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

Interference with Parental Rights, Ends of Justice and the Hypothesis of Innocence -- 3 CAV Opinions


We get three published opinions from the Court of Appeals today -- one which unsurprisingly finds that suing your wife's attorney and two friends who supported her decision to leave you does not amount the the tortious interference of your parental rights in the divorce proceedings. We also get a rare application of the ends of justice exception in a criminal case and a 10-1-6 split in an en banc decision addressing what is necessary to establish a reasonable hypothesis of innocence.


The tort of interference with parental rights was recognized in Wyatt v. McDermott, 283 Va. 685 (2012), a 4-3 decision which was a certified question of law case from the federal Eastern District of Virginia. Since that case, however, the a claim for the tort has not been successfully brought in any cases since then in state courts that I am aware of. Today the Court of Appeals, Chief Judge Decker joined by Judge’s AtLee and Friedman, finds that the circuit court did not err in sustaining to a demurrer asserting the tort in Shiye Qiu v. Chaoyu Huang, Anna Ouspenskaya and Arlene Starace. Qiu is the father of a daughter who is close to emancipation if she has not already turned 18. Qiu and the mother separated when the child was eight and divorce proceedings dragged on for several years. In 2016, Qiu filed a pro se complaint alleging that Huang, a friend of his estranged wife, Ouspenskaya, the child’s piano teacher, and Starace, the wife’s attorney, were engaged in a conspiracy to interfere with his parental rights.


The complaint was repeatedly amended and reached 50 pages and nine counts before the circuit court said, “Enough!” and sustained demurrers. The thurst of Qiu’s assertion of interference was that the three women encouraged and aided the mother in leaving the father and in obtaining a divorce and the award of shared custody. The complaint also averred that the women “played a role in physically, mentally and emotionally alienating M.Q.” from her father without his consent, “severely damaging the [parent-child] relationship. Qiu, however, conceded that they had not actually take physical custody of the child or directly interfered in his contact with her.


The proceedings in the case lasted even longer than the divorce proceedings, and by 2019 the Supreme Court was preparing to hear arguments in Padula-Wilson v. Landry, 298 Va. 565 (2020), which was expected to provide significant guidance on the limits of the tort action for interference with parental rights, so the case was stayed pending that decision. It was after Padula-Wilson, a unanimous decision, determined that where the alleged interference occurs where the “backdrop” is a domestic battle for custody and visitation, there are alternative remedies within that proceeding to satisfy due process, that the circuit court decided to call quits of Qiu’s effort to blame his wife’s friends and her lawyer for his not getting everything he wanted in the divorce, which was presumably sole custody of the child and his wife been banned from all contact with her. The Court of Appeals goes through each of Qiu’s variations on the theme of interference with parental rights such as fraud and conspiracy and finds no error in the circuit court’s sustaining of the demurrers.


We also get two published criminal appeals. Marcus C. Holman v. Commonwealth of Virginia is the more interesting of the two as the Court applies the “ends of justice” exception because this is one of those rare cases where the defendant was convicted of a crime that he factually could not have committed.


Holman was charged with maliciously wounding and the use of a firearm in the commission of that crime, a felony. However, the trial court affirmatively found that Holman did not act with the requisite malice when he discharged a shotgun injuring the victim, granting his motion to strike and proceeding only on a charge of unlawful wounding. Holman, however, failed to argue that the reduction of the primary offense meant that he was de jure not guilty of use of a firearm in the Commission of a felony. The circuit court convicted him of that offense along with unlawful wounding.


On appeal, the Commonwealth argued that Holman had either waived the issue by not raising it in the trial court or that he could not “approbate and reprobate” on appeal. The Court of Appeals, Judge Ortiz joined by Judges O’Brien and Raphael, today hold that where the ends of justice apply, waiver and approbation/reprobation cannot bar the Court from doing justice. The Court did not cite Somerset v. Stewart, 98 ER 499 (1772) for the maxim fiat justitia ruat caelum, “let justice be done though the heavens fall,” but it certainly would apply in this case. The Court reverse’s Holman’s conviction for the firearm’s offense and vacates the mandatory five year sentence. However, Holman will still serve time for the unlawful wounding . . . and convictions for unlawfully discharging the shotgun in public . . . and being a felon in possession of a firearm.


Michael Melvin Fary v. Commonwealth of Virginia is a 10-1-6 split en banc decision. Judge Humphrey’s writes the majority, Judge Ortiz concurs, and Judge Causey stands her ground from her panel dissent joined by Judge Friedman, Chaney, Raphael, Lorish, and Callins. The case is about sufficiency of the evidence where the defendant asserts that a reasonable hypothesis of innocence precludes finding guilt beyond a reasonable doubt.


The facts of the case might best be described as an incident of “river rage” in that Fary was operating a boat and the Mattaponi River and took exception to how another boater passed him cause Fary’s boat to rock and turn and to be “almost swamped.” He chased the boat for over 25 minutes, growing angrier. Eventually the other boater, who had six passengers including several children, pulled into a dock. He attempted to apologize to Fary, but the latter rammed the offending vessel, going over its bow and striking one of the children, then for good measure repeated the maneuver. As he pulled away, Fary said “I’m sorry.”


A marina employee copied down Fary’s boat’s registration number and Fary was identified and charged with and convicted of reckless operation of a watercraft and seven counts of attempted malicious wounding. He appealed the malicious wounding convictions, asserting that the evidence supported his hypothesis that he had not intended to hit the other boat, but merely wanted to cause a wake to rock it has the other boater had done to him. He also denied having struck the other boat a second time.


The substance of Fary’s argument in the trial court and on appeal is that his actions lacked the malice sufficient to prove his intent to wound the passengers in the boat. To my way of thinking, this argument is adequately addressed by the trial court, which was the trier of fact in this bench trial, expressly rejected Fary’s testimony as not credible – that should put paid to his “reasonable hypothesis of innocence.” The majority is of a like opinion, and in so doing holds that a prior decision of the Court which Fary relied upon, Haywood v. Commonwealth, 20 Va. App. 562 (1995), misstated the reasonable hypothesis of innocence doctrine.


Judge Ortiz writes separately to concur with the result, but disagrees that it was necessary to “clarify and correct” the reasonable hypothesis of innocence doctrine. The dissent, however, not only does not think that the doctrine needs to be clarified and corrected, it concludes that the majority has not properly applied it to this case. The majority would find that the evidence Fary only intend to frighten, not injure, the boat driver and his passengers– despite being rejected the trier of fact – was sufficient to reduce the quantum of evidence below the reasonable doubt threshold. I would expect Fary to seek a writ from the Supreme Court.

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