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

Summary and Analysis of Published Opinions of the Court of Appeals, February 9, 2021

The Court of Appeals hands down two published opinions today, both in Domestic Relations cases.  The first involves cross-appeals and an assignment of cross error with respect to the granting of a divorce, while the second involves a daughter, as executor of her mother’s estate, seeking to have a divorce decree entered dissolving her parents’ marriage.  The curious nature of this latter opinion piqued the interest of my fellow appellate blogger Steve Emmert sufficiently that he is departing from his more usual haunt of the Supreme Court of Virginia to discuss it – as he was kind enough to let me know that he was encroaching on my turf, I’ve decided to refrain from reading his analysis until I’ve completed this post and then seeing how much better a job he did afterwards.

Let us first look at W. Neil Wills v. Lisa J. Wills and Lisa J. Wills v. W. Neil Wills.  Before launching into the opinion, the fact that this opinion arises from cross-appeals and that a cross-error was also at issue in one of those appeals presents the opportunity to address a few salient points about appellate practice.  Most laypeople, and quite a few attorneys, do not understand the difference between a “cross-appeal” and assigning “cross-error.”  On the face of it, the distinction is clear, a cross-appeal is a separately filed action appealing a judgment while a cross-error is assigned by an appellee in the brief in opposition to the petition for appeal (or the opening brief in an appeal of right).  But contrary to conventional wisdom, they are not interchangeable ways of getting a reversal of some aspect of a judgment that is unfavorable to your client.

To begin with, if a matter is proceeding by a petition for a writ of error, cross-error must be assigned in the brief in opposition to the petition.  An appellee cannot wait to see if the appeal is granted and then try to bring up her own claims of error in the circuit court’s judgment in response to the opening brief.  More to the point, if the appellee does assign cross-error and the petition for appeal is refused, the appellate court will not even consider the merits of the cross-error, which “falls along with the petition.”  Accordingly, if the appellee desires an issue to be considered independently of the merits of the petition, she should instead file a cross-appeal.

When the appeal is of right, the appellee can raise assignment(s) of cross-error in the appellee’s brief, and the appellate court will address the issue(s) just as if they had been raised in a separate appeal.  This may suggest that in appeals of right there is no practical difference between cross-errors and cross-appeals.  While this is functionally correct, there are valid reasons for not using cross-error in an appeal of right if the issue(s) are not significantly related to the issue(s) raise by the appellant.  First, from a practical standpoint, assigning cross-error does not entitle you to any increase to the length limitations on your brief – and while elsewhere I have expressed the opinion that no appellate brief should ever require the maximum length allowed (apart from death penalty appeals), its not always the best strategy to effectively cut that length in half either.

Second, when an issue is raised by cross-error, the appellee will not have an opportunity to get the first word in on that issue during oral argument and will likely have no opportunity to rebut anything the appellant says in rebuttal after the appellee has argued – this is known as surrebuttal, and in my experience I have only known of one instance where a party requested it, and in that instance the Court simply said “no.”  Moreover, the appellate court typically will not increase oral argument time when cross-error has been assigned but will often allow cross-appeals to be argued in consecutive arguments, or if it chooses (or gives the parties the choice) to have a combined argument, it will extend the argument time.

So, is assigning cross-error always a bad idea? No, because there is one instance (and, IMHO, only one instance) where cross-error is in fact a particularly good idea.  When the lower court has ruled against the appellee (or expressly declined to rule) on an issue that would preclude the appellant from obtaining the relief sought on appeal, the appellee should address this issue by cross-error.  In an appeal by petition, if the court refuses the appeal, then the cross-error is of no moment – and the court may weigh the likelihood of the cross-error having merit in deciding whether to grant the appeal.  In an appeal of right, cross-error of this type is not only the most appropriate way to call the court’s attention to an alternative basis for upholding the judgment, it is also arguable that doing so by cross-appeal would be inappropriate, or at the very least cumbersome, in that it would require the court to refer to a different set of briefs to address closely related issues.

Why did I say that cross-error can be assigned to an issue the lower court “expressly” declined to rule on rather than on any basis known to the lower court that would serve as an alternative basis for upholding its judgment?  Because assignments of cross-error should relate only to an actual ruling of the lower court; if the lower court simply failed to reach an alternative argument for giving judgment to the appellee, the appellee is not aggrieved of the (non-existent) judgment on that point.  Instead, it can be raised as a “right result, wrong reason” argument as an alternative basis for affirming the judgment without the need to assign “error” to a point the lower court may have agreed with, but simply did not see the need to say so (perhaps, not wanting to “add insult to injury” in ruling against the other party).  Another day, I will try to explain why RRWR arguments are not usually effective and may, in fact, be detrimental to the appellee’s cause.

The other instance where cross-error is appropriate, but not necessarily a good idea, is to challenge the lower court’s judgment with respect to sanctions or attorney’s fees awarded against the appellant.  Typically, if the lower court’s judgment imposes sanctions or fees, the appellant will assign error to this (or at least contend that if the judgment is reversed, so too will the sanctions and fees if they are inextricably tied to the judgment).  If the appellant does not assign error or the court has declined to make the award, assigning cross-error is appropriate, but if the sole issue is that the lower court abused its discretion by not awarding the sanctions or awarding too little to suit the appellee, the cross error has almost no chance of succeeding.  If court has declined to award attorney’s fees that are mandatory (an unlikely scenario), then a cross-appeal is the appropriate course of action, especially in appeal by petition.

So, if these are the only instances in which cross-error should be raised, every other gripe an appellee has with the lower court’s judgment should be raised by cross-appeal?  No, for the simple reason that not every gripe needs to be the subject of an appeal.  Issues that ought not to be raised by either cross-error or cross-appeal are any that involve the trial court’s discretion and would be of no moment (i.e., moot) if the judgment is affirmed.

If the appellant wins a reversal and remand, matter’s involving the court’s discretion may or may not be revisited on remand, and therefore any discussion of those issues would amount to an advisory opinion.  It is true that there may be some such issues that will necessarily be revisited and on rare occasions an appellate court will address these issues in order to avoid the necessity of an appeal following remand – it’s even possible that the court will address such issues when affirming the judgment if they are “likely to recur in future cases or would otherwise evade review,” but this rarely is the case and assigning cross-error or cross-appealing these issues will more likely just muddy the water, which is something an appellee defending a judgment should not want to do.

A cross-appeal, like an assignment of cross-error, is therefore appropriate in only one instance (again, this is a matter of opinion, but it is my blog, so . . .).  A cross-appeal should be brought only when two things are true: 1) your client will come out of the appeal better off than when she went in – and that means a result that is more valuable to her than your fee, and 2) when you would have appealed the issue even if the other side had not appealed.

In short, there really is no such thing as a cross-appeal; rather, there are opposing appeals arising from the same judgment.  The decision to file an appeal should not depend on whether the other side is also going to appeal; it should be based on the merits of the issue that you want the appellate court to consider and the benefit to your client in expending the time and treasure required to have the court do so.

Where were we before I veered into a mini-lecture on appellate procedure?  Oh, yes, the saga of Mr. and Mrs. Wills.  Suffice to say the foregoing thoughts on cross-appeal and cross-error are decidedly the tail wagging the dog here, as there is really nothing much new from a legal standpoint in this opinion (and, factually, there is rarely anything that is new in a domestic case, as I recently observed in this space).  The parties were married for something less than 11 years, but as the opening paragraph notes that they “last separated” on July 13, 2015, you can probably infer that the marriage was not one of smooth sailing until it finally hit an uncharted reef.

Perhaps the first sign of trouble was when less than a month into the marriage the husband requested that the wife sign a “postnuptial agreement.”  Whatever your view of prenuptial agreements – I tend to favor the view that they are rarely appropriate for first marriages but otherwise vital for all subsequent unions – “postnups” in any marriage are usually a sign of storm clouds on the horizon.  Experienced domestic attorneys have likely spotted the issue that is the main focus of the appeal: Was the postnup enforceable where the couple had separated and reconciled at least once during the marriage after the agreement was made?

The evidence, in part disputed by the wife, was that the original intent had been to have a prenup, but circumstances intervened, and the couple married before signing any agreement.  Also disputed is whether the communications between husband and wife concerning the execution of the postnuptial agreement were “serious discussions” or “shouting matches.”

At trial, wife contended that the postnup was unenforceable for two reasons – first she contended that she had signed the agreement under duress; second, she contended that the agreement was “a separation or property settlement agreement” which was abrogated by the couple’s subsequent reconciliation(s) under Code § 20-155.  The circuit court ruled that the wife had not shown that her will had been overborne at the time she signed the postnup, but further found that the agreement was subject to abrogation under Code § 20-155.  Husband appealed this latter ruling and wife assigned cross-error (in accord with the appropriate use of that procedure as discussed supra) to the former.

In the absence of an enforceable postnuptial agreement, the circuit court decided the issues based upon the equities of the case, which heavily favored the wife. In particular, the court ordered a retroactive increase in child support and required husband to pay prejudgment interest on the difference between the support paid and the amount now owing.

On appeal, husband assigned 12 errors, the first four of which pertained to the circuit court’s ruling that the postnup was abrogated, and for good measure there was a fifth assignment of error that partially addressed this issue as reasserted in a motion for reconsideration.  This is far too many assignments of error for a simple question of law: Does Code § 20-155 apply to all postnuptial agreements, or just those that are separation or property settlement agreements entered into with an eye toward a permanent separation or divorce?

The Court of Appeals’ opinion gives an excellent textual analysis of Code § 20-155 and concludes that the agreement in this case was not subject to the abrogation provision of the statute.  Specifically, the Court held that this provision applies only to agreements “made in connection with the dissolution of a marriage or a separation.”  Here, the agreement was entered into for the express purpose of maintaining the marriage, not ending it.  Accordingly, the circuit court erred in finding that the agreement was abrogated, the judgment is reversed, and the case will be remanded for a new trial.

All but one of the remaining issues in the husband’s appeal were either concerning issues that will need to be revisited in light of the postnup being enforceable or were alternate arguments for it being so, the Court easily dispenses with these issues as either not ripe or moot.  The last of husband’s issues addresses the award of pre-judgment interest on the retroactively increased child support.  The husband prevails on this issue as well because the Court found that there was no “arrearage” because the amount of child support owed was based upon the circuit court’s awarding of retroactive support.  In short, the Court of Appeals finds, quite reasonably, that there can be no arrearage on payments that husband was not required to pay until the judgment, and this there was no principal on which the court could impose prejudgment interest.

Careful readers may have noted that in discussing the postnup there was no mention of wife’s cross-error on the issue of duress.  Appellate opinions can be structured to deal with issues in several ways, but typically they will do so seriatim, a fancy word that means “in the order they come.”  Here, that means that the Court of Appeals had to get through all 12 of husband’s assignments of error before getting to the cross-error and then wife’s cross-appeal.  Consequently, whether the circuit court erred in rejecting wife’s claim of duress gets telegraphed by the reversal and remand on husband’s statutory claim.  Whether an agreement was entered into under duress is a question of fact, and the Court applies the standard of review that favors the party that prevailed on that question – in this case the husband – and finds that the circuit court’s finding that wife’s will was not overborne is neither plainly wrong nor without support in the evidence. (This raises another practice point – don’t fall into the trap of assuming that the standard of review always favors the appellee, as this is not always the case especially when addressing cross-error).

Moving on to wife’s appeal, she assigned six errors.  Without giving much detail to the nature of the first four assignments, the Court of Appeals finds that these issues are moot because they relate to matters that will be subject to the terms of the postnup on remand.  Likewise, an issue of whether the trial court abused its discretion in not allowing wife to reopen the case to put on additional evidence of the husband’s abusive behavior was moot because this evidence will either be revisited on remand or may be irrelevant considering the enforceability of the postnup. If you are keeping score, there were 19 assignments of error and cross-error between the two appeals, and the Court ultimately found that 16 of these were either moot, not ripe, or redundant.

The wife’s remaining assignment of error challenges the circuit court’s failure to award her attorney’s fees.  The Court of Appeals notes that there several reasons it need not give serious consideration to this issue.  First, it is a matter committed to the sound discretion of the circuit court; second, given that the wife did not prevail on the central issue of the appeal and the case will be remanded, it’s not appropriate to consider the issue while the case continues; and third, wife already received $50,000 in attorney’s fees in the pendite lite support order, suggesting that there was no real inequity in the court’s decision not to award additional fees.  Finally, the Court denied requests by both sides for an award of appellate attorney’s fees.

Let us move on to Lisa Johnson, Executrix of the Estate of Greta R. Johnson v. Tommy J. Johnson, Sr., the opinion that caught the eye of the Appellate Sage of Virginia Beach, Steve Emmert.  If you have followed Steve’s blog for any length of time, you know that he would probably like a poke in the eye with a sharp stob rather than to have to go near a domestic relations case, so what about Johnson made it sufficiently appealing (pun intended) for him to take notice of an opinion from the Eighth Street Side of the Courts Building?  In a word, “jurisdiction.”

Like most appellate lawyers, myself included, Steve is fascinated by procedural conundra, and determining when a court has or does not have the “right” jurisdiction to decide an issue is often the most fascinating procedural conundrum of all.  It is a fascination that most trial lawyers do not share, or at least that is my conclusion based on the number of times the appellate courts of the Commonwealth have had to tell trial lawyers (and trial judges) that they spent days, weeks, years, and in one memorable case nearly two decades, trying issues when the court had no jurisdiction to enter judgment or even entertain doing so.

This case presents two questions of whether there was jurisdiction, and if so, what kind – one in the circuit court and one in the appellate court.  In the circuit court this issue was whether the executor of an estate can ask the court to enter a final decree of divorce terminating the marriage of the decedent and the surviving spouse.  In the appellate court, it was whether the Court of Appeals has jurisdiction to even consider the appeal from the circuit court where that court decided it could not enter a final judgment, which is usually the threshold for there being something to appeal.

Greta and Tommy Johnson had reached the final stage of the proceedings to dissolve their 46-year union.  The opinion gives us no background on why the couple had decided to part ways.  We know that Greta was ill with brain cancer and that she had certain “last wishes” that would be complicated by Tommy being her nearest relative at her death.  Beyond this, however, we can only speculate; perhaps it had to do with distribution of what would have become her sole property after the marriage, or perhaps there had been a long-standing enmity between the couple, possibly even a long period of separation, when her illness and imminent death created an urgency to terminate the marriage.

The one thing we do know for certain is that the reason was not that given in the old saw about the centenarian couple seeking a divorce at their advanced age because “we were waiting for the children to die.”  We know this because when Greta died before the final decree could be entered – counsel for the parties had been wrangling over the wording for three months – the couple’s daughter, as the executor for her mother’s estate, was substituted as the party-plaintiff to the action.

Greta’s counsel contended that because the circuit court had made oral rulings with respect to the issues that were to be included in the final decree, it could enter an order nunc pro tunc to a date prior to Greta’s death to finalize the divorce.  The circuit court denied the motion, finding that Greta’s death terminated the marriage and with it the court’s jurisdiction to take any further action with respect thereto.  The court further ruled that even if it had such jurisdiction, it would decline to enter a final decree because there was no evidence that the parties had agreed to the content of the order.

The daughter appealed, assigning error to the circuit court’s determination that it lacked jurisdiction and its alternate ruling that it would not enter the decree even if it could.  The Court of Appeals agreed with the circuit court that the death of one of the parties to a divorce proceeding results in the termination of marriage by operation of law and thus there is a concomitant loss of subject-matter jurisdiction by the court because that jurisdiction is premised on their being a marriage to terminate.  The Court succinctly observed, “Put simply, the words ‘until death do us part’ found in traditional marriage vows are reflected in the law of the Commonwealth.  A marriage ends upon the death of a spouse.”

So where does that leave the Court of Appeals?  As you probably guessed by the introduction, the Court concludes further that if the circuit court lost jurisdiction over the case before it could enter a final decree, the Court of Appeals likewise has no jurisdiction to consider the appeal because its jurisdiction, at least with respect to this type of appeal, is limited to cases in which a final order or decree has been entered.  Therefore, other than to decide that because the circuit court correctly ruled that it lacked jurisdiction to enter such an order, the Court of Appeals likewise lacks jurisdiction to consider any other aspect of the appeal including the lower court’s ruling that it would not have entered the nunc pro tunc order even if its jurisdiction somehow survived Greta’s passing.

My guess is that most trial lawyers (and any laypersons who have stumbled upon this post) are pondering the mobius like nature of this lack jurisdiction, which seems to wrap in upon itself in a never-ending loop.  How, they ask, can a court have jurisdiction to decide that it does not have jurisdiction?  Although this is a topic for another day, I will simply say that the answer lies in the observation that if you want clarity in discussing the authority of a court, one ought not ever use the term “‘jurisdiction’ because it is a verbal coat of too many colors.”  United States v. Tucker Truck Lines, 344 U.S. 33, 40 (1952) (Frankfurter, J., dissenting).

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