Deelche v. Jacobsen: Recovery from Community Property for a Separate Tort Judgment

• Publication year: 1982

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 6, No.1FALL 1982

deElche v. Jacobsen: Recovery from Community Property for a Separate Tort Judgment

Joseph R. McFaul

Washington's judicial rule classifying torts as either separate or community pits the interests of the tort victim against the interests of the innocent spouse of a married tortfeasor. The provident victim of a tort committed for the benefit of the community, a community tort, may subject all community property to judgment levy.(fn1) When the tort is separate, however, only the tortfeasor's separate property can satisfy the judgment; if there is no separate property, the victim goes uncompensated.(fn2) Acknowledging the rule's incongruous and inequitable history, the Washington Supreme Court, in deElche v. Jacobsen,(fn3) permitted the separate tort victim to recover against the tortfeasor's interest in community personal property.(fn4) By allowing recovery, the deElche decision not only returns Washington to a rule consistent with community property principles, but also balances the interests of the tort victim and the tortfeasor's innocent spouse.

DeElche itself aptly juxtaposes the conflicting interests. Mrs. deElche, her ex-husband, and Mr. and Mrs. Jacobsen were socializing aboard the Jacobsens' sailboat.(fn5) When the party began to drink heavily, Mrs. deElche retired to her ex-husband's boat moored nearby. Later that night, Mr. Jacobsen boarded the deElche boat and forcibly raped Mrs. deElche. Although a civil suit resulted in a separate tort judgment against Mr. Jacobsen, he had no separate property because of a community property agreement with Mrs. Jacobsen.(fn6) Mrs. deElche, therefore, could not collect her judgment. Upon appeal, the supreme court overturned the rule immunizing all community property from separate tort judgment.

This casenote critically analyzes deElche against the historical background of community property statutes and evaluates its effect on previous case law that subverted community property principles, resulting in injustice to either the victim or the tortfeasor's spouse.(fn7) While deElche does not explicitly overrule these cases, it casts doubt on their current vitality. The casenote also responds to the dissent's criticisms, and discusses the scope of the deElche decision.

Washington law defines community property as all assets acquired after marriage by either spouse, except those acquired by gift, devise, or descent.(fn8) The underlying premise of this form of property ownership is equality of the spouses,(fn9) a concept intrinsically recognizing that the earnings of either spouse are due to the productive labor of both. It assumes that a husband's ability to earn a wage is partly due to the efforts of the wife who elects to maintain a household and care for the children.(fn10) Thus, both spouses are equal partners in the marriage and share the community benefits equally.(fn11) Community property principles contrast vividly with the common law where the wife's contributions to the marriage are unrecognized because the husband is sole owner of marital assets.(fn12)

The Washington territorial legislature adopted the American community property concept, derived from the Spanish civil law.(fn13) The modern Washington Revised Code(fn14) closely follows the Spanish Civil Code and Washington courts recognize the persuasive authority of the Spanish antecedent.(fn15) Nevertheless, construing community property law as a mere collection of statutes misapprehends its nature. Although based on civil law statutes, community property constitutes a unified system, similar in framework to the English common law.(fn16) The similarity ends, however, where the community property system reflects value judgments, such as spousal equality, that are different from the common law.(fn17) Thus, interpretation of individual community property statutes by judges trained in common law concepts is incorrectly supported unless the differing underlying policies are understood. Washington courts, considering the law of community property as a whole, should reject any theory(fn18) of community property, not required by statute, that does not further the policy of spousal equality.(fn19)

Review of the underlying policies of the Spanish and the Washington codes indicates that immunization of community property from separate tort judgments was an aberration created by common law courts misconstruing a civil law concept.(fn20) Considering the civil nature of community property, with its policy of spousal equality, and the common law background and training of most judges, it is not suprising that such a mistake occurred.(fn21) In settling tort liability, for instance, courts unfamiliar with community property attempted to equate the marital community to a corporation, holding that the community as a separate legal entity could not be liable for the unforeseen torts of its members.(fn22) But the husband could subject community assets to tort liability under the doctrine of respondeat superior when he acted as the agent for the entity.(fn23) Only torts committed outside the scope of the agency would not subject the community to liability.(fn24)

Finding community liability using this entity theory undermines the policy of spousal equality inherent in community property because liability is based on a principal-agent relationship that does not exist. The entity, the fictitious principal, could not arise prior to 1972, because no one, including the wife, had legal control over the husband's management of community assets.(fn25) While both spouses were required to join in conveyances of real property,(fn26) the husband's decision controlled if disputes arose in the management of personal property.(fn27) Moreover, since 1972, each spouse may manage community assets without the consent of the other spouse.(fn28) As a result, even under current law, neither spouse has control as a principal over the other solely because of the marital relationship.(fn29)

Despite the fictitious agency, Washington courts, struggling to provide recovery to victims of separate torts, expanded the scope of the agency to find benefit to the entity derived from even the most "tenuous" community contacts.(fn30) The deElche court noted that recovery was based on distinctions without a difference, which "yielded illogical, inconsistent and unjust results."(fn31) The consequence was a system of law not only unfair to tort victims, but also insensitive to the plight of the innocent spouses. The court, recognizing the unfairness of previous Washington law,(fn32) implicitly affirms the principle that spousal equality is the basis for community property by acknowledging that community property only assures equal ownership of assets by the spouses.(fn33)

The deElche dissent nonetheless asserts the discredited(fn34) entity theory in support of its position.(fn35) The dissent points out that the individual spouses themselves cannot reach community assets until after the community is dissolved by death or divorce.(fn36) Each spouse, in the dissent's view, has only a future interest while the community owns the present interest.(fn37) Most courts, however, reject the entity theory, espousing the view that each marital partner holds a present interest in community assets, and the community as a separate entity does not exist.(fn38) Therefore, the existence of a marital community cannot shelter assets otherwise available to satisfy judgments.

Unfortunately, another judicially derived theory applied to community property law needlessly complicates separate tort recovery. When each spouse's present interest in community assets is recognized, the item theory(fn39) establishes that each owns an undivided half interest in every item of community property.(fn40) In deElche, for example, had the Jacobsens' community-owned sailboat been sold in satisfaction of the tort judgment, Mrs. Jacobsen would appear to have been unconstitutionally deprived of her property interests in the boat, interests as present and vested as Mr. Jacobsen's.(fn41) A due process argument implicitly underlies the dissent's objections to permitting separate tort recovery from community assets.(fn42)

The argument is not persuasive, however, even assuming the validity of the item theory.(fn43) Under Washington law, community property must be divided equitably at dissolution, and equitable shares are not necessarily equal shares.(fn44) Nevertheless, courts find no due process violation when one spouse receives a greater share of community assets. Moreover, the state commonly exercises its police power, interfering with private property rights to achieve legitimate state interests.(fn45) Permitting tort victims to recover from the tortfeasor in order to prevent the victim from becoming a public charge is a legitimate state interest.(fn46) The property interest of the innocent spouse does not require constitutional protection at judgment, but is protected when the proceeds of the sale are realized.(fn47)

The dissent is correct, though, in stating that the majority is inconsistent in allowing separate tort recovery against community assets and then characterizing the remainder as community property.(fn48) The majority failed to consider the implication of their argument: if there is no entity, and no community to act as principal, then there can be no agency to support the...