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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

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.

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