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Summary and Analysis of Published Opinion of the Court of Appeals, February 2, 2021

by | Feb 2, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

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.”