default rule in Virginia

2015See Richardson v. Moore, 217 Va. 422, 424 , 229 S.E.2d 864, 866 (1976) (per curiam) (“ ‘[in] the absence of statute, payments exacted by the original decree of divorce become vested as they accrue and the court is without authority to make any change as to past due installments’ ” (emphasis added) (quoting Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965))).

2015See Richardson v. Moore, 217 Va. 422, 424 , 229 S.E.2d 864, 866 (1976) (per curiam) (“ ‘[in] the absence of statute, payments exacted by the original decree of divorce become vested as they accrue and the court is without authority to make any change as to past due installments’ ” (emphasis added) (quoting Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965))).

2015See Richardson v. Moore, 217 Va. 422, 424 , 229 S.E.2d 864, 866 (1976) (per curiam) (“ ‘[in] the absence of statute, payments exacted by the original decree of divorce become vested as they accrue and the court is without authority to make any change as to past due installments’ ” (emphasis added) (quoting Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965))).

2015See Richardson v. Moore, 217 Va. 422, 424 , 229 S.E.2d 864, 866 (1976) (per curiam) (“ ‘[in] the absence of statute, payments exacted by the original decree of divorce become vested as they accrue and the court is without authority to make any change as to past due installments’ ” (emphasis added) (quoting Cofer v. Cofer, 205 Va. 834, 838 , 140 S.E.2d 663, 666 (1965))).

2017Compare Walberg v. United States, 763 F.2d 143, 148-49 (2nd Cir. 1985) (“Since the legislative history of the Act reveals an intention to give judges maximum discretion and flexibility in sentencing, we read that the Act’s failure to provide an explicit maximum period . . . as implicitly authorizing the imposition of any period from the minimum specified in the statute to the life of the defendant.”) with United States v. Walker, 720 F.3d 705, 709 (8th Cir. 2013) (Bright, J., concurring) (lamenting the “sparse explanation” that typically accompanies opinions applying this judicial inference).

2017Compare Walberg v. United States , 763 F.2d 143 , 148-49 (2nd Cir. 1985) ("Since the legislative history of the Act reveals an intention to give judges maximum discretion *232 and flexibility in sentencing, we read that the Act's failure to provide an explicit maximum period ... as implicitly authorizing the imposition of any period from the minimum specified in the statute to the life of the defendant.") with United States v. Walker , 720 F.3d 705 , 709 (8th Cir. 2013) (Bright, J., concurring) (lamenting the "sparse explanation" that typically accompanies opinions applying this judicial infer

2017Compare Walberg v. United States, 763 F.2d 143, 148-49 (2nd Cir. 1985) (“Since the legislative history of the Act reveals an intention to give judges maximum discretion and flexibility in sentencing, we read that the Act’s failure to provide an explicit maximum period . . . as implicitly authorizing the imposition of any period from the minimum specified in the statute to the life of the defendant.”) with United States v. Walker, 720 F.3d 705, 709 (8th Cir. 2013) (Bright, J., concurring) (lamenting the “sparse explanation” that typically accompanies opinions applying this judicial inference).

2017Compare Walberg v. United States , 763 F.2d 143 , 148-49 (2nd Cir. 1985) ("Since the legislative history of the Act reveals an intention to give judges maximum discretion *232 and flexibility in sentencing, we read that the Act's failure to provide an explicit maximum period ... as implicitly authorizing the imposition of any period from the minimum specified in the statute to the life of the defendant.") with United States v. Walker , 720 F.3d 705 , 709 (8th Cir. 2013) (Bright, J., concurring) (lamenting the "sparse explanation" that typically accompanies opinions applying this judicial infer

2016The lack of a specific direction regarding how -9- excess payments would be treated requires us to apply the default rule that “[s]upport payments made by an obligated spouse over and above court-ordered monthly support are considered gifts or gratuities.” Sanford, 19 Va. App. at 248 , 450 S.E.2d at 190 (citation omitted).

2015The lack of a specific direction regarding how -9- excess payments would be treated requires us to apply the default rule that “[s]upport payments made by an obligated spouse over and above court-ordered monthly support are considered gifts or gratuities.” Sanford, 19 Va. App. at 248 , 450 S.E.2d at 190 (citation omitted).

2016See Kelley, 248 Va. at 298 , 449 S.E.2d at 56 (holding that parties cannot, by agreement, “contract away their children’s rights to support nor . . .” preclude a court “from exercising its power to decree child support” (citation omitted)). - 10 - overpayments simply does not meet the specificity standard.

2016See Kelley, 248 Va. at 298 , 449 S.E.2d at 56 (holding that parties cannot, by agreement, “contract away their children’s rights to support nor . . .” preclude a court “from exercising its power to decree child support” (citation omitted)). - 10 - overpayments simply does not meet the specificity standard.

2025A handful of States have adopted the approach in § 7.31 Others have declined to do so.32 Academic commentary has offered both praise33 and criticism of the Restatement (Third)’s decision to establish duty as a default rule and to eliminate foreseeability as part of the duty analysis.34 31 See Thompson v. Kaczinski, 774 N.W.2d 829, 834-35 (Iowa 2009); A.W. v. Lancaster Cty.

2024See Conkling v. Commonwealth, 45 Va. App. 518, 523-24 (2005) (“That an adjudication is treated as a conviction in specific circumstances implies that it is not so treated as a general rule.”).

2016See id. -4- The appellant invokes the contract principle of “material breach,” arguing that because the breaches were minor, DMAS could not retract the payments.

2012First, as a default principle, the Court has held that “[a] challenge to an order based on a trial court’s misapplication of a statute generally raises a question of court error, not a question of the court’s jurisdiction.” Hicks v. Mellis, 275 Va. 213, 219 , 657 S.E.2d 142, 145 (2008).

2012First, as a default principle, the Court has held that “[a] challenge to an order based on a trial court’s misapplication of a statute generally raises a question of court error, not a question of the court’s jurisdiction.” Hicks v. Mellis, 275 Va. 213, 219 , 657 S.E.2d 142, 145 (2008).

2010In short, the prosecution always bears the burden of proof on its theory of the case; finding a single larceny does not represent a default rule for every case, as some language in Richardson may suggest. -8- analysis of intent “turns on the particular facts of a case, we will affirm the trial court’s determination unless plainly wrong or unless the record lacks any evidence to support that determination.” Bragg v. Commonwealth, 42 Va. App. 607, 612 , 593 S.E.2d 558, 560 (2004).

2010In short, the prosecution always bears the burden of proof on its theory of the case; finding a single larceny does not represent a default rule for every case, as some language in Richardson may suggest. -8- analysis of intent “turns on the particular facts of a case, we will affirm the trial court’s determination unless plainly wrong or unless the record lacks any evidence to support that determination.” Bragg v. Commonwealth, 42 Va. App. 607, 612 , 593 S.E.2d 558, 560 (2004).

2008The basic law may provide broader standing, see, e.g., Harrison v. Ocean View Fishing Pier, LLC, 50 Va.App. 556, 568 , 651 S.E.2d 421, 427 (2007), or narrower standing, EDF v. State Water Control Bd., 12 Va.App. 456, 462 , 404 S.E.2d 728, 731 (1991), than the default standard adopted by VAPA.

2008The basic law may provide broader standing, see, e.g., Harrison v. Ocean View Fishing Pier, LLC, 50 Va.App. 556, 568 , 651 S.E.2d 421, 427 (2007), or narrower standing, EDF v. State Water Control Bd., 12 Va.App. 456, 462 , 404 S.E.2d 728, 731 (1991), than the default standard adopted by VAPA.

2008The basic law may provide broader standing, see, e.g., Harrison v. Ocean View Fishing Pier, LLC, 50 Va.App. 556, 568 , 651 S.E.2d 421, 427 (2007), or narrower standing, EDF v. State Water Control Bd., 12 Va.App. 456, 462 , 404 S.E.2d 728, 731 (1991), than the default standard adopted by VAPA.

2008The basic law may provide broader standing, see, e.g., Harrison v. Ocean View Fishing Pier, LLC, 50 Va.App. 556, 568 , 651 S.E.2d 421, 427 (2007), or narrower standing, EDF v. State Water Control Bd., 12 Va.App. 456, 462 , 404 S.E.2d 728, 731 (1991), than the default standard adopted by VAPA.