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.
We see it all the time — divorced or divorcing parents who see every compromise on issues of visitation or custody as a loss and who return to the courts time and again to settle everyday disputes.
In a case to be released next week, Lori Hibbard vs. Tony Hibbard, the Connecticut Appellate Court upheld the decision of a trial court to pick a side in such a case, and to do so in a big way.
The couple divorced in 2007 returning in less than a year with disputes about money and visitation. In the next 4 years, the parties filed a total of 30 post-judgment motions between them. According to the appeals court, the disputes increasingly involved access to their daughter –only two years old at the time of the divorce.
Initially, it appears from the decision that the plaintiff mother had a fair amount of success managing to limit the defendant father’s access more and more. At various points, this even involved requiring that visits be supervised and that overnight visits be suspended.
By the time they returned to court to litigate their last set of four motions — two filed by each party– visitation by the father had been whittled to one weekday afternoon and two 7-hour weekend visits every other week together with some specified holidays and birthdays.
The mother’s two motions sought further restrictions on the father’s access, the father, for his part, asked that the mother be held in contempt of court for failing to allow him several scheduled visits and –more importantly –asked that custody of their child be granted to him.
The mother defended against the contempt motion claiming that although she had not allowed the visits it was because her daughter had reported being touched inappropriately by a friend of the father during an earlier visit.
The trial court did not find the mother’s claim to be credible noting in a detailed 20-page decision that, in the past, the mother had made various other unrelated claims that had not been substantiated by investigators or by the child’s therapist. She had argued that the child was afraid of her father, but again was not backed up the child’s therapist. The judge further noted that the mother had terminated therapy for the child when the therapist asked to meet with the father and had terminated longstanding daycare arrangements after a worker shared information about the child with the father’s current wife.
Concluding that the mother’s strategy was to eliminate the father from their child’s life, the judge awarded sole custody to the father, granting the mother visitation rights. Considering that she had originally been awarded custody and had historically succeeded, at least to some extent, in controlling the father’s access, it is a fair guess that this was an unexpectd result.
The mother appealed and lost.
In this blog, we have commented before about the toll that contentious and protracted custody and visitation litigation takes on families, and especially on children. The adverse effects of serious and prolonged parental wrangling on children — not just while it is happening but well into adulthood — has been amply documented.
For most families, the financial toll taken by the cost of serial court appearances makes a difference in the quality of life of the entire family and colors the attitudes of the adults towards each other. This, in turn, makes it even less likely that the children who are at least the official subject of the fighting, can enjoy a carefree, guilt-free and happy childhood.
We do not claim to be in position to judge or evaluate the merits of Ms. Hibbard’s attacks on Mr. Hibbard’s parenting. What we can say, however, from many years of experience, is that once custody and visitation issues have been addressed and decided — whether by agreement or by trial — future efforts to change the deal become subject to increasing skepticism. As lawyers, we must always respect the obligation of parent’s to do what they believe to be in the best interest of their children. At the same time, however, we must always counsel our clients — as the experienced lawyers in this case no doubt did — to consider at every step, whether they are motivated by genuine concern for their children or by relationship issues between the adults. At a minimum, they should be made aware that this will be a question that the court will consider in every instance.
After more than 20 years of marriage that ended in divorce in 2003, Connecticut resident Peter Larson seems to have been no stranger to the courts. When he returned to court in 2010 to seek a reduction of child support and alimony orders, he had two previous efforts at modification under his belt and probably felt confident that he would win his pro se bid for relief. After all, his income had gone from about $85,000 in 2003 to about $21,000 and he was unemployed.
And, in fact, he did come away with some degree of success without the help of a lawyer. The trial court recalculated his child support dropping it from its original level of $347 per week to $115 per week. In addition the court reduced his alimony order to $1 per year — not a permanent victory on the alimony front, but still an important win.
Unfortunately, Mr.Larson’s former wife, Matilde, did hire a lawyer who filed a counter-motion for contempt seeking past due child support and attorney’s fees. Ultimately, although he received a break in his current orders, Mr. Larson was also ordered to pay almost $100,000 in past-due support and was also ordered to pay almost $27,000 in attorney’s fees.
In a per curiam decision of the Connecticut Appellate Court scheduled for release next week, the Court upheld the trial court’s action.
As he had at the trial court level, Mr. Larson represented himself on appeal. His arguments of error were;
- The trial court hadn’t reduced child support enough
- The trial court should not have found him in contempt of prior orders
- The order of attorneys fees was excessive because the fees were unreasonable
The Court’s response to these claims makes it clear that Mr. Larson would have benefitted from consulting with a lawyer before filing his motion and, later, before filing his appeal. First, the court stressed the enormous discretion accorded to trial courts by appeals courts in family matters. It is never enough on appeal that the appellate judges might have decided the case differently. This means that strategic errors at the trail level can rarely be corrected on appeal.
Second, Mr Larson would have been cautioned that, because he was not fully in compliance with existing orders, he should have expected a counter-offense if he chose to seek a modification. Based on the amount of the arrearage that the court found, it is clear that his former wife had tolerated his non-compliance for a very long time up to the point that he made the first move in 2010. To the extent that Mr. Larson thought his current financial situation would — or even could — protect him from being held in contempt for falling behind, he was mistaken and any experienced lawyer would have made that clear to him.
Third, he would have been advised that law that requires courts to consider the respective finances of the parties when allocating responsibility for attorneys fees in divorce cases, does not apply in enforcement proceedings where there has been a finding of willful contempt. In such cases, attorney’s fees can be shifted to the party who failed to obey a court order as a simple matter of punishment.
While Larson complained that he had not been given a fair chance to challenge the reasonableness of the fees, the appellate court noted that, not only had the trial court afforded him the opportunity to do that, but had actually scheduled a separate hearing for that very purpose. Although Larson attended the hearing he did not, according to the court, present any evidence on the subject. It is not unusual for inexperienced litigants to expect the trial judge to take the lead in a factual inquiry.
In a 201o op-ed piece published in the New York Times entitled “A Nation of Do-It-Yourself Lawyers” John T Broadrick, chief justice of New Hampshire, and Ronald M. George, chief justice of California, stressed the disadvantages faced by litigants who, for financial reasons, feel compelled to go it alone. The authors urged members of the bar to step up to help mitigate the problem by offering so-called unbundled legal services so that litigants who could not afford comprehensive representation could nonetheless receive limited assistance in the form of consultation, coaching, and help with document preparation.
What many do not understand is that limited representation can be a minefield for lawyers since the rules in many states do not adequately protect them. We cannot reasonably expect lawyers who would otherwise be willing to play a supporting role in a lawsuit, to risk taking responsibility for the final outcome of litigation they do not fully control or to be required to provide additional or even comprehensive services without remuneration.
Still, in every community there are lawyers who recognize the problem and who are willing to address it as long as roles are clearly defined and the expectations are clear. When the stakes are high, it makes sense to seek them out.