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Analysis of Published Opinions from the Court of Appeals Released on 7/27/2021 (Part I)

by | Jul 28, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

The Court of Appeals released three published opinions Tuesday.  As I am hunkered down in the Virginia Appellate Lawyer Social Media Bunker working on a petition to the Supreme Court of Virginia, it may take a while to post summaries and analyses of all four, but I wanted to start with a case that has two things to recommend it, the first being of particular interest to the Domestic Relations Bar and the second of interest to anyone who might be thinking of taking on more appeals once the Court of Appeals begins accepting everything as a matter of right.  If you don’t happen to fall into the first category, you can just skip to the penultimate paragraph but two (that’s the fourth paragraph from the bottom – or if you are really pressed for time, just take Prince Humperdinck’s advice and “skip to the end”).

Jacqueline M. Nielsen v. Alan H. Nielsen involves a domestic relations matter, as you could no doubt have guessed by the parties sharing a last name.  The Nielsen’s were married in 1987, separate in 2016 and were divorced the following year.  Mr. Nielsen had a pretty important job – or at least an important sounding title – as Vice President of Corporate Services at AOL.  I say “had,” because shortly after his divorce was finalized, AOL was purchased by Verizon and Mr. Nielsen’s job title and duties changed pretty drastically, as did his income.  You might say that the writing was on the web browser and when Verizon offered former AOL employees a buyout a few months later, he accepted a separate agreement that was worth slightly more than his highest years earning since the separation.

Now as anyone who has left a job without having another lined up can tell you, its often harder to find a job, especially one commensurate with Mr. Nielsen’s expertise and earning history.  Eventually a short-term gig turned into a permanent job, but with a salary and potential bonus at below his lowest annual earnings since the separation.

Those familiar with the domestic arena will not be at all surprised by the next sentence.  Mr. Nielsen petition the court for a reduction of spousal support, then $10,000 per month, asserting that he had undergone a “change in circumstances.”  It will also not surprise those familiar folks that Mrs. Nielsen took exception to this, asserting that Mr. Nielsen voluntarily left his employment with Verizon and had adequate assets to continuing paying support at the then current amount.  The industry term for this is “voluntary underemployment.”

The trial court did not see it that way.  It found that the evidence supported Mr. Nielsen’s assertion that had he not excepted the buyout he would have been made redundant (wonderful British term – we should use it more this side of the pond).  Moreover, the record supported his assertion that he had made a significant effort to find suitable employment and took the best offer he had.  The court reduced spousal support to $6,000.

Now I will admit that I found this 40% cut a bit drastic – but only a bit.  The Court of Appeals may have thought so too, and that explains why it went to great lengths to set out the law and standard of review for such cases.  On that score alone, that makes this an opinion worth printing off and tucking in the “go-to” file for succinct statements on what constitutes a change in circumstances and when a court is justified in finding that a party is (or isn’t, in this case) voluntarily under employed.

There is another reason this appeal merits a close look by anyone about to start practicing in the “new” Court of Appeals where all appeals will be “of right” as are domestic cases now.  The Court notes in its opinion that Mrs. Nielsen’s first two assignments of error challenging the failure of the circuit court to grant her motion to strike at the close of husband’s case-in-chief are procedurally barred, at least in part, because she chose to put on evidence afterwards – a standard rule of appellate procedure that was recently reaffirmed by the Supreme Court of Virginia.  See Rompalo v. Commonwealth, 72 Va. App. 147, 154 (2020), aff’d, __Va. __ (May 20, 2021) (order).

The opinion goes on to note that there were nine assignments of error in total.  Nine?  Unless you skipped the summary and analysis of the opinion, you are probably wondering how you could have missed the seven other issues (well, five, because we know that assignments of error one and two were effectively non-starters) apart from change of circumstances and voluntary underemployment.  To be fair, it would is likely that there would be an additional assignment of error saying, “And even if it was necessary to reduce spousal support, $4,000 was just too much of a cut.”  Still, that leaves four other assignments of error that do not seem to get a mention in above.  Is the old boy slipping?

No, I am not – or at least not with respect to the summary of this case.  The clue to the “missing analysis” is found in the statement two paragraphs above that Mrs. Nielsen’s were “procedurally barred, at least in part.”  (Emphasis added.)  Since an assignment of error challenging a failure to strike the evidence prior to putting on your own case would be barred completely, it follows that whatever the first two assignments of error were in this case, they were not succinctly crafted.  Moreover, the fact that there were two addressing, at least in part, the same topic probably means that some of the other assignments of error overlapped one another.

The disadvantage of an appeal of right is that you don’t have the court weeding out your bad assignments of error for you at the petition stage.  So let the professor give you a quick lesson in weeding out the chaff yourself.  If you have nine assignments of error, you probably have eight too many (exceptions apply, of course, primarily to death penalty appeals – which we mercifully don’t have in the Commonwealth anymore – and ultracomplex civil litigation involving millions of dollars).  The assignment of error in this case should have been, “The circuit court erred in granting husband’s petition for a change in circumstances and reducing wife’s support by 40% where the record did not support the conclusion that husband was not voluntarily underemployed.”  That would have been sufficiently clear to address all the arguments that were considered by the Court of Appeals.