Military Divorce: Equitable Distribution - Sufficiency of Evidence
Stark v. Dinarany, 73 Va. App. 733 (2021)
The parties were married in 2012 and separated in 2019. From the date of marriage until late 2016, the husband served in the United States Army. The husband subsequently retired from the military with a pension after 25 1/2 total years of service. At trial, the husband argued a motion in limine to prevent the wife from putting on evidence of financial information due to her failure to produce any documents relevant to equitable distribution before the discovery deadline set by the scheduling order. The court granted the motion, and the wife was precluded from putting on any financial information. In its ruling, the trial court held that it could not award the wife any portion of the husband’s pension since there was no evidence presented as to the marital portion of the pension. The wife appealed.
Whether the trial court erred when it failed to award the wife any of the husband’s military pension.
The Court of Appeals reversed the trial court and remanded the matter back to the trial court for determination of the marital share of the pension and any award of the pension to the wife.
The record reflects that the husband was in the military from the date of marriage until late 2016 when he retired, and that he retired after a total of 25 1/2 years of service. When asked to divide hybrid property, the trial court must determine the marital share of such property. In doing so, Virginia Code § 20-107.3(G)(1) instructs the court that the marital share of retirement is “that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.” As there was evidence in the record as to: (i) the date of marriage, (ii) the date of the husband’s retirement, and (iii) the total length of the husband’s military service, the trial court was able to determine the marital share of the pension.
Untimely Appeal - Misrepresentation by Clerk
Hill v Hill, 21 Vap UNP 1606191(2021)
A custody trial was held in the Juvenile and Domestic Relations District Court (“JDR”) on June 6, 2018, and August 20, 2018. The father called the court several times to determine when the order had been entered so he could file his appeal. The father went to the JDR clerk’s office on November 20th and was told by a clerk that the order had not yet been entered. In actuality, the JDR order was entered on November 14th. The father filed his appeal on November 27th, which was 13 days after the order had been entered. The mother filed a motion to dismiss the father’s appeal since it was untimely noted. The circuit court denied the mother’s motion to dismiss, stating that the clerk’s misstatement as to whether the JDR order was entered was a “clerical error” which could be corrected under Virginia Code § 8.01-428(B). Following a trial on the merits, the circuit court entered the final circuit court custody order. The mother appealed.
Whether the circuit court erred in classifying the clerk’s misstatement about entry of the JDR order as a clerical error capable of being corrected under Virginia Code § 8.01-428(B).
The Court of Appeals reversed the ruling and remanded the case back to the circuit court.
Statutory interpretation is a question of law which the Court of Appeals reviews de novo. Pursuant to Virginia Code § 16.1-296(A), an appeal from JDR must be made within 10 days from the entry of final judgment. Virginia Code § 8.01- 428(B) allows a court to correct clerical mistakes from “oversight or from inadvertent omission.” In School Board of Lynchburg v. Caudill Rowlett Scott, Inc., 237 Va. 550,555 (1989), the Supreme Court of Virginia clarified what constitutes a “clerical mistake.” It stated the Virginia Code § 8.01-428(B) permits a court to correct the record to make it “speak the truth.” The Supreme Court of Virginia explicitly rejected the argument that a representation by a clerk’s office qualifies as a “clerical mistake”. Here, the father relied on the JDR clerk’s erroneous statement to ascertain the status of the order. The father never asserted that the record failed to accurately reflect the JDR court’s ruling or the proceedings. Nor did he claim the record contained any errors of oversight or omission. Instead, the error was a verbal representation by a clerk of court, not an error in the record.