ANALYSIS OF DECEMBER 20, 2011 CAV OPINIONS[Posted December 20, 2011] Just in time for Christmas (and Hanukkah, which begins a few hours from now), the Court of Appeals gives us three new published opinions today, in three different case areas.
The appellant invokes the talisman of stare decisis today in Prophet v. Bullock Corp., involving the statute of limitations for making medical-care awards.
Actually, the question is, Is there any such limitation? The claimant received a full 500 weeks of indemnity benefits after a work-related injury, with the last month of such benefits in 2005. But her treatment over that time included lots of pain medication, and by 2007, she showed up at her doctor’s office looking skeletal. The doctor diagnosed her condition as “narcotic induced anorexia”; he put her on some new medication to stimulate her appetite.
Fortunately, it worked, and the claimant regained weight, to the point that the doctor discontinued the new medication. But when the claimant sought payment under the lifetime-medical award, the employer balked; it was well over two years form the time of the last indemnity payment, so the employer asserted that the statute of limitations for modifying an award had passed.
Today, a CAV panel begins by noting that the statute applies to change-of-condition applications for indemnity awards, not medical awards. A contrary holding, the court notes today, would make a mockery of the concept of “lifetime” medical awards. The court then notes that this exact issue had been assumed, but not decided, in a 2004 decision, making this “the first opportunity for this Court to squarely address the applicability of the time bar found in Code § 65.2-708(A) to a claim for medical benefits.” The court concludes that the claim is not time-barred because a claim for medical benefits is not for “compensation,” so the statutory bar doesn’t apply.
The court distinguishes another earlier ruling today when, in Nkopchieu v. Minlend, it addresses whether a QRDO can attach assets of a retirement account to satisfy a child-support arrearage. As with the Prophet case, above, it looks like a previous decision might provide the answer, but this ruling should serve as a warning to those lawyers who rely too slavishly to what they perceive in a published opinion.
The father filed this divorce proceeding while the mother was five month pregnant with the couple’s second child. He was ordered to pay pendente lite support, but instead of getting out his checkbook, he got out his passport and headed to Cameroon, where he presumably still is. He left behind a support obligation that was, at the time of trial, over $28,000, and no property in Virginia to satisfy the obligation.
Well, almost no property. He left behind a retirement account, and the wife sought entry of a QDRO in the course of the divorce proceedings. The trial court sympathized, but felt constrained to obey a previous CAV decision from 1999. In that case, the court had held that a concluded divorce case couldn’t be reopened to attach a retirement account to satisfy an arrearage. The trial court here ruled that it could not, under ERISA, use the retirement funds to pay even this destitute mother (the father had been the family’s sole wage-earner during the marriage).
No dice, a panel of the court rules today, in language that’s quite emphatic by appellate standards. Normally, such opinions are reserved, even understated; today’s decision contains plenty of indications that the judges have no patience with this father, who invoked the trial court’s jurisdiction and then bolted at the first sign of an adverse order. The court today notes some key differences between this ruling and the 1999 case. Perhaps the most compelling is that in the earlier case, the retirement account didn’t even exist at the time of the support award; the motion to attach it came 24 years after the divorce. In this case, there was nothing to reopen, since the motion came during the course of the ongoing litigation.
Toward the end of today’s opinion, the CAV emphasizes that parents can’t contract away their children’s right to support. A child-support award belongs to the kid, not to the custodial parent; the parent is merely the conduit through which the money will pass.
Every so often, a published opinion delivers one of the things I love most about covering this beat: The stupid-criminal story. If you like them too, check out Towler v. Commonwealth.
Towler was convicted of several offenses, notably including robbery and related firearms charges, in connection with a stickup at, of all places, a drug store’s pharmacy counter. The crook displayed a gun stuck in his waistband and got a bit over $200, but his demand for the pharmacy’s supply of Oxycontin went unfilled. (Sorry.)
The next day, tipped off by an informant, police showed up at Towler’s place and said they wanted to talk to him “about an incident at CVS.” It’s here that our hero displays his advanced-stupid-crook skills, as he helpfully replies, without further prompting, “I didn’t do no armed robbery.”
No, really; he did say that. I’ll cut him some slack on the double-negative – I can’t expect everyone around here to be as much of a grammar geek as I am – but an unsolicited denial, without an existing accusation, is what we’d normally call a misstep in the criminal-justice system.
There are several appellate issues here, but in the end, it all comes down to sufficiency of the evidence, a criminal appellant’s last (and usually least effective) refuge. There are a couple of novel questions, one of which is answered by the interpanel accord doctrine. That doctrine provides that a decision of one CAV panel is considered authoritative by subsequent panels until it’s reversed by the en banc court or by the Supreme Court. Towler asked this panel to reconsider a ruling made by a prior panel, but the court refuses to even consider doing so.
In case you think that’s his lawyer tilting with windmills, it really represents solid lawyering. In order to bring the issue to the en banc court or the justices, the lawyer had to first ask the panel to make the ruling. Now that the panel has refused to modify the previous holding, it’s ripe for further review in an arena where it can be modified.
Towler also points to an interesting anomaly, whereby a burglary indictment charged him with entering the store “with the intent to commit a felony, larceny or assault and battery therein.” The indictment mentioned nothing about robbery, the primary underlying felony of which he was ultimately convicted. Towler argued that he couldn’t be convicted under this indictment.
Ah, but the quoted passage is in the disjunctive, and it clearly mentions “a felony.” The court turns to Towler’s demand for Oxycontin, a Schedule II controlled substance, and concludes that the evidence certainly established that he entered the store with the intent to possess that drug. Possession of a Schedule II substance is – you guessed it – a felony. The trial court had held that the evidence in the case was sufficient to establish that Towler entered the store with the intent to commit larceny. Today’s CAV panel disagrees with that finding, but it affirms under the right-for-the-wrong-reason doctrine.