This is the second part of our two part quiz on community property and a spouse’s liability for injuries caused by his or her spouse to another individual.  In the first part of this quiz, we looked at how a court determines whether or not the community should be liable for a tort (i.e., civil wrongdoing) committed by only one spouse.   This part of the quiz shows how the the courts approach compensation when only one spouse is liable for the tort but may not have any separate property from which to compensate their victim.

The first case describes how property that was once community becomes separate upon the death of one spouse – thereby allowing the court to get around the community/separate distinction altogether when trying to compensate a tort victim.  The second case shows how the court shifted from an absolute prohibition on compensating tort victims with community property (as seen in the Newbury case in Pt. 1), to a more equitable approach which allows a tort victim to take community property when there’s no separate property to take, and which also allows the innocent spouse to seek reimbursement for the taken property from the wrongdoing spouse.

The Wasted Hostage-Taker

Margaret and Sam were married for 20 years. Sam struggled with a drinking problem throughout the marriage. Fed up with his drinking, Margaret finally left Sam. She filed for divorce and sought a restraining order which prohibited him from visiting her when he was drunk. One evening in November of 1972, Sam decided to try to patch things up with Margaret. Unfortunately, Sam’s strategy for getting back together with his wife involved booze, firearms and hostage-taking.

That evening, Sam went to his wife’s apartment with a rifle. Maragaret was not home at the time. Sam shot off a round at the apartment complex and, understandably, was eventually asked to leave. Sam decided to pay a visit to a couple – Lloyd and Patricia – with whom he and Margaret had been close during their marriage. He added a revolver to his cache of weapons, and showed up at Lloyd and Patricia’s house with the firearms in hand.

Upon being greeted by their drunk and heavily armed friend, Lloyd and Patricia gave Sam some coffee, which Sam enhanced with whiskey. The cops were called, and began gathering outside the house. Meanwhile, Sam announced that he was on a mission to reconcile with Margaret. He called Margaret several times and informed her that he would be holding their friends hostage until she agreed to get back together. Sam then made good on his word and pointed his rifle at Lloyd and fired. It did not go off – that time.

Lloyd then attempted to take the gun from Sam, and a scuffle ensued. It was during this struggle that Lloyd was shot several times. Sam was then shot and killed by law enforcement from outside the house.

Lloyd later sued Sam’s estate for the injuries he sustained during the fight. While he was alive, Sam had no separate property as a result of his being married to Margaret. Could Lloyd collect from Sam’s estate?

a) Yes, because the husband was acting for the benefit of the community, in trying to reconcile with his wife.

b) No, because the wife didn’t do anything wrong and should not be jointly liable.

c) Yes, since Sam was dead, there was no longer a community and all of the property in his estate was “separate.”

Answer: C. Upon the death of a spouse, the community is considered to be dissolved. At that point, half of the community property became the husband’s separate estate, and the other half became the wife’s separate property.  Thus, even though Sam had no separate property while he was married, his interest in community property converted to separate property upon his death.  Thus, Sam’s separate estate could be reached by Lloyd to compensate him for his injuries.  See Edmonds v. Ashe, 13 Wn. App. 690, 537 P.2d 812 (1975).

The Amorous Yachtsman

Mr. and Mrs. Jacobsen were spending a day with Ms. deElche and her ex-husband, Mr. deElche, on their respective yachts. When the Jacobsens and Mr. deElche started drinking heavily on the Jacobsens’ yacht, Ms. deElche decided to call it a night, and retired to bed in her ex-husband’s boat. After a long night, an intoxicated Mr. Jacobsen climbed abroad the deElche yacht, and sexually assaulted Ms. deElche.

Ms. deElche later sued the Jacobsens. The court found that Mr. Jacobsen was separately liable for the offense because the assault had not been committed for the benefit of the community. So, Ms. deElche received a judgment against Mr. Jacobsen’s separate estate only.

However, the Jacobsens had previously signed a community property agreement which converted all of their property, whether originally separate or community, into community property. Thus, Ms. deElche was out of luck because she could not collect on her judgment as Mr. Jacobsen had no separate estate. Ms. deElche appealed, arguing that she should be able to collect from Mr. Jacobsen’s half of community-owned assets. Did the Court of Appeals agree?

a) No, the husband was not acting for the benefit of the community when he assaulted Ms. deElche so she could only collect from his separately owned assets. Since he had no such assets, she was out of luck.

b) No, the wife didn’t do anything wrong and should not be penalized for her husband’s wrong-doing. Since of the Jacobsens’ property was community owned, there was nothing Ms. deElche could do to get the money the court awarded to her.

c) Yes, there wasn’t enough, or any, separate property for Ms. dElche to collect upon, so she should be able to take from Mr. Jacobsen’s 50% share of the community property.

Answer: C. The court in deElche attempted to strike a balance between punishing the offending spouse, compensating the victim, and shielding the non-offending spouse from liability for the individual wrong-doing of the other.  Thus, the deElche court held that in cases where there is not enough, or not any separate property from which to collect, a victim may reach the offender’s half interest in community personal property. The non-offending spouse then has a right to reimbursement from the offending spouse. So, upon the termination of the community (usually through a divorce, which Ms. Jacobsen quite understandably pursued later), the non-offending spouse is entitled to receive payment for any property sold or transferred as a result of the offending spouse’s misdeeds.  See deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980).

The deElche case effectively overturned Newbury v. Remington (which was discussed in Part 1), where the court strictly adhered to the rule that only the separate property of a married tortfeasor (i.e.  wrongdoer) can be used to compensate a separate tort.  The deElche court ruled that while separate torts should primarily be compensated with separate property, in cases where there is no separate property, a tort victim can collect from community property.  The rule in deElche then allows the innocent spouse to seek reimbursement from the guilty spouse.  What deElche ultimately represents is a balanced solution to the problem we first looked at in the Newbury case – the problem of how to compensate a tort victim without punishing an innocent spouse – by allowing for the recovery of community property by the victim, with an option to seek reimbursement for the innocent spouse.  Perhaps not perfect, but certainly more likely to prevent injustice to both the victim and the innocent spouse, while still holding a married tortfeasor responsible for his or her misdeeds.

Last week we discussed whether or not a spouse can be criminally liable for damaging his community owned property.  We’re continuing on the theme of community property with this two-part pop quiz. Today we ask if community property (that is, property jointly owned by spouses) can be collected by a victim in cases where one spouse has committed a tort against a third individual (i.e., not his/her spouse).

The courts have been tackling this thorny community property issue for decades: How to determine whether the community is liable for injuries to a third party when the tort is committed by just one of the spouses? It’s a difficult question because it involves the competing interests of two innocent parties – the person injured by the negligent/reckless spouse, and the other spouse who’s life savings are often at stake for something he or she didn’t have anything to do with.

Although New York state is not a community property state, the related issue of the assets of a possibly innocent spouse have been big news lately as Ruth Madoff has tried to protect her millions from the many angry creditors of her fraudster husband Bernie. Poor Ruth!

First, let’s look at a more common example of how this problem might arise:  Let’s say Able is hit by Harry Husband”s car while Harry is speeding through a red light.  Able is injured, and eventually sues Harry for the injuries he suffered.  Able is successful and the jury awards him several thousands of dollars to compensate for his injuries.  Now, Able wants to collect his money from Harry.

But let’s say Harry has been married to Wanda for 30 years.  His house is co-owned by Wanda.  All of Harry’s bank accounts are co-owned with Wanda, and all of the money sitting in them was earned over the last 30 years.   Is it fair for Able to take property that is co-owned by Wanda, when Wanda is not personally responsible for the accident that injured Able?

In situations like this, the court has to first determine whether or not the community is liable to the injured person.  The court does this by determining whether or not the tort was committed either (1) in the “management” of community property or (2) while the tortfeasor (the person who caused the injury) was acting for the “benefit” of the community.

If the court finds that only one of the spouses is responsible for the injury, the court must then perform a delicate balancing act, and consider the rights of a victim to compensation for injuries caused by one spouse and the innocence of the tortfeasor’s spouse.  After all, it hardly seems fair that a victim can take property co-owned by a person who did not cause the injury.  Nor does it seems fair that an injured person should be practically precluded from collecting on a judgment because the tortfeasor is married and has no separate property. (If the wrong-doing spouse had sufficient separate property to pay off the injured party, or course, it would be much simpler!)

Let’s see how this has played out in court, in one case from the Thirties and another one from the Fifties.

THE ROAD WARRIOR

Here, we have a classic case of old-timey road rage. The court’s description of the case explains the situation quite eloquently:

It appears by the findings of fact that the appellant Newbury, while driving an automobile southerly on Thirty-fifth avenue N.E., in Seattle, overtook an automobile belonging to Remington and wife going in the same direction and driven by A. D. Remington. Appellant attempted to pass the automobile belonging to the Remingtons, and for a distance of several blocks Remington, by turning his car to his left at times, so drove it as to prevent appellant from passing, and on several occasions abruptly slowed down his car so as to require appellant to act quickly to avoid a collision, during all of which time A. D. Remington, and another man riding with him, were making gestures of various kinds to the appellant.

[Remington] alighted from his automobile and went back to the plaintiff’s automobile and accused the plaintiff of driving through an arterial highway at the intersection of E. 95th St. without stopping. The said defendant at said time threatened to have the plaintiff arrested. The plaintiff remained seated in his automobile in company with his young lady companion and refused to engage in any altercation with said defendant. That the said defendant suddenly said: ‘I have changed my mind about having you arrested, and will take care of you myself,’ and thereupon reached through the open window of the plaintiff’s automobile and with one hand grabbed the glasses from plaintiff’s nose, and at the same time struck the plaintiff a violent blow across the mouth with his other hand, cutting the plaintiff’s lip and inflicting permanent injuries as hereinafter set out. That the said defendant threw the plaintiff’s glasses to the pavement, breaking and ruining them.

So, Newbury sued Remington for the assault.  He was eventually awarded 1000 dollars. Was he able to collect funds owned by Remington and wife as community property?

a) Yes, the marital community is jointly responsible for any tort committed.

b) Yes, the community was liable because the husband was driving the community-owned car.

c) No, because the wife didn’t do anything wrong.

d) No, because the family car didn’t actually injure the victim.

Answer: D. The court examined whether Remington committed the tort in “the management of community property.”  In other words, the court wanted to know if the husband was somehow acting for the community at the time he assaulted Newbury.  The court ultimately determined that Remington acted as an aggressor, without consideration of the family vehicle. Thus, Newbury could not collect his judgment against Remington from community assets.

Essentially, because Remington got out of the family car and used his separate fists to assault Newbury, the community was not liable.  Had Remington hit Newberry with the family car, the result likely would have been different because Remington would have used a piece of community property to cause injury.  See Newbury v. Remington, 184 Wn. 665, 52 P.2d 312 (1935).

(Note: This case is no longer considered to be good law, as it was overruled by a 1980 case, deElche v. Jacobsen.  That case will be discussed in the 2nd part of this quiz).

THE PEDOPHILE

Here we have a case where the couple agreed to care for another woman’s child while the woman traveled out of state.   The husband and wife were paid a month fee for this service.  However, unbeknown to the wife, the husband molested the child and was eventually arrested and charged for his crime.  The child’s mother then sued both the husband and wife for the husband’s transgression.  Was the community liable for the husband’s egregious tort?

a) Yes, because the tort occurred in the management of a community business.

b) No, because the wife didn’t do anything wrong.

c) No, because the husband was not acting in the course and scope of his employment.

Answer: A. The husband and wife agreed to care for the child, and received payment for the service.  Because the community (i.e. both the husband and the wife) benefited financially from the child care arrangement, both the husband and the wife were responsible for any act by either husband or wife while caring for the child.  Thus, the court held that the child’s mother could take community property as compensation for injuries suffered by the child as a result of the husband’s actions. See LaFramboise v. Schmidt, 42 Wn.2d 198, 254 P.2d 485 (1953).

These cases demonstrate how courts determine whether or not a victim of a tort can take community property, by determining whether or not the tort was committed either (1) in the management of community property or (2) while one or both spouses are acting for the benefit of the community.

Part two of this pop quiz will focus on how courts determine whether a victim can take community property when it’s clear that tort that the tortfeasor spouse is solely liable for the victim’s injuries.

As we discussed in a previous article, Washington is a community property state.  This means that, in this state, most property that a couple acquires during their marriage is considered to be the property of both spouses.  So any given piece of property, from a car to a condo, that a married person buys is generally considered to be equally owned by both spouses.  The issue of whether property is community or separate is a very important consideration for the courts when a couple divorces, and their property needs to be divided between the two soon-to-be exes.

While community property is primarily of concern to courts in domestic and other civil court matters, the issue of community property occasionally arises in criminal matters.  Here’s one example.

In December of 1998, Angel Coria and his wife went out for dinner at a restaurant in Tacoma.  During their dinner, Mr. Coria believed that the wait staff at the restaurant were flirting with his wife.  Mr. Coria became enraged, and the couple got into a fight while driving home after dinner.  During this argument, Mr. Coria assaulted his wife, and she was injured. Once they returned home, Mrs. Coria rushed into the house and called the police.  Mr. Coria sped away in his truck.  The police arrived at the Coria’s house, an ambulance was called for Mrs. Coria, but Mr. Coria was nowhere to be found.

Around midnight, Mrs. Coria returned home from the hospital.  Within less than two hours, she heard banging sounds in the garage and fled the house.  She called the police from a neighbor’s house and reported that he believed her husband was back.

When the police officers arrived at the Coria’s house, it was a disaster.  A mirror was broken, the TV was knocked over, the microwave was torn from the wall.  The couple’s pet cockatiel was dead, its cage smashed.  The garage door had been ripped off its rollers, and a door frame and lock had been damaged.  The linoleum tiles in the kitchen were slashed.   The couple’s young daughter pointed to the broken mirror and said “Daddy broke.”  It was later determined that $555.00 worth of the couple’s property was damaged or destroyed.

Mr. Coria was later charged with assault of his wife, and with malicious mischief for damaging the couple’s property.  Malicious mischief is a felony, which applies when a person “knowingly and maliciously causes physical damage to property of another exceeding $250.”  (See RCW 9A.48.080).  The husband appealed, and claimed that he could not have damaged “the property of another” because he had damaged community property, which was just as much his property as it was his wife’s property.  In other words, Mr. Coria argued that because he owned the property that he damaged and destroyed, he hadn’t committed malicious mischief.  The Court of Appeals agreed wtih him, and the case was sent to the Washington Supreme Court for review.

So, did the Supreme Court agree that Mr. Coria could not be found guilty of destroying what property owned by both he and his wife?

a). Yes, the court found that the husband did not commit malicious mischief because he destroyed property owned equally by he and his wife, and therefore he had not destroyed the property of another.

b). No, because the wife is just as much at the owner of the destroyed property as the husband, the destroyed property was the property of another.

Answer: B. See State v. Coria, 146 Wn. 2d 631. The Supreme Court ruled that the property destroyed by Mr. Coria was indeed the property of another because Mrs. Coria was a co-owner.  Even though Mr. Coria shared an ownership interest in the property, he could not take it upon himself to destroy it without penalty.  His ownership rights could not trump those of his wife, and his destruction of their co-owned property interfered with Mrs. Coria’s ownership rights.  Thus, Mr. Coria was ultimately found guilty of of malicious mischief.

So, given that community property is generally considered to be owned by spouses on a 50-50 basis, we might think that Mr. Coria should only be liable for half of the damages – after all, he owned one half of all the damaged and destroyed stuff  and he’s free to do whatever he wants with his half – right?

Well, the court did not really answer this question for two reasons. First, Mr. Coria did not raise this theory as a defense. Secondly, even if this theory could be used as a defense, it would not have saved Mr. Coria. The property that Mr. Coria destroyed was valued at $555.00.  Even if he was liable for only half of the value of the damaged property, he still damaged property over $250.00, making him guilty of malicious mischief anyway.

The case of “JMK”

This pop quiz involves a particularly interesting, and occasionally absurd issue in family law – the question of how the courts determine exactly who is the parent of a child.*  This probably seems like a simple issue to resolve, especially now that a DNA test can determine genetic relationship with virtual certainty.

However, the assignment of the title of “parent” to an individual is decidedly more complicated in the law, especially in the case of fathers.  And in the eyes of the law, genetic relationship is only one of several ways that a man might acquire the legal designation of “father” or “parent.”

For example, under Washington law, a man who donates sperm for use in artificial insemination is generally not considered to be the legal father of any child conceived using that sperm, unless the parties agree, in writing, that the sperm donor is also the child’s “father.”  We’ll call this law “the sperm donor statute” for simplicity’s sake.

One of the purposes of the sperm donor statute was to prevent a man who anonymously donated sperm to any number of women – with whom the man had no other relationship – from later being obligated to pay child support purely based on his genetic relationship to a child with whom he’d likely have no other relationship.

The thinking is that a man who sells or donates his sperm probably isn’t trying to be a father in the traditional sense of the word, nor is the woman who receives it trying to create a parental relationship with him.  Thus a sperm donor is not considered a “father” to a child despite the fact that he is genetically related.

However, just as human relationships are immensely complicated, the repercussions of what appears to be a very sensible policy can be very complicated.  Let’s take a look at one real-life example of how complicated figuring out “who’s the daddy” can be…

Meet Michael, His Wife, His Girlfriend, and his son Jason…

In the late 1980s, “Michael” and “Teresa” met at work.  Michael was married, but he started stepping out on his wife with Teresa, and they began an off-and-on relationship that lasted for over 10 years.

Although we tend to assume that most men don’t want “the other woman” to have a child, Michael was different. In 1995, the he and Teresa began trying to have a child. After the couple could not conceive naturally, they used in vitro fertilization or IVF, in the hopes that Teresa would become pregnant.

The IVF treatments worked.  Teresa gave birth to “Jason” in 1998.  When Jason was born, Michael visited Teresa in the hospital, and wrote notes referring to himself as “Dad.” Michael also signed a paternity affidavit stating he was Jason’s father and had his name put on the birth certificate.  Jason even had Michael’s last name, and Michael paid Teresa child support for Jason’s care.

… and his other “son”, Derek.

In 2001 Teresa gave birth to her second child, “Derek.” Again, she used Michael’s sperm and conceived using IVF.

Now, this is where things get… even more complicated.  Derek was conceived in February of 2001.  Neither Michael nor Teresa disputed that fact.  What was disputed, however, is whether Teresa and Michael were still in a relationship at the time she became pregnant by Michael via IVF.

Teresa claimed that the relationship ended in March 2001, while Michael claimed the couple was kaput by January of 2001 – one month before Derek was conceived via IVF.

Unlike the proud papa Michael had been with Jason, Michael reacted differently to Derek. He visited Teresa in the hospital while she was in labor, but he did not sign a paternity affidavit.  The cutesy notes of Jason’s birth were no more.

Michael paid some child support for Derek, but stopped in January 0f 2002, when Derek was about 3 months old.   Notably, the stop in payments corresponds with when his wife (remember, Michael has a wife?  We think he probably had difficulty remembering this as well…) finds out about the affair.

Michael started making up all sorts of stories to try to smooth things over with his wife.  He claimed he had only paid child support payments because Teresa was blackmailing him to keep the relationship a secret, and that he had signed Jason’s paternity affidavit under blackmail, duress, and fraud.

Teresa filed a petition in Superior Court, and asked that Michael be declared the father of both Jason and Derek.  She also asked the court to order Michael to pay child support for both boys.

Michael claimed that he was not the “father” of either child because he did not sign a written agreement stating that he was to be the father before Teresa became pregnant.  Michael even claimed that because Teresa conceived by IVF, he should not be required to take a blood test because a court could only require blood testing when there was a reasonable possibility that the “requisite sexual contact” occurred.

Michael lost round one. The Superior Court ordered him to take the blood tests, which confirmed that he was the biological father of both boys. The court then ordered him to pay child support.

Michael appealed the case, arguing that, under the sperm donor statute, he was not legal father of Jason or Derek because he did not sign a written consent prior to Teresa’s insemination.

The Court of Appeals reversed the ruling. It determined that Michael was just a sperm donor for both boys, despite the fact that Teresa conceived using IVF and not artificial insemination. He was not the legal father because the parties had not agreed in writing prior to IVF that he would become the father by giving his sperm to Teresa.

So… quiz time:

Did the Supreme Court agree with the Court of Appeals?

a)      Yes. The Supreme Court agreed with the Court of Appeals stating that Michael was not the legal father because he did not agree in writing prior to IVF that he would become the father of Jason and Derek by giving his sperm to Teresa.

b)      No. The Supreme Court stated that Michael was Jason’s father because he had signed the paternity affidavit, but was not Derek’s father because he had not signed the affidavit.

c)      No. The Supreme Court stated that Michael was the father of Jason and Derek because court-ordered blood tests had confirmed that he was the biological father of both boys.

d)     No. The Supreme Court stated that Michael was the father of Jason because he had signed the paternity affidavit. Michael was declared the father of Derek because the former statute only prevented semen donors from becoming the father when the woman conceived via artificial insemination, not IVF. Further genetic testing confirmed that Michael was Derek’s father.

Answer: D. See In re. J.M.K.; 155 Wn.2d 374 (2005).

One interesting thing about this case – and there are many very interesting things about JMK – is that Michael was deemed the father of Jason and Derek for two totally different reasons!

As for Jason – under Washington law, a man who signs an acknowledgment of paternity has 60 days after filing the acknowledgement to challenge the acknowledgment. Otherwise, it is deemed valid. Michael did not challenge his acknowledgment within the time frame; therefore, he was deemed the legal father of Jason. (See RCW 26.26.330.)

As for Derek  – the sperm donor statute at the time of Derek’s conception and birth referred only to artificial insemination and not IVF. Therefore, it was not applicable to Michael’s case because Derek was conceived using IVF. Michael was then deemed to be the father of Derek when genetic testing confirmed he was the father. The current statute, however, references all methods of assisted reproduction – including IVF. (See RCW 26.26.705.)  Thus, it’s possible, if not likely, that if this case came up now, Michael could be deemed the “father” of Jason but not Derek – despite the fact that, genetically speaking, he is the father of both boys.

The Uniform Parentage Act and constitutional rights of children:

Another interesting aspect of JMK is the Washington Supreme Court’s recognition that children of married parents and children of non-married parents have the same rights.  The Court noted that if they decided that Michael should not be at least financially responsible for both children, they would essentially create one set of rights for children whose parents aren’t married, and another for children whose parents are married.  The Court stated that this raised a constitutional concern regarding the legal standing of children of unmarried parents.

This concern led to Washington’s adoption of the Uniform Parentage Act or “UPA.”  The purpose of the UPA is to “give full equality to all children by recognizing their right to parental support and their legal relationship with both parents.” (Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872 (1973)).  The UPA, in addition to recognizing that all children have the same rights regardless of whether their parents are married – also sets out a number of ways in which a man can be deemed the “father” of any child.

*Seattle University School of Law Professor, Julie Shapiro, provided much of the inspiration for this article.  Professor Shapiro regularly leads thought-provoking discussions of the issue of  parenthood, and especially fatherhood, both in the classroom and on her excellent blog, Related Topics.