Opinion
Docket No. CL16-7907-00/01
01-29-2018
RE: Kesser v. Kesser
Julia E. Keller, Esquire
Emily K. Miller, Esquire
Keller Law Group
575 Lynnhaven Parkway, Suite 240
Virginia Beach, Virginia 23452 Todd M. Fiorella, Esquire
John G. Baker, Esquire
Fraim & Fiorella
150 Boush Street, Suite 601
Norfolk, Virginia 23510 Dear Counsel:
This case was last before the Court on November 30, 2017, for a hearing (the "Hearing") on Plaintiff's Motion in Limine on Judicial Estoppel (the "Motion") asking the Court to preclude Defendant Lawrence Kesser ("Husband") from arguing that Plaintiff Caryn Kesser ("Wife") is bound by her claims in prior pleadings in Civil Action Number CL14-1800 and to award attorney's fees and costs associated with the Motion. After reviewing the evidence, the briefs, and the parties' arguments at the Hearing, the Court took the matter under advisement.
The issues before the Court are (1) whether judicial estoppel applies to Wife's pleadings in the prior case, Civil Action Number CL14-1800, in which the Complaint was dismissed by Order of the Court, and (2) whether Wife is bound by her pleadings therein, as a result. For the reasons stated herein, the Court holds that (1) judicial estoppel does not apply, and (2) as such, Wife is not bound by her pleadings in the prior case as to the date of separation. In addition, the Court takes the issue of attorney's fees and costs under advisement until the conclusion of this case.
BACKGROUND
On February 27, 2014, Wife filed a prior suit for divorce from Husband on the grounds that the parties had lived separate and apart without cohabitation and without interruption for a period in excess of one year. (Compl., Kesser v. Kesser, No. CL14-1800 (Norfolk Cir. Ct. Feb. 27, 2014).) The date of separation alleged in the complaint ("Original Complaint") was February 19, 2013. (Id. at 2.) On March 18, 2014, the Court granted Wife's motion to amend the complaint, in which Wife alleged the same February 19, 2013, date of separation. (Am. Compl. at 2, Kesser v. Kesser, No. CL14-1800 (Norfolk Cir. Ct. Mar. 17, 2014).) On May 6, 2014, Wife filed a second amended complaint ("Second Amended Complaint") in which Wife alleged that husband left the marital home on February 19, 2013, after which the parties attempted to reconcile, and that the intention to separate permanently began on June 1, 2013. (Second Am. Compl., Kesser v. Kesser, No. CL14-1800 (Norfolk Cir. Ct. May 6, 2014).) Also on May 6, 2014, Wife filed a Motion for the Court to affirm the validity of the marital agreement entered into by the parties on May 2, 2013. (Mot., Kesser v. Kesser, No. CL14-1800 (Norfolk Cir. Ct. May 6, 2014).) The Court heard argument and evidence in a multi-day hearing, in which Wife testified to the timeline surrounding the parties' separation and that her intention to separate from her husband permanently did not occur until November or December 2013. (See Tr. of Hrg. at 44-221, Kesser v. Kesser, No. CL14-1800 (Norfolk Cir. Ct. June 30, 2016); Kesser v. Kesser, 2016 Va. App. LEXIS 258, at *3 (Oct. 11, 2016).) Wife also testified as to her lack of a clear understanding as to the definition of separation and what was stated in the Original Complaint. (Id. at 130-37.) On December 4, 2015, the Court granted Wife's motion and held that the marital agreement was enforceable and was not invalid due to unconscionability, fraud, or duress. Kesser v. Kesser, 92 Va. Cir. 209, 223 (Norfolk 2015).
Thereafter, husband filed a motion for reconsideration on January 21, 2016. (Mot. to Reconsider, Kesser v. Kesser, No. CL14-1800 (Norfolk Cir. Ct. Jan. 21, 2016).) The Court granted Husband's motion for reconsideration in a letter opinion dated April 11, 2016, on the basis that "Wife's testimony establishe[d] that neither party possessed the required intent to permanently discontinue the marital relationship at the beginning of their physical separation on February 19, 2013," and "[a]ccording to Wife's testimony, neither party formed such an intent until approximately three months before she commenced this action." Kesser v. Kesser, No. CL14-1800, at 4 (Norfolk Cir. Ct. Apr. 11, 2016). In accordance with its ruling, the Court clarified that "judicial estoppel does not bind Wife to the February 19, 2013 separation date alleged in the Complaint." (Id. at 5.) In accordance with its ruling, the Court dismissed Wife's complaint for divorce. (Id.)
Husband filed a notice of appeal on May 31, 2016. Kesser, 2016 Va. App. LEXIS 258, at *4. In response, Wife filed a motion to dismiss Husband's appeal for lack of standing. Id. at *4, 7. The Court of Appeals granted Wife's motion concluding that because the circuit court granted the husband's motion, he was the prevailing party, rather than the aggrieved party, and as such, he lacked standing to appeal. Id. at *7.
On July 25, 2016, wife filed a new initial complaint for divorce in the instant case in which she alleged that Husband left the marital residence on February 19, 2013, and the intent to remain separate permanently occurred on or about December 2, 2013.
POSITION OF THE PARTIES
I. Wife's Position
Wife argues that judicial estoppel is inappropriate for two main reasons: (1) the instant matter is a new case, with the prior case having been dismissed, and Wife cannot be bound by the prior void pleadings, and (2) the proceedings do not satisfy the elements required for application of judicial estoppel. (Pl.'s Br. Supp. Mot. in Limine Judicial Estoppel 5.) In addressing the elements of judicial estoppel, Wife asserts that the parties in this suit are the same as the prior case. (Id. at 3.) She further claims that her assertions are not necessarily inconsistent considering her explanation throughout that the relationship was fluid, and she did not understand the legal definition and significance of the separation date in the prior proceeding. (Id.) Additionally, Wife contends that she was not successful in persuading the Court to accept her earlier position, and there is no evidence that the Court relied on Wife's prior pleading in rendering its ruling dismissing the Complaint. (Id. at 3-4.) Lastly, Wife argues that Husband has been on notice since the Complaint was filed in July 2016, that she was pleading a separation date of December 2, 2013, and thus there is no risk of the change affecting Husband's ability to prepare for trial. (Id. at 4.)
II. Husband's Position
Husband argues that Wife should be "judicially estopped from entering evidence contrary to the facts alleged in her pleadings in the prior action." (Def.'s Br. Supp. Judicial Estoppel 11.) Specifically, Husband contends that Wife should be bound to the date of separation alleged in the original and amended complaints—namely, February 19, 2013. (Id. at 11-14.) In support, Husband states that the allegations relating to the date of separation in the Amended Complaint were a necessary part of the original pleadings and are inconsistent with Wife's current testimony. (Id. at 13.)
ANALYSIS
"[J]udicial estoppel forbids parties from 'assuming successive positions in the course of a suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory.'" Lofton Ridge, LLC v. Norfolk S. By., 268 Va. 377, 380-81, 601 S.E.2d 648, 650 (2004) (quoting Burch v. Grace St. Bldg. Corp., 168 Va. 329, 340, 191 S.E. 672, 677 (1937); Rohanna v. Vazzana, 196 Va. 549, 553, 84 S.E.2d 440, 442 (1954)). In analyzing whether judicial estoppel is applicable, the Supreme Court of Virginia has inquired whether four main factors are present: (1) "the party sought to be estopped [is] seeking to adopt a position that is inconsistent with a stance taken in a prior litigation;" (2) "the position sought to be estopped must be one of fact rather than law or legal theory;" (3) the parties are the same; and (4) "the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled." Bentley Funding Grp., L.L.C. v. SK&R Grp., L.L.C., 269 Va. 315, 326-27, 609 S.E.2d 49, 54-55 (2005) (first quoting Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996); then quoting New Hampshire v. Maine, 532 U.S. 742, 750-51 (2001)).
In Bentley Funding, the Virginia Supreme Court acknowledged at least one additional element of judicial estoppel: "whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." 269 Va. at 327 n.7, 609 S.E.2d at 54 n.7 (quoting New Hampshire, 532 U.S. at 751). In that case, however, the Court found that "[a]n analysis of this element [was] not necessary to [the] resolution of [the] case, and [it] express[ed] no opinion on the necessity of this factor in application of judicial estoppel in Virginia." Id.
Two of the foregoing inquiries are clearly met in the instant case. First, the position to be estopped—namely, the date of the parties' marital separation—is an issue of fact rather than of law. Second, Husband and Wife are the same parties involved in the prior case at issue. As such, the first two factors of the judicial estoppel claim are satisfied in this case.
In analyzing the next element, the Court notes that, viewed generally, the fact that Wife alleged a separation date of February 19, 2013, in the Original Complaint in the prior proceeding, and has subsequently claimed a later date of separation in the instant litigation, appears to be clearly inconsistent. The Court finds, however, that when reviewed in context, the statements are not inconsistent. The evidence in the previous case provided that, although the date alleged in the Original Complaint was the date the parties physically separated, Wife's testimony was that the intention to permanently discontinue the marital relationship was not formed until only three months before the prior suit was filed. Wife's testimony also indicated that she was uncertain as to what constituted legal definition of marital separation for purposes of divorce. As such, the Court in the previous case dismissed the suit for lack of adequate grounds for divorce due to the fact that the parties had not yet been separated for the requisite one-year period. Thus, in this context, the Court finds that Wife has not been inconsistent with her recitation of the facts. Rather, she has maintained that the parties physically separated on February 19, 2013, and they continued to attempt to reconcile until approximately three months before the Original Complaint was filed. Therefore, a claim of inconsistency between the pleadings fails on this inquiry.
In addition, on the last required element of judicial estoppel, the Court in the prior proceeding did not accept the inconsistent position. In fact, the Court's rejection of the February separation date contained in the Original Complaint is the reason the Court dismissed the suit. Accordingly, the judicial estoppel claim does not withstand the requirement that the party sought to be estopped must have succeeded in persuading the court in the previous proceeding to accept the party's earlier position.
Lastly, although the court in Bentley deemed it unnecessary to analyze the final element involving unfair advantage or unfair detriment to the parties, the Court finds that this factor weighs against application of judicial estoppel. The Complaint in the current suit was filed on July 25, 2016, in which Wife alleges the parties separated on or about December 2, 2013. Given that it has now been more than eighteen months since that Complaint was filed, Husband is deemed to have had sufficient notice such that Wife is not at an unfair advantage, and Husband does not face an unfair detriment. This is furthered by the fact that the Court in the prior proceeding explicitly opined that Wife was not bound to the February 19, 2013, separation date. As such, although analysis of this factor is not necessary in all cases according to the Virginia Supreme Court, the Court finds that this factor also weighs against judicial estoppel.
Based on the foregoing analysis, the Court concludes that Wife was not inconsistent in her positions on the date of separation. Additionally, even if the court were to find, arguendo, that she was inconsistent on an issue of fact, the Court did not accept her inconsistent position in the prior suit. As such, the Court finds that judicial estoppel does not apply to Wife's claims regarding the date of separation, and she is not bound by her previous pleadings as to the date of separation.
CONCLUSION
For the reasons stated herein, the Court GRANTS Plaintiff's Motion in Limine on Judicial Estoppel. The Court directs counsel for the plaintiff to prepare and circulate an Order consistent with the ruling in this Opinion and submit it to the Court for entry within fourteen (14) days.
Sincerely,
/s/
Michelle J. Atkins
Judge MJA/kml