Early Christmas Gift to One Litigant from the Court of Appeals

The Court of Appeals issued a single opinion today, and with it delivered an early Christmas present to the appellant in Michael B. Yourko v. Lee Ann B. Yourko.  At least until the Court of Appeals starts hearing estate and trust cases, you can probably guess by the case style that this is a domestic relations case. The issue is whether the husband could seek to modify a final decree, equitable distribution order and division of military pension order under the trial court’s original jurisdiction.  The trial court ruled that it no longer had jurisdiction and dismissed the husband’s motion for modification of these orders.  The appeal is a Gordian knot of procedural issues that takes 18 pages to unravel, but the ultimate result is that the Court of Appeals finds that the trial court still had jurisdiction to consider the motion and remands the case for it to do so.  Of course, there is no guarantee that the trial court will rule in husband’s favor, but at least he will get his day in court.

As my gift to you, dear readers, I will try to shorten the 18 pages of analysis to three paragraphs.  Let’s start with the obvious — were the orders final in form and thus subject to appeal?  The Court says yes, clearly they entered judgment and left nothing to be done.  Next, were they subject to revision nunc pro tunc under 8.-01-428 due to a clerical error or mutual mistake of fact?  No, says the Court of Appeals, the order was entered exactly as everyone had agreed.  So what’s the beef?

Well, as it turns out, the military pension order, though final and not erroneous in form was wrong in content in that it violated certain provisions of federal law with respect to the division of husband’s military pension, and, thus, at least that much of the order was void ab initio, not merely voidable, because the state court does not have jurisdiction to enter an order contrary to federal law on military pensions.  Now, in domestic cases, unlike most other forms of litigation, the “final judgment” is made up of several different orders which are entered at different times during the proceedings.  Typically, the orders already entered remain under the jurisdiction of the trial court until the very last one is entered — so, one could argue that this order is the “final order” even though technically it is not.

The Court of Appeals notes that there is a split in prior case law as to whether an order (or, in this case, the collective orders dealing with the pension, equitable distribution and the final decree) can be selectively void — that is, void only to those parts that were beyond the court’s jurisdiction — or if a void provision is in the order, is the entire order void.  The Court concludes that the issue is case specific — if the void aspects do not impact the non-void aspects, the case can be remanded solely to correct the void aspects.  But here, the division of the pension would necessarily impact other decisions of the trial court with respect the equitable distribution, support, etc., so the entire order with respect to those elements is void and on remand the circuit court can make what ever adjustments are necessary to correct the judgment.

Three New Published Opinions from the Court of Appeals

At this season of the year with the joy of religious celebrations and festivities for the coming of the New Year, it is unfortunate — but also perhaps necessary — that we will inevitably be reminded of the harshness of the world.  Whether it is the tragedy of the recent natural disaster of unseasonable tornados, the need to provide for the poor who will not have a holiday meal, or the continuing pandemic and the political rancor that it has engendered, we are at once reminded that we are fortunate not to have such troubles at our own doorstep, but also that those troubles are often much closer to home than we would like.

The three published decisions of the Court of Appeals today all regrettably fall into the category of horrors which the legal profession and the courts must deal with.  Two are criminal cases which detail cruelty to innocents, a child in one case, canine companions in the other.  The third deals with a far more sensitive topic which, in its own way is perhaps the most horrifying of all, as it requires the Court to decide, quite literally, the fate of a potential human life.

On any other day, the case of Chelsey Danielle Ingram v. Commonwealth of Virginia would likely be the most upsetting and controversial.  Ingram was found guilty of thirteen counts of animal cruelty.  The issues on appeal were whether the circuit court erred in not suppressing the evidence of a warrantless search and whether the evidence was sufficient to sustain the convictions.

The 4th amendment issue was fairly straightforward as the law enforcement officers unquestionably entered on to the curtilage of the property without a warrant and there found considerable evidence that there were dead, dying and malnourished dogs on the property.  The Court of Appeals, however, agreed with the trial court that the officers had not entered the property with the intent to gather evidence of a crime.  Rather, they had responded to a “dogs on the loose” dispatch and, having found one dog dead in the roadway and other loose, had entered the property in an effort to find the owner. Their actions on the property did not amount to a search before they were able to see clear evidence of the dogs being in distress.  Additionally, several of the dogs were in a wooded area some distance from the home and thus this evidence was subject to admission under the open fields doctrine.

The sufficiency issue was based on the novel argument that the condition of the dogs — dead, malnourished, and generally uncared for — was merely a reflection of their state “at one point in time” and, thus, failed to establish any acts of neglectful or deliberate mistreatment.  Apart of evidence of the physical condition of the home — which is depicted in color photographs included in the opinion — the Court of Appeals points out the obvious flaw in Ingram’s “point in time” argument — any rational trier of fact would readily conclude that the dogs did not come to be in their deplorable condition suddenly, but that this was the result of an extended period of neglect.  While it might be possible to hypothesize that Ingram had rescued the dogs shortly before they were discovered by law enforcement, there was certainly no evidence that this was the case, and as the courts are wont to remind us, a hypothesis of innocence must flow from the evidence and not the fertile imagination of the defendant or her counsel.

James Eberhardt v. Commonwealth of Virginia also deals with cruelty, but of a kind more savage as it involves the deliberate mistreatment of a child by a parent.  While there are a number of statutes that can be used to bring charges in such cases, this case was brought under Code § 40.1-103(A), which is the child labor prohibition statute and its references to mistreatment and torture of children originally intended to address the mistreatment of apprentices and other child workers.  More recently, however, this statute has been used to address mistreatment of children by caregivers where there is particular cruelty.  Recent cases have included allegations of children being caged or forced to endure harsh environmental conditions as punishments for misbehavior or, worse, as “treatment” for developmental disorders.

Eberhardt apparently learned from his own experiences in youth the biblical maxim of “spare the rod, spoil the child,” explaining his use of corporal punishment on his 9-year-old daughter that he had as a child been beat[en] with switches and belts.”  Proverbs 13:24, which Eberhardt incorrectly ascribed to Jesus, has been too often used as a basis for justifying corporal punishment.  The literal meaning of the proverb, however, was never meant to do so — but was corrupted by the simplistic translation which appears in no authoritative version of the Bible.  A literal translation of the original Hebrew would more properly read, “He who spares his son from judgment hates him, but he that loves his son instructs him earnestly.”  The translation of “rod” as an instrument of punishment was a medieval concept, where as in late pre-Christian times the rod was a symbol of authority.

On appeal, Eberhardt contended that the punishment he administered did not rise to the level required by the statute, which requires proof that the child was “tortured, tormented, mutated, beaten or cruelly treated.”  Eberhardt admitted to using a dog leash to repeatedly strike the child on her buttocks, asserting that he used the “webbed” cord in the middle, not the ends with metal buckles, because he “didn’t want to hurt her.”  However, there was additional evidence of significant bruising and prior injuries on the child’s arms, legs and back as well.  The Court concludes that this evidence far exceeds the “bounds of moderation and reason” that the common law permits when considering the parent’s right to discipline a child.

There are two additional points about this opinion that are worthy of note.  The first is that the injury that the school nurse and resource offer first discovered to instigate the investigation was not cause by Eberhardt, but by the child’s mother, who had struck her arm with her fist three time and caused a significant bruising of which the child complained.  The other is the transgression which engendered the beating and whipping — the child’s teacher had reported that girl talked too much in class.

The last of the published opinions today is the most disturbing, not because it involves a greater level of pain and injury, but because of the clinical and nearly emotion-free discussion of Shelleyan topic — the treatment of a human zygote as property in an equitable distribution following a divorce.  I will respectfully decline to use the term “pre-embryo” that is used in the opinion.  This, I should explain, is not from any particular religious, moral or philosophical concern, but merely the preference to use the correct scientific term from the stage of development.  If you are not familiar with the precise meaning of these words, a simple explanation is that a zygote is created by the merging of the sperm and the ovum and this term applies to the development of the organism until the cells begin to differentiate into identifiable and distinct critical internal body structures — an embryo — and thence to a point of segmentation of external body parts — a fetus. In human reproduction, these three stages are defined as from conception to 2 weeks, 3 weeks to 11 weeks, and after 11 weeks.

The preceding paragraph was intended not so much as a lesson in biology as the demonstrate what is troubling about the Court’s opinion in Michael Herbert Jessee v. Michelle Evora Jessee.  It is clear that for the trial court, the counsel for the parties at trial and on appeal, the Court of Appeals, and even the parties themselves in a very great degree, the discussion of determining the “ownership” and monetary value of a fertilized human ovum is just so much a workaday matter as deciding the possession of a collection Barry Manilow albums.  That comparison is, admittedly, harsh, and I would like to believe that to the extent the various actors in this latter-day morality play had taken a sang-froid approach is as much to insulate them from the horrific nature of what is being contemplated as it is to a lack of emotional depth.  Indeed, the two appellate counsel are both highly qualified attorneys with considerable experience of dealing with both the mundane and mortifying extremes of the justice system and I feel confident that, at least on their part, this was the case.  Still, one cannot help but feel that this is a subject matter that really should not be one for a legalistic determination.

The facts are distressingly familiar in the pattern, if not in the specific object of the litigation.  The Jessees married and attempted to bring a child into “the world in the usual way” as Harry Chapin put it, but after six months (generally a far too brief period for most fertility doctors to consider extraordinary means, but there may have been extenuating circumstances) turned to modern science.  Eventually two viable zygotes were created, and one was implanted into the wife while the other was frozen.  The wife miscarried the pregnancy, which was devastating to her and ultimately to the marriage.

In his complaint for the divorce, the husband specifically requested that he be awarded the remaining zygote and stated that it was intention to destroy it.  He gave several reasons for this, including his desire not to be financial responsible for a child and also the “pain” of knowing that he potentially had a biological offspring.  In its opinion today, the Court of Appeals notes that the first concern, while possibly a moral one, is not a legal one because there is an express statutory provision permitting a parent to disclaim (or rather, not accept positively) financial responsibility for a child conceived by artificial means with a pre-separation zygote by the other spouse.  The fact that such a statute exists shows that this is an issue that is hardly novel — but that fact is also in some ways horrifying to me.

In any event, the wife indicated that she wanted possession of the zygote and stated her intent to seek to be impregnated and to bring the child to term.  Her reasons were that, given her age, 43, she was not likely to be able to conceive a healthy child.  As an aside, the myth of decreased fertility and increased risk of birth defects after forty is just that — a myth.  Until perimenopause, the differences between a 15, 25, 35, 45 and even 55-year-old woman being able to conceive and have a healthy child are measured in fractions of percentages.

Again, I have verged into the clinical, perhaps because the difficulty of the underlying subject matter of this case simply requires avoiding the uncomfortable truth — we are talking about a human life, not a commodity.  Granted, it is not yet a “person” under the law, but a zygote, whatever your spiritual beliefs may be — is not inert matter, nor is it is divisible — and it most certainly should not be given a monetary value.

So naturally, that is precisely what the husband insisted on when the circuit court awarded ownership of the zygote to the wife — he first wanted the court to explain its method for determining how to award possession and, presuming that this method was valid, to determine what his monetary compensation from the balance of the equitable estate should be.  The circuit court gave a somewhat vague response to the first question — stating that it had weighed the equities.  To the latter, it simply declined to assign a monetary value to Zygote, stating that it had no market value and no practical replacement value.

The Court of Appeals deals with this as a case of first impression, noting that while there is case law in other jurisdictions, Virginia has not had to consider the question of ownership of a zygote in the context of a divorce (it has occurred in the context of an estate), so there is no specific guidance on the factors to be considered or to the determination of the monetary offset (if any) to be made when the “property” is awarded to one spouse only.

The Court concludes that it cannot address the question of whether the zygote is “property” because the parties and the trial court treated it as such and, thus, it is the law of the case. I disagree that the Court could not have addressed this issue — I do not believe that the law of the case doctrine can bar a court from considering the fundamental nature of a thing.  If the parties had agreed that a child was property with a monetary value or that a dog was to be treated as a child for purposes of determining child support, and the trial court had somehow allowed this, I do not believe that the Court of Appeals would have accepted this as binding.  While I concede that the intertwined moral, ethical, religious and implications of this question are indeed complex — and unquestionably would have been better determined by the elected branches — I will simply take the position of President Truman when others complained that such decisions — such as dropping the atomic bomb — were too difficult.  “The Buck Stops Here.”

The Court examines three approaches used in other jurisdictions to analyze the awarding of a “preserved” zygote — contemporaneous mutual consent, contractual, and balancing.  The first of these in effect awards the “property” to both parties and the zygote(s) remain “preserved” until there is mutual consent to their use or destruction.  The second applies only if there is a pre-existing agreement.  The third, which I would argue the trial court applied here without specifically reciting its elements — weighs the parties’ respective interests.

Noting that the first approach is “disfavored” and finding that the Jessees did not have a contractual agreement, the Court concludes that the balancing of interest method should have been used in this case — and the Court clearly disagrees with me that this is what the circuit court did — or at least did not do so with clarity.  So, the issue of ownership of the zygote will be remanded for reconsideration of specific factors set out on the opinion — and because it will be remanded, the Court declines to address the issue of whether the zygote has monetary value.

Court of Appeals Issues Administrative Law Opinion — Now that I’ve Lost Your Attention,

Anyone who reads this blog with any regularity knows that the one topic quicker to put your humble correspondent off his feed than any other is Administrative Law.  It’s just not his cup of tea and never has been.  So naturally when I saw that the appellant in today’s one published opinion from the Court of Appeals of Virginia was Virginia Manufacturers Association, Et[] Al., I was prepared for a big ol’ yawn fest.  The VMA was suing, let’s see . . .Ralph S. Northam, Governor of Virginia, Et[] Al.?   Now, typically, in Administrative Law cases the government entity is some board or agency, not the Governor.  Also, the “Et[] Al.” in each case piqued my interest, especially as it turned out to be “et als.” (We’ll address the square brackets and the added “s” at the end of the post.)

In addition to the VMA, the appellants included Jon Tigges, Zion Springs, LLC, Grace Church of Fredericksburg, Josh Tigges, Dave Larock, Anne Waynette Anderson, Sponsor Hounds, LLC, River Rock Entertainment, Inc., Linda Park, Fujiya House, Inc., Heidi Bundy (Individually, and on Behalf of “A Little Bit H[i]ppy”), Jeffrey Frederick and Brew Republic Bierworks.  There were fewer appellees beside the Governor, but they made up for it in the length of their titles: M. Norman Oliver, State Health Commissioner, C. Ray Davenport, State Commissioner of Labor and Industry, and Virginia Safety and Health Codes Board, C/O Charles L. Stiff, Chair.

[N.B.  The opinion lists as one of the appellants, “Heidi Bundy (Individually, and on Behalf of ‘A Little Bit Happy’)” – however, Ms. Bundy is a Roanoke merchant, and I happen to know that the name of her establishment is “A Little Bit Hippy” – a reference to the sixties fashion styles purveyed therein, not the size of the patrons.  I do not know where the error in transcribing the name occurred or at whose hands.]

The appeal involves the dismissal of the appellant’s suit by the Circuit Court of the City of Richmond challenge two of the Governor’s COIVD-19 Executive Orders.  Specifically, EO 63, which required patrons to wear face coverings inside buildings; EO 67, which placed Virginia in “Phase Three” of its reopening plan.  The suit also challenged the Virginia Safety and Health Codes Board’s Emergency Temporary Standard (“ETS”), which provided certain workplace requirements designed to prevent the spread of disease to and among employees and employers.

There were four claims asserted in the suit: Count I alleged that the EOs and OPHEs violated the Virginia Administrative Process Act (“VAPA”); Count II requested a declaratory order setting aside the ETS; Count III alleged that the EOs, OPHEs, and the ETS imposed restrictions that violated the Virginia Religious Freedom Restoration Act (“VRFRA”); and Count IV alleged that these restrictions violated the separation of powers provisions of the Virginia Constitution and impermissibly infringed on rights of assembly and association and the free exercise of religion.  The suit was filed over a year ago in September of 2020.

The circuit court found that the appellants had alleged a sufficiently specific harm to give them standing to sue, but dismissed their complaint finding that 1) the VAPA did not apply the Executive Orders, 2) any claim regarding the ETS was moot because it had already expired, 3) the appellants had not alleged a “substantial burden” on free exercise as required by the VRFRA, and 4) because any curtailment of appellants’ freedom of assembly had a “real or substantial relation” to the COVID-19 public health crisis and did not rise to the level of a “plain, palpable invasion of rights secured by the fundamental law,” quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).

From these four rulings, the appellants managed to find eight assignments of error.  Frequent visitors to this space are familiar with Koehler’s Theorem of Assignment of Error Density, which is that the merit of appeal declines proportionally to the rate on increase in assignments of error asserted therein.

The Court of Appeals makes short work of three of the eight assignments of error, finding that it lacks jurisdiction (at least until January 1, 2022) to review the dismissal of the claim of violations of separation of powers, which “are enforceable, if at all, as common law actions,” and, thus, fall under the jurisdiction of the Supreme Court of Virginia.  These issues will be transferred to the Supreme Court where the appellants will have to seek a writ of error by petition.

The remaining five assignments of error get a longer treatment, taking up eleven of the opinion nineteen pages, but I shall not belabor the result — the appellants lose on every argument.  The reasons are straightforward and parallel the circuit court’s judgment.  The very nature of executive orders issued under an emergency declaration makes their being subject to the APA almost laughable.  Considering processes that adherence to the APA would require, it’s a fair bet that most EOs involving emergencies — such as hurricanes, winter storms, and civil unrest — would be past long before the first notice of publication was out.  Granted an ongoing pandemic might allow for a more deliberative process, but the law authorizing the declaration of a state of emergency simply does not require that to be done.

Similarly, when the government is no longer enforcing an administrative regulation, whether an emergency one or not, any challenge to it prior enforcement which seeks only its discontinuation is the very definition of mootness.  It so happens that the ETS was subsequently followed by the adoption of permanent standards that were substantially the same as the emergency standards, and the appellants argued that the Court could thus offer its opinion on the validity of the former as a test of the enforceability of the latter.  The Court correctly noted that this argument was not asserted in the trial court and could not be raised for the first time on appeal.  In any case, the result would have been an advisory opinion, which the appellate courts of Virginia are not empowered to give.

Mootness was also at issue with respect to the challenges to the Governor’s actions under the VRFRA because neither EO was any longer in effect at the time of the appeal.  The appellants make a play for getting a review arguing that the harm is capable of repetition while evading review, but the Court of Appeals is having none of that, finding that any future EOs that might impermissibly burden religious freedom would not likely be sufficiently similar to those that had expired and, thus, any opinion of the validity of such future EOs would be an advisory opinion, which, supra, the appellate courts do not give.

Now for those of you who read (or skipped) to the end, what’s all the who-hah with the square brackets and the add “s” on the “et al.”  The square brackets removed unnecessary periods following the “et” in each party name on the Court’s website.  The “et” in “et al.” is not an abbreviation, it’s simple that Latin for “and” with the “al.” meaning “others” as most first year law students know even if they did study Latin in grammar school as young boys (mostly) did from the Renaissance until the mid-twentieth century. Hence, when you have more than one party on a side of case and you don’t want to list more than the first, you simply tack on an “et al.” and the problem is solved.  Except, if “al,” means “others” is it correct to use it where there are just two parties?  Curiously, the answer is both yes and no. Therein lies a tale that is too long here to recount, but can be summarized as follows:

The letters “al” begin every form of the Latin noun alius — singular and plural nominative, genitive, dative, accusative, ablative and vocative — so “al.” could, in fact, stand for any of these.  However, in the context of a series of names in a title, which is essential what a case name is, you would use the nominative case, alius, alia, aliud, aliī, aliae, alia, respectively the masculine, feminine and neuter forms of the nominative singular and plural of alius. So, is et al. short for “and another” or “and others”?  As the yes and no answer suggests, it stands for both now.  However, in the past, it stood only for “and others,” and the rule was that the case name (or any other nominative list) could be shortened to the first plus “et al.” only if there where at least three individuals.  If there were only two, then you didn’t get to emendate by using the abbreviation.

However, as this antiquated rule was ignored or forgotten, “et al.” was increasingly used to simply indicate that there were one or more additional parties.  Except, then someone pointed out that this was inaccurate, or at least lacked clarity.  However, this someone, not knowing about the former rule or perhaps not wanting to alienate those who had become used to shorter case names, suggested that “et als.” should be used when there were more than two parties.  Adding the “s” to pluralize a noun was, of course, proper English, it was not proper in Latin grammar, and this caused something of a backlash among traditionalists (or purists) of the use of Latin in the law.  Nonetheless, “et als.” gained a fair number of followers and can still be found in many reporters and other sources where a case name is truncated to just the first party.

We will save the discussion of how &c was replaced by “etc.” instead of “et cet.” for another day.