Talk about being a day late and a dollar short! In Michael Farren’s 2010 divorce, the trial court found that Mr. Farren had destroyed his substantial earning capacity by physically attacking his wife and ordered that 75% of the marital assets be awarded to her.
Unhappy with the outcome, Mr. Farren filed a post judgment motion with the trial court on the 20th day after judgment –just under the wire to preserve his right to appeal the decision. But there was a problem. After initially stamping the motion “FILED”, the clerk noticed that Mr. Farren had forgotten to pay the required filing fee for a post judgment motion and faxed the motion back to him. Mr Farren paid the fee and re-filed the motion the following day but the trial court refused to hear the motion because of the late filing.
After an appeals process that has taken almost three years, the Connecticut Appellate Court in a decision released this morning denied his appeal, agreeing with the trail court that one day late is still late.
That wasn’t the only fatal mistake Mr. Farren made regarding the rules of procedure. The rules required that he file a memorandum of law together with his motion. He hadn’t. Ms. Farren moved to dismiss the motion and won. Mr. Farren argued that because he had corrected the oversight by filing a memorandum after the fact, no harm had been done. The trial court was not persuaded. Again, the Appellate Court agreed with the trial court that rules are rules and strict enforcement of them can never be error.
It is not possible to tell from the decision whether Mr. Farren was representing himself at trial. He appeared pro se in Appellate court but was joined by counsel on the brief. In a way it doesn’t matter whether the deadlines were missed by a pro se individual or by his lawyer. The result was the same.
Mr. Farren may never have been able to alter the division of assets in his divorce case had be been allowed to bring his appeal on the merits, but he didn’t get the chance. This was an appeal restricted to issues of procedure.
The role of the Appellate Court in situations like this is not to substitute its judgment for that of the trial judge, but just to determine whether the trial judge committed clear error or an abuse of his or her considerable discretion. In this case, all the trial judge had done was enforce the rules of court.
Lawyers often speak among themselves about the difference between deadlines and “drop-deadlines.” In this case, at least for Mr. Farren, failing to file his post-judgment motion within the 20 day appeal period was a drop-deadline — a lesson that took three years to hit home. Appeals are long, arduous, and costly and in the case of family law, not often successful.
In this era of increasing pro se litigation, it is important to understand that courts are not necessarily willing to bend the rules depending on the experience or lack thereof of those who appear before them.
In a decision released this week, the Connecticut Appellate Court upheld a ruling by the trial court that the court did not have authority to allow one member of an unmarried couple to buy out the other in order to separate their interests in a jointly held home — a solution routinely applied in divorce cases.
Dean Fusco and Robbin Austin had been in an almost 40 year relationship and for many years had shared a home that they had purchased together. When they broke up, Dean moved out of the home they had owned together for about 23 years and Robbin remained in the house but ultimately, like many estranged couples, they were unable to see eye-to-eye on a fair way of dividing their possessions including the equity in their house.
Since they were not married, Dean and Robbin could not take advantage of the relatively short process of divorce which typically takes between 5 and 12 months to accomplish except in the most hotly contested cases. Instead, they were relegated to the ordinary civil docket which often moves even more slowly. In order to receive his share of equity in the house, Dean had to file an action for partition — a procedure designed to separate joint ownership in real estate.
Not only is the procedure more cumbersome and, in most cases, more drawn out than divorce litigation, the remedies available are also limited.
Because Robbin was living in the home and wanted to remain there, she asked the court simply to determine what the house was worth and to award Dean his share based on the evidence of what he had contributed over the years both financially and in labor and management. That was, after all, what any divorce court could do and probably would if the parties were already separated.
The court said no. Historically, partition in Connecticut can have only two results. One is called ‘partition in kind’ . That means the property is literally divided up and each party walks away owning his or her part of the whole. That may work fine with open land or a farm, but can hardly work in a single family home.
The other option is ‘partition by sale’. This is used when the nature of the property doesn’t lend itself to a line drawn in the sand. So, because this was a single family home, that is what the court ordered.
Robin, who didn’t want her house sold, appealed the trial court’s decision.
There is a statute she pointed to that does allow the court to order one party the option of buying out the other even when they are not married and must go the partition route.
The statute did not apply here. The problem, according to the Appellate Court who denied the appeal, was that this third option only applies in a small class of cases in which the party to be bought out has an interest deemed to be “minimal”.
Even though Dean had contributed less than Robbin financially, he had worked on the house over the years and the trial court had not considered his interest to be minimal.
The lesson of this case is not that anyone considering buying a house with a significant other outside of marriage or civil union should marry. The lesson is that partners in real estate purchases, whether or not they are in love, need to have a clear written agreement about how their interests will be determined in the event that their partnership some day ends.