THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, February 4, 1996 TAG: 9602040042
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Long : 125 lines
Now that Thomas Smolka is a free man and the last criminal appeals are over, a settlement may be in the works that would avoid a retrial on civil charges that Smolka murdered his wife in 1991.
At issue are custody of the Smolkas' three children and a variety of money matters, including a $250,000 insurance policy.
On Monday, the Florida Supreme Court closed the criminal case, refusing to hear an appeal by prosecutors to reinstate Smolka's murder conviction.
That means the two opposing camps within the Smolka family can now turn their attention to a tangle of lawsuits arising from the slaying of Betty Anne Smolka in July 1991.
After a three-week trial in 1993, a Florida jury convicted Smolka of killing his wife. But the Florida Court of Appeal acquitted Smolka in August, overturning the jury verdict. The judges ruled that circumstantial evidence against Smolka was not enough to support the conviction.
Now, Smolka could be tried all over again - just like O.J. Simpson - if a civil lawsuit against him goes to trial. The lawsuit, filed by Betty Anne's father in 1991 and pending in Norfolk's federal court, accuses Smolka of killing his wife. It seeks $10 million in damages.
Both sides say they are trying to negotiate a settlement of that case and others.
``We're certainly doing everything we can to explore resolving this thing without going into a courtroom,'' said James C. Lewis, a lawyer representing Betty Anne's father, Willis Stephenson of Virginia Beach.
Smolka's lawyer, Richard G. Brydges, also said the two sides are negotiating. Neither side would offer details.
Smolka, 48, a real estate developer and lawyer, was accused of killing his wife after she disappeared in July 1991 while the couple was visiting Smolka's hotel in Ocala, Fla.
Betty Anne's rented van, its interior spattered with blood, was found parked across the street from a drug store where she had gone to get light bulbs. Three days later, her body was found near a dirt road in an abandoned subdivision. She had been shot twice in the chest.
``There is no doubt that the state's case against Smolka creates a strong suspicion that he murdered his wife,'' the judges wrote. ``The number of suspicious circumstances is especially troubling. But suspicions cannot be the basis of a criminal conviction.''
Now, talks between Smolka and his wife's family center on four pending legal matters:
The wrongful death lawsuit by Stephenson, on behalf of the children, against Smolka in federal court. It says Smolka ``abducted his wife Betty Anne Smolka with the connivance and assistance of an accomplice and shot her to death as part and parcel of a premeditated plan to acquire life insurance proceeds (of not less than $500,000) . . .'' The lawsuit seeks $10 million in damages.
A lawsuit by New York Life Insurance Co. that asks who should get the proceeds from Betty Anne Smolka's $250,000 life insurance policy.
The money - now more than $300,0000, with interest - is in an escrow account in federal court. If he wins, Smolka will not get all the money, and perhaps none of it. He has assigned his interest in it to relatives who funded his criminal defense.
A second $250,000 insurance policy has been paid to the children's trust fund.
A lawsuit in Virginia Beach Circuit Court to decide who gets the money from the sale of the Smolkas' house in Great Neck in 1992.
The house was sold for $420,000, court records show, but there were two mortgages on it totaling $350,000. After those liens and other fees were paid, only $59,000 remained. The amount in dispute is half of that, since Tom and Betty Anne Smolka each had a half-interest in the house. It also is being held in escrow.
Finally, and perhaps most important, is custody of the Smolkas' three children, Jeffrey, 15; Katherine, 13; and Molly, 7.
In 1991, after Smolka's arrest but before his conviction, a Virginia Beach judge gave temporary custody to Betty and Willis Stephenson of Virginia Beach, the children's maternal grandparents.
The judge also allowed Smolka telephone contact with the children, although they did not have to talk with him if they did not want to. The judge also ordered Smolka's family and the Stephensons not to make negative comments about each other to the children.
The custody order remains in effect. Smolka, however, could seek to regain custody now that he is free.
In recent months, Willis Stephenson, a 66-year-old retired bank executive, has said that keeping the children is his highest priority.
``They're happy here. They get along real well. We love them like our own children,'' Stephenson said in December.
Two months after his release from prison, it is unclear what Smolka's financial status is. He was broke when he was arrested for murder in 1991 and relied on relatives to fund his criminal defense. He now lives in Delaware with relatives.
If Smolka were retried in the civil lawsuit, the burden of proof would be lighter than in the criminal trial. In a civil case, plaintiffs need prove guilt only by a preponderance of the evidence, not beyond reasonable doubt.
Such a retrial is rare, but not unprecedented.
O.J. Simpson, for example, was acquitted of murder in California, but now faces a retrial in a civil lawsuit from one of the victim's parents. Smolka faces an almost identical situation.
And there is precedence in Virginia Beach for such a retrial.
In 1991, a civil jury in Virginia Beach ruled that Sylvia Gerber and her mother-in-law plotted to kill Gerber's husband, a well-known local businessman, even though prosecutors never charged Gerber with the crime. The mother-in-law was convicted of involuntary manslaughter after claiming it was self-defense.
So far, no court dates have been set in any of the pending Smolka cases. ILLUSTRATION: Color photos
Thomas Smolka
Betty Anne Smolka
Willis Stephenson
Betty Stephenson
In 1993, a jury convicted Thomas Smolka of killing his wife, Betty
Ann. The Florida Court of Appeal acquitted him. The Florida Supreme
Court closed the criminal case Monday. Betty Ann's parents, Willis
and Betty Stephenson, will now pursue a tangle of civil suits,
including custody of the Smolkas' three children and a wrongful
death claim for $10 million.
KEYWORDS: MURDER SHOOTING TRIAL ACQUITTAL
LAWSUIT
by CNB