Complaint- Virginia (1)

XXX:IN THE CIRCUIT COURT OF XXXX COUNTY
XXX,                                                Plaintiff 

vs.

XXX,

                                              Defendant 

 CASE NO. 

COMPLAINT

  1. Plaintiff S XXX (hereinafter “Plaintiff”), represented by XXXXXXXXXX, brings this complaint against Defendant INGE XXXX (hereinafter “Defendant”) and alleges as follows:

NATURE OF ACTION

  1. Plaintiff seeks a judgment from this honorable court that Defendant breached the Marital Agreement (hereinafter the “Agreement”) entered between Plaintiff and Defendant. 
  2. Said Agreement contained terms that waived all causes of action and required all parties to hold each other harmless from liability. 
  3. Defendant the acts are alleged herein, which violated the aforementioned terms, to the detriment of Plaintiff.  
  4. Plaintiff also prays for a Rule to Show Cause against Defendant. 

PARTIES

  1. Plaintiff XXX is a retired member of the Armed Forces of the United States, no longer serving on active duty with the United States Air Force. Plaintiff’s current residence is 10933 Brewer House Road, N Bethesda, Maryland 20852.
  2. Defendant XXXX is not currently a member of the Armed Forces of the United States serving on active duty. Defendant’s current residence is 805 SW Henderson Street, Seattle, Washington 98106 .
  3. Plaintiff and Defendant (hereinafter “Parties”) were married on August 16, 2011 in Washington D.C. 
  4. Parties got divorced on or about XXX, and a Divorce Order was entered on the self-same date by this honorable court (EXHIBIT 1).

JURISDICTION AND VENUE

  1. This Court has subject matter jurisdiction pursuant to Va. Code § 17.1-513 and §8.01-274.1. 
  2. Venue is proper in this judicial district pursuant to Va. Code § 8.01-262 because the Agreement was executed in this County. The Divorce Order was also entered in this honorable court (EXHIBIT 2). 

FACTUAL BACKGROUND

  1. Parties were separated on or about XXX.
  2. Parties executed a Marital Agreement on or about XXX (EXHIBIT 3), whereby the Parties settled and determined all questions of property and support and other rights existing between them as a result of their matrimonial relation.
  3. On or about XXXX, the Agreement was affirmed, ratified, and incorporated into the Order of the Court (EXHIBIT 4). 

15 Parties got divorced on or about XXX (EXHIBIT 5). 

  1. On or about XXX, Defendant sued Plaintiff in the United States District Court for the Western District of XXX. On or about XXXX, Defendant filed an amended Complaint at the self-same Court.  
  2. Court dismissed Plaintiff’s res judicata defense and Defendant eventually won part of the case (EXHIBIT 6). 

CAUSES OF ACTION

COUNT 1

BREACH OF CONTRACT

  1. Plaintiff re-allege the facts in Paragraphs 1-18 and incorporate the same herein by reference as if set forth in full.
  2. In order to prove a breach of contract claim, a Plaintiff must demonstrate that there exists a contract imposing a duty on the Defendant, and that the Defendant failed to fully perform that duty; the Plaintiff must also prove that the amount of damages claimed is necessary to place the Plaintiff in the position it would have occupied had the duty been fulfilled. Restatement (Second) of Contracts §235(b).
  3. Marital agreements, or agreements made by a couple who is already married, are determined using the same criteria as those which apply to premarital agreements (VA Code §20-155) which, in turn, are enforceable if otherwise valid as a contract. (VA Code §20-154). It follows; Marital agreements are upheld and interpreted by normal contract law provisions. See Pysell v. Keck, 263 Va. 457, 559 S.E.2d 677 (Va., 2002).
  4. Marital agreements are subject to the same formalities as those of Pre-nuptial Agreements. In that regard, Plaintiff avers that there was a valid contract between Plaintiff and Defendant. Notably, the Agreement was in writing and was signed by both Parties, per Va. Code § 20-149. The Agreement also contained, inter alia, rights and obligations of both Parties under the Agreement, per Va. Code § 20-150. Besides, on or about XXX, the Court affirmed, ratified, and incorporated the Agreement into the Order of the Court. 

Particulars of Breach

  1. Defendant breached Section 21 of the Marital Agreement. Section 21 of the Agreement stated that:

WAIVER OF CAUSES OF ACTION

Each party hereby WAIVES and FORGIVES any claim or cause of action which each may presently have against the other by any reason, and each hereby agrees that the consideration set forth herein includes full satisfaction for any such claim, except for any cause of action for divorce and except for any claim based on the provisions of this agreement.

  1. Defendant breached this term in the following manner: Defendant’s initial complaint (EXHIBIT 7) and amended complaint (EXHIBIT 8) both claim damages prior to the Agreement being signed. Notably, the Agreement was entered on or about August 25, 2015 and the two Complaints were filed on or about June 9, 2017, and August 7, 2018, respectively. In the Complaints Defendant sued Plaintiff for I-864 support from day 1 of the Parties’ marriage. Additionally, the Defendant alleged emotional abuse which was also claimed during the Parties’ marriage and prior to signing the Agreement which the federal court and jury found no evidence or proof against the plaintiff and found him innocent of any wrong doing. Additionally, Defendant declared in Federal Court that she received 26 hours of intensive legal counsel exclusively regarding the I-864 (EXHIBIT 9), on the days prior to signing the Marital Agreement. Therefore, Defendant clearly knew she had a present claim but decided to hold it in her pocket for another 2 years. Defendant files these claims in contravention of the said provision which forbids her from instituting any claim or cause of action subject to the exceptions therein.  
  2. Defendant also breached Section 27 of the Marital Agreement. Section 27 of the Agreement stated that:

HOLD HARMLESS FROM LIABILITY

Each party hereto shall hold the other harmless from any and all liability of every kind on his or her specific obligations under the agreement and shall indemnify the other for any expense he or she may necessarily incur in connection therewith.

  1. Defendant breached this term in the following manner: Defendant knew she was waiving her rights to sue and as such agreed to hold Plaintiff harmless for ANY and ALL LIABILITY of EVERY kind. However, in contravention of the said provision, Defendant went ahead to institute the said Federal claims against Plaintiff. 
  2. Plaintiff admits that indeed, the contract (I-864) Under Section 213A of the Immigration and Nationality Act, INA, still existed between Plaintiff Scott A. Anderson and the United States of America, with Defendant being the third-party beneficiary. However, Defendant Inge Theodora Anderson waived her right to sue. Per the Federal Register, “if the sponsored immigrant is an adult, he or she probably can, in a divorce settlement, surrender his or her right to sue the sponsor to enforce an affidavit of support.” Federal Register / Vol. 71, No. 119 / Wednesday, June 21, 2006 / Rules and Regulations., page 35740. (Emphasis added). Accordingly, Defendant knowingly and willfully executed the Matrimonial Agreement with the intent to waive the I-864. Per page 3 of EXHIBIT 9 “Motion to Retax” Defendant filed under perjury with the 9th Circuit asking for attorney fees of $7,830 for the exclusive I-864 counsel provided, which is approximately 26 hours of legal counsel. This clearly shows that the I-864 was the intent of the Marital Agreement. Defendant’s counsel went right up to the day of signing the Marital Agreement. Additionally, when Defendant filed her complaint for divorce, she stated I-864 and abuse claims, but in the end; the court ruled on Plaintiff’s behalf and the Marital Agreement was entered into the Parties’ divorce. Defendant received and accepted financial payments paid to her, support for citizenship, life insurance policy and other numerous benefits through the Parties’ Marital Agreement. Therefore, it is exceptionally clear that Defendant waived her rights to sue or hold Plaintiff accountable for the I-864. 
  3. Defendant included the I-864 claim in her divorce action, case number CL2016-690.  Defendant also included the allegations of negligence, abuse and domestic violence claims in the said divorce complaint. Both of the claims involve allegations of conduct that took place during the Parties’ marriage. Indeed, Virginia is among those few remaining States where fault is potentially involved in every aspect of a divorce case. See Va. Code § 20-91 (grounds for divorce from bond of matrimony). The said provision lists the grounds for divorce as: 
  • 20-91. Grounds for divorce from bond of matrimony; …
  1. A divorce from the bond of matrimony may be decreed:

(1) For adultery; or for sodomy or buggery committed outside the marriage;

…

(6) Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; …

  1. Virginia law recognizes that a litigant must unite every joinable claim that she has against a particular defendant in one proceeding or risk the preclusion of her other claims. This position was echoed in Miller v. Smith, 109 Va. 651, 655, 64 S.E. 956, 957 (1909) where the court held that, “Every litigant should have opportunity to present whatever grievance he may have to a court of competent jurisdiction; but having enjoyed that opportunity and having failed to avail himself of it, he must accept the consequences.” Thus, the “effect of a final decree is not only to conclude the parties as to every question actually raised and decided, but as to every claim which properly belonged to the subject of litigation and which the parties, by the exercise of reasonable diligence, might have raised at the time.” Smith v. Holland, 124 Va. 663, 666, 98 S.E. 676, 677 (1919). Therefore, Defendant was obliged to raise the I-864 and the other claims in the divorce complaint. Besides, with regards to the I-864, Defendant had approximately 26 hours of legal counsel specifically dedicated to the I-864 up to the day of executing the Marital Agreement, and later made her clear intent on the said Marital Agreement. 
  2. In the divorce action, Defendant had the responsibility of setting forth and arguing her case properly. Additionally, the Court ordered Plaintiff to pay Defendant $8,500 for the defendant’s attorney fees. Clearly, Defendant had the resources to represent herself with proper counsel in the divorce hearing but chose to proceed pro se. Therefore, Defendant cannot argue that she was not aware that she should have argued all the aforementioned claims in the divorce action. Although pro se pleadings should be liberally construed, pro se litigants should not take advantage of the liberality to avoid acting diligently. Pro se litigants are obligated to comply with the Court’s rules much in the same manner as those represented by counsel. Francis v. Francis, 30 Va. App. 584, 591, 518 S.E.2d 842, 846 (1999). The court in Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 656-57 (1987), cert. denied, 485 U.S. 971 (1988) maintained the same sentiments when it held that “the ‘right of self-representation is not license’ to fail ‘to comply with the relevant rules of procedural or substantive law.” 
  3. From the foregoing, it is evident that Defendant has breached the Parties’ contract by filing the Complaint(s) against Plaintiff.   
  4. As a result of the breach, Plaintiff continues to suffer financial, physical, emotional, and mental harm. 

COUNT II

RULE TO SHOW CAUSE

  1. Plaintiff incorporates the allegations in paragraphs 1 through 38 above as if set forth in full.
  2. The law provides that for the Defendant to be found liable for contempt, there can be no ambiguity in the language of the order either prohibiting or commanding certain conduct. See Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309 (citations omitted). Stated differently, there must be an explicit command or prohibition which has been violated in order for a proceeding in contempt to lie. See French v. Pobst, 203 Va. 704, 710, 127 S.E.2d 137, 141 (1962); see also Petrosinelli v. Peta, 273 Va. 700, 706-07, 643 S.E.2d 151, 154-55 (2007). The Court in Winn v. Winn stated in this regard that:

 before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied.” This is … the rule followed in Virginia. In Taliaferro v. Horde’s Adm’r., we said that “[t]he process for contempt lies for disobedience of what is decreed, not for what may be decreed.

  1. In the instant case, this honorable court affirmed the Parties’ Marital Agreement and incorporated it into the court order on or about XXXX. In the words of the court, 

IT FURTHER APPEARING that the parties’ XXXX Marital Agreement was affirmed, ratified, and incorporated but not merged into an Order of this Court on XXXX. 

  1. Section 21 and 27 of the Marital Agreement, Defendant waived all causes of action and promised to hold Plaintiff harmless from any and all liability.  Accordingly, Defendant was bound by the terms of the Agreement and the Court order. 
  2. The Defendant cannot rely on the defense that her violation of the court order was unintentional. The absence of the specific intent to violate a court order does not relieve the respondent of the consequences of civil contempt. Leisge v. Leisge, 224 Va. 303, 309, 296 S.E.2d 538, 541 (1982). Per Leisge, “[t]he sanctity and enforceability of a [finding of civil contempt] should not hinge upon the mental state of an unsuccessful litigant.” Id. at 308, 296 S.E.2d at 541. The court elaborated citing the United States Supreme Court in McComb v. Jacksonville Paper Co., quoting:

The absence of willfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of non-compliance. Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. The decree was not fashioned so as to grant or withhold its benefits dependent on the state of mind of respondents. … An act does cease to be a violation of law and of a decree merely because it may have been done innocently. The force and vitality of judicial decrees derive from more robust sanctions. 

  1. It follows; Defendant should show cause why she failed to comply with the said Order and proceeded to institute actions in blatant disregard of the Order. The courts provide several punishments for contempt. Aside from compelling compliance, the court in civil contempt proceedings may impose sanctions to compensate the aggrieved party for losses sustained because of a respondent’s noncompliance with a court’s order. “The punishment in a civil contempt proceeding ‘is adapted to what is necessary to afford the injured party remedial relief for the injury or damage done by the violation of the injunction to his property or rights which were under protection of the injunction.’” Rainey v. City of Norfolk, 14 Va. App. 968, 974, 421 S.E.2d 210, 214 (1992) (citing Deeds v. Gilmer, 162 Va. 157, 262, 174 S.E. 37, 78-79 (1934)).
  2. In cases where the petitioner seeks enforcement of a written agreement which has been incorporated into a court decree, such agreements are enforceable even in the absence of a finding of contempt. Shoup v. Shoup, 31 Va. App. 621, 525 S.E.2d 61 (2000). In some cases, the court may even award Attorney’s fees without a finding of contempt. In the case of Sullivan v. Sullivan, 33 Va. App. 743, 751-53, 536 S.E.2d 925, 929-30 (2000), the former wife filed a motion for a rule to show cause claiming that her former husband had breached their property settlement agreement for failure to maintain a life insurance policy. Following a hearing on the merits, the trial court agreed with the wife that the husband was in breach and awarded her attorneys’ fees but did not specifically find the husband in contempt of court. Accordingly, Plaintiff in the instant case is entitled to costs of the suit and other related expenses. 
  3. As a result of Defendant’s contempt of the Court Order, Plaintiff’s rights under the Agreement have been infringed. Consequentially, Plaintiff has suffered financial, emotional, and mental harm. Therefore, this Honorable Court should grant an order for a Rule to Show Cause against Defendant.   

WHEREFORE, Plaintiff Scott Alan Anderson prays that the Court enter judgment in its favor and award the relief set forth below.

  1. As to COUNT I, the reliefs set forth below:
  1. An award of damages;
  2. Interest and costs;
  3. Such further relief as this Court may deem just and equitable.
  1. As to COUNT II, the reliefs set forth below:
  1. Enter a Rule against Defendant requiring her to show cause why she should not be held in indirect civil contempt of this Court for her failure to comply with the terms of the Order/Judgment.
  2. Hold the Defendant in contempt of this Court for her wilful failure to comply with the court Order/Judgment and direct Defendant to restore Defendant’s rights subject to the Court’s discretion. 
  3. Award the Plaintiff reimbursement of his court costs and other expenses associated with this action.
  4. Award such other and further relief as this Court deems just and equitable. 


Respectfully submitted,                           

CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], copies of the foregoing Complaint have been sent to the Defendant in the following address:

[ENTER ADDRESS FOR DEFENDANT].

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