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

Court of Appeals Issues One Published Opinion and One Published Order

The Court of Appeals issues two published decisions today, one as an opinion and one as a published order (following two published order released mid-February).  The Court of Appeals has not typically issued published orders with the same frequency as the Supreme Court, and it has not been that long ago that they were something of a rarity even from the Justices. As between the two decisions today, however, it is certainly the order that should take center stage (at least if you are a procedural geek).

Before getting to the Court of Appeals’ decisions, however, I will take a moment to note that today also saw the first appeals granted in 2022 by the Supreme Court.  Just over a month ago, I noted that the Court had not granted an appeal in January and likewise February passed without any discretionary appeals being added to the docket.  Today, the Court award appeal in four cases, all of them in civil cases.  The most notable of these is the appeal of Peter Vlaming v. West Point School Board.  Vlaming was fired from his teaching job after refusing to refer to a transgender student by his preferred pronouns (Vlaming did use the student’s preferred name rather than his birth name).  Vlaming is represented by Christopher P. Schandevel, Tyson C. Langhofer, J. Caleb Dalton of the Alliance Defending Freedom and Shawn A. Voyles of McKenry Dancigers Dawson, P.C.) , while the School Board is represented by Stacy L. Haney and Andrew P. Selman of Haney Phinyowattanachip PLLC), and Alan E. Schoenfeld, Tania Faransso, and Edward Williams of Wilmer Cutler Pickering Hale & Dorr LLP.

The lone opinion today is Cathryn Rose Rainey v. Chad Christopher Rainey, and involves a custody dispute between former spouses regarding their two children.  The mother contends that the circuit court failed to prove her with a de novo review of the judgment of the juvenile court, instead acting as an “appellate tribunal” and in disregarding its statutory duty to make express findings of the relevant factors as required by Code § 20-124.3.

To those versed in domestic relations law, the situation and allegations are a familiar one, but for those who do not practice in the area, it must seem a bit confusing as to why this matter, which arises from the aftermath of a divorce, which necessarily occurred in the circuit court, was on appeal from the juvenile court. A brief explanation will suffice: In almost all cases where there are likely to be challenges to support and custody issues after the entry of the final decree, the circuit court will direct that these matters be overseen by the Domestic and Juvenile Relations District Court.  There is no equivalent process in any civil matter (or criminal) with respect to the General District Court even where it might be useful (for example, overseeing a protective order).  When the juvenile court does address a show cause or application for change in circumstances, its decision is appealable to the circuit court.  The circuit court will often end up with the same result as the district court and this, naturally, leads to allegations that it merely acted as “rubberstamp” for the lower court’s decision when it should have reviewed the case de novo.

The background as recounted in the Court’s opinion is a somewhat sordid, but not atypical story in which, as the Court aptly puts it, an affair caused the family to be “roughly upended.”  A bitter divorce followed which ended with the parties having joint legal custody of the children and physical custody with the mother.  The relationship between the father and the children was never good during the divorce and deteriorated even more.  Eventually, the father determined that he would no longer seek visitation with the children “without first repairing the relationship.”

The mother agreed to allowing the father temporary physical custody in order to seek the desired repair.  This plan was approved by the juvenile court.  However, from the date of the agreement, the mother had virtually no contact with the children.  This was the result of the recommendations by the psychologist who was counseling the family. At this point, I will try to avoid making value judgments about what transpired — I think it best that you, dear reader, if you wish, should take up the opinion yourself from the heading on page 5 ” Father and the Counselors Strictly Limit the Children’s Contact with Mother.”  I will say only that I cannot recall a prior case where so much control was afforded to “counselors” to the family.

From a legal standpoint, we arrive at the decision of the juvenile court to make the transfer of physical custody to the father and permit him exclusive control over visitation with the mother.  The opinion makes no mention of the opinion or role of the children’s guardian ad litem in all of this.  The whole things just seems slightly “off” to me in that, at least to this point, the Court has given indication that the mother was in any way responsible for the fractured relationship between the father and the children.

In reciting the evidence received by the circuit court, a somewhat different picture emerges as to the children’s negative behavior being “allowed,” but still there is no direct assertion that mother was at fault.  Moreover, the record clearly showed that the children loved and missed their mother, who they had not been permitted to see in 16 months at the time of the circuit court hearing.

The Court then makes what is a telling statement, saying “[t]he judge observed from the bench that this case bothered him more than most.”  The judge had concerns about the father’s but also with the mother’s “stubbornness” in not complying with the counselor’s requirements for permitting her to communicate with the children.  As a result, the judge made what may not have been a wise choice of words, saying that he “pretty much was affirming the lower court.”  When the parties were not able to agree on a final order, the court adopted the father’s order which recited findings of fact with required to the statutory elements.

Despite using the term “affirming,” the Court of Appeal concludes that the circuit court did indeed conduct a de novo hearing.  Certainly the process was de novo, with witness testifying and legal arguments being presented.  The Court says that the isolated statement of the circuit court did not establish that it was not reviewing the evidence afresh, but merely indicated that it had reached the same conclusions of the juvenile court.  Likewise the Court concludes that the circuit court’s adoption of the father’s draft order did not mean that the court had not addressed the statutory factors.  It is common practice for a trial court to direct the parties to submit an agreed order and, if they cannot, to adopt a draft proffered by one of them.

However, the Court also concludes that it was not proper for the circuit court to effectively delegate the determination of appropriate visitation to be allowed the mother.  On this issue, the court’s authority is not delegable, even those it is common for a court to permit the parties some leeway to make adjustments to visitation schedules.  Here, the court effectively gave the father carte blanche to determine when, where, and even whether the mother, who was still a legal guardian, could have any contact or information about her children.

Having kept the procedural geeks in suspense, I now turn to Paul H. Lundmark v. Commonwealth of Virginia, the published order that dismisses a criminal case appeal (which, I predict will soon be back as a delayed appeal similar to what happened in the sole published opinion from last week). What makes this case interesting is that it follows an earlier published order from February in which the same panel of judges (Humphreys, Causey and Senior Judge Frank) dealt with a similar issue, but with a different result that will warrant some very close scrutiny.

The prior published order was Eugene N. Johnson v. Commonwealth of Virginia. Like Lundmark, it came to the Court of Appeals following a conviction in the circuit court of a moving violation. Johnson was driving with a suspended license, disregarded a stop light; and was driving a vehicle with expired tags; Lundmark was driving under the influence.  Both men were charged under warrants that referred to the local ordinances for these offenses, and documents subsequently generated by the circuit court alternated between or referred to both the ordinance and the parallel state statute.

When both cases were appealed, the style of the case was given as “<Defendant> v. Commonwealth of Virginia,” and petitions were granted in both cases.  It was only after the Attorney General took over the representation of the appellee that it was noted that these were “locality prosecutions” in which the Attorney General may, but is not required to, respesent to locality.

In Johnson, the locality sought to intervene and amend the style of the case to properly reflect the locality as the prosecuting authority (and, thus, the party required to defend on the appeal) and allow substitution of the Commonwealth’s Attorney (who, by agreement with the locality, prosecuted local ordinance violations for the City Attorney). In Lundmark, the Attorney General filed a motion to withdraw from the case and the locality kept its own counsel (perhaps not evening being aware of what was afoot in the Court of Appeals).

[Editor’s note: I am going to speculate that in Johnson the AAG who drew the case called the Norfolk CA and said “What gives?”  Whereas in Lundmark the AAG simply filed the motion to withdraw.  I suppose its possible that Henrico County was contacted and simply said “not our problem” or words to that effect.]

Johnson was a unanimous decision in which the Court found that the City was permitted to appear and, in effect, had waived any objection to the defect in the manner in which the appeal had been filed by doing so — that appeal will now continue to full briefing and argument.  Lundmark, however, does not achieve the same unanimity. Judges Humphreys and Frank conclude that the locality is an indispensable party and, not having voluntarily appeared as in Johnson, the absence of an indispensable party deprives the Court of jurisdiction.  Mr. Lundmark is out of court (at least until his delayed appeal is awarded).

Judge Causey takes a much different view of the matter.  First, she notes that the record in the case is hardly a model of clarity or consistency when it comes to determining which legislative act — local or state – is the source of the police power being exercised over Lundmark.  Relying primarily on Nicholson v. Commonwealth, 300 Va. 17, 22 (2021), in which the Supreme Court was required to decide a related issue of whether the notice of appeal in a “locality prosecution” which identified the Commonwealth as the appellee was sufficient to permit an appeal to go forward.  She sees no reason why the same logic should not apply in this case — especially as the Commonwealth’s Attorney (as in Johnson the prosecutor of local ordinances by agreement with Henrico County) had actually appeared at the petition stage.

Judge Causey takes the majority to task over what she sees as a form over substance result.  She notes that misnomers are common in civil practice and, so long as it is clear that the proper party is before the court, the style of the case is not the determining factor as to jurisdiction.  Here, the Commonwealth’s Attorney clearly had notice of the appeal and appeared to defend it. Judge Causey concludes that, as in Nicholson and Johnson, the appearance of the proper party (even if somewhat unwittingly) should act as a waiver of the defect in the notice of appeal.

She concludes her dissent by chiding the Office of the Attorney General for its mercurial policy of “representing the Commonwealth in matters related to violations of local ordinances” “when it chooses.”  She also chides the majority for dismissing the appeal after it had been granted, contending that it is doing so sua sponte rather than on the motion of the parties, as the Commonwealth asked only to be allowed to withdraw as counsel.

I find myself in sympathy with Judge Causey — but more so because I have always thought that the state/locality division of prosecution was a bit ridiculous given that most Commonwealth’s Attorneys operate under similar arrangements with the local government attorneys in their jurisdictions.  Now that the legislature has sorted out the appeal of right business, may the next stage in reform of the judicial system will be to revamp the trial courts.  Addressing the state/locality duality.

I suspect the Lundmark will be satisfied with a delayed appeal and not pursue this to the Supreme Court, but it would make an interesting issue if the Court were to have a chance to take it up.

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