Respondent's Trial Brief - Opening Statement
RESPONDENT’S TRIAL MEMORANDUM
The parties had a short term marriage (3 years) and have one child, a daughter named Vera, age 4. The parties separated in July 2011. The parties have divided up all of their personal property. They have removed each other from financial accounts and insurance. There is no community debt to be divided. Both parties are employed full time. The primary issue at trial is determination of the final parenting plan. Colleen Max completed a parenting evaluation and made a recommendation that Rev be primary custodial parent. Mr. Vol (hereinafter “Ex”) objected to that recommendation insisting he is entitled to a 50/50 (week on/ week off) schedule and he will settle for nothing less.
Upon mutually deciding on divorce, things started out amicably with Ex hiring a collaborative lawyer to prepare the papers. However, after Rev joined in the collaborative process Ex terminated it, hired a litigator, and served Rev with divorce papers. During separation Ex continued pursuing Rev with phone calls, texts and emails, sometimes all at once, and some, like text messages, being sent every few minutes for hours. Ex begged Rev to reconcile accused her of being at fault for the divorce by failing to forgive his infidelity. Additionally, once Ex found out Rev’s undisclosed address she received packages containing books on reconciliation following a husband’s affair. The most disturbing incident came when Rev discovered someone tried to break into her home and loosened all of the lug nuts on her vehicle’s tires. Rev then obtained a year-long anti-harassment protection order against Ex. And though Rev had binders full of evidence of Ex’s harassment, the judge entered mutual protection orders because the parties were engaged in a divorce.
From January 2012 Ex could not contact Rev directly so he cyber stalked her. Third party websites continuously sent Rev and her then boyfriend GQ, emails about email and website accounts they had not registered for. Content was posted at the websites cheaterville.com and jerk.com with pictures of Rev and GQ that could only be obtained from Microsoft’s secure employment site where Ex worked. Rev and GQ worked as vendors at Microsoft and did not have the same access as Ex to employee records. GQ received men’s sized T-shirts at his workplace saying “The Home Wrecker” and “I stole your wife. Want her back?” and “Why don’t you stop texting your boyfriend and pay attention to your husband” which was in a woman’s size. Ex claims GQ sent the t-shirts to himself, but the circumstantial evidence leads to Ex. Eventually Ex sent items to Rev through their daughter’s backpack such as a pair Ex’s underwear, a necklace, and a framed photograph Rev had left at Ex’s house. Ex claimed a daycare worker did it causing the daycare to undergo a legal investigation to rule out their employees, which they did.
Rev filed police reports but could never make a direct tie to Ex for any of the incidents. The evidence points to Ex as the perpetrator though due to similarities in Ex’s actions, use of similar words and phrases as the anonymous stalker, proclivity for being caught lying, and the timing of the anonymous events occurring immediately following a bad court result for Ex. Commissioner Joy Smith and Pro Tem Mariam Jones, as well as Judge Sam Kens, addressed Ex’s undeniably disturbing and malicious behavior and granted Rev and Vera protection from him. Rev registered with the Address Confidentiality Program to further protect her from Ex.
Max Max did a very thorough parenting evaluation. Ms. Max noted that Ex’s obsessive, predatory behavior towards Rev had been going on for some time which was documented by his treating mental health counselors. Ms. Max recommended Ex obtain an evaluation with a psychologist specializing in predatory behaviors. During Ms. Max’s evaluation in July 2012, but prior to issuing her final report, Ex was fired from Microsoft and shortly thereafter arrested and incarcerated for Reckless Driving (cited for driving over 100 mph) and DUI. Ex told no one about either event. Ex had stopped making mortgage payments on his home in September 2011 and was forced out of his home due to foreclosure around this same time as well. Ex did not willingly disclose his new address.
Rev discovered all of these things through third parties and notified Ms. Max. This self-destructive behavior in addition to the malicious web postings and “gifts” caused Rev to seek additional protection from the court for herself and Vera in September 2012. Colleen Max testified at the hearing in favor of the restraints. The restraining order was granted along with ordering Ex to have supervised visitation with Vera for up to four hours 2 times per week. Visits could be monitored by an agreed lay supervisor. Judge Kens later offered the use of a paid professional supervisor if the parties couldn’t agree to a lay supervisor. Ex turned this into a “requirement” for paid supervision and tried to force Rev to pay for supervision even when lay supervisors where available.
In the midst of Ex’s personal self destructive spiral he stopped all financial support to Rev and Vera. Per the temporary child support order Ex was to pay a transfer payment to Rev of $894.43, provide medical insurance for Vera and pay his proportionate share of daycare and other child expenses. Ex fell behind in child support payments beginning in August 2012. He is in arrears for child support payments currently. Ex dropped Vera from his medical insurance due to being fired, but never notified Rev of the lack of coverage. Ex refused to pay his proportionate share of Vera’s uninsured medical bills, daycare, and phonics reading program, but insisted Rev pay for professionally supervised visitation.
Rev had to add Vera to her medical plan, and pay all of her daycare, phonics, and uninsured medical expenses. Rev then objected to paying for professional supervision citing her lack of money so Ex filed a contempt action against her in December 2012. The court denied contempt. Upon notice to Ex, Rev also tried to move Vera to a less expensive daycare since Ex was no longer paying for it. Ex refused to allow the daycare transfer, but didn’t pay his daycare bill either. Ex filed an ex parte restraining order against Rev due to the daycare issue. That motion was denied also, but Rev was not allowed to move Vera to a new daycare unless Ex continued to be in arrears for daycare.
The parties mediated with Mariam Jones in March 2013. They settled the matter of child support and entered an agreed final order on March 26, 2013. However, as it pertains to child expenses, during the mediation Ex produced false evidence that he paid a dental bill for Vera. Within days of the mediation it became apparent Ex had lied about his payment and had never sent the check that he produced a carbon slip for.
Following the mediation Mr. Vol agreed to undergo a psychological evaluation upon the recommendation of Colleen Max and Mariam Jones. The parties agreed to Dr. Ramirez. That evaluation took place in June and July 2013. Dr. Ramirez met with both parties and the child and considered collateral source information provided by both parties. It is not clear from his report what collateral source information Dr. Ramirez reviewed. However, his recommendation is that, though Ex is not in danger of suicidal or homicidal behaviors, he ought to continue in counseling for six months and attend six sessions with Michelle Clemson of the Co-parenting Center for the purpose of developing and maintaining healthy and non-alienating parental cooperation.
The parties have not been able to settle this case due to Mr. Vol’s refusal to accept anything less than immediate 50/50 residential time which is not agreed to by Ms. Rever. Ms. Rever is seeking reimbursement of her attorney’s fees and costs from Mr. Vol which prior to trial exceed $42,000. Ms. Rever is also seeking to leave the property division as currently divided by agreement of the parties at the time of their physical separation 2 years ago.
1. What should be the residential schedule in the final parenting plan;
2. Whether there should be a further division of assets;
3. Whether the mother should be reimbursed her attorneys fees and costs. If so, how much.
Court file; pleadings; RCW 26.09.181, 184, 187 & 191; and case law cited herein.
The parties have lived separately for two years. They have lived independent of one another without the need for spousal maintenance. During the marriage the parties maintained separate accounts. They have divided up all of their tangible property and community assets two years ago. Each party now has considerable separate debt, but no community debt. Ms. Rever did not start a retirement account until after the parties separated. She is not seeking any of Mr. Vol’s retirement accounts or Microsoft stock options.
RCW 26.09.080 states that the court should make a just and equitable disposition of property after consideration of the following factors:
(1) The nature and extent of the community property; (there is none)
(2) The nature and extent of the separate property; (already divided)
(3) The duration of the marriage or domestic partnership; and (3 years)
(4) The economic circumstances of each spouse or domestic partner at the time the division of property is to become effective…” (both have lived and worked independently for two years with only child support being paid )
The trial court’s paramount concern when distributing property in a dissolution action is the economic condition in which the decree leaves the parties.” In re the Marriage of Williams, 84 Wn. App. 263, 270, 927 P.2d 679, 683, (1996), citing In re Terry, 79 Wn. App. 866, 905 P.2d 935 (1995). Both Ex and Rev have good incomes, paid benefits, and retirement plans. The key to an equitable distribution of property is not mathematical preciseness, but fairness.” In re Marriage of Clark, 13 Wn. App. 805, 810, 538 P.2d 145 (1975). “Fairness is attained by considering all circumstances of the marriage and by exercising discretion, not by utilizing inflexible rules.” Clark, 13 Wn. App. at 810. It would be unfair and inequitable to order Rev to reimburse Ex for Colleen Max’s fees (he asked the court to appoint her), Dr. Ramirez’s fees (Ex’s behavior warranted evaluation and he volunteered for it), or reimbursement for any other claim he makes. Rev doesn’t have the financial means to reimburse Ex. Rev had to pay for Vera’s medical insurance, uninsured expenses, daycare, phonics, all of her daily necessities, plus she paid for supervised visits between Vera and Ex, even though paid professional supervision wasn’t ordered. An equitable division of the parties' property is what they agreed to two years ago, a decision that has not been disturbed in all of the ensuing litigation.
B. Attorney’s Fees and Costs
Rev should be awarded attorney’s fees and costs. This case was dragged out two years because of Ex’s intransigence, frivolous hearings, and his parade of lawyers. RCW 26.09.140 grants the court discretion to award attorneys’ fees to either party. The court must balance the need of the requesting spouse and the ability of the other spouse to pay. In re the Marriage of Greenlee, 65 Wn. App 703, 707, 829 P.2d 1120, 1123 (1992). However, when intransigence is established, the financial resources of the spouse seeking the award are irrelevant. In re the Marriage of Morrow, 53 Wn. App. 579, 590-591, 770 P.2d 197 (1989). An award of attorney fees based on intransigence has been granted when one party made the trial unnecessarily difficult and increased legal costs by his or her actions. In Mattson, the court awarded attorney’s fees because the husband’s intransigence forced the wife to conduct intensive discovery. In re the Marriage of Mattson, 95 Wn. App. 592, 605, 976 P.2d. 157 (1999). An award of attorney’s fees based on the opposing party’s intransigence can also be awarded if the opposing party files numerous frivolous motions, refused to read correspondence from the Respondent’s attorney, and if the opposing party’s actions cause the party requesting the award to incur additional legal fees. In re the Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929, 932 (1997).
The amount of hearings the parties attended all stemmed from Ex’s action. Three hearings directly correlated to Ex’s threatening and harassing behavior towards Rev. All of the orders were granted. There were then three corresponding revision hearings Ex set, all of which were denied. Then there were two hearings at which Ex attempt have Rev held in contempt and to obtain an ex parte restraining order. Both of Ex’s motions were denied and Rev was cleared of any wrongdoing, though Ex’s poor conducted was noted. As a pro se, Ex has failed to comply with court rules and civil procedure and has been combative in trial preparation.
Rev has spent thousands of dollars in attorneys’ fees defending Ex’s frivolous actions and proving Ex has lied to the courts. Rev had to spend that money while paying 100% of Vera’s care because Ex was unable or unwilling to do so. It would be inequitable to allow Ex to escape responsibility for causing tens of thousands of dollars in legal fees, as well as a one year delay in prosecution of the case. Ex’s actions were not done for any reasonable or lawful purpose. They were self-serving, retaliatory, and punitive. Rev is asking the court to reimburse her the fees she has paid out of pocket (approx $42,000) and to further order Ex to pay the balance of her outstanding legal fees directly to her attorney. Rev should be awarded a judgment that allows for immediate wage garnishment to fulfill Ex’s payment obligation.
The primary focus of this trial will be the parties’ evidence of compliance with the factors for establishing a permanent parenting plan under RCW 26.09.187. Section 3 (a) of the statute states:
“The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances…
Where the limitations of RCW 26.09.191 are not dispositive of the child's residential schedule, the court shall consider the following factors:
(i) The relative strength, nature, and stability of the child's relationship with each parent;
(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parent's past and potential for future performance of parenting functions as defined in *RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.”
The evidence will show that Rev has been a consistent, active part of Vera’s nurturing and development since her birth. Rev has always encouraged and facilitated a strong relationship between Vera and Ex. Rev has promoted relationships between Vera and consistently allowed Ex’s parents, Mr. and Mrs. Vol to have Vera overnights each month throughout the parties’ two-year separation.
The trial court has broad discretion in determining matters relating to the welfare of children. Though Mr. Vol is not deemed a danger to Rev or Vera by Dr. Ramirez, Ex has emotional issues that are relevant to the final parenting plan determination. Over the past two years Mr. Vol has demonstrated bizarre and malicious behavior towards Rev, and people close to her. Dr. Ramirez indicated in his report that Ex is lacking in interpersonal insensitivity, with regard to the impact his behavior has on others, particularly towards the opposite gender. It’s also noted by Dr. Ramirez that Ex displays evidence of emotional sensitivity and obsessive worry. All consistent with what Rev has reported to the court throughout this divorce which made co-parenting impossible and at times compromised Rev and Vera’s safety.
Ex is seeking 50/50 residential time with Vera in a week on/ week off basis. The parties’ daughter is 4 years old. The father seeks an immediate 50/50 residential schedule despite the fact the child has lived 100% with the mother for the past eleven (11) months. This restricted schedule was due to Ex’s disturbing and self- destructive behavior. Dr. Ramirez commented that Ex is not at risk of harm now or showing self –destructive behavior now, but did not address Ex’s past predatory and self-destructive behaviors which supported the protection orders.
The temporary parenting plan gave Ex two or three overnights per week on an alternating schedule before he was reduced to supervised visitation twice a week for up to four hours duration. Both Colleen Max and Dr. Ramirez recognized that Ex needs both time and professional help to develop and establish healthy boundaries and co-parenting with Rev. As much as Ex is deemed a loving and attentive father by his counselors, he doesn’t need a 50/50 schedule to accomplish to prove his devotion or to attain quality time with Vera.
There is no science to support any benefit from 50/50 schedules. They are clearly designed to meet the emotional needs of the parents (or one of them, at any rate), rather than the child. To the contrary, studies show significant problems with 50/50 schedules. Alternating between homes gives children less sense of control over their environment and reduces their opportunity to know one parent in depth[1]. Children may not even know which house their possessions are in from day to day. Not surprisingly, one study indicated that 25% of children in 50/50 schedules were anxious and insecure about alternating homes and felt “overburdened” by the situation[2]. Where parental conflict exists, frequent access to both parents often causes emotional and behavioral problems in the child[3]. One parent may degrade the other parent in front of the child and the child may be used as a vehicle to vent hostility and to harm the other parent. 50/50 schedules do not protect children from experiencing grief and anxiety at their parents' breakup[4]. Where parental conflict exists, 50/50 schedules may in fact exacerbate these feelings[5].
Where parental conflict exists, as in this case, 50/50 schedules often increases this discord and stress[6]. Such schedules, particularly with young children, inevitably increase contact between the parents as they transfer the child. Where parents are hostile to one another, this frequently results in fighting in front of the child. In addition, despite the arguments of its proponents, there is no evidence that 50/50 schedules result in reduced litigation[7]. This is especially true where 50/50 schedules was ordered by the court over parental objections[8].
Under Washington law, child custody orders should encourage each parent to maintain a loving, stable and nurturing relationship with the child. Although several factors must be considered by the court in every child residential determination, the greatest weight is given to:
[T]he relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child.
While the court may order alternating physical custody of the child, it may only do so if: 1) alternating custody is in the best interests of the child; and 2) there is no indication of physical, sexual or repeated emotional abuse of the child by a parent and there is no history of willful abandonment of the child by a parent; and 3) the parents have agreed to joint physical custody or the parents have a satisfactory history of cooperation and shared performance of parenting functions. RCW 26.09.187(3)(b). In this case, factor 2 is not at issue, but factors 1 and 3 are very much at issue. Even if 50/50 plans had a reasonable basis in other cases, there is simply too much conflict between Ex and Rev to think it will work here. Despite the fact the parties were only married for three years and there was essentially no property to divide, this proceeding has drug on for two years due to the high level of conflict.
In the past two years Ex has taken Rev to court at least five times and had each order denied. On the other hand Rev has had to seek protection orders three times against Ex for stalking, harassment, and threat of harm to their child. All of which she succeeded in getting. Ex has demonstrated little to no cooperation with Rev in disseminating pertinent information pertaining to the child as demonstrated by his refusal to disclose his job loss (which affected the child’s daycare and insurance coverage), non-payment of child related expenses (after lying and saying he did for several months), and non-payment of court ordered child support, daycare and medical insurance. Evidence at trial will show that Ex has alienated most of their mutual friends telling them Rev has lied to get protection orders against him. Ex the vetoed the offer Rev made to reduce daycare and transportations costs, even though it was in Ex’s and Vera’s best interests. Ex does not offer to assist Rev in caring for Vera, Instead he makes unreasonable demands for time, information, and compliance on Rev’s part and threatens court action if she doesn’t comply.
It is not in Vera’s best interest to be given equal time with Ex. Dr. Ramirez recommended Ex continue counseling with Matthew Jacobsen to establish a “more functional divided family with Rev.” Dr. Ramirez also recommended that Ex participate in six sessions with Michelle Clemson to “develop and maintain healthy non-alienating parental cooperation” with Rev. Mr. Vol may be a loving attentive dad, but has not yet reached the point where he puts the child’s needs and cooperative parenting above his own personal agenda. Rev agrees to follow Colleen Max’s recommendation for the final parenting plan with Dr. Ramirez’s additional recommendations. This would place the child primarily with Rev allowing the father increased time gradually.
The court should enter a final parenting plan that adopts the recommendation of Colleen Max and Dr. Ramirez. The parties should not be required to divide any more property, and should maintain the status quo, financially, that they have for the previous two years. Rev should be awarded a judgment for 100% of her attorneys’ fees and costs in this divorce litigation, payable to her and her attorney by wage garnishment. The court should enter Ms. Rever’s proposed pleadings which address all of these issues appropriately.
Respectfully submitted this 11th day of July 2013
Amelia Oliver,
Attorney for Respondent
[1] Steinman, S., The Experience of Children in a Joint Custody Arrangement: A Report of a Study, 51 American J. of Orthopsychiatry 403-414 (1981), Clarke-Stewart, A., Child Care in the Family, Academic Press, New York, N.Y., 1977.
[2] Steinman, supra note 32.
[3] Mr. Volson, J.L., et al, Ongoing Post Divorce Conflict: Effects on Children of Joint Custody and Frequent Access, 59 Am. J. Orthopsychiatry 576-595 (1989), McKinnon and Wallerstein, Joint Custody and the Preschool Child, 4 Behav. Sciences & Law 169 (1986).
[4] McKinnon & Wallerstein, supra note 34 at 180., Steinman, et al, A Study of Parents who sought Joint Custody Following Divorce: Who Reaches Agreement and Sustains Joint Custody and Who Returns to Court, 24 J. Amer. Acad. Child Psych. 554-562 (1985)
[5] McKinnon & Wallerstein, supra note 34 at 180.
[6] Felner, R.D. & Terre, L., Child Custody Dispositions and Children's Adaptation Following Divorce, In: Weithom, L.A. (ed.) Psychiatry and Child Custody Determinations; Knowledge, Roles and Expertise, University of Nebraska Press, Lincoln, Neb. (1984) p. 124, Steinman, et al, supra note 35.
[7] Felner, R.D. & Terre, L., supra note 37 at 138-139, Phear, W. et al, An Empirical Study of Custody Agreements: Joint versus Sole Legal Custody, In: Joint Custody and Shared Parenting, Folberg, Jay (ed.) supra note 11 at 142-156.
[8] Ilfeld, F, et al, Does Joint Custody Work? A First Look at the Outcome of Relitigation, 139(1) Am. J. Psych. 62-66 (1982).
