Summary
noting that after Dunn the legislature added the phrase "except through his committee" to the revised statute
Summary of this case from Buchanan County v. BlankenshipOpinion
Record No. 2020-92-2
March 29, 1994
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY PAUL F. SHERIDAN, JUDGE.
William F. Wall for appellant.
No brief or argument for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Although appellant, husband, assigns ten errors to the chancellor's equitable distribution award, from the view we take of the case we need only address the first two: (1) whether an award dealing with the husband's property can be entered where the husband was at all times incarcerated in a state correctional facility but for whom no committee had been appointed as provided by Code § 53.1-223, and (2) whether the right to an equitable distribution hearing was properly preserved. We hold that the parties failed to make a timely objection to the reservation of the equitable distribution hearing. We further hold that the appointment of a committee was required by statute and, accordingly, we reverse and remand for such appointment.
I.
Appellant (husband) and appellee (wife) were married on May 9, 1987. One son was born to the couple. They lived together in Fairfax County until July 1988, at which time husband was convicted of murder in Maryland, where he has been, and remains, incarcerated on a life sentence without parole. Husband is an attorney.
On January 14, 1991, wife filed for divorce based on husband's desertion, namely, his felony conviction. The bill of complaint requested, inter alia, an equitable distribution of marital property pursuant to Code § 20-107.3, future and pendente lite child support, and an award for legal costs and fees. The husband was represented by both an attorney and a guardianad litem.
On March 29, 1991, the cause was referred to a commissioner in chancery. On May 31, 1991, the commissioner filed his report. He found that the court had jurisdiction, and he recommended granting wife an absolute divorce, finding that she had established necessary grounds.
On July 9, 1991, the court granted wife a final decree of divorce. The decree "adjudged, ordered and decreed that Iris Jones Mendes [wife] is granted custody of the parties' minor child and that the issues of property distribution and child support are hereby reserved." (Emphasis added.) The decree was signed, without objection, by wife's attorney, by husband's attorney and by the guardian ad litem.
On April 21, 1992, an equitable distribution proceeding was that the court had jurisdiction to distribute the property as the husband had waived his right to the appointment of a committee. This appeal followed.
II.
Code § 53.1-223 provides that "[n]o action or suit on any claim or demand . . . shall be instituted against a prisoner after judgment of conviction, and while he is incarcerated, except through his committee." (emphasis added).
In Dunn v. Terry, 216 Va. 234, 217 S.E.2d 849 (1975), our Supreme Court held that an incarcerated defendant could waive his right to have a committee appointed. The Court supported its ruling by explaining that former Code § 53-307 "contain[ed] no prohibition against actions or suits instituted by or against the convict prior to his conviction." Id. at 237, 217 S.E.2d at 852 (noting that wrongful death action was filed prior to defendant's conviction for manslaughter). After analyzing statutes relating to lawsuits involving convicts and other parties under a disability, the Court "found nothing in [them] to deny a convict, already within the civil jurisdiction of the court at the time of his felony conviction and incarceration, the privilege of waiving the appointment of a committee and proceeding to trial and judgment in a law action in which he is represented by counsel of his own choosing." Id. at 238, 217 S.E.2d at 852-53 (emphasis added). Dunn, however, was decided under former Code § 53-307, rather than § 53-307.1, which contains the additional language mandating that no suit shall be brought against a convict "except through his committee."
Numerous jurisdictions allow incarcerated plaintiffs to waive the right to a representative and bring suit in their own names.See, e.g., Craigo v. Marshall, 175 W. Va. 72, 73, 331 S.E.2d 510, 511 (1985) (and cases cited therein). In contrast to suits brought by inmates, the West Virginia Supreme Court distinguished situations involving incarcerated defendants, holding that '[i]n the absence of an express written waiver of his right to a committee . . . such suit cannot be directly maintained against the prisoner." Id. at 75, 331 S.E.2d at 514.
The Court observed that there were "substantial policy reasons for permitting a convict to bring a suit directly in his own name." Id. at 74-75, 331 S.E.2d at 513. However,
[a] different situation prevails . . . when a suit is filed against a convict. In this circumstance, he has not voluntarily elected to participate in the litigation. The policy reasons heretofore mentioned are of diminished applicability. He does not initially seek access to the courts nor does a statute of limitations problem come into play because he is not bringing the cause of action.
Id. at 75, 331 S.E.2d at 514; see also 18 C.J.S. Convicts § 8 (1990) ("A convict may waive his right to the appointment of a legal representative, but the importance of the right is such that some courts have required that the convict make an expressed written waiver before the right will be deemed waived").
Apropos to our holding that appointment of a committee is required in a case brought against an incarcerated defendant, we note the language in Code § 8.01-9, expressly providing that representation by an attorney in situations where appointment of a guardian ad litem is required can cure the failure to appoint a guardian ad litem. The statute, however, fails to address situations where a committee is not appointed but an attorney represents the party. Moreover, the code section containing the imperative language in Code § 53.1-223 mandating that a suit shall not be brought against a convict's estate "except through his committee," is entitled "Restriction on suits against prisoners."
The duties of a committee are different from those of a guardian ad litem or an attorney. Chapter 11 of Title 53.1 of the Code contains certain requirements and duties of a committee. E.g., Code § 53.1-221 (explaining how a prisoner's estate may be "committed" to a committee who is required to post a bond); Code § 53.1-224 (describing how a committee "shall allow, subject to the claims of creditors, a sufficient maintenance out of the prisoner's estate for the prisoner's spouse and family, if any"). The committee's duties may include taking care of the prisoner's property pending litigation, as well as post trial until the prisoner is released. The duties required of a committee are ongoing concerning the disposition of the convict's estate. An attorney, or guardian ad litem's main responsibility is to represent the convict at the civil trial.
These provisions, along with the statutory mandate in Code § 53.1-223 expressly encompassing convicts, satisfy us that the appointment of a committee is required before an inmate's estate may be subjected to legal action. See Merchant v. Shry, 116 Va. 437, 445, 82 S.E. 106, 109 (1914) (holding that the right of a convict to the appointment of a committee "is absolute and conditioned only upon the fact of conviction and sentence to confinement to the penitentiary for more than a year").
At the June 26, 1992 hearing, husband moved for the appointment of a committee. This motion was made over two months before the entry of the final decree on September 11, 1992. The mandate of the statute is clear. No committee was appointed as required. Additionally, the record reflects no specific waiver of this requirement. Therefore, we reverse and remand for such appointment.
III.
The court, on the motion of both parties, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary because of the complexities of the parties' property interests, and all decrees heretofore entered retaining such jurisdiction are validated.
In 1992, after the parties submitted the issues to the chancellor and after the final decree of divorce was entered, the legislature amended Code § 20-107.3(A) to allow "either party" to move the court to retain jurisdiction.
Husband correctly contends that both parties failed to move to reserve the issue of equitable distribution and the final decree of divorce fails to explain the necessity for retaining jurisdiction due to the complexities involved. However, husband failed to make a timely objection to the court's reservation. In Erickson-Dickson v. Erickson-Dickson, 12 Va. App. 381, 404 S.E.2d 388 (1991), this Court examined the proper remedy available where the trial court violated the requirements of Code § 20-107.3, retaining jurisdiction to consider equitable jurisdiction issues without a joint motion by the parties and without determining that such action was necessary due to the complexities of the property interests. The majority affirmed the trial court's retention of jurisdiction because of appellant's failure to make a timely objection to the court's decision to bifurcate the issues and retain jurisdiction.
Thus, on remand, the chancellor may equitably distribute the property in an appropriate hearing after the appointment of a committee.
For the reasons stated, the final order of equitable distribution is vacated, and the case is remanded for new proceedings consistent with our holding.
Reversed and remanded.