ANALYSIS OF FEBRUARY 12, 2008 CAV OPINIONS[Posted February 12, 2008] The Court of Appeals announces three published rulings today. The decisions hit the wire relatively late in the day, so I got a late start on the analysis, but they’re all here.
The court affirms a ruling that denied benefits to the housemate of a decedent, in Dunnavant v. Newman Tire Co. The decedent worked for Newman Tire and died as a result of a work-related injury. Dunnavant sought death benefits, claiming he was the decedent’s dependent. But he wasn’t what you’d traditionally think of as a dependent; the two were not related by blood or marriage. They were, the court concludes, housemates. Dunnavant contended that he was disabled and depended on the decedent to support him.
In analyzing this claim, the court observes that the blood-or-marriage thing isn’t a firm requirement. Some “dependencies” are presumed, such as with minor children or destitute parents. But if a claimant can show from all the facts that he was in fact a dependent, then he can qualify for benefits.
The problem was, Dunnavant only made what I see as a halfhearted effort to show his dependent status, or even his disability. He asserted that he was disabled and receiving Social Security, but didn’t bring to the hearing a single document to support that. He alleged that the decedent had paid for his (evidently prodigious) medicines, but he didn’t bring any of those bills, either. Essentially, he painted an unsubstantiated picture of the decedent’s benevolence toward him, but without showing any legal or moral obligation to do so.
Those several failures doom Dunnavant’s appeal. The court cites decisions from other jurisdictions to establish that a relationship without a legal or moral obligation to support won’t establish dependency. At most, what Dunnavant had was a very charitable friend, but not a formal patron upon whom he legally depended for support. The court thus affirms the denial of benefits.
Couture v. Commonwealth presents a sad story of the criminal prosecution of a police officer who shot and killed a suspect during an arrest. I won’t describe all of the circumstances, but will merely say that the police officer helped to create the exigency that led to the shooting.
At his trial for voluntary manslaughter, the officer tried to get the jury to accept that he genuinely and reasonably believed that his life, or the lives of others, was in jeopardy. The jury didn’t accept that, consistent with the doctrine (reaffirmed just last year here in Virginia) that one who is at least partly at fault for the “emergency” can’t rely upon the doctrine of self-defense to escape liability.
During the trial, after a meticulously crafted jury instruction that defined the contours of the self-defense doctrine, the jury sent back a question: “Does self defense still apply if the officer is largely responsible for creating the perception of danger?” (If you’re the defense, you realize upon hearing this question that you’ve got a problem in the jury room.) The defense asked the trial judge to answer the question with a simple, “Yes,” but the judge declined to do that. Instead, he told them that the answer to the question was in the original instructions, as it actually was.
Normally, that would be enough to end the inquiry, but the court goes on to list one more clincher: The correct answer to the question isn’t “Yes,” but “It depends.” A categorical affirmative response would have exonerated the officer even if he wholly unreasonably created the danger himself, and then shot the suspect. Let’s face it; no judge and no jury is going to let an officer get away with that.
The officer also offers a fairly transparent sufficiency challenge to the conviction, but that gets him nowhere, so his conviction is affirmed. The final item in the story is the sentence recommended by the jury and imposed by the court – a fine of $2,500, and no incarceration. It’s clear that the jury felt that the officer was presented with an emergent situation that he himself exacerbated by an unwise choice in a heated situation. Normally, one might not appeal a case in which there is just a fine like this, but the officer’s job might well be in jeopardy with the felony conviction.
The court announces today that it grants en banc review of December’s ruling in Ferguson v. Commonwealth, in which a divided panel of the court had held that a suspect had invoked the right to counsel, and accordingly a subsequent confession should have been suppressed. Expect a ruling from the full court some time in the middle of the year.
Today’s opinion in Rogers v. Rogers elaborates on two issues. One seems fairly straightforward – the trial court is admonished to recalculate spousal support by considering Husband’s business expenses at the time of the divorce, even though detailed information had not been presented at an earlier stage of the case. This aspect f the case seems almost factually unique, and may be of limited precedential value. But the real reason why this opinion is published, in my view, is the court’s ruling on an important issue that will assuredly recur in many other cases – the probability of one party’s receiving a discharge in bankruptcy for an assigned debt.
It’s quite common in divorce decrees for one spouse to be assigned a given debt, and that happened to the Rogerses. In an initial decree, the court determined that Husband would be liable for two credit card debts. In a subsequent hearing on a motion to reduce support, the trial court learned that in the intervening months, Husband had filed a bankruptcy petition. The court therefore concluded that Husband was likely to get a discharge, and that the credit card issuer would then turn its collection efforts to the (solvent) Wife. Accordingly, the court increased the amount of support payable to Wife due to the likelihood that she would have to pay the credit card bill.
There are a couple of problems with this. First, whether Husband would get a discharge, and whether the creditor would then start collection efforts against Wife, were very much open questions as this case made its way through the Court of Appeals. In fact, Husband may well have been denied a discharge due to an exclusion in the bankruptcy code. As well, there was no evidence that the issuer intended to turn to Wife for payment; the trial court simply assumed that it would do so.
The second problem is that reallocating a debt like this, based on an assumption that the liable party will get bankruptcy relief, has a tendency to undercut the bankruptcy court’s adjudication. Whether a party should get relief from a debt is unquestionably the bankruptcy court’s turf, and the trial court effectively proposed to undo what it feared the bankruptcy court would do.
Now, you’ve all read the Supremacy Clause, so you don’t need to speculate on who’s going to win a conflict like that. The Court of Appeals rules today that a court granting a divorce must omit considerations over whether a party will in the future get some form of relief. It’s important to note, however, that according to today’s opinion, the divorce court can modify a support order “where a material change in circumstances due to bankruptcy otherwise occurs,” that is, after the fact of the discharge.
I am admittedly not a bankruptcy honcho, so my dim view of this close distinction might seem foolish to sophisticated bankruptcy practitioners. Personally, I don’t think it would make a difference whether the spousal support modification comes before or after a discharge; I believe the bankruptcy court would take a dim view of it in either circumstance. But we don’t need to finally resolve this issue in today’s ruling; for now, the case is remanded with a direction to the trial court to recalculate support based on these principles.