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Va. Ct. App.: Bifurcated divorce decree was final.

Byline: Rebecca M. Lightle

The court of appeals could review a divorce decree that the circuit court had bifurcated from ongoing litigation of spousal support, equitable distribution, and attorneys' fees due to the 90-year-old husband's failing health. Background After 54 years of marriage, Husband and Wife separated on December 15, 2015. On February 12, 2016, Wife filed a complaint for divorce on grounds of cruelty and actual and constructive desertion, alleging that reconciliation was not probable. She sought equitable distribution, attorneys' fees, court costs, and spousal support. Husband filed an answer and cross-complaint seeking divorce on grounds of adultery and desertion, agreeing that there was no hope of reconciliation. Over the next year, the circuit court heard a plethora of motions in what is best described as a contentious and protracted dispute. On July 13, 2017, Husband filed a motion to bifurcate the trial and enter a divorce decree, based on his intention for permanent separation formed on December 15, 2015. He sought bifurcation because, at age 90, his health might not allow him to survive protracted litigation, and he suspected that Wife was purposefully and unreasonably delay[ing] this matter so that he would die before the divorce and Wife could benefit financially. At the motion hearing, the parties stipulated that Husband was hospitalized for an apparent stroke, feared his imminent death, and had borderline competency issues. The circuit court found that, under the circumstances, bifurcation from the issues of support, equitable distribution, and attorneys' fees was clearly necessary. The circuit court also appointed a guardian ad litem for Husband based on competency concerns. A final divorce hearing proceeded on July 31, 2017, after which the circuit court entered the divorce decree. This appeal followed. Appealable final order A plain reading of Code 20-7.3(A) makes clear that, upon motion and when it is clearly necessary, circuit courts have discretion to finalize the issue of divorce independent of other ancillary issues such as equitable distribution and support and adjudicate them separately. Therefore, a court order properly bifurcating a divorce proceeding pursuant to 20-7.3(A), granting a divorce but explicitly reserving other matters for future adjudication, is a final order with respect to the divorce issue and falls within this court's appellate jurisdiction 21 days after its entry. The statute also contemplates that, following such bifurcation, the circuit court retains jurisdiction over all other remaining matters explicitly reserved for future adjudication. However, bifurcating a divorce proceeding is not a matter of right and should not be a common practice, but rather an exercise of a trial court's discretion in an irregular situation. And unless bifurcation is by motion and clearly necessary, the statute compels a trial court to decide the divorce and property issues contemporaneously. Clearly necessary The trial court did not abuse its discretion by bifurcating the proceedings in this case. It relied upon uncontested pleadings, factual concessions by Wife's counsel, and unchallenged proffers by Husband's counsel. The circuit court noted that Wife initiated the divorce, that Husband is age 90 and in declining health, and that both parties had caused litigation delays. The circuit court made an express finding that bifurcation was clearly necessary with reference to those specific circumstances in support of its judgment that the divorce should be granted expeditiously. This court, viewing the record in the light most favorable to Husband as the prevailing party below, finds that it supports the circuit court's judgment that bifurcation was clearly necessary. Procedural default The court agrees with Husband that Wife failed to preserve for appeal, by specific and timely objection, her argument that the circuit court lacked evidence that either party intended to separate permanently. At the final divorce hearing, Wife's counsel stated in his opening remarks that he had an objection regarding whether Husband had changed his mind. During Wife's testimony, she testified that neither of the parties intended to end the marriage when they separated. But Husband's guardian ad litem testified to the contrary that Husband had recently reiterated very strongly that he would like to have the divorce. On cross-examination, the guardian ad litem further testified that Husband had indicated no interest in reconciling with Wife. Wife did not object to this testimony or, at the conclusion of Husband's evidence, to the sufficiency of that evidence. Moreover, Wife presented no evidence about Husband's purported intent to reconcile, made no motion to strike the evidence, and did not object at any point during or immediately after the circuit court rendered its decision. She did not make any written objections to the divorce decree or file any post-hearing motions for relief. In short, Wife argues for the first time on appeal that the circuit court erred in granting the divorce decree without sufficient evidence. Accordingly, Rule 5A:18 bars this court's consideration of that assignment of error. Attorneys' fees and costs In domestic relations cases, the court awards appellate attorneys' fees when the arguments are not fairly debatable under any reasonable construction of the record or the governing legal principles. Here, one of wife's assignments of error was procedurally defaulted, and she does not prevail on her other assignments because the record is not fairly debatable in supporting the circuit court's judgment. Therefore, Husband is entitled to reasonable attorneys' fees and costs in connection with this appeal, to be determined by the circuit court. Affirmed and remanded. Friedman v. Smith, Record No. 1225-17-1, Mar. 20, 2018. CAV (Humphreys), from Norfolk Cir. Ct. (Lannetti). James A. Evans for Appellant; Kristi A. Wooten for Appellee. VLW No. 018-7-059, 14 pp.

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Author:Lightle, Rebecca M.
Publication:Virginia Lawyers Weekly
Date:Mar 21, 2018
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