ANALYSIS OF SEPTEMBER 8, 2009 CAV OPINIONS

 
[Posted September 8, 2009]  I always try to look out for the appellate geeks out there.  For one reason, there are so very few of us; we have a special kinship.  In that light, I can let you know that we have a rare gift from the Court of Appeals today – an opinion construing the “adjudicating the principles of a cause” provision in Code §17.1-405(4).

 

Domestic relations

By the account we get today, Billy Chaplain is rich.  Not stinking-rich, like Bill Gates; but let’s just say that he has twenty million reasons not to have to worry about his financial future in his declining years.

 

One day in 1996, he met a Moroccan lady who was visiting her brother here in the States.  The two instantly hit it off, becoming engaged within two months of laying eyes on one another.

 

When you marry someone that rich, there are issues to consider, and those issues came to the forefront in a prenuptial agreement that Chaplain’s lawyer prepared.  Chaplain brought her into his attorney’s office, ostensibly to have her sign what he described as “marriage papers.”  There was conflict in the evidence over her fluency in English, but there was no conflict in the fact that she didn’t have a separate attorney review the document for her; she said that she trusted her future husband, and since the document was open to the signature page when it was handed to her, she signed where she was told.

 

After a decade of marital bliss, the parties found themselves in divorce court, where the prenup took center stage.  The key provisions stated that the parties waived support and equitable distribution, and that the wife’s only right to her husband’s fortune was that she could receive $100,000 if she was still married to him at his death.  Wife contended in the trial court that this provision was unconscionable, particularly given her limited communication skills in our language and the extraordinary disparity in the parties’ fortunes.

 

The trial court down here in Virginia Beach listened to the wife’s evidence and then sustained a motion to strike it, finding that the prenup “was not unconscionable on its face.”  Wife appealed that ruling.

 

The first issue – the sexy ones to the appellate geeks – is that the ruling on the motion to strike was not contained in a final order in the case.  Today’s opinion, in Chaplain v. Chaplain, doesn’t say what else the trial court had to do, but I infer that it did not grant a divorce or provide other ancillary relief.  Despite the fact that this ruling isn’t final, the CAV decides the case anyway, owing to that “adjudicating the principles of a cause” provision.

 

As a threshold matter, the court determines that the ruling on the prenup essentially does adjudicate the principles of this cause.  It helps that the parties had jointly stated below that the validity of the prenup was “the only issue to be decided by the trial court” and that no other issues were contested.  Under the rules governing interlocutory appeals, that means that the ruling on the prenup was basically the whole case, so appellate jurisdiction exists.

 

I have truncated the court’s discussion significantly, so if this aspect of appellate practice interest you, take a look at pages 3-6 of today’s slip opinion.  After that, the court goes on to reverse the trial court’s peremptory ruling on the motion to strike.  It finds that, taking the evidence in the light most favorable to the wife (the party resisting the motion to strike), that evidence established a prima facie case of unconscionability.  This doesn’t mean the trial court ultimately will have to rule in favor of the wife on this point, but it erred in striking her evidence.

 

Criminal law

The court gives us an interesting discussion of what, exactly, is a firearm, for purposes of two convictions of using one in the commission of robberies.  The opinion is Startin v. Commonwealth.

 

From today’s factual recitation, it looks like the gendarmes got the right guy; Startin stuck up to drug stores, stealing not money but bottles of the pain reliever Oxycontin.  Apparently the stuff is addictive – happily, I have never needed it, so I’m not sure.  But when the police tracked him down, he readily acknowledged that he had perpetrated the robberies.

 

The problem wasn’t in getting him for robbery; it was the companion firearms offenses that produce today’s opinion.  Startin used one of those replica handguns they sell at the Franklin Mint; this one was a bow to no less a personage that John Wayne.  It looks for all the world exactly like a regular .45, but it has no firing pin, and it cannot possibly fire a projectile.  So is it a firearm?

 

Note that the statute criminalizing this conduct doesn’t prohibit the use of a firearm-look-alike; it has to be a firearm.  We learned last year that a BB gun can be a firearm for these purposes, despite the fact that no “fire” is involved.  From the perspective of the victim, a replica is as good as the real thing – they’ll both scare the hell out of you when they’re pointed at you.  So is a non-working model a firearm for these purposes?

 

According to a majority of today’s panel, it is, despite less-than-clear guidance from past appellate opinions.  Judge Powell concludes that the fact that it can’t fire doesn’t mean that the replica has “lost its identity as a firearm” (quoting an earlier case).  Judge Elder dissents, saying that this was, in effect, a toy, and preexisting caselaw holds that the dispositive feature of a firearm is its capacity to shoot a projectile, something this model couldn’t do.

 

Judge Powell’s majority opinion notes that this is an issue of first impression, and that language tends to attract further appellate scrutiny, so we may not have seen the last of this case.