Upon divorce, how do DC courts determine which spouse gets to keep pets acquired during the marriage?

§ 16-910. Assignment and equitable distribution of property

Upon entry of a final decree of legal separation, annulment, or divorce, or upon the termination of a domestic partnership pursuant to §32-702(d) or §16-904(e) and the filing of a petition for relief available under this section, in the absence of a valid antenuptial or postnuptial agreement resolving all issues related to the property of the parties, the court shall:

(a) assign to each party his or her sole and separate property acquired prior to the marriage or domestic partnership, and his or her sole and separate property acquired during the marriage or domestic partnership by gift, bequest, devise, or descent, and any increase thereof, or property acquired in exchange therefor; and

(b) value and distribute all other property and debt accumulated during the marriage or domestic partnership that has not been addressed in a valid antenuptial or postnuptial agreement or a decree of legal separation, regardless of whether title is held individually or by the parties in a form of joint tenancy or tenancy by the entireties, in a manner that is equitable, just, and reasonable, after considering all relevant factors, including, but not limited to:

(1) the duration of the marriage or domestic partnership;

(2) the age, health, occupation, amount, and sources of income, vocational skills, employability, assets, debts, and needs of each of the parties;

(3) provisions for the custody of minor children;

(4) whether the distribution is in lieu of or in addition to alimony;

(5) each party's obligation from a prior marriage, a prior domestic partnership, or for other children;

(6) the opportunity of each party for future acquisition of assets and income;

(7) each party's contribution as a homemaker or otherwise to the family unit;

(8) each party's contribution to the education of the other party which enhanced the other party's earning ability;

(9) each party's increase or decrease in income as a result of the marriage, the domestic partnership, or duties of homemaking and child care;

(10) each party's contribution to the acquisition, preservation, appreciation, dissipation, or depreciation in value of the assets which are subject to distribution, the taxability of these assets, and whether the asset was acquired or the debt incurred after separation;

(11) the effects of taxation on the value of the assets subject to distribution; and

(12) the circumstances which contributed to the estrangement of the parties.

(c) The Court is not required to value a pension or annuity if it enters an order distributing future periodic payments.

Although most cases for negligent infliction of emotional distress have arisen in the context of doctor-patient relationships, courts have recognized the claim in other situations where the emotional well-being of others is at the core of, or is necessarily implicated by, the undertaking. For example, where the negligent performance of an undertaking causes emotional pain associated with the death of a loved one as a result of a hospital's false report of death or a funeral home's mishandling of a corpse, a claim for negligent infliction of emotional distress is allowed because such damages are not only especially likely to be caused by the breach but also because they may well be the only or most significant damages resulting from the negligent conduct. See Prosser and Keeton on Torts, supra, § 53, at 362 (reviewing cases involving claims for negligent transmission of a death message and mishandling of corpses), discussed in Washington, 646 A.2d at 352 (Schwelb, J., dissenting). In those cases it cannot be said—as it can in the context of the therapist and patient—that the funeral home or hospital expressly undertook to care for the emotional well-being of the deceased's widow, parent or child. Rather, that undertaking is implied, and fairly so, based on the understanding of who is intended to benefit from the obligation: not the deceased, but the deceased's close survivors as they cope with their loss. As a result, it is especially likely that failure to adhere to reasonable care in fulfilling obligations related to the deceased with competence and dignity, e.g., a mortuary's obligation to embalm and transport the body properly or the hospital's obligation to accurately notify a relative that a loved one has died while in the hospital's care, will result in serious emotional distress. In these cases, the consequence of serious emotional distress follows ineluctably from the breach.

A similar argument could be made with respect to persons who are appointed to act as guardians and counsel for those who are especially vulnerable: children, the elderly, and the disabled. See Restatement (Third) of Torts, supra, § 46 cmt. d (referring to relationships “where one person is in a position of power or authority over the other and therefore has greater potential to inflict emotional harm”). In determining whether such appointments comprise a duty to care for the emotional well-being of wards and clients, a court should weigh several factors, including the statutory, professional and ethical standards applicable to the defendant's activities establishing

[22 A.3d 815]

the responsibilities the defendant can be said to have accepted and to which she should be held accountable; ⁴¹ the nature of the interests of the ward or client that the guardian or counsel is obligated to further and protect (whether financial, legal or business matters unlikely to implicate a ward's emotional well-being, or questions involving health, independence and conditions affecting personal dignity that might implicate a ward's emotional well-being), and relevant policy considerations, such as the need to have a pool of qualified persons willing to be appointed to such positions and the availability of insurance or other options for risk-management of potential claims for emotional distress.

As cases from other courts suggest, moreover, many other relationships, even if they involve fiduciary obligations, generally will not come within the rule, because neither the purpose of the relationship nor the fiduciary's undertaking is to care for the plaintiff's emotional well-being; rather the object of the engagement is to obtain a financial, commercial or legal objective, even if its non-attainment due to the fiduciary's negligence is emotionally distressing to the client. See Reed v. Mitchell & Timbanard, P.C., 183 Ariz. 313, 903 P.2d 621, 626 (App.1995) (refusing to impose duty to avoid negligent infliction of emotional distress on lawyer who undertook to represent client in a financial matter); Lawrence v. Grinde, 534 N.W.2d 414 (Iowa 1995) (same, bankruptcy attorney); Rathgeber v. James Hemenway, Inc., 335 Or. 404, 69 P.3d 710, 718 (2003) (noting that “real estate professional malpractice” is not within the exception even though “[i]t is always foreseeable that some emotional harm might result from the negligent performance of real estate professional services, as it might from legal, accounting, or other varieties of professional malpractice”). In these cases, it cannot be said that the plaintiff's emotional well-being is necessarily implicated by the defendant's undertaking or relationship with the plaintiff. Similarly, emotional distress resulting from negligently caused injury to personal property, including pets and other animals, has not been recognized to state a viable claim. See Restatement (Third) of Torts, supra, § 46 cmt. j.

Even if the government proves that the commission of the felony actually caused the killing, a legal cause defense is available if an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of the result. See PERKINS & BOYCE, CRIMINAL LAW 781-82 (3d ed.1982). If this extraordinary event is the victim's own response to the circumstances that the defendant created, the victim's reaction must be an abnormal one in order to supersede the defendant's act.⁶ Therefore, the question

[691 A.2d 163]

here is whether Della's response was abnormal if he reentered his burning apartment building to save his dog's life.

This question admits of only one answer, because the impulse to protect one's personal property from a fire is generally recognized to be normal and ordinary rather than abnormal and extraordinary. Experience teaches us that even if one's dwelling is burning, it is quite common for a person to reenter it to try to rescue property. This normal human instinct to rescue can be especially pronounced when an animal's life is at stake.

We agree with the holding in State v. Leopold, 110 Conn. 55, 147 A. 118 (1929), which rejected a similar legal cause defense to felony murder. After a building was set on fire, two sons of a tenant there either remained inside voluntarily or were sent back in by their father to recover property. The Leopold court reasoned as follows:

If the death of these boys resulted in a natural sequence from the setting of the building on fire, even though their conduct contributed to, or was the immediate cause of it, the accused would be responsible, and the effort of a person to save property of value which is liable to destruction by fire is such a natural and ordinary course of conduct that it cannot be said to break the sequence of cause and effect.

Id. 147 A. at 121 (emphasis added); see also PERKINS & BOYCE, supra, at 798. Citing Leopold with approval, the Supreme Court of Pennsylvania stated:

An arsonist is bound to know the perils and natural results of a fire which are reasonably foreseeable according to the common experience of mankind, and in particular to know that an occupant of the building set on fire, an accomplice, a fireman and the public who are likely to come to watch the fire, may die in or as a natural proximate result of the fire. The attempt of an officer or person to put out the fire, or to rescue people or property therein, or the attempt of any person to escape from the burning building does not constitute in legal contemplation a superseding cause which is sufficient to relieve the arsonist from murder in the first degree.

Commonwealth v. Bolish, 381 Pa. 500, 519, 113 A.2d 464, 474 (1955). We agree with the holdings in Leopold and Bolish, and conclude that even if Della voluntarily and deliberately reentered the building, this course of conduct is so natural and commonplace a reaction that it cannot constitute a legal cause of Della's death superseding Bonhart's felonious act of setting the fire. "Even the deliberate act of the one threatened or endangered ... in the effort to avoid ... damage to property, will not be a superseding cause if it is merely the normal response of a human being to the stimulus of the situation created by the wrongdoer." PERKINS & BOYCE, supra, at 797 (emphasis added); see also LAFAVE & SCOTT, supra note 6, § 312(h), at 416-17 & n. 122 (citing Leopold).

Bonhart relies unavailingly on Coleman v. United States, 111 U.S.App. D.C. 210, 295 F.2d 555 (1961). In that case the court affirmed a felony murder conviction for shooting a police officer because the killing occurred during flight from an armed robbery and before any seizure or arrest. Coleman is inapposite here because it dealt with an issue of timing. The issue there was whether the killing occurred after the perpetration of the felony, whereas here we are called upon to examine the relevance of conduct alleged to have occurred during the burning of the arson fire.⁷

[691 A.2d 164]

In light of the foregoing, we agree with the trial judge that appellant's proffered evidence regarding Della's reentry into the burning building was irrelevant. The trial judge did not err in excluding the evidence.⁸