THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Tuesday, July 16, 1996 TAG: 9607160253
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: 72 lines
Thomas Smolka did not get his wife's $250,000 life insurance money on Monday. But he may yet.
A judge ruled Monday that Smolka must first stand trial in a civil case that accuses him of killing his wife, Betty Anne Smolka, in Florida in 1991.
That trial will start Dec. 9 in Norfolk's federal court. It could last three weeks.
Smolka, a Virginia Beach lawyer and developer, was convicted in 1993 by a Florida jury of murdering his wife. Last year, however, an appeals court overturned that conviction, saying there was not enough evidence to support the jury's verdict.
Now Smolka faces a lawsuit by Betty Anne's father, retired Virginia Beach banker Willis Stephenson. It demands $10 million from Smolka for causing Betty Anne's ``wrongful death.''
A second lawsuit, filed by the insurance company, asked the court to decide who should get Betty Anne's $250,000 life insurance proceeds. That is the case that was at issue Monday.
Smolka asked the court to give him the $250,000 because he has been acquitted of murder. Stephenson has asked the court to give the money to Smolka's three children, whom Stephenson is raising.
On Monday, Judge Rebecca B. Smith postponed the insurance case, pending the wrongful-death trial. Smolka was not present in court Monday, but was represented by his lawyers.
Smolka's children already have received $250,000 from a different insurance policy on their mother's life.
Monday's ruling means that the insurance question probably will be decided by the trial in December. The civil trial likely will be a replay of Smolka's criminal trial, which lasted three weeks and included 70 witnesses.
If Smolka wins the civil trial, he also would get the insurance money. He wouldn't keep it long, though. Years ago Smolka assigned his rights to the money to his brother-in-law, William Whipple of Delaware, who paid for Smolka's criminal defense.
If Smolka loses the civil trial, he probably will lose the money to his children, who are secondary beneficiaries.
On Monday, Smolka's attorney, Richard Brydges, argued that Smolka is entitled to the money because he was acquitted of the criminal charges. He cited Virginia's ``Slayer Statute,'' which says a killer cannot benefit from his crime. Brydges said Smolka cannot be a ``slayer'' because he has been acquitted.
Stephenson's attorney, James Lewis, agreed that Smolka is not a ``slayer'' under Virginia law. But he argued that common law prevents Smolka from collecting the insurance.
Under common law - the unwritten code dating back to ancient England - a person cannot benefit from his own misdeeds.
The judge said this issue - whether Virginia's Slayer Statute pre-empts common law - has not been resolved. She said the best course is to postpone the insurance question until after the wrongful-death trial.
If Smolka wins that trial, Smith said, that would resolve the insurance issue. But if Smolka loses, the judge said, she might have to rule on the insurance issue, or send it to the state Supreme Court for resolution.
Lawyers on both sides said there is nothing now pending that will prevent December's trial. ILLUSTRATION: Color photo
If Thomas Smolka fends off the lawsuit in December, that would
resolve the insurance issue. But if Smolka loses, the judge said,
she might have to rule on the insurance issue, or send it to the
state Supreme Court for resolution.
Drawing by Alba Bragoli
On Monday, U.S. District Judge Rebecca B. Smith, center, postponed
the Smolka insurance question until after the December
wrongful-death trial.
KEYWORDS: MURDER TRIAL LIFE INSURANCE CIVIL TRIAL by CNB