Wednesday, May 23 , 2018, 7:00 am | Overcast 57º


Brian Burke: About Your Divorce (Letter 46) — How Did Heep Win?

Dear Pinky and Spike:

While you guys are still “on vacation,” I’ll take advantage of your absence to continue Ralph’s story; it’s going to start to get ugly.

As Ralph and Jennifer prepared for the ex parte hearing, Ralph answered Jennifer’s questions while she transformed his words into a legal document. Ralph understood each question but couldn’t figure out why she was asking them — and she didn’t have time to explain.

They entered the courtroom at exactly 4 p.m. as the judge was taking the bench. Her attention went to Eunice Heep: “Ms. Heep, you have scheduled this ex parte motion, which requests the following orders:

» “An order restraining Ralph Robinson from coming within 500 feet of the home of Ms. Rebecca Robinson. This is based on Ms. Robinson’s fear that he might do her bodily harm. Everyone knows the case: Monterroso v. Moran. There must be evidence, not feelings.

» “You want an order requiring Mr. Robinson to pay Ms. Robinson $10,000 so she can pay her credit card bills on time. What’s the emergency there, a late fee?

» “And, of course, you want an order requiring Mr. Robinson to pay you $15,000 to finance motions like this one.

“Ms. Heep, I’m going to deny all of your requests unless you can say something very clever.”

“Your Honor, all I know how to do is state the law and state the facts. I am not clever and will disappoint you in that regard. I will also say I get a sense the court has prejudged me and my law firm, and your judgment is harsh. I will take up that problem at another time.

“The restraining order. Contrary to what you just said, feelings are facts. My client feels that her husband intends to murder her. That, Your Honor, is not ‘nothing.’ I’ve attempted to protect my client by asking you for a restraining order. If her husband murders her, I’m covered; I’ve done my job whether you grant or deny my request for the protection that might save her life.

“The credit cards. Again, my client has very real feelings of fear that if she does not pay her credit cards on time they will be canceled. Perhaps Your Honor has never been single and without a credit card. I have been and I can tell you that being a single woman without a credit card in this male-dominated society is simply not safe. My client’s safety doesn’t seem to be a matter of concern this afternoon and, of course, if her husband murders her, as she fears, it won’t matter if she has a valid credit card.”

Heep was on a roll and continued: “Lawyers need to eat. This case was handled on a rush, rush basis. I’ll be blunt: I do this work for the money and so does every employee in my office. There is nothing wrong with that; beware, the lawyer who works on a divorce for free.

“Payday for the people who worked on this case is next week. It is the Robinson’s divorce, and the Robinsons will pay for its cost. I need to collect money from them to pay my employees, and Ms. Robinson has no money. My employees and their families can’t wait the three-week notice period for an adversarial hearing on my fee request; I need the money now.

“Your biography is posted on the court’s website. You started in the DA’s Office and went from there to the bench. With all due respect, Your Honor, that information suggests you have never had a business of your own. You’ve never had the responsibility to make the payroll for the benefit of other hardworking people. Here’s a conjecture: The more paychecks a person has collected, the more difficult it is for him to imagine what it’s like to be responsible for making a payroll.

“That’s all I have to say, Your Honor, I’m sorry it isn’t clever.”

Judge Maryland was obviously insulted, annoyed and powerless to effectively do anything about it. She wanted to get off the bench, and she closed the proceedings by saying, “All three requests are denied. Ms. Heep, in the future you should be more careful about what you treat as a matter worthy of an ex parte hearing. You prepare the order for my signature and submit it to Ms. ahhh ...”

“Gaunt, Your Honor. Jennifer Gaunt.”

“Yes. Ms. Heep, submit the order to Ms. Jennifer Gaunt.”

With that she swished off the bench and into her chambers.

Jennifer Gaunt and Eunice Heep avoided looking at each other. Once they were on the sidewalk Ralph asked, “Did we win?”

“Yeah, Ralph, some win.”

Back at the law office, Ralph said, “Now, tell me what this “ex parte” hearing was about. The dictionary says it means “one side only,” but both sides were at that “ex parte” hearing we just came from. There were two sides present even though the judge didn’t know who you were and wasn’t interested in anything you had to say. I also want to know why you are not pleased that we won.”

“Okay Ralph. I don’t know how much you want me to tell you about the use of the term ‘ex parte.’ I’ll start by agreeing with you. In this county we misuse the term. The ‘ex parte’ part of what happened today was that the judge’s assistant scheduled a hearing before the judge could decide if the subject matter was worthy of an ex parte hearing. The hearings are available for the asking. It’s wrong, but that’s how it’s done.

“I’m not enthusiastic about the courtroom victory because Heep didn’t want any of the orders she asked for. She wanted several other things. She wanted to show you (and me): (1) that she could jerk us around by interrupting anything we are doing and compel us to go to the courthouse to play her game with only a few hours’ notice; (2) how easy it was to generate fees for herself (and for me); and (3) that she didn’t need a good reason for disrupting your life. Her requests were legally absurd, the argument was insulting and contemptuous, and the judge simply said, ‘Ms. Heep, be more careful next time.’”

Ralph asked, “So why don’t you do the same thing to her?”

“Ah, that’s the fourth thing she was trying to do, and it looks like she got what she wanted. Most of the important rulings in a divorce are predictable. One side will win and the other will lose. Here, Heep represents your wife. By using her tactics, you will believe that every time she wins it is because of those tactics. You won’t pay attention to what she loses. If we play by her rules, you will notice the predictable losses — and you will think the losses result from her tactics and, therefore, you won’t pay attention to what we win. You are likely to seek a more aggressive lawyer. We don’t work that way, and if we did, would you want to pay for it?”

“I guess not, but if it’s what you have to do to win, I’m thinking that I can’t afford to lose.”

“Well, all of this is really beside the point. A divorce is basically about dividing by two, and you don’t win or lose a division by two.”

Jennifer felt that several of the other statements Ralph made during the afternoon required a strong reply, but before she could say anything, her partner, Ashley Constanzo entered the room. “Jen, here’s a fax of Heep’s order for the judge’s signature. That was sure fast.”

Jennifer read the two-page document. It said that the request for fees and credit card money had been denied. But the order began, “Good cause appearing, Ralph Robinson is ordered to maintain a distance of 500 feet or more from the residence of Rebecca Robinson.”

Jennifer groaned, “I’ve seen her do this before. Heep has prepared an order that says the opposite of what the judge ruled. She does it in the hope it will just slip by, and I’m sure it often does. If she gets caught, it’s a secretary’s error.”

“Ashley, you call judge’s assistant. Tell her that I need an immediate ex parte meeting with the judge. The reason it has to be immediate is to prevent the judge from being the victim of fraud.”

“Ralph,” Jennifer commanded, “come with me for another view of the justice system.” It would turn out to be a view of the system Jennifer had never imagined.

Your friend,

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).

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