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Friedman v. Smith

Court of Appeals of Virginia

March 20, 2018

NANCY MARCELLETTE FRIEDMAN
v.
MONA SMITH AND LAURA GOLDSTEIN, PERSONAL REPRESENTATIVES OF THE ESTATE OF GERALD JAY FRIEDMAN[1]

         FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK David W. Lannetti, Judge

          James A. Evans (Evans & Bryant, PLC, on brief), for appellant.

          Kristi A. Wooten (Jordan A. Fanney; Wooten Law Group, PLC, on brief), for Gerald Jay Friedman.

          Present: Judges Humphreys, Decker and O'Brien Argued at Norfolk, Virginia

          OPINION

          ROBERT J. HUMPHREYS, JUDGE

         On July 31, 2017, Gerald Jay Friedman ("husband") and Nancy Marcellette Friedman ("wife") were divorced by a decree of divorce from the bond of matrimony entered by the Circuit Court of the City of Norfolk (the "circuit court"). Therein, the circuit court granted husband's cross-complaint for divorce on the grounds of a one-year separation pursuant to Code § 20-91(A)(9)(a) and dismissed wife's complaint for divorce. Additionally, the circuit court bifurcated the divorce proceeding from the issues of spousal support, equitable distribution, and attorney's fees and costs after finding bifurcation to be "clearly necessary" and reserved those matters for future adjudication pursuant to Code § 20-107.3(A). On appeal, wife alleges two assignments of error: (1) that the circuit court erred in granting a decree of divorce without evidence that the parties, or one of them, intended to separate with the intent that the separation be permanent, and (2) that the circuit court erred and abused its discretion in bifurcating the cause. We also asked the parties to address the additional issue of whether this Court had subject matter jurisdiction to consider this appeal given the bifurcation of the divorce from the spousal support, equitable distribution, and attorney's fees and court costs matters not yet determined by the circuit court.

         I. BACKGROUND

         On June 24, 1961, husband and wife married in Elizabeth City, North Carolina. On December 15, 2015, and after fifty-four years of marriage, the parties separated. The separation has remained continuous and uninterrupted since that date.

         On February 12, 2016, wife filed a complaint for divorce ("complaint") on the grounds of cruelty and both actual and constructive desertion. In her complaint, wife alleged that she left the marital residence in December of 2015 and that "[n]o reconciliation appears or is likely probable." Further, wife alleged that husband was of "sound mind, sui juris." In addition to a divorce, wife's complaint sought equitable distribution of the marital property, attorney's fees, court costs, and temporary and permanent spousal support.

         On March 11, 2016, husband filed an answer and cross-complaint seeking divorce ("cross-complaint") on the grounds of adultery and desertion. There, husband agreed that he was of sound mind and that "[t]here [was] no hope of reconciliation." Husband sought spousal support, "exclusive use and occupancy of the former marital domicile[, ]" that wife "be required to return all assets and company interests that she obtained fraudulently to [husband, ]" attorney's fees, court costs, and determination of the "ownership and value of all property pursuant to [Code] § 20-107.3[.]"

         The circuit court heard a plethora of motions over the next year in what is best described as a contentious and protracted dispute between the parties. On July 13, 2017, husband filed a "Motion to Bifurcate Trial and for Entry of a Decree of Divorce" (the "motion to bifurcate") pursuant to Code § 20-107.3(A). Therein, husband asserted that he "formed an intent that the parties' separation be permanent on or about December 15, 2015." And, detailing his motivation for seeking bifurcation, husband then aged ninety, alleged that his "health . . . is such that he may not survive protracted litigation" and that the "conduct of [wife] seems calculated to purposefully and unreasonably delay this matter with the hope that [husband] not survive to see his divorce finalized so that [wife] will benefit financially."

         On July 24, 2017, the circuit court held a hearing on husband's motion to bifurcate. At that hearing, counsel for husband proffered, and wife conceded, that husband was hospitalized for tests and treatment for what the subsequent hearing revealed was an apparent stroke, that he "feared his imminent death, " and also had "borderline competency" issues.

         Following unchallenged factual proffers by counsel for husband regarding husband's medical status, his counsel's expressed concerns regarding husband's competency, argument of counsel, and over wife's objection, the circuit court found that the "clearly necessary" statutory standard for doing so was met and granted "bifurcation of the divorce from the support, equitable distribution, and attorney's fees matters." Further, in its order granting bifurcation, the circuit court stated that it explicitly relied upon "the fact that [wife] did initiate the filing for divorce, that the [husband] is ninety and his health is declining and he has been receiving daily assistance since the start of this instant matter, and that there have been delays by the parties in this instant matter[.]" The circuit court also recognized that husband may be "legally incompetent as of today, " as conceded by husband's counsel, and that husband was hospitalized. As a result, the circuit court also appointed a guardian ad litem for husband.

         On July 31, 2017, the circuit court held a final divorce hearing. There, the circuit court heard testimony from wife, Laura Goldstein who is the parties' youngest daughter, husband's guardian ad litem, and proffers from husband's counsel regarding the details of the parties' separation. Notably, when the circuit court asked wife if "at least one [of the parties] intended to end the marriage" when the parties separated, wife responded, "[n]o." And, when the circuit court stated "I assumed you are speaking for yourself[, ]" wife cryptically responded, "I think he just wanted me to do something-change something, and I was-I was advised not to change it. It was with One Beach Corolla."[2]

         Husband's guardian ad litem testified at the final divorce hearing that he believed that it was in husband's best interest to pursue a divorce. He further testified that he met with husband in the hospital on two separate occasions where husband firmly expressed his desire to proceed with a divorce. According to husband's guardian ad litem, husband wanted to settle his property, "make things equal, " and take care of his daughters. The guardian ad litem acknowledged that husband might have some competency issues but opined that husband understood straightforward and simple questions and clearly expressed "what he wants to have done with his property" and also a "strong desire" to pursue the divorce expeditiously. Wife did not object to the guardian ad litem's testimony and asked questions on cross-examination. When asked if husband indicated any interest in reconciling with wife on cross-examination, husband's guardian ad litem responded, "[n]o."

         After the hearing, on the motion of husband and over the objection of wife, the circuit court granted husband's cross-complaint on the grounds of a one-year separation pursuant to Code § 20-91(A)(9)(a), entered a decree of divorce from the bond of matrimony, and dismissed wife's complaint. In doing so, the circuit court found "[t]hat the parties have lived separate and apart without any cohabitation and without interruption for more than one year, and there is no chance of reconciliation[.]" The circuit court also noted that "[t]his case is bifurcated as the Court has found that it is clearly necessary to divorce the parties and reserve certain issues" for future adjudication. Specifically, the ...


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