Virginia Lawyers Weekly VA Lawyers Weekly
The Virginia Court of Appeals issued two published domestic relations opinions Tuesday, one involving attorneys’ fees and the other analyzing the classification of a personal injury recovery as separate or marital property.
The trial judge awarded attorneys’ fees to the mother for prevailing in her effort to have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act transferred from Virginia to Arizona after she moved there with the couple’s two children.
Father contended that Code Sec. 20-146.33(A) permitting an award of attorneys’ fees to the prevailing party applies only in proceedings to determine custody, not to transfer jurisdiction. Judge Jean Harrison Clements agreed in Tyszcenko v. Tyszencko after concluding that the statute was ambiguous on the point.
Because the UCCJEA has attorneys’ fee language in the section on custody determinations but not in the section on enforcement of custody judgements, that suggests that fees are not generally available for disputes over the transfer of jurisdiction, Clements said.
Mother still may get the fees, though. Clements noted that Code Sec. 20-79(b) and 20-99(5) “provide the statutory basis for the broad discretionary authority circuit courts have to awards attorney’s fees and other costs as the equities of a divorce case and its ancillary proceedings may require.” She sent the case back to the trial court for analysis under those statutes.
In the personal injury case, Chrieten v. Chrieten, the trial judge classified all of the recovery from a personal injury action as separate property, in part because the recovery stemmed from the negligence of the husband in a motorcycle crash in which the wife, a passenger on the vehicle, was injured.
Judge Robert J. Humphreys wrote that the trial court erred in making the award under Code Sec. 20-107.3(A) because Code Sec. 20-107.3(H) says that recovery attributable to lose wages and unreimbursed medical expenses are marital property, and the wife presented no evidence on what portion of the award was based on those factors.
The trial judge’s ruling was harmless error, Humphreys said, because the court made an alternative finding that it would have applied its discretion under Code Sec. 20-107.3(E) to award the entire amount to the wife even it had concluded that the recovery was marital property.
By Alan Cooper
