Our third big fight on arriving in the US was initiated by Sunshine, Nick and Tom’s mom. She is the daughter of a very successful litigator, and jumped on her opportunity to cause trouble for me and my new family, the opportunity presented by my rather brusque departure from France to the US.
Setting up the framework for this page, here are Sunshine, me and the boys when things were deteriorating between us in the fall of 1991. It looks as if I took this one with the remote in my left hand.
I didn’t think that the French courts would change their minds after granting me custody of Nick and Tom on three different occasions, but I was wrong. That whole regrettable tale is recounted elsewhere on this site. That was the first big fight, to bring Nick and Tom back to live with us, which took us two years in French court. The second was obtaining our furniture from Arnaud Bourlé and his crooked moving company, also in French court. That took us three years. The third was a subplot of the first, and also took two years of fighting, this time in US court.
The US subplot was actually very hard to deal with. Sunshine cheated, with the apparent help of Myrna Britton, one of her father’s ex-wives, and of Child Support Services of Santa Cruz County.
Myrna in happier times with Tom in the Jardin de Luxembourg, July 1991. She couldn’t afford to give Sunshine and me a wedding present, but did visit us a few times in Paris. She has a very nice husband, whom she has been with as long as I’ve known her, or almost, but has never taken his name or her maiden name. Instead, she retained the surname of her former husband, Sunshine’s dad, even though she was not a lawyer when they divorced and thus did not have an established professional identity to protect. Rather, the divorce settlement paid for her law school, which she attended almost simultaneously with Sunshine.
The way I see it, and you’ll see the unrelated third party back-up for this below, Sunshine and Myrna enlisted the help of Child Support Services to steal money from me. It was quite cynically organized and managed, and only a conscientious and overworked magistrate (Commissioner Jana Kast-Davids was her name) in Santa Cruz County Superior Court stopped it from getting completely out of control.
Okay, okay, I know what you’re thinking, that they were not trying to steal money from me. No, they were attempting in good conscience to ensure that Nick and Tom were properly taken care of. I’m just a deadbeat dad whining about being obliged to pay. There’s not a lot that I can say in response to that obvious accusation, on a subject which evokes such easy stereotypes.
I’ll elaborate on the facts instead.
First, a “mea culpa.” I did not pay the child support ordered by the French court in full right away: in fact, I didn’t pay a lot of it at first. There were a couple of reasons for this. Sunshine’s refusal to even allow the boys to visit us cost me their plane tickets to New York (which I had purchased before Sunshine would not let them leave with us), their train tickets across the country (ditto), and a vacation for me Paris in October to help them stay in touch with their father.
That was thousands of real dollars which I had to spend because Sunshine violated the visitation parts of that same French court order.
This is not the way to make a favorable impression on a law firm that has just hired you! Santa Cruz Child Support Services informed WSGR that they were investigating me for “child support pursuant to W&I 11475.1,” which referred to child support being sought from a parent whose children had received welfare because the parent was not paying. “No big deal,” was the response when I pointed out that the letter was hopelessly misleading. No big deal for them, maybe.
Unfortunately, the French court ended up detaching visits from support. If that kind of detachment is commonplace, it may well be why there is so much maternal misbehavior of that type: the judges encourage it. The mother can ignore her duty to enable her children to visit their father without suffering any adverse financial consequence. For mothers looking for a cheap shot to take on her dearly departed husband, denying the children the right to visit their father is made to measure.
There was another reason for my initial refusal to pay in full: I was broke. It took me until March 1998 to find the job that enabled me to cover all our costs in the US and France, including all three court battles.
The costs of not having our furniture and affairs delivered by then were considerable: think about it. Three children, and a baby who arrived in January 1998, all needed clothes, toys and furniture to replace what the crooked moving company was withholding. We were obliged to furnish our home with the basics at least before I found that job.
I asked the French court for reduction of the ordered child support to reflect my reduced income and increased expenses, but that was eventually denied. Pending that French court decision, I held off on paying in full. That’s what proved to be a mistake. By the time I’d found the job and discovered that Sunshine would suffer no adverse consequences in France for denying the boys their ordered visits with us in the interim, I did owe a few thousand dollars in child support and thus looked bad.
Child Support Services neglected to mail me the documents, as legally required (another “no big deal”), and so I obtained them from the Clerk of the Court. Two things to note here: first, the post-it, my wake-up call that something sleazy might be going on; and second, the date of the registration. Child Support Services had notified my new employer before registering the foreign order, which is what entitled them to inform the employer. Guess what the reaction was when I complained about that? Yep, “no big deal!”
Let’s examine what happened to that few thousand dollars once Sunshine (presumably with Myrna’s help: this was her legal domain, not Sunshine’s) had manipulated the system with the assistance of Santa Cruz Child Support Services.
The key step was getting Child Support Services involved in the first place. They are very busy people, and typically only fulfill their principal mandate of recovering government funds (welfare) used to help defray the costs of children of a deadbeat dad. Of course, the funds to be recovered then are US government funds: that’s how the budget of child support enforcement is justified, recovering welfare payments to replenish the State’s depleted coffers.
Wait a minute: what was Child Support Services doing here? No US funds could have possibly been used, because the children were in France. What funds were Child Support Services seeking to recover? What induced them to apply their stretched resources to pursue me?
I found that out immediately. A French child support order needs to be registered in the US in order to be enforced here. Child Support Services registered this one with the Santa Cruz Court on May 26, 1998. They neglected to send me the file, although that is of course required, and I found it at the Clerk of the Court’s office, where a friendly clerk warned me on a post-it attached to the copy I obtained of the filing:
“If (Sunshine) Britton is related to (Myrna) Britton Esq., this could be the reason why the D.A. is so actively pursuing this matter, unusual when the right to support is not assigned to them.”
This is a key page of the affidavit that Sunshine, herself a lawyer, swore out in support of her demand for past-due child support. The affidavit is on a form which requires all “modifications” to the French child support orders to be attached. That’s why I circled that word. Sunshine neglected to attach a key “modification,” the final lower court judgment which terminated the earlier support obligation which she did include, thus reducing amounts due. She also detailed in her affidavit, one month at a time, the amounts past due, lying each month about the support due from January to July 1997. Naughty, naughty!
So the government was working for a friend of its people. Isn’t that sort of corrupt, in the common sense meaning of the term? The law said that Child Support Services should only intervene when there are special circumstances. Does that mean that they should intervene when there is a special friend of a Child Support Services prosecutor involved?
Legal tradition tolerates a little funny business on the part of prosecutors. Judges, many of whom are former prosecutors, turn a blind eye. The first bit of funny business here likely cost me a lot. The Child Support Office informed Wilson Sonsini, my new employer, that I wasn’t paying child support. They did this before the French Order was registered, in other words before the Office was legally entitled to start enforcing it. But by informing my employer, the Office was enforcing it. This sort of excessive zeal is tolerated because it theoretically speeds up recovery of the child support at issue. In this case, it probably did more to harm my prospects at the law firm than speed up payment of the support.
My favorite part of the process was how Sunshine, Myrna and Santa Cruz Child Support Services inflated the amounts of child support that were due.
Sunshine started this crooked manipulation quite deliberately (she is a lawyer herself) by omitting from what she had sent to Child Support Services our January 1997 final judgment of divorce in Versailles. This judgment had curtailed the minor child support initially ordered there in 1995 and paid in full through 1996. She knew that there was no more child support due after that final judgment until the Versailles appeals court stepped in beginning July 1997, but swore that it was due anyway.
By June of 1998, I was sending the final lower court judgment in Versailles to Ms. Mel personally, in an attempt to stop her office cheating. To no avail, of course! Here is the first page of the cover letter. Child Support Services filed pleadings claiming that there was “no need” for this judgment to be filed. Their reasoning must have been that they were only interested in documents which increased amounts due!
Santa Cruz Child Support Services then accepted Sunshine’s sworn lies as gospel, perhaps because Myrna was backing them up (remember that post-it!). Their accepting her affidavit as gospel sounds excusable, except for one small detail: lawyers all know that there has to be a final judgment before there is an appeal. Child Support Services was required by statute to check the facts of the case that they were enforcing, and this was a key fact that jumped off the page and slapped any lawyer in the face.
Where was that final judgment? What did it say? As it awarded sole custody to the father, could it have awarded child support to the mother? These are very simple questions that would have been addressed were the process not a little corrupt here, if friends had not been involved.
But friends were involved, and so Child Support Services too inflated amounts due. I carefully parsed through the numbers supplied by the Versailles Courts, Sunshine, me and Santa Cruz Child Support Services, and discovered that when they first got involved in April 1998 they added $1,500, randomly, to the already inflated amounts claimed to be due by Sunshine! Good grief!
My favorite moment in the whole process came in front of Commissioner Kast-Davids after I had painstakingly laid out in pleadings the proof that this $1,500 had been added to amounts claimed to be due. Kimberly Mel of Child Support Services stood up and asserted with conviction to the Commissioner that her Office had not added $1,500 to amounts due in this case. Ms. Mel offered no explanation of where it had come from, and made no attempt to suggest some miscalculation on my part. No, all she was able to do was make a blanket statement, a blanket self-serving declaration.
The Commissioner just looked at Ms. Mel, waiting for her to say something else, anything else, to justify her position. There was nothing else that she could say. If only I’d had a video camera!
Section K of my March 1999 pleading, detailing the Child Support Office’s additional $1500 due. It was not a complicated calculation. Why did they think that they could just take numbers out of a hat and force me to pay them? Frankly, a bit odd. But it’s very dangerous when the government starts thinking that it can cheat at will.
The Commissioner was understandably worried about this case, and before she left on maternity leave in September 1998 uneasily enforced the French Order with a limited monthly amount of arrearages ($123) added on to the monthly amount deemed due. It was the calculation of arrearages that I had already proved to be full of lies. She told us that she was looking for a means of not enforcing the French Order, but felt compelled to do so for the time being.
I breathed a sigh of relief, thinking that we were done. Silly me!
About a month later, I received another of those gut-wrenching messages from my employer’s payroll office. The amount to be withdrawn from my pay had been increased by close to $700 a month. What?! How?
“We’re done,” I remember telling them, gobsmacked. We had had the Hearing, the Commissioner had made her decision, and nothing had happened since! What was going on over there in Santa Cruz Superior Court?
As ever, it took me a while to figure it out, because these judicial officers did not bother to notify me directly, but Child Support Services had gone to see a judge on their own, without even telling me that they were going. This temporary judge then upped amounts payable without hearing anything that I had to say about it or considering why the Commissioner had arrived at a different conclusion in an adversary hearing (where both parties were present) a month or two previously.
Nick and Tom back with us at Easter 2000, before the furniture finally arrived. Brendan was our guest for the annual Easter egg hunt. From the left, Daphne, Alban holding Brendan’s hands, Charlie, Nick and Tom.
That “ex parte” Order (an order issued to one party without the other party being present or consulted) was the single most worrying aspect of this whole proceeding. Petty corruption, of the type described here, is pretty much epidemic, and because of that the US has constitutional safeguards to limit its effects. They are called the Fifth and Fourteenth Amendments of the Constitution. “Due process of law:” remember that phrase? “Opportunity to be heard.” These are not just catch-phrases. They are the pillars of individual rights here in the US. I know, it sounds pretentious, but it’s true.
The occasions are rare where when deviations are permitted from this fundamental principle. If imminent harm can be shown, for example, then the court can intervene without waiting for the other party to appear, or if a delay will cause irretrievable loss. The principle was established so that the power of the State, even of the courts, cannot be used indiscriminately. Both parties have a right to be heard in all but the most extraordinary circumstances. And one of these extraordinary circumstances is apparently having a case pending in Santa Cruz Superior Court!
Finally, two little sentences in June 1999 (at the bottom of the page) and the whole disgraceful process was done. The Child Support Office could no longer seek to collect child support from me. The Commissioner had been uneasy with the extent of the Office’s cheating throughout, voicing reserves every step of the way. In March, 1999, she had said that she was uncomfortable enforcing indeterminate amounts. But the Office was incapable of correcting its ways. It could have adjusted its calculations to take into account the January 1997 French final judgment, for example. If it had done so, the Commissioner would have been unable to throw out the other judgments, as she did. As a deal lawyer, I don’t understand this kind of blind rigidity, and the outcome here is a classic example of why it disserves the interest of the rigid.
The Santa Cruz exception is not at all amusing. There was no question that all the child support due was being paid on a current basis: it was, and the temporary judge could see that in the file. The only interest being advanced by the Child Support Office here was accelerating collection of arrearages. But these were in large part Sunshine’s and the Child Support Office’s own creation. Do you see why the Fifth and Fourteenth Amendments are there? You have an obligation to pay amounts that the State has both allowed to be inflated and inflated itself. Without the protection afforded by the Bill of Rights, the State could steal from you amounts that you never owed, unless you’re there to assert you’re interests.
I was finally heard by a judge, a permanent judge this time, about a month after the Child Support Office began withholding the excess from my salary. Of course, I couldn’t act unilaterally: I’m not the Government. I can’t cheat. Child Support Services attended and argued its case. This “hearing” lasted three minutes and occurred in a corridor in the courthouse: talk about cowboy justice!
The judge agreed that the prior ex parte treatment of arrearages was inappropriate, and ordered the matter to be brought before the Commissioner after her maternity leave. You were a bit late, mate! I was later told that these “ex parte” hearings were a quirk of the Santa Crux judiciary and held regularly. Santa Cruz does imagine itself at times to be on a different continent, but in this case the judges really ought to toe the constitutional line. Not everyone is as well placed as I am to address judicial excesses like this. Even minor excesses undermine the rule of law.
By May 1999, Santa Cruz Child Support Services was claiming arrearages of over $6,000 more than the most that could have been due under the French court Orders that they were enforcing. Why this misplaced ardor?
More blind rigidity! Sunshine turned down the $1500 (less the expense of filing an amended return) that I had offered her to sign the waiver and consent that she refers to in the first paragraph. I have no idea why. It made no sense. Maybe she didn’t think that I’d have paid it to her. Wrong.
The reason for it became clearer after the Commissioner finally threw out the French Orders because of the omission of the Versailles final judgment. Marie-Helene and I were expecting tax refunds in excess of $10,000, and Child Support Services was going to levy these refunds for Sunshine before they could be paid to us. I had to write to the DA himself to ensure that did not happen even though the Commissioner had already thrown out the French Orders. A corrupt Child Support Services prosecutor, working with her friends, is hard to curb.
The pleasing symmetry of this story is that the court’s stated reason for throwing out the claims of Sunshine and her corrupt friends, their omission of the Versailles final judgment, was precisely the deliberate lie that they all told to inflate amounts due. How many times are fathers who cannot defend themselves damaged or destroyed by cheating like this on the part of mothers and Child Support Services lawyers?
Sunshine’s little postscript to this miserable and protracted legal battle was right in character. I asked her to sign the waiver required by the IRS to allow me to take income tax exemptions for Nick and Tom in 1998, offering her the entire proceeds if she signed to complete paying off any arrearages arguably still due. She refused, after calculating (she prepares US tax returns for a living) that I would save (and she would thus receive) $1,500 if she did sign. Sunshine denied herself real money from that refusal: only the feds and the State of California made any money out of it. As I said, right in character: rigidity and its consequences.