manifest injustice standard in Virginia

2022In making that determination, a court is limited to consideration of two specific factors: (1) “the respective degrees of fault,” and (2) “the relative economic circumstances of the parties.” Code § 20-107.1(B); see also Giraldi, 64 Va. App. at 683 (“[T]he decision to invoke the manifest injustice exception must be rooted in both the ‘respective degrees of fault’ factor and the ‘relative economic circumstances’ factor.” (quoting Congdon, 40 Va. App. at 264 )).

2022In making that determination, a court is limited to consideration of two specific factors: (1) “the respective degrees of fault,” and (2) “the relative economic circumstances of the parties.” Code § 20-107.1(B); see also Giraldi, 64 Va. App. at 683 (“[T]he decision to invoke the manifest injustice exception must be rooted in both the ‘respective degrees of fault’ factor and the ‘relative economic circumstances’ factor.” (quoting Congdon, 40 Va. App. at 264 )).

2024While appellant argues on brief that his plea was “neither knowing nor voluntary,” this issue was not preserved because appellant never objected to the trial court’s finding that his plea was made “knowingly, intelligently, and voluntarily.” See Rule 5A:18; see also Thomas, 44 Va. App. at 750 .

2023On appeal, we review a circuit “court’s decision to deny a motion to withdraw a plea of guilty or nolo contendere under an abuse of discretion standard.” Spencer v. Commonwealth, 68 Va. App. 183, 186 (2017).

2022Based on this Court’s deferential standard of appellate review, “if ‘the record contains credible evidence in support of the findings made by th[e trial] court, we may not retry the facts or substitute our view of the facts for those of the trial court.’” Congdon, 40 Va. App. at 266 (quoting Calvin v. Calvin, 31 Va. App. 181, 183 (1999)).

2022This Court has previously recognized that “the legislative impulse behind the manifest injustice exception is to prevent leaving a spouse destitute as a result of an act of adultery.” Mundy v. Mundy, 66 Va. App. 177, 184 (2016).

2022Those two factors, however, “are conjunctive, not disjunctive.” Mundy, 66 Va. App. at 182 . 8 See also Seemann v. Seemann, 233 Va. 290 , 293 n.1 (1987) (defining “clear and convincing” evidence as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established”). - 11 - Thus, “[n]either requires proof by clear and convincing evidence independently.

2022Bottoms v. Commonwealth, 281 Va. 23, 34 (2011) (quoting Parris v. Commonwealth, 189 Va. 321, 325 (1949)).

2022Bottoms v. Commonwealth, 281 Va. 23, 34 (2011) (quoting Parris v. Commonwealth, 189 Va. 321, 325 (1949)).

2022In making that determination, a court is limited to consideration of two specific factors: (1) “the respective degrees of fault,” and (2) “the relative economic circumstances of the parties.” Code § 20-107.1(B); see also Giraldi, 64 Va. App. at 683 (“[T]he decision to invoke the manifest injustice exception must be rooted in both the ‘respective degrees of fault’ factor and the ‘relative economic circumstances’ factor.” (quoting Congdon, 40 Va. App. at 264 )).

2022In making that determination, a court is limited to consideration of two specific factors: (1) “the respective degrees of fault,” and (2) “the relative economic circumstances of the parties.” Code § 20-107.1(B); see also Giraldi, 64 Va. App. at 683 (“[T]he decision to invoke the manifest injustice exception must be rooted in both the ‘respective degrees of fault’ factor and the ‘relative economic circumstances’ factor.” (quoting Congdon, 40 Va. App. at 264 )).

2018See, e.g. , Williams v. Commonwealth , 294 Va. 25 , 28-29 (2017) (rejecting an ends-of-justice argument under Rule 5:25 because there was no showing of a "manifest injustice").

2018Accordingly, this Court 2 Appellant contends on brief that, rather than the manifest injustice standard, this Court should apply the “clear, substantial, and material” standard articulated by Judge Barrow’s concurrence in Campbell v. Commonwealth, 14 Va. App. 988, 996-98 , 421 S.E.2d 652, 656-58 (1992) (en banc).

2018Accordingly, this Court 2 Appellant contends on brief that, rather than the manifest injustice standard, this Court should apply the “clear, substantial, and material” standard articulated by Judge Barrow’s concurrence in Campbell v. Commonwealth, 14 Va. App. 988, 996-98 , 421 S.E.2d 652, 656-58 (1992) (en banc).

2018See Howell, 60 Va. App. at 747 , 732 S.E.2d at 727 (applying the manifest injustice standard to a motion filed after the court pronounced the sentence but before entry of the final sentencing order). -4- before sentencing, “when a more liberal standard applies.” Id. at 747 , 732 S.E.2d at 727.

2018See Howell, 60 Va. App. at 747 , 732 S.E.2d at 727 (applying the manifest injustice standard to a motion filed after the court pronounced the sentence but before entry of the final sentencing order). -4- before sentencing, “when a more liberal standard applies.” Id. at 747 , 732 S.E.2d at 727.

2016A more stringent standard than preponderance of the evidence, “clear and convincing” proof requires “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Congdon v. Congdon, 40 Va.App. 255, 263 , 578 S.E.2d 833, 837 (2003) (quoting Canning v. Va. Dep’t of Transp., 37 Va.App. 701, 707 , 561 S.E.2d 33, 36 (2002)).

2016A more stringent standard than preponderance of the evidence, “clear and convincing” proof requires “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Congdon v. Congdon, 40 Va.App. 255, 263 , 578 S.E.2d 833, 837 (2003) (quoting Canning v. Va. Dep’t of Transp., 37 Va.App. 701, 707 , 561 S.E.2d 33, 36 (2002)).

2015Id. at 264, 578 S.E.2d at 837; see Barnes v. Barnes, 16 Va.App. 98, 102 , 428 S.E.2d 294, 298 (1993) (explaining that “[i]n order to find that denial of support will constitute a manifest injustice, the court must base that finding on the parties’ comparative economic circumstances and the respective degrees of fault” (emphasis in original)).

2015Id. at 264, 578 S.E.2d at 837; see Barnes v. Barnes, 16 Va.App. 98, 102 , 428 S.E.2d 294, 298 (1993) (explaining that “[i]n order to find that denial of support will constitute a manifest injustice, the court must base that finding on the parties’ comparative economic circumstances and the respective degrees of fault” (emphasis in original)).