February 2019 Third Example Ten-point Answers to Virginia Essay Questions
February 2019 - QUESTION 9 – VIRGINIA BAR EXAMINATION
In 2000, Adele and Ronnie Delk, both age 28, married and purchased a home in Mechanicsville, Virginia, for $400,000, making a $100,000 down payment and financing the balance with their local credit union. Ronnie began a law practice immediately after they were married, and Adele practiced medicine as a family physician until the birth of their son, whom they affectionately called Peanut, in 2010. Ronnie’s law practice grew, and all of his income went toward the payment of household expenses, including the mortgage and maintenance of their home. Ronnie and Adele agreed that Adele would stay at home to raise Peanut at least until he entered grade school.
In 2012, Adele discovered that Ronnie had been having numerous adulterous relationships. Adele filed suit for divorce and demanded primary physical custody of Peanut, spousal support and equitable distribution of the marital estate. Ronnie’s Answer to the Complaint denied the alleged adultery and sought liberal visitation, joint legal custody and equitable distribution of the marital estate.
On the eve of an ore tenus hearing to resolve all issues, Adele and Ronnie entered into a written settlement agreement with the assistance of their respective legal counsel. The settlement agreement divided the marital estate and provided that, in consideration of Ronnie’s conveying to Adele his interest in the marital home, which was then worth $500,000, Adele waived all claims to spousal support and waived all claims for future child support. They agreed to joint legal custody and that Ronnie would have liberal visitation rights with Peanut of two three-day weekends per month. The trial court entered a final decree of divorce in December 2013. The decree affirmed, ratified and incorporated by reference the settlement agreement.
In 2016, when Peanut entered kindergarten, Adele returned to her medical practice because she had free time to devote to work and because she substantially had depleted the equity she had received in the marital residence. Adele asked Ronnie for financial support, but Ronnie said that he already paid her in full for all future spousal and child support. Ronnie offered to keep Peanut at least half of each month as a means to help Adele financially, but Adele refused.
Adele went back to work full-time, which frequently involved working late and “on call” hours and asking Ronnie to pick Peanut up from day care and take care of him until Adele got off work. One evening, on her way home, Adele was struck broadside by a tractor-trailer. Adele sustained severe physical injuries requiring intensive physical therapy and vocational rehabilitation. She will require convalescent care for at least eight months and will not have any income during that period.
Adele has filed a motion for spousal and child support. Ronnie opposes Adele’s motion on the ground that the settlement agreement precludes her demand for such support. He has also filed a motion to amend the terms of shared custody reflected in the settlement agreement so that Peanut would be with Adele and him an equal amount of time. Adele opposes Ronnie’s motion on the grounds that the issue of custody was already determined in the settlement agreement and that, in any event, her parents are available to assist her with Peanut while she recovers.
|(a)||Should the Court award Adele spousal support? Explain fully.|
|(b)||Should the Court require Ronnie to pay child support? Explain fully.|
|(c)||What factors should the Court consider with respect to Ronnie’s motion to amend the terms of shared custody in the settlement agreement, and how is the Court likely to rule? Explain fully.|
February 2018 - QUESTION 9 – EXAMPLE ANSWER #1
(a) The Court should not award Adele spousal support. In regard to the settlement agreement, the parties contracted for their respective benefits and detriments, and the Court should uphold this contract. Where parties competently enter into a settlement agreement and there is no indication of unconscionability or fraud, Courts will respect the parties' rights to be the masters of their own bargain and uphold the contract. Adele relinquished her rights to spousal support in exchange for Ronnie's interests in the house. If Adele had not relinquished her rights to spousal support, the court could hear her case based on her changed circumstances from the accident, but since she waived them in the contract, the court will uphold the contract.
(b)Yes, the Court should require Ronnie to pay child support. A parent cannot contract away his duty to pay child support for the wellbeing of his child. Even though Adele and Ronnie included a term in their settlement agreement that Ronnie would no longer have to pay child support, this term is void under Virginia law, and thus will be stricken from the contract under the blue-line rule (parts of a contract that are invalid may be stricken from the contract if there is a clear means to do so while leaving the rest of the contract intact). Ronnie must pay child support for Peanut until he reaches 18 years of age, or else the earlier of his reaching 19 or graduating from high school.
(c) The controlling consideration in child custody determinations is the best interests of the child. Even though Ronnie and Adele contracted for Peanut's custody, the court has the authority to alter these arrangements at any time if there is cause to believe that the current arrangement is not in the child's best interest. In the facts at hand, Adele will not be able to care for Peanut in any substantial way for the next eight months as she requires convalescent care, and financially caring for Peanut may be burdensome to her, even with additional child support, given her inability to incur income during her recovery. Thus, Adele is not properly situated to care for Peanut, on her own, over the next eight months. Her parents may be able to help her with Peanut, but the Court must also consider whether staying with Adele's parents would be in Peanut's best interest. Additionally, Ronnie maintains joint legal custody over Peanut, and as such, he retains joint decision-making authority as to Peanut. If Ronnie does not consent to Peanut staying with Adele's parents for eight months, then Adele may not force this arrangement unilaterally.
However, Adele's unfortunate accident is not grounds in itself to overturn the custody determinations in the settlement agreement. The Court should first consider the best interests of the child, and then consider the terms the parties contracted for previously. If the Court finds that staying with Adele's parents is not in Peanut's best interests, or if Ronnie opposes Peanut staying with Adele's parents over the next eight months, the Court should grant Ronnie custody of Peanut over the next eight months, with visitation rights for Adele during her period of recovery, as she has not done anything to merit severing her access to her child. However, once Adele is recovered, the Court should re-instigate the custody terms the parents reached in the settlement agreement, absent any indication that this arrangement is not in Peanut's best interest.
February 2019 - QUESTION 9 – EXAMPLE ANSWER #2
The court should not award Adele spousal support. Unlike child support, which is discussed in (b) below, once parties agree to spousal support terms, a court will not generally modify that decision.
Here, the parties decided in their written settlement agreement, which was affirmed and ratified by the court, that no spousal support would be given to Adele.
Because this agreement essentially waived Adele’s right to any spousal support, a Virginia court will not contradict that agreement to later award spousal support, even when changed circumstances exist.
A Virginia court is unlikely to interfere with the right of contract. Here, in exchange for Ronnie conveying his interest in the marital home to Adele, which was an interest worth $500,000, Adele agreed to waive all claims to spousal support.
Thus, because this was a bargained for exchange, and courts in Virginia do not disturb spousal support agreements in settlement agreements, the court should not award Adele spousal support.
The court should require Ronnie to pay child support.
Unlike agreements regarding spousal support in a settlement agreement, Virginia courts will almost always modify or require child support based on changed circumstances and the best interests of the child.
Here, the settlement agreement stated that Adele would not seek future child support payments. This too was a bargained for exchange in which Ronnie conveyed his interest in the marital home to Adele.
However, while courts deem spousal support permanently waived if waived in the settlement agreement or if not sought in divorce proceedings, courts do not treat child support the same way. Courts will freely modify child support arrangements due to changed circumstances regarding the child or the parents,.
Here, Adele had gone back to work full time to enable her to support herself and her son. However, the accident causing her to sustain severe injuries and extensive care for at least eight months is a changed circumstance. Because of the accident, Adele will be unable to make money to survive for eight months.
Meanwhile, there are no facts offered to show that Ronnie’s law practice is not doing well enough where it would be possible for him to pay child support. Further, if and when Adele is able to return to work, the court could again consider the changed financial circumstances of Adele to modify or completely get rid of the child support arrangement.
Courts dealing with domestic relations, and specifically with children, tend to focus on the best interests of the child. Because, at this time, Adele is the parent with primary custody, the best interests of the child require some form of child support payments to Adele in order for Peanut’s standard of living to remain the same as it has been since the divorce, and as it was while his parents were married.
Thus, because courts will freely modify child support due to changed circumstances, and because doing so in this case would be in the best interests of the child, the court should require Ronnie to pay child support.
Similar to determinations surrounding child support, a court considering amendments to the terms of shared custory in a settlement agreement will consider both changed circumstances and the best interests of the child, plus additional factors discussed below.
The first factor to be considered is changed circumstances in regard to the child or the parent since the making of the settlement agreement. Here, Adele has been involved in a serious accident, and there are some doubts as to whether she is capable of taking care of a child, especially a six year old. This also goes to the factor of the mental and physical health of a parent, which the court will consider. For example, if a parent has mobility issues, a court will often place a young child with the other parent due to the hyper nature of young children and the difficulty of the immobile parent in keeping up with the child.
Other factors that a court will consider in changing child custody arrangements include the relationship that the child has with each parent, the standard of living that each parent can offer the child, the earning capacity of each parent, the current income of each parent, and finally the best interests of the child.
Here, there is no evidence to show any issues with the relationship between Peanut and his father. Further, Ronnie is in a better position at the moment to offer the best living status as Peanut’s mother recovers from her accident. Ronnie also has more funds to use to support the child, and has a higher earning capacity than Adele because Adele cannot work for the foreseeable future.
Finally, the best interests of the child seem to point to a modification of child custody. If the current child custody agreement were to remain in force, Peanut’s interests would suffer because his mother could not properly take care of him for long periods of time. Further, allowing the healthier parent to have custody of the child allows the child to garner more attention than he would if he was living with the sick parent for most of the time.
Another factor to consider is the fact that the child custody modification is not completely taking Peanut away from Adele, but simply giving each parent equal custody over Peanut. Adele may be in a position to take care of Peanut for half the time, but it definitely does not appear that she can take care of him to the extent that she has been.
Thus, allowing Ronnie custody for half the time is certainly in the best interests of Peanut. The court should rule in favor of the modification of the shared custody terms on the basis of changed circumstances and the best interests of the child.