Basil Gaissert v. Jennifer Joanne Estrem Gaissert
0522161
| Va. Ct. App. | Aug 16, 2016Background
- Mariage dated June 10, 1990; separation April 15, 2012; two children, both over 18 at divorce; oldest child disabled and previously deemed totally incapacitated; 2011 court order appointing husband and wife as co-guardians for the oldest child; 2013 wife filed for divorce and husband counterclaimed for divorce; 2015 final hearing with guardianship-based findings and equitable distribution issues; trial court awarded wife divorce, equitable distribution, spousal and child support, final decree entered February 26, 2016.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by denying psychological evaluation and awarding child support for an adult disabled child | Gaissert argues evaluation needed to confirm disability; challenged adult child support. | Estrem Gaissert contends disability already established by 2011 order; no need for new evaluation; child qualifies for support. | No error; court properly denied evaluation and found child eligible for support under Code § 20-124.2(C). |
| Whether the trial court erred in not considering wife’s alcoholism and mental cruelty as grounds for divorce | Gaissert claims constructive desertion/mental cruelty warranted dismissal of wife’s divorce. | Estrem Gaissert asserts no-fault grounds supported by separation; cruelty reweighing improper. | No reversible error; court granted divorce on no-fault ground based on separation for over one year. |
| Whether the trial court erred by allowing equitable distribution despite wife not praying for it in the divorce complaint | Gaissert relies on Fadness to argue lack of pleading for ED invalidates relief. | Estrem Gaissert demonstrates scrivener’s error corrected; both parties pursued ED; amendment proper. | No error; court allowed amendment and granted equitable distribution to both parties. |
| Whether the court abused discretion in amendments and outcomes on ED and divorce given pleadings | Gaissert contends amendment was improper and counterclaims misaligned. | Estrem Gaissert contends good cause and lack of prejudice justify amendment. | No abuse; amendments properly granted; court affirmed ED and divorce disposition. |
Key Cases Cited
- Mayer v. Corso-Mayer, 62 Va. App. 713 (2014) (trial court findings reviewed for reasonableness; best interests standard applied)
- Fadness v. Fadness, 52 Va. App. 833 (2008) (pleading rules; no right to relief not pleaded; amendments may be permitted)
- Williams v. Williams, 14 Va. App. 217 (1992) (discretion in divorce grounds; no automatic preference for desertion)
- Lassen v. Lassen, 8 Va. App. 502 (1989) (discretion in divorce grounds and credibility)
- Ogunde v. Prison Health Servs., Inc., 274 Va. 55 (2007) (leave to amend pleadings; good cause standard)
- Ford Motor Co. v. Benitez, 273 Va. 242 (2007) (amendments; liberal grant of leave to amend in furtherance of justice)
- Kole v. City of Chesapeake, 247 Va. 51 (1994) (pleading amendments; discretion of trial court)
- Boyd v. Boyd, 2 Va. App. 16 (1986) (pleadings; basis for amendment and relief)