ANALYSIS OF FEBRUARY 8, 2011 CAV OPINIONS[Posted February 8, 2011] The Court of Appeals gives us two published opinions today, one of which includes the double treat of (1) a discussion of the fugitive disentitlement doctrine and (2) application of the new right-for-the-wrong-reason doctrine.
Reading cases that involve parents using children as tennis balls is always troubling. The set of parents in Morrison v. Morrison were of recent vintage when they split up; the mother filed a divorce petition in Michigan just 11 months after their 2002 wedding, while their daughter was still in diapers. The Michigan court granted the mother a divorce plus legal and physical custody seven months later, in 2003. The decree forbade the mother to take the child more than 100 miles away without permission from the court.
That didn’t stop her; she took the little girl, by then five years old, to Austria to live. The father got the Michigan court to modify the order to give him additional visitation rights.
I will ask my loyal readers to permit me to save them the migraine-inducing recitation of a swirl of petitions filed and orders entered in Michigan and Austria (poor Judge Humphreys, who authors today’s unanimous opinion, had to endure all those headaches). I’ll fast-forward to a Virginia courtroom (the father had moved here at some point in the proceedings), where the judge declined to register the original Michigan decree under the UCCJEA, basing its holding on the fugitive disentitlement doctrine.
Three years ago, the Supreme Court decided Sasson v. Shenhar, in which it involved the doctrine to deny relief in the courts to a party who was actively thwarting the courts’ jurisdiction by remaining a fugitive. Today, the CAV panel finds that this doctrine doesn’t apply here because of several aspects of the procedural posture. A Michigan probate court had indeed ruled that the mother had left the country impermissibly, but that circumstance really had nothing to do with this proceeding. The doctrine only applies when three circumstances are present: (1) The party is a fugitive; (2) there’s a nexus between the appeal and the party’s fugitive status; and (3) dismissal would effectuate the doctrine’s policy concerns. Thos circumstances don’t exist here, so the court holds that the doctrine doesn’t apply to the mother.
This victory is painfully temporary for the mother, though, as the court affirms the judgment on a ground not relied upon by the trial court. The panel today finds that the UCCJEA mandates registration of foreign orders, as long as those orders have not been modified. Here, the father got the 2003 order modified to give him extra visitation rights. Accordingly, even though this wasn’t the basis of the trial court’s ruling, it’s an independent basis on which to affirm.
This case illustrates one of the most troubling aspects of domestic-relations practice, to which I alluded above: its effect on children. These two sentences of today’s recitation of facts were particularly painful to read: “In April 2009, father traveled to Austria to bring J.M. back to the United States. On April 15, 2009, mother was arrested in Austria, and the Austrian police removed J.M. from her kindergarten class and delivered J.M. to father.”
The other appeal decided today is a sufficiency challenge to a larceny conviction. Marsh v. Commonwealth involves a man who borrowed some of his girlfriend’s jewelry and used it to get loans at a pawn shop. When the girlfriend found out, she became his ex-girlfriend, and the police got involved. That’s because only the boyfriend knew he was borrowing the jewelry.
The defense centered on the boyfriend’s intent. Specifically, if you don’t have the intent to permanently deprive the owner of property that you “borrow,” then technically it isn’t larceny. The boyfriend pointed hopefully to language form a very recent Supreme Court opinion, laying down that very principle. The court notes today that the intent to return “must be unconditional” for it to be a defense; you can’t “borrow” someone’s property and then offer it back to him for a reward.
Today’s panel differs slightly in its approach to this argument. All three judges ultimately reject it, but the majority (Judges Humphreys and Alston) finds that the “unconditional intent” doctrine isn’t dispositive here. (Today’s concurring judge, Judge McClanahan, thinks it does; she would affirm on that limited basis.) The dispute centers on whether the “condition” is placed on the victim or on one’s self; Judge McClanahan thinks it doesn’t matter, and I think she has a point. But no matter; the majority rules that the boyfriend didn’t have the ability to redeem the jewelry, as evinced by his financial straits (you know, the problem that made him seek a loan in a pawn shop in the first place). He owed over $3,200 on the outstanding loans, and testified that he expected to get paid around $2,000. Those numbers don’t match up, so the trial court was entitled to reject the boyfriend’s defense.