ANALYSIS OF NOVEMBER 24, 2009 CAV OPINIONS
ANALYSIS OF NOVEMBER 24, 2009 CAV OPINIONS
[Posted November 24, 2009] I was just starting to approach getting caught up from having been away from the office for most of last week, but today, the Court of Appeals pushes my catch-up aspirations aside with four new published opinions.
When the topic of same-sex marriage comes up in appellate decisions, it occurs to me that the authors of the opinions go to great lengths to clarify one key point. Behold this sentence from todays opinion in Prashad v. Copeland: [T]his case is not about homosexual marriage, civil unions, or same-sex relationships. And heres one from the CAVs 2006 ruling in Miller-Jenkins v. Miller-Jenkins: [W]e do not address whether
Given that this is
This case, too, is about child custody. It arises under the federal Parental Kidnapping Prevention Act. In what must have been a very interesting surrogacy arrangement, Mom was evidently hired to be artificially inseminated simultaneously by two different men, whom well call Dad #1 and Dad #2. A child was thus conceived (I plead guilty to using the passive voice here; but trust me, its for a good cause), and upon her birth, she was assigned Dad #2s surname, and he was listed on the birth certificate as the father.
But Mom wasnt just a hired incubator; she asked for, and got, the two mens consent to visit her daughter from time to time in
The men then traveled to
Mom, undeterred, filed a custody petition in
Now, if this had all ended peacefully, you know we wouldnt have an appeal to talk about. Over a year after the peace accord, Mom filed a petition in
Mom appealed the final order in the registration petition. Today, a majority of a panel on the CAV affirms, holding that Moms various challenges to the
Judge Beales dissents, arguing that the judgment appealed from isnt final. He regards the two petitions as essentially inseparable, so the fact that the modification petition was still unadjudicated meant that the registration order wasnt final; there was still much for the trial court to do on the issues at stake in the case. The majority responds with a full-page footnote (and since its single-spaced, that makes it a two-page reply) in which it points out that the Uniform Child Custody Jurisdiction Enforcement Act regards registration petitions as separate from modification requests. (I dont practice much in this field, so I was led to wonder how the UCCJEA got into this picture. I thought this was a Parental Kidnapping Prevention Act case, and neither opinion explains why the UCCJEA is relevant to this analysis.)
A second cousin of Alexander the Great, who hoped to reestablish Alexanders empire after the great conquerors death, famously led about 40,000 Greek allies against a roughly equal number of Roman soldiers at the Battle of Asculum in 279 BCE. The Greeks won a tactical victory, but at a great cost. The Greek commander, King Pyrrhus, then seared his name into our language by musing, Another such victory and we are undone. A litigant gets such a Pyrrhic victory today in Shiembob v. Shiembob, which relates to equitable distribution.
The husband unquestionably prevails in this decision; he secures reversal of a trial courts ruling that certain shares of stock were marital property (the reversal is because the vesting dates for the shares came after the date of separation). He also gets a remand of another ruling that had classified his repayment of $37K to his wife as a gift, therefore making it her separate property. (The remand only directs the trial court to explain its ruling more fully.) He also fends off the wifes request for appellate attorneys fees, and he loses a couple of ancillary arguments relating to the confidentiality of certain documents. On balance, he wins.
But the last set of issues (confidentiality) contains the seed for my classification of this as a Pyrrhic victory for husband. You see, hes a licensed financial advisor, and many of the factual findings that form the basis for this appeal can easily be read as indictments of his investment acumen, and maybe even his integrity. For example, the opinion notes that he got access to his wifes pre-marriage investment account, and without her knowledge, started making stock trades with it. The fund started with almost $62,000 in it, but by the time the husband had finished trying to augment that figure, the account value was down to $1,500. In case you think that this was due to the 2008 stock market drop, think again; the jig was up on this escapade when the wife discovered it in 2001.
Now, I am not about to criticize another persons performance of the discretionary aspects of his profession. But an investment advisor who finds his name in a published opinion, attached to a rate of return of -97.5%, is probably going to have an awfully hard time finding and retaining new clients. The revelation that he did this (and more, such as joining a country club, running up five figures of credit-card debt, and setting up a PO Box) in secret is not, in my view, likely to inspire confidence in him.
I recall reading about some 2,000-year-old seeds that archaeologists once found in an excavation at
Jones worked at a credit union, and suffered an on-the-job injury in 1997 (Note: during the Bubba Administration). She filed a claim for benefits, pointing to injuries to her neck, back, left side, knee, head, arm, and shoulder. Settlement talks were apparently fruitful (ahem bad pun obviously intended), and she and the credit union signed a memorandum of agreement form. But in filling out the form, she listed the parts of her body injured as only Cervical and dorsal strains; left arm and hand injury. The commission made an award based on the agreement.
The matter lay dormant for a decade until 2008 (Dubya Administration), when out of the blue, Jones filed a claim for benefits based on her old knee injury. She pointed out that she had timely notified her employer of the knee injury, and that her claim for those benefits had never been adjudicated. The commission, unimpressed with her creativity, found that the old knee claim had been abandoned, and that this one was way too late.
The heading for this section is a bit misleading. One significant aspect of Settle v. Commonwealth is the question of whether an order of forfeiture of dangerous dogs is civil or criminal in nature. As my readers know well, the sharply-limited jurisdiction of the Court of Appeals doesnt extend to most civil litigation. But when Settle appealed his emphatically-criminal convictions for inadequate care of companion animals and for having a dog at large, it was only natural that hed throw into the same appeal a question relating to the propriety of the trial courts forfeiture order. After all, the forfeiture irrevocably sprung from the convictions, right?
Well, no. Its true that the underlying facts were likely the same, or at least that there was a major degree of overlap. But as the CAV confirms today, forfeitures are civil, and so this part of the appeal gets transferred to the Supreme Court.
Believe it or not, thats the only part of todays decision that goes right for poor Settle. He loses his dog-at-large appeal on a technicality, since he neglected to name the county as an appellee. Since this offense arose under a county ordinance, that makes the county a necessary party. The other question he appealed was a sufficiency challenge, and that one bears describing.
Is a criminal defendant entitled to require that at least one prosecution witness make an in-court identification of the defendant as the perpetrator? Candidly, Im not sure; I have never researched the point, and Ive heard opinions on both sides of this question. In this trial, there was never a bold JAccuse! moment where a witness pointed at the defendant and said, There he is; hes the Bad Guy. But when the defense raised this issue in a post-trial motion, the trial court noted that each of four law-enforcement officers who testified had looked at Settle and made a head nodding motion. That, the appellate court rules today, is enough of an in-court identification to establish the sufficiency of the evidence that Settle or at least the guy who sat at Settles spot at the counsel table was the dog-owner.