With the Court of Appeals sitting as a court of general appellate jurisdiction for almost 18 months, would think that there would not be many more “firsts” for the Court to get to, but today we get one of those remaining firsts taken care of – the Court decides its first tax law case. Commonwealth of Virginia, Department of Taxation v. 1887 Holdings, Inc. etc sees the taxman appealing from a grant of summary judgment allowing a multi-state taxpayer to file an amended tax return that alters the method of income apportionment from that used in the original return. Tax Law is akin to Administrative Law in one very important way – it is arcane and best left to the specialists. That having been said, your humble correspondent does not have quite the level of loathing for tax law that he reserves for Administrative Law. However, even without such disdain, this case is really nothing to write home about as it turns on that most common of statutory construction tools the “plain meaning of the statute.” The Court of Appeals, Chief Judge Graff joined by Judges Huff and Callins, affirms the judgment in favor of the taxpayer by observing that nothing in the relevant statute requires the taxpayer to stick to its original method of income apportionment when amending a return. In fact, if you think about it, one particular good reason for amending a return is because you realize that you overpaid when filing your return – and the law of taxation has one maxim that everyone should no – the law requires you to pay your taxes, but you are required to pay only the least amount which the government can require you to pay.
Marquay Christopher Alston, s/k/a Marquay Christopher Lee Alston v. Commonwealth of Virginia is an appeal from convictions for aggravated malicious wounding in violation of Code § 18.2-51.2 and discharging a firearm from a vehicle in violation of Code § 18.2-286. Although both incidents occurred on the same night, they happened at different locations and were tried separately, but were combined for briefing and argument on appeal.
Alston and his girlfriend attended a party in Radford. The opinion does not provide Alston’s age, but both the victim and his girlfriend are identified only by their initials to protect their identity as they were minors at the time. A.S., the girlfriend, became engaged is particularly aggressive cat fight with several women and, J.C. attempted to intervene, taking A.S. in a “half bear hug.” Alston took umbrage at the manhandling (boyhandling?) of his girlfriend, who was several months pregnant, and began punching J.C., who attempted to retreat, with Alston pursuing him and administering a pretty through beatdown which left J.C.’s teeth “mangled” and sending him to the hospital. J.C. lost six teeth.
Alston left the party and shortly afterwards gunfire was heard outside. Joshua Turman and a friend decided it was also time to leave. When Turman and the friend reached friend’s vehicle, Alston and two others “jumped in the backseat.” Turman drove to a convenience store to buy alcoholic beverages and “Alston pressured Turman to buy cigarettes.” As the group drove around, Alston, without warning, fired two shots out a car window, “terrifying” Turman.
Now I think it is fairly plain from this evidence that Alston was guilty of both offenses, so why is this a published opinion? Well, it’s because Alston has a pretty creative lawyer who reads statutes carefully (as we all should) and made some interesting arguments about sufficiency. My guess is that the Court wanted something in writing to help the next trial judge who is faced with similar creativity.
The attorney based his sufficiency challenges to both convictions based on arguments that the Commonwealth didn’t prove malice for the malicious wounding charge because Alston was acting in defense of his (pregnant) girlfriend and that even if he was acting with malice, the loss of six teeth wasn’t a “significant and permanent injury” because implants can make your choppers better than new (albeit J.C. had not yet been able to afford implant surgery).
As the firing from a vehicle offense, Alston fired out of the vehicle in an unpopulated area, so there was no evidence that he “create[d] the risk of injury or death to another person or thereby cause another person to have reasonable apprehension of injury or death.” Turman was frightened, certainly, but never in any real danger.
The Court of Appeals, Judge Callins joined by Judges Friedman and White, are having none of it – and good on them. While these arguments are creative, they just don’t fit the facts of this case. First, Alston’s defense of girlfriend, pregnant or otherwise, was wildly out of proportion to J.C.’s “half bear hug” restraint, and Alson’s pursuit and escalation of his own assault on the retreating J.C. went far beyond a defense of another claim. Second, merely because an injury can be cosmetically repaired does not mean that the injury is not both serious and permanent.
As to Turman was a scaredy cat, but not really in danger, the Court notes that the statute does not require anyone to be in actual danger, merely to be but in apprehension of injury or death. Given that Turman had witness the attack on J.C., I think, especially in the light most favorable to the Commonwealth, the evidence showed that he was “apprehensive” about Turman’s intent at recklessly firing a weapon inside the close quarters of car, regardless of where it was aimed.
Dale A. Happe v. Kathryn Zimmerman involves the standard to be applied when a court extends a protective order under Code § 19.2-152.10. Now as with many, protective orders, this one involved a romantic attachment, though in this case is was decidedly one-sided. Happe was an employee of Zimmerman’s who became obsessed with her and wouldn’t take a polite “no” and a slightly less polite “go away.” Hence, Zimmerman obtained a restraining order.
Zimmerman changed her phone number and email address, but over the course of the next two years would encounter Happe. Although he would not approach or try to communicate with her, he would stare very noticeably at her. As the protective order was due to expire, Zimmerman sought an extension, which Happe opposed.
Let us pause here to consider why someone would oppose a protective order being extended if they no longer had an interest in the person who obtained the order. Well, there are good reasons to do so. Protective orders are matters of public record and can cause embarrassment and worse for the individual subject to the order. Likewise, some protective orders ban the person from possessing a firearm. But, having said that, one gets the feeling from the facts as recited in this case that Happe was not really concerned with such collateral issues. In any case, whatever you may call his behavior, I think we can all agree it’s creepy.
Anyway, Happe argued that merely showing up unexpectedly where Zimmerman happened to be and staring at her was not sufficient to show that he posed a threat to her. The circuit court disagreed and Happe appealed.
The Court of Appeals, Judge Humphreys joined by Judges O’Brien and Chaney, affirm the extension of the protective order. The Court rejected Happe’s argument that an extension of a protective order required what would amount to a new evidentiary hearing under the same standard required to obtain the protective order in the first place. The correct standard, the Court holds, is whether the extension is needed to protect the health and safety of the protectee. If Happe’s interpretation were to be applied, it would naturally necessitate that the person subject to the protective order commit some act in violation of the order, or close to it.
Of late it has be fairly rare for the Court of Appeals to issue a single published opinion, but that is what happened today, and wouldn't you know it the counsel for the disappointed appellant is a name familiar to the regular readers of this blawg (both of you!). So it is a little awkward to report on the decision of the Court in Sidney Jordan Brandon, III v. Laurie Coffey.
The issue in the case was straightforward (sufficiently so that the Court takes only seven and a half pages to deal with the case): When a court is making an initial custody decision as between natural parents and the evidence shows that one parent will reside outside the Commonwealth, should the court make express consideration of the hardship this removal will have on the parent remaining in the Commonwealth with respect to the best interest determination? Now if you have a passing familiarity with the law of custody, you know that a parent who is award primary physical custody of a child in Virginia and then subsequently decides to move outside the state, they can't just pick up stakes and move. Typically, the non-custodial will have a right to object and may even be able to obtain a change of primary custody. At the very least, the court is going to have to make some hard decisions about visitation schedules if the new home if significantly distant from the non-custodial parent. However, it may surprise you to learn that when making an initial custody determination, the statutes are silent as to whether the child being taken out of Virginia is a relevant factor that the court must consider and make an express finding of its impact on the best interests of the child.
The parents in this case were never married, but were for the first ten or so years of their daughter's life amenable to shared custody by informal agreement with the mother having primary custody including when she was living overseas. This changed, however, when mother was going through a career transition and the daughter went to live with the father in Virginia. When mother subsequently returned to the United States, she wanted to resume primary custody and take the child to live with her family in upstate New York, father objected and the parties ultimately wound up in court to have the custody of the child legally determined for the first time.
This, as it turns out, was a unique (to that point) situation so far as appellate guidance is concerned and probably explains the reason that today's short opinion is going to be published. While the issues had common up in the context of divorcing parents, there is comparatively little case law about children conceived in relationships that lacked "benefit of clergy" in the old vernacular where one party was intending to take the child out of the Commonwealth if awarded physical custody.
Although the trial court issued a lengthy opinion letter (far longer than today's opinion because the court went in to great detail about the specifically required factors in making a custody determination), nary a word was said about the mother's intention to relocate the child to New York before awarding her primary custody.
Let me begin by saying that the result against my client, the father, was not entirely unexpected. First, while the fact pattern of the case was unique, it was likely that the Court of Appeals was going to consider this a difference without distinction. After all, while a few generations back there would have been scandal attached to a custody fight over a child born out of wedlock, there is really no legal distinction between married parents and unmarried parents disputing custody.
Second,during oral argument it was fairly clear that the panel, Judge Ortiz, who authored today's opinion, Judge Chaney and Sr. Judge Haley, were going to stick to the strict letter of the law that if the General Assembly did not expressly designated the future domicile of the child as a factor the trial court must consider, then it is entirely within the court's discretion to give great, little, or no weight to that issue and says as much, as little, or nothing at all about it in writing. That is actually what I expected and had advise my client early on that the Court was likely to say the this was a matter for the legislature to address, as it is not for the courts to add language to a statute that the General Assembly chose not to include.
What did surprise me about the oral argument (and the opinion) was the view expressed by two of the judges that "when they were practicing law and sitting on the trial bench" it was common practice to consider the domicile of the child in making the "best interest" determination, but to do so tacitly. I don't doubt that this is true -- and as the opinion implies, the judge in this case was aware of the situation and probably weighed it as part of his best interest determination. However, by not saying specifically that future domicile was considered (because the law does not require it), I am not sure that the "probability" that the judge considered it is much of a sop to the parent who is separated from their child by hundreds of miles.
Like a good many cases that I analyze in this space, I reach the conclusion that the the remedy for future cases lies with the elected branches. Specifically, Code § 20-124.3 needs to be amended to include whether the intended domicile of either parent will be outside the Commonwealth as one of the mandatory factors to be considered in an initial custody determination. As with all other observations, I won't be holding my breath.
The Court of Appeals issued published opinions in four new appeals today and an en banc decision from a prior split-panel decision. The new appeals deal with revocation of probation, domestic relations, and adverse possession.
We will start with Jordan Darrell Morris v. Commonwealth of Virginia, the en banc, for which the panel decision was previously summarized here. The majority on the panel vacated Morris’ criminal convictions for possession and DUI-D, finding that the circuit court had improperly applied the medical-amnesty statute, Code § 18.2-251.03, which shields from arrest or prosecution those persons who seek emergency medical assistance because they are experiencing a drug overdose. Judge (now Justice) Russell dissented, finding that the majority was reading the statute too broadly.
Although Justice Russell was not part of the en banc, his view from the panel prevails today in an opinion from Judge Lorish joined by Chief Judge Decker and 11 of her fellow judges. If fact, the majority takes an even narrower view of the statute than did Justice Russell, finding that it is meant to apply only where the defendant remains at the scene of the overdoes or to any alternate location to which he is transported until law enforcement responds to the report of the overdoes. Morris was driving himself to the hospital after having an adverse (possibly psychological rather than physical) reaction to ingesting illegal drugs. Justice Russell’s original dissent focused on whether Morris was actually experiencing an overdose, but the majority says that this is beside the point as Morris never “reported” the overdose until after he was approached by law enforcement officers who were investigating his erratic driving. Thus, according to the majority determines that Morris is not entitled to protection from the statute because he didn’t report his overdose to the police as contemplated in the statute.
Judge Raphael and Ortiz, the original panel majority, dissent, as does Chaney in a separate, short opinion. Judge Callins writes a separate opinion concurring in judgment, but not supporting the majority. Rather, she simply finds that Morris’ proffer was insufficient to establish a causal nexus between his ingestion of a controlled substance and the alleged overdose. Both dissents and the concurrence take the view that the majority has taken a form over substance approach to a statute that was meant to benefit people like Morris who seek medical treatment after experience an adverse reaction to an illicit substance.
While I am in sympathy with the dissenters that perhaps the law ought to apply to Morris’ situation, I still find myself more inline with Justice Russell’s original dissent which said, in effect, what a law “ought” to do is for the General Assembly, not the courts, the decide. Thus, I find the current majority’s view to be a little too narrow (though strictly within the letter of the law). Expect an appeal to the Supreme Court (and a move to amend the law next session, especially if the balance in the General Assembly swings back to the left in the fall elections).
First up among the new cases is Calvin Wayne Thomas v. Commonwealth of Virginia, an appeal from a probation revocation in which we once again try to understand the new regime for such cases. Thomas was on probation for a sexual battery conviction. His parole officer issued a notice of violation for alcohol and marijuana abuse. This was a “first violation,” but if you have been following the cases interpreting the new law, you know that not all first violations are equal.
Now the interesting result in this case is going to seem counterintuitive – and that’s because it is. Thomas tested positive for marijuana use three times, and on the final time also for alcohol use. The conditions of his probation required him to abstain from both. Based on these two violations, the court gave Thomas 90 days of his comeback time to serve.
Now, I am going to tell you that the Court of Appeals, Chief Judge Decker joined by Judges Huff and Callins, affirm in part, reverse in part, and remand. Given that I’ve said the result is counterintuitive, try to figure out before reading on which violation – three positive tests for marijuana or one positive for alcohol – was the problematic one resulting in the partial reversal.
If you guessed the three marijuana positive screens, you are right. As the Court observes, this case comes “on the heels of a sea change in the applicable law, [and] the trial court was required to decipher a new sentencing scheme and make a ruling.” The Court recognized that the trial judge was essentially stumbling down a dark alley because no appellate decisions explaining the new law had been released at the time, yet I still feel the Court was a bit harsh in immediately following this up by saying the trial judge erred because subsequent published case law shows he misinterpreted the new law.
So, how can one violation of “don’t drink demon rum” be worse than three violations of “don’t smoke the devil’s weed”? The answer is that the latter violations are “technical,” while the former is “special.” Here’s why: normally, abstaining from alcohol is not require of a probationer unless it interferes with some other aspect of his probation, like maintaining employment. But in this case, Thomas was specifically required to abstain from any consumption of alcohol; specific, or “special” requirements are never merely technical violations. Marijuana, however, is a one of the controlled substances the use or possession of which constitutes a technical violation the first go-round, so even if listed separately as a “special” condition, the instructions to the probationer cannot override the statute. The case is remanded for the circuit court to reconsider the amount of time that Thomas should spend repenting his taste for alcohol.
Jennifer M. Payne v. David Ray Payne is one of two domestic relations cases today and is appeal from a divorce decree that assigned fault to the wife for desertion, denied her spousal support and also credited husband with contributions to a mortgage and home equity loan made after the separation. Judge Callins is joined by Judges Chaney and Raphael in affirming, leaving me to wonder at what makes this opinion worthy of publication given that under the standard of review, which is abuse of discretion as set out in the opening paragraph of the opinion, is exactly the result I would have expected.
The answer to what makes this a publication worthy case may be that the fact pattern is one that is increasingly common – a “baby boomer” couple who find that the empty nest is not comfortable because during the years of child-rearing they grew increasingly distant. The wife, particularly, had difficulty adjusting and suffered with depression. In short, this case is one in which there will be some sympathy for the wife, and perhaps the definition of desertion no longer has application in a world where we have a greater understanding of the complexity of marital relationships. However, as with the Morris case, it’s not the job of the courts to say what the law ought to be, only whether the evidence supports the trial court’s application of the law as it is.
The other domestic relations case is Melinda Mills v. Robert Alexander Mills and begins with the statement that parties “come before this Court once more to address issues related to their 2015 divorce.” The prior appeal was back in 2019 and affirmed in part and reversed in apart findings that wife had violated a property settlement agreement. As Yogi Berra says, “It’s déjà vu all over again,” at least as to the split decision by Judge Callins joined by Judges Chaney and Raphael affirming in part and reversing in part.
The PSA provided that wife was to have the use of the marital residence until the youngest child started college – interestingly, there was no alternative provision for what would happen is said child decided to pursue a career as an influencer rather than obtaining a college degree, however this is a subject for a CLE on how not to have an indefinite condition subsequent in a PSA – then would be sold and the proceeds divided. The PSA allowed the parties to modify the agreement and they purportedly did so, giving wife 100% of the equity in the marital home.
Three years later, husband moved to reopen the case and have the property sold and the proceeds divided. Wife, naturally, responded with her own request to have the property titled solely in her name. All of this came about while the prior appeal was moving through the courts and was ultimately remanded for an award of attorney’s fee to husband as the prevailing party in the prior contempt proceedings.
Out of this convoluted fact pattern, the court issued a decision upholding the modification of the PSA, thus requiring an award of attorney’s fees to her as the prevailing party on that issue, but also awarding fees to the husband from the prior contempt proceeding. The wife appealed and the husband assigned cross-error with a total of ten assignments of error. Suffice to say that this time the wife, who was mostly on the losing end in the last appeal, is mostly on the winning end this time. The error found by the Court of Appeals was that because the modification of the PSA was valid, husband was liable to wife for the cost of a special commissioner to sell the property – which occurred because wife was planning to sell the property when husband sought to enforce the original terms of the PSA. Wife doesn’t get everything she asked for, however, because the Court agreed she was not entitled to interest in the proceeds while they were held in escrow.
The last of today’s opinions, Nancy C. Veldhuis, as Trustee, etc. v. Tarek C. Abboushi and Kye S. Abboushi, involves an issue almost as fraught with emotions as the prior two domestic relations cases – neighbors disputing a property line. As is typical in such cases, one side claims property of the other by adverse possession, and the other responds with a claim for trespass. The circuit court found for the adverse possession claim and today the Court of Appeals, Judge Fulton joined by Judges Beales and Lorish, affirm.
The facts are pretty straightforward. When purchasing their residential property in 1996, the Abboushis did not obtain a survey, but asked the then owner of the adjoining property where the boundary line was. The owner identified a clearly observable line running along the edge of a driveway back to a specific tree. Thereafter the Abboushis maintained the property on their side of this line, making improvements in landscaping to provide privacy, making the apparent property line even more visible. The adjoining land owner later sought and was given permission to run an underground drainage pipe along the driveway in that he had previously indicated was part of the Abboushis’ property in 2009.
When the neighbor passed away shortly after this, his daughter, Veldhuis, inherited the property and transferred it to a living trust. The tree that had previously been identified as marking the back end of the property line died and the Abboushis removed it at their own expense after Veldhuis expressed concern that it was a hazard.
It wasn’t until 2020 that Veldhuis first asserted a claim to the property – 24 years after the Abboushis were by open and obvious acts claiming dominion. Clearly this would be an easy case for adverse possession – but Veldhuis made the novel argument that when the drainage pipe was installed to benefit her property in 2009, this ended the exclusive nature of the Abboushis claim. The circuit court found that it was unclear whether the pipe actually was on the disputed portion of the property and that, in any case, because Veldhuis’ father sought permission to place the pipe, this clear established that the placement of the pipe was not a hostile act against the Abboushis claim. Although there are four assignments of error, the Court of Appeals finds the latter fact – the permissive installation of the pipe – to be dispositive.