“All happy families are alike; each unhappy family is unhappy in its own way.” Anna Karenina, Leo Tolstoy (1878).
While I hold Tolstoy in high esteem as an author, the opening line of Anna Karenina shows undoubtedly that Tolstoy never practiced domestic relations law. Had he done so, he would have quickly realized that the nature and causes of unhappiness in a given family, far from being unique, are altogether the result of common patterns of human behavior. This is the case in Shannon Kathleen Smith Hurt Lively v. Paulette Holland Smith (10/20/2020).
The facts, regrettably, follow a familiar pattern of difficult family circumstances. Lively was married to J.H, and with him had a son born in 2007. J.H. was abusive and the couple divorced. Lively was subsequently incarcerated in 2009 and turned over custody of the child to her parents. When she subsequently learned that J.H. could potentially seek custody of the child and feared that he might simply abscond with the boy rather than seek legal custody, she agreed to an adoption by her parents in 2011.
Once released from prison in September 2012, Lively lived with her parents and maintains that she resumed her maternal relationship with the child. Her mother, however, contested Lively’s assertion that she was providing a significant amount of care for the child, who frequently travelled with his grandmother to Ohio where his maternal great-grandmother and aunt lived. Relations between Lively’s parents, which had apparently been strained by these absences, deteriorated further and the child and his grandmother moved to Ohio permanently in February 2013, returning only for occasional, brief visits. Lively apparently did not visit the child in Ohio or have any significant interaction with him after that date; her parents divorced in 2014, with her mother apparently gaining full custody of the child.
In August 2015, Lively sought to have custody of the child transferred to her, but the Juvenile and Domestic Relations District Court found that the adoption had terminated her parental rights and, thus, she had no standing to seek custody. There followed a nearly three-year delay while Lively “search[ed] for an attorney to represent her,” an action to set aside the adoption was filed by Lively against her parents, although her father advised the circuit court that supported Lively’s action. Lively’s basis for asserting that the adoption was not proper was that she had not been appointed a guardian ad litem as a “person under a disability.” Code § 8.01-9. Her mother filed a demurrer to this action , asserting that Code § 63.2-1216 precludes a challenge to a final adoption, if no appeal is filed, six months after the entry of a final decree.
There is an exception to the Code § 63.2-1216 prohibition of challenging a final adoption based on parental consent, which is that an adoption procured in violation of the parent’s rights to due process and equal protection were violated in a way that substantively impacted the decision to consent to the adoption. F.E. v. G.F.M., 35 Va. App. 648 (2001) (en banc). The circuit court found that F.E. was inapplicable here, as the evidence showed that Lively clearly understood the implication of her giving consent to the adoption. The circuit further noted that the length delay in seeking to overturn the adoption was a significant factor as well. Accordingly, the circuit court sustained the demurrer and dismissed the complaint to set aside the adoption.
The Court of Appeals found no error in the circuit court’s finding that Lively “did not lack understanding of the nature and legal consequences of her consent and the adoption.” The purpose of Code § 63.2-1216 is to prevent tardy challenges to adoptions which may disrupt a child’s parenting. While a biological parent has a compelling interest in raising a child, once that right is surrendered, the state has an equally compelling interest in serving the best interests of the child. Here, the child had been raised by his grandmother since age 2 and was 11 years old at the time the challenge to the adoption was made. During that time, even assuming that she had an active role in the child’s upbringing following her release from custody, it was only for very brief and non-continuous periods during the five months before the grandmother took the child to live in Ohio permanently.
The opinion does not provide any detail as to how actively Lively sought for an attorney to represent her after her petition for a change of custody was dismissed. Nonetheless, a three-year delay in finding counsel did not benefit her case, as the circuit court expressly noted that this factor weighed heavily in its consideration. Thus, while the eventual result should not be taken as reflecting poorly on the performance of the counsel she did eventually hire, who did an admirable job of finding a non-frivolous basis for seeking to set aside the adoption, it nonetheless confirms the adage that it is always wise to ask a potential client how many other attorneys he or she has consulted on a matter.
When I began this blog about a month ago, I promised that would from time to time reach back to review opinions of the Court of Appeals from before that inception date when I had the time and felt that there was something of note. I must confess that what originally caught my eye about Stephen Raymond Saal v. Commonwealth of Virginia, a decision from October 2020 from the Circuit Court of the City of Virginia Beach was not an issue of significant import for the bar, but as it turned out there was an important lesson to be learned and, so, I feel doubly justified in bringing this case to your attention. What originally caught my eye was the somewhat unusual occurrence of an appellate court citing a fairytale to make a legal point — but I get ahead of myself. Let us begin at the beginning, shall we?
Officers investigating a report from an off-duty officer of erratic driving went to the address at which the vehicle was registered, identified the vehicle including confirming damage reported by the off-duty officer. After receiving no response at the front door of the home, an officer noticed that a light was visible through a side door of the home which could be reached on a pathway from the driveway and did not require passage through a gate or exterior structure to reach the door. The officer went to the side door, knocked and Saal opened the door. It was approximately 12:30 AM. The officer identified himself and proceeded to question Saal about the vehicle. When told that the vehicle was damaged, Saal voluntarily left the home to examine the vehicle. Saal was subsequently arrested on suspicion of DUI.
Saal filed a motion to suppress his statements, contending that there was no implicit invitation for the police to enter “the curtilage of his home to gather information pertaining to a criminal investigation during pre-dawn hours by conducting a ‘knock-and-talk’ without a warrant.” The circuit court overruled the motion and Saal entered into a conditional plea agreement preserving his right to appeal the suppression issue. The Court of Appeals affirmed the decision, noting that while police entry on to the curtilage of a private residence is presumptively unreasonable without a warrant, the “knock-and-talk’ exception to this presumption is well-established.
Saal conceded as much but contended that the implicit invitation to entry uninvited on to his property was “time-sensitive.” Without suggesting that any specific time would be “too late,” he contended that the “pre-dawn” entry by the officers was unreasonable. This notion is not so far-fetched as it seems, finding support in dicta from the late Justice Antonin Scalia no less in the case of Florida v. Jardines, 569 U.S. 1 (2013). In his dissent in that case, Justice Scalia did posit that the implied invitation to approach a front door of a private residence does not mean that an unexcepted guest may do so “in the middle of the night.”
The Court of Appeals, however, did not see that there was a need for a hard and fast rule that would declare – and one must appreciate the literary allusion here – that “the implied invitation for a visitor to knock on a door, like Cinderella’s coach turning back into a pumpkin at the stroke of midnight, ceases to exist” at a specified time and resume at some later time. Rather, the Court reasoned that as with most such mixed questions of law and fact “requires a review of the surrounding facts and circumstances and is not subject to a hard and fast, bright-line rule.”
Although Saal had suggested this was an issue of first impression, it was not. The Court had addressed a similar claim in 2006 in Robinson v. Commonwealth, an en banc decision subsequently affirmed by the Supreme Court of Virginia. Robinson was a fairly celebrated case as it involved a professional couple in the Charlottesville area who hosted a “kegger” for their sixteen-year-old son and his friends, thus is somewhat surprising the Saal’s counsel did not find this case and attempt to distinguish it – for it would have been easy to do so by noting that the exigent circumstances in Robinson were far more suspicious (indeed, open and obvious).
It is doubtful that this argument would have gained much purchase with the Court of Appeals, but at least it would not have left the appearance that counsel had not adequately researched the issue. In any event, the Court instead applied the factors it had set out in Robinson – the time of the approach, whether the officer’s approach was open or clandestine, whether the officer confined himself to the driveway and associated pathways where the general public would be expected to go, whether lights were on, and whether cars outside the residence suggested the presence of people – and concluded that under the totality of the circumstances the officer’s “knock-and-talk” encounter with Saal was not unreasonable. The Court added by way of a footnote that it also viewed the evidence as sufficient to support a welfare check on the driver given that it would have been objectively reasonable for the police to believe that observed manner in which the car was drive and the damage thereto raised the possibility that the driver or another occupant might have been injured.
The important point for the appellate practitioner (or, for that matter, any attorney attempting to interest a court on a point of law) is that the words “issue of first impression” are not as flexible as we would often like them to be. In one regard, every issue that comes before a court at the trial or appellate level is an “issue of first impression” if double jeopardy and/or res judicata are to be avoided. But when used in the context of a legal argument, it has a more exact meaning — it is an assertion by counsel that following a diligent search of the relevant legal precedent counsel is of opinion that the court in which the argument is presented, and no other court whose decisions are binding on that court, has ever addressed the issue or anything remotely like it. Whether it was the Commonwealth or the Court of Appeals that first recognized that Robinson was not merely similar to, but from a legal standpoint, controlling on this issue, the result was that Saal’s counsel did not adequately research the issue before claiming it was a first impression. If you think this criticism is unduly harsh, let me simply point out that the first case that comes up in a CALR search for “knock-and-talk” in Virginia is, you guessed it, Robinson. You cannot wish away inconvenient precedent, and you shouldn’t try to do so.
The Court of Appeals pop its head up long enough to release one opinion today before ducking its head down again prophesying six more weeks of winter (OK, that last part was Punxsutawney Phil). While this space has not yet been around long enough for those who merely stumbled upon it to know that there are certain kinds of cases which I find distasteful. These include disputes between siblings over a parent’s estate and disputes between a step-mother and step-children over a deceased husband/father’s estate (in my entire career, it has never once been a step-father and step-children — I am sure it must have happened somewhere, but not to my knowledge). However, these cases may rankle, however, they have the comparative benefit of being generally resolved once the courts have spoken. Yes, one side (sometimes, in fact usually, both) winds up dissatisfied, but the matter usually ends there and, one can hope, some familial harmony is restored.
Then there are proceedings to terminate what the Impressive Clergyman in The Princess Bride referred to as “mawage, that bwessed awangement, that dweam wiffin a dweam.” Clearly the Kingdom of Florin had not yet recognized the legality of divorce. The problem with divorce cases is that rarely do they end when the final decree is entered, and only less rarely do the parties go their separate ways happily fulfilling their obligations under said decree. There are issues of child custody and visitation, alimony, child support, division of marital property, payments for mortgages, school and college fees, medical insurance, and the eventual need to divvy up pensions and life insurance. As Judge Johanna Fitzpatrick once remarked upon seeing a familiar pairing of parties on the Court of Appeals’ docket, “I see the X’s are back. There’s nothing like a good divorce to keep a couple together.”
Which brings us to today’s opinion from the Court of Appeals. Clyde Carleton Koons, IV, f/k/a Clyde Carleton Crane, IV v. Leslie Elizabeth Crane comes to us from the Circuit Court of Fairfax County. Now let’s start with a little background. Mr. Koons, who also goes by Crane, is an attorney living in Washington State (it’s unclear if he’s barred in Washington, but he was licensed in Virginia, at least at one time, having passed the Virginia bar in July 2009 and also apparently waived into the DC bar two years later) and was apparently residing at a particular address in the fair city of Woodland, a burg on the outskirts Vancouver (the one in Washington, opposite Portland, Oregon, not the one in British Columbia near Seattle) at the time of the final decree of divorce was entered in April 2016. This home is described as the co-residence of his “mother-in-law,” though the opinion offers no clarification is this is the parent of the plaintiff Mrs. Crane, a previous Mrs. Crane, or perhaps the current Mrs. Crane.
Pursuant to a property settlement agreement incorporated into the decree, Mr. Crane had certain obligations relative to payments on two condominiums owned by the couple somewhere (the opinion does not say where, only identifying them by unit number). The PSA also include a provision that required either party to notify the other of a change in “his or her address of residence,” but in another part spoke of giving 30 days’ notice of “any change of address.”
It is not disputed that in January 2017, Mr. Crane advised his former wife that his new “mailing address” was a post office box in Washington State. Then in July 2017, Mr. Crane had sent the former Mrs. Crane an email providing her with his “new address” in Saudi Arabia which included the missive that he “hope[d] this move will allow me to put my affairs in order.” The address, however, was also for a Post Office Box, this one in the corporate name of “Saudi Aramco.” As to Mr. Crane’s actual living situation, Mrs. Crane’s attorney believed that it was “in a compound [in Saudi Arabia] that’s very exclusive,” but did not know for certain that Mr. Crane actually is living there or if he was even in Saudi Arabia at all.
Jump forward 15 months to October 2018. Mr. Crane is allegedly in arrears on his financial obligations under the PSA and Mrs. Crane decides to seek a show cause order. But where to serve it? Aramco’s US office, in Houston, could not provide any information about Mr. Crane’s whereabouts and would not accept service on his behalf. Likewise, an attempt to send service to the PO Box in Saudi resulted in a return of the document without explanation. Mrs. Crane’s counsel also sent an email with the relevant documents to an address Mr. Crane had used in the past but received no response. So, lacking any other knowledge of Mr. Crane’s current “address of residence,” counsel arranged for a private process server to attempt service at the address in Woodland, which was accomplished by posting.
So that’s the first issue — was the service of the show cause order sufficient. Now as Mr. Crane is the appellant, you can probably guess that the circuit court found that it was. (Brief aside here: I am forever grateful to the appellate courts of Virginia for adopting the “appellant v. appellee” style of cases on appeal. Those jurisdictions that insist on maintaining the trial court style throughout a case’s proceedings are just making things difficult for everyone).
What about the merits? Well, let’s skip right to the end on that issue, Mr. Crane didn’t keep up the payments on the condos resulting in both being foreclosed on. While there was a net profit from the sale, it was only $6,000 and change, which Mrs. Crane contended was the result of a below market price and the need to pay the arrears, interest and fees accumulated from Mr. Crane’s failure to meet his obligations. Oh, and he owed back alimony, had failed to pay insurance premiums and had not reimbursed medical expenses that were likewise his obligation.
Now if you are interested in a summary of the extensive evidence offered by Mr. Crane in attempt to show that Mrs. Crane was, at least in part, responsible for the diminished price obtained for the condos, I refer you to the opinion, as it ultimately was not found to be persuasive by the circuit court, which accepted Mrs. Crane’s calculations in setting the award then tacked on just shy of $46,000 in attorney’s fees. To give you an idea of how things progressed on appeal, the Court of Appeals did not bother to recite the actual dollar figure of the award, which in my experience is not a good sign, as you can’t expect the Court to reduce or reverse a judgment it has not specified.
On to the Court of Appeals that first addressed the issue of service of process. Husband contended that Code § 8.01-274.1, which governs rules to show cause, is unique among service of process statutes in that it requires actual in person service and not other method will suffice. The Court swiftly disposes of this argument, finding that “service on the person” in Code § 8.01-274.1 is the equivalent of the manner of service set out for natural persons in Code § 8.01-296, which includes substitute forms of service. Moreover, the express nature of this action — involving obligations under a divorce decree by a nonresident — likewise subjected Mr. Crane to service under Code § 8.01-328.1, the long-arm statute.
Mr. Crane asserted alternately that service on the address in Woodland was improper because it was merely his last known address, not his “normal place of abode.” This finds no purchase with the Court of Appeals because the evidence showed that Mr. Crane never complied with the requirements of the PSA to inform Mrs. Crane of his change of residence. Certainly, he provided alternate mailing addresses, but never indicated that he had abandoned the Woodland address as his residence. I might add here, though the Court did not bother to do so, that merely changing ones address to a PO Box in the same state is hardly evidence of a change of residence, and likewise giving a mailing address in care of a corporate PO Box in a foreign land certainly does not support the conclusion that one has quit one native land for good, and the law presumes that the sojourner will return to his last known place of residence once his wanderings are done.
The remainder of the opinion deals with whether Mr. Crane’s failure to comply with the PSA was willful, a factual finding which the Court was not prepared to say was without support in the evidence. Finally, the Court addresses the award of sanctions (technically, in a show cause, the plaintiff gets “sanctions,” not “damages,” though in suits to enforce divorce decrees, PSAs and support orders, these are almost always based on the actual amount owed) and attorney’s fees, which likewise are awardable in such cases as a further sanction. The former is subject to a review for reasonableness in light of the evidence, while the latter is reviewed for abuse of discretion. The Court finds both awards to have been appropriate.
Mr. Crane does win one small victory in that the Court of Appeals declined to award additional attorney’s fees for the cost of the appeal, finding that “[a]lthough wife prevailed, we do not find that husband’s appeal was “frivolous or lacked substantial merit,” or that the “equities of the case” favor an award.”