Court of Appeals Rings in the New Year (a little late) with Three Opinions
The Court of Appeals took a break the first week of 2022 but issued three published opinions today (and 4 unpublished). It will be some while before we see any opinions from the new civil docket, of course, but one of the opinions today has the appearance of being from a civil case because, unusually for the Court of Appeals, one of the parties involved is an estate and the other, at least in part, is a trust.
Gabriel Seth Worsham, Executor v. Kathleen Bonnie Crispin Worsham, et al. actually involves both the estate of and a trust established by Raleigh Elmore Worsham. The decedent was married to Kathleen Bonnie Crispin Worsham. The couple separated after twenty years of marriage and entered into a post-nuptial agreement at that time.
A few years later the husband filed for divorce, and while that divorce was pending, he established a trust which was nominated as a “Qualified Terminable Interest Property trust” which was required to be established under the agreement. A “QTIP trust” is an estate planning device intended to avoid certain intergenerational tax consequences. This trust gave Bonnie the income from a certain property known as “Spring Street.” Raleigh and Bonnie were co-trustees of the trust.
About a month after the divorce was finalized incorporating, but not “merging” the post-nup, the parties entered into a supplemental agreement the settle various disagreements that had arisen between them, and it was likewise incorporated into the final decree. The Court says none of the issues in this supplemental agreement are relevant to appeal, which raises the question as to while the Court felt that it was worth mentioning — and the reason it did will be addressed anon.
Raleigh shuffled off his mortal coil in 2017 and his grandson, Gabriel Seth Worsham, became executor of his estate. Under the terms of the post-nup, Bonnie’s support was to survive Raleigh’s death and Seth duly paid the support from the estate (which, barring an agreement to settle the obligation in some manner, kept the estate from closing).
According to the Court, “Seth . . . stopped distributing income from Spring Street [to the trust]. He subsequently claimed that Bonnie was not entitled to the monthly payment because she was not Raleigh’s ‘widow.'” Bonnie, both individually and in her capacity as trustee, sued her step-grandson as executor of her ex-husband’s estate, claiming that the Spring Street income was to be paid to her “for life” as recited in the post-nup and the trust. The circuit court agreed, and Seth appealed, claiming that the trial court erred in interpreting the trust and post-nup as unambiguously providing that Bonnie would receive the Spring Street income for her life and that the court disregarded parol evidence that showed the parties’ intention was different.
The Court’s discussion runs for about 16 pages, in part probably because this is a complex issue in an area not frequently addressed by the Court of Appeals (at least for the present). However, the sum and substance of the decision is this — parol evidence is only permitted where the written documents are ambiguous, and here there was no ambiguity and the circuit court’s interpretation was correct.
I would contend that the lack of ambiguity is — somewhat perversely — the result of the documents in question having been badly drafted. To begin with, the “QTIP trust” despite its being designated as such, was not drafted with reference to the federal law that permits such trusts and had several elements which clearly indicated that it was implementing the intent of the pre-nup to provide Bonnie with the Spring Street income for her life, whether she remained married to Raleigh or not. Indeed, since the trust was established as the parties were in the midst of the divorce, it seems fairly clear this trust was not intended to be a marital estate planning instrument.
Now we turn to the issue of the supplemental agreement. Why did the court mention this agreement if the issues it address were not germane to the controversy? Well, according to the court, it was because this agreement bolstered the argument that the original agreement and the trust were intended to address distribution of income in contemplation of divorce. That’s all well and good, but I will take issue with the Court’s having relied on this supplemental agreement.
Even though the supplemental agreement was incorporated into the divorce decree, neither it nor the post-nup were merged into that order. The distinction is a fine one, but here is why it matters in this case. Because the documents were not merged into the order, neither were they merged into one another. In other words, the supplemental agreement was an independent document and, thus, was parol evidence of the parties’ intent in the other two documents. Contrary to a common misunderstanding, “parol evidence” is not limited to the spoken word of the parties but is any evidence of what the intent being expressed in the written being construed was. Because the Court found that the post-nup and the trust document were not ambiguous, the Court really should not have referenced the supplemental agreement as bolstering the unambiguous meaning. This is a no harm, no foul situation, of course, because the comment is dictum in that it is not necessary to the Court’s holding.
The Court decided a second domestic case, Sufian Da’mes v. Gada Da’mes which involves the calculation of a party’s income for determining a change in child support and also the award of attorney’s fees against that party. The father moved to modify his child support obligation because his income had decreased, mother’s employment had changed, and one child had reached the age of majority, all very good reasons to consider a change in child support. However, if you want to obtain that change, you are best advised to respond to discovery about such things as why your income had decreased, and father failed to do this. The circuit court granted mother’s motion to compel and took an award of fees for having to do so under advisement.
When the matter came before the court the mother, wisely, agreed that the father was no longer required to pay support for the emancipated child, but disputed whether the reduction in his income warranted a recalculation of the support owed for the couple’s two other children in light of the fact that he had received a $600,000 inheritance as well as proceeds from the sale of real estate from which he was receiving interest income along with passive rental income.
Father claimed that his income amounted to only $805.75 a month, which was the net income from rental properties, several of which were vacant, thus accounting for his loss of income. However, the evidence also showed that he had the funds from the inheritance and the sale of a former rental property.
The circuit court calculated that father’s total assets, if properly managed, would equate to an income equivalent support obligation of $2,247, which was actually a significant increase from his current obligation based upon his income at the time the prior award was entered. This was because the court treated the inheritance as part of the father’s gross income. Finding that such an increase would be unjust, the court instead raised the support obligation to $795 for the two children from its prior level of $587 (the opinion is not clear whether this was the amount for all three children or had been adjusted). The court also awarded the wife $5,000 in attorney’s fees, which was an “adjusted” amount from what had originally been claimed for the motion to compel.
Although this opinion is much shorter than Worsham, I will give a little more detail of the Court’s analysis because it has a few instructive points. Let’s start with the father’s challenge to the circuit court’s determination that the inheritance was income for purposes of calculating child support. The father assigned four errors just to this issue, raising the first instructive point, “Why did it take four assignments of error to raise this issue?” Regular readers of this space will know that I believe in the maxim “less is more” when it comes to assignments of error, and four assignments of error on just the inheritance were unnecessary (the Court address only three arguments — presumably one assignment of error was duplicative and thus doubly unnecessary) — in fact, at least two were pointless.
The father’s first contention was that only the interest income should be treated as part of his “gross income” for child support determinations. Unfortunately, inheritances fall under the category of “gifts” which are treated as gross income and, thus, are fair game for the calculation of child support. Where such treatment would result in an unjust award, the court’s discretion is to lower the award, not disregard the income, and that is just what the court did here. The second instructive point is don’t raise an issue you cannot win — and the law here is very clear. Father’s argument was based on a single outlier case that was readily distinguishable, so this argument was colorable, but only just.
The circuit court did two other things with respect to the inheritance that the father contested. First, it spread the imputed income over five years — the point at which the youngest child would reach majority. Second, it imputed additional future income to the inheritance corpus because the current interest being earned was de minimis. However, both of these matters are committed to the discretion of the trial court — the Court of Appeals gives them very short shrift.
The father next assigned error to the circuit court’s consideration of the net proceeds of the sale of one of the rental properties after some of the proceeds were used to pay marital debt. His contention was that the court failed to also consider costs associated with the acquisition and maintenance of the property. Now this issue would be one worthy of raising if the court had, in fact, not consider such evidence. Only, as the Court of Appeals found that father did not really put one clear and specific evidence of the costs associated with this specific property, there was nothing for the circuit court to have “not considered.”
Finally, we come to the issue of attorney’s fees, and here the father finally catches a break. The fee award was related to the motion to compel the discovery. When the attorney presented an adjusted claim for additional fees related to the defense of the modification motion, the circuit court improperly award the additional fees and the case is remanded for entry of an award for the original claim based on the motion to compel only.
The final opinion is from that red-headed stepchild of the Court’s old docket, administrative law. Specifically, the oversite of the Sex Offender and Crimes Against Minors Registry by the State Police. Ashley Elizabeth Esposito v. Virginia State Police involves a violation of Code § 18.2-361 for which Esposito had been convicted in 2009, the infamous crimes against nature statue. At the time of her conviction, the specific act which Esposito was found to have committed was no longer subject to prosecution if it occurs between consenting adults under Lawrence v. Texas (2003), however, Esposito apparently was not properly advised of this and did not appeal her conviction and, thus, she was required to register on the Sex Offender Registry.
In 2014, the General Assembly finally go around to adjusting the language of the “crimes against nature” statute to comply with Lawrence, but for reasons not explained in the opinion, Esposito waited another six years before petitioning the State Police to be removed from the Registry. The State Police denied her petition and on appeal to the circuit court argued that this decision was not subject to review under the Administrative Process Act. The circuit court agreed and dismissed the appeal. Esposito took her appeal to the Court of Appeal which affirms, but under what might be called a “right result, wrong analysis” approach.
The more common appellate construct of “right result, wrong reason” is applicable only where a lower court has decided an issue correctly but failed to apply to proper analysis which was actually presented to it as a basis for its action. That is not the case here, because the State Police only contended that its decision to deny the petition was not subject to review. The Court of Appeals agrees that it was not subject to review, but for a very different reason.
The Court of Appeals instead looked at the basis for the petition itself and concluded that there was no basis for the State Police considering Esposito’s request in the first instance. The State Police, the Court reasoned, does not have the authority to place or remove anyone on the Registry without a court order. If a person on the registry could directly petition the State Police to remove his or her name from the registry, this would place the agency in the position of making a judicial determination, something that it is not authorized to do. In short, while it is required to maintain the registry, which is a ministerial function only. Esposito’s remedy, if there is one, is through the courts.