The VLW Blog

Bummer if you were looking for the Supreme Court of Virginia to really decide three closely watched cases: Miller-Jenkins v. Miller-Jenkins, which appeared to raise the issue of whether Virginia courts will defer to courts of another state on issues involving same sex couples, and Moreau v. Fuller and Gibson v. Commonwealth, which presented the possibility of a ruling on whether judges have the inherent authority to defer judgment in criminal cases.

The problem for the biological mother in a visitation dispute with her former lesbian partner was that her original appeal of the Virginia Court of Appeals decision was dismissed because her notice of appeal was not filed in time. She argued that a second ruling by the Court of Appeals reinstating the registration of a custody order from Vermont in a collateral proceeding gave her the opportunity to challenge the original holding that the federal Parental Kidnapping Prevention Act controlled the case.

Not so, Justice Barbara Milano Keenan wrote for the court. Under the law of the case doctrine, she could not raise the same issue that had been resolved by the dismissal of the first appeal, Keenan said. Chief Justice Leroy Hassell Sr. agreed in a concurrence that the law of the case doctrine applied but added he did not believe the COA had decided the original case correctly.

Justice Donald W. Lemons wrote the opinions in both the deferred judgment cases. In neither case was there a clear order that the trial judge would have deferred judgment. Because courts speak through their orders, the Supreme Court therefore had no reason to rule on whether they have the inherent authority to do so, Lemons wrote.

The decision produced a concurrence from Justice Lawrence L. Koontz Jr. and a counter-concurrence from Justice Cynthia D. Kinser that was joined by Justice Keenan and G. Steven Agee. “Surely, in time a case will come before this court with the appropriate record to permit us to properly address this issue,” Koontz wrote. He said he believed the court’s inherent authority extended at least to allowing deferred judgment “in appropriate cases and upon consent of the accused and the Commonwealth.”

Not so fast, said Kinser in acknowledging that lower courts sometimes do defer judgment. “The Court’s inability of to address this issue should not viewed as a tacit approval of the practice.”

The General Assembly may decide the issue. House Majority Leader H. Morgan Griffith introduced a bill in the last legislative session that would give judges the authority to defer judgment in most cases but agreed to carry it over until next year to give the Supreme Court a chance to rule in Moreau and Gibson.

The much-litigated custody of 6-year-old Isabella Miller-Jenkins was in court again today, this time before the Supreme Court of Virginia

Mathew Staver, the head of Liberty Counsel and dean of the Liberty University law school, told the court that the Virginia Constitution and the federal Defense of Marriage Act prevent the court from considering anything about a same-sex civil union. He represents Lisa Miller-Jenkins, the biological mother of Isabella, who is trying to cut off the visitation rights of her former partner, Janet Miller-Jenkins.

Joseph R. Price, the Washington attorney who represents Janet, responded that the federal Parental Kidnapping Prevention Act and the full faith and credit clause of the U.S. Constitution require Virginia courts to honor the visitation order entered by Vermont courts.

Lisa Miller-Jenkins and Janet Miller-Jenkins were Virginia residents in 2000 when they traveled to Vermont to join in a civil union. Lisa Miller-Jenkins conceived a child through artificial insemination in Virginia in 2001 while the couple was together and a child, Isabella, was born the following April. They moved full-time to Vermont in August 2002.

In the fall of 2003, the women separated and Lisa Miller-Jenkins moved back to Virginia. She filed in Vermont for dissolution of their civil union, which is akin to a divorce, and sought custody of Isabella.

In June 2004, a Vermont family court granted Janet Miller-Jenkins visitation rights; that October, a Frederick County court issued a contradicting decision.

In August 2006, the Vermont Supreme Court ruled that Vermont courts had exclusive jurisdiction in the visitation dispute. The Virginia Court of Appeals agreed two months later in Miller-Jenkins v. Miller-Jenkins.

In April 2007, the U.S. Supreme Court also refused to hear Lisa Miller-Jenkins’ appeal of the Vermont court ruling.

The litigation has become something of a procedural mess since then. Suffice it to say that a major hurdle for Staver is convincing the justices that all the legal points in the case weren’t at issue when the Supreme Court dismissed an earlier appeal because of a procedural default.

From the Love Stinks Department:

It’s not quite as provocative as the Chicago billboard last year featuring a buff dude and a scantily clad babe and proclaiming, “Life’s short. Get a divorce.”

But the message is pretty much the same. The Associated Press reports that a radio station in Charleston, W.Va., is auctioning off a divorce. Today. Valentine’s Day. Love apparently doesn’t conquer all.

WKLC is taking applications from now until 4 p.m. this afternoon. A, um, “winner” will be drawn at 5 p.m.

Not mentioned is which divorce lawyer will acquire a client.

One of last year’s fiercest lobbying battles in the General Assembly has been one-sided so far this time around.

Domestic relations attorneys, with the support of the Virginia Bar Association and the Virginia Trial Lawyers Association, are determined to get Virginia Code § 20-124.3:1 repealed.

The provision bars use of the records or testimony of a mental health therapist against a parent in a custody dispute. It was enacted in 2002 at the behest of clinical psychologists, who contended that their patients were likely to be less candid when getting treatment if they knew that what they said might cost them custody of their children.

The domestic relations bar countered that other provisions in state law list the mental health of a parent as one of the factors a judge must consider in deciding custody. It makes no sense for another law to make the best information about a parent’s health inadmissible, the attorneys insist. And they say there’s no evidence real evidence that parents avoid therapy because of custody battles.

Last year, groups of lawyers were balanced by blocs of psychologists at hearings on the repeal effort. This year, the lawyers have been back, but the psychologists have not. A spokesman for them acknowledged that the law needs changing but asked for another year to work out a compromise. The lawyers countered that two years of effort in that direction have produced nothing.

So far, the intensity of their effort has prevailed. The Senate Courts of Justice Committee reported SB 330 yesterday to the full Senate on a 13-1 vote.

Glenn Lewis, president of the Virginia Bar Association and divorce law expert, is no stranger to television.

Lewis (pictured at right) had his own cable TV gig in Fairfax for years. During the Bush-Gore ballot count in 2000, he was a stateside commentator for the BBC.

Lewis has taken his game to a new level.

Last week, he was on Dr. Phil. Really. Dr. Phil, the enormously popular TV shrink. Big bald guy from Texas. Just look in any bookstore. You can’t miss him.

Dr. Phil highlighted a case from Virginia that, frankly, is a little creepy. In a feature called, “Obsessive Love,” a guy named Jeffrey is so obsessed with his wife Jennifer that he follows her every move. He agrees to seek treatment, but won’t let go.

Lewis is the woman’s lawyer and appeared on Dr. Phil’s show with her. Lewis managed to get a “No Contact Order” entered against Jeffrey. Jeffrey wouldn’t play ball with the “Dr. Phil” crew after a while, revoking the consent he granted to his counselors to talk to the show. He traveled from California to Virginia and was arrested “just miles from Jennifer.”

Apparently Jeffrey is now “in jail, without bond, awaiting trial,” according to Dr. Phil’s team.

It hasn’t been a good month so far for the image of lawyers.

First there was the judge in DC who filed the $67 million lawsuit over a lost pair of pants. Amazingly, his claim is going forward, with a June trial date. The latest on that story: Supporters have rallied around the Korean couple that runs the defendant cleaners, starting a defense fund in their behalf.

Now there is a billboard in Chicago that counsels, “Life’s short. Get a divorce.” The billboard is located in an upscale area known as “Viagra Triangle” for its trendy singles bars and restaurants. It features two hot bodies: A babe with heaving cleavage and a hunk with rippling abs.

For the record, lawyers and bar leaders in Chicago have blasted Corri Fetman, the divorce lawyer behind the billboard. Fetman counters criticism by saying lawyer advertising is boring and that her billboard “promotes happiness.”

So what would the Virginia State Bar’s advertising committee do if someone posted one of these here?

And what would lawyers here think if it showed up in Virginia Beach or Alexandria or Richmond? The floor’s open.

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Any number of divorcing couples has learned – usually the hard way – that you can’t use child support as a bargaining chip in trying to strike a deal on a property settlement agreement.

A couple in Roanoke is the latest to get this lesson. In Wykle v. Wykle (VLW 007-8-130), the husband and wife entered into a PSA: The dad, “in lieu of” paying child support, would pay the first and second mortgages on the house where the mom and their minor daughter, Savannah, lived until the girl turned 21.

As some point, the dad decided he didn’t like this arrangement and moved to have the PSA declared to be unenforceable. The mom argued that the dad was supporting his daughter by paying the mortgage.

But Roanoke Circuit Judge Charles N. Dorsey struck the PSA. He found that the arrangement, which called for the payment of fixed mortgage payments, deprived the court of its jurisdiction to modify or enforce child support. That violated one of the tests set out in Shoup v. Shoup, the 2001 case from the Court of Appeals on the issue.

As a result, the agreement was unenforceable. Motion granted.

Whether therapist testimony can come into a domestic relations court case – an issue that has pitted lawyers against therapists – appears to be settled enough to allow the Virginia Court of Appeals to shuttle decisions on the subject into its “Unpublished Opinion” file.

Just last December, the appellate court said in a 2-1 decision in Rice v. Rice that no testimony from a therapist can come in without the consent of a parent if the testimony would be adverse to the parent’s legal position. More recently, the family law bar tried to get the Virginia General Assembly to repeal Va. Code § 20-124.3:1, the 2002 statute that generally bars therapist testimony in custody disputes. That effort died in committee.

Earlier this week, a court of appeals panel released an unpublished opinion in Shoemaker v. Karau, affirming a Fairfax Circuit Court decision that excluded testimony from three therapists called by husband to rebut testimony from the wife: the mother’s therapist, the child’s therapist, and a communications therapist for the couple.

In a footnote, the appellate panel referred to legislative inaction on the statute, and treated the Rice decision as settled law.

A papa tried a gender reversal on that truism when he asked a divorce judge to switch custody from the mother to the dad, who wanted to relocate to Florida.

The divorce judge said evidence showed the father’s response to a “strained relationship” with his daughter was to set ever stricter limits on the girl’s behavior and activities.

But all would be well, the father, said, once the family moved to sunny Florida.

“Specifically, the father argues that moving to Florida would cause his stress level to drop, in turn making him a better, more reasonable parent,” the Virginia Court of Appeals wrote in Priest v. Credle.

The trial judge said the kids would be better served by staying in Williamsburg, where they had lived their whole life and where they had friends and extended family. Case affirmed by the appeals court.

A dad in Fairfax asked a judge to give him more visitation time with his sons. The reason? He wanted to maximize his participation in the social, recreational and sports groups of his sons, ages 9 and 11. The boys play football, baseball, basketball and soccer. Mom expressed concern, testifying that the dad put an “emphasis on sports above all else.” Plus, when he coaches the boys, he yells a lot, she testified. The trial judge, applying the standard, found a change in visitation wasn’t “in the best interests of the children.” The appeals court backed him up in a new decision, Duda v. Hunt.