In Prizzia v. Prizzia, the court determined that it had no jurisdiction to consider the appeal, since there was no final order adjudicating the merits of the case below. The Prizzias were married in 1999 in Hungary. They moved the next year to Henrico County, and lived together there for 2 1/2 years. The family traveled to Hungary for Christmas 2002, but only the husband returned; the wife stayed in Hungary with her two children (one from a previous marriage) and filed a divorce petition there.
While the Hungarian proceeding was pending, the husband filed his own divorce cause, in Henrico Circuit Court. After considering the substance of the foreign proceedings, the Virginia chancellor elected not to exercise jurisdiction over the husband’s divorce and child custody requests “at this time.” Reasoning that the Hungarian court properly had jurisdiction over the dispute, the Virginia court reserved consideration of equitable distribution and support issues until after the Hungarian proceedings terminated.
The husband appealed, but on Tuesday, the Court of Appeals determined that there was no final order that could be appealed. The trial court had simply declined to rule on the husband’s petition “at this time,” and had specifically stated that it would entertain some of the husband’s requests for relief at a later appropriate time. The appellate court determined that this ruling was not a final order, since it did not dispose of the whole subject, give all the relief contemplated, or leave nothing to be done in the case except execution of the court’s adjudication. The court also found that the trial court’s action did not constitute an appealable interlocutory order under Code §17.1-405(4).
In the other domestic case announced on Tuesday, Mullin v. Mullin, the court affirmed several rulings relating to child support ordered by a trial court. But it went one step beyond merely affirming: It awarded the appellee, the mother of the children, attorney’s fees for work in defending the appeal.
Support had been ordered below for a disabled child of the parties, and the trial court directed that the support continue past the child’s 18th birthday. In doing so, it relied on the mother’s (admittedly nonexpert) testimony on the nature and extent of her son’s disability. The father appealed, arguing that the court should have terminated his support obligation when the child reached majority. He also contended that the trial court should have required expert testimony to establish the child’s physical condition, and disputed the trial court’s assessment of attorney’s fees against him.
The appellate court affirmed all of the trial court’s rulings. If found that it was appropriate for the lower court to continue support payments past the child’s 18th birthday, and approved the admission of lay evidence to establish the minor’s physical condition. As for attorney’s fees, the court had little sympathy for the husband, who did not pay his underlying back support obligations “until the morning of trial.”
Finally, and importantly for the appellate practitioner, the appellate court awarded attorney’s fees to the mother for defending what it termed a meritless appeal. It pointed out “the undeveloped nature of father’s brief and arguments,” as well as the mother’s financial condition, as justification for the award. In an important procedural point, the appellate court remanded the case to the trial court for an initial determination of the amount of such fees. Consistent with a long line of precedent, in this court and in other courts of appeals, the court declined to fix the amount of the award itself.
Those handling such cases should be aware of a pending amendment to the Rules of Court that will enable prevailing parties in appeals to recover attorney’s fees in certain instances. The amendments, which take effect on April 1, apply to appeals of cases where the prevailing party below receives a statutory award of fees in the trial court. For a link to the text of the proposed rule, click on “Newly Amended Rules” on the navigation bar at left.
Judge Humphreys authored both of Tuesday’s rulings; both were unanimous panel decisions.