Virginia Injury News

Virginia Court Remands Divorce Proceedings to Lower Court Over Question of Military Pay

January 18, 2022 | Robinson Law, PLLC

In a recent opinion from a Virginia federal court, a husband argued that he was forced to give his ex-wife too much of his military pay in the wake of their divorce. On appeal, the court considered his argument and found that the couple’s divorce agreement clearly violated federal law. Because of this violation, the court sent the case down to a lower court to resolve the husband’s issue.

Facts of the Case

According to the opinion, the husband and wife initially negotiated an agreement at the time of their divorce that set up how much money each party would receive. One central point of contention in the agreement was the division of the husband’s military pay. Ultimately, the parties agreed that the wife would receive a large percentage of the husband’s disposable military retired pay. A year later, however, the husband argued before a court that some aspects of their agreement violated federal law and that he wanted a court to review the order. The wife rejected this argument, stating that under Virginia law, the husband only had 21 days to challenge the order, and because that time had already passed, his challenge was no longer valid.

In response to these arguments, a court decided that it would not consider the husband’s appeal because the 21-day deadline had, in fact, already passed. The husband appealed this decision, and a higher court decided it would consider the issues the husband raised.

Virginia Court Denies Mother’s Request for Full Legal Custody

December 18, 2021 | Robinson Law, PLLC

The breakdown of a relationship with children involved often necessitates the court’s involvement. When this occurs, Virginia courts must decide about both legal and physical custody.

Legal custody is the right to make major life decisions for a child. This includes decisions relating to health care, education, and religious practices. Separate from legal custody, physical custody concerns where the children will live and spend their time.

Whenever possible, courts aim to preserve both parents’ physical and legal custody. Only in extreme circumstances where shared custody is clearly not in the best interest of a child will courts terminate those parental rights.

Appeals Court Sustains Lower Court’s Decision Concerning the Value of a House and Attorney’s Fees in Divorce Proceeding

December 1, 2021 | Robinson Law, PLLC

A man recently appealed a trial court’s findings in the divorce proceedings between him and his ex-wife. At trial, the court had awarded the wife a lump sum for the value of the couple’s home as well as the value of attorney’s fees. On appeal, the husband argued both of these values were unreasonably high. The court disagreed, sustaining the original verdict.

Facts of the Case

According to the opinion, the wife filed a petition for divorce after having been married to her husband for ten years. After the filing, the husband and wife significantly disagreed on two issues: distribution of money for the value of the couple’s house and the awarding of attorney’s fees.

During the couple’s marriage, the monthly mortgage payments were divided equally between the parties. At trial, the wife’s attorney emphasized that she had been the person contributing financially to the improvement of the property, doing the grocery shopping, and taking care of the couple’s children the majority of the time. The husband, on the other hand, had “made negative nonmonetary contributions” to the home by hoarding and diminishing the value of the residence. The court used this evidence, along with the mortgage balance on the house, to determine that the husband owed the wife approximately $38,000 for the value of this asset.

Property Division Issues During a Virginia Divorce

October 24, 2021 | Robinson Law, PLLC

Virginia considers marriage an economic partnership. As such, it is in the majority of states that follow equitable distribution law for the division of marital property and debts during divorce. Under Virginia Code Section 20-107.3, courts must engage in a fair division of marital property and debts. While some couples may agree amongst themselves on the fair division of marital property, conflicts often arise and many must rely on the courts to decide on their behalf. The goal of the court is to encourage fair and equitable results. However, despite its name, equitable distribution does not necessarily mean 50/50 distribution. Instead, it is a way for the court to divide assets in a manner that considers each party’s earning capability, separate assets, and role in the marriage.

Under the lens of Virginia divorce law, courts classify property as either marital property or separate property. The law defines marital property as jointly-owned property and all other property obtained from marriage to separation. In contrast, separate property refers to property that belonged to only one party before their marriage. Property that was once separate property but then used for the benefit of the marriage may turn into marital property.

Common examples of marital property are the couple’s home titled in both spouse’s names or a retirement account accumulated during the marriage, even if the account only lists one spouse’s name. Further martial property may include vehicles, electronics, and business interests. Separate property includes items like cars given to one spouse, an inheritance, and separately maintained cash gifts from a third party. It is important to note that gifts from one spouse to the other are marital property.

Appeals Court Addresses Jurisdiction in Virginia Termination of Parental Rights Case

September 16, 2021 | Robinson Law, PLLC

A woman recently appealed a circuit court’s final order of the adoption of her biological daughter to the minor child’s long-term foster parents. The Virginia family court case began when the Department of Social Services (DSS) became involved after the woman was arrested for driving under the influence and possession of drug paraphernalia. Over the course of seven years, the mother would frequently leave the child in the couple’s care. As such, the foster parents maintained a “very close” relationship with the girl. At one point, the juvenile and domestic relations (JDR) court issued an order granting legal custody of the child to the foster parents.

Between 2017 and 2019, the mother had little contact with the child and did not see her for about 11 months. The foster parents expressed their desire to adopt the child; however, the mother would not consent. The mother conceded that she was absent but refused the adoption, arguing that she wanted additional time to prove her capability. At the adoption hearing, the couple argued that the mother’s consent was unnecessary under Virginia Code § 63.2-1202(H). They further argued that the mother was withholding consent contrary to the child’s best interest. At the hearing, the mother argued that the court erred in taking jurisdiction because the JDR did not remove legal custody or terminate her parental rights. She contends that because the JDR court entered the last custody order, they maintained jurisdiction over the case.

According to the law, a parent’s interest in the care, custody and control of their children is a fundamental liberty interest. As such, biological parents may initiate adoption proceedings in a JDR court as long as one parent consents. Here, contrary to the mother’s assertions, this case was not a parental placement. Instead, the parties testified that the child was placed with the couple so that the girl would be kept out of the foster care system. The court found that the JDR did not have jurisdiction because this was not a case of parental placement, and neither parent consented to the adoption. Ultimately, under the law, the adoption must commence in the proper venue, in this case, the circuit court. For these reasons, the appeals court ultimately affirmed the circuit court’s ruling in the adoption proceedings.

The Effect of COVID-19 on Virginia Divorce Proceedings

August 18, 2021 | Robinson Law, PLLC

A Virginia appellate court recently addressed a wife’s appeal from a final divorce decree. Amongst several issues, the wife argued that the circuit court erred by denying her continuance request. According to the record, the couple married in 2008 and began separation and divorce proceedings in 2018. Following several hearings, the parties entered into a separation agreement in 2020. The separation agreement was limited to equitable distribution matters, and the remaining issues were slated for a hearing in March 2020. However, because of the pandemic, the hearing was moved to August 2020.

On the day of the hearing, the wife contacted the clerk explaining that she had a fever and possible COVID-19 contact. The court failed to provide the woman guidance, and the woman did not appear at the hearing. As such, the court decided the case solely on the husband’s evidence. The wife objected to the final decree; however, the court denied the motion.

The wife argues that the lower court abused its discretion by failing to grant her a continuance or provide alternative arrangements to participate in the hearing. Virginia’s rule governing continuance provides that a court abuses its discretion “when a relevant factor that should have been given significant weight is not considered” and when the court considers an irrelevant factor, and when all proper factors are considered, but the court “commits a clear error of judgment.”

Court Issues Decision in Virginia Spousal Support Modification Case

June 13, 2021 | Robinson Law, PLLC

The state appeals court recently issued a decision in a divorce case involving a motion to amend spousal support. The parties’ divorce decree was entered in July 2019, and neither party appealed. During this time, the husband was president and sole employee of a home building company. The wife filed a petition arguing that the husband did not pay spousal support on time; in response, the husband moved to reduce spousal support. During proceedings, the husband conceded that his business received COVID-19 relief, and he failed to show evidence that he was pursuing additional work. However, he argued that his failure to pay was not due to willfulness but rather his inability to pay. Amongst other findings, the court found in favor of the wife and ordered the husband to pay support to cover the arrearage. The husband appealed several findings, including the trial court’s failure to reduce spousal support.

Under Virginia law, upon petition, a court may increase, decrease, or terminate spousal support and maintenance. The party moving for the change must establish a “material change in circumstances” that “warrants a modification of support.” The material change must involve the dependent spouse’s financial needs or the ability of the supporting spouse to pay. Trial courts maintain broad discretion in determining whether a material change warrants a modification. Further, appellate courts must afford the trial court with deference when reviewing these matters.

In this case, the court determined that while there was a material change in circumstances, the husband failed to prove that the change warranted a reduction. Although the husband showed that COVID-19 brought slowdowns in the home building industry, he failed to disclose his finances fully. Further, the husband failed to meet his burden to seek other employment because he did not seek or apply for any other job. In this case, it was not the wife’s burden to establish a need for support, and instead, it was the husband’s burden to show that the wife’s need for support changed. Ultimately, the appellate court found that the trial court evaluated the parties’ circumstances and did not err in their decision to deny the husband’s motion to reduce spousal support.

Virginia Personal Injury Lawsuits Against Government Officials

May 27, 2021 | Robinson Law, PLLC

Most personal injury lawsuits stem from the negligence of a private citizen or company. However, in some instances, government entities and employees engage in reckless or negligent behavior that causes harm to the public. The Virginia Tort Claims Act, the state constitution and Virginia Supreme Court decisions outline the circumstances under which a private citizen may file a civil claim against a government entity or employee. Cases involving a governmental entity are complex and require an in-depth and comprehensive understanding of Virginia procedural and statutory rules.

Generally, Virginia law provides counties and their employees with immunity from negligence claims; however, immunity does not extend to contractual or civil rights claims. Moreover, the law protects Virginia cities and towns and their employees from immunity for lawsuits stemming from negligence arising from “governmental activities.” The immunity does not cover “proprietary activities,” contractual claims, and civil rights actions. The law generally classifies “governmental activities” as those conducted for the common good of citizens. In contrast, proprietary activities are those that private entities have traditionally done for a pecuniary benefit. For example, governmental activities typically include police work, firefighting, social services, garbage removal, hospitals, jails, engineering of water and sewer systems. On the other hand, proprietary activities are those such as street and sidewalk maintenance, markets, utility company work, airports, and public housing services.

While the rule seemingly provides governmental entities with broad protection, many exceptions exist. Injury victims may still have a claim if the entity engaged in certain conduct such as intentional acts, gross negligence, willful and wanton negligence, unauthorized actions outside the scope of employment, non-discretionary or ministerial actions, and some contractual claims. The distinction between activities can be challenging to parse out. For instance, news reports described a collision between a Virginia State trooper and another vehicle. Officials noted that injuries occurred, but they did not specify who the victims were. However, four people received medical treatment, and two were airlifted to a children’s hospital.

Recovering after a Virginia Motorcycle Accident

May 11, 2021 | Robinson Law, PLLC

Those who suffer injuries in a Virginia motorcycle accident may file a lawsuit to recover damages for their losses. Although motorcycle accidents are similar to other vehicle accidents, the inherent nature of motorcycles and motorcycle riding tend to present injury victims with additional challenges. Injury victims, including car drivers, passengers, and motorcycle riders and their passengers, should understand how Virginia personal injury laws may impact their claim to recover.

Operating a truck, car, motorcycle, or bike on the road requires the operator to accept a certain degree of risk. However, motorcyclists present riders and those around them with unique risks that may increase the likelihood and severity of an accident. The structural characteristics, such as its weight, design, and lack of safety features, make these vehicles more prone to serious accidents. Further, unlike typical cars, these vehicles are much more likely to experience the impact of common road hazards such as debris and uneven surfaces. Moreover, although both car and motorcycle drivers need to obtain an appropriate license, safe motorcycle driving requires the operator to possess more specialized skills.

Motorcyclists tend to receive unwarranted biases from courts and insurance companies. However, in some instances, certain powerful motorcycles and sport bikes encourage riders to engage in riskier activity, such as speeding, swerving, and quick accelerating. These behaviors can have catastrophic consequences. For instance, news sources recently reported on a serious Virginia motorcycle accident near Virginia Beach. According to reports, eight bikers traveling as part of a larger consort were weaving in and out of traffic. One of the motorcyclists slammed into another motorcycle and then into a sedan. At the same time, another biker lost control of his motorcycle, and two other bikers slammed into each other, causing one of them to lose control and slam into a steel cable. Several of those involved in the collisions were transported to hospitals.

Court Addresses Landowner Immunity Based on Virginia Recreational Use Statute

April 13, 2021 | Robinson Law, PLLC

The Virginia Supreme Court recently decided a case arising from a premises liability lawsuit. In that case, a man was visiting his grandparents’ home where they permitted him to target practice in the direction of their neighbor’s residence. During practice, one of his bullets went through the trees and into the neighbor’s home, striking and killing a woman visiting her mother. The victim’s representative filed a lawsuit against the shooter’s grandparents, arguing that they were negligent in allowing him to target practice in the direction of their neighbor’s home. Among several defenses, the defendants argued that they were immune from lawsuits under Virginia’s Recreational Land Use Act.

Virginia maintains a recreational immunity statute that provides immunity to certain landowners in specific situations. Common law mandates that courts should resolve statutory contentions by strictly construing the terms at issue. In Virginia, the recreational use statute holds that landowners do not owe a duty to keep their land safe for entry or use by others for certain recreational activities. These activities include hunting, fishing, camping, water sports, boating, hiking, foxhunting, and bicycle riding. However, the landowner may be liable for “negligence or willful, or malicious” failures to warn against dangerous conditions.

In this case, the court first analyzed the statute’s protected activities, which includes hunting but not target shooting. The court reasoned that the language does not encompass any phrase that would amount to “any other recreational use.” Therefore, the statute does not extend to non-enumerated activities. Next, the statute only provides immunity for property owners that provide a third party with the “use of an easement or license.” The statute expressly stated that the subsection applies regardless of whether the property owner gave the third-party permission to use their land for recreational purposes. Ultimately, the court found that the recreational use statute does not apply because it does not cover instances when a landowner permits to shoot targets on their property.