Virginia Family Law Appeals

Divorce ranting = criminal obscenity: Barson reversed en banc

CRIMINAL-LAW ISSUES – REVERSED “OBSCENE COMPUTER HARASSMENT” CONVICTION NOW REINSTATED – CONSTITUTIONAL AND OTHER PERMISSIBLE OBSCENITY DEFINITIONS. It seems there is hardly anything that delights no-longer-loving spouses quite so much as a new criminal law they can clobber each other with. In an opinion that bids fair to make criminals of large numbers of divorce litigants of both sexes (though it’s probably safe to say more of our male clients than female), the Court of Appeals reinstated en banc the conviction of an estranged husband who used rude and gross language to characterize his wife’s apparently undenied sexual misconduct in communications to her family and friends.  This matter, you will remember, concerned Code §18.2-152.7:1, punishing “harassment by computer” as a Class I Misdemeanor, and in the panel opinion of November 2, 2010, the Court of Appeals had felt it was required by Allman v. Commonwealth, 43 Va. App. 104, ___ S.E.2d ___ (2004), to read the obscenity requirement of §18.2-372 into that computer statute.  In other words, while the computer harassment statute itself is quite willing to punish communications intended to harass which include the “obscene, vulgar, profane, lewd, libidinous and indecent,” or the making of obscene propositions or “threatening any illegal or immoral act,” the panel had thought that conviction on the strength of the cuckolded husband’s clearly vulgar, offensive and sexually explicit language here would require finding obscenity as defined by the U.S. Supreme Court.  But the full court ruled otherwise.  How did they do that?  Well, despite possible availability of other ways of making this ruling, it held that the defendant could not rely on the lack of prurient-interest arousal potential in his words because the Supreme Court-defined obscenity is only one kind of use of the word obscene in our 21^st-Century English language.  The Allman case tied other Code sections that speak of obscenity – §18.2-427 for instance – to the Supreme Court’s Miller v. California, 413 U.S. 15 (1973), circumscription of the punishable term, it was tailoring the statute too narrowly for its intended purpose.  The statute under which the offender here was convicted does not on its face include a definition of obscenity, so that’s enough.  The definition in the U.S. Supreme Court’s Miller case does not accurately encompass the kind of communication our computer statute is interested in, so it just doesn’t apply.  What our state legislature wants to keep off the internet is everything vulgar, profane, lewd, libidinous or indecent.  To the majority, this man’s remarks about his wife’s round-heeled conduct are full of explicitly obscene thoughts, and clearly support a conviction.  Dissenting Judge Elder would continue to read into this statute the definition of obscenity from the Allman case as the appropriate obscenity definition for use in §18.2-152.7:1, for the reasons he gave in the panel opinion.  The present case’s rude and tasteless language, he believes, does not rise (or descend) to the level of obscenity, and should not bring criminal punishment under our State statutes.  (Panel Opinion at 30/4 FLN 15.  The offensive e-mail messages, by which the husband hoped to embarrass his wife, were precipitated by her Craig’s List advertisement for sexual activity.  The majority in the current case, Barson v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (7/5/11), says in a footnote that the constitutionality of the statute was not at issue in Allman, only the sufficiency of the evidence.  Judge Humphries concurred in part and dissented in part. 

 

The majority points out that, after all, the obscenity definition contained in §18.2-372 specifically states that “the word ‘obscene’ where it appears in this article shall mean...etc.”  It also points out the statutory definition that §18.2-372 gives is the one which Miller v. California, 413 U.S. 15, 24 (1973), promulgated for pornography.  Obscenity and pornography of course are not interchangeable terms.  The Allman opinion, it says, had the effect of inaccurately defining all obscenity as only that which is constitutionally “pornographic.”  And it also notes that when those statutory definitions apply, courts are supposed to normally give a term its “ordinary and usually accepted meaning.”  It gives a definition from Webster’s Third New International Dictionary, 3^rd Edition, 1993, instead. The defendant husband also raised an interesting issue of retroactivity as a due process matter, invoking Bouie v. City of Columbia, 378 U.S. 347 (1964), to argue that if the Court of Appeals is going to overrule Allman, due process requires that it do so only prospectively, because otherwise the “unforeseeable judicial enlargement of a criminal statute, applied retroactively” would operate as an ex post facto law.  But the Court of Appeals dismisses this objection with a reference to the holding in Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 143 (2002), that Bouie applies only to changes in interpretations of a criminal statute that are “indefensible by reference to the law that had been expressed prior to the conduct in this issue.” Because the Allman case dealt with a different criminal statute, and could still have been reviewed by the Court of Appeals en banc and by the Virginia Supreme Court on appeal, it wasn’t good law that would afford reliable guidance to an offender.  Judge Elder in his dissent would nevertheless stick to his panel opinion.  (The panel opinion was unpublished, but reported here and at 30/4 FLN 15.)

Barson case: Outrage at spouse's adultery is not criminal obscenity

CRIMINAL REMEDIES – CUCKOLD’S CRUDE ACCUSATIONS – OBSCENITY CHARGE.  In a police-worshiping society where most people think that the solution to any problem is to pass a new criminal law, and then to prosecute, and have a criminal trial, and where there are plenty of ambitious prosecutors eager to make legal history, be the first kid on his block, etc., what will happen to a man who crudely curses his flagrantly adulterous wife?  Why, a criminal trial of course.  (Of him, of course.)  Having sent his estranged wife in Virginia, from Texas, a very large number of vulgar e-mails prompted by his discovery of her appalling ads on Craig’s List, this husband was convicted of computer crime under Code §18.2-1527:1, which describes computer harassment with indecent language.  Barson v. Commonwealth, unpublished, (11/2/2010).  This opinion concerns conduct frequently resorted to by married persons having the usual bitter disputes, and is one of many, many cases which could easily end up in criminal court as well as a divorce.  From the opinion it is difficult to see any indication of whether the wife’s sexual activities, and desire for more, or her placement of the ads, was ever denied or disputed.  It is also difficult to see how, if even a small fraction of what the husband alleged in his numerous e-mails was true, this wife could possibly be insulted, by anything said by anyone.  However, the Court of Appeals focused, as it is supposed to, on the constitutional issue.  There was no question the husband’s language was vulgar and sexually explicit, and intended to express anger and to shame the wife into curbing her extra-marital appetites.  Nor, from the volume alone, could it be disputed that his e-mails were harassing.  Nor is it easy to see how anyone can be convicted of “indecency,” given the dizzying pace at which the concept of decency is changing, or dissolving, in today’s society.  So the only way the courts can convict under this indecency-punishing statute, the Court of Appeals majority explains, is to do what that they have been forced to do before, in Allman v. Commonwealth, 43 Va. App. 104, 108-09, 596 S.E.2d 531, 533-34 (2004), and restrict the statute to the punishment of obscenity “in order to avoid constitutional concerns.”  And although the husband’s words were clearly vulgar and offensive and sexual, as the majority explained, “his use of these words ‘considered as a whole’ and in the context of the marital discord and the angry, offensive tone and purpose of the e-mails,” did not establish a purpose of appealing to a prurient interest in sex.  They were not in any way intended to arouse or appeal to sexual desire, the majority said, “either Barson’s own or any other individuals’ to whom he had sent the e-mails.”  A dissent by Judge Humphries, however, began with the assumption that a husband talking about his wife’s sexual activities must be doing it for purposes of his own prurient interest, and opined that the fact that the language was “replete with ‘sexual condonations’” was enough to convict him.  The majority thought otherwise.  This is a difficult case to write about, because we will never know from either of the opinions whether there was any evidence or admission that the wife really did all the acts that her husband described, or whether he merely thought or surmised that she had done them.  His words seemed to indicate that there were plenty of gossips ready to tell him about her activities.  That he thought her guilty of these things is virtually beyond doubt, but the ultimate facts are not apparent.  In that context, this is really a very peculiar case, because the wife could be the most slatternly adulterer these shores have ever seen, a woman who went extremely far beyond merely violating her marriage vows and went to absurd lengths not only to enjoy herself but to degrade both her husband and herself. Or she could be a pure and innocent lady who simply disliked her husband and rejected him, as the modern law allows her to do. (Oh yes, and put salacious ads on Craig’s List to …, to … uh, well, … exercise her constitutional rights, maybe?) The most peculiar thing about the case is that the majority and dissenters so fully talked past one another. The majority follows the Allman precedent, and tries to apply the definition of obscenity, and patiently explains that since no one could possibly have his or her prurient interest aroused by the husband’s screed, except possibly, in some perverted way, himself, and goes on to state that in fact there is no evidence to support that hypothetical view. The dissenter goes off in a different direction. The dissent, obviously highly offended by this vulgar husband’s inconsiderate and insulting libels upon the character of a lady, accuses the majority of setting up self-gratification of a perversely-motivated cuckold as an indispensable element of an obscenity finding, and failing to find it, (as a jury issue), saves him from a deserved criminal conviction.  If this were what the majority had done, the dissenter would of course have a point when he accuses the majority of trying to rewrite the obscenity test.

Noce v. Noce: Post-separation mortgage payments and STD as adultery proof

A trial judge refused to give a husband credit for his post-separation payments on the second mortgage on the former marital home, and the Court of Appeals affirmed, in Noce v. Noce, unpublished, 20 VLW 1530 (4/11/06).  The reasons given were (a) that the husband never showed that what he had used after separation to discharge this mortgage liability were not marital funds, (b) that he had used the property exclusively himself after separation, and (c) that his records for the payments were inadequate.  As to grounds, the Court of Appeals also affirmed the trial court’s judgment that the man’s adultery proof against his wife was insufficient.  It was this: that after he discovered he had genital herpes, and confronted his wife, she said that she “didn’t know he had it,” and husband inferred that the “he” referred to was her boy friend.  His only other evidence was proof that after separation the wife had met another man in her apartment more than once.  This, the trial court said, does not rise above the level of mere suspicion and conjecture.

Martin v. Ziherl: Va. court decriminalizes fornication

Case summary by John Crouch

CRIMINAL LAW — CONSTITUTIONAL LAW —  FORNICATION AND POSSIBLY ANY OTHER "INTIMATE RELATIONSHIP" PROTECTED. The Virginia Supreme Court struck down a statute making fornication a crime, citing Lawrence v. Texas, the U.S. Supreme Court decriminalizing sodomy.  607 S.E.2d 367 (1/14/05, 31 FLR 1137).  The ruling did not come in a criminal prosecution, so the state was not involved.  This was a suit for a tort of transmitting a sexual disease, and the defendant argued that the plaintiff could not recover because she had been engaged in the crime of fornication at the time the injury occurred, and in fact the injury was caused by her commission of that crime.

SEPARATION AGREEMENTS – CONTRACTUAL ALIMONY – ADULTERY CUTOFF CLAUSE – NEED TO PLEAD ADULTERY AS A DIVORCE GROUND.

Hall v. Hall, unpublished, 20 VLW 587 (10/11/05).
A couple’s separation agreement provided for alimony which would be precluded or terminated if the recipient wife committed adultery. The trial judge was way off base and abused his discretion, the Court of Appeals held, by ruling that the husband could not invoke the agreement’s defense against alimony in the divorce case without having filed for divorce himself on adultery grounds. Nothing in the agreement says that, and nothing in §20-107.1 or any other statute says that, the Court of Appeals observed.

ADULTERY -- PENSIONS -- MILITARY -- MALPRACTICE TRAP.

Gamer v. Gamer, ___ Va. App. ___, 429 S.E.2d 618 (1993), seems to improve on such cases as Aster v. Gross, and Barnes v. Barnes by holding that if adultery had no proved economic impact, the adultery did not take place.  Moreover, it shows quite a number of things from the applicable statute, most of which would hardly occur to anyone as proof elements, that your expert must conclude and must testify to if your client is to qualify for any pension award at all.  Some of these are present value, present value of one pension compared to present value of the other, separate property and marital property contributions to a buy-in arrangement, exactly how each "contribution" mathematically enhanced the present value, etc. 

ADULTERY — LEVEL OF PROOF — FIVE-YEAR RULE — FIFTH AMENDMENT.

An unpublished opinion from the Court of Appeals serves as a reminder of the statutory provision that an adultery, to be a ground of divorce, has to have happened within the past five years.  The wife had admitted adulteries in 1992 or '93, and when the boy friend was asked whether he had had intercourse with the wife after March 26 of 1999, he took the Fifth Amendment.  That, and the fact that he had admitted to the husband's counsel that he had had sex with the wife, but without admitting any particular date, do not add up to the required proof of current adultery.  Nor does a photograph that he took of the wife in her underwear in 1994 make any difference, so the trial court's award of an adultery divorce and its denial of alimony are reversed.  Fickett v. Fickett, 16 VLW 1100 (2/26/02).

ADULTERY PROOF -- FIFTH AMENDMENT -- ALIMONY -- MANIFEST INJUSTICE.

Helbert v. Helbert,  13 VLW 398 (8/25/98).

ADULTERY – AMENDMENT OF GROUNDS – POST-SEPARATION.

The Court of Appeals has said a few times lately that post-separation adultery can be considered a minor thing which a judge may disregard, but it is not about to say that a judge who considers it significant will be reversed.  Thus the ruling of a Loudoun County judge who allowed a husband to file a supplemental Cross-Bill alleging adultery that occurred after the wife's divorce filing and more than a year after the parties separated was affirmed in the unpublished case of Block v. Block, 18 VLW 886 (1/13/04).  The trial court granted the husband his adultery divorce on the Cross-Bill and that was affirmed.

ALIMONY -- APPEALS -- EQUITABLE DISTRIBUTION -- MARITAL AND SEPARATE.

Some of the logical fallout of the Reid v. Reid principle is seen in the Court of Appeals holding in Hurt v. Hurt, ___ Va. App. ___, 433 S.E. 2d 493, 8 VLW 232 (7/2793). The Reid rule means that if a court ordered restitution of certain paid pendente lite alimony because it later found desertion, and then the Virginia Supreme Court reverses the desertion finding, that repaid money must be repaid again to the wife. In the property-division area, Hurt seems to stand for the principle that if a husband alleges that he threw everything into one bank account, but it turns out he had a complex ledger system separating the money into different theoretical accounts for his earnings and his separate-property earnings, and the judge believes him, that ruling will stand.