*1 majority Perhaps the here is motivated
the brutal set of facts this ease and dis- pregnant
turbed that an innocent woman
could be so victimized violent crime and compensation.
not receive I am likewise very sympathetic
troubled and to the sad fact happen
that crimes such as this one thou- year
sands times a and the victims receive compensation. The old saw that “hard true,
cases make bad law” is still and the
Court’s effort to fit the circumstances of this exception
case into the deliberate intention perfect example. suspect
I majority that the is also motivat- antagonism
ed here its historical to the
immunity provision Compen- of the Workers’ Court,
sation Act. This like most other
courts, plagued by seems to be the notion somewhere, actually enjoys someone im-
munity Nevertheless, liability. to tort
immunity Legislature was created integral part carefully
is an of this state’s compensation system,
crafted workers’ there-
fore, this Court should learn to live with it. I
Because believe that in the above-men- opinions improperly
tioned the Court invokes exception, respect- deliberate intention I
fully dissent. PEARSON,
Karen Plaintiff
Below, Appellant
Roger PEARSON, Defendant
Below, Appellee.
No. 23679.
Supreme Appeals Court of Virginia.
West
Submitted Feb. 1997. March
Decided
Dissenting Opinion of Chief Justice 21, 1997. July
Workman *4 Germain, Logan, Appel-
Marcelle St. lant. Walker, Logan, Appellee.
James A. DAVIS, Justice: appeal This arises from an order of the Logan County grant- Circuit which Pearson, plaintiff/ap- ed a divorce to Karen (hereinafter pellant, plaintiff) referred to as Pearson, Roger defendant/appellee, and (hereinafter defendant). referred to as On appeal plaintiff alleges the circuit respect court committed error with to the (1) following: permanent the amount of ali- (2) mony; lump the denial of sum or en- (3) award; hancement the termination of ali- (4) 65; mony when defendant reaches (5) order; restraining awarding issuance of a (6) account; a defendant credit union fees; attorney’s failure to award Maxima, awarding goods defendant a Nissan furnishings, and the marital home. I. II. STANDARD OF REVIEW FACTUAL BACKGROUND begin analysis by setting We our parties September were married on out the standard in which this Court reviews adults, children, 1969. Two now were challenges equitable to an distribution order marriage. bom from the The record indi- of a circuit court. We outlined that standard cates that the not work outside did succinctly syllabus point 1 of Burnside v. during marriage. the home Plaintiff was Burnside, a full-time homemaker. The defendant (1995): employed throughout marriage as a rail- reviewing challenges findings made employee Transportation. road with CSX law master that also were court, adopted by significant problem three-pronged a circuit
The first between the applied. standard of review is parties occurred in 1987. In Under circumstances, equitable these a final injuries of a dis- suffered facial result domes- tribution order is reviewed under an abuse fight parties tic with the defendant. The standard; underlying of discretion fac- separated temporarily after this incident. tual clearly are reviewed under a problems The record does not disclose standard; erroneous questions of law incident, marriage in the after the 1987 until statutory interpretations subject *5 plaintiff May filed for divorce in of 1993. to a de novo review. grounds complaint alleged As for divorce the 2, Syl. Hillberry Hillberry, See also Pt. v. treatment, cruel alcoholism and irreconcilable (1995). 600, 466 195 W.Va. S.E.2d 451 It was differences. The defendant filed a counter- by syllabus point noted this Court in 1 of seeking claim grounds a divorce on the of L.H., 384, Stephen Sherry L.H. v. 195 W.Va. cruelty and irreconcilable differences. (1995) 465 841 S.E.2d circuit court “[a] findings should review of fact made family evidentiary The law master held family only clearly law master under a erro 12, hearings in this matter on October standard, neous and it should review the 16, and November A 1994. recommended application of law to the facts under an abuse decision, granting that included a divorce on explained of discretion standard.” We in differences, grounds of irreconcilable L.H., syllabus point Stephen 3 of that “[u]n- family 14, April filed law master on standard, clearly der the erroneous if the plaintiff petitioned The for review of findings of fact and the inferences drawn the recommended order. The circuit court family supported by law master are sub 28,1996, issued a final order on March which evidence, stantial such and infer adopted family all of the law master’s recom- may ences not be if a overturned even circuit except The circuit mendations one. court may court be inclined to make different find family that the found law master abused her ings contrary or draw inferences.” in awarding per discretion the sum of $150 alimony plaintiff. principles month as The circuit With above view we now alimony plaintiffs assignments court increased a month. turn seriatim to of $375 plaintiff prosecuted ap- thereafter this error. (1) peal. assigned has as error: (2) permanent alimony;
the amount of A. lump award; denial of sum or enhancement Sufficiency Alimony Of Amount (3) alimony the termination of when defen- (4) 65; reaches dant the issuance a re- contends that her award (5) order; straining alimony awarding per defendant a month as is insufficient $375 (6) account; style living credit union the failure to award to maintain the to which she (7) fees; attorney’s during marriage. and the award to defen- was accustomed her Fac Maxima, goods dant of the Nissan and fur- tors which a circuit court must consider in nishings, determining alimony and the marital home. are out the issue set 48-2-16(b) (1984).1 explana- gave following In Banker we This
in W.Va.Code
principal ways in which an
1,
of the three
point
part,
tion
syllabus
noted
might arise:
967,
of discretion
Corbin,
abuse
206 S.E.2d
v.
157 W.Va.
Corbin
(1974), modified,
Estate
Here-
In re
occurs in three
An abuse of discretion
(1978)
477, 250
ford,
S.E.2d
162 W.Va.
principal ways:
any
assigned to
specific weight
that “no
(1)
a relevant
factor that should
when
criterion,
judge
the trial
in his sound
one
and
weight
given significant
is not
have been
may
weight
any
or
accord such
discretion
factors,
(2)
considered;
proper
when all
appropriate.”
all
these criteria as he deems
considered,
ones,
improper
are
but
long held that
decision
“[t]he
We have also
weighing
those
family
law master
deny alimony is reviewed
grant or
judgment;
a clear error of
factors commits
Banker v.
of discretion.”
Court for
abuse
(3)
family law master fails to
when the
465,
535, 548,
Banker,
474 S.E.2d
196 W.Va.
issuing
at all in
exercise
discretion
(1996).
single syllabus of Nichols
In the
order.
Nichols,
514,
record indicates further abused, plaintiff specific that she was but no Alimony Termination Of by testimony incidents were confirmed or The record indicates that at the time of documentary al- evidence. The also hearing family the final before the law mas- abuse, leges specific but cites no emotional years ter was 46 old and the de- pattern by the of conduct defendant years permanent fendant was 50 old. The reasonably as emotional could be asserted Additionally, granted alimony given abuse. the divorce award to the auto- terminates, factors, ease based irreconcilable dif- matically barring other ferences. years when the defendant turns 65 old. The plaintiff presents arguments regarding two family Neither the law master nor alimony termination of her award when the plaintiffs the circuit court deemed the abuse years age. defendant reaches 65 Both ar- allegations supported by to be the evidence. guments relate to defendant’s retirement allegations standing Mere alone without proper proof testimony cannot benefits. be consid ered as evidence law master or employees Retirement benefits for railroad circuit court. We indicated in Williams governed by federal statute. As a rail- *8 Coil, Inc., 52, 14,
Precision 194 W.Va. 61 n. defendant, employee upon road the retire- (1995) 329, 14 459 S.E.2d 338 n. that “self- ment, is entitled to benefits under the Rail- serving support assertions without factual (hereinafter 1974, road Retirement Act of the the have no force or effect. In record” Pow “Act”) § seq. 45 U.S.C. 231 et The Act’s deridge Highland Unit Owners Ass’n v. provides scheme for two tiers of benefits Ltd., 692, Properties, 707, 196 474 W.Va. private pension pro- which resemble both a 872, (1996) categorized S.E.2d 887 we such gram plan. and a social welfare Tier I bene- self-serving “nothing averments as more equivalent employee fits are to the those attorney’s argument lacking than an eviden (Citation omitted.) tiary if support.” Evi would receive covered the Social Securi- Act, presented ty § dence in a 42 seq. divorce ease must be U.S.C. 401 et See 45
147 231a(c)(2) 231b(a)(1).6 231a(a)(1)5 plaintiff § eli- Tier indicates that the is § § U.S.C. which, immediately II gible to Tier benefits supplemental annuities receive II are benefits Therefore, plan, age are tied to earn private pension upon reaching the like a (at 45 delayed year service. See U.S.C. ings age and career will one 61 231b(e).8 231a(b)7 65) § § have when defendant would turned receiving arising her Tier II income out from Hisquierdo Hisquierdo, v. 439 U.S. marriage. of the (1979) 802, 1 572, 99 S.Ct. L.Ed.2d Supreme States Court considered United This has not and will not of railroad retirement an award whether upon anticipated alimony based future award dividing spouse marital to a when benefits Alimony upon the financial events. based upon prohibited by the assets divorce was time parties at the of the realities Supreme Court held Act. The United States I.V.C., 458, See 171 W.Va. divorce. F.C. prohibited specifically § 231m that 45 U.S.C. (“Concrete (1982) 460, 99, payable the division of benefits under parties of the must be a financial realities However, in in a property as divorce. Act any alimony primary inquiry in court’s 1983, Congress provided an amendment to award.”). However, nothing precludes plain expressly permits character- § 231m which tiff, age filing 61 from when she attains property II sub- ization of Tier benefits alimony modify appropriate petition upon ject to distribution divorce. See specifically court’s order award. circuit 231m(b)(2). § Notwithstanding the U.S.C. provided: “permanent alimony until amendment, holding in Hisquierdo dies, remarries, at either defendant controlling respect to Tier I with is still 65, age or order tains further 1, Syl. part, Pt. See McGrow benefits. added.) The (Emphasis circuit court.” McGrow, 411 S.E.2d 186 W.Va. jurisdiction modify continuing court has (“The (1991) Railroad Retirement Act alimony upon the financial realities of based 231m, pre- expressly 45 U.S.C. Sec. Syl. Pt. Banker: parties. See from as divisible marital consideration cludes 48-2-15(e) W.Va.Code, (1993), a Under retirement annui- the basic railroad property jurisdiction to court has hear circuit equivalent ty, provides which benefits seeking rule a motion modification Act.”). Security the Social benefits under alimony, as the include ends decree to enti- plaintiff acknowledges she is justice may require, though even so of the to and has been awarded share tled alimony previously did denied decree retirement benefits under defendant’s alimony. To the the issue of not address II of the Act. The con- Tier scheme Savage Savage, extent that however, tends, II will that her Tier benefits (1974), its progeny 203 S.E.2d years age. trigger until she reaches 65 not inconsistent, they expressly over- are situation, plaintiff, contends the means This ruled. year gap when she that there will be four earlier, Hisquierdo maritally we stated related income. We As receives being I from only precludes Tier benefits reading of 45 disagree. U.S.C. Our 231a(a)(l) "employ- the term had been included in § out the various cir- 5. 45 U.S.C. sets employ- as defined in Act. would a railroad ment" cumstances that allow eligible to Tier receive I benefits. ee become 231a(b) § cir- U.S.C. sets out various 7. 45 employ- a railroad cumstances that would allow 231b(a)(l) provides § as follows: 6. 45 U.S.C. eligible Tier to receive II benefits. ee to become annuity of under sec- an individual 23a(a)(l) of this title shall be an amount tion 231b(e) provides as follows: 8. 45 U.S.C. (before any equal reduction on to the amount *9 annuity an any supplemental of individual age on "The deductions account of before 231a(b) work) $23 of title shall be old-age under section this insurance ben- account of the year of plus $4 for each disability which an additional amount of benefit to efit or insurance 25 has in excess of un- service that the individual would have been entitled such individual supplemental Security years, case the her but in no shall the Act if all his or der Social 31, annuity $43." employee exceed an after December service as 148 property. 1983, divisible Congress,
considered as
marital
incorporate
refused to
Hisquierdo
preclude
not
the use of Tier
does
I
property subject
Tier
benefits as
to distri-
pay alimony.
Kennedy
I benefits to
See
upon
granting
bution
the
of a divorce.
22, 28,
Kennedy,
Ark.App.
53
918 S.W.2d
intent,
upon
Congress’
Based
the
clear
as
197,
that,
(“Appellee argues
201
if he
Hisquierdo,
as
well
we likewise
to
decline
required
alimony
is
pay
beyond
to
retirement
property subject
deem the same as marital
to
age,
payments
he will have to make those
equitable
Hisquier-
distribution.
view of
benefits,
from his
I
which
not
Tier
divisi- do, we hold that the Railroad
Act
Retirement
however,
Appellee,
ble under
law.
federal
1974,
45
specifically prohib-
U.S.C. 231m
any
has not
law that
him
cited
restricts
from
offsetting
its
Tier I
benefits
a divorce
paying alimony from retirement benefits that
Therefore,
proceeding.
may not
receive.”).
might
Alimony
he
is not divisible
equal
an
offset
division marital assets to
Banker,
property.
marital
See
196 W.Va. at
compensate
being
any
her for not
awarded
(“
545,
‘Alimony’
474
at 475
has
been
portion of
Tier I
defendant’s
benefits. How-
48-2-l(a)
W.Va.Code,
(1992),
defined
to
ever,
position
consistent with the
we have
pays
mean
person
‘the allowance which a
to
herein, plaintiff
precluded
taken
is not
from
or in
support
behalf of the
of his or her
filing petition
modification,
for
once defen-
”).
spouse
they
...
after
are divorced.’
benefits,
begins to
dant
receive Tier I
to
Therefore,
plaintiff may
to
seek
have
request alimony
upon
based
re-
financial
alimony
once
continued
the defendant reach-
parties
alities
at that time. Notwith-
age
es
65.
fact,
standing this
this Court
all
cautions that
Lastly,
contends that
sources of
income of
she
is
to
offset from
entitled
the marital
when,
if,
defendant must be considered
or
property
compensate
being
her
not
for
family
law
or
master
circuit court
any
awarded
of defendant’s
I
Tier
benefits.
upon any petition
called
to rule
directly
This Court
never
has
addressed the
modification.
offsetting
way
issue of
Tier I
benefits as
furthering equitable
distribution
marital
D.
However,
property.
argument
was ad
rejected in Hisquierdo.
dressed and
Restraining Order
Supreme
offsetting
Court held that “[a]n
parties
cruelty
alleged
grounds
Both
as
upset
statutory
award ... would
balance
As previously
divorce.
indicated the divorce
impair
employee
spouse’s] economic
[the
granted
grounds
was
on
dif-
irreconcilable
security just
surely
regular
as
would
ferences. The
law master concluded
deduction from his benefit check.” His
parties
from her
observation of
re-
that
588,
quierdo,
811,
439
at
U.S.
We note
(1996)
legal
the
and
basis
15(b)(9)
part,
cient
indicate
factual
in relevant
that
provides,
prov
family
the
law master’s ultimate conclu-
been
allegations of abuse have
“[w]hen
meaningful
of
offending par
so
to facilitate a
review
enjoin
sion
as
en,
the
the court shall
the
tri-
mandatory
presented.
the issues
Where
lower
provision
it
This
makes
ty[.]”
making
to meet this standard —i.e.
against
be
a bunals fail
restraining order
entered
a
that
only general, conclusory or inexact find-
by preponderance
shown
a
spouse where it is
judgment
re-
spouse
ings
must vacate the
and
abused the
that such
of the evidence
—we
mand
ease for further
and devel-
proceeding
instant
the
the
spouse.
In the
other
Moreover,
syllabus
in
opment.”
we held
of abuse
finding
no
court made
lower
744,
(I),
point 6
v.
There
of Wood Wood
plaintiff or the defendant.
the
either
“
(1991)
‘[a]n
that
order di-
fore,
upon
plain reading of the stat
S.E.2d
based
a
property
in
recting
of marital
ute,
error
a division
circuit
committed
issu
the
court
specific
finding
way
equally must make
a
of
other than
restraining orders without
ing
to factors enumerated in Sec. 48-
reference
abuse.10
2-32(c),
and the facts
the record
Sylla-
support application of those factors.’
E.
Somerville,
Point
Somerville v.
bus
(1988).”
can-
family law A review of financial master. parties both does statements submitted Attorney’s Fees of a credit union disclose the existence not Rule Rules account. Pursuant circuit court did not award Law, Family Practice Procedure for in this case. We noted attorney’s fees § Virginia 48-2-33 Code as well West Mayhew Mayhew, syllabus point (1993) complete of fi- a full disclosure “[pur W.Va. in all actions. required divorce nances 48-2-13(a)(6)(A), § suant to W.Va.Code clear, Thus, it is that a concise incumbent compel proceeding may court in a divorce complete par- for both financial record pay attorney’s fees and court party either required by law master ties necessary reasonably to enable the oth costs this Court to court in order for and lower the action prosecute or defend er pre- issues meaningful review of the establish Rog syllabus point In of5 the trial court.” sented. Rogers we held: ers actions, attor- In an award of addressing of the divorce the issue initially within sound ney’s rests pro fees sufficiency of final order in a divorce a family law of the master discretion stated in Province ceeding, appeal absent 473, 483, 473 disturbed on Province, should not be W.Va. day 15(b)(9). matter We reserve for another point out that circuit courts We hasten to restraining a order in a divorce equity powers to of issuance general issue have inherent equity powers proceeding, general evidentiary under the restraining proper orders court, statutory proof today there has been showing. ruling erode when does not from Our abuse, during parties judice but the conduct of powers. we were In the case sub those restraining proceedings indicate a need for upon only of a re- to address issuance called straining 48-2- order. under W.Va.Code order *11 150 determining pose an directly abuse of In paying
an
discretion.
award
to a fee
fees,
attorney’s
litigant’ by
to award
the fami
encouraging
protection
whether
of the
array
ly
Atamanuk,
law master
a wide
indigent
litigant’s rights.”
should consider
82
including
party’s ability
1061,
(Cita
factors
of
to
at
Misc.2d
in general,
prevail-
courts have
because of her reliance on the free services
ing party
legal
who received
aid services or
ARDF,
disagree.
we
The
record
this
pro
representation
legal
other
bono
to recov-
representation
case delineates
effective
attorney’s
justified
er
fees11. Courts have
appeal.
ARDF
below and
awarding attorney’s
pro
fees in the
bono
“
on the
context
basis
‘an award of
attorney’s
attor-
award of
fees
di
ney’s
organization
fees to
providing
proceedings
free
vorce
is authorized
W.Va.
legal
indirectly
48-2-13(a)(6)(A) (1993).12
services
pur-
§
serves the same
Code
Syl.
See
Stenson,
886,
1059,
e.g.,
(1975).
11. See
Blum v.
465 U.S.
104
Misc.2d
awarded III. pro representation; legal or bono aid services compensate however, CONCLUSION such an award is to and and legal for services rendered reimburse upon foregoing the final order of the Based paid litigant. the shall not be to part, is affirmed in reversed the circuit court part for a determination in and remanded proceeding, the record In the instant opinion. with this consistent for to this the basis does not disclose part, part, in in and attorney’s plaintiff. Affirmed reversed fees to the the denial representation remanded. if the free We are not certain that the make a meal." The record indicates party's right to a allowance of that reasonable attorney’s court costs. An order for Our fees and court all cookware. review circuit divided attorney awarding fees and temporary any relief does disclose of the circuit court’s order not during may at time court costs be modified of house- inequitable treatment in the division action, exigencies pendency the as the the furnishings. goods hold and require, may equity justice the including, case Awarding Marital Home Defendant to, a but limited modification not the circuit court’s order indicates The repayment require partial which would full or defendant. was awarded to the marital home party a to the action to of fees and costs plaintiff pay was ordered to the The defendant payment of such or on whose behalf whom appraised of the home. The one half the value previously If an costs was ordered. fees and $68,000. appraised at The defendant was home appeal appeal stated, be or an intention to be taken $34,- plaintiff pay the to therefore was ordered may further order either the court plaintiff argues that the circuit court 000. The appeal. pay attorney on to fees costs to marital home her. should have awarded the assignments plaintiff's of error 13. The other is, that she should contends That without merit. not be re- home and that she should have the
Nissan Maxima quired compensate as the the defendant defen- to plaintiff argues that circuit court erred The plain- compensate her. The was ordered to dant awarding Maxi- the defendant a 1990 Nissan position. justification her The tiff offers giving her a 1988 Pontiac Sunbird. ma and origi- that the home in this case indicates record appraised the Nissan had an record indicates belonged parents, nally to defendant’s $12,000, had a value of and the Pontiac value of acquired the home their deaths he off, $3,500. debt paid was but a Pontiac that the is indicated in record will. It also $10,000 net on Nissan. The still existed youth. in the lived home defendant appears to that the this effect of situation was of his that it because defendant contends $1,500 than the defen- plaintiff received more family law mas- to home that the ties dant. residence, pay but keep the ter he recommended Furnishings GoodsAnd Division Of We no basis half its value. find one after the of the contends that The brief ruling this issue. court’s on disturb circuit furnishings, goods and of the household division necessary furnishings to even "she left without WORKMAN, Justice, dissenting: developed Chief this issue should be below did not excuse the in that from ex-husband case major- respectfully I must dissent from the statutory requirement first filing motion ity’s decision. The Defendant this case modify prior alimony pursu- award of cross-appeal regarding failed to file 48-2-15(e). Virginia ant Code West alimony; yet majority issue remands The majority now what at uses best case to the circuit court back to address dicta, allegation the mention that an of a only petition an issue not not raised change of could circumstances be considered Court, appeal in not but fact even (since being on remand it was remanded for doing, majority In so raised below. vio- reasons), essentially other all invites do- deciding our rule of long-established lates *13 litigants changes mestic to assert of circum- By the cases based on record before us. appeal. things good stances on All both solely allega- remanding case based on this beginning bad must have a ending, and an in change of a circumstance made for tions policy suggests but this that domestic mat- brief, the time in Defendant’s and there- first may ripe appellate ters never be for review Appellant by providing opportunity an to re- (albeit long party alleges so as one for the remand, alimony of on visit the issue the appeal) first time on change a of circum- complete majority in disregard has acted of stances. procedures. Ap- If established modification any procedural Given the lack of pellee challenge to wished seek a reduction of the by Appellant, majority the alimony wrong was to based on the fact award that the remand, permitting op- thus an employment subsequent pro- wife’s to the Defendant portunity relitigate alimony to the issue of ceedings unanticipated an below constituted circumstances, solely representation. based on an ex change proper proce- parte of the Characterizing representations mere in procedures dure to a would be follow the set 48-2-15(e) party’s appeal ap- § brief as record on Virginia “[t]he forth in West Code peal,” majority fallaciously the petition reaches its and file a for modification. In case, conclusion that the upon bare circuit court’s allegations this made for the “clearly fact appeal, Contrary were erroneous.” majority first time on to the sets the characterization, majority’s the representa- stage alimony for an alteration of Plaintiff’s in appellate tions do suggesting I am brief not constitute a award. While not that part of on appeal. the record disregarded, Plaintiffs income be it not for See Wilkinson is Bowser, this Court to the 199 W.Va. 483 legislatively- short-circuit S.E.2d 92 (1996). only imagine One can procedures addressing established issues devastat- ing appellate process effects on the if of modification. this was to Hinerman v. S.E.2d alimony the issue to properly grant already precedent because a of rehabilitative versus (1995). remand consider determined to Hinerman, relied on the circuit court’s failure the issue of factors 194 W.Va. decision, warranted on set forth in permanent alimony a remand majority is mere ease, the domestic unsupported for the first time in Court were to accord majority’s representations. well-established decisions has been [*] reliance unproven allegations appellate [*] evidentiary weight on review the Defendant’s [*] briefs. annihilated by process In made this to Molnar, syllabus point three of Molnar v. Although majority reaches the conclu- (1984). S.E.2d After restraining sion that a mutual was order order, stating that a remand was in wrongly this pursuant issued the circuit court 48-2-15(b)(9) (1996) Court Hinerman referenced the Virginia § need to to West Code develop below the assertion of the abuse, ex-wife’s based on finding the absence of a employment. 194 W.Va. at temporarily such an place order dur- not, however, premise at 76. We pendency did ing the proceedings below remand generally. decision on the issue restraining may order be of alleged ex-wife’s employment. great now, newfound moment to the instant case but Moreover, the statement important Hinerman that it is an enough larger issue in the op- a restraining that I take The issuance of order without arena violence domestic petition supporting a trivializes restraining evidence it. Mutual portunity address filed complaint individual who has practice. very bad but orders are common provided petition such a and has evidence in harmless, and glance, they seem On first support According to the Model thereof. dealing allega- with perhaps even effective Violence, pub- Family Code on Domestic and lan- violence. Whereas the tions of domestic lished National Council of Juvenile 48-2-15(b)(9) Virginia § guage of West Code Family Judges, “A court not shall offending enjoinment party,” “the requires grant protection oppos- order for mutual magistrates issuing mutual all often too ing parties.” at An overview Sec. restraining regard to the evi- orders without chapter outlines of Model Code practice generally That harmful dence. problems: and ineffective. safeguards Mutual undermine the orders requirement first for issuance of contemplated by protection stat- civil order protective is evidence family violence order perpetra- utes. Mutual orders minimize a Although language of abuse. of West exposure to tor’s sanctions for violation of 48-2-15(b)(9) Virginia requires en- Code rarely provide an order. Mutual orders offending party,” all often joining of “the too comprehensive safeguard the vic- relief *14 masters, magistrates, family circuit law and messages tim. diluted and mixed judges issuing restraining orders are mutual po- in unpredictable mutual result orders proper evidentiary a response. police without foundation. en- lice Often refuse to orders, practice restraining This orders. a mutual or- mutual force mutual When violated, well-intentioned, der is law enforcement officers perhaps more while causes way have no to determine who needs be hin- attempts it to solve. It than problems may parties, fur- arrested arrest both and rather than assists the enforcement of ders victimizing real victim. The con- ther may Judicial officers domestic violence laws. for sequences of arrest victims who have they addressing the issue of fami- believe are act, committed no violence or criminal but violence, ly restraining can but mutual orders by a who are bound mutual order are actually endanger, protect, than rather profound; may a victims loss of suffer restraining or- Boilerplate victim. mutual children, good reputation, custody of lose goal principal diminish of a ders also require employment endangered, bur- find order, restraining to provide protec- which is for and densome fees defense counsel one has tion from domestic violence to who unable to make bail. subjected to it. When a law enforce- been commentary on section 310 of the Model at the of domestic ment officer scene violence explains further: Code orders, confu- restraining learns of mutual explicitly prohibits Code Model results, obviously often sion and the officer protection orders. Mu- issuance of mutual by arresting both. resolves dilemma problems process create as tual orders due by This intended our confusion never notice, prior writ- they are without issued Legislature. good application, finding ten cause. not be restraining Mutual orders should law Mutual are difficult for enforce- orders only except upon petition upon a issued enforce, ineffective in ment officers specific finding of abuse the restrained However, preventing further abuse. Virginia prohibits party. West law the issu- preclude not issuance of Code does filing restraining without the ance of orders separate protection restraining orders for sup- petition by a a victim and evidence opposing party each has each where protective or- porting petition: Mutual pro- properly petitions and served filed par- granted not be unless both ders should orders, party has committed tection each petition four ties have a under section filed domestic or violence as defined § of this article and Code, [W. 48-2A-4] Va.Code poses continuing a risk of each other, proven allegations have of abuse a has violence to the otherwise each type preponderance prerequisites W. of the evidence. Va.Code satisfied all for the 48-2A-6(e). sought, and each has order and remedies complied provisions chap- with the of this
ter. (cmt. 310).
Model Code at to See. addressing requests restraining or-
ders, explicit findings courts should make regarding only
fact violent conduct and such supported as are evidence. separate protection
Where orders for
awarded, relief contained each should individually
be tailored to address the risk prevent other, the abusive conduct of the each order should be constructed jeopardize safety
manner so not to
requirements that the evidence demonstrates
exists.
Unjustified restraining mutual orders deni-
grate purpose very of domestic violence
restraining judi- orders. It is vital that the system
cial treat domestic violence as seri- problem,
ous and that we work to create
system responsive more to those who seek
protection. *15 PENNINGTON,
Brenda Executrix Pennington,
Estate of William
Appellant BEAR, D.O.; Regional
Robert S. Bluefield Center, Inc.,
Medical West Non-Profit
Virginia Corporation; Bluefield Health
Systems, Inc., Virgi- a Non-Profit West Corporation;
nia Im- Professional
aging, Inc., Virginia Corporation, a West
Appellees.
No. 23869.
Supreme Appeals Court of Virginia.
West April
Submitted 1997. 9,May
Decided 1997.
Dissenting Opinion of Chief Justice Work
man 14, 1997.
July July
Rehearing Refused