Tuesday, July 10, 2012

On appellate procedure in child support enforcement cases

One of my interests of late has been child support enforcement.

Va. Code § 8.01-676.1(D) provides: “The court from which an appeal is sought may refuse to suspend the execution of decrees for support and custody.” By this provision, the General Assembly “specifically has addressed the suspension of a support order pending appeal.” Reid v. Reid, 245 Va. 409, 414, 429 S.E.2d 208, 211 (1993). As then-Judge Koontz wrote in the earlier panel decision of the Court of Appeals in the Reid case, “This statute reflects the legislative recognition that compelling public policy reasons exist to cause the judgment for support to remain in effect and unabated during the pendency of an appeal.” Reid v. Reid, 12 Va. App. 1218, 1232, 409 S.E.2d 155, 163 (1991). Consistent with the language of the statute, and the “compelling public policy” that supports it, the trial court can refuse to stay its orders while the appeal is pending. See Holzberlein v. Holzberlein, Record No. 0089-05-4, 2005 WL 1943240, *2 (Va. App. Aug. 16, 2005) (affirming denial of husband’s supersedeas bond motion). In the absence of a supersedeas bond, while an appeal of a child support order is pending, the lower court may not modify but may enforce the existing order. Howell v. Com. of Virginia, DCSE, ex rel. Fisher, No. 0123-01-2, 2001 WL 1359847, *2 (Va. App. 2001) (citing Decker v. Decker, 17 Va.App. 562, 564, 440 S.E.2d 411, 412 (1994)).

But what is a "decree for support"? Is it the judgment for the arrearage, which seems like a fairly ordinary money judgment, or is the judgment that establishes the ongoing monthly obligation, or both? The Court of Appeals has recognized that there is a difference between the two. At least with regard to spousal support, "the distinction that must be drawn between a spousal support order that establishes an ongoing, unliquidated support obligation and one that establishes a sum certain or liquidated amount due and owing at a particular time for purposes of the proper application of Virginia law to Virginia spousal support orders." Bennett v. Com., Dept. of Social Services, Div. of Child Support Enforcement ex rel. Waters, 15 Va.App. 135, 144, 422 S.E.2d 458, 463 (1992). In Bennett, the Court held that there was no time limit in which to bring an action to obtain an money judgment for an arrearage, but there was a time limit for enforcing the judgment for the arrearage, in the context of a support award from another state.

If the obligation to pay is not suspended, and the appellant tries to pay and proceed with the appeal, there is the risk that the effect of payment will be to render the appeal moot. See Briggman v. Com., Record No. 1911–09–4 (Va. Ct. App. Apr. 10, 2010) (dismissing child support appeal for mootness on account of payment); Walthall v. Com., 3 Va. App. 674, 353 S.E.2d 169 (1987) (dismissing child support appeal for mootness on account of payment). Further, it is likely that if he pays then he has no argument for restitution, even if he wins on appeal. Nordstrom v. Nordstrom, 50 Va. App. 257, 266, 649 S.E.2d 200, 205 (2007) (“a trial court has no statutory or inherent authority to order restitution of child support”); Meyers v. Meyers, No. 1920-03-4, 2003 WL 22887920 (Va. App. Dec. 9, 2003); Summers v. Summers, No. 2759-98-4, 1999 WL 1129977, *3 (Va. App. June 15, 1999); Wilson v. Wilson, 25 Va. App. 752, 760, 492 S.E.2d 495, 499 (1997) (in dicta, rejecting claim for restitution); Beckwitt v. Beckwitt, No. 1523-92-4, 1993 WL 381451, *4 (Va. App. Sept. 28, 1993) (upholding denial of restitution). These cases follow Reid, in which the Supreme Court held that there is no “statutory provision for restitution of support paid pursuant to an order that is later reversed,” and that there is no inherent power to order such restitution. 245 Va. at 415, 429 S.E.2d at 211. In Reid, the issue before the Court was spousal support, but the statute the Court addressed, section 20-112, applies equally to “support for a spouse or for a child.”

Even where the trial court agrees to set the bond, there is some ambiguity as to the proper amount. Section 8.01-676.1(C) provides: “An appellant who wishes execution of the judgment or award from which an appeal is sought to be suspended during the appeal shall . . . file an appeal bond or irrevocable letter of credit conditioned upon the performance or satisfaction of the judgment and payment of all damages incurred in consequence of such suspension.” This language “does not give the trial court discretion to set an appeal bond in an amount less than the judgment.” Tauber v. Com. ex rel. Kilgore, 263 Va. 520, 545, 562 S.E.2d 118, 132 (2002). The bond should be set high enough to include interest under Va. Code 8.01-682, the $50 fee under Va. Code 17.1-624, and printing costs under Va. Code 17.1-605 and Rule 5A:30(b). See O’Connor v. O’Connor, No. 2299-02-4, 2003 WL 22887978, *5 (Va. App. Dec. 9, 2003) (affirming supersedeas bond of $10,000 on judgment amount of $8,193.54). How is the trial court supposed to figure all that out when the duration of the appeal is unknown? In theory, the appellant can keep on litigating and relitigating the appeal through the Court of Appeals and on to the Virginia Supreme Court for a couple of years. A trial court might act within its discretion to set the bond at the the arrearage plus two years of interest plus the maximum recoverable costs.

Which case says that a hand under the shirt is not a gun?

In Mitchell v. Com., the Court of Appeals in an opinion by Judge Alston joined by Judges Petty and Beales denied relief on what sounded like a plausible appellate issue for failure to cite legal authority.

The issue was whether the defendant could be convicted under Va. Code 18.2-53.1 where a substantive element was that the defendant did "use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner" and the victim did not say that he ever saw a firearm. The appellant cited the language of the statute, and argued:

"In the instant case, the only evidence presented to establish the use of a firearm was the testimony of the clerk that the defendant had his hand under his shirt when he told her to give him the money and there was a protrusion in her direction. Immediately afterwards, the defendant leapt onto he [sic] counter, and with the same hand the clerk testified that he had up under his shirt, grabbed money from the drawer. The defendant never stated he had a gun, no gun was ever seen by either clerk, and the evidence in fact proved beyond a reasonable doubt that he did not have a gun in his hand."

The Court cited several cases, suggesting that counsel could or should have used them in support of the argument. One of them says: "Possession of a firearm is an essential element of the statutory offense, and the fact that Konchal merely thought or perceived that Yarborough was armed is insufficient to prove that he actually possessed a firearm." Yarborough v. Com., 247 Va. 215, 219, 441 S.E.2d 342, 344 (1994). The discussion in Yarborough suggests to me that the issue was one of plain meaning, and that this fellow Mitchell was wrongfully convicted.

Moreover, in my view, a citation to the express language of the Code should often satisfy the requirement under the appellate rules for legal authority, when the argument is based on the plain meaning of the statute and identifies the statutory element that was not proven. The need for case law would arise only where the tools of construction must be applied.

As Judge Posner once famously explained, in the context of qualified immunity for public officials under section 1983, where the state of law is an issue: "The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances." K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). You shouldn't need a case to make the point that a hand under a shirt is not a pistol, shotgun, rifle, or other firearm.

Monday, July 09, 2012

ESI opinion from Judge Jones of the W.D. Va.

In Adair v. EQT Production Company, Judge Jones overruled objections to Magistrate Judge Sargent's ruling, but modified it, where the subject matter was EQT's obligation to produce 370 GB of e-mails. Judge Jones agreed that EQT would have to produce certain segments of the e-mails, screened for specified search terms to increase the changes of avoiding privileged documents, but without screening by humans.

The Court explained:

"EQT’s position is that the only reasonable search for privileged and responsive documents is done by human beings on an individual document basis. As the bulk of trending case law and the recent amendments to the rules indicate, this is an untenable position."