July 2015 Third Example Ten-point Answers to Virginia Essay Questions
July 2015 - QUESTION 5 – VIRGINIA BAR EXAMINATION
Jack and Diane married in 1982 and resided in Lebanon, Virginia. In late 2013, Jack began having an affair with another woman and eventually left Diane and moved in with the other woman. In 2014, Jack decided to file for divorce from Diane. To avoid attorney's fees, Jack turned to a "do-it-yourself" divorce Internet website, where he obtained forms for a "Complaint for Divorce" and a "Summons." In a blank space in the form Complaint in which the "grounds of divorce" were to be stated, Jack typed, "I wish to divorce Diane because the thrill of our marriage is gone."
After completing the forms, Jack filed the documents with the local circuit court clerk and delivered file-marked copies of the summons and complaint to the sheriff's office to be served on Diane. The deputy sheriff serving the documents went to Diane's home in Lebanon; however, Diane was not there, and her seventeen-year-old daughter, who also lived in Diane's home, answered the door. The sheriff handed the documents to Diane's daughter, explained their importance, and told her to give them to her mother when she got home. When Diane got home, her daughter gave her the documents, and Diane promptly retained an attorney to represent her in the divorce proceedings.
Diane's attorney moved to quash the service of process on her due to defective service. The judge denied the motion to quash. Immediately thereafter, Diane's attorney filed a demurrer requesting the court to dismiss Jack's Complaint on the ground that the Complaint failed to state a proper ground for divorce and therefore failed to state a claim. The judge overruled the demurrer. Without objection from Diane's attorney, a hearing ensued in which Jack was granted a divorce from Diane. At the same hearing, the marital assets of Jack and Diane were divided between them, and Diane was granted sole custody of their children. A final order memorializing the judge's decisions was entered on December 1, 2014.
In the spring of 2015, Diane found out that Jack had lied about his financial status when he testified at the divorce hearing and that he had hidden marital funds in several offshore bank accounts. On April 1, 2015, Diane's attorney filed with the court a request for leave to file a bill of review. In the request, Diane's attorney stated the sole ground for the request was that, after entry of the court's final order, Diane had for the first time discovered new evidence, i.e., the hidden offshore accounts, which were substantial and would have altered the judge's division of property. The judge denied the request for leave, ruling that it had been untimely filed, and, in addition, that the grounds asserted for a bill of review were inadequate.
|(a)||Did the judge err by denying Diane's motion to quash service? Explain fully.|
|(b)||Did the judge err by overruling Diane's demurrer? Explain fully.|
|(c)||Did the judge err in her ruling concerning Diane's bill of review? Explain fully.|
July 2015 - QUESTION 5 – EXAMPLE ANSWER #1
(a) The judge did not err by denying Diane's motion to quash service. In Virginia, service on a natural person must be made by either the sheriff or a disinterested adult over the age of 18. To be effective, service must include both a summons and a complaint. The complaint is first filed with the clerk of the court, who will prepare a summons, which is then attached to the complaint. Both the summons and complaint must be served on the defendant for service to be effective. Service on natural persons may be accomplished in several ways. In descending order of priority, these methods are: 1) In person; 2) By delivering to a family member over the age of 16 at the defendant's usual place of abode and explaining the significance of the service; and 3) By posting on the front door of the defendant's usual place of abode and mailing a copy of the complaint and summons to the defendant's address. If service is not proper, but nonetheless the defendant actually receives the summons and complaint in a timely manner, then the curative statute will cure the defective service and service will be deemed proper. Here, the sheriff served the summons and complaint, at Diane's home, to Diane's 17-year-old daughter, who lived with Diane. The sheriff also "explained [the] importance" of the documents to Diane's daughter when he served them. This method of service was proper under Virginia law. Even if service was not proper, however, the curative statute would have taken effect, since Diane actually received the summons and complaint on the day they were served. Because service on Diane was proper, the judge properly denied Diane's motion to quash service of process.
(b) The judge erred by overruling Diane's demurrer because Jack's complaint failed to state a proper ground for divorce in Virginia. A demurrer challenges the sufficiency of an aggressive pleading. For the purposes of the demurrer, all well-pleaded facts in the complaint are admitted, but the demurrer alleges that even if those facts are true, they do not allege a sufficient basis for a legal claim. Even if a demurrer is sustained, a judge will likely grant the plaintiff leave to amend the complaint to cure the grounds for the demurrer. Here, even if all of the facts in Jack's complaint are true, they fail to allege a legal justification for divorce. In Virginia, a divorce may be granted on fault grounds, including adultery, buggery, and sodomy, cruelty, or desertion. Additionally, Virginia recognizes a no-fault divorce, which requires that the parties live separate and apart for one year. If the parties have no minor children and a valid separation agreement, the one-year waiting period is reduced to six months. In a no-fault divorce, the intent to end the marriage must be present at the time the one-year separation period begins. Here, Jack's complaint states as the grounds for divorce that "the thrill of our marriage is gone." While lamentable, losing the thrill of marriage is not a valid ground for divorce in Virginia. Accordingly, Jack's complaint fails to state a valid ground for divorce, and therefore the judge should have sustained Diane's demurrer.
It should be noted that even if the judge sustained Diane's demurrer, Jack would likely be granted leave to amend his complaint, and it is likely that sufficient grounds for divorce from Diane do exist. Although the facts are unclear, it is likely that Jack and Diane have lived separate and apart for at least one year, with the intent to end the marriage. Jack separated from Diane in "late 2013" and the judge's final order in the case was entered on December 1, 2014. It is therefore probable that Jack and Diane have met the requirements for a no-fault divorce. Additionally, Diane may be able to seek a divorce from Jack regardless of the time of separation, based on Jack's adulterous affair. In Virginia, there is no waiting period to file a divorce based on the other spouse's adultery. Diane would therefore be able to file an immediate complaint for divorce based on Jack's adultery.
Regardless, Jack's complaint fails to state a valid ground for divorce in Virginia and, accordingly, it was error for the judge to deny Diane's demurrer.
(c) The judge likely erred in denying Diane's bill of review because the motion alleges sufficient grounds and was timely filed. A bill of review is a bill in equity that requests a judge to reopen a case in which a final order has been entered. Normally, Rule 1:1 removes a case from a court's jurisdiction 21 days after the entry of a final order. However, a bill of review may be filed within six months of the entry of a final order. Where a party seeks a bill of review based on newly discovered evidence, the party must show: 1) That the evidence was discovered after the conclusion of the trial; 2) That the evidence would likely produce a different result; 3) That the evidence is not cumulative, corroborative, or repetitive; 4) That the evidence could not have been discovered before trial through the use of reasonable diligence; and 5) That the evidence can be produced at trial. Here, Diane's bill of review was filed on April 1, 2015, four months after the entry of the final order on December 1, 2014. Because the motion was filed within six months of the entry of the final order, the motion was timely filed. Additionally, the motion alleges sufficient grounds to justify granting the bill of review. The evidence of Jack's offshore accounts was discovered in the "spring of 2015," after the conclusion of trial on December 1, 2014. Evidence of Jack's offshore bank accounts would likely produce a different result, specifically in regard to the distribution of marital property, in which the financial status of each party is taken into account. The evidence of the bank accounts is not cumulative, corroborative, or repetitive, as here are no facts suggesting that any evidence of Jack's offshore accounts was presented at trial. The evidence likely could not have been discovered before trial with reasonable diligence, because Jack lied about their existence, both before the trial and while testifying. Finally, it can be assumed that evidence of the bank accounts can be produced at trial, as there are no facts to suggest otherwise. Therefore, the alleged grounds for the bill of review are adequate. Because the motion for a bill of review was timely filed and alleges adequate grounds to support a rehearing based on newly discovered evidence, the judge erred in her ruling concerning Diane's bill of review.
July 2015 - QUESTION 5 – EXAMPLE ANSWER #2
a) The judge did not err in denying Diane's motion quash service. Although it is not clear from the facts whether the deputy put enough effort into serving Diane before resorting to substituted service, Virginia's curing statute is applicable and Diane was able to receive the process and respond within the 21 day period to respond.
Unlike Federal Court, Virginia's options for service of process are not simple alternatives, rather they are in descending order and only if the preferred method of service fails may process server result to the next option. The order is 1) personal service, followed by 2) substituted service by leaving the process at the defendant's domicile with a family member over the age of 16 who also resides at the domicile, and explaning fully the contents of the process and making sure the individual understands the nature of the process, 3) leaving a copy of the process at the door of the domicile and sending a notice of impending default at least 10 days before the defendant would take a default judgment, explaining the defendant's rights and what the defendant must do to respond in order not to take a default judgment.
Here, Jack had a sheriff's deputy deliver a copy of the summons and complaint to Diane, which was proper. The deputy did not serve process on Diane personally, as she was not home. One might argue that more effort should have made to serve Diane personally, since this is the preferred method of service in Virginia. However, the substituted service was proper. The deputy left a copy of the service with Diane's 17-year old daughter at Diane's domicile, whom resided with her mother at the house. Further, the deputy appears to have fully explained the content of the documents to the daughter. Thus, substituted service was proper.
In any case, Diane did receive the process and was able to respond within the applicable time limits. Thus, Virginia's curing statute saves the service if the substituted service was the improper choice of service.
b) The judge erred in overruling Diane's demurrer because Jack failed to assert a proper ground for divorce, and thus, his complaint fails on its face and is demurrable.
In Virginia, divorce a vinculo, which appears to be the applicable divorce here must either assert a fault or must comply with the requirements for no-fault divorce. Faults include adultery, abandonment (actual and contructive), and cruelty. "Thrill of marriage" is not an applicable fault. No-fault divorce, alternatively, requires continous separation and no co-habitation for a period of at least one year if there are childern (there are children here). It does not appear from the facts that Jack lived apart from Diane for the applicable period, and furthermore, he did not assert nofault divorce in the complaint. Thus, the complaint is demurrable.
c) The judge likely erred in her ruling concerning the request for a bill of review. A bill of review is an equitable remedy which allows review of a court decision by a party within six months of the final judgment based on some facts that could not have been discovered when the action was decided and would materially alter the decision. This trumps the usual 21-day breast of the court rule in Virginia courts (when after 21 days of a final judgment courts are divested of their jurisdiction).
Here, Jack lied about his financial status at the court proceeding, thus Diane could not have used this information in the divorce proceeding and large, extra amounts of money could alter the decision regarding the division of property. Diane appears to have filed the bil within the six month time frame. Thus, her request for a bill of review should not have been denied.