Nancy Marcellette Friedman v. Mona Smith & Laura Goldstein, etc.
68 Va. App. 529
Va. Ct. App.2018Background
- Gerald and Nancy Friedman separated on December 15, 2015 after 54 years of marriage; separation remained uninterrupted for over one year.
- Nancy filed for divorce in February 2016 (cruelty, desertion) and sought support, equitable distribution, and fees; Gerald answered and filed a cross-complaint seeking divorce (adultery, desertion) and related relief.
- Gerald (age 90) was hospitalized, had apparent stroke/competency concerns, and sought a motion to bifurcate the divorce from ancillary matters under Code § 20-107.3(A), arguing urgency given his health.
- The circuit court granted bifurcation (finding it "clearly necessary") after unchallenged proffers about Gerald’s health and appointed a guardian ad litem for him; the court then granted Gerald’s cross-complaint for divorce on the one-year separation ground and reserved spousal support, equitable distribution, and fees for later determination.
- Nancy appealed, raising (1) insufficiency of evidence that at least one party intended permanent separation, and (2) that bifurcation was an abuse of discretion; the Court of Appeals also considered whether it had jurisdiction to hear the appeal given bifurcation.
- Gerald died during the proceedings; his estate was substituted as appellee for purposes of the remaining issues (except the bifurcated ancillary matters still reserved to the circuit court).
Issues
| Issue | Plaintiff's Argument (Nancy) | Defendant's Argument (Gerald/estate) | Held |
|---|---|---|---|
| 1. Appellate jurisdiction over bifurcated divorce decree | Court of Appeals lacks jurisdiction because decree left ancillary matters for later adjudication (interlocutory) | Statute allows final decree of divorce when bifurcated under Code § 20-107.3(A) | Court has jurisdiction: a properly bifurcated divorce decree is final as to divorce and appealable after 21 days |
| 2. Whether bifurcation was an abuse of discretion | Bifurcation was not "clearly necessary" because facts were disputed and no live testimony at the bifurcation hearing | Trial court relied on uncontested pleadings, counsel proffers, Gerald’s age/health, delays; discretion under statute | No abuse of discretion: record supported trial court’s finding that bifurcation was "clearly necessary" |
| 3. Sufficiency of evidence of intent to permanently separate | Lack of evidence that at least one party intended permanent separation; court erred to grant divorce | Nancy failed to preserve this argument below (no timely, specific objection; no motion to strike); thus barred on appeal | Procedurally defaulted under Rule 5A:18; appellate court will not consider it |
| 4. Award of appellate attorney’s fees | (Nancy did not request fees) | Gerald requests fees for defending appeal as frivolous | Court awards Gerald reasonable appellate attorney’s fees and remands to circuit court to determine amount |
Key Cases Cited
- de Haan v. de Haan, 54 Va. App. 428 (2009) (discusses Court of Appeals' limited jurisdiction and interlocutory appeals in divorce-related cases)
- James v. James, 263 Va. 474 (2002) (definition of final order for Rule 1:1 purposes)
- Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555 (2002) (order retaining jurisdiction over matters is ordinarily interlocutory)
- Prizzia v. Prizzia, 45 Va. App. 280 (2005) (interlocutory decree principle in divorce cases)
- Christensen v. Christensen, 26 Va. App. 651 (1998) (trial court must find "clear necessity" to retain jurisdiction when bifurcating)
- Patel v. Patel, 33 Va. App. 776 (2000) (Code § 20-107.3 ordinarily requires contemporaneous decision of divorce and property unless bifurcation is justified)
- Hooker v. Hooker, 215 Va. 415 (1975) (statutory one-year separation requires intent by at least one party to discontinue marital cohabitation)
- Andrews v. Creacey, 56 Va. App. 606 (2010) (trial court as factfinder on intent; appellate deference to trial court findings)