Virginia Family Law Quarterly - Spring 2019
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Volume 39, No. 1 Spring 2019
Virginia Family Law
Quarterly
Published by the Family Law Section of the Virginia State Bar for its Members
Message from the Chair ing memory. While, unquestionably, there are young
lawyers who possess the traits of the past, the Bar has
Mary G. Commander, Chair
become a more confrontational and precarious place.
Family Law Section The question is whether there are people in sufficient
Greetings 2019! We commend and congratulate numbers who will seek to both change and improve
Peter Buchbauer on his selection as the 2019 winner the Bar. I certainly hope so.
of the Betty Thompson Lifetime Achievement Award. Finally, we thank Brian Hirsch on completing
The award will be presented to Pete at the Annual his fifth year as editor of the Virginia Family Law
Advanced Family Law Seminar in Richmond. Pete Quarterly. The Quarterly is one of the premier pub-
has been a real force in Virginia family law and we all lications of the Virginia State Bar. He always appre-
appreciate his hard work over the years. ciates receiving scholarly and informative articles for
The Advanced Family Law Seminar will be held, publication. I encourage you to exercise your writ-
as usual, at the Jefferson Hotel in Richmond. The ing talents and forward an article for consideration.
date is Thursday, April 11, 2019. The program and Mary Commander, Chair v
venue are always crowd-pleasers. Please register
immediately, as this event will sell out quickly. I
look forward to seeing all of you there in April! TABLE OF CONTENTS
The Family Law Section currently is in third Editor’s Note, Brian M. Hirsch ........................... 2
place in terms of membership, just behind Criminal Upcoming Events ................................................. 2
How to Submit an Article ....................................... 2
Law and Litigation. While we may have gotten the
“bronze,” we need to strive for the gold. Articles
On a personal note, after 37 years of practice, Legislative Update: 2019 General Assembly Session
other than observing my own waning patience and Lawrence D. Diehl .................................................. 3
stamina, I also have observed many changes in the
Mental Health Professionals and High Conflict
legal practice. Some changes have been for the Divorce: 7 Pitfalls to Avoid
better, but, unfortunately, others have not. My big- Michael Oberschneider ....................................... 6
gest concern (which will be addressed during one of
Gatekeeping to the Courthouse: Pre-Filing
the lectures at the seminar in April) is the changes
Injunctions and Prohibitions to Practice
in collegiality, candor and civility in the practice before Courts
of family law. When I began the practice of law, Nicole M. Burns .................................................... 10
a lawyer’s word was their bond; deals were made
Cases of the Quarter ............................................ 13
with a handshake and nothing more; there was no
need for a “CYA” letter; responses were timely; and The Betty Ann Thompson Lifetime Achievement
arguments in court were based on the law and facts Award Winner ..................................................... 19
(for the most part). This is not merely nostalgia,
Board of Governors ........................................... 19
memories improved by the passage of time or a fail-
The Virginia Family Law Quarterly is published by the Virginia State Bar Section on Family Law for its members to provide information to attorneys practicing in these
areas. Statements, expressions of opinion, or comments appearing herein are those of the contributors and not necessarily those of the Virginia State Bar or the Section on
Family Law.Virginia Family Law Quarterly Spring 2019
Editor’s Note
Brian M. Hirsch
UPCOMING FAMILY LAW
Another solid issue for your EVENTS
edification. Thanks to Michael
Oberschneider, Psy.D for his article on April 11, 2019
the pitfalls for lawyers when interacting Annual Advanced Family Law seminar
with mental health professionals
(Richmond)
in high-conflict divorces. This has
always been a tricky relationship
for both professions. Nicole Burns June 14, 2019
explores the court’s powers to limit 81st VSB Annual Meeting
the access of parties and lawyers to True Collegiality: A Study of
the courthouse when appropriate. This How Young Family Lawyers Can Reverse the
topic is especially important given Trend of Hostility and Return to
the abuses in family law litigation. The True Calling of Service
Finally, thanks to Larry Diehl for (Virginia Beach) co - sponsored by the
summing up the new legislation that Family Law Section and the
the General Assembly recently passed. Young Lawyers Conference.
Articles for future issues are
encouraged and welcomed. If If you would like to have your organization’s event
listed in an upcoming issue of the Virginia Family Law
you have any ideas, questions or Quarterly, please email BHirsch@NOVAFamilylaw.com.
comments about the Quarterly,
please feel free to contact me at
BHirsch@NOVAFamilylaw.com.
Happy reading –
Brian M. Hirsch, Editor
HOW TO SUBMIT AN
ARTICLE
If you would like to submit an article for FAMILY LAW SECTION MEMBER
publication, please email it to Brian Hirsch
RESOURCES WEBSITE LOGIN:
at BHirsch@NOVAFamilyLaw.com. Most
articles are between 1,000 and 2,000 words, User name: familylawmember
but this should not limit you in submitting Password: FL2018member
a shorter or longer article. Deadlines for They are case sensitive.
submissions are February 21, May 21, http://www.vsb.org/site/sections/family
August 21 and November 21. https://www.facebook.com/groups/vsbfamilylaw/
page 2Spring 2019 Virginia Family Law Quarterly
Legislative Update: 2019 General Assembly Session
Lawrence D. Diehl, Esquire
ldiehl@barnesfamilylaw.com
The 2019 session of the General Assembly was proceeding under §20-91A(9), a person who is a
very successful for family law practitioners. Once current recipient of state or federally funded public
again special thanks to Cheshire Eveleigh and Dan assistance for the indigent shall not be subject to the
Gray and the members of the Virginia Family Law fees and costs for filing the divorce. In a no-fault
Coalition for their tireless efforts in promoting and proceeding, such person shall certify the receipt of
monitoring the legislation. For a history of any bill such benefits under oath. This bill was proposed by
or to view the amendments made to the language of the Virginia Poverty Law Center.
a bill, go to http://leg1.state.va.us/cgi-bin/legp504.
exe?191+sbj+020. (3) Waiver of Service of Process. HB1945
The following is a summary of the legislation and SB1541 state that, in cases of no-fault divorc-
enacted in 2019 which has an impact on family law. es, waiver of service of process may occur within
All legislation is effective July 1, 2019. a reasonable time prior to or after the suit is filed,
so long as a copy of the complaint is attached to
(1) Military Retirement Benefits. As we all the waiver or otherwise given to the defendant. It
should know, there were significant amendments also provides that, where a defendant has waived
to the division of military retirement benefits such service of process (and, where applicable, notice),
as the “Frozen Benefit” Rule and new TSP options the affidavits or depositions and all papers to the
based on “The Former Spouse’s Protection Act,” divorce can be filed contemporaneously. Divorce
Title 10 USC §1408 and the National Defense Au- may be granted solely on those documents where
thorization Act (NADA) of 2017, effective Decem- the defendant has waived service and where appli-
ber 23, 2016 and subsequent regulations. Virginia’s cable notice is given. This amends Va. Code §20-
statute on the “marital share” under Va. Code §20- 99.1:1 and §20-106. The Coalition supported this
107.3 (G) (1) is inconsistent with the current mili- bill.
tary requirements of when the share calculation is
computed – the date of the final decree. HB 1988 (4) Jurisdiction for Findings of Fact for
was enacted to amend this statute to authorize trial Child to Apply for Benefits. HB2679 and SB1758
courts to enter proper military retirement division amend Va. Code §16.1-241 by adding a new sub-
orders consistent with federal laws. Specifically, section “A1” which permits a juvenile district court
added to this section is the following: “Any deter- judge to make specific findings of fact required by
mination of military retirement benefits shall be state or federal law to enable a child to apply for
in accordance with the federal Uniformed Former or receive a state or federal benefit. The Coalition
Spouses’ Protection Act (10 U.S.C. 1408 et seq.).” took no position on this bill.
The Coalition supported this bill.
(5) Child Support-Suspension of Driver’s
(2) Determination of Indigency for Filing License. HB2059 amends Va. Code §46.2-320.1
Fees and Costs of Divorce. SB1542 was enacted by extending the time period a party can request a
and provides that in the case of a no-fault divorce judicial hearing based on a driver’s license suspen-
page 3Virginia Family Law Quarterly Spring 2019
sion for child support arrearages from 10 days to 30 ed States Armed Forces Reserves, National Guard,
days if the request is made in writing to the DCSE. and other federal agencies listed.
It also provides that the DCSE may enter into an A delegation of these powers shall not operate
agreement with the obligor to reinstate the license to change or modify any parental legal rights or
if the delinquency can be paid back within 10 years obligations established by a court order or to de-
and the obligor pays at least 5% of the delinquency prive a parent of any parental rights or obligations
or $600.00, whichever is “less,” rather than the pri- or authority regarding custody, visitation or support
or requirement of whichever is greater. If there is under Title 20. In the event both parents of a child
a default on the payment pursuant to the agreement are exercising joint custody, both parents shall be
with the DCSE, then the license may be suspended required to execute the power of attorney.
unless the arrearage has been paid in full or unless Any party who has signed the power of attorney
there is a subsequent agreement with the DCSE to shall have the authority to withdraw the power of
satisfy the delinquency within 7 years and the ob- attorney at any time. If the power of attorney lasts
ligor has made at least one payment of $1,200.00 longer than 180 days, a new power of attorney shall
or 7% of the total delinquency, whichever is “less,” be executed. For service members, if the delegation
rather than the prior requirement of “greater.” If is longer than 180 days while on active duty service
a party thereafter fails to comply with the second and exceeds the time of active service plus 30 days,
agreement, then the license shall be suspended un- a new power of attorney shall be executed.
less there is a new agreement with the DCSE to A licensed child-placing agency that assists par-
repay the arrearage within 7 years and the obligor ents and legal guardians with the process of dele-
has made at least one payment of $1,800.00 or 10% gating parental and legal custodial powers of their
of the arrearage, whichever is “less,” changing this children shall comply with background check re-
from the prior 5% requirement and whichever is quirements established by the Department of Social
greater. Services, develop and implement written policies
and procedures for closed cases or admissions, pro-
(6) Temporary Delegation of Parental or Le- hibit corporal punishment, monitor the administra-
gal Custodial Powers; Child-Placing Agency. tion of medications, ensure the children are not sub-
HB2542 enacts new comprehensive statutes, Va. ject to abuse or neglect, implement back-up plans
Code §20-166 and §20-167. This statute basically for the children and other administrative duties set
permits a parent or legal custodian of a child by a forth in subsection (G) of the statute.
proper power of attorney pursuant to Va. Code §20- Except as permitted by the “No Child Left Be-
167 to delegate to another person for a period not hind Act” requirements of federal law, a power of
to exceed 180 days any powers regarding the cus- attorney executed pursuant to this section shall be
tody, care, and property of the child. Excepted from invalid if executed for the primary purpose of en-
these delegated powers are the power to consent to rolling the child in a school for the primary purpose
marriage or adoption of the child, the performance of participating in academic or interscholastic ath-
of an abortion on or for the child, or the termination letic programs provided by that school. Violation
of parental rights of the child. In the case of a ser- of this section shall be a crime in violation of the
vice member, the powers may be delegated for over laws of the Commonwealth.
180 days while on active duty if such active duty is A thorough reading of these new statutes is ad-
over 180 days. The definition of service member vised since it is fairly detailed. The Coalition had
includes a member of the Armed Forces of the Unit- input into some of the protections afforded by this
page 4Spring 2019 Virginia Family Law Quarterly
legislation such as the notice of the arrangement Virginia Code §16.1-253.1 was amended as to
to the DSS, the background checks and other ad- preliminary protective order matters by adding the
ministrative policy protections by the child-placing following: “If an ex parte order is issued without
agency, the 180-day limit and the priority of exist- an affidavit or a completed form as prescribed by
ing court orders. subsection D of §16.1-253.4 being presented, the
court, in its order, shall state the basis upon which
(7) Authority to Order Exchange of Child at the order was entered, including a summary of the
Meeting Place. HB2317 amended Va. Code §20- allegations made and the court’s findings.” Virgin-
124.3 by adding to the last sentence: “At the re- ia Code §19.2-152.9 was also amended by stating
quest of either party, the court may order that the that the preliminary protective order, if entered ex
exchange of a child shall take place at an appropri- parte, shall state the same language and findings as
ate meeting place.” As originally drafted and pro- set forth above, with reference to subsection D of
posed, this gave the court the authority to order that §19.2-152.8.
law enforcement officials be present at a custody
or visitation exchange. However, this was opposed (10) Adoptions- Post-Adoption Contact and
by various law enforcement agencies, so the statute Communication Agreements. HB1728 amends
deleted that earlier condition. This probably merely Va. Code §16.1-283.1 and §63.2-1220.2 relating to
restates what courts generally did anyway, but clari- voluntary post-adoption contact and communica-
fies their authority on the issue. tion agreements. This states in both statutes that,
unless the parental rights of the parents have been
(8) Protective Orders-Medical Evidence terminated pursuant to subsection §16.1-283(E), a
SB1429 amended Va. Code §16.1-245.1 by adding local board of social services or child welfare agen-
the admissibility of a medical report to a prelimi- cy required to file a petition for a permanency plan-
nary protective order hearing under §16.1-253 or ning hearing pursuant to §16.1-282.1, “may” inform
16.1-253.1 if notice is given to the opposing party the birth parent or parents and “shall” inform the
at least 24 hours before the hearing. This expands adoptive parent or parents that they may enter into
the use of a medical report from the final protective a written post-adoptive contact and communica-
order hearing requiring a 10-day advance notice or tion agreement with the pre-adoptive parents. They
for a preliminary removal hearing. The Coalition shall also inform a child if the child is 14 years old
supported the bill. or older that he may consent to such an agreement.
(9) Protective Orders- Contents of Prelimi- (11) Assisted Conception- Gender Neutral
nary Protective Orders; Docketing of Appeal. Terminology. HB1979 amends Va. Code §§ 20-156
SB1540 amends Va. Code §16.1-112, 16.1-253.1, through 158, 20-163 and 20-165. This amendment
16.1-296 and 19.2-152.9. It adds to §16.-112 that basically provides for gender neutral terminology
an appeal from a protective order issued pursuant and allows an unmarried individual to be an intend-
to §19.2-152.10 shall be assigned a case number ed parent, paralleling the ability of an unmarried
within two business days upon receipt of such ap- individual to adopt under the adoption statutes. The
peal. §16.1-296(F) also requires that, in appeals to bill further allows for the use of an embryo subject
the circuit court, the case shall be assigned a case to legal or contractual custody of an intended parent
number within two business days of the receipt of in a surrogacy arrangement. v
such appeal.
page 5Virginia Family Law Quarterly Spring 2019
ASK THE EXPERT
Mental Health Professionals and High Conflict
Divorce: 7 Pitfalls to Avoid
Michael Oberschneider, Psy.D, NCCE, NCPC
In the ideal divorce situation, family law attor- 1. Don’t use therapy as a litigation tactic.
neys are able to mitigate or circumvent problems Some family law attorneys will encourage their
for the involved parties without the need for adver- client to either get themselves or their children
sarial negotiations and/or aggressive litigation. But “treatment” or “therapy” with the intention of com-
when it comes to high-conflict divorces, things like pelling that therapist to court as a legal tactic all
mediation, collaboration and cooperative negotia- along. These attorneys might even suggest to their
tions are often not an option, especially when the client that they do not need to include or inform
matter of custody is at hand. their spouse of the treatment of the children, only
Mental health professionals can be helpful to for that parent to later learn of his or her child’s
family law attorneys during high-conflict divorces, treatment at a later time. This sort of scenario often
but unfortunately, it is not uncommon for some backfires and the therapy process is compromised
attorneys to attempt to blur a clinician’s bounda- or terminated prematurely when the neutrality and
ries in order to buttress their negotiations and ethics of the therapist are challenged by the unin-
litigation. Certainly, it is one thing to use mental volved parent. If the therapy does continue, the
health professionals cleverly during a high conflict child’s therapy is usually still damaged by the sur-
case, but it is an entirely different thing to do so in rounding parental distrust and disagreement, and
unethical ways or at any cost. When a mental health this is unfortunate should the child or children truly
professional’s work is misrepresented or distorted need to be in therapy.
– intentionally or unintentionally – by family law It is also inappropriate for family law attorneys
attorneys, the possibility for emotional and rela- to attempt to influence the therapist in any way or to
tional harm increases, as does the potential for a communicate exclusively with their client’s thera-
poor final ruling or outcome for a family. pist or their child’s therapist. While I suppose there
Successfully navigating one’s way through a are times and circumstances when attorneys could
high-conflict divorce case is a difficult undertaking, and maybe should communicate with involved
especially when mental health concerns for either mental health professionals, attorneys in those
the involved adults and/or minor children may be instances should strive to keep all information and
present. While each family presents its own unique communication even when working with mental
dynamic and set of problems, and while there health professionals. For instance, the involved
is not a one-size-fits-all way to manage mental attorneys could schedule phone or in-person meet-
health issues and professionals during high-conflict ings with a therapist to discuss things (once client
divorce cases, it is important for family law attor- and/or parental consent is granted) to avoid the
neys to be mindful of the following pitfalls. appearance of improper communication or the
aligning of one attorney with the clinician.
page 6Spring 2019 Virginia Family Law Quarterly
When these sorts of moments are not managed When a client or a child’s individual therapist
even-handedly by the attorneys, a perception of attempts, per the direction of a family law attorney
bias could form for one side or the other. I have (or at their own discretion), to offer formal recom-
too often seen a good therapist’s credibility chal- mendations for family members or the family as a
lenged by an attorney in court via impeaching their whole (e.g., a custody arrangement), that therapist
testimony for not behaving equitably in treatment has violated his or her professional guidelines and
or with attorneys. ethics.
Some family law attorneys will go so far as to
ask a client’s therapist or a child’s therapist to opine 3. Don’t ask a mental health professional to
on the divorcing spouse’s mental health function- opine on an individual’s mental health without
ing without their having formally assessed or treat- an evaluation or treatment.
ed the divorcing spouse. Professional guidelines It is not uncommon for divorcing parents to
preclude therapists from offering armchair diagno- accuse one another of very serious wrongdoings
ses like this in court, but unfortunately, it occurs involving their minor children – from neglect and
more than it should in high-conflict divorce cases abuse to drunk driving and exposure to inappropri-
and litigation. Just because someone has arguably ate material (e.g., sex, pornography, etc.), fam-
behaved very poorly, does not mean that the person ily law attorneys are often perforce placed in the
in question has a personality disorder or some other role of flushing out the truth. The same is true for
type of serious mental illness. Arriving at a correct accusations involving possible mental health condi-
diagnosis requires a clinical interview and formal tions for divorcing parents. But again, just because
evaluation, and anything less is not acceptable. a husband is behaving cruelly or narcissistically,
If you learn that a child requires a mental health doesn’t mean he meets criteria for Antisocial
consultation or treatment during a high-conflict Personality Disorder or Narcissistic Personality
divorce case, encouraging that treatment with Disorder. Similarly, one’s wife could rage and pre-
respectful tact and care is advised. If the conflict is sent herself as overly emotional and erratic without
so high between the parents that they cannot agree having Borderline Personality Disorder.
on a treating mental health professional for their Thus, while some family law attorneys will ask
child, the involved attorneys could work together a therapist to opine on a parent or child’s mental
on this and even involve the court if necessary. health struggles or offer up an armchair diagnosis
without having evaluated or treated them, again,
2. Don’t blur the line between a treating clini- doing so would be a violation of the clinician’s
cian (i.e., a therapist) and a forensic expert. professional guidelines and ethics. The court is the
Some family law attorneys will attempt to turn more appropriate venue to directly argue for an
a client’s therapist or a child’s treating clinician into evaluation or treatment when mental health strug-
a forensic expert. This occurs, for instance, when a gles may be present in either a parent or child.
therapist is subpoenaed to court to offer formal rec-
ommendations regarding visitation and/or custody. 4. Don’t try to turn a psychological evaluation
A therapist is a treatment provider and as such can and/or parenting capacity evaluation into a cus-
be both an advocate and fact witness for a client in tody evaluation.
court. In contrast, a forensic expert is not a treater, While necessary at times, a Custody Evaluation
but rather as an evaluator he or she is appropriately can be a financially and emotionally draining, time-
expected to offer formal recommendations in court. consuming, and unpredictable undertaking for all
page 7Virginia Family Law Quarterly Spring 2019
involved. Even when the expert is mutually agreed 5. Don’t go on a fishing expedition with evalua-
upon, parents relinquish much of their control to the tions.
expert when they consent to a Custody Evaluation. Some family law attorneys will also have
This can become problematic should the evaluator their client participate in a private Psychological
get things wrong for a family regarding custody Evaluation prior to court in order to demonstrate
and related matters. that their client’s mental health is intact. And while
Some family law attorneys will attempt to the results of a private Psychological Evaluation
turn a Psychological Evaluation and/or Parenting do not need to be disclosed or reported during
Capacity Evaluation into a Custody Evaluation the divorce process should the results prove to be
because to do so is less expensive and quicker. unfavorable for the client, this approach can be
But arguing that a parent can or cannot adequately risky. Although a non-court ordered Psychological
parent due to the results of their Psychological Evaluation is private, I have seen this sort of infor-
Evaluation (with or without a Parenting Capacity mation revealed when clients are queried firmly
Evaluation) is an overreaching approach that could during depositions and contentious litigation.
cause additional pain and harm to a parent and fam- Moreover, some family law attorneys will
ily and lead to a bad outcome. Psychologists who attempt to influence an individual’s Psychological
are trained to conduct Psychological Evaluations Evaluation by providing the psychologist with doc-
and Parenting Capacity Evaluations are precluded uments and/or communications that support their
from offering formal recommendations regarding client’s mental health and/or refute their divorc-
custody, for example, yet some family law attor- ing spouse’s mental health. It is also not uncom-
neys will request a psychologist to do just that, and mon for family law attorneys to attempt to have
some psychologists will comply. the divorcing spouse’s voice and information in
A Psychological Evaluation can be beneficial their spouse’s individual and private Psychological
to the court in that it accurately identifies and/or Evaluation. These things should not occur, but
rules out problems and mental health conditions rather, the involved attorneys (not infrequently with
or diagnoses for the individual being evaluated. the court’s assistance) should agree in advance on
While conducting a Psychological Evaluation and which collateral documents the evaluating psychol-
Parenting Capacity Evaluation together does not ogist will be allowed to review as part of the evalu-
substitute for the more comprehensive Custody ation. If a client misrepresents information during
Evaluation, doing the two evaluations at the same their evaluation, that reporting or information can
time will offer the court additional information be challenged or countered at a later time.
regarding one’s functioning and ability to parent.
Where the Psychological Evaluation assesses one’s 6. Don’t subpoena recklessly.
mental health functioning, a Parenting Capacity When people go to therapy, they assume that
Evaluation assesses the important manifold aspects their personal information – their private thoughts
of parenting – the bond and attachment between and feelings – will remain in the therapy space.
a parent and child, a parent’s risk for neglect or And while forcefully compelling a therapist’s treat-
abuse, a parent’s knowledge of their child’s devel- ment records or his or her testimony could greatly
opmental needs, a parent’s insight, impulsivity and help an attorney’s case, there are some very real
flexibility, parenting style, etc. possible consequences to subpoenaing clinicians
and/or a client’s private treatment information.
In my experience, it is more common than
page 8Spring 2019 Virginia Family Law Quarterly
not for a therapy relationship to become damaged 7. Don’t hire a hired gun.
or for the therapy to terminate altogether after a Some family law attorneys repeatedly turn
therapist and/or his or her treatment information to the same mental health professionals for high-
enters the adversarial court space. Attorneys might conflict divorce cases because these clinicians will
challenge or argue with a therapist about aspects do what the attorneys want them to do without
of a treatment or an individual’s needs or function- considering what is in the best interests of the child
ing to support a belief or position, but in doing so, or family. Certainly, therapists and forensic experts
information can be taken out of context and mis- who compromise their ethics in this way may please
represented. For example, I was once questioned their attorney referral source, but at too great cost.
repeatedly in court by an attorney about the word It is only a matter of time before judges, attorney
“confused” that I jotted in my treatment notes as the colleagues, and other mental health professionals
therapist for a client during a high-conflict divorce. learn who the hired gun mental health professionals
While that attorney tried in earnest to demonstrate are in their community, and associations like that
to the court that the parent’s “confusion” in my ses- can become problematic for one’s reputation and
sion represented her “delusional thinking” it most career.
certainly did not. It is always best for family law attorneys to
While subpoenaing information and therapists carefully select the best mental health professional
to court is oftentimes unavoidable, I think family for the specific case; you may not win every high-
law attorneys should take great care in how they conflict divorce case by choosing therapists or
obtain and rely on treatment information. Again, forensic experts with solid reputations and with
when a therapist is compelled to court to openly impressive experience, training, and credentials,
discuss a parent or child’s therapy or to share the but the results should be more accurate and reliable
treatment chart, the therapy is usually compromised for the court, and thus, so too should the final ruling
or it terminates altogether. I’ve unfortunately seen and outcome.
this occur hundreds of times in my career, and it is
very sad to see important therapy relationships and Michael Oberschneider, Psy.D, NCCE, NCPC,
treatments, especially for children, end in this way. is a Nationally Certified Custody Evaluator and
If at all possible, it is best for the involved Parenting Coordinator in private practice in
attorneys to work together to obtain the informa- Northern Virginia. Much of Dr. Oberschneider’s
tion they need from a mental health clinician and practice is dedicated to working with families
to be mindful not to place undue strain on a par- who are going through high-conflict divorces.
ent or child’s therapy. Having a therapist prepare www.ashburnpsych.com v
a statement that is shared with both attorneys (and
possibly the court), or having a therapist speak to
both attorneys about the treatment in preparation
for questioning and court, could serve to respect-
fully preserve the parent or child’s therapy relation-
ship. Of course, a document or phone call cannot
be cross-examined in court, but approaching the
therapist and their records in a stepwise manner and
with respectful tact is good practice.
page 9Virginia Family Law Quarterly Spring 2019
Gatekeeping to the Courthouse:
Pre-Filing Injunctions and Prohibitions to Practice before Courts
Nicole M. Burns, Esquire
NBurns@NOVAFamilylaw.com
As lawyers, our primary goal is to protect our increased over the past two decades.1 Meanwhile,
clients. But how do we protect them from abusive not surprisingly, judges have reported that pro se
litigation? When a litigant has filed an action that litigants are the most likely to make procedural
is clearly meritless, the obvious response is to seek mistakes that prejudice their cases.2 In 2013, the
sanctions under Virginia Code § 8.01.271.1, which Supreme Court of the United States updated its
requires that any pleading filed is “ (ii) . . . well procedures to prohibit non-attorneys from arguing
grounded in fact and is warranted by existing law cases before that Court.3
or a good faith argument for the extension, modi- In order to protect the courts from excessive and
fication, or reversal of existing law, and (iii) it is abusive litigation, some state and federal courts
not interposed for any improper purpose, such as have prevented particularly abusive litigants, usu-
to harass or to cause unnecessary delay or needless ally when they are pro se, from docketing any
increase in the cost of litigation.” The remedies pleading unless it is approved in advance by the
available under the sanctions statute, though, are court. The purported authority for a court to do
not always adequate to prevent abusive litigation, so is embedded in the court’s authority to manage
whether from pro se litigants or even from attor- their own docket. Part of the argument in favor of
neys acting unethically. While courts do have addi- this judicial power is that the overuse of litigation
tional powers to prevent abuses of the system, they by one party can strain finite judicial resources
are used in rare cases and many family law practi- to the detriment of other parties with legitimate
tioners are unfamiliar with them. Understanding actions. The propriety of such restrictions had not
these powers to limit such abuses can help protect been tested in any Virginia case until recently in the
our clients financially and emotionally. case of Adkins v. CP/IPERS Arlington Hotel LLC,
293 Va. 446, 799 S.E.2d 929 (2017), in which the
Courts Can Prevent a Litigant from Filing or Supreme Court of Virginia decided in favor of such
Docketing Pleadings restrictions in extreme cases of abusive litigation.
With the proliferation of internet advice avail- In Adkins, the Supreme Court found authority
able to anybody with a smart phone or tablet, from the Fourth Circuit persuasive when determin-
including websites designed to help pro se litigants ing whether a prefiling injunction was appropriate.
learn how to bring a legal action, many parties initi- They applied the following test from Cromer v.
ate actions without the assistance of counsel, often Kraft Foods N. Am, Inc., 390 F.3d 812, 818 (4th
doing so improperly. While there are few pub- Cir. 2004):
lished studies on the exact percentage of cases with
pro se litigants, states that have conducted such In determining whether a prefiling injunc-
studies found that family law cases saw among the tion is substantively warranted, a court must
highest percentage of cases with at least one pro weigh all the relevant circumstances, includ-
se litigant, and that the number of such cases has ing (1) the party’s history of litigation,
page 10Spring 2019 Virginia Family Law Quarterly
in particular whether he has filed vexa- future litigation.
tious, harassing, or duplicative lawsuits; (2) In Adkins, the Court expressed concern with the
whether the party had a good faith basis for number of affected defendants from Ms. Adkins’s
pursuing the litigation, or simply intended various lawsuits, but the same effect can exist if
to harass; (3) the extent of the burden on a pro se litigant is perpetually bringing motions
the courts and other parties resulting from before the court requiring the presence of the oppos-
the party’s filings; and (4) the adequacy of ing party in court. If the opposing party does not
alternative sanctions. have an attorney, the litigation is just as abusive
and yet an award of attorneys’ fees is an ineffec-
This same reasoning was used in Madison v. tive remedy. Further, it may be difficult for a court
Board of Supervisors, 296 Va. 73, 817 S.E.2d 818 to determine that repeated motions for custody or
(2018). In Madison, Ms. Madison filed 22 lawsuits visitation modifications are necessarily sanction-
in the Circuit Court of Loudoun County against the able if the party alleges a change in circumstances
Board of Supervisors or other divisions or depart- each time but the court finds that the change does
ments of the County. She has also filed four peti- not warrant a modification. The intent to harass
tions for appeal in the Supreme Court of Virginia another party through litigation may only be evident
and two petitions invoking the Supreme Court’s after multiple motions, and even then, the sanc-
original jurisdiction. The Madison court ordered Ms. tion of attorneys’ fees may do little to address the
Madison to reimburse Loudoun County for its legal root problem. Meanwhile, judicial resources are
fees, but found the remedy inadequate to prevent expended with each motion.
Ms. Madison from filing similar suits. Accordingly, Obviously, it is an extreme remedy for a court to
the Supreme Court ordered that “Madison shall be limit access to the judicial system for an individual
prohibited from filing in this Court any petition for litigant. However, in the rare case when it is the
appeal, motion, pleading, or other filing against the only option to prevent abusive litigation, it is clear
Board of Supervisors of Loudoun County or any of based on the Virginia Supreme Court precedent in
its divisions or departments without (1) obtaining Adkins and Madison that such a remedy is permitted
the services of a practicing Virginia attorney, whose by the court’s authority to manage its own docket.
filings would be subject to Code § 8.01-271.1, or (2)
obtaining leave of Court to file any pro se pleading. Courts Can Prohibit Attorneys from Litigating in
While Adkins and Madison are not a family law Their Forum
cases, the availability and propriety of this remedy While Adkins is helpful to understand the availa-
has clear applications in family law. In Adkins and bility and limitations of prefiling injunctions against
Madison, the Court found that under the fourth pro se litigants (although they are available in cases
prong of the test, alternative sanctions available where the parties have counsel), what happens
under Virginia Code § 8.01-271.1 were inadequate when the abusive litigation is being promulgated by
to prevent abuses by a pro se litigant, when attor- an attorney? We are all required to take legal ethics
ney’s fees were not a viable deterrent. In family law credits to maintain our licenses, and local bars and
cases, the pro se litigant is often without an attorney CLE providers frequently offer courses that address
because he or she is unable to afford one, which civility in the law and appropriate behavior toward
makes collecting an attorney’s fees award against fellow members of the bar. Nevertheless, there are
the pro se litigant unlikely. Thus, it would not have attorneys who too frequently cross the lines of civil-
the effect of deterring the pro se party from filing ity and breathe toxicity into cases.
page 11Virginia Family Law Quarterly Spring 2019
Our training tells us that when you believe 195. The impact to the Respondent’s practice was
another attorney has acted unethically, the issue is not considered in light of the circuit court’s discre-
handled by the Bar. Therefore, it may come as a tion in this area.
surprise to learn that a Virginia Court can prohibit The use of this extreme remedy was far more
an attorney from practicing within that jurisdiction common prior to the statutory scheme for licensure
based on the attorney’s behavior, independent of of attorneys. However, it is not without precedent
any action taken by the Virginia State Bar. Such since the codification of attorney licensure, includ-
action was upheld in the case of In Re JAM, 273 ing cases such as Nusbaum v. Berlin, 273 Va.
Va. 688, 643 S.E.2d 190 (Va. 2007). In that case, 385, 641 S.E.2d 494 (2007) and Judicial Inquiry
prior to the prohibition being issued against the and Review Commission of Virginia v. Peatross,
respondent attorney (“Respondent”), he had failed 269 Va. 428, 611 S.E.2d 392 (2005). Much like
to concede the existence of an arbitration provi- the prefiling injunctions discussed above, cases in
sion in a contract case before the Arlington Circuit which this remedy would be appropriate should be
Court in which he represented an individual suing rare. However, attorneys should be aware that their
The Christian Coalition of America. When the behavior can have such results if they are acting
Court determined that the Respondent had a copy inappropriately toward the bench where they prac-
of the contract at issue containing an undisput- tice. Meanwhile, the awareness of judges of the
able arbitration clause, the Respondent was sanc- existence of this extreme remedy and its tempered
tioned, together with his client, in the amount of application may help to curb inappropriate behav-
$83,141.24. The Respondent subsequently made ior when sanctions are insufficient.
inflammatory statements regarding the competency While it is still clear that the first line of defense
of the judge who ordered the sanctions and then against abusive litigation and litigants is sanctions
refused to cease representation of his client in her imposed pursuant to Virginia Code § 8.01-271.1,
subsequent suit against The Christian Coalition, it is important to know there are other quite potent
despite his adverse interests to hers. remedies in the rare cases when sanctions are inad-
The Arlington Circuit Court ultimately found equate. v
that the Respondent’s behavior was so inflamma-
tory and unethical that they revoked his privilege Endnotes
1. See e.g. Challenge to Justice—A Report on Self-
to practice in the Arlington Circuit Court. The
Represented Litigants in New Hampshire Courts—Findings
Respondent appealed the decision, stating in part and Recommendations of the New Hampshire Supreme Court
that an attorney’s license to practice is governed Task Force on Self Representation. State of New Hampshire
Judicial Branch (January 2004), (Finding that in 2004 almost
by statute and cannot be revoked by a court. The
70% of cases had one pro se party, and that specifically in
Virginia Court of Appeals affirmed the Arlington domestic violence cases, 97% of the cases have one pro se party
Circuit Court’s decision, distinguishing between (p. 2)); Hough, Bonnie Rose. Description of California Courts
Programs on Self Represented Litigants —Harvard (June 2003)
the revocation of a license and the revocation of a
(The occurrence of at least one party being pro se in family
privilege to practice in a particular court. The Court law cases in San Diego increased from 46% in 1992 to 77% in
of Appeal found that “the authority of a court to 2000); John Voelker. Wisconsin Pro Se Task Force Report. The
Wisconsin Pro Se Working Group. A Committee of the Office
regulate the conduct of attorneys practicing before
of Chief Justice of the Wisconsin Supreme Court (December
that court by revoking or suspending that privilege 2000) (finding an increase in family law cases of pro se litigants
is both an inherent and a constitutional power that comparing 1995 to 1999).
2. Ryan Craig Munden. Access to Justice: Pro Se Litigation in
is not dependent on its creation by legislative enact-
Indiana (Fall 2005)
ment and thus cannot be limited by statute.” Id at 3. Rules of the Supreme Court of the United States § 28.8
page 12Spring 2019 Virginia Family Law Quarterly
CASES OF THE QUARTER
Jurisdiction – “Equitable Restitution” spousal support. The parties indicated at the
start of the trial that there was no need for equi-
Name: McGinnis v. McGinnis, 69 Va. App.
table distribution based upon the parties’ bank-
572 (2018)
ruptcy filing. The circuit court itself indicated
Facts: The parties appeared in the circuit that the equitable restitution award was not in
court for their final hearing. At the start of the nature of spousal support. Accordingly, as
the hearing, the parties informed the court there is no statutory authority supporting the
that they both filed bankruptcy. The wife’s circuit court’s equitable restitution award, the
counsel indicated that it was neither asking the circuit court erred in making such an award.
court to hold an equitable distribution hearing
or to reserve the issue. The wife did proceed
on her request for spousal support. At trial, Equitable Distribution – Division of Pensions
the wife testified that the husband had spent
Name: Garza v. Garza, 18 Vap UNP
an exorbitant amount on jewelry and expenses
1286184 (2018)
for other women. In its ruling, the circuit court
awarded the wife $4,000 in monthly support Facts: The parties were married in 1975.
plus $150,000 in what it later termed as an The husband earned a pension through the
“equitable restitution award.” The equitable Federal Employees Retirement System
restitution award was based upon the hus- (“FERS”) and was in pay status as of the date
band’s failure to pay pendente lite support and of the equitable distribution hearing. The
the wife’s immediate need for such an award wife was still contributing toward her Virginia
in order to maintain herself. When pressed on Retirement System (“VRS”) pension and work-
whether the award was an award of spousal ing as of the date of the equitable distribution
support, the circuit court indicated that it was hearing. The wife was 62 years old and in fair-
not its intent to make the equitable restitution ly good health. The husband was 64 years old
award in the nature of spousal support. The and had several medical conditions, although
husband appealed. he still maintained an active CPA license. The
wife indicated that, while she was still working
Issue: Whether the circuit court had the
full time, she intended to retire in three years
jurisdiction to make an “equitable restitution
when she 65 years old. The trial court awarded
award.”
each party 50% of the marital share of the other
Ruling: The Court of Appeals reversed the party’s pension. The husband appealed, stating
circuit court. that the trial court erred since the wife would
receive her portion of the husband’s FERS
Rationale: The jurisdiction of a circuit court
pension now and that he would not receive his
in divorce matters is entirely statutory and lim-
share of her VRS pension until she retires in
ited. The circuit court’s equitable restitution
three year. He argued that giving the wife her
award was neither equitable distribution nor
share of his FERS pension caused an undue
page 13Virginia Family Law Quarterly Spring 2019
hardship and that the trial court should have entirety of the parties’ agreement. After entry
deferred when the wife received her share of of the order, the wife requested the trial court to
his FERS pension. divide the husband’s Fidelity Roth IRA which
had been omitted from the parties’ agreement
Issue: Whether the trial court erred by
since the husband failed to disclose the account
awarding the wife a share of the husband’s
during discovery. The husband claimed the
FERS pension before the husband began
Fidelity Roth IRA was not addressed in the
receiving his share of the wife’s VRS pension.
parties’ agreement, was in his sole name and
Ruling: The Court of Appeals affirmed the was, therefore, his sole property. The trial
trial court on this issue. court thereafter held a hearing and equally
divided the Fidelity Roth IRA. The husband
Rationale: The trial court considered the appealed.
factors in Virginia Code § 20-107.3, includ-
ing the parties’ ages and physical and mental Issue: Whether the trial court erred by dis-
conditions. The trial court complied with tributing the husband’s Fidelity Roth IRA.
the statute by ordering that the “payment be
Ruling: The Court of Appeals reversed the
made as such benefits are payable” pursuant
trial court.
to Virginia Code § 20-107.3(G)(1). Virginia
Code § 20-107.3 does not allow a court to Rationale: The parties specifically stated
defer such payments. Allowing the trial court that their agreement was “with regard to all
to defer payments would allow it to re-write a issues in the matter” and was comprehensive.
statute. The manifest intention of the legisla- Virginia Code § 20-109 prevents a trial court
ture, clearly disclosed by its language, must be from decreeing an equitable distribution award
applied. that is inconsistent with a parties’ agreement.
Although the agreement did not distribute all
of the parties’ marital property, the trial court
Equitable Distribution – Omitted Property could not supplement the terms of their agree-
ment by distributing property that the parties
Name: Eberhardt v. Eberhardt, 18 Vap failed to address. Further, the parties’ agree-
UNP 0662181 (2018) ment did not include a term addressing omitted
Facts: On the date of the parties’ equitable or nondisclosed property. Accordingly, the
distribution hearing, they reached an agree- trial court erred by dividing the Fidelity Roth
ment, which was read into the record pursuant IRA between the parties.
to Virginia Code § 20-155. The first line of the [Editor’s Note: This case should serve as
agreement stated that “[t]he parties by counsel a cautionary tale of the inherent dangers of
have reached an agreement with regard to all reaching the proverbial agreement on the
issues in this matter.” The parties’ agreement courthouse steps. While these agreements are
encompassed spousal support and division of sometimes unavoidable, they can be a real
marital property. The parties’ agreement did minefield.]
not contain a provision addressing any omit-
ted or nondisclosed property. The trial court
subsequently entered an order affirming the
page 14Spring 2019 Virginia Family Law Quarterly
Equitable Distribution – Classification of Issue: Whether the trial court properly
Gift classified the $35,000.00 as a gift to both of
the parties and not an advance on the wife’s
Name: Burgess v. Burgess, 19 Vap UNP
inheritance from her parents.
0751182 (2019)
Ruling: The Court of Appeals affirmed the
Facts: At an equitable distribution hearing,
trial court.
the wife contended that her parents provided
her $35,000.00 as a gift during the marriage Rationale: Where evidence is presented
as an advance on her inheritance and that she that property was acquired during the mar-
could trace the money to the parties’ marital riage, the trial court must conclude that it is
residence. The wife’s father (Mr. Grant) testi- marital property unless adequate evidence is
fied that he and the wife’s mother (Mrs. Grant) produced to establish that it is separate prop-
gave the wife $25,000.00 in 1996 for the down erty as defined in Virginia Code § 20-107.3(A)
payment on the husband and wife’s first home (1). The issue of whether the wife’s parents
since, in order for them to get a loan, “they intended to make a gift to just the wife or to
had to make a substantial down payment. We both of the parties is a question of fact for the
provided that.” Mr. Grant further testified that trial court. Although a different fact finder
another $10,000.00 was given to the parties may have reached a different conclusion, cred-
“to make improvements on the house they pur- ible evidence supports the trial court’s finding
chased.” He testified that both amounts were of fact that the money was a gift to both par-
given to the wife alone and were not gifts to ties.
the husband. Mr. Grant stated that he and Mrs.
Grant signed a letter in 2016 that the money
they had given 20 years earlier was intended Equitable Distribution – Failure to Trace
as an advance of the wife’s inheritance. On Separate Interest
cross-examination, Mr. Grant was asked, “You
gave your daughter that money so she and her Name: Jackson v. Jackson, 18 Vap UNP
husband could buy a house together, right?” 0734182 (2018)
He responded, “I would say that is true, but it Facts: Husband purchased a home on
was a gift to my daughter, not to her husband.” Windcroft Road (the “Windcroft Property”)
When Mrs. Grant was asked whether it was her six years prior to the parties’ marriage with
intention to gift the money to the wife or both a Veteran’s Affairs (“VA”) loan. The parties
the husband and wife, she testified, “It was our lived in the property for a few years after they
intention to make a purchase of a house pos- married. The parties refinanced the VA loan
sible.” Both Mr. and Mrs. Grant testified that on the Windcroft Property to use the VA loan
they knew that the house was going to be pur- on a new marital home. In doing so, the hus-
chased jointly. The trial court found that the band jointly titled the Windcroft Property into
money was a gift to both the husband and wife his and the wife’s name. The parties rented out
to purchase their first marital home and found the Windcroft Property for the next 11 years.
that the $35,000.00 was marital property. The At trial, neither party testified about how the
wife appealed. rental income was deposited, although the
husband paid the mortgage on the Windcroft
page 15Virginia Family Law Quarterly Spring 2019
Property from a separate account. The husband Spousal Support – Cohabitation for 1 Year
argued that the Windcroft Property, despite
Name: Gobble v. Gobble, 19 Vap UNP
being jointly titled and presumptively marital
0791183 (2019)
property, was retraceable to its original classi-
fication and should be classified as his separate Facts: The parties’ property settlement
property. The trial court disagreed since it agreement provided that the husband would
had no evidence as to what efforts the hus- pay the wife $4,500 per month in spousal sup-
band expended on the property. The husband port, which would, pursuant to VA Code §
appealed. 20-109(A), terminate upon the wife’s “habitual
cohabitation with another person in a relation-
Issue: Whether the trial court erred in clas-
ship analogous to marriage for one year or
sifying the Windcroft Property as marital prop-
more.” The wife began an exclusive relation-
erty and not the husband’s separate property.
ship with Jeffrey Howard in 2006. The wife
Ruling: The Court of Appeals affirmed the and Mr. Howard exchanged rings and held
trial court. themselves out as engaged, but did not intend
to marry. The wife purchased gifts for Mr.
Rationale: Pursuant to Virginia Code §
Howard, bought groceries for him and spent
20-107.3(A)(1), marital property includes “all
more money on joint trips than he did, but they
property titled in the names of both parties.”
kept their finances separate. Mr. Howard spent
Further, Virginia Code § 20-107.3(A)(3)(f)
some evenings at the wife’s residence, but they
states that if “separate property is retitled in the
maintained separate residences. In 2013, Mr.
joint names of the parties, the retitled property
Howard purchased a house next to the wife’s
shall be deemed transmuted to marital prop-
and built a path between the properties. He
erty. However, to the extent the property is
stayed over at the wife’s house on occasion,
retraceable by a preponderance of the evidence
but she did not stay at Mr. Howard’s residence.
and was not a gift, the retitled property shall
Neither had a key to the other’s residence. In
retain its original classification.” While the
2015, Mr. Howard stopped staying over at
retitling was not a gift, there was insufficient
the wife’s residence due to his use of a CPAP
evidence about the source of the funds in the
machine at night. The husband filed a motion
account used to pay the mortgage and whether
to terminate the wife’s spousal support claim-
the funds were the husband’s separate prop-
ing that she and Mr. Howard were habitually
erty. It was also unclear whether any rental
cohabiting in a relationship analogous to mar-
income was used to fund the account. Finally,
riage for more than one year. The trial court
the husband did not provide any evidence of
found that the wife and Mr. Howard were not
the purchase price of the house, his equity in
cohabiting as the husband claimed since they
the home at the time of the retitling as well as
did not share a common residence. The trial
other relevant evidence to retrace his separate
court denied the husband’s motion to terminate
interest. As a result, the husband failed to meet
spousal support. The husband appealed.
his burden to prove retraceability and rebut
the presumption that the retitled property was Issue: Whether the trial court erred in find-
transmuted to marital property. ing that the wife and Mr. Howard were habitu-
ally cohabiting in a relationship analogous to
marriage for more than one year.
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