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COURT OF APPEALS OF VIRGINIA
Present:     Judges Humphreys, Beales and Senior Judge Coleman
Argued at Richmond, Virginia
HARRY D. CAMPBELL
                                                                                                                                                                                OPINION BY
v.                                                                                                     Record No. 0983-06-2                                                     JUDGE ROBERT J. HUMPHREYS
APRIL 10, 2007
BETTY J. CAMPBELL
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Donald K. Butler (Mary Beth Long; ButlerCook, LLP, on briefs), for
appellant.
John K. Taggart, III (Patricia D. McGraw; Tremblay & Smith, LLP,
on brief), for appellee.
In this appeal from an equitable distribution decision, Harry D. Campbell (husband)
argues that:   (1) the trial court erred when it prevented him from cross-examining wife’s expert
witness and a factual witness; (2) no valid marital agreement between husband and wife exists;
(3) such marital agreement, if it does exist, is not severable; (4) the agreement is unconscionable;
(5) the agreement is contrary to public policy; (6) the trial court erred in classifying certain
property as marital; (7) the trial court over-compensated wife for certain property in its award;
and (8) wife dissipated marital funds.  Betty J. Campbell (wife) cross-appeals, arguing that the
circuit court erred in:                                                                                (1) holding that the spousal support and inheritance provisions of the
marital agreement were unenforceable; (2) dividing the marital estate unequally between the
parties; and (3) refusing to reserve spousal support for wife.  For the reasons set forth below, we
hold that the trial court erred in preventing husband from cross-examining wife’s witnesses, and




because we find that the actions of the trial court constitute an abuse of discretion as a matter of
law, we remand for further proceedings consistent with this opinion.
I.  BACKGROUND
On appeal, we must view the evidence, and all reasonable inferences flowing from the
evidence, in a light most favorable to wife as the party prevailing below.  Congdon v. Congdon,
40 Va. App. 255, 258, 578 S.E.2d 833, 835 (2003).   “That principle requires us to ‘discard the
evidence’ of [husband] which conflicts, either directly or inferentially, with the evidence
presented by the [wife] at trial.”  Id. (quoting Wactor v. Commonwealth, 38 Va. App. 375, 380,
564 S.E.2d 160, 162 (2002)).  So viewed, the evidence proved the following:
A.  Campbell Lumber Company, Inc.
Husband and wife married in January 1973, and separated in December 1996.  Four children
were born from their marital union, all of whom were fully grown at the time of trial.  Husband
began a business in 1957, which he initially operated as a partnership with his brothers.  Husband
later became the sole proprietor of the company, and incorporated the business in 1983, renaming it
Campbell Lumber Company, Inc. (“CLC”).  CLC’s business included lumber, cattle, and real estate.
CLC was worth approximately $330,000 at the time of the marriage, but at the time of separation
was valued at approximately $2,500,000.  Its value at the time of trial was approximately
$5,369,665.  Wife performed administrative work and bookkeeping for CLC from the date of the
marriage until 1996.
B.  The Shooting
The marriage between the parties proved to be somewhat turbulent from the very beginning,
with husband frequently accusing wife of adultery.  The parties briefly separated, then later
reconciled.  In 1996, after a fierce argument in the marital home in which husband again accused
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wife of adultery, wife pulled out a gun and shot husband three times.1  Husband spent five days in a
coma, and a total of 22 days in the hospital as a result of the shooting.  At the time of trial, husband
still had bullet fragments in his body, and still suffered from pain as a result.
After the shooting, the parties separated and did not resume cohabitation.
C.  The Agreement
On November 2, 2002, husband and wife met in the office of CLC and husband dictated an
agreement to wife.  Wife transcribed the agreement, writing it in longhand, and husband signed it.
They then made a copy of the agreement, also written in longhand, and wife signed the copy.  They
each kept the version of the agreement containing the other’s signature.  The agreement read as
follows:
I, Harry Delmas Campbell promise my wife Betty J. Campbell, that
if she does not continue with the divorce, she will inherit my (our)
estate private and corporate at my death.  If she precedes me in death,
I inherit her share.  This is a mutual agreement between both parties.
However I also promise if I proceed in divorce, I will give her lock
stock [and] barrel Campbell Lumber Co. Inc. in [sic] N. Garden and
its assets.  And I will take care of her until one of us dies.  This is my
promise.  I want us to just get along together.
Wife kept the agreement and did not inform anyone else of its existence until March of
2004, when she took it to her attorney, who advised her to make another copy of the agreement and
sign it.  Wife testified as to this version of events.  Husband denied the existence of the agreement,
and claimed that wife had written the agreement herself and forged his signature.  Whether
husband’s signature on the agreement was authentic was the subject of wife’s expert’s testimony
on direct and the subject about which husband sought to cross-examine him.
1 The grand jury declined to indict wife for the shooting.
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D.  Proceedings in the Trial Court
The trial court ordered that each party had a designated amount of time to present their
evidence and cross-examine the opposing party’s witnesses.  The case went to trial on August 8,
2005, and lasted until August 12.  The first day of trial was dedicated solely to an evidentiary
hearing to determine the validity and enforceability of the disputed agreement.  Husband and wife
both presented expert witnesses, who testified regarding the handwriting on the document.  Both
parties presented numerous factual witnesses to support each other’s respective theories concerning
the validity of the agreement.  Husband also objected to the agreement on various legal grounds,
arguing that it was not severable and thus entirely unenforceable, unconscionable, contrary to public
policy, and that it had not been properly executed.
Solely as a result of the time limit on the presentation of evidence and the cross-examination
of witnesses previously announced by the trial court, husband was unable to cross-examine wife’s
handwriting expert and one factual witness regarding the authenticity of husband’s signature on the
agreement.2  The trial court then found that the agreement was authentic, and rejected all of
husband’s remaining legal arguments.  However, the trial court held that the provisions of the
agreement were severable and that only one of the three provisions was enforceable,3 specifically
the provision in which husband promised to give wife CLC if he proceeded with the divorce
process.  As husband had proceeded with divorce, the trial court awarded wife CLC as separate
property.
2 Husband did not proffer what Dr. Hartford Kittel, wife’s expert witness, would have
testified to, had husband in fact been able to cross-examine Dr. Kittel.
3 The trial court held that the promise to give wife his estate upon his death was
unenforceable due to the revocable nature of wills.  The court also held that the provision for
husband to “take care of [wife] until one of [the parties] dies” was unenforceable because it was
too vague to constitute a meaningful promise.
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II.  ANALYSIS
A.  Cross-Examination
Husband contends that the trial court erred when it did not permit him to cross-examine
Dr. Hartford Kittel, wife’s handwriting expert, and Mae Fattaleh, a factual witness for wife,
regarding the disputed marital agreement.  We agree.
Virginia has recognized a fundamental right to cross-examination on a matter relevant to
the litigation, which applies in civil cases.  See Velocity Express Mid-Atlantic, Inc. v. Hugen,
266 Va. 188, 204-05, 585 S.E.2d 557, 566 (2003).  Furthermore, Code § 8.01-401(A) provides
that “[a] party called to testify for another, having an adverse interest, may be examined by such
other party according to the rules applicable to cross-examination.”
We acknowledge that, “the latitude permissible in cross-examination of witnesses is
largely within the sound discretion of the trial court.”  Basham v. Terry, 199 Va. 817, 824, 102
S.E.2d 285, 290 (1958).  Yet the trial court’s discretion in this regard is not unfettered.  Indeed,
“cross-examination on a matter relevant to the litigation and put in issue by an adversary’s
witness during a judicial investigation is not a privilege but an absolute right[.]”  Id.              “[I]t is only
after such right has been substantially and fairly exercised that the allowance of further
cross-examination becomes discretionary.”   1 Michie’s Jurisprudence Witnesses § 36 (2004).
Furthermore, the failure to allow a fair opportunity for cross-examination is never harmless error.
See Food Lion, Inc. v. Cox, 257 Va. 449, 450-51, 513 S.E.2d 860, 861 (1999).
On the other hand, we recognize that the trial court may appropriately limit
cross-examination, subject to the rules of evidence.  For example, a trial court may, in its
discretion, refuse to allow questions that seek information lacking relevance to any issue before
the court, questions that seek to elicit cumulative evidence, or questions that have already been
asked and answered.  Here, however, the trial court entirely prohibited husband’s
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cross-examination of two of wife’s material witnesses due solely to the depletion of his allocated
time at trial.  These witnesses testified “on a matter relevant to the litigation,” specifically the
validity of the marital agreement.  In fact, whether husband had signed the agreement was the
single most relevant fact in deciding whether the agreement was authentic.  And because an
opportunity to cross-examine is a fundamental right, we hold that the trial court abused its
discretion by its arbitrary refusal to allow any cross-examination whatsoever.
Error of this magnitude is never harmless.  Because the trial court’s system of time
limitations did not deprive husband of a constitutional right, we are hesitant to specifically label
this as “structural error.” 4  Nevertheless, in the context presented here, the distinction is
immaterial.  The trial court arbitrarily limited husband’s right of cross-examination on a relevant
matter, thus depriving husband of a fundamental right.  See Velocity Express Mid-Atlantic, 266
4                                                                                                      A “structural error” is a “defect affecting the framework within
which the trial proceeds, rather than simply an error in the trial
process itself.”  Arizona v. Fulminante, 499 U.S. 279, 310 (1991);
see Emmett v. Warden, 269 Va. 164, 168, 609 S.E.2d 602, 605
(2005).  As such, it is the constitutional magnitude of the error that
defies “harmless error review.”  Neder v. United States, 527 U.S.
1, 8 (1999).  Examples of errors which affect the framework of a
trial include the denial of a public trial, the denial of counsel, the
denial of an impartial trial judge, the systematic exclusion of
members of the defendant’s race from the grand jury, the
infringement upon a defendant’s right to represent himself, and the
improper instruction to a jury as to reasonable doubt and the
burden of proof.
Jackson v. Warden of the Sussex I State Prison, 271 Va. 434, 436, 627 S.E.2d 776, 781 (2006).
In other words, a structural error merits automatic reversal, without requiring a showing
of prejudice.  A trial error, simply a mistake of law made during the trial process itself, does
require a showing of prejudice, lest an appellate court will consider it mere harmless error.  See
id.  Virginia’s right of cross-examination in civil cases, while absolute, does not emanate from
the United States or Virginia Constitutions, rather, it is rooted in Virginia’s common law, and is
now codified in Code § 8.01-401(A).  Generally, structural error is limited to error that deprives
a litigant of a constitutional right.  See Neder, 527 U.S. at 8.  But see United States v. Curbelo,
343 F.3d 273, 280 (4th Cir. 2003) (“[W]hether violative of the Constitution or not, the error here
is structural, and such errors invalidate the conviction without any showing of prejudice.”
(internal quotations omitted)).
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Va. at 204-05, 585 S.E.2d at 566.  We view this as a “defect affecting the framework within
which the trial proceeds.”  Arizona v. Fulminate, 499 U.S. 279, 310 (1991).  In addition, the
arbitrary restriction utilized here violates a fundamental common law and statutory procedural
right that is basic to our adversary system of resolving cases and controversies.  Thus it matters
not that husband did not proffer Dr. Kittel’s anticipated testimony on cross-examination, as no
finding of prejudice is necessary.  See Food Lion, 257 Va. at 450-51, 513 S.E.2d at 861.
Wife argues that Basham and its progeny are inapplicable, because husband effectively
waived his right to cross-examination by using all of his allotted trial time on other issues.  Wife
reasons that Basham and its progeny dealt with substantive limitations of cross-examination and
that in this case, there was no substantive limitation.  However, we find this to be a distinction
without a difference.  Within the parameters of the rules of evidence, “[t]he right [to
cross-examination] is absolute; the adjective ‘absolute’ definitively excludes exceptions.”  Food
Lion, 257 Va. at 450-51, 513 S.E.2d at 861.
As occurred in this case, a party to litigation has no control over the length of time an
opponent’s witness testifies.  If an adverse witness testifies to a matter in depth, fundamental
fairness requires that a party should be able to cross-examine the witness with respect to any
relevant testimony they offered on direct examination, and not be penalized from
cross-examining other witnesses as a result.  Notwithstanding any arbitrary time limitation
imposed by the trial court, husband still had the right to cross-examine wife’s witnesses if he
chose, limited only by the rules of evidence.  To hold otherwise would render the adversary
system we use to test the credibility of witnesses and that of their testimony, a nullity.
Accordingly, we reverse the judgment of the trial court and remand for such further proceedings
as are consistent with our holding.
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B.  Attorney’s Fees
Wife requests that we award her attorney’s fees and costs on appeal.  In determining the
propriety of such an award, we “view the record in its entirety and determine whether the appeal
is frivolous or whether other reasons exist for requiring additional payment.”  O’Loughlin v.
O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996).  Because “we find the litigation
addressed appropriate and substantial issues[,]” Estate of Hackler v. Hackler, 44 Va. App. 51, 75,
602 S.E.2d 426, 438 (2004), we deny wife’s request for attorney’s fees and costs on appeal.
III.  CONCLUSION
We hold that the trial court abused its discretion, as a matter of law, by preventing husband
from cross-examining wife’s witnesses due to the time limits it imposed and that such error was not
harmless.  We therefore reverse and remand to the trial court for additional proceedings
consistent with this opinion.  Because we remand this case for further proceedings, we find it
unnecessary to address the remaining assignments of error.5
Reversed and remanded.
5 Because the remaining issues with respect to the agreement itself and the equitable
distribution of the remaining marital property depend upon the validity of the agreement, we do
not address them further at this time.  Moreover, prior to oral argument, wife filed a motion to
preclude husband from arguing certain issues, as wife alleged husband had not identified these
issues in his assignments of error.  Because we have refrained from addressing the issues
constituting the subject of the motion, we find it unnecessary to rule on the motion, as it is now
moot.
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