Why did I engage my divorce lawyer, Vicki Parry?
Well, you’ve heard the old joke about the lawyer who represented himself? He had an idiot for a client!
And I am NOT a divorce lawyer. Nor do I ever go to court for clients.
I also wanted to keep the children out of the serious parental conflicts that was an integral part of this divorce.
It didn’t work out as planned.
Every professional involved in this divorce proceeding, including Judge Jeff Almquist, prolonged the conflicts and exacerbated them.
Vicki came very well recommended. “She’s a real terrier,” announced a colleague, “and if you don’t hire her your ex will! She’s THE family lawyer in the County.” Gary Britton, a well-respected Santa Cruz lawyer and grandfather of my sons Nick and Tom, confirmed her recommendation.
I felt safe.
Always trying to avoid conflict, I entered into mediation with Marie-Helene before the mediator recommended by Vicki, Pascha Rose (fka Stevens). I made the reasonable assumptions that Vicki was on my side and Pascha was in the middle.
Ignorance is bliss, and I remained comfortable throughout the mediation and until the trial itself, which took place 2-1/2 years after I moved out, on October 23, 2012.
Unfortunately, by that time, a lot of the damage had already been done, much of it under Vicki’s and Pascha’s supposedly watchful eyes.
Pre-trial
For example, the divorce took over two years to come to trial. I wanted to move forward as quickly as possible, but agreed to mediate while we waited. The mediation ground to a halt mid-2011, after Marie-Helene refused to contribute to its cost, but Vicki told the court that we were still in settlement discussions until June 2012.
It was then that she announced that we were ready for trial. By that time, Judge Jeff Almquist had moved from his position as Presiding Judge in Santa Cruz – he was Presiding Judge during 2010 and 2011 – to the Family Law Court in Watsonville. She had not only prolonged the time that I paid a ton of support, but did so until a known francophile judge who regularly vacations in France would be responsible for the outcome of my case.
My French ex-wife must have been delighted!. Why did Vicki wait for a year until Judge Almquist was ensconced in Family Court before saying that we were ready for trial? Was she too busy to protect my interests? Or was she advancing Marie-Helene’s?
The latter theory is supported by her failure to use the “peremptory challenge” that I was entitled to under California law in order to remove this francophile judge, who obviously risked favoring Marie-Helene. If she had been simply too busy to handle a trial of this case, she would have made the challenge. You don’t even have to justify such a challenge: it’s granted if you make it. But you have to make it at the beginning of the case. She didn’t, and Marie-Helene made out like a bandit.
I finally discovered this challenge myself, almost seven years later, when Judge Almquist was finally reversed by the Sixth District Court of Appeal for one of his unjustifiable holdings. That reversal gave me the right to make the challenge myself, which I duly did, with a big sigh of relief.
Then there is what is called discovery, the part of the procedure where you are entitled to make the other party show his or her hand. Marie-Helene’s lawyer did so with me, sending me written questions and interrogating me in person, and derived very little benefit from it: my limited assets are all visible and above board.
While Vicki did send Marie-Helene written questions, she did not interrogate her in person or otherwise follow up on the very real assets her answers revealed. In fact, she spent the weeks before the trial interrogating me again and again, and not Marie-Helene! This caused real harm that I only realized as I learned more about applicable law.
Vicki, of course, knew discovery law inside out: it had been a mainstay of her career for about 30 years!
Here’s the key law that I did not know myself: each party’s separate property does matter in a divorce case. I knew that each party retains her or his separate property when community property is split between the spouses, but not that separate property has a bearing on several aspects of the case going forward.
Most importantly, separate property counts in the calculation of spousal support: they even count in awards of attorneys fees! The reason is simple: the wealthier spouse in terms of assets should not be able to claim poverty simply by virtue of not earning as much as the other spouse.
Now Marie-Helene had substantially more separate property assets that I have. I don’t know all of them, but I do know that she and her brother still own two apartments in a desirable area of Paris, and that these apartments are easily rented out. There is definitely income there, although Marie-Helene claims that it belongs to her 96 year-old father.
It is all of her French assets that Vicki should have sought to clarify and expose in discovery, especially those that I cannot identify.
Vicki did almost nothing to put Marie-Helene’s relative wealth before the court, even though I fully informed her about it.
Trial
At trial, my key concerns were typical: I wanted (1) the Court to reduce the $3,500 per month in temporary alimony that I was paying (on top of child support of $3675), (2) to continue to look after the children about half the time, and (3) to split fairly our accumulated property: not a lot of that, but enough to make a difference to my retirement.
First, spousal support. By ignoring Marie-Helene’s substantial separate property and not bringing it before the Court right at the beginning, Vicki allowed my income (Marie-Helene was barely working) to become the sole factor taken into account in setting spousal support. I was screwed!
In his February 2013 Decision the judge fixed “permanent” spousal support initially at $4,000 per month (increasing it to $5,000 later!), $500 higher than the “temporary” spousal support that had been set in the mediation. The ordered increase in spousal support, a peculiar order, was to occur when Charlie turned 18 and his mom was no longer entitled to child support for him. Judge Almquist apparently wanted to assure that Marie-Helene benefited from the same monthly income from me for years, whether or not she was supporting a child. And she did.
“Temporary” spousal support is typically higher than “permanent” to allow a non-working spouse to begin to make a living again. Of course, Vicki failed to focus on this in her pleadings on my behalf, enabling Judge Almquist to do the same and increase spousal support twice in one decision!
Then, in March 2013, after we received the court’s draft Decision, Vicki fired me. I had only a few days to respond to the Court’s draft decision, perhaps change it, and she left me in the lurch. Thanks Vicki!
In June of 2014, after Vicki was long gone, I ran into a divorce lawyer at a party and asked her what to do about Marie-Hélène’s not really working four years after I moved out.
A less experienced family lawyer than Vicki, the other lawyer immediately responded that I should request a “vocational assessment” for Marie-Hélène. This assessment involves an impartial expert examining a person’s work experience, qualifications and intangibles to arrive at an expert opinion on what she can earn.
As soon as I heard this, I loved it. I worked for almost six years in Paris with Marie-Hélène in a bilingual law firm (before we dated), and she aced everything she did there. I know that she can earn if she wants to.
When a vocational assessment was finally conducted in our case, the expert opined in 2015 that Marie-Hélène’s earning capacity was easily and quickly $35 -45,000, and would be significantly higher in three or more years. This should have been done years earlier if Vicki had done her job properly. She didn’t even mention this Assessment to me. Yet it would have supported Judge Almquist imputing income to Marie-Helene that would have reduced my alimony and child support obligations.
These rookie errors on alimony (and let’s face it, Vicki, like me, is a long way from being a rookie!) were nothing compared to how she mishandled child custody at the trial and before.
Child custody had been out of sync since the mediation. Our mediator, Pascha Rose, had obtained my agreement initially to pay Marie-Hélène child support based on their mother looking after the boys 80% of the time. I didn’t know it then, but that’s the percentage used when the children visit the parent whose home they don’t live in one weekend in two, but otherwise stay at home.
In our case, the schedule involved Marie-Helene looking after the boys only 55-60% of the time, and me the other 40-45%. Perhaps in order to justify her 80/20 allocation of child support, Pascha did not have us put the custody schedule in writing, even though this schedule existed and was being practiced.
When the mediation unraveled, the boys were stuck with constant debates between the parents about silly details that should have been included in the mediated custody schedule. These debates started in late 2010, and continued through the trial and beyond until I had them fixed in mid 2014.
During the trial, the days and times of the custody schedule that we were practicing, its nitty-gritty, were not raised at all, even though I had summarized them for Vicki in an email before the trial, both what was agreed and what was subject to debate because of Pascha’s failure to put it on paper.
That email is below on the right. In terms of expense for each parent, the debate was around 2-1/2 breakfasts per week. How much is that in percentage terms?
The other big question here is why this was discussed at trial at all. Here is Family Code Section 3170 (a): “If it appears . . . that custody, visitation, or both are contested, the court shall set the contested issues for mediation.”
This means that if there is a debate about child custody, the law requires that the judge refer the debate to an impartial mediator who has psychological training and is experienced in looking after the children of divorce. This expert mediator then duly determines the custody schedule in the best interests of the children.
Vicki did not ask that our custody dispute be referred at trial to the custody mediator.
Instead, Vicki Parry, John Hannon, Marie-Hélène’s lawyer, and Judge Jeff Almquist enacted what I can only describe as a charade, in which they debated abstract percentages of time that the boys were alleged to spend with each parent. Vicki’s post-trial brief gives some sense of this charade:
The Court is confronted with the fact there is a difference of opinion between these parents as to how much time Charlie and Alex spend with their dad. Actually, the dispute regarding timeshare seems to be as to Charlie only. Marie-Helene testified Alex spends 20-25% of his time with his dad while she contended Charlie only spent about 5% of his time with his dad. Marie-Helene’s I&E states both boys spend 20% of their time with their dad. . . .
The problem with calculating Charlie’s timeshare is he is seventeen, has a car and spends time away from both of his parents. . .
Instead of doing what the law requires, all three of these professionals deliberately appear to have put on a show. I may have been the only lawyer in that courtroom who did not know what was going on.
Vicki should obviously have requested a custody mediation in our case, to remedy the differences of parental opinion which I had alerted her to. Her failure to do so was not simply ignorance of the law, despite her 30 years of experience; she even refused my suggestion that she ask for professional input on what would be best for the boys.
When I finally requested custody mediation during the spring of 2014, after discovering it for myself, its refreshingly prompt result was that custody was split 50/50 as of July 2014.
That’s how it should have been in late 2010, if Pascha had been doing her job properly, and in late 2012, if Vicki had been doing her job properly.
Underlying this fudged child custody procedure was child support. The State has attempted to ensure that this is calculated fairly, in accordance with software prescribed by law.
But as in all software, garbage in equals garbage out.
In this case, the garbage that went in was the percentages of time the children were with each parent that I had mistakenly agreed to in the mediation, because I didn’t know the rules and trusted the mediator, and which were brought forward into the trial, because I trusted Vicki and she did not demand the custody mediation that the law requires.
What came out were four plus years of my overpaying child support as if the boys were only with me one weekend in two, while they were actually with me at least half the time overall (almost the whole time later on as Marie-Helene reduced her already limited expenditures on the boys). So not only did I pay a lot more per month than I should have to Marie-Helene (how much more? maybe $1,500 a month?) for all that time, I also paid more than my share of the boys’ expenses for them.
A double whammy which, yet again, I owe to Vicki, Pascha and Judge Almquist.
Of course, Vicki also did pretty much nothing to ensure a fair split of community property. Have you noticed the dispiriting consistency about all this!
We had two major assets when we separated in April 2010, the equity in our home and about $42,000 in an RV. Vicki knew this since my 30-page 2011 letter to her. The only question had been whether a portion of the value in the RV could be claimed as my separate property. Vicki thought not.
Here’s the calculation which Vicki should have made for the court (approximate numbers): total assets = [house equity of $775,000 (appraisal) less mortgage balance of $400,000], or $375,000, plus the RV value of [$53,000 (sale price) less loan amount ($11.000)], or $42,000. That’s a total of $417,000.
Ror an equitable distribution, I should have been paid $155,000, or the first 20% of the home’s value, equal to the percentage down payment on the home (which came out of mum’s estate and was my separate property), and we were to split the balance of $262,000, all of which we treated as community property. So my total should have been ($155,000 plus $131,000), or $286,000.
Needless to say, Vicki did not make any calculations like this for the court. She contented herself with informing the court about the house value and mortgage, completely forgetting the RV, and made no proposed allocation of the $417,000. When Judge Almquist was done, which of course took two more years (he’s a model of judicial efficiency!), I received $140,000 and Marie-Helene kept the house, now worth $900,000+ and subject to a mortgage of $300,000+.
Now that’s not quite an equitable distribution!
Judge Almquist proposed it during a mediation session in which he voiced the opinion that it was reasonable, and suggested that disagreeing with him might be against my interests.
Vicki did address at length, because Marie-Helene’s lawyer had raised it, the asserted value of my business. I have practiced law alone since 2005, five years before we separated. One client brought in 60% of my revenue from 2006 through 2015. That looks much more like a job and a side hustle than a law firm having its own value independent of me.
You can lose a job, as I did in late 2015. A solo practice isn’t a business that’s worth anything. Judge Almquist would have known this, having spent ten years in private practice as a business and bankruptcy lawyer. But again he allowed himself to be led by Vicki’s failures to brief him correctly.
Vicki neither clarified the facts appropriately nor argued the law (which I had shown her!). She then blamed me for not retaining the expensive business valuation expert whom she had recommended. That little combo of failure and blame, plus of course Judge Almquist’s going along with it, reduced by $70,000 my buyout for my share of the community property, our home and the RV. I ended up with less than my original separate property downpayment on the home.
Vicki made other very significant mistakes. She failed to order a court reporter, meaning that there was no transcript of the trial, making any appeal at that point such a laborious process that it was effectively precluded.
She failed to establish the foundation for a judgment of divorce at trial, and then did not tell me that the Court’s February 2013 decision omitted a judgment. Of course, any judge worth his salt is not going to “forget” to make a judgment!
Its absence here involved going back to Court four or five times before a judgment was finally issued, in October 2014.
It is fair to say that Vicki Parry, ably assisted by Pascha Rose and Judge Jeff Almquist, screwed up pretty much every material aspect of representing my interests in the divorce.
But how does a competent lawyer with such a great reputation screw up so badly? To my mind, it has to have been deliberate. Remember, she’s been practicing family law for 30 odd years. Maybe a couple of screw ups could have been inadvertent, but not systematic failure on just about every important issue.
I have no idea why she would do this, only speculation without proof. So I will not elaborate. But she failed to advance my interests here, which was after all her job, again and again. Coincidentally, by doing so she advanced Marie-Helene’s, as did Pascha and Judge Almquist.
By not pursuing her unpaid invoice after the trial, maybe $11,500, Vicki did offer some confirmation that she knew that she had screwed up big time. How many lawyers casually let their invoices go unpaid? I wrote her a letter or two pointing out her errors that I had already figured out by then (just a couple of them: it took me years to figure all this out) in early 2013, and she never asked again.
Of course, I had already paid her $9-10,000.
As I wrote to her when she brusquely withdrew as my lawyer, in my case Vicki Parry made professional responsibility appear an oxymoron!
