Virginia Lawyers Weekly VA Lawyers Weekly
Where wife filed a “salacious” divorce complaint, which she nonsuited after it was revealed the parties were already litigating a Florida divorce and custody action, husband’s motion to seal the record is granted in part.
Overview
Although the parties had been litigating a divorce and custody case in Florida since 2013, wife filed an October 2016 divorce complaint Fairfax Circuit Court, in which she “incorrectly swore” she was not involved in any other custody action. She nonsuited the complaint after husband’s lawyers alerted her counsel about the Florida action. The Florida divorce was finalized in August 2019. Husband seeks to seal the record of the case filed in this court. Wife “does not contest this Motion.”
“The Fairfax Complaint was filled with moral and salacious allegations, among other unpleasantries. Husband testified they were all false. He offered documentary evidence to support some of his testimony. … Since the matter was nonsuited, the allegations are unproven. …
“Husband testified Wife has been trying to sabotage his business by sending copies of her nonsuited Complaint – long after it had already been nonsuited – to his clients, associates, and acquaintances. … Husband has fewer clients this year than in the past and avers this is a direct result of Wife’s sending them copies of the Complaint. …
“Husband is the sole financial provider to his minor children and has sole custody of them. He fears his children will see the allegations and that, if they do see them, they, too, will be harmed.”
Considerations
Court records are presumed to be open to the public but judges have statutory authority to exercise discretion to seal records in domestic relations cases. “‘[T]he desire of the litigants is not sufficient reason to override the presumption of openness.’ Shenandoah Pub’g House, Inc. v. Fanning, 235 Va. 253 (1988)]. … ‘Nor [does the Supreme Court of Virginia believe that] risks of damage to professional reputation, emotional damage, or financial harm, stated in the abstract, constitute sufficient reasons to seal judicial records.’”
This court has developed a list of considerations to guide its determination whether to completely or partially seal the record in this case. “Naturally, the list begins with the considerations against sealing expressed by the Supreme Court of Virginia in Shenandoah Publishing House: agreement by or desire of the litigants to seal is, alone, a bad reason to seal, as is an unparticularized concern of damage to professional reputation, emotional damage, or financial harm.”
The “mere existence of salacious allegations [is] a bad reason to seal. Virginia law provides for fault-based divorce. … If salaciousness alone was cause to seal a file, a large percentage of the civil domestic relations files would be sealed. …
“In addition to the bad reasons articulated in Shenandoah Publishing House, this Court adds the following to the list: public figure status, publicity surrounding the case, and malicious use of court records. In isolation, such factors do not override the presumption of openness.”
This court offers several considerations for closing and sealing a file. “[T]he presumption against sealing can be lifted when a party points to a real harm that has occurred as opposed to a theoretical, to-be-determined harm. …
“Sealing a record makes sense when doing so is necessary to respect a competing legal good,” such as protecting information covered by attorney-client privilege, personal information such as Social Security and financial account numbers, and financial and trade secrets.
“Another, more general, category of seal-worthy items includes ancillary or tangential information that provides no aid to the public in understanding the adjudicative process of the case. … Relatedly, sealing may be warranted when the material does nothing to establish the deliberative process of the court.” Records may also be sealed to protect children or when they contain “demonstrably false information.”
Application
“[T]he parties’ reasons for sealing the records are particularized and are not stated in the abstract. Husband has lost clients because they learned of the allegations in the Virginia Complaint. …
“The Complaint is inherently relevant to the merits of the case; the balance of the materials is not. However, the Complaint is an orphaned pleading. Other than receiving it from Wife, the Court took no action on it other than to dismiss it on the parties’ request to nonsuit it. …
“Husband proffered a fear, in the abstract, that his children would be harmed if the judicial records remained open for two reasons. First, he asserted that he was the sole financial support and the custodian of his children. Leaving the files open would damage his ability to earn a living. As a result, he reasons, open records would harm his children for whom he provides sole support through his lost income.
“Second, he asserted the children would be harmed if they learned of the inflammatory allegations. This non-particularized harm is exactly the type of reason to seal disavowed by the Supreme Court of Virginia. …
“The veracity of the allegations in the Complaint are largely untested. Wife made sworn allegations; Husband later swore the allegations are untrue.” But wife’s filing of the Fairfax complaint and swearing there were no others when, in fact, there was a Florida divorce and custody action “suggests a bad motive by wife.” Taking husband’s sworn denials of the allegations, certain defense exhibits “and the fact that the Complaint was dismissed without court action, the Court is led to disbelieve the allegations in the Complaint. …
“[T]he Court finds that the file should be sealed in part.” The complaint and the motion for pendente relief will be sealed, along with documents containing husband’s Social Security and account numbers, certain defense exhibits and any materials already sealed.
Falkoff v. Falkoff. CL-2016-14102, Dec. 6, 2019; Fairfax Cir. Ct. (Oblon). Allison Gill f/k/a Falkoff, self-represented, Joseph H. Beale for Adam Falkoff. VLW 019-8-110, 14 pp.
