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The Seven Biggest Divorce Mistakes
Emptying the Joint Accounts
Some lawyers encourage their clients to clean out the bank accounts, “before your spouse does it.” This is a declaration of war, equivalent to pushing the red button.
In many jurisdictions, when one person petitions for divorce, the judge enters a standing temporary order, instructing the clients not to dissipate marital assets, not to take all the money and run, etc. The one who unilaterally empties the joint bank accounts will lose credibility in the judge’s eyes. If your matter ends up in trial, the judge will be the decision-maker, and you want him or her to view you favorably. Furthermore, your spouse will know that assets are missing and will inevitably wage a search mission to find the assets. This will cost you both more in attorney’s fees and discovery costs, and it will delay the conclusion of your case.
Additionally, you and your spouse accumulated your marital assets together, even if you made a marital decision for one of you to stay at home. You are usually not entitled to more than fifty percent of the marital assets, so you will eventually be forced to return them. In the meantime, by hiding the assets, you will have completely destroyed your relationship with your ex, and perhaps with your children. In a divorce, it is important to see the bigger picture and to understand that there is life after divorce. You don’t want to destroy your relationships because of the inappropriate way you acted while your marriage was dissolving.
If you are truly worried, dig up and copy your family’s most recent financial information. Inventory and photograph your family’s valuables. Move fifty percent of the liquid funds into an individual account, and don’t forget to meet with a financial planner, afterwards.
You may feel you must vent about your issues with the ex. If you do, beware “the natural and logical consequences.”
NEVER trash your ex to your kids. It will hurt you in court, if you insist on going there. And it will certainly bite you back with the kids for years to come.
I had a horrible case in which the opposing client mother falsely accused my client of sexually molesting their six year old daughter. Luna was clearly coaching little Angel to believe that she had been abused. One day, Angel told her grandmother over the phone that “someone is touching my private parts.” Her grandmother could hear Luna tell Angel “Don’t tell her that! You’re not supposed to say that to her!” Additionally, Angel informed Alejandro, “Daddy, I can’t go with you until I tell the judge what you did to me.” And later, she told him, “you gotta stop touching my private parts, ok, daddy? If you just admit what you did then I can see you.”
Needless to say, we obtained 100% timesharing for this father, and their mother didn’t see any of their three children for over a year!
In another case, the clients both constantly complained that the other spoke derogatorily about them to their young children and discussed the divorce litigation with the children. When James asked his ten year old daughter, Lisa, what she wanted for her birthday, she replied, that she wanted him to “help Mommy by giving us money” and to not use his girlfriend “as a bite to lure me in to go with you.” Their eight year old son said “Mommy doesn’t like you.”
Of course, the opposing client, Renee, similarly complained about James. Later, Lisa began questioning James about a “work trip” to Las Vegas that he had taken prior to the clients’ separation. She asked whether he had brought his current girlfriend with him. He had never discussed this trip with Lisa, so Renee had clearly discussed it with her.
Against our advice, James shut off Renee’s telephone and internet. Lisa asked James about it. Like the Las Vegas trip, she would not know that her father was responsible for it unless her mother mentioned it to her. Lisa also asked my client about an upcoming court date. Although our client was no gem, the opposing client was clearly defying the temporary standing order which forbids clients from discussing dissolution litigation in the presence of the children.
I also had a client whose ex began a relationship with a woman, Marcy, who attempted to alienate my client from her young daughter. The opposing client and Marcy spoke badly about my client in front of little Susie, telling her that my client was trying to get a judge to try to take her away from her father. The judge was not happy to hear it.
If you must, vent in the journal that your lawyer should have asked you to maintain.
Posting on Social Media
It’s hugely tempting to brag about your new life before you’re even divorced, to ensure that your ex knows that you’re over him or her. Don’t post anything that might be used against you! Details about the keg you finished all by yourself, comments about the one-night stands you’ve enjoyed, pictures of you with your new girlfriend or beau, will not help your divorce case. Consider the famous folks who are now infamous idiots just because they had to hit “enter.”
I had a case where a domestic violence injunction was entered against my client early in the proceedings. Although he was a hot head, I don’t believe he was truly physically violent with his wife. Nevertheless, the injunction was entered, and I advised my client to be on his best behavior. Thereafter, Dick began posting pictures on Facebook of him on lavish boats with different women. This infuriated his ex. But the icing on the cake occurred when Dick posted a quote by the Chinese philosopher and reformer, Confucius, “Before you embark on a journey of revenge, dig two graves.” Although Dick meant that no good comes from revenge and you will hurt yourself as much as the person you are trying to hurt, his ex claimed that she felt threatened by the quote. She felt that Dick was warning her that he was digging her grave. The judge agreed with her interpretation and extended the domestic violence injunction for another year.
I had a post-paternity action in which the father was seeking additional timesharing with his child. He had begun a relationship with a very young woman, and he wanted to play house. His girlfriend, Hayley, began posting pictures of the clients’ young daughter, Sally, on the internet. The opposing client did nothing to prevent it. Hayley placed captions below these pictures referring to Sally as her own daughter. She even endangered the young girl by creating a “Myspace” page for Sally. The page included pictures of Sally, and references to Sally’s school and the city in which she lived when residing with her father. When it came time for trial, the judge did not appreciate these social media posts, and they were a big part of why the judge refused to allow the father more time with Sally.
Filing False Charges
Telling the cops that your spouse hit you is not the right way to announce that you want a divorce or to get him or her out of the house. It’s a declaration of war, and your kids and bank accounts will suffer in the ensuing firestorm.
I had a client who was granted an injunction, despite that the judge stated in his ruling that “if I had to sit as a jury and find that a battery occurred beyond a reasonable doubt, I don’t think I could.” In that situation, the clients were fighting, and my client was using her husband’s computer without his permission. Unfortunately for him, he put his hands on top of my client’s hands and removed them from the keyboard. My client was granted temporary majority timesharing, and, as generally happens, when it came time for the final hearing, the judge did the easy thing and simply made the temporary timesharing final.
In another case, the opposing client, Lizzie, filed a temporary injunction and then quickly dismissed it. She was having an affair and wanted a divorce. A few weeks later, the clients had friends over for dinner and drinks. After their friends left, a drunk Lizzie went to get ready for bed, slipped on the hardwood floor, and hit her head hard on the bed post. She was bleeding badly, and she came out to the kitchen to tell my client.
Gil was extremely concerned, but Lizzie wanted to go to bed. Gil tried to insist that she go to the hospital, but she refused. He restrained her by the wrists so that he could convince her that she needed medical attention. She needed stitches, and he was concerned that she might have a concussion and should not go to sleep. The clients verbally fought about it. Gil called their neighbors, their close friends, for assistance in getting Lizzie to the hospital. They agreed she needed medical attention, and they finally convinced her to go to the hospital.
Lizzie returned to the house that night and spent the night with Gil. She stayed at the house the next day and night with Gil, and then filed the injunction on Monday morning. As it often happens, Lizzie was granted temporary majority timesharing. The clients were eventually able to settle their divorce, but my client had to agree to much less permanent timesharing than he would have liked because of the injunction.
Instead of filing a baseless or untruthful injunction, be brave; talk with your spouse about a divorce at the kitchen table. Or invite your spouse to coffee in a public place to have the discussion. Or ask family to help you have that talk. Or ask your attorney to help you have that talk.
Texting under the Table
Our client, Elizabeth, was a sexy, voluptuous green-eyed blond. She was very intelligent, and she used her femininity in her career as a pharmaceutical sales rep. The doctors loved her. She flirted with everyone – men, women, young, old, it was just her personality. Her husband, Preston, was also an attractive man. He was dark, tan, and athletic. He was a body builder in his younger years, and he still had rather large and defined muscles that bulged from beneath his too small Polo shirts. When just looking at the couple, you could see why the two had been attracted to one another. They just looked good together. But beneath Preston’s sexy exterior was a violent man with a substance abuse problem. And although Elizabeth appeared to be very confident, when you peeled the layers back, her self-esteem had been shattered by years of physical and emotional abuse.
During the parties’ marriage, Preston had consumed alcohol to excess on a nightly basis. He got a DUI. He was a felon, having been convicted of an offense involving a firearm. He was frequently intoxicated in front of the children, even during periods when Elizabeth entrusted the children to his care in her absence. Especially when he was drunk, Preston would become angry and aggressive. While he was never violent towards the children. Elizabeth often had to hide bruises under heavy makeup. On an almost weekly basis, Preston physically abused Elizabeth, usually in the children’s presence. And almost every night, he would belittle and demean Elizabeth in their presence. Not only did Elizabeth worry that the children were learning this horrible behavior from Preston, but she dreaded the day when he would turn his anger towards them. Already, they were frightened and uncomfortable to be alone in his presence without Elizabeth. Although Elizabeth had been the primary caregiver for the two young children since their births, and her job enabled her to work primarily from home, she often had to travel overnight, leaving the children alone with their father. Although she was extremely nervous about him watching the children overnight in her absence, overnight travel was absolutely necessary for her to work in her field in Florida. However, travel was not necessary in New Jersey since it was the United States hub for the pharmaceutical industry. Elizabeth also had family in New Jersey, so she knew that getting a job there was her key to escaping her marriage with her children.
Elizabeth did not trust Preston, and for good reason. During their marriage, but knowing that their divorce was imminent, he had emptied a joint bank account containing approximately $47,000, proceeds from the sale of their marital residence. When Elizabeth inquired as to where the money had gone, Preston informed her that he had deposited it in a bank overseas because he did not want her to waste the money on lawyers. He told Elizabeth that he had spent approximately $11,000 of this money on marital debts. The whereabouts of the remaining $36,000 were never determined. Not surprisingly, once the parties separated, Preston acquired a new residence, as well as furnishings and belongings, despite being unemployed. Preston had also received a substantial severance package from his former employer during the course of the marriage. Elizabeth had no knowledge as to the contents of this package, and Preston never provided her with access to information about it even when the judge ordered that he do so during the divorce.
Eventually Elizabeth’s position in Florida was relocated to New Jersey, and she saw it as her way to escape. Although she did look for a new position in Florida to keep her options open, she was unable to find other suitable employment in Florida. Actually, she did find one position in Florida, but it required her to travel significantly, and Preston refused to watch the children overnight. Elizabeth wasn’t comfortable with that thought anyway, so it was easy for her to decline that offer.
Meanwhile, during a drunken fit, Preston went to the children’s school and acted inappropriately with the staff. He came on to one of the younger teachers and then yelled at another teacher who scolded him for acting improperly. Elizabeth was humiliated, and the children were asked not to return.
The parties initially agreed that she should take the children with her to New Jersey so that she could continue her employment and be near her family. In fact, her relocation to New Jersey was initially suggested by Preston. He stated on numerous occasions that it would be in the children’s best interest for them to remain with her should she relocate to New Jersey. He offered to allow her to relocate without objection as long as she agreed in writing to waive his child support obligation or to “pay him off” with a large cash payment.
Unbeknownst to Elizabeth, Preston began consulting with a divorce attorney. Suddenly, he wasn’t so supportive of her move to New Jersey. Once his attorney advised him that he could be required to pay child support, despite agreement otherwise with Elizabeth, he began to object to her move.
Nevertheless, the wheels were already in motion, and Elizabeth, knowing that this was her only way out, moved with the children to New Jersey. On moving day, Preston petitioned for dissolution of marriage and served Elizabeth after she had relocated. At the same time, ex parte, Preston sought to enjoin Elizabeth’s relocation to New Jersey.
At the hearing to dissolve the injunction, the judge permitted Elizabeth to temporarily relocate to New Jersey with the children:
I don’t normally do this because a party should not feel that they can relocate without first asking the court’s permission, but I do believe that when Mrs. Bolton made her plans, Mr. Bolton seemed to be on board with her moving with the children. Mr. Bolton, you are clearly trying to scare Mrs. Bolton. You asked for custody, which you have every right to do, but in my opinion, you were doing it to just intimidate her. You petitioned for divorce on the day that she moved after you seemed to be in agreement with her relocation. You called her repeatedly saying she needed to bring all the children’s stuff to you so you and your new nanny could have it when I ordered the children to move in with you, despite that you couldn’t have known how I would rule. According to Mrs. Bolton, whose testimony I find to be more credible, you even coerced her so, if she asked for child support, she would have no childcare and could not work in her field, therefore not being able to make enough money to support the family. Therefore, I am going to allow her to temporarily relocate with the children to New Jersey, and I hope that you can all work out the final arrangement.
Since that time, and for nearly a year, Preston made no attempt to pay his share of the child support or childcare expenses, despite that he admitted to earning $71,000 annually. In addition to shelter, food, daycare, and clothing, Elizabeth also provided health insurance for the children and paid the full amount of any uncovered medical expenses for them. She also provided the funds for any necessary daycare. Elizabeth was forced to rely on the kindness of her parents, who provided her and the children a place to live at a reduced rental rate. However, her income alone was still not enough to provide for the children.
The parties mediated, and Preston continued his abuse and coercion of Elizabeth. She was scared, combined with the fact that she was dealing with helping her children adjust to a new environment and dealing with the normal depressed feelings that go along with getting divorced and living with a verbally and emotionally abusive alcoholic for six years. Elizabeth was under duress and blackmailed by Preston when she negotiated and signed the agreement. Unbeknownst to the attorneys or mediator, Preston was sending intimidating texts to Elizabeth during the mediation.
Listen you bi***, if you don’t agree to my proposal, I’ll make it so that you never see the kids. I’ll tell the judge all about what a slut you’ve become since you left and how you have a revolving door of men coming in and out of the house. No judge would give the kids to such a slut.
When Elizabeth tried to ignore the threats, they escalated:
I’ll take the kids, and you’ll never see them again. I can disappear easily. I have family and friends all over the world who would help me. You know it’s true.
Elizabeth continued to ignore the texts, but she was rattled. He continued:
You whined that I abused you before, but just wait. I’ll strangle every last breath of air out of you, and then you’ll never see your kids again. Is that what you want? Cause that’s what is going to happen, you little bi***.
As a long-time victim of abuse, Elizabeth was easily convinced that Preston would make good on his threats. Because of this intimidation, Elizabeth felt forced to enter into an agreement wherein she waived child support completely. It also provided that, in the event that she ever sought such support, Preston would be entitled to alimony from her. I tried and I tried to convince her that she should not enter into such an agreement, but ultimately, it was her agreement to make. And, I wasn’t aware of the coercion that was occurring in the very same room with me. Mind you, this was before texting was as common as it is today, and it never even crossed my mind that he could be threatening her from across the room.
At the final hearing, the judge who was already cognizant of the potential of Preston to intimidate Elizabeth, refused to approve the agreement:
I cannot sign this final judgment. As I’m sure that your attorneys told you, child support must be pursuant to the Florida Statute. Mr. Bolton’s waiver of child support is illegal and not in the children’s best interests. I’m ordering you to go back to mediation and come up with something else.
Preston was furious, and he let it be known to Elizabeth by repeatedly calling her and yelling at her,
I know it’s your fault that the judge didn’t sign the final judgment, you little bi***. If you don’t find a way around this, I’ll find a way for you, and you won’t like it. But, if we do it my way, you won’t be around any longer to complain to the judge.
At the next mediation, Preston proposed an amendment to the agreement, in which he attempted to render the Elizabeth’s waiver of child support more palatable to the court. He proposed that Elizabeth would pay him bridge-the-gap alimony, in payments exactly equaling the child support payments to which she would have been entitled, until the younger child turned eighteen.
Elizabeth refused to execute the amendment, and Preston sought to compel her to do so. We argued that Elizabeth’s waiver of child support was not in the children’s best interests. The issue of alimony was included in the agreement only to make the child support waiver acceptable. Based on their salary history, education, and the length of the marriage, alimony was not warranted at all. Preston had argued that he had a brain injury that would make it impossible for him to earn what he used to earn. But he soon did. And Preston could not get a doctor to document his alleged brain injury. In fact, he was having problems at work due to his attitude and the way he talked to people prior to the surgery he claimed gave him a brain injury. He stated in court that he made $90,000 in his last six months at IBM, after his alleged injury. Elizabeth was not aware of this money until the hearing when he admitted to it, since he had not contributed any of this money to their household. Preston had also told Elizabeth that his inability to get a decent paying job after he was laid off from IBM was probably due to his legal problems (the DUI and felony arrest).
Additionally, there was no basis in fact for an award of bridge-the-gap alimony to Preston, especially one to last for fifteen years. Bridge-the-gap alimony was intended only for short-term assistance, and should not be awarded for more than two years duration; it was intended to be used for legitimate short-term needs, such as to meet basic living requirement, not to make the waiver of child support by the other party acceptable to the court. The agreement specified four reasons for Elizabeth’s payment of bridge-the-gap alimony, at least three of which were directly related to the payment of child support, rather than to meet Preston’s basic living requirements. The two issues were therefore inextricably interrelated. If the waiver of child support was not in the children’s best interests, and therefore must be stricken, then the agreement to pay alimony must fail, as well.
In addition, almost all of the parties’ circumstances had changed since they entered into the original agreement. Preston had relocated to New Jersey, and the visitation providing for the parents living a thousand miles apart was therefore inadequate. Elizabeth’s salary had decreased, and Preston’s salary had increased, making the child support computation in the original agreement inaccurate. Elizabeth’s employment had changed, and she had therefore been required to place the children in daycare, the cost of which was not included in the child support computation in the original agreement. She was required to switch jobs because she was about to be placed on furlough again (which would mean half the pay due to no work) and, as a single mother, she needed to travel less. Plus, her new position was more stable than any other job she’d had in her career since she worked directly for the pharmaceutical company instead of a contracting company. Also, since her new position required full time hours, her travel expenses to bring the children to see their father were more than what was expected when the parties mediated. She could no longer work from Florida, so she was forced to buy an additional round trip ticket so she could go home and work while the children were visiting Preston.
Elizabeth testified and presented evidence without objection at the hearing on Preston’s motion to compel her to sign his amendment to the marital settlement agreement that she was defrauded and coerced by Preston throughout the process. Preston offered no testimony or evidence to contest Elizabeth’s assertions. The court found that Preston did coerce Elizabeth into entering into the original agreement and that she did not enter into that agreement freely and voluntarily. The judge ordered:
The original agreement that I refused to enter as the final judgment is set aside due to Mr. Bolton’s clear coercion of Mrs. Bolton during mediation. He sent her intimidating texts during the mediation and coerced her throughout the process. She now refuses, as she should, to sign Mr. Bolton’s amendment to the agreement because she knows that she should not have to pay alimony in a case like this. Do to the imbalance of power here, I don’t see how mediation would be fair. Therefore, I order that you attend a final evidentiary hearing so that I can determine what the final judgment should be.
Preston finally got the point. Just two days before the final evidentiary hearing, he agreed to an agreement whereby neither paid alimony to the other party, Elizabeth had a vast majority of the timesharing, and child support was pursuant to the guidelines. The judge happily entered this agreement.
Elizabeth has been living happily in New Jersey with her children ever since. Preston rarely visits, and when he does, he does not stay long. Although Elizabeth is sad that the children do not have a constant presence in their lives, she is relieved that she was able to wrest them from the hands of her abuser.
Who the heck wants his personal information splashed all over the front page of the town newspaper? If you aren’t committing a crime and you’re not famous already, aren’t you entitled to some privacy?
Well, I’d say “yes” under most circumstances, but not in my world. I’m a divorce lawyer and, if you choose to dissolve your marriage in a courtroom, then you’ve chosen to air your grievances in public and the public has the right to “read all about it.”
A matronly, but petite Flemish woman with a heavy accent, a snaggletooth, and the ripe scent of body odor timidly entered our offices. Louise eventually retained our firm to represent her in her divorce. In addition, we assisted her with the petition for a domestic violence injunction that her husband had filed against her. This sweet, middle-aged woman had two concerns. One was her college-aged son, Liam, and the other, the children for whom she cared in her home-based daycare.
When her husband, Lars, a tall, brutish man, learned she planned to divorce him, he called the police, claiming she had punched him in the face. She explained, “Late one night, we were in bed. I was watching a program on my laptop, but he wanted me to turn it off so he could go to sleep. I said there were only five more minutes, and I wanted to finish it. He roughly grabbed my small dog by the neck and threw him out of the room! Then he yanked the bigger dog by the collar and shoved him out of the room.”
As she was telling the story, I had my own dog in my lap, and I hugged her closer. “What happened next?” I asked.
“After he returned and tried to swat the laptop closed, I batted his hand away. When I did, my pinky and ring fingers brushed his left cheek. At that instant, he announced ‘I love America’ because he knew he could now have me arrested for battery. He threatened to call 911. He said it would be my last evening in the house.”
I cut in, “Had you injured him at all? Was he bleeding or bruised?”
“No, when he left the room, he wasn’t bleeding or bruised. And, there was no mark on my hand where I had allegedly hit him.”
“Was anyone else at home at the time? Did they hear the fight?” I asked.
“My parents and our son were in bedrooms nearby, but they heard nothing. That’s how harmless the fight was.”
She continued, “However, when the police arrived, his nose was bleeding a bit, and he had a loose front tooth. Lars has tooth implants, and they often come free.”
“Did the officers seem to believe that you had injured him?”
Louise explained, “No. The responding officer asked him if he really wanted to proceed with filing a police report.” Given the disparity in their sizes, the officer must have wondered about the truthfulness of Lars’ story. It would mean that Louise would go to jail, and that would affect her daycare business, which was their only income.
“What did Lars decide?”
“He initially decided not to proceed, but the officer explained one of us would go to jail that night. If Lars didn’t proceed against me, then the officer would have to take him to jail for making a false report. Not surprisingly, he chose to have me go to jail for the night. At the battery hearing the next day, he dropped the matter, and I was released.”
Unfortunately, this event caused much damage to the daycare business. Sweet Louise’s mug shot was available to anyone who searched her name on-line. Who would continue to entrust their children to someone who was arrested for battery? Although we got her record expunged, it was nearly impossible to have her mug shot permanently removed from the internet. Luckily, some clients liked her so much and had so much faith in her that they allowed their children to remain.
She immediately petitioned for divorce, despite her grave concerns about his possible response. Their marriage was a history of his verbal, emotional, and physical abuse.
When they lived in Belgium, he became angry with her because she refused to do something that he had asked, and he tried to kick her. When she jumped away, he accidentally kicked the cabinet door and broke his big toe.
After Liam’s birth, Louise went to the hospital for a fairly routine surgery, and, unbeknownst to her, Lars instructed the doctor to sterilize her. Louise, who wanted a large family, didn’t learn why she never had more children until many years later.
He often kicked and hit her beloved dogs. He repeatedly would release the dogs to wander in the neighborhood and then taunt her about it. He often victimized Liam, as well. Once when Louise and Liam ran after the dogs because Lars had let them out, Lars locked them both out of the house. He jeered at them through the sliding glass door. Liam finally used a code to enter the front of the house. When Lars realized that he was inside, he unlocked the sliding glass door for Louise, but then slammed her hard against the wall when she entered.
A couple of months later, when she was washing dishes, he threw a can at her, and it hit her in her back.
He said he’d rather kill her than see her with another man. After making this threat, he would remind her of the knife he kept in his nightstand. He also threatened to ruin her daycare business if she ever tried to divorce him.
Because of the history of violence and the incident that resulted in her arrest, Louise also petitioned for an injunction for protection against domestic violence. When she filed, she was told that, on the petition’s face, there was insufficient evidence for a temporary injunction. However, the judge agreed to set a hearing in order to hear from both parties. It was an uphill battle to get the injunction. We persisted. She was very fearful of his potential violence, including entering the marital home and upsetting her daycare children, doing something to harm her business, or picking a fight with Liam.
Although he had dropped the battery charges against her, she was convinced he wanted her out of the house so he could stay and ruin the daycare. He had begun by having her arrested. She was terrified of what else he would do if allowed to remain living there.
Often during divorce proceedings, one spouse will pretend there’s domestic violence. This gives that spouse the upper hand in the divorce by getting the other spouse out of the house and/or getting majority timesharing with minor children. When an injunction is entered, the “victim” is usually allowed to stay in the home and is granted temporary majority timesharing with the children. This affects the final judgment. Normally, the living arrangements during the process of divorce become permanent. Therefore, winning an injunction early strengthens the likelihood of receiving the marital home and the majority of timesharing. Usually the wife employs this strategy, but sometimes, the husband tries to force the wife out of the home.
When prepping Louise for the hearing, we stressed the importance of convincing the judge that she was fearful for her own personal safety. During the hearing, we questioned her regarding the recent incident and the many past episodes of his violence, aggression, and harassment. We also questioned Liam. It’s not common to question a client’s child on the stand, but Liam was over eighteen and passionate to protect his mother from his father.
To our relief, the judge granted her petition for protection, and an injunction was entered for one year. Because the proceedings continued beyond that year, the judge extended the injunction until the divorce was finalized.
Lars rarely worked during the marriage, and most of their money came from Louise’s work and her family. In Belgium, they paid reduced taxes because she was considered a “helping wife”; she was married to Lars, who was “self-employed.” If they had remained married, he would have received a larger government pension due to Louise’s “helping wife” status. But, once divorced, he would only receive the normal pension. And she would receive no pension. She believed this additional money and support routinely received from her family were the reasons he wanted to remain married.
When they moved to the United States, Louise accidentally discovered he’d developed an interesting habit. Early one morning, when her daycare children were still eating breakfast, she quietly crept into her bedroom, trying not to wake him. She found him wearing her white bra. Although she was shocked, she postponed a discussion because the children and Liam were there in the kitchen.
When they did talk, she made it clear that she was very hurt by his behavior and would not accept it. She asked him to choose the cross-dressing or their marriage. He assured her he wanted the marriage and went to counseling a few times. Although he soon quit, he continued to promise her that he would abandon his cross-dressing activities.
But he didn’t. She repeatedly found her panties with holes cut into them. Eventually she had to put a lock on her closet door so he couldn’t steal her clothes. When she questioned him about finding women’s undergarments in their home that weren’t hers, as well as a wig with long hair and a pornographic magazine, he claimed he had found the items “on the street.” Despite her objections, Lars frequently visited pornographic websites for men who dress as women.
Once the injunction was granted, he was not permitted to remain in their home. He was forced to return to Belgium, where he still had family to support him. The case would have finished fairly quickly, except for the interference caused by the distance and the time difference. We finally scheduled his deposition to try to pressure him to settle.
Although his “habit” wasn’t legally relevant to the dissolution, Louise very much wanted to ask him about it during the discussion. I waited until the end because I didn’t want him to refuse to answer questions that were relevant. Because he was in Belgium, he appeared via Skype. He clearly had not informed his counsel about his peculiar “habit.”
When I posed my first question to him on this matter, his attorney almost fell out of his chair in shock. Surprisingly, Lars responded with honesty and passion, clearly tortured by his cross-dressing desires. I’ve never worked so hard to maintain my professionalism as when I asked these embarrassingly personal questions. He responded with emotion and candor. Meanwhile, his attorney laughed hysterically and threw water bottle caps at me from across the room, outside the camera’s view!
Ultimately, once Lars’ attorney became aware of the details of their marriage, the divorce was mediated successfully. Louise retained her beloved daycare, and Lars relocated permanently to his country of origin.
Although our clients are technically adults, we often feel like we are representing children. True, divorce is one of the biggest stressors in life, ranking up there with death and taxes. But why does it make so many regress to adolescent immaturity?
Jeremy Lubsen strode into my office for his initial consultation, and announced that he had very little time to afford me. Although he was dressed like a steelworker, he carried his spare 6’2” frame like he owned the steel works. “I don’t have a lot of time, so let’s make this quick. I want to divorce my wife so that I can marry my pregnant girlfriend.” He immediately rubbed me the wrong way, but we don’t always like those who we represent.
I specifically asked, as I always do, “Who referred you to me?” He simply replied “my girlfriend” again, and wouldn’t tell me her name. He certainly neglected to mention that his girlfriend, Rita, was the former wife of an old client of mine, Alex. She had referred Jeremy because I had performed an exceptional job for her ex-husband (against her attorney) during their divorce. (It is not unusual that a new client will not tell me that a former “opposing party” referred him to me; the person referring him has usually requested that he not divulge his or her name, for obvious reasons.) Only later, when I discovered her name, did I realize the connection.
Jeremy hurriedly proceeded with his story. “My wife, Renee, knows I want a divorce. I’ve already moved out of our home by. We’ve already agreed to a timesharing schedule in which I have the kids overnight every other Friday, Saturday, and Sunday, as well as every Wednesday. So, this should be an easy divorce for you. I just want it over as quickly as possible.” I could tell by Jeremy’s personality that he likely would not make this an easy process, but I kept my mouth shut, and he retained our firm.
Throughout the divorce process, Jeremy and Renee each complained bitterly that the other spoke derogatorily about him or her to their young children and discussed the divorce with the kids. When Jeremy inquired of their admittedly precocious ten-year-old daughter what she wanted for her birthday, she replied “I want you to help Mommy by giving us money.” During his stupefied silence while he tried to digest that, she continued, “I also want you to stop using your new girlfriend as bait to lure me in to go with you.”
On many occasions, their eight-year-old son informed him “Mommy doesn’t like you, and neither do I.” Despite these statements, the boy’s playful actions belied these unsolicited and vitriolic comments. Clearly, Renee had planted these words.
Of course, she leveled similar accusations against Jeremy.
Later, his daughter told him that she didn’t want to visit with him and that her mother had revealed to her that she “didn’t have to.” In addition, the child began cross-examining him about a “work trip” to Las Vegas that he had taken prior to her parents’ separation. She asked whether he had brought Rita with him. Because he had never discussed this trip with his daughter, clearly Renee had done so.
At the same time as he insisted that we move for an order to show cause why Renee should not be held in contempt of court for her violations of the standard order against involving the children in the litigation, against our advice, he shut off her access to telephone and internet. His daughter asked Jeremy about it. Like the Las Vegas trip, she would not have known that her father was responsible for shutting off access unless her mother had mentioned it to her.
The child also asked him about an upcoming court date. Although our client was no gem, she was clearly defying the temporary standing order which forbids parties from discussing divorce litigation in the presence of the children, much less with them.
The Lubsens also created many problems with their timesharing plan. Each regularly changed the schedule without the other’s input, much less approval. On one occasion, Jeremy attempted to visit with the children on his usual Wednesday evening, but Renee, who was upset over an unrelated divorce issue, refused to answer the door, and, when he ran an errand to allow her time to cool down, left the county with the children to frustrate his timesharing that night altogether.
During mediation, they agreed that Jeremy would drop the children off at the marital home in the mornings no earlier than one hour before school began. Renee unilaterally decided that he should drop the children off at school instead. If he would not, then he could not share time with them overnight.
One Wednesday, Jeremy and Rita went to Renee’s home at the normal exchange time to retrieve the children, but they weren’t there. He waited. When they finally arrived home, she refused to allow him to take them. At this point, he blocked her car in the driveway with his car so she couldn’t leave. The Lubsens engaged in a verbal altercation, and Renee called the police. The children witnessed this entire, unnecessary incident.
Although Jeremy was ultimately allowed to take the children when he showed the police his timesharing order, the police don’t like being involved in civil disputes and will often tell disputants that they’re not judges and cannot determine timesharing issues. On this occasion, the police simply convinced Renee to allow Jeremy to take the children.
Her threats to withhold the children violated the standing order. It weakened her argument that she should have majority timesharing, because her behavior was simply not in the kid’s best interests. Maintaining the set schedule would have been in their best interests, providing a sense of stability during the divorce.
However, Jeremy shouldn’t have allowed the situation to escalate into a heated disagreement in front of the children.
To protect his time with the children and reduce her involvement, against our advice, he began to take the children from school a half hour early so she couldn’t pick them up. Like Renee, Jeremy should have refrained from needlessly changing their routines during this stressful time for them.
Moreover, during his telephone conversations with the children, she refused to take him off the speaker phone. Unless the Court orders otherwise, parents are entitled to private conversations with their children. When he confronted her about it, she was very agitated and kept saying that she could do whatever she wanted to do. Her comments about Rita made it clear she was punishing Jeremy because she was upset when she could hear Rita in the background.
They couldn’t even communicate civilly via e-mail.
She had a small business selling products on E-Bay. Without her permission, he changed all of the information on her E-Bay account and put it in his and Rita’s names. Both of the Lubsens acted immaturely and vindictively toward each other throughout the litigation, always putting their needs ahead of their children’s best interests.
During my representation of Jeremy, Alex re-retained my firm to assist him with some post-dissolution of marriage issues. At this time I learned that Rita was Alex’s ex-wife, Jeremy’s pregnant fiancée. When Alex revealed this, I immediately contacted the Florida Bar Ethics Hotline to determine whether a conflict of interest existed. They confirmed that there wasn’t.
However, the case quickly unraveled. Alex’s post-dissolution problems were in large part due to Rita’s relationship with Jeremy, especially considering Alex was now dating Jeremy’s wife, Renee. Are you following this? Not surprisingly, the Lubsens and their lovers eventually ended up at the same place, and the situation was ripe for disaster. Jeremy and Alex got into a physical altercation, creating a clear conflict of interest between me and Jeremy. I immediately moved to withdraw from my representation of this “problem child” client, and was relieved to wish him the best of luck with new counsel.
Peter Peter – Pervert or Just Drunk?
t’s never fun to represent the parent accused of sexually abusing a child. One can never be certain whether the accused is guilty of the specified charges, or, indeed, of anything else, in a system in which the other parent’s accusation is sometimes a litigation strategy. As the lawyer in that case, all I can be sure of is that that parent is entitled to representation in the judicial process. But it doesn’t always have to be me who serves as that lawyer!
Peter Peter entered my office, his lanky frame draped in baggy, grass-stained clothing and his dirty, sweaty face crowned by scruffy, auburn hair. The creases enveloping his eyes made him seem older than thirty-seven. His slow speech, unlike a southern drawl, sounded like he was either confused or thinking hard about his next words. Despite the fact that his girlfriend had scheduled the consult, and accompanied him, his blue-eyed stare stripped me visually, triggering invisible waves of violation. After his intrusive look, his lips lifted in a smirk.
The story he told was unusual. He slowly began without looking me in the eyes, “Two years ago, I was charged with sexual battery on Natalie, my wife’s twelve-year-old daughter from a boyfriend before me.” He looked up and into my eyes, pleading, “I swear, I didn’t mean to do anything wrong. I just don’t know what happened. I got home late from drinking with my buddies. I was really drunk. Like, I have no recollection of how I even got home. I think I watched some TV because there was an open bag of chips and a can of coke sitting by the television in the morning. I must have gone to my room and stripped because that is where I found my clothing in the morning. I think I passed out in me and my wife’s bed. She was working the night shift as a nurse at the local hospital.”He nervously fumbled with a candy wrapper that he had in his hand and continued. “I woke up the next morning, but I was in Natalie’s bed, naked. I was so confused. I didn’t understand how I had gotten there. Natalie claimed that I had crawled naked into her bed with her in the middle of the night. I don’t know why she didn’t wake me up and tell me to get out. Or scream.” He looked down again and said quietly, “She also told her mother that I had touched her ‘private areas.’ I would never do that knowingly. I must have thought I was in bed with my wife.”
I tried not to look too shocked and disgusted. But, I was flabbergasted as to how this could happen. Even if his version of the story was correct, how could he have become so intoxicated? And, I didn’t want to think about the fact that he might be lying. “So, what happened with that case,” I asked.
“Well, I agreed to the court’s entry of an injunction, putting me out of my home. When I then pleaded guilty to felony child abuse and domestic violence, the judge prohibited me from having any contact with any of the children, not just Natalie, but also the two I share with my wife. Because it was my first offense, I was sentenced to five years of probation.” I suppose it was admirable that he did not want to subject Natalie to a full hearing, with the concomitant police investigation, and the inevitably painful and grueling cross examination.
Following the events of that night, Peter joined Alcoholics Anonymous and, as far as I knew, stopped drinking. Nevertheless, during our representation of Peter, I repeatedly wondered whether he was a pervert… or just a drunk. I continued to weigh the two options … pervert or drunk? Drunk or pervert? Call me gullible, but ultimately I concluded that he was just a drunk.
As a result of his guilty plea, Peter lost his job as a radiologist and was forced to find another. Because he had paid for college by working for a landscaper, he decided that his best alternative would be a lawn care business. Of course, the modification in financial status caused by his career change was the final blow to his marriage.
At the time of the incident, Peter and his wife, Joanne, a statuesque brunette, had a nine-year-old boy and a two-year-old girl together. Prior to the incident with Natalie, and before she obtained the injunction against him, he had cared for all three of the children at least three days a week while she was at work. Joanne had agreed to this for over a year after the incident! Yet during the divorce, after the injunction, for months she prohibited him from seeing the children AT ALL. To increase his frustration, she paid babysitters to watch the children every night while she worked.
During the litigation, and his separation from Joanne, Peter began dating another woman, Debi, a chunky little blonde who believed strongly in his innocence and who was extremely supportive. She brought him in to see me and paid for his consultation. (In fact, during the time that I represented him, she became pregnant, because what he needed was yet another child. Not.)
He lived with her and her five-year old daughter in a safe neighborhood. Nevertheless, Joanne refused to allow Peter to share time with the children, even if that time was supervised by Debi and was not overnight. Furthermore, she discouraged telephone contact between him and the children. She purposely delayed the divorce process to prevent him any contact with them and to gain an upper hand in the litigation. The longer the case dragged on, the more desperate Peter became to at least see his children, and the more willing he was to capitulate on other issues such as how they would divide up the assets, and how much child support he would pay.
It took us months to schedule mediation. Joanne, or her attorney, kept finding reasons to delay it. Then during mediation, it seemed to us that she refused to negotiate reasonably. Her demands were completely unrelated to how a judge might resolve their issues if we actually had to go to trial.
Around this time, Peter’s still-pregnant girlfriend sent him packing, and informed us that she would no longer pay his invoices. We withdrew while he still owed us money, because he could no longer afford our services, and we could not afford to work for free.
It was almost amusing when Debi called my office to schedule a consultation, seeking to retain us to file a paternity suit against Peter. Of course, we couldn’t even consider such a thing; it was clearly a conflict of interest.
Pervert or drunk… I still wonder.
Some cases, you’ll never forget. Any case involving the child abuse is especially difficult. Thankfully, justice prevailed in this case.
Amber Taylor came to our firm with an absolutely gut-wrenching story. At the time, this young woman was just shy of thirty years old, and she was already divorced from the father of her two little girls. Although she looked young for her age, there was a maturity to her that convinced me she had already experience a lot of heartache. When she first came to us for advice, she was anxious, for reasons that became apparent, but she offered a ready smile and a lot of questions, most of them written down. She came accompanied by, not only her second husband, a quiet man who seemed happy to remain in the background, but also her two daughters. I usually do not permit parents to bring their children with them to consultations, but I made an exception in this case.
Her oldest daughter, Shayla, a ten-year old, was a portly little thing. Although Shayla looked tough, she was a sweetheart. She was very protective of her kid sister, Laila, who was only eight at the time. By physical appearances, you would never guess that these two were full biological sisters. It appeared that the only characteristic they shared was the chestnut hair they had inherited from their mother. Laila was a beautiful little girl. She was very petite, with brown, sun-kissed skin, and gorgeous green eyes. Shayla was shy, while Laila was outspoken.The girls waited in our reception area, with the books they had brought with them to read, while Amber and I interviewed each other. Amber painted the following horrific picture for me.
“My ex-husband, Anthony, is remarried, and the girls spend alternating weekends and occasional weekdays overnight with him.” She paused for a moment, took a deep breath, and then, continued. “One evening, while the girls were at his house, his wife, Lauren, called me. She said that Laila had told her that Anthony had sexually assaulted her.”
Despite that I was reeling inside, I calmly replied, “How horrible, what did you do?”
“I immediately went to his house. On the way there, I called him. I was so scared and angry.”
“What did he say?,” I inquired.
“He was crying, and he said he didn’t know why Laila would say such things. That made me so angry because he clearly wasn’t going to confess, he was just going to blame it on Laila.”
“What did you do when you arrived at his home?”
“I sent the girls to the car and asked Anthony again, face-to-face, what had happened. Seemingly baffled, he just shook his head.”
“By his reaction, did you believe that he had not done it?”
“No. I thought then that, if Laila’s accusations had been false, he would have been irate, rather than crying and scared.”
“Makes sense to me,” I responded. “So, what happened next?”
“I took Laila to the hospital where she was interviewed by the staff and Child Protective Services. Laila told them that Anthony had come to her room, pulled down his pants, lifted his shirt, picked her up, and started kissing her all over her body.” April shuttered. She took a moment before proceeding. “He touched her with his hands around her anus.” April began to cry, and I passed her the tissues. She proceeded, “he touched himself, and Laila said that white stuff came out onto her floor and her tummy.”
I was outraged. “That disgusting creep! I am so sorry that Laila had to suffer through this. No child should have to experience this. Did she say whether it had happened more than once?”
April sobbed, “Yes, she said that it had happened more than once. He told her not to tell anyone, but the first time when the girls were at Anthony’s home alone after these incidents, Laila told Shayla. Shayla urged Laila to tell their mother. Instead, they both hid in Laila’s closet at her dad’s home and called Lauren instead, who immediately called me.”
In retrospect, Laila’s reporting first to Lauren seems perplexing, as does Lauren’s immediately calling Amber, but I tell the story as it happened, not as the reader would think it should have happened.
I gently continued to question Amber. “Do you know whether Anthony has a history of sexually deviant behavior?”
Amber looked ashamed. “He does. I first discovered that he’d been convicted as sex offender when I was pregnant with Shayla. He had claimed that the events occurred when he was seventeen and his girlfriend was sixteen. He explained that, after he turned eighteen, he was arrested because she was still a minor. He told me that it was the girl’s father who had discovered the extent of their love affair and had come after him, despite his ex-girlfriend’s objections.”
“Is that really what happened?”
“No. I later learned the girl was only fourteen, resulting in Anthony’s conviction for lewd and lascivious behavior on a child under sixteen. As a result, he was forced to register as a sexual offender.”
“Has he had any other trouble with the law?
“Yes. Later, he was arrested three times for driving under the influence, and he was sentenced to four years in prison for violating probation. Because of his alcohol abuse, my life with him quickly became a nightmare. I stayed in part because I wanted my daughters to grow up with their father in their lives, unlike I had; my own father had disappeared when I was very young. As a result, I made every effort to keep him involved; I chose not to report his beatings or his demands for bizarre sexual behavior.
“Anthony spent much of our marriage behind bars. When he was finally released, he asked me to move back in with him with the girls so we could work on our marriage. Despite my disinterest, after much persuasion, I reluctantly agreed, believing this was the best thing for my daughters.”
“How did that go?”
“At first, things were okay. Then, when the girls were four and six, while I was at work, he got drunk and left the children home alone. I had him arrested, and he was convicted of one count of simple assault and two counts of child endangerment. He was ordered to attend Alcoholics Anonymous classes and anger management courses. I stuck by him through AA and things settled for a while.”
“Then what happened?” I asked.
“Then he was arrested for possession. I took the children and moved in with my mother, hoping that disconnecting from Anthony and his crowd would help. But Anthony followed me to my mother’s and we continued our relationship. During one overnight, two months later, he got into an altercation with my mother when she complained that he didn’t work and that I worked too much. He left in a huff, throwing all of his clothing into his car and demanding that me and the girls move back in with him.”
“Yes, once again, I yielded to him,” she replied.
“So, how did your relationship finally end?”
“Well, soon I suspected he was having an affair. I was right, and soon after Anthony moved in with Lauren.
“I never kept the girls from Anthony. Once he and Lauren got a place with room enough for the girls, they began exercising overnight visits, even before I filed for divorce. Once I filed, Anthony and I worked out a visitation schedule. I trusted the children with him because I believed he wouldn’t hurt them. In addition, they loved their dad, and I wanted to keep it that way.”
“Did you have a good co-parenting relationship with Anthony and Lauren?”
“Yes. The three of us even met together to discuss Anthony’s drinking and anger issues, and we agreed that Lauren would call me if the girls ever needed to be picked up because their dad had gotten drunk or too angry.”
“Did Lauren ever act on that?”
“Yes, on multiple occasions.” Amber continued, “One time, Anthony became furious with his brother and punched out the window of his brother’s vehicle. On another occasion, he struck their dog in the eye because she peed on the floor, and then threw the coffee table across the room. Thus, when Laila reported his behavior to Lauren, this was not the first time she had occasion to be concerned, and she, again, called me right away.”
After learning of Anthony’s abuse of Laila, Amber filed a domestic violence injunction to protect Laila from her father. The sheriffs’ department and Child Protection Services advised Amber not to let him have any contact whatsoever with the girls.
During Laila’s deposition, she drew a picture of her father’s penis, and Amber verified that she had drawn certain physical characteristics of which she would only be aware if she had seen her father’s penis closely.
With the help of Child Protective Services, we fought hard to eliminate contact between Anthony and both of his daughters. He denied Laila’s accusations, and the case dragged on for a year. The state’s goal in a dependency action is usually reunification. The state prepares a case plan, and, when the parent achieves designated goals, then timesharing begins again. The process often progresses from certain limitations until, eventually, there are no restrictions. Obviously, we were very concerned about the girls ever having to be around Anthony at all, even with careful boundaries. But he put up a good fight. He argued that Laila had seen him watching a pornographic video, and that was how she was able to describe the sexual acts and body parts so graphically.
Not long after the girls’ depositions, his attorney notified me that Anthony would relinquish his parental rights. I will never know what caused him to surrender the fight, but I have never had a more satisfying day as a lawyer than when I watched him sign away his rights, knowing that neither of these two little girls would ever run the risk of being subjected to his deviant behavior while still so young.
Every divorce has more than two interested parties. There are family members, friends, business associates, even neighbors. Many offer emotional support. Some get involved by choice or “necessity” and offer financial help. And along with the money comes the meddling.
Stress and emotional fluctuation may cripple decision making skills for the person getting divorced. Input from trusted loved ones can help. However, sometimes the person who pays for the divorce assumes too much control. He may draft motions, briefs, and other documents. She may do legal research, even meeting and corresponding with counsel without the client present. The financial factor may make the client reluctant to decide without the financier’s approval.
I represented the wife, Melanie, a beautiful young flight attendant who is a spitting image of Uma Thurman, a tall, willowy gal with piles of blond curls piled high on her head. She sought the divorce. Her father-in-law’s extreme involvement in their lives had had a severely negative impact on the couple and their young son, and she had finally had enough.
Gerald, a lawyer and former general, was controlling of the party’s relationship from the beginning. He was used to his family listening to him and obeying his wishes, and he found Melanie’s confident, headstrong personality unfeminine. They butted heads often, which was annoying to her husband, Matt. However, Melanie’s strong personality was probably the reason why Matt was attracted to her in the first place… she was strong like his father!
Matt is a fair haired, fair skinned fragile-looking man. Although he has a handsome face, there is something smarmy about him.
Gerald was adamant that the couple have a male child to carry on the family name. Prior to becoming pregnant, Gerald suggested that they undergo a gender selection procedure that would sort sperm based on the assumption that sperm carrying a Y chromosome swim faster in a protein solution than sperm with an X chromosome do. Melanie was appalled!
When she announced her pregnancy, Gerald insisted that the young couple determine the child’s sex, against Melanie’s wishes. Gerald’s desire for an heir was overwhelming. Soon after his grandson’s birth, he demanded, inconsiderately, “How soon can you get pregnant again? You should plan to have a spare.”
Melanie finally filed for divorce after a heated altercation turned physical. Matt had discovered that Melanie had had a brief affair with a pilot with whom she worked. When he confronted her, he became violent, and Melanie called the police. She retained divorce counsel the following day.
From day one, Gerald controlled and financed the divorce litigation. He often met with his son’s counsel without his son present. He paid all the attorney’s fees and costs, hundreds of thousands of dollars. In addition, he attended most of the hearings and mediations, and thwarted attempted settlements.
At the beginning, Matt had a revolving door of attorneys. One opposing counsel withdrew because Gerald drafted a letter on the attorney’s letterhead, addressed to Melanie’s initial counsel.
For people with one child, and typical minimal assets and liabilities of a home, cars, and retirement accounts, a divorce should have been a relatively simple and timely matter. This divorce dragged on and was grossly more expensive than it should have been, largely due to Gerald’s interference. Instead, they had a full evidentiary trial, including a custodial evaluation. In the end, Melanie got majority timesharing with their son, Junior. Matt got his pre-marital home. They split their retirement accounts. It should have been over.
Gerald’s influenced Matt to file a frivolous appeal of the final judgment. They had other post-judgment litigation as Melanie worked to compel Matt to abide by their divorce decree and to pay her attorney’s fees and costs, most of which, he had caused.
Gerald chose counsel who didn’t mind him running the show, despite the ethical implications for that attorney. Gerald prepared most of his son’s counsel’s pleadings and did much of the legal research. He also signed Matt’s retainer agreements as Matt’s “attorney in fact.” His involvement prolonged the litigation and forced Melanie to defend against his baseless motions and appeal.
Following the final judgment, life should have settled into a new normal for both people. Instead, financed by Gerald and fueled by his legal knowledge, months and years of frivolous motions were filed and challenges made. Toward the end, following multiple meetings with attorneys and courts, one judge commented:
The only way we could do that would be if there was no view of the law and the evidence that would allow the trial court exercising discretion to give custody of the child to the mother…. I cannot honestly tell you that I’ve ever done this in twenty years. I don’t see how we could do that.
…we clearly have the authority if the court made an error of law or an evidentiary issue to send it back for a new trial, but I’m not certain I’ve ever seen an appellate court that simply ordered that the trial court was wrong, and that the trial court must exercise its discretion to give the child to the other party.
Thousands of dollars were spent. Unmeasured mental and emotional feelings were churned up until the appellate court affirmed the trial court’s timesharing plan. The stress even caused breast cancer in Melanie, something she had to hide from her ex in fear that he would use it to try to win more timesharing with their son. The legal battle went on. Legal squabbles continued over timesharing, choice of schools and oddly worded legal documents prepared by Gerald. The trial found the inordinate amount of time spent on this case, as well as the dollars expended, “shocking.” After over four years of litigation, the court found Matt’s lack of cooperation to be more to blame.
What does this case show? It clearly points to a compelling interest for courts to find a reasonable way to curtail third party involvement in finances and ensuing control. More disconcerting is the power imbalance when one side through a third party has the means to vexatiously control and continue the litigation. This forces the underfunded party to into a defensive position without means to pay. Third parties should be deterred and penalized for “bad behavior.”
I entered court with my client for our first appearance in front of the judge. My client was nervous. A bookkeeper by day and a dad by night, he took both jobs very seriously. The judicial system was a conundrum to him; he’d never received even a speeding ticket, and this was his first time ever in a court of law.
I was nervous because I had never appeared before this judge. We had had commercial cases between us in the past, I, as the plaintiff’s lawyer, and he, as counsel to the defendant. He had recently been appointed to the bench, and the chief judge had immediately assigned him to family court. (For some reason, new judges are always sent to family court.) When the bailiff announced that court was in session, he strode into court as if he owned it, as indeed he did. He struck an imposing figure: a handsome man, slender build, silver hair gracing his temples, easily 6’2” with black robes accentuating his height.
I don’t remember the content of the hearing, probably temporary support, as is customary early in a divorce case. What really stuck in my mind was the judge’s opening comments to the two parties, the husband and wife seeking his impartial and educated decision regarding the legal dissolution of their marriage. He made these off-the-cuff comments in a very good-humored kind of way:
I don’t know much about family law. I never had anything to do with family law when I was a practicing lawyer. But how hard can it be? I have a family!
And then he laughed. Jovially.
Needless to say, my client was stunned. He later remembered little else but these remarks. We spent so much time debriefing these comments alone that I can’t recall whether the hearing went well for us or not.
Judges are people, too. They make mistakes. They know what they know and bring their own biases to the table. Just as lawyers do, as well. This is one story about one such lawyer.
About a year ago, I saw a television commercial which used this statistic: “one in six Americans suffers from some form of mental illness.” I was struck by that figure; it means that I have a seventeen percent chance of drawing a crazy person as the opposing lawyer in one of my divorce cases.
Now, I know what you’re thinking: “some form of mental illness” doesn’t necessarily mean that the person in question is technically “crazy.” And never mind that at least one in six of the parties to a divorce is “crazy.” We, in the profession, assume that that’s a given. If they were not slightly insane before one of them filed for divorce, the stress of the process itself indubitably throws the mind into turmoil and propagates mental distortion.
So I’ve run into my fair share of unbalanced opposing parties. And after reflection, my unfair share, despite my best efforts to screen and reject abnormally toxic clients.
The question of the day, however, is “what the heck do you do when it turns out that your opposing counsel is the one who is crazy?” And I don’t mean just “disturbed,” “depressed,” or clinically “anxious”; I mean absolutely, undeniably, but cannily deranged.
A final judgment on all matters unrelated to the parties’ minor children was entered in the post-divorce proceedings of my client, Tom Evans. He was trying to resolve all of the matters still hanging fire since the divorce, over three years earlier… the sale of the marital home, his ex-wife’s request to continue the temporary alimony, the unpaid debt…. At the final hearing, his ex-wife, Jill Evans, was represented by her twelfth lawyer in the case. At the final hearing, that lawyer withdrew and, over four months later, her thirteenth lawyer, James Smith, entered his notice of appearance as Jill’s counsel.
Mr. Smith was a much older man. He looked like a sweet, elderly grandpa. He moved slowly, and often had a confused look in his eyes. He appeared to be the kind of man you would want to protect. Until he began speaking. He boasted about his successful tobacco litigation experience, but that was over twenty years ago. And, it was not family law. I could not find much evidence of any of Mr. Smith’s recent legal work.
Ten days into his representation of Jill, Mr. Smith moved on her behalf to require my client to select which motion would be heard by the Court. Before Mr. Smith filed this motion, he sent it to me to review, and I requested that he identify the two different motions regarding which he had complained, but Mr. Smith failed to do so, even in the motion itself. At the time, I had only one motion pending before the court, an emergency motion for temporary majority timesharing and for supervised timesharing for Jill, which had been continued at the hearing where Mr. Smith first represented her. This emergency motion was filed pursuant to Tom’s supplemental petition to increase his timesharing, to order her timesharing to be supervised, to grant him sole decision-making regarding the children’s medical care, and for other relief. Despite his many years of experience, Mr. Smith seemed to confuse the motion and the petition, which were two different legal requests.
At the case management conference, Judge Hammerstein tried to explain this procedure to Mr. Smith, but he did not seem to grasp it until he finally withdrew his motion one month after filing it.
Mr. Smith also filed on his client’s behalf a motion to set aside, cancel, and make void the final judgment on post-judgment matters unrelated to the children. Prior to my submission of the proposed final judgment to the court, the twelfth attorney (who had actually represented Jill at that hearing before her withdrawal), had agreed to the language of the final judgment. (The attorney was not agreeing to the judge’s ruling, just that the written final judgment correctly reflected what the judge had orally ruled at the end of the trial.)
Mr. Smith was not present at the trial which gave rise to that final judgment, nor did he ever order the transcripts from that hearing. Further, Mr. Smith attempted to set his motion for hearing in front of a different judge than the one who had presided at the trial. Mr. Smith was clearly unaware of Chapman Realty Corp. v. Madeira Management, 414 So. 2d 1180 (Fla. 2d DCA 1982), which holds that:
Unless the original trial judge is unable by reason of death, disability or other equivalent reason, or is unwilling by reason of recusation to consider a motion for rehearing, that judge should review and determine the motion. Epperson v. Epperson, 101 So.2d 367 (Fla. 1958). Here, even though the circuit court assigned Judge Walker to another division, his jurisdiction to hear a motion for rehearing continued.
Mr. Smith proceeded to make allegations without doing any factual research, based only on statements made to him by his client, a woman who had been medically confined (pursuant to Florida’s Baker Act) on several occasions during the proceedings, and who was undeniably mentally ill. Furthermore, Mr. Smith did not research the appropriate civil procedures.
Jill alleged that she never received a copy of the final judgment, despite that I had sent it to the court with enough copies and envelopes for the court to provide copies to Jill, her lawyer, myself, and my client. Tom and I received our copies without a problem.
Even though Mr. Smith was not present at the trial to hear Tom’s testimony, and despite that he never reviewed the trial transcripts, Mr. Smith accused my client of perjury and accused the court of ordering erroneously:
The substantive material findings and thereby, the rulings of the Court are almost 100% incorrect, and had to be based on testimony and/or documents that were and are incorrect, and do not say what the Former Husband presented to the Court. The Court’s ruling was based on perjury of the Former Husband, which was or should have been well known to his attorneys.
Mr. Smith alleged that Jill did not fail to appear because, as she had told her prior lawyer, she was ill, and that the final evidentiary hearing should have been continued. However, because the final hearing had already been reset three times (once because Jill was hospitalized one day before the hearing, once because she failed to timely sign the ordered releases so that I could obtain discovery from her doctors, and once so that she could undergo an independent medical evaluation), and because the judge was leaving the bench at the end of the month, she was adamant that the final hearing would not be continued under any circumstances. Jill was present when the judge made this remark, and the judge included it in her last order continuing the hearing. Of course, Mr. Smith was unaware of it because he was not Jill’s counsel during this time, he did not order the transcripts, and he apparently did not review the past orders.
Mr. Smith again accused Tom of perjury and me of assisting him in same, alleging that the finding that my client was not current in his payment of rehabilitative alimony to Jill “is and must be based on fraudulent and perjured testimony or documentation, and the Former Husband and his attorneys knew, and mislead the Court.” Mr. Smith provided no evidence to support this allegation, and Tom was current in his alimony payments.
Confusingly, Mr. Smith alleged that the finding that my client had “paid all the children [was] wrong, based on fraudulent documentation and testimony before the Court.” I assumed that he was referring to the finding that my client was current in his child support payments. Mr. Smith offered no evidence to support this allegation, and Tom was current in his child support.
He alleged that a paragraph in the order was “incorrect” and that “any and all documents supporting the balance of the order have to be fraudulent or incorrect and the Former Husband and his attorneys had to have known that.” He offered no evidence to support this allegation and failed to impeach Tom at the hearings regarding same.
He alleged that another paragraph of the order was “totally wrong, and had to be based on perjured testimony presented to the Court,” but provided no proof. Amazingly, that paragraph favored Jill in that the court found that Tom was not entitled to reimbursement for any of the rehabilitative alimony he paid to Jill, in the total amount of $27,000.
Astonishingly, Mr. Smith alleged that Tom’s generous offer that Jill should be forgiven the balance she owed to him, an approximately $26,000 loss to my client, is “yet another fraud perpetrated on the Court.” Of course, he offered no proof.
Mr. Smith again accused my client of perjury, asserting that his income was higher than he told to the court. Mr. Smith’s assertion was false, and, even if Jill had believed this claim, she should have attempted to impeach Tom at the final hearing.
He alleged that the court’s finding that “to the extent that Wife’s psychological or psychiatric issues currently impair her ability to work, they predate the entry of the 2008 final judgment in this matter, and are therefore res judicata,” was based on “totally incorrect, perjured and fraudulent testimony well known to the Former Husband and his attorneys,” despite that it was based on the testimony of Jill’s witnesses.
The court found that her physical and/or medical issues began to occur after the dissolution of marriage, were not caused by Tom, and are therefore irrelevant. Mr. Smith argued that the finding was “based on a lie” and on “fraudulent” and “perjured” testimony, giving the court “incorrect documentation and/or perjured testimony,” even though it was based on the testimony of Jill’s witnesses.
He further asserted that the Order section of the final judgment as “totally wrong,” although he offered no support for the claim.
The judge who presided over the final hearing on matters unrelated to the children was no longer on the family law bench. When the case was assigned to Judge Moore, I requested that the case be reassigned to Judge Hammerstein because he had heard the dissolution of marriage proceedings and was thus familiar with the parties and issues. Nevertheless, Mr. Smith argued that “the result of having brought these matters before another judge, unfamiliar with the history of this case, is a fraud perpetrated on this Court by the Former Husband and his counsel.”
Mr. Smith was not present at the final evidentiary hearings, had not reviewed transcripts from the hearings, and had not spoken with the attorney who represented her at the hearings about the hearings and the ruling. Prior to my submission of the proposed final judgment to the court, her former counsel had agreed to the language of the proposed final judgment. Moreover, the court’s ruling was based largely on the testimony of her doctors.
Additionally, both motions filed by Mr. Smith were in all bold, capital letters, were oddly juvenile, and read as though they were drafted by a non-attorney.
Further, Mr. Smith acted very unprofessionally in his correspondences with me. Ten days into his representation of Jill, Mr. Smith emailed me:
The continuation of this case is obscene in my view, and only designed to promote litigation, line the pockets of his attorneys, and for no good for these parties and their children…. the prolonged an no merit fight your office is promoting in my view and maybe only my view is not meritorious in much if any way.
In reality, the vast majority of the litigation was brought due to Jill’s false allegations and refusal to comply with court orders. Mr. Smith’s motions were clearly baseless and meant to unnecessarily continue the litigation.
Moreover, Mr. Smith repeatedly changed his email and mailing addresses, and often had no access to a fax machine. He repeatedly misspelled our email addresses, thereby delaying correspondences. When he stated in emails that he was attaching documents, he often did not. He also attempted to reserve three and a half days on my calendar for deposition, not considering the great cost to Tom to pay for my time to attend all of these depositions.
Mr. Smith referred to himself as a pro bono attorney and told the court that he was representing Jill pro bono, i.e., not charging his client a fee. However, he sued Tom for damages for payment of his fees in his representation of Jill. And, he threatened several times to request that the court order my client to pay her attorney’s fees.
Regarding Tom’s request for a domestic violence injunction against Jill, Mr. Smith stated that he would be willing to forego his fees for that matter only. Mr. Smith was clearly unaware of Baumgartner v. Baumgartner, 693 So. 2d 84 (Fla. 2d DCA 1997), which maintains that attorney fee awards are not appropriate in domestic violence cases.
Mr. Smith asserted to me, the most expensive attorney in my office, “in the future just you know, I will respond only to you personally, and no one else in your office from now on.” He notified my assistant of same. Thereafter, he reiterated his demand: “I also state that from now on, the only person I will have contact with in your office is you and you alone. Please respect that message and comply.” He was clearly assisting Jill in her harassment attempts by demanding that he would only communicate with the individual who earned the highest hourly rate of $400/hour, rather than communicating with the associate attorney who billed at $200/hour, the paralegal who billed at $100/hour, or the assistant who charged no hourly rate.
He bashed Tom in the very first email that he sent me, claiming that he was physically abusive to Jill. He had no support of his damning allegations except for her word, which she had proven was not credible. He threatened that he would have one of her doctors testify that he knew Jill prior to her marriage, and her “problems” were “a proximate and direct result of his severe abuse.” However, the doctor had already testified for matters unrelated to the children, and never mentioned that to the court.
Mr. Smith told me that there were no findings that Jill had ever been Baker Acted, even though she had been detained on numerous occasions.
Mr. Smith admitted that her doctors “indicated that she had problems, but not as our office indicates was those observations made, but for the purpose of social security case and that alone.” It was difficult to comprehend what Mr. Smith was attempting to state in this sentence because his grammar was poor, but it appeared that he was admitting that Jill exaggerated her health problems to defraud the Social Security Administration.
Mr. Smith further threatened:
Just so you known and not be blindsided, I am preparing a lawsuit for intentional infliction of emotional distress by your client on mine, and for his outrageous conduct in a separate count, and will add a claim for malpractice also once I have the records of the children all examined, and his responsibility is determined as required by the statues and caselaw. This is any kind of threat, just so you will know what is coming and I will have him served with process, and the matter will be tried by a jury in Pinellas county. We will then see what a jury thinks of his conduct and the obscenity of 9 court volumes, etc. Have a great day.
Mr. Smith made this threat, despite that Jill was the party who had caused Tom emotional distress by repeatedly falsely accusing him of sexually abusing their children. He was eventually cleared of sexual abuse through a psychosexual evaluation and a lie detector test.
Additionally, I requested that the final judgment on matters unrelated to the children be amended due to a clerical error regarding a modification of child support, and I copied Mr. Smith on the correspondence. Mr. Smith emailed me, stating his objection, despite that he was not present at the final evidentiary hearings, and threatening, “I have so far treated with respect, but will now end forever.”
He sent another email, accusing me of submitting the letter regarding the proposed amended final judgment to the judge without mentioning Mr. Smith’s motion to set aside the final judgment, even though I sent the letter to the judge before Mr. Smith had filed his ridiculous motion. He also accused me of lying to the court regarding the fact that I provided the proposed child support guidelines to Mr. Smith. However, I did provide the proposed guidelines to him when I provided the proposed order to him, the one to which Mr. Smith responded. He threatened me: “This kind of slime is why lawyers are not held in high regard. It will stop or I will make it stop—period.”
He also notified Judge Moore of his objection, despite that Judge Moore was not the judge who heard the final evidentiary hearing regarding matters unrelated to the children, and if Mr. Smith had reviewed the final judgment, transcripts from the hearing, or the court file, or if he had spoken with Jill’s former counsel or me about it, he would know that.
Mr. Smith emailed me:
… for me, no more communication except in writing from anyone in your office and will tell judge your office can not trusted and why in my opinion. suggest your office and ms. kapalbo withdraw this matter until there is a full hearing etc. do what you want at your own risk. nothing was ever sent to me on april 5—–period. that is a total mistruth. proceed at your own risk. if your office thinks this is waterloo and nothing wrong, let submit what happened re this letter to judge and get an independent opinion from someone who is real expert in ethics like david ristoff who used to bar counsel. suggest strongly not to cross the line or this will spread like a forest fire throughout all courthouses and the whole bar. not good to risk a young career, especially if lori will say you directed this and then it boomerangs. think about it, please, for your office and employees sake.
Furthermore, Mr. Smith appeared to have an unprofessional relationship with Jill. He accompanied Jill to the parties’ daughter’s medical appointment. And, during a hearing, he informed the court that he had spoken with each of the children. Regarding timesharing exchanges, he suggested to the court, “I tell you what we can do, Judge. This is just a simple suggestion. Maybe it’s totally inappropriate…. Well, the children can be taken in. If it’s necessary for me to walk them in, I’ll do that.” To which the court responded, “Well, I don’t know about that.” Mr. Smith responded, “I know all the children.” The court replied, “Yes, but he’s made allegations against you in the lawsuit, you’re now representing her, and I’m not sure you want to now get involved yourself as an attorney involved in what they’re doing.” Mr. Smith responded, “I have no worries about that I have done anything improper. None.” The Court replied:
… I usually don’t get the attorneys themselves involved in their client’s cases…. And I’m not sure that Dr. Evans is going to be thrilled to have you walking in there with his three children after all these allegations I’ve read. So I’d rather avoid that.
Also, Jill told Tom that their daughter had spoken with Mr. Smith. Mr. Smith notified me that he had spoken with one of the parties’ son’s about Tom. Mr. Smith elaborated:
… I’m here at her house with her son… and she’s ill such that i’m considering taking her to the emergency room… only little jake is here at the present moment…last week lily told me personally which I have it on my voice mail about her fear… about the dog… Dr. Evans appropriately took care of, took her down to get pediatric plastic surgery, and the day he was served with his civil suit I had to be there to make sure she was okay…
By developing relationships with the parties’ children, Mr. Smith became a central figure in the case. Doing so is inappropriate because the attorney may then need to act as a witness in the matter.
Mr. Smith served Tom with a complaint on Jill’s behalf for damages of $100,000, with a jury trial verdict, for “a pattern of malicious, reckless, intentional and outrageous conduct towards the Plaintiff designed to cause severe emotional and physical damage to the Plaintiff.” The allegations in the complaint were shocking, especially considering that Jill was the party to maliciously cause severe emotional damage to Tom by falsely accusing him of sexually abusing their children and of physically abusing her.
Mr. Smith alleged that Tom was paying us “$400.00 per hour or more to help him inflict severe emotional distress,” despite that no attorney at the firm billed at a rate higher than $400 per hour, and Mr. Smith refused to correspond with anybody other than that attorney.
Mr. Smith alleged that Tom had “made outrageous accusatory claims of no merit against [Jill],” despite that Tom’s allegations were supported by credible evidence such as police reports, and Jill’s damning allegations were not.
Mr. Smith criticized me for pleading “on information and belief,” asserting that when the proper thing would be “to know what is being said and if the accused is correct or not…,” when Mr. Smith himself had performed no such research prior to filing his baseless complaint.
Mr. Smith made numerous allegations in the complaint that were res judicata, a doctrine that a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit.
Shockingly, Mr. Smith threatened that Jill knew “how to use the gun and will to protect herself…”
Mr. Smith made several allegations based on irrelevant hearsay.
Mr. Smith alleged that Tom refused to pay the parenting coordinator when he disagreed with him, even though that it was the PC who requested the discharge because he could not trust that Jill would refrain from making false accusations against him.
Mr. Smith again accused Tom of not paying child support, despite that he was current in his support payments.
Mr. Smith even failed to sign the complaint.
At a case management conference, Mr. Smith proved that he made unfounded assertions in Jill’s pleadings without having investigated the matter. When I referred to the threat in the complaint regarding the gun, Mr. Smith stated:
I made a mistake on that, counsel. It is wrong…. That was my mistake. The gun is locked up in the safe of a policeman that Dr. Evans knows in Feather Sound. I made the mistake. I did. It’s not under oath. This – it’s a lawyer made a mistake.
Mr. Smith stated that the complaint was “not under oath,” despite that, by filing the complaint, he was affirming that it was true to his knowledge.
Even though Mr. Smith repeatedly accused Tom and me of causing unnecessary litigation, Mr. Smith counseled Jill to sue Tom on their young child’s behalf for damages related to a dog bite, thus creating more unnecessary litigation and attorney’s fees.
Mr. Smith accused Tom of inappropriately touching his daughter, despite that he had already been cleared of these appalling false accusations by a lie detector test and psychosexual evaluation in the dependency action which resulted in him having no contact with his children for months during the pendency of that litigation.
Further, Mr. Smith threatened to bring Tom’s six-year old daughter to a case management conference, despite that appearing in court to testify against Tom would have been extremely upsetting and stressful, and Mr. Smith had not requested permission from the court for the young child to testify.
Mr. Smith threatened to “file motion for sanctions combined with motion to strike all claims for fees by your client as a penalty for noncompliance, and please accept I am dead serious,” despite that he had not yet obtained an order compelling production.
Mr. Smith stated in an email to me:
Ms. Jenkins, please do not presume to lecture me on anything ethical and tell it to your dumpster. I am trying to get along with you, but then I know a good deal about you and that makes it difficult.
I received a notice of hearing in the circuit court from Mr. Smith regarding his Jill’s baseless complaint. Mr. Smith failed to list a time in the notice. He also never provided my office with dates, he never gave me a time frame in which to respond before he set the hearing, and I never proposed or agreed to any dates. When my office contacted the judicial assistant, she said that hearing was not on the court’s calendar, and she had informed Mr. Smith that date would not work because it was only for fifteen minute hearings, and he had requested an hour. Also, Mr. Smith included motions that were filed in family court in his list of motions to be heard at the circuit court hearing.
Mr. Smith filed on Jill’s behalf a vexatious and frivolous petition to modify and change the existing co-parenting plan. Although Tom already filed an amended supplemental petition to modify the final judgment, Mr. Smith filed a petition, rather than a counter-petition. Mr. Smith failed to pay the filing fee for the “petition” or to properly serve it. Mr. Smith made allegations that are barred by res judicata and by collateral estoppel. Furthermore, according to Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), to modify a final judgment of dissolution of marriage, the moving party must show as follows:
…both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody. Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.
Mr. Smith failed to allege any substantial change in circumstances to warrant a modification. The petition was baseless and un-researched, and Mr. Smith provided no evidence to support his allegations. The petition was in all bold, capital letters, was oddly juvenile, and read as though it was drafted by a non-attorney.
Mr. Smith set a witness deposition in Miami, but he never provided the notice of deposition to me, despite my requests. He did provide a notice cancellation of the depositions set for that day! Mr. Smith admitted that he drove the deponent to the deposition. Upon my request, he sent me a document that he purported to be a notice of videotaping depositions. However, it was deficient in a number of respects: it was not signed; it was not a notice of taking deposition; and it could not substitute as a notice of taking deposition because it did not identify the court reporter to take the depositions or the location for the depositions, among other things. Furthermore, it purported to have been served on me by e-mail and by no other means, despite that Mr. Smith has had trouble sending emails to my office. Mr. Smith also suggested to me that I obtain a copy of his notice of taking the depositions from the court reporter, because he could not find a copy. However, the court reporter, like me, also never received a notice of taking deposition in this matter.
Mr. Smith filed on Jill’s behalf an answer and motion to allow amendment of the counter petition and/or motion for change of custody. I notified Mr. Smith that he may modify his “counter petition,” but he set the matter for hearing nonetheless. Further, at the hearing, Mr. Smith informed the court that this “answer and motion” was really his client’s counter-petition. To not cause any additional problems, I volunteered to treat it as such.
I requested that Mr. Smith be clearer in his emails because he was very difficult to understand. At the pretrial conference and motion hearing, Mr. Smith mentioned that he had been contacted by the media about filming the trial. Judge Hammerstein informed Mr. Smith that he would continue the timesharing trial if media attended. Mr. Smith attempted to pretend that he had no idea how the media heard that this trial might be interesting, but it is hard to believe how else the media could have been alerted.
Mr. Smith had a pattern of this type of unprofessional behavior. Before representing Jill, he was admonished by the Florida Bar for violating Rule Regulating the Florida Bar 4-8.4(d) for engaging in “conduct in connection with the practice of law that is prejudicial to the administration of justice.” Mr. Smith was also publically reprimanded by the Florida Bar for violating Rule Regulating the Florida Bar 4-8.4(d) by writing a letter to the opposing party, threatening to sue the opposing party for defamation and damages unless he withdrew his Bar complaint against Mr. Smith and issued a letter of apology.
When Mr. Smith had not even been involved in the matter for three months, he had already cost my client thousands of dollars in attorney’s fees due to his unprofessionalism.
Therefore, I moved to disqualify Mr. Smith, understanding that it would not be an easy battle to undertake. “Disqualification of a party’s chosen counsel is an extraordinary remedy…” Whitener v. First Union Nat’l Bank, 901 So. 2d 366, 370 (Fla. 5th DCA 2005). It is very difficult to do because it “strikes at heart of one of most important associational rights – the right to choose one’s own lawyer,” attorneys may be disqualified from representing parties for a multitude of reasons. Whitener. Although the disqualification of a party’s attorney is “an immensely unusual remedy, one that must be employed only in limited circumstances,” it is sometimes necessary to preserve the dignity of the judicial process and to protect the parties. Whitener.
Judge Hammerstein did not take the motion lightly, but after reviewing the evidence and testimony, he granted my motion, and Mr. Smith was disqualified from representing Jill in our family law proceedings.
One Flew over the Cuckoo’s Nest and Then Divorced Our Client
Dr. Alejandro, a Filipino family physician, retained our services after his divorce was already finalized because his ex-wife, Luna, refused to allow him to share time with his three young children. Alejandro is a short man, which could explain why he seemed like he always had something to prove. When I first met Luna, she was underweight and frail, with long black hair and fair skin. She reminded me of a witch. During the years when we represented Alejandro, Luna fluctuated in weight, blowing up like a puffer fish in healthier times, and then deflating like a balloon when she was depressed.
Alejandro and Luna were like oil and water together. Sometimes, we see couples who are so clearly incompatible that we wonder how they ever got together. They were one of these couples.Luna has a histrionic personality. She expresses extreme emotions and attention-seeking, and she has an excessive need for approval. She embellishes and lies often. She fails to see her own personal situation realistically, instead dramatizing and exaggerating her difficulties. She is manipulative, but she also can be easily influenced by others.
Alejandro is narcissistic. He is preoccupied with issues of personal adequacy, power, prestige, and vanity. He, too, is dramatic and emotional. While Alejandro is no angel himself, his largest problem is Luna.
Luna has a history of mental illness. Immediately following the birth of their first child, Jason, she was Baker Acted after she told Alejandro that she was going to kill herself. She was diagnosed with post-partum depression and post-traumatic stress disorder due to suffering a childhood of abuse. Did I mention that she’s an alcoholic too?
Alejandro and Luna named their first child “Jason” because it means “leader.” As Luna’s depression intensified, and the parties had more children, Jason truly lived up to his name, often times acting as the Luna and the younger children’s primary caregiver.
When Jason was about one year old, Luna wrote him an apologetic, suicidal letter, “I am so sorry I did this to you. I hope you are young enough to forget me. Please know it is not your fault. Mommy was sick in the brain, like her mommy, but it isn’t you.” Luna was not successful in her attempt, and the couple moved on with their lives.
A couple of years after Jason’s birth, the parties welcomed a second son, Dustin. Dustin was named because it stands for “bravery,” a quality that would prove beneficial as Luna slipped farther into her depression and alcoholism. Once again, Luna suffered from post-partum depression. She underwent electroconvulsive therapy, a treatment for severe depression where a finely controlled electric current is applied to the patient’s brain, causing a brief seizure in the brain.
After Dustin’s birth, Luna experienced severe mood changes, spoke very quietly, and often smelled of alcohol. She seemed scattered and often forgot to pick up the children from daycare. Her drinking increased dramatically leading up to the end of the parties’ marriage.
Shortly after their daughter, Angel’s birth (named “Angel” because of her cherubic appearance and demeanor), Luna became intoxicated. “Alejandro,” she screamed hysterically, “I am going to kill myself… I’m going to run my car it into a tree.” Alejandro, who was now used to Luna’s behavior during her bouts of PPD, calmly plead, “Luna, please don’t do this.” He tried to prevent her from getting in her car, but she was able to run away. Once again, she was Baker Acted and received ECT treatments. She was prescribed medication for bipolar disorder, but she refused to take it because of the side effects. It made her gain weight, and she was very consumed with her physical appearance.
When Luna finally petitioned for divorce, she falsely accused Alejandro of domestic violence. More shockingly, during the divorce proceedings, Luna falsely accused Alejandro on at least five occasions of sexually molesting the children. She accused him of using inappropriate toileting methods on the children, despite that the method of which she accused him is the traditional potty-training method in his Philippine culture, and even though he never actually used this method on the children. The method involves filling up a water dipper and slowly dumping plenty of water on the buttocks from behind and above the buttocks. The other hand scrubs the buttocks quickly up and down.
The custodial evaluator did not believe Luna’s sexual abuse allegations because the young children became more specific with their accusations when their visits with Alejandro ceased. The evaluator explained,
When children do not see a person for a period of time, then children can become more susceptible to the stereotyping of a person as “a bad person” or as a person “who does bad things” because children do not have a corrective experience with the adult to cause cognitive conflict with the stereotyped imagine.
Luna even interviewed her sons regarding the alleged sexual abuse, and she videotaped it. According to the experts involved in the case, the interview was very “leading, “problematic,” “create[d] a high risk for contamination and influence,” and “inappropriate.”
During the divorce proceedings, Luna was charged with driving under the influence, and she was arrested for refusing the Breathalyzer. Thereafter, the custodial evaluator requested Luna be drug and alcohol tested, but she did not comply. When she finally did 8 days later, she tested positive for Phosphatide Ethanol, indicating that she had consumed a large consumption of alcohol within the past 2-3 weeks.
Around the time when the parties’ divorce was finalized, Luna’s father, Herald, had a heart-to-heart discussion with Alejandro. “Alejandro, I’m worried about your safety. I know how Luna can be, and she has so much hatred for you.” Alejandro dejectedly put his head down and slowly shook it back and forth, in a lame attempt to convince Herald that there was no need to worry. Herald warned Alejandro, “I know that you don’t want to hear or believe this, but Luna told me that she was going to kill you.” Alejandro couldn’t even form a response… not even anger. He was simply defeated.
Instead of following through on that threat, Luna decided to make Alejandro’s life a living hell. After the final judgment of divorce was entered, she again complained to DCF that Alejandro was sexually abusing the children. Sadly, but understandably considering the severity of the allegations, the dependency court temporarily sheltered the children from Alejandro.
Eventually, the dependency court dismissed its action so that it could be heard in family court, and Alejandro was granted five overnights every two weeks. He was forbidden from using the Tabo hygiene method on the children, a method that he had never used in the first place, and he was ordered to give the children complete privacy when they were using the bathroom. The court also ordered Luna to undergo alcohol testing if Alejandro suspects that she has been drinking.
Thereafter, Luna refused to allow Alejandro time with Angel, accusing him again of inappropriately touching her. However, she failed to notify DCF or the parties’ parenting coordinator or guardian ad litem of the alleged abuse. And, she did allow him time with Angel when it was convenient for her. She permitted him to take Angel to a doctor’s appointment and to dinner with the boys, mandating that Alejandro could visit with Angel as long as he remained in a public place.
Luna was clearly coaching little Angel to believe that she had been abused. One day, Angel told her mother’s close friend, Anna, over the phone that “someone is touching my private parts.” Anna could hear Luna tell Angel “Don’t tell her that! You’re not supposed to say that to her!” Anna knew that Angel’s admission was fabricated, so she wasn’t concerned for her safety with her father. Instead, she was concerned for Luna’s mental state.
Additionally, Angel informed Alejandro, “Daddy, I can’t go with you until I tell the judge what you did to me.” And later, she told him, “you gotta stop touching my private parts, ok, daddy? If you just admit what you did then I can see you.” How does a father respond to fabrications like this?
One Labor Day weekend, Alejandro was scheduled to share time with the children, but Luna refused to allow Angel to see her father. When Luna called to speak with the boys, she failed to mention to Alejandro, a doctor, that Angel was not feeling well. Instead, she made frantic calls to the police and to the on-call physician at the hospital where Alejandro worked, “You gotta help me! My daughter has turned blue!” The physician responded, “You must bring her to the emergency room immediately. Please stay calm, and we will do our best to help her here.” Oddly, Luna calmly replied, “No, I think she’ll be fine here.” Shockingly, despite that Luna is a registered nurse and knows the potential danger of doing so, she gave Angel prescription medication not prescribed for her.
The following morning, Luna contacted the hospital again, and, again, the physician instructed, “You must bring Angel to the hospital immediately.” Luna simply replied, “No.” The physician was flabbergasted, “Why not?!” Luna flatly stated, “I cannot take Angel to the hospital because Alejandro will beat me if I do.” Angel’s physicians contacted DCF because they suspected that Luna was neglecting and abusing Angel by failing to bring her to the hospital when advised to and by giving her prescription medications that are not prescribed to her and without a physician’s advice.
Despite that she refused to work, Luna often forgot to pick the children up from their aftercare programs, and Alejandro would have to leave work to pick them up. On one occasion, Alejandro picked up Angel, and she stayed with him overnight for the first time in many months. Luna never even contacted him to check on Angel’s welfare until the next morning. Nevertheless, Luna refused to allow Alejandro to visit with Angel during their next scheduled visit.
When Alejandro begged Luna to reconsider, she decided, “Okay, Angel may stay with you if your girlfriend helps Angel with toileting and showering. If Alison refuses to perform these duties, then DCF will prohibit your visits.” Mind you, DCF had not yet again gotten involved again. And Luna asked Jason to ensure that Alejandro did not take Angel to the bathroom or bathe her. Because just what that child needed was more responsibility.
One day, Luna allowed Alejandro to pick up Angel at her daycare. When he arrived, the daycare contacted Luna to obtain her permission. Luna immediately went to the daycare, and before allowing Alejandro to take Angel, she loudly interrogated Angel, “Angel, who is supposed to help you go to the bathroom and bathe when you’re at your father’s home?” Angel quietly responded, “Alison,” and Luna allowed her to go with Alejandro. When he asked Luna whether he could take Angel the following day for the weekend, she refused, alleging that her attorney would not allow it.
Thereafter, Angel’s daycare provider contacted Alejandro because she was unable to reach Luna, and Angel needed to be picked up because she had lice. Alejandro picked up Angel, gave her a lice treatment, and instructed Luna as to what she had to do to further treat Angel.
A couple of weeks later, when Alejandro went to Angel’s daycare to pick her up, none of the employees checked whether Alison was with him. The daycare allowed him to take Angel, and he visited with her and the boys for the entire weekend. It goes without saying that a mother who truly believed that her young daughter was being sexually molested would not allow her baby to go anywhere with that person.
A few days later, Luna again refused to let Alejandro visit with Angel. Luna met him at the daycare and made a scene in front of the director, claiming, “I have an order from DCF and a restraining order against my ex-husband!” She had neither. Alejandro left the daycare because he did not want to exacerbate the situation in Angel’s presence. The director repeatedly asked Luna, “Please just give me documentation of your allegations.” Of course, Luna was unable to provide it. The director informed Luna, “If there is legal documentation restricting Alejandro from picking up Angel, then you must provide it to me, or I will continue to allow him to take Angel.” The director reported Luna to the child abuse hotline because she felt that Angel was not safe with Luna in her current mental state.
Alejandro moved for contempt for Luna’s refusal to allow him time with Angel, among other issues. He petitioned for a modification of the final judgment. Luna was found in contempt for denying Alejandro contact with the children without having any legal basis to do so. Because she was unhappy with the ruling of the family court, in an attempt to have the matter heard by a different judge, Luna again incessantly complained to DCF, again falsely accusing Alejandro of child abuse, thereby initiating another dependency matter. The dependency court entered an order sheltering the children from Alejandro. Luna was simply forum-shopping, hoping to find a court that would finally rule in her favor, and she enlisted the unwitting aid of DCF to do so.
But, Luna began to buckle from the pressure of caring for three children 100% of the time and maintaining her lies of Alejandro’s abuse. The police were called to her house repeatedly. She was finally Baker Acted after she told a therapist that “she wanted to die, she wanted her children surrounding her while she died, and that she would take the children with her.” A police officer present when she made these statements contacted the child abuse helpline regarding Luna’s grave threats against the children. However, when we tried to get the therapist to testify about this incident, she changed her tune, saying that Luna never threatened the children’s lives. She indicated that she could “neither confirm, nor deny” that she even knew the children or Luna and that she would need releases executed by both parents before she was able to discuss this matter. Throughout the proceedings, we were constantly amazed at how Luna could manipulate people to her side, even professionals.
Pursuant to the dependency action against Alejandro, he was evaluated by several doctors, one of whom believed that Luna suffered from Munchausen by Proxy. This syndrome is a behavior pattern in which a caregiver deliberately exaggerates, fabricates, and/or induces physical, psychological, behavioral, and/or mental health problems in those who are in their care. With deception at its core, this behavior is an elusive, potentially lethal, and frequently misunderstood form of child abuse or medical neglect that is difficult to define, detect, and confirm. These perpetrators are willing to fulfill their need for positive attention by hurting their own child, thereby assuming the sick role by proxy. At times, they are also able to assume the hero role and garner still more positive attention, by appearing to care for and save their child. If you’ve seen the movie, “The Sixth Sense,” you’ll remember that one of the characters in the move suffered from this strange syndrome. It’s especially disconcerting to me because it goes against any natural maternal instinct that a mother should have. The doctor never evaluated Luna, but after hearing about the following, he believed that she suffered from the syndrome: Luna’s repeated false accusations of child abuse; her false accusations of domestic violence; her childhood history; her alcoholism; her personality disorders; her habit of taking the children to multiple doctors for various, unsubstantiated reasons; her refusal to take Angel to the hospital when the child was “blue” and when doctors recommended that she do so, and instead, medicating her with medication for which Angel was not prescribed; among other troubling behaviors.
Alejandro also sought modification of the final judgment regarding issues other than timesharing. Even though, he was paying Luna rehabilitative or bridge-the-gap alimony of $1,500 per month for 18 months, she made no attempts to “bridge the gap.” She was unemployed and let her nursing license lapse.
The judge decided to separate the issues regarding the children from the other issues, and she set a final hearing on matters unrelated to the children. Luna was arguing that she was too ill to work. However, in the same breath, she argued that she was well enough to care for the children.
Two days before the trial on issues unrelated to the children, I deposed Luna’s psychiatrist, Dr. Gullibleman. According to the doctor, “Over the past couple of years, Luna has suffered from several grand mal seizures.” When I questioned the doctor regarding Luna’s ability to care for the children with her “condition,” he advised, “Her friend who has helped in the past could help her until things are stable.”
During the deposition, Luna became “ill” as soon as I began to question whether Dr. Hirsch had a plan of treatment in place to get Luna to the point where she could work again, precisely the issue that was to be tried two days later. Luna stated that she was going to throw up and ran out of the room and into the public women’s bathroom. Finally, after much commotion and waiting, because Luna’s heart rate, according to Dr. Gullibleman, “was not right,” he demanded that she leave in an ambulance, despite that she did not want that. But, Luna got just what she wanted… the trial was continued, and Alejandro was forced to continue to pay her alimony until the court could rule on the matter.
Luna also refused to provide documentation so that the parties could file their taxes jointly, as required by the final judgment, so that Alejandro’s tax liability would be decreased. The parties’ accountant notified them repeatedly of the information still needed to file the taxes, but Luna failed to provide it, resulting in expensive penalties. After Luna told the parties’ parenting coordinator that she would not file the taxes jointly, Alejandro moved for contempt. His motion was granted after Luna admitted to the judge that she had not provided the necessary information to the accountant. Even after being held in contempt, she refused to cooperate, and she was held in contempt again.
Luna also refused to sign the documents necessary to sell the marital home, despite that she had been ordered to do so and she was not even residing in it. She was found in contempt. Due to her inaction, the parties lost at least five full price offers on the home. Penalties and interest continued to accrue on the home, and Alejandro was required to continue to pay the mortgage until the home sold. When Luna continued to refuse to cooperate, she was found in contempt again.
Meanwhile, Alejandro worked diligently towards completing his dependency court case plan as quickly as possible so that he could resume timesharing with his children. He underwent psychosexual and psychological evaluations and lie detector testing, and he was eventually cleared of sexual abuse.
While Alejandro worked hard to complete his plan, Luna’s mental health deteriorated further. The court ordered her to complete a substance abuse evaluation and to follow the recommendations, including random urinalysis. According to Dr. Gullibleman, she suffered major, recurrent depression, severe generalized anxiety disorder, and panic disorder with agoraphobia. She was prescribed klonopin, trazodone, pexeva, kepra, florinef, among other medications. Due to the serious nature of her mental and physical illnesses, her doctors determined that she could not drive or work, even with severe restrictions.
One afternoon, Luna took Angel to an appointment, and she failed to provide a caregiver for nine-year-old Jason. He was forced to walk home from school, and he was alone for at least two hours, when the realtor found him. She called Luna, but Luna did not answer. The dependency case worker instructed Alejandro to call the child abuse hotline and file a report, which he did.
Luna repeatedly emailed Alejandro, pretending to be Jason. Posing as Jason, she pretended to be upset with Alejandro for not returning Jason’s phone calls, even though Alejandro constantly called the children, and they did not answer. She eventually admitted, “Fine, you got me! I sent the e-mail! By you don’t call Jason enough. And Jason is terrified that you’re going to kill him.” Alejandro questioned, “Why would you say such a thing?” She explained, “Jason asked me to obtain a trespassing order against you.” Alejandro was furious. “How would a child Jason’s age even know what a trespassing order is?” Luna had no response, but she continued her attempts to brainwash the children and to alienate them from Alejandro.
During the dependency proceedings, the state attorney, who sees many troubled families in her career, told us that Luna “had very serious mental illness and severe hatred for the father. She is able to manipulate people to achieve her goals. She doesn’t put her children first. She wanted them in foster care v. the father or grandparents. That’s one family after almost 24 years of dependency work I’ll never forget.”
Once he was cleared in dependency court, Alejandro attempted to resume his timesharing, as it was prior to the dependency action. Even though, historically, he shared time with the children on alternating Tuesday nights until 8:30 p.m., Luna now argued that 8:30 p.m. was too late. She argued that it did not give the children sufficient time to do their homework, despite that they would two hours and 40 minutes to complete their homework before Alejandro picked them up. Regardless, he complied with Luna’s demand to return the children at 7:30 p.m. to avoid conflict and to make every effort to see the children as often as possible.
After arguing that Alejandro must return the children at 7:30 p.m., one night, Luna requested that he keep them overnight because she had “plans.” Alejandro complied with her demand once again. Luna failed to provide him with changes of clothing for the children, despite his request for same.
When the children shared time with Luna, they were frequently dressed inappropriately for the weather and in clothes that were in poor condition. One Monday after Alejandro’s weekend with the children, he realized that Luna failed to provide appropriate shoes for Angel. Angel’s school required that she where closed-toe shoes, rather than the sandals that Luna packed. Because he had to go to work, he requested that the school contact Luna to bring appropriate shoes for Angel, but Angel’s teacher was unable to reach her.
One day, Alejandro arrived at Luna’s home to pick up the children. He honked his horn and waiting in his car for the children. Luna yelled from the door, “I won’t let them go with you because you are alone.” Alejandro had been alone to pick them up for several of the other recent visits, and there was no court order in place requiring others to be present. Fearing a scene, he left without the children.
Despite that Luna was required to take the children for counseling, she refused to do so because she preferred to take them to another counselor, who the court had already deemed unacceptable.
Luna’s mental health went from bad to worse. One day, Alejandro went to her home to pick up the children for his usual visit. When he arrived, the children opened the door. Luna immediately appeared, talking on the phone. As the children came out to greet their father, Luna hurried them back into the house and continued talking on the phone. Alejandro waited a few more minutes, remaining in his vehicle because he was terrified to go near Luna’s home. Luna continued to walk in and out of the house, talking on the phone. Alejandro finally got out of his car, and while remaining close to his vehicle, asked her if she was going to release the children to him. She ignored his question as she continued to talk on the phone. Astonishingly, Alejandro overheard Luna spell his name and say to the other person that “Alejandro has just knocked me down and hit me.” As soon as he heard this lie, Alejandro immediately got into his car to leave. Luna then said to the person on the phone, “I’m going to try to stop him from leaving.” She jumped onto the hood of his car. He immediately exited his vehicle, and Luna proceeded to tell the person to hurry over because Alejandro was about to run her over with his car.
The children were scared and began to scream and run around. Alejandro immediately called 911. He tried to reassure the children while they waited for the police. When the police arrived, he told them what had happened.
Alejandro then walked across to the neighbors’ house and spoke with them because they had witnessed the entire scene. The neighbor informed him, “Earlier this afternoon, I helped Luna tend to wounds on her face after she fell and hit her face. She was too intoxicated to walk.” When Luna eventually followed him to the neighbor’s house, Alejandro noticed that she had an abrasion on her right cheek and a laceration over her left eyebrow. When the officer questioned Luna as to what happened to her, she lied that “Alejandro knocked me down and hit me.” Alejandro panicked, fearing that he would once again go to jail due to Luna’s false allegations of abuse, as he did 4 years prior when she falsely accused him of domestic violence. After questioning the parties, the officers spoke to the neighbors. The officers then released Alejandro with the children, and Baker Acted Luna.
Thereafter, a child protection investigator from the sheriff’s office visited Alejandro because “someone” had called them regarding these events and claimed that Alejandro had assaulted and battered Luna. After speaking with Alejandro and the children, the officer recommended to Alejandro, “You really must file an emergency motion to keep the children with you. They are not safe with her.” Alejandro followed the officer’s advice. The court ordered that the parties have no contact, but decided to wait to fully hear the matter until trial.
After this incident, the parties’ parenting coordinator asked to be removed from the case because he did not trust that Luna would not make up lies against him if she grew unhappy with his help.
Luna depended heavily on her then ten-year-old son, Jason. Jason became the “man of the house,” taking care of Luna and the two younger children. Although he acted tough and stoic, this responsibility weighed heavily on Jason. Luckily, unlike most children living in such an emotional environment, Jason’s grades did not suffer, and he did not exhibit poor behavior. Dustin and Angel continued to perform well in school as well, a true testament to how wonderful and strong these kids are. Many children enduring what these children experienced become sick, depressed, or even, suicidal. They act out in school, and their grades suffer. Because of their poor behavior, they may begin to lose important friendships, which only increase their emotional strife.
Before the trial was set to occur, Luna lost her final shreds of sanity and attempted suicide, while the children were in her care. Luna’s friend reached out to the woman who was like a mother to Luna, Anna, asking that Anna contact Luna because she was in bad shape. When Anna phoned Luna, she did not sound well. Anna heard the children yelling in the background.
Apparently, Angel, who was only 6 at the time, heard Luna tell someone with whom she was speaking on the phone that she was going to kill herself. Angel told Jason, who then asked Luna, “Mommy, what can I do to make you not kill yourself?” Luna yelled at the children, “Get out of my room!” Jason, forever the leader and protector, told her, “You are not going to do this.” Anna asked Luna to what Jason was referring, and Luna responded, “Kill myself.” Jason then yelled at seven-year-old Dustin, “This is all your fault.”
Anna asked Luna, “Did you say in front of the kids that you are going to kill yourself?” Luna responded, “You just want to take my kids,” and she hung up the phone on Anna. “Jason get me a knife.” Jason responded, “I’m not falling for that,” and he ran to the kitchen to block the knives. Luna attempted to get Jason to move and tried pulling him away from the knives. Dustin started to call 911, and Luna knocked the phone from his hand.
Jason instructed Dustin, “Go tell the neighbors to call for help.” The neighbors tried to talk to Luna, and Luna started to calm down a bit. Then the neighbors called the police. Luna told Anna, “I’m tired, but I don’t want to kill myself in front of the kids.” The children were still in the background, yelling and crying.
When the police arrived, Luna yelled to the children, “Don’t answer the door. Jason, check who it is.” Dustin answered the door. The police entered, and Luna angrily shouted, “Get out of my house!” They attempted to handcuff her, and she struggled. The police took her outside, and they were able to handcuff her. Her sister arrived and found empty alcohol bottles scattered around the house. The children were still very upset and crying. Luna lied to the police about Alejandro’s whereabouts, telling them that he resided out-of-state. Because he was at an out-of-state work conference, and even though Luna told the police that she did not want the children to go with her sister, the police released the children to Luna’s sister temporarily until Alejandro returned from his seminar. Once again, Luna was Baker Acted.
The family court granted Alejandro temporary sole decision making and timesharing, and ordered Luna to have no contact with the children. The children thrived in his care, never missing school, and enjoying a much more regimented schedule and higher level of care.
However, sadly, Luna eventually sought her timesharing to be reinstated. The guardian ad litem recommended that she partake in several supervised visits. These visits went relatively well, as Luna was under the microscope during them.
Over one year after Luna attempted suicide in her children’s presence, the GAL recommended that she begin unsupervised timesharing, explaining that the children had told him that they were not fearful in Luna’s care. However, the GAL, of all people, should have understood that the children may have had ulterior motives for saying that they were not scared, like they did not want to upset Luna, or they thought it was what the GAL wanted to hear.
The judges involved in this matter, as do many judges involved in family law cases, depended greatly upon the GAL’s opinion. It is understandable that a judge would want the expert opinion of a neutral party who has evaluated the parents, the children, and the collaterals. But, the GAL involved in this case did not take the time to review the voluminous record, to talk with the many collaterals involved, or to perform psychological testing on the parties. Despite that the GAL had an ethical duty to provide recommendations under his professional umbrella of a licensed psychologist with a Ph.D., the GAL knowingly made his recommendations with limited information. He failed to perform a thorough analysis, and he failed to consider Luna’s history or proven past behavior. The GAL did not verify Luna’s mental well-being from any unbiased sources.
The GAL and the court seemed to be of the opinion that, rather than review Luna’s history of mental illness since the entry of the final judgment, it would be fairer to look at the brief history since her unsupervised timesharing had been reinstated. The GAL stated in court that he felt that having Luna continue supervised timesharing until the final hearing would set the stage for him not to have access to information from the children as to how they would respond to unsupervised timesharing and how Luna would handle unsupervised timesharing. He was concerned that if Luna was not provided with the opportunity to have unsupervised timesharing before the final hearing, it would set a prejudice against her, despite that her horrific behavior is the reason why her timesharing was ordered supervised. Alejandro desperately believed that the detrimental impact of Luna’s actions on the children should not be quickly forgotten. Nevertheless, the GAL continued to not put a strong enough emphasis on Luna’s history of mental illness, testifying that “unless a person is demonstrating that they are at risk at the present time, I believe it would not represent what we are to value as a person’s recovery from mental health issues to have them forever under some kind of scrutiny or supervision or finding them not safe people to be around because they have had past mental health issues.” In basing his recommendations on this assumption, the GAL was putting the best interests of Luna ahead of the best interests of the children.
The court adopted the GAL’s recommendation that Luna’s timesharing be unsupervised without ever even affording Alejandro an evidentiary hearing. The court ordered Luna to pick up the children from school on alternating Wednesdays and take them to their appointment with the GAL. However, according to the GAL, Luna forgot to schedule a court-ordered appointment. However, according to Luna, the meeting with the GAL did not occur because the GAL had “a schedule conflict.” Furthermore, about a week later, Luna was unable to pick up the children from school, as ordered, because she was late from a doctor’s appointment.
Luna went to Angel’s school to have lunch with her, and she was dressed in such a manner that she exposed herself to one of the other children. The child told Angel, “I saw your mom’s underwear!”
Despite that Luna seemed to be falling back into her bad habits, eventually, the GAL recommended, and the court ordered that Luna’s timesharing pursuant to the final judgment be reinstated. Luna began to falsely accuse Alejandro of not responding to her regarding timesharing exchanges and other matters related to the children. In fact, Alejandro had responded to all of her e-mails, and if Luna had not received the emails, she could have telephoned or sent a text message to him.
The parties had an altercation regarding summer timesharing. Luna asked Alejandro, “Which three weeks would you like over the summer for extended summer timesharing?” He requested, “The last three weeks would be ideal because I have to study during the early part of the summer for my boards.” Luna indicated, “I want my three weeks to occur one week after school ends.” They seemed to have worked it out. But then, Luna accused Alejandro of making plans during the three weeks that she requested, despite that she had the time wrong. She also wrongly accused Alejandro of purposely planning Dustin’s birthday party during her first unsupervised timesharing weekend, despite that he had had that planned for weeks prior, and he could not have known that the Court was going to allow her time that weekend. She refused to allow Dustin to go to his birthday party. She then accused Alejandro of putting the children in the middle of things, despite that she is the one who admitted to listening to his phone conversation with Jason.
Luna then demanded that Alejandro pick up the kids at a camp near her new boyfriend’s home, despite that the exchanges were ordered to occur at her residence, and even though she had sworn at a recent hearing that she had not moved into her boyfriend’s home. And even if Alejandro felt comfortable exchanging the children elsewhere, he would not have been able to make it to the camp in time for the exchange due to his work schedule. The GAL then advised that he believed that the summer camp is closer to Alejandro’s work than Luna’s old home, which it is not. The GAL asked that the parties confer to choose an exchange location midway between Luna’s new house and Alejandro’s home. Luna then asked that the exchange occur at her boyfriend’s office or their new home, which is not a neutral location or centrally located.
As Luna’s regular time with the children continued, Alejandro glimpsed more and more examples of her former unhealthy behavior. One day, Luna texted Alejandro regarding the exchange location. Their communications went south, and the GAL got involved. Luna was sending Alejandro ranting text messages to which he eventually stopped responding. She called Jason’s cell phone, and she spoke with Jason and Dustin. Angel was at the neighbor’s house. Alejandro told Dustin to tell his mother that Angel would call her back later. Alejandro did have Angel call Luna, but Luna did not answer. Luna texted Alejandro that if she did not hear from Angel in the next hour, she would call the police. Alejandro replied, go ahead. She sent him an e-mail that was fairly incoherent and threatening. She seemed to be intoxicated. Alejandro did not respond. Angel called again and was unable to leave a message because Luna’s mailbox was full. Luna called the police and had them perform a welfare check on Angel. The officers documented that Angel did try to call her mother.
Luna brought Angel to the thrift store of Alejandro’s long-time girlfriend’s mother, Kasey, well aware of to whom it belonged. Initially, Luna was cordial to Kasey. But, when she went to pay her bill, she tried to pay with a credit card. The bank declined the transaction and requested that Kasey take possession of her card, cut it up, and mail it to the bank. When Kasey explained this to Luna, she left the store, but then she came back with her boyfriend and Angel. Her boyfriend caused a disturbance and eventually called the police. After I explained the situation, the police explained to Luna that the credit card company had required Kasey to cut up the card and mail it to them. Kasey asked that Luna and her boyfriend not return to the store. Her boyfriend stated derogatorily, “I don’t even shop at a store like this” And, he threatened to contact the Better Business Bureau to file a complaint against Kasey.
Just as Luna had done prior to attempting suicide in the children’s presence, Luna began to complain to Alejandro that the children were suffering from various medical ailments. Alejandro, a doctor, did not notice this when the children were in his care, and he had grave concerns as to Luna’s ulterior motives for suggesting that the children were ill. She told Alejandro that Dustin, suffers from headaches when he is in her care. Alejandro requested that Luna not take Dustin to the doctor without him being present. Nevertheless, despite that the parties share parental responsibility which requires parents to notify each other of the children’s medical appointments, Luna took Dustin to the doctor. She did not provide Alejandro with the doctor’s contact info or notify him prior to the appointment. He was especially concerned because of Luna’s history of making poor medical decisions regarding the children, like ignoring doctors’ recommendations to take Angel to the hospital in an emergency and giving Angel medications not prescribed for her.
Luna’s attorney moved to strike or dismiss Alejandro’s supplemental petition, arguing that since the judge had already determined that it was in the children’s best interest for her timesharing pursuant to the final judgment be reinstated, the judge had already decided that it was in their best interest for the timesharing specified in the final judgment to not be modified permanently. In fact, the standard to modify a final judgment is different from reinstating final judgment timesharing after a temporary order. The judge denied Luna’s motion.
Finally, the final evidentiary hearing regarding the children occurred. Police officers and witnesses from the Baker Act incidents testified against Luna. Luna’s sister testified against her. The children’s daycare providers, teachers, and pediatrician testified for Alejandro. The parties’ former parenting coordinator, who resigned after Luna falsely accused Alejandro of hitting her with his car because he could not trust Luna not to make up lies about him, testified.
An expert psychiatrist testified that Luna was not fit to continue to share majority time with the children. He testified that Luna ran nearly a 100% risk of relapse due to her comorbid conditions. Her prognosis was poor and her disorders would continue to have a severe impact on her functioning. Her abuse of alcohol increased the severity of her psychiatric symptoms and increased her risk of relapse. It also increased her risk of suicide and her risk of accidents secondary to psychomotor impairment and poor judgment. Her chronic personality characteristics, borderline and histrionic features, increased her risk of suicidal ideation or gestures, impulsivity, poor judgment and excessive reactivity to a variety of stressors in her life. These psychiatric disorders are chronic, potentially treatable, but not curable. The best predictor of future problems is the Ms. Ramirez’s past behavior. If she becomes intoxicated, her poor judgment, cognitive impairment and psychomotor impairment can lead to driving under the influence or accidents. Such behavior may lead to harm to her children if they are with her. If the children are exposed to suicidal behavior, violent behavior, histrionic behavior, self-harmful behavior, they could experience psychological harm both acutely and chronically as a consequence. Given her multiple diagnosis, these children are already genetically predisposed to developing mental and substance abuse disorders.
Shockingly and unfortunately, the judge took the easy way out, denying Alejandro’s supplemental petition, finding that there was no substantial change in circumstances because Luna’s mental health problems began prior to the entry of the final judgment of dissolution of marriage. Although Luna did have mental health problems prior to the parties’ divorce, they escalated immensely after the divorce was finalized. The judge should have considered the severity of her recent issues, rather than simply finding that she was crazy then, and she’s still crazy now, so everything should remain the same. The judge found the wormhole and wriggled her way through it.
Male Order Grooms
Sometimes, divorce results when one spouse realizes that he or she never really knew the other before they were married. These are the divorces that prove the old adage “familiarity breeds contempt.” It is not uncommon that “a marriage of convenience” becomes a divorce of convenience when this takes place.
Ivan Ishchenko and Vladimir Kruschev had been best friends in their homeland, Russia. Both men were large, strapping, quiet types with penetrating blue eyes. Ivan had a lighter disposition, and Vladimir was more serious. Despite the language barrier, it was clear that both men had good, big hearts and romantic spirits. Ivan was a dreamer, and his ultimate dream was to have the means to move to America, which he viewed as the land of freedom and opportunity. Vladimir, though a strong man, was content in following in Ivan’s footsteps, a man who he not only thought of as a friend, but also, like an older brother and mentor.
One day, two American women, friends, travelling together on vacation, swept the Russians off their feet, and whisked them back to the United States. Ivan’s wife, Lily, was a focused, successful woman with mousy brown hair. Vladimir’s wife, Karol, was a robust woman with dyed red, frizzy hair. Neither woman had had much luck with dating in America, and they viewed their trip to Russia as an expedition to find husbands. As soon as the women met the men in a Russian bar, they vowed to work together to convince the men to come to America with them.
And they soon did. After just a few weeks in Russia, the men agreed to travel to America for a month with the idea that, if things went well, they would not return to Russia.
Both men spoke next-to-no English, and the ladies spoke no Russian. Nevertheless, before long, they were married. However, while it appears that the language of love was sufficient to forge their unions, it was not strong enough to bind them together forever.
Less than two years into his marriage, Ivan’s wife, Lily, filed for divorce. She was a high school teacher, so her income was comparatively small, but she owned several pieces of rental property that she had accumulated during her first divorce. As a result of her habit of investing wisely, by the time of her divorce from Ivan, her net worth was close to one million dollars. Ivan, on the other hand, had been an engineer in his native Russia, but he spoke little English, and could only obtain menial work in the United States, for the nominal rate of ten dollars an hour.
When Lily brought Ivan to the States, she knew that he had no income, assets, or ability to support himself. We took the position that she would have to support him.
In addition to needing her for emotional support and cultural insights, there was a little bit of abuse going on here. Ivan was completely dependent on Lily financially because she grabbed what little he DID earn and gave him no money to spend. She filed their tax returns and kept the refunds for herself. During their marriage, according to him, she never allowed him to purchase anything for himself. She permitted him to use the Saturn that she had bought for him, but took it away when she filed for divorce. While married, they lived a typical middle class lifestyle although she was the primary breadwinner and controlled all household purchases.
Because of his low income, his unreliable transportation (he never knew if she would allow him to use the car), and his language and culture barriers, he was vulnerable and needed support. She earned considerably more, had lengthy, stable employment, and supplemented her salary with the rental income. During the short time that they were together, they lived in her home, he drove a car she’d purchased for him, and they both enjoyed a comfortable lifestyle.
Prior to the marriage, Lily had compelled Ivan to sign a prenuptial agreement, which would have left him with nothing in the event that they divorced. We argued that the court should set it aside or recognize that it was void ab initio. After all, he’d signed it under duress, without understanding his rights, and without the benefit of an attorney.
Six days prior to their wedding, she had presented him with the agreement. It had been drafted by her attorney. She drove him to her friend’s home to execute it. The friend purported to translate it and to then also serve as notary.
Lily handed him the agreement, saying, “You know I love you Ivan, but I cannot marry you unless you sign this agreement, right here, right now.” Although the document was translated into Russian, Ivan was given little time to read it or to consult an attorney about its content or his rights.
A strong desire to make his life and marriage work pressured him. As a transplanted émigré, Ivan needed Lily both financially and emotionally. He’d left behind his career, his car, his home, his family and his friends — everything he had in Russia, to be with her. And, it had always been his dream to live in America, though the reality of America did not seem as rosy as he had hoped. Under the circumstances, her threat not to marry him constituted coercion. Without her, he’d be stripped of shelter, a source of income, transportation, or even the means to return to Russia—everything he relied on here. “I will sign,” he replied quietly, pen in hand.
Afterward, she refused to give him a copy of the agreement, eliminating any meaningful opportunity to review it with an attorney. We later discovered, when we obtained a copy, that the agreement itself misrepresented Ivan’s income by stating that he earned $36,000 annually when he actually had no income at all at the time. Additionally, it had been notarized by a friend of Lily, without witnesses.
We requested that Ivan receive a special equity in their marital assets because she had constrained him to relinquish all of his earnings during their marriage to her and gave him nothing in return to spend. Despite the brevity of their two-year marriage, we requested alimony based on her superior financial position and his vulnerability.
Soon after Lily petitioned to divorce Ivan, her best friend, Karol, followed suit and filed against Vladimir. During their marriage, he had served as primary caregiver for both the child they conceived shortly after their marriage, as well as of the toddler Karol had adopted shortly before her trip to Russia.
Shortly after filing, Karol unilaterally sold their home, accepted a new job, and bought a house in Kansas City. “Vladimir, I am moving and taking the children with me. I do not want you to follow me.” Vladimir felt so betrayed and alone, and he was concerned that Karol would be able to proceed as she threatened, and he would never see his son again. Because a standing order prohibits this type of behavior while a divorce is pending, we filed a motion to prevent her from relocating.
Like his friend, Ivan, Vladimir had executed a prenuptial agreement under duress, without understanding his rights, and without the benefit of an attorney. Their situations paralleled one another: minimal English, low income, no assets, and an inability to earn a living. Like his friend, Ivan, Vladimir worked a job that only paid ten dollars an hour; his, however, was part-time.
During their marriage, Karol had been the primary breadwinner. She was a Senior Vice President at a local bank, earning well over $250,000 per year. In addition, she was worth well over a million bucks. During their marriage, Vladimir supported her career by taking care of the house and also of both of their children. Therefore, we requested that Vladimir’s prenuptial agreement also be set aside, and that he receive alimony and primary residential responsibility of the child they shared.
After Karol assaulted Vladimir, he was awarded a temporary injunction for protection against domestic violence. However, the judge allowed Karol to remain in the marital home, because it was in her name alone, having been purchased before they were married. Joshua, her adopted son, remained with her, as Vladimir had never been offered the opportunity to adopt him. Vladimir and Dmitri were forced to move in with Ivan into his small apartment.
Every week, Karol spent Monday through Friday in Kansas City at her new job. During her travels, she left Joshua, who had only known Vladimir as a primary caregiver for the three years prior to the domestic violence incident, at home with a domestic who spoke only Spanish and had no special childcare training.
Because he was a large man with the severe temperament common to Russians, we knew that obtaining a permanent injunction would be an uphill battle. (Although Karol was fairly brutish, as well!) While the courts are supposed to be gender-neutral, there is no doubt that it is more difficult to obtain an injunction for a man against a woman. Irina, the gal who had referred them both to us, acted as his translator during the hearing.
The judge was not amused when Vladimir answered a question with a simple “Neh,” and the translator “translated” the response as a lengthy diatribe. After several “translations,” the judge angrily removed the translator from the courtroom. After the hearing, which we lost, the two ranted at me in Russian all the way from the courthouse to my vehicle. Although I had no clue what they were saying, there are few angrier-sounding languages than Russian, so they made their point!
Ultimately, we were able to settle the Russians’ cases. Vladimir’s case was far easier to resolve; once she was over her initial anger at being thwarted in her plans, Karol was not so insensitive to fail to realize that both of her children cherished their relationships with Vladimir, their father and stepfather respectively, and the only Dad either of them had known. We were eventually able to forge an agreement, using the services of a talented mediator, in which Karol supported Vladimir’s move to Kansas City, helped him find better employment, and Vladimir remained as part-time caregiver for the children.
Ivan was not so lucky. Lily refused to admit that she had taken advantage of his status, and there were no children involved to soften her heart. Furthermore, we were unable to get the judge to award Ivan even the smallest temporary attorney’s fees, so we were working for free (involuntarily) from the get-go. With our coaching, Ivan eventually was able to approach Lily directly. He convinced her to fund his trip back to Russia, but she refused to do any more than that. We never heard from him again and can only hope that his old friends were able to help him get back on his feet once he returned.
Paul & Paula
Things are not always as they first appear. It is important to make people feel at ease during their initial consultations so that they feel comfortable enough to divulge their very private personal matters. My ability to remain open-minded has led me to some of those most interesting cases, including the following.
Paul first came to me with a very ordinary divorce. He was a large man, exuding masculinity, as he rolled up to our initial meeting on his motorcycle. He was a former Army Ranger, and he had been married to his wife for over sixteen years. They did not have children, just two dogs that they adored. His wife was requesting alimony, and there were assets to be distributed between the parties. Paul retained my firm, and I quickly learned that this would not be a typical divorce.
Paul soon divulged that he suffered from gender dysphoria, a medical condition in which a person’s anatomical sex at birth does not match his gender identity. Paul explained, “To put it simply, I feel like I am a woman stuck in a man’s body.”I wanted to Paul to feel comfortable, so I did my best to hide any shock that I felt, despite that I had never come across anyone with Paul’s condition. “For how long have you felt this way?”
Paul immediately and passionately responded, “I have felt this way as long as I can remember, and it has caused me severe psychological distress and intense feelings of discomfort. Since I was a baby, my sex was classified as male. Accordingly, my parents gave me the traditionally male name “Paul John,” and, from a young age, I was socialized to wear traditionally masculine attire and to participate in traditionally masculine activities. Because of my severe discomfort, I gravitated towards highly masculine activities to prove that I was a man.”
I was fascinated. “So, what made you finally realize that you no longer wanted to live this way?”
“I just could not continue to live a lie. As I got older, I wanted to feel comfortable in my own skin. Over time, I determined that the gender designation assigned to me at birth did not conform with my gender identity. I sought sex reassignment. Initially, I began living full-time as a woman. Eventually, I underwent hormone therapy, and finally, sex-reassignment surgery.”
Because Paul had first come to me as Paul, rather than Paula, I was a bit confused. “How long ago was that?”
“Actually, I have just begun to live as a woman. Please call me Paula. I first came to you as Paul because I wished to gage your reaction to my gender dysphoria before I trusted you enough to retain you. But, after our first meeting, I felt comfortable enough to introduce myself to you as Paula.” I was so pleased that I had made Paula feel so comfortable that she could come to me as Paula, even though she was just in the early stages of her sexual reassignment.
Over time, I learned a lot about Paula. I really enjoyed her, and I found her fascinating. Paula enjoyed many traditionally female activities. We often gabbed about hair, makeup, and clothing. She described herself as a lesbian. (I used to joke with her that she was “a lesbian trapped in a man’s body.”) She explained that gender identity is different from sexual preference. Even though her gender changed, her sexual preference remained the same.
We had a very old-fashioned judge. In court, I referred to Paula as “she,” while her wife’s attorney adamantly referred to her as “he,” not wanting to recognize Paula’s gender dysphoria. The judge was clearly confused as to which pronoun was appropriate!
For obvious reasons, I was especially leery of taking Paula’s case to court. Although her wife, a petite brunette with childlike eyes, had been well aware from the inception of the marriage of Paula’s gender discomfort, she was now claiming it was news to her. Regardless of the truth of the matter, she was extremely angry and very vindictive. I focused Paula on settling the case, and we took it to mediation as soon as we were able.
This worked out well for Paula; by the time we convened in the mediator’s offices, Paula was unemployed and, as I argued, unlikely to find an occupation paying anything close to what she had made as a colonel. On the other hand, the parties had accumulated nine properties over time, some Paula had purchased before the marriage and some they had purchased together during it. As she had been transferred from city to city, she had retained the homes she lived in and rented them out when she was relocated. So, although her wife had not worked outside the home for the last ten years, at 41, she was still relatively young, and we had real estate with which to negotiate. Eventually, we were able to trade Paula’s individually owned property for her wife’s alimony claim, and the case settled relatively quickly after that.
Once we were able to finalize Paula’s divorce, she moved to Washington D.C. As a twenty-five year veteran of the U.S. Armed Services, she applied for a position as a Terrorism and International Crime Research Analyst with the Congressional Research Service of the Library of Congress. She was exceptionally well-qualified for this position, having served in a variety of critical command and staff positions, including those in Armored Cavalry, Airborne, Special Forces and Special Operations Units, and in combat operations such as those in Panama, Haiti, and Rwanda. Promoted to Colonel, she distinguished herself with numerous awards, decorations, and qualifications over the course her career. She is a distinguished graduate of both the National War College and Army Command and General Staff College, and holds master’s degrees in history and international relations. In fact, one of the critical issues in her divorce was the fact that she owned the world’s largest privately-owned military history book collection; obviously, her wife wanted it. As it had no value, however, according to the personalty valuation expert we retained, we were able to negotiate a deal that included Paula maintaining her possession of it.
Approximately two months after submitting her application for the Terrorism Research Analyst position, Paula was invited to interview with three representatives of the Congressional Research Service. As she had not yet changed her legal name or begun presenting as a woman at work, she had submitted her application under her legal name and went to the interview dressed in traditionally masculine attire.
After the interview committee spoke to her references and reviewed her writing samples, Paula was informed that she had been selected for the position. And, after resolving issues over salary, Paula accepted it.
It was then that she explained to the interview committee that she was under a doctor’s care for gender dysphoria and that, consistent with her doctor’s instructions, she would be using a traditionally feminine name, dressing in traditionally feminine attire, and otherwise living and presenting herself full-time as a woman when she started work as the Terrorism Research Analyst. She even showed the committee photographs in which she was dressed in traditionally feminine workplace-appropriate attire.
Although nothing was said to suggest that this information would impact the Library’s hiring decision, the following day, Paula was notified that, after a “long, restless night,” the committee had decided that, “for the good of the service,” and “given Paula’s circumstances,” Paula would not be a “good fit” at the Library of Congress.
Paula was forced to file an administrative complaint with the Equal Employment Opportunity Office of the Library of Congress in which she alleged that the Library’s decision to rescind its job offer because she is transgender constituted impermissible sex discrimination in violation of Title VII. While I did not represent her in that litigation, she often contacted me to obtain my advice, and ultimately obtained a judgment in her favor. By that time, however, having been one of the military’s foremost anti-terrorism experts, and having also been highly successful in maintaining the many friendships she had accumulated during her military service, despite her transformation, she was self-employed as an anti-terrorism consultant to the military, making well into the six-figures, and no longer in need of a job.