Law HubDavid Werking lived at his parent’s Grand Haven, Michigan home for ten months starting in October 2016 after a divorce before moving to Muncie, Indiana. He moved out of his parent’s home in 2017, leaving some of his possessions in the basement. Those possessions included a trove of pornography and an array of sex toys which David values at nearly $30,000. In November, he asked his parents to return his property, and they did so — in part. The pornography and sex toys were not among the possessions returned to David. Instead, David’s parents told him that “the items were destroyed.” On New Year’s Day 2018, his father wrote in an email:
“I do not possess your pornography. It is gone. It has been either destroyed or disposed of. I may well have missed a few items that are now in your possession, but at this point, if you don’t have it, it is gone. Ditto for your sex toys and smutty magazines.”The next month, Werking reported the case to the Ottawa County Sheriff’s Office, and a sheriff’s deputy spoke with David’s mother, who acknowledged the couple had disposed of his pornography, the suit says. David sued his parents in federal court, claiming that the value of his pornography collect was $25,557.89. To prevail on his claim, he must establish that the Defendants converted his property for their own use. If David wins, the statute allows allows him to recover triple damages against his parents.
Florida Divorce and TheftAlthough David’s case involves his third party claim for treble damages, and is un-related to his divorce, the issue of dissipation and civil theft claims arise frequently in divorce. I’ve written before about various aspects of property division, the non-pornographic kind. In Florida, courts distribute the marital assets, such as collectibles, jewelry, and unique art, between parties under the premise that the distribution should be equal, unless there is a justification for an unequal distribution.
Some of the factors to justify an unequal distribution of the property include whether one of the parties intentionally dissipated, wasted, depleted, or destroyed any of the marital assets after the filing of the petition or within 2 years prior to the filing of the petition.Misconduct, for purposes of dissipation, does not mean mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. There has to be evidence of intentional dissipation or destruction.
Michigan MishugasAs the federal judge remarked:
Getting to the heart of the coconut now, the legal issue before the Court is whether the parents converted their son’s pornography “to their own use” by destroying it.The parent’s emails to their son, made clear that they were motivated to destroy the pornography “from a belief in its deleterious effects.” The father could not have been clearer on this point; he told his son that he was motivated to destroy the pornography out of concern for David’s mental and emotional health. The federal court found that David pleaded a plausible claim for relief against his parents on his statutory conversion claim because he has alleged that his parents were motivated to destroy the pornography because of his deleterious effects on his mental and emotional health. Only the issue of how much he can recover in damages remain to be resolved. That will involve a valuation of David’s pornography collection and sex toys. For reasons obscure, U.S. District Judge Paul Maloney does not want to hold an evidentiary hearing to determine the value of David’s adult film, magazine and sex toy collection. The court ordered both parties to file written submissions on the issue of damages. The U.S. District Court opinion is here.