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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

The Court of Appeals issued three published opinions today, and while the two criminal appeals will have some interest for those involved in criminal cases, an administrative law appeal, usually to Ho-Hum of appellate decisions, will have a HUGE impact on Domestic Relations practice.

Let's get right to it with Virginia Retirement System v. Joan S. Shelton, which will seem like a heartless and cruel result, but in fact anyone with a bit of administrative law knowledge should have seen coming . . . including Shelton's attorney (to be fair, the trial judge should have seen it too). The underlying facts involve a fairly common issue in divorce proceedings, the division of future pension benefits. Shelton's husband was an employee of a municipal utility agency which was a participant in the Virginia Retirement System (VRS). The couple was married from 1958 to 1997, and as part of their divorce decree, Mr. Shelton was required to provide 1/2 of his benefits to his wife and elect a survivor option assuring that she would receive benefits if he predeceased her.

[Now, your correspondent is a VRS participant and is currently receiving benefits, so a disclaimer is in order -- while I happen to agree with the Court's judgment in this case, my decision was not at all influenced by my concern for the continued solvency of the VRS.]

Reading the first few paragraphs of the opinion, my reaction was "uh oh, somebody did a terrible job drafting the order that split the pension" and I assumed this appeal was going to be about how Mr. Shelton hoo-dooed his ex. As the Court explains in its opinion, VRS does not have a single standard survivor plan for pensions. Rather, the participant can designate that the survivor get 100% of the pension, 50%, or some variable amount which the employee choses. The greater the survivor's share, the lower the monthly pension. Because the pension order did not specify what percentage Shelton was to get if she survived her husband, I assumed that Mr. Shelton selected the most favorable option for getting a big monthly check, and leaving his ex as little as possible if he died first. Well, I was half right. He did make certain that he would get the biggest possible check . . . but he did so by not designating any survivor portion for his ex.

Fast forward 20 years to Mr. Shelton's passing in 2019. The month after his death, Shelton receives her last check from VRS because there was no survivor's option. Shelton naturally objected, stating that VRS was required to follow the court's order and provide her with survivor's benefits, and after some tussling with the Administrative Process Act procedures, in which VRS conceded that it hadn't "caught" Mr. Shelton's failure to follow the order and therefore had not advised Shelton which was normally its "policy" in such cases, this issue was presented to the Richmond Circuit Court, which has the unfortunate responsibility of hearing all appeals involving state agencies and the APA. The court agreed with Shelton that the divorce court's order required VRS to pay Shelton a survivor's benefit.

The Court of Appeals reverses the judgment of the circuit court today in an opinion from Judge Malveaux joined by Chief Judge Decker and Judge AtLee. The Court's reasoning is as sound as it is heartless and cruel, except that as I already said, it should have been expected and, therefore, it's not really heartless or cruel, it's just how the law works. Put simply, the order requiring Mr. Shelton to elect the survivor option when obtaining his pension applied to Mr. Shelton, not to VRS. While it is true that VRS had a duty under its policies to inform Shelton that her ex-husband had not followed the order, it had no power to disregard the election made by Mr. Shelton. Indeed, the Court points out that the specific language of Code § 20-107.3(G)(2), which applies to survivor's benefits from retirement plans, directs that a party may be required to make such election, where as Code § 20-107.3(G)(1), which applies to division of pension payments, authorizes the court to direct the payor to make payments to the ex-spouse.

This is an important distinction, because it shows that the General Assembly could have required the payor, in this case VRS, to enforce the survivor option against the direction of the employee had it chosen, but instead it only gave the power to order the employee to make the election. Thus, while Mr. Shelton was in violation of the order by not making the election for some survivor benefit, VRS was neither required, nor did it have the authority, to disregard the election made.

Now, what about VRS's admitted failure to inform Shelton that her husband done did her wrong? Well, it turns out that the policy of advising the wronged spouse was more what you'd call guidelines than actual rules.


Yes, it turns out that VRS did not have an actual regulation requiring it to notify the ex-spouse of an improper election, so its failure to do so, while regrettable, does not give Shelton any solace.

Now, let's discuss the implications of this opinion for VRS -- I think it is fair to say that VRS will consider making that "guideline" into an actual regulation, or at least trying to do a better job of advising ex-spouses that they may need to issue a show cause against the hoo-dooing retiree. And what of domestic relations attorneys? Two important lessons and one suggestion:

  1. First, if a pension has more than one survivor's option, make sure that you specify what option the retiring ex-spouse must select, and

  2. Second, make sure that you client knows to follow-up to make sure the election was made, and

  3. Third, start lobbying the legislature to amend Code § 20-107.3(G)(2) to allow the courts to order that the pension plan make the election automatically.

And now we move on to the two criminal cases. First up is Eric Marvin Laney v. Commonwealth of Virginia. Laney pled guilty to distribution of fentanyl, third offense, in violation of Code § 18.2-248(C), which means a pretty hefty sentence, so the Commonwealth agreed that the maximum sentence would be 25 years of active time and that Laney could argue for a lesser sentence. The court sentenced Laney to 50 years with 25 years suspended. According to Laney, that sentence was "unreasonably high and arbitrary" and influenced by an improperly admitted victim impact statement and the court's failure to apply an "accommodation reduction."The Court, Judge O'Brien joined b Chief Judge Decker and Sr. Judge Haley, makes swift work of all these.

The facts are all too common, Laney supplied fentanyl to Samantha Rigdon. Rigdon was subsequently discovered suffering from an overdose by her six-year-old son. Rigdon died as a result of the overdose. The Commonwealth sought to introduce a victim impact statement from the child's grandmother, Rigdon's mother. Laney objected that she did not meet the definition of a "victim" under Code § 19.2-11.01(B). The Court of Appeals rejects this argument because under Rock v. Commonwealth, 45 Va. App. 254 (2005), the trial court had the discretion to admit the statement even if the mother did not fall within a specified category under the Act.

The Court also rejected Laney's assertion that he should have received the benefit of an "accommodation" reduction. The evidence presented by the Commonwealth proved that Laney obtained the drugs for Rigdon using money which she provided him and that he kept part of the drugs for himself. This was sufficient proof of his intent to profit from the transaction to negate the claim of accomodation.

Finally, the Court rejects Laney's claim that the sentence was excessive. The plea agreement only required that the court impose no more than 25 years as an active sentence and that is what he received. Given that the maximum sentence could have been life imprisonment, the 50 year total sentence was not arbitrary or an abuse of the court's discretion.

Finally, we have Dilliraj Bista v. Commonwealth of Virginia, which involves a jury conviction for sodomy of a child under the age of thirteen years by a person eighteen years of age or older and aggravated sexual battery. This appeal is notable only for the Court's decision, as an issue of first impression, that Code § 19.2-268.3 does not condition the admission of out-of-court statements by children on a determination that the child witness is competent to testify. If you are not familiar with this statute, it was first enacted in 2016 and extensively revised in the 2021 Special Session. Thus far it has had limited review by the appellate courts, and this is the first opinion dealing with the expanded scope enacted in 2021.

The circuit court ruled that the child victim was not competent to testify. The Commonwealth then sought to be permitted to introduce statements she had made to teachers, relatives and other persons about the sexual abuse. Bista contended that because the child had been found to be incompetent, these states were de jure not trustworthy. The circuit court disagreed, and the Court of Appeals, Sr. Judge Annunziatta joined by Judge O'Brien, affirm, finding that nothing in the statute requires that the child declarant be competent to testify. The decision to allow admission of the out-of-court statements is what leads to a partial dissent from Judge Lorish. The majority finds that the admission of a 75-minute forensic interview on video did not violate Laney's Confrontation Clause rights, and even assuming that it did, the error was harmless, but Judge Lorish disagrees. Expect a petition for rehearing en banc or appeal to the Supreme Court on this issue.

The Court's decision on a few other issues was unanimous. Specifically, the Court held that the trial court properly rejected two of Bista's proposed jury instructions because they created a risk of confusing or misleading the jury and analternative instruction fairly covered the same issues. Similarly, the Court held that the trial court did not err in limiting Bista's counsel from arguing that the because the victim had been found to be incompetent to testify, he could only inform the jury that this was the reason for her absence, but not assert that this determination impacted the credibility of her out-of-court statements.

Well, it's almost the end of November, but we get a spooky little opinion from the Court of Appeals today as one of three published opinions. Let's start with Wintergreen Homestead, LLC. et al. v. Bettie W. Pennington, et al. which comes from the pen (or word processor) of Judge Fulton writing for himself, Judge Ortiz and Sr. Judge Petty. Befitting the grave subject matter, Judge Fulton's well considered prose begins with this observation: "For over two centuries, members of the Harris and Coleman families were laid to rest in what became known as the Wintergreen Family Cemetery." The Appellants are the descendants of the dearly departed, while the appellees own or previously owned two small parcels that have been sold off from the larger tract across which a "traditional path" to the cemetery runs.

The issue in the circuit court was whether Code § 57-27.1, which provides for a right of access to private cemeteries applied to the "traditional path" which was established when the land was a unitary parcel, permitted the appellants to traverse the land of the appellees to reach the cemetery, which remained on the land of the appellants. The circuit court ruled that while the path was established in accord with the statute, the statute applied only to land on which the cemetery was located, not intervening property that had been conveyed away.

Now anyone familiar with easements may be wondering two things. 1) was the cemetery not accessible by some other route creating an easement of necessity, and 2) was access to the cemetery not granted in the deeds that conveyed the two parcels. The answer to the first is that since at least 2014 the family have been accessing the cemetery by an alternate path -- which raises the question of why they waited until 2017, when this declaratory judgment action was filed to seek the right to use the former route. As to the second, the answer is that no easement was reserved in the deeds, which raises the question of whether the drafter of the deeds was asleep at the wheel, as the path was apparently well worn and visible -- open and notorious in the language of easements and adverse possession.

The first question is "who knows?" The opinion provides no clue as to why the property owners began to deny access, or why the family didn't act sooner. The second is easier to guess -- at the time the parcels were conveyed, it probably never occurred to anyone that the new owners would deny access to the cemetery. If the drafter was an attorney, he or she should probably have anticipated this and included an easement, but the failure to do so is understandable.

The Court of Appeals affirms the judgment, noting that the plan language of the statute supports the view that access is required only to reach a private cemetery on the property being used to access it, not on intervening properties. Nothing in the statute suggests that a parcel severed from whole that does include some part of the cemetery is subject to the access provisions even if they would have applied prior to the severing of the parcel. In a footnote, the Court discuss similar statutory schemes where access over adjoining parcels is specifically permitted, suggesting that Virginia simply decided to favor current landowner's rights over that of the relative of the cemetery residents.

The Court decided another civil cases, George English v. Thomas William Quinn, Judge Sr. Petty joined Judges Fulton and Ortiz. This appeal is all about the tolling provisions of the Supreme Court's emergency orders related to COVID-19 and was briefed not only by the parties but by the VTLA as amici for the appellant/plaintiff and the VADA for the appellee/defendant. The underlying case was for person injury arising from a "head-on" collision in July of 2018. English filed his suit on the last day of November 2020, more than two-years beyond the statute of limitations for personal injuries, but just over 8 months after the first emergency order was entered.

The issue before the trial court was whether the tolling provisions of that order and one that followed applied only to a limitations period that ran during the period in which the order was in force, or tolled all limitations period that were then running. In other words, was English required to file his suit in a timely fashion if no tolling order was in effect on the two-year date, or was he entitled to tack on the period during with the statute of limitation had been tolled by the Supreme Court's first two COVID orders? The circuit court ruled that because the second tolling provision had expired just prior to the two-year date, English was not entitled to the benefit of the tolling provisions of either order.

Today the Court of Appeals reverses and remands the case for further proceedings on the merits. This result seems fairly to be expect if one looked to the language of the Supreme Court's first order, which plainly extended all deadlines for 21 days. There was no distinction between deadlines that would run during that 21 day period, and deadlines that were running.

The difficulty arises from the language of the Court's second order, which stated that it applied to "any applicable statute of limitations which would otherwise run during the period this order is in effect." Now that sentence seems pretty clear to favor the position of the appellee, the VADA and the circuit court.

But, there was a third order (and then a fourth, fifth, sixth . . .) entered which "clarified that it had 'broadly stated' that 'all deadlines' were tolled and extended, the Second Order 'repeated the broad tolling of deadlines,' and the Third Order had 'incorporated by reference the prior emergency orders' and 'tolled' 'all "statutes of limitations and case related deadlines"' during the period of judicial emergency." The Court of Appeals reasons that while the language of the second order, if read in isolation, certainly did seem to limit its tolling to limitations period that ran only while it was in effect, the subsequent orders interpreted it as applying to all periods of limitation.

Now, one might wonder if the second order, issued around the time that politicians were loudly, and erroneously, proclaiming that COVID had been peaked, had been drafted with the expectation that it would not be followed by a third. Indeed, if you can recall the machinations that were whirling around Richmond at the time, it was plain that the Supreme Court, the Governor, and the General Assembly were involved in a three-way game of chicken, with each stating or at least hoping that it was one of the other's responsibility to deal with the pandemic's effect on statutory deadlines (especially with respect to evictions, but also to most other legal processes). Thus, its very likely that the use of language in the second order was deliberate and the clarification of the third order resulted for the failure of the elected branches to pick up the baton.

The last case decided today by published opinion is Todd Lynn Lewis v. Commonwealth of Virginia, written by Judge Lorish joined by Judges Huff and Raphael. Its a sufficiency case, but a very specific sort of sufficiency. There is no question that Lewis possessed methamphetamine, only whether he possessed it in a sufficient quantity to trigger a mandatory minimum sentence. The problem with the evidence presented at trial was it did not specify whether the contents of several baggies was pure meth or meth cut with some other substance. The weight was enough for the sentencing enhancement if pure, but not enough if it was cut and the state lab did not perform a purity analysis. The Court of Appeals remands for re-sentencing without the enhancement.

Back in July, I announced that I would be posting stats on the filings in the Court of Appeals including the "Icarus Index" -- an attempt to come up with a comparable way of measuring the success of appellants similar to Steve Emmert's David-and-Goliath Index for the Supreme Court of Virginia. Although the Court of Appeals has begun issuing opinion from the 2022 docket, the data for these is still fairly sparse. However, as I have completed updating the status of all the appeals filed in January 2022, I think there is enough data to make for interesting observations about how things are going with appeals of right so far.

I posted stats for the first month of filing back in June and, as you can imagine, those numbers did tell us much about how the Court was dealing with the caseload. I think we have a somewhat clearer view now. Let's start by updating the raw data. As reported in my original post, there were 145 filings in January of all types that received a docket number. Not everything filed in the Court of Appeals gets a docket number, or it might be more accurate to say that not every docket number gets a filing. There were 5 docket numbers that are not associated with any filings, so the last docket number assigned in January was 150.

When I made the post in June, the Court had reached a final disposition on 48 of those cases. As of today, the Court has disposed of 90. The Court has heard argument in 28 more cases, and 25 are ready, but not yet set for argument. The remaining 2 cases appear to be in "limbo" as they are not yet fully briefed. There are several reasons why a case might be in "limbo," with the most likely reasons being the death or disability of a counsel, the bankruptcy filing of a party, or a procedural delay.

Of the decided cases, 5 were by published opinion and 29 were by unpublished opinion. There were 56 unpublished orders, and no published orders. Only 8 of the opinions were issued summarily (that is with the Court finding that argument was not necessary because the appeal was wholly without merit). Argument was waived by the parties in only 6 cases.

Four of the published opinions were in civil appeals, though one of these is technically a "hybrid" case with administrative and quasi-criminal overtones as it involved a request to be removed from the sex offender registry. The other published opinion was from a criminal conviction.

In unpublished opinions criminal appeals prevailed over civil, 15 to 2, with three more from Commonwealth's appeals, and five from domestic relations (yes, technically civil, but also part of the Court's original docket and still treated separately in the Court's database). There was one unpublished opinion in a sexually violent predator commitment proceeding and two from the Virginia Workers' Compensation Commission.

Unanimity was the norm, with only on separate opinion, a dissent, in one of the unpublished decision. Of the 34 cases decided by opinion, all but 4 were affirmed, with two more affirmed in part, reversed in part and remand, another reversed and remanded, and only one case where the judgment was reversed and final judgment entered for the appellant.

The time for noting an appeal to the Supreme Court has not yet run for all of the cases that have been disposed of, but 17 appeal notices have been filed, including some in cases that were procedurally dismissed by order, and 64 have become final with no appeal noted.

The Icarus index for this limited sample is probably not particularly instructive give that the many of the decided cases were decided by unpublished order -- meaning that they were probably procedurally defaulted. A quick review of what the Icarus Index is -- referring to the Greek Myth of Icarus, son of Daedalus, it measure how well the appellant does in attempting to soar to the Sun. On a scale of 1 to 5, a 3 is the expected norm of a decision affirming on the merits -- the equivalent of Icarus getting burnt. A 2, by contrast, is for a decision that results from some failure on the part of an appellant to preserve an issue or bringing a meritless appeal. A 1 is reserved for the worst of the worst -- dismissals with penalties for example. On the upside, a 4 is for an appellant who "lives to fight another day" by getting a remand, and a 5 is for the ultimate victory of a reversed and final judgment. Obviously, these metrics don't always fit nicely with the nature or result of a particular case, so I've used license in grading up or down. For example, I treated an "affirmed" Anders appeal as a "4" because I wanted to reflect that the attorney actually "won" on the request to be relieved. I also awarded a half-point in the case where there was a dissent.

There are two other caveats about the Icarus index. First, it does not include cases that were withdrawn or transferred to the Supreme Court. The Court of Appeals doesn't really "rule" on these cases, no there is no way to determine who "won." Second, the Index applies only to the result in the Court of Appeals; if a case is appealed to the Supreme Court, the index score for the case does not change (unless the case is remanded and a different result is obtained). The index is about how the Court of Appeals deals with its cases, not the subjective merit of the cases themselves.

Once there is more data to work with, I will provide analysis by the different areas of the law, but for now lets look at the basic index results. There were 71 cases that received an Icarus score with the average score being 2.54 for all cases. Looking only at 35 cases decided by opinion, the average score is 2.94. For the cases decided by order, it's 2.13. For published opinions it's 3.6 -- possibly not surprising that opinion worth publishing are probably more likely to have positive results for the appellant than unpublished decisions, with by opinion or order.

I would be surprised if we ever see an Icarus number much above 3.6 in any category -- 3 after all is the "as expected" and it is unfortunate that it's more likely that an appeal will come out worse than expected than better. So the fact that for opinions, the number was close to the expected result on average means that among these cases there were not many that got a "worse than" result. With more data, we should be able to make some judgments about where the Court is "leaning" in certain cases.

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