Visitors to my websites know that I am biased in favor of mediation, believing
that parties to litigation involving their family should opt to resolve
their disputes themselves rather than undertake the perils of having a
judge, or anyone else, decide their matters for them. This includes mediators
(whose role is not to decide your issues for you but to facilitate you
finding solutions). However, I admit that sometimes this doesn't seem
possible. Too often one or both parties are reacting so deeply to their
hurt or resentment and spinning with angry, busy minds that they perceive
family court as the killing field for their unresolved conflict - a public
forum for the spectacle of flogging the other side.
High-Confict Cases and Great Financial Waste
A recent reported decision illustrates the financial waste that occurs
in high conflict family court battles, where there are no winners and
only losers. My remarks are not intended to convince you to hire me, or
to impugn judges whom I contend are struggling valiantly to protect children
and mete out justice as best they can within a system that is not equipped
to cope with the multi-dimensional challenges of emotional divorce and
its aftermath: The trial judges are not broken, but the framework for
government sponsored attempts to regulate the processes of divorce and
domestic partnership dissolution is. Nor should it be read as an indictment
of divorce lawyers or any particular barrister. An adversary model for
resolving family disputes guarantees that the experience of everyone connected
with these cases will be ... adversarial. Surprise!
In the meantime appellate justices are stepping forth to triage for the
litigants, their attorneys, and the lower courts. But is it realistic
to expect lawyers (in that small relative percentage of domestic cases
where people can afford them) or judges to not be swept into the reactive
thinking that the parties' disputes are personifying? I say "no".
Our brains are hard-wired to respond to conflict in predictable ways. While we all ought to conduct our affairs in increasingly enlightened
and ethical ways, and lawyers and judges surely benefit by incorporating
the wisdom of the mental health sciences, a legal and cultural framework
grounded in adversarial processes can never escape them. How could it
Marriage of Duris & Urbany
On March 14, 2011, the Second Appellate District (Division Six) reversed
Santa Barbara trial judge Colleen K. Sterne's decision to discipline
a self-represented litigant (an unemployed attorney) for, among other
things, her earlier attorney's tactics in filing a motion to compel
document production evidently without first attempting to resolve the
disagreement informally. Discovery motions generate large fees and consume
valuable judicial resources.
At the end of the hearing on Wife's original requests (the custody
and support modification request she'd filed eight months earlier),
the trial court imposed $10,000 in attorney fee sanctions against the
Wife. Husband's attorney had evidently suggested that the Court do
this somewhere in his Reply paperwork, and reiterated the request in his
closing argument. The trial court took the bait. Its ruling was found
to be an abuse of discretion.
According to the Husband, by the time of the hearing on original OSC to
modify custody and support he had spent $25,000 for fees. Wife probably
spent a similar but slightly lesser amount since she was
in pro per for many months. Their fees and costs for the appeal probably were $20,000
more apiece (but Mr. Urbany handled his own appeal). Husband will get
none of his money back, and Wife will recover only a portion of hers.
Neither will achieve an emotionally satisfying resolution and their matter
likely obsessed their lives over the year and a half. This case is "a
pox on both your houses."
Wife's former attorney, Jacqueline Misho, was hired some six months
into the proceedings, initiated when the Wife filed a motion for "100%
physical and legal custody" of the parties' two children, plus
more child support. Attorney Misho took an aggressive stance in advancing
her client's claims and filed a discovery motion to compel production
of documents. This was unsuccessful. The attorney was then let go. A week
later the Wife's custody motion was heard. Although sanctions against
her had not been requested by way of a noticed motion (possibly because
there was little time in which to file one), Husband urged that she should
pay his attorney fees. At hearing end when Judge Sterne announced her
intent to hit Wife with $10,000 in sanctions as a share of the Husband's
costs in part based upon the prior discovery motion filed by Misho, Wife
complained "How am I being penalized for hiring [Misho]? How was
I supposed to know? I thought she was the best there was."
In my experience, "the best there [is]" often means the meanest
and toughest. Many family law attorneys advertise themselves in such a fashion.
I have no personal knowledge about either party's attorney beyond
what Google searches of their names retrieve and what a review of the
California State Bar website discloses. Both are reputed to be tenacious
divorce litigators. The problem with vociferous advocacy, irrespective
whether it occurred in this case or not, is that it tends to generate
a story of its own and so to increase the conflict noise volume - I confess
I know this from my own past personal experiences. It can infect the process
- there is something of a reciprocal feedback loop that occurs between
high conflict litigants and their attorneys that is difficult to resist.
Sometimes it seems to be the only choice, but usually that justification
is borne of the tensions within the conflict itself and is not necessarily true.
Family law litigation becomes particularly nasty when attorneys for each
side compete to inflame the trial judge with sound bite characterizations
about the other. Some clients demand this from their counsel or become
quite perturbed if their advocate doesn't respond in kind to these
sorts of attacks. Lawyers who are being paid large sums are pressured
to speak their client's minds (read: resentments) or risk a loss of
confidence by their client. Of greater concern to the integrity of the
legal professional generally, there are many family law attorneys whose
entire strategy is geared around slandering the other litigant (or their
attorney), often by exaggerating or misrepresenting the facts or history
of the case solely as a means of confusing the judge or just plain pissing
the court off in the hope of creating a favorable bias. Tit for tat then
threatens to overwhelm the process. This sort of behavior can include
ignoring the procedural rules for raising the issues to be decided, which
is a form of ambush that can be effective exactly because the answering
party is unable respond to an oncoming train if there is no forewarning.
I am not saying that this was either attorney's conduct in
Duris as I lack sufficient details to make a full assessment; instead I am pointing
out that adversary litigation programs lawyers and unrepresented parties
to use whatever tactics that might work, and sometimes to try them all.
This seems to be viewed as not only within the standard of care for zealous
advocacy but to be required by that standard. I can comment that one irony
of this case is that while the Wife's attorney allegedly failed to
act in a cooperative manner in choosing to file a motion to compel without
first attempting to solve the argument informally, Husband's attorney
seized upon that misstep to buttress a request for sanctions that was
never properly placed before the court. Sometimes these sound bites do
stick; they did here, at least with Judge Sterne. Unfortunately, under
these rules of engagement lawyers are thus encouraged to act as badly
as the talking heads we see arguing on many 'news' programs, something
that the American public views as a form of 'entertainment.'
This is one of the many dangers of adversarial litigation. Both sides
feel righteously indignant, and attorneys tend to internalize their client's
upset so that the boundaries between the client's experience and the
attorney's own blurs. It is a recipe for disaster, but understandable
given that emotional and angry ex-spouse pressure-cookers are letting
out steam on both sides of the table all at once.
The appellate court's decision doesn't give us sufficient facts
to discern whether the mother's initial application was well-merited,
but Judge Sterne's decision suggests she did not view mom's motives
(or her attorney's decision-making) to be in good faith. Wife's
request for 100% custody looks to be retaliatory and frankly when this
is true - and too often it is, even if not here (Judge Sterne referred
to Wife's prior discovery motion as a "fee sink") - trial
courts need to discourage such conduct in strong ways, especially when
it generates unnecessary fees for the other party or damages children.
Some people only respond to monetary slaps. I can merely speculate about
these proceedings without reviewing the trial briefs and reporter's
transcripts, and emphasize that reading 'between the lines' cannot
give the whole picture.
Still this is a published decision of the 2nd Appellate District. Following
on the heals of
Marriage of Fong released for publication on March 3, 2011, these decisions, along with
Marriage of Tharp, should be read together to glean the larger message. Reviewing courts
are holding everyone accountable - litigants, attorneys, and bench officers.
Due process and fundamental fairness require every side to cross their
own t's and dot their own i's. This is welcome instruction to
the entire spectrum of family court members and participants.
Be Careful What You Ask For,
and Consider Asking for Something Different
However inappropriate Ms. Duris' conduct may have been (if at all),
the appellate justices ruled that due process required that she be informed
in advance that the court was considering sanctions in order to have an
opportunity to muster and present evidence in opposition. Husband's
request for relief should have been properly placed before the Court and
not have been based upon offhand arguments buried somewhere in his reply
pleadings or first presented in closing argument. This is a good thing.
Last year's Elkins legislation spotlights the public policy goal of
ensuring transparency for self-represented and represented family law
Now, eighteen months later the odyssey is not yet ended - the Sterne decision
is sent back to the trial court (not likely to be Judge Sterne, who can
be disqualified as the judge on the next go-round) "with instructions
to conduct a new hearing with proper notice." In other words, to
relitigate whether sanctions should be assessed against the Wife.
In the meantime, she is awarded her costs on appeal. No appellate case
costs only $10,000, the amount in controversy that led to this appeal.
Hence, Husband - who won a short-lived victory at the trial court level
- will now likely end up footing not only the bill for his trial attorney,
but the Wife's attorney fees on appeal as well (be careful what your
attorney asks for!) The saga can be now rebooted. Might it end differently
this go-around? I'd wager (and I hope) the parties have had enough
and that will agree that Wife will forego her appellate costs while Husband
will waive a second sanction's motion. But divorce trance is stubborn stuff.
There are only losers in
Marriage of Duris. The children of these two warring parents seem utterly forgotten. The
take away is that using California court judges to beat up the person
you now find despicable (who then smacks back) may blow up in the face
of each contestant; given that people often view justice from the lens
of their own desires it is a small wonder that government regulated divorce
hasn't found a way to respond to such expectations, and possibly never
will until the entire system is jettisoned and recreated.
In the meantime try a different tact, if you wish it and if you can. Work
together to resolve your disputes collaboratively or through mediation.
Even if the other side seems incorrigible, you determine how you respond.
Remember, litigation induces trance - seek equanimity and send your kids
to college instead!
Here is a link to Marriage of Duris & Urbany.
Thurman W. Arnold, III, CFLS