I trusted my divorce lawyer, Vicki Parry, to assure the well-being of my children and my own (and their) financial future.
A lawyer myself, why did I delegate to another lawyer delicate tasks of such real importance? 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.
Mostly, I wanted to keep the children out of the inevitable parental conflict that accompanies divorce. You can’t keep them out of it entirely, of course, but the less that I was involved in the legal proceeding itself, the better for the children. They always feel way too much the conflict between their divorcing parents.
It didn’t work out as planned.
Every professional involved in this divorce proceeding prolonged the parental conflicts and exacerbated them, thereby systematically hurting the children.
And that started on Vicki’s watch, in the ways elaborated in this post.
She 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.
First Vicki, and then the mediator she recommended, Pascha Stevens, assumed responsibility for the legal aspects of the divorce. They were my safety net, with tons of experience in a field that I knew virtually nothing about.
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 watchful eye.
For example, my pretty French ex-wife and I ended up before a francophile judge who regularly vacations in France. At a minimum, Vicki should have used the “peremptory challenge” that I was entitled to under California law in order to remove this judge, who obviously risked favoring Marie-Helene. 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.
Vicki didn’t make the challenge then, and I didn’t discover it until almost seven years later, when Judge Almquist, the francophile, 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.
By then our francophile judge had ordered hearing after hearing, around 15 of them altogether, each of which stressed out Marie-Helene and me and exposed our children to more and more conflict. Vicki was responsible for handing me to this judge.
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 has 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.
Vicki ignored the potentially useful avenues of clarifying Marie-Helene’s assets disclosed in my letters to her. As a direct result, their nature and the revenue they produce is still being litigated to this day, and will continue to be litigated now that the appellate court has sent the case back to Santa Cruz Superior Court.
The boys have moved away during this six-year marathon, but have been for years, and in fact are still to some degree, exposed to its effects.
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 not 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.
“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.
By the time I figured it out, Vicki had fired me. Yep, in March 2013, I was on my own. The circumstances of her “withdrawal’ merit a brief mention. We had only a few days to respond to the Court’s draft decision, and she left me in the lurch to prepare an important document that I had no clue about. 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.
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 Stevens, 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.
At the time, I figured that Pascha must have had her reasons for this omission. That’s the problem when you trust the professionals whom you engage.
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.
Almost four years is an eternity in the life of a child of divorce.
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.
Why did Vicki not request a custody mediation in our case? How ignorant of the law and customary practice can she be with 30 years experience?
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). 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 and Pascha.
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.
I was to be paid the first $74,500, the down payment on the home which came out of mum’s estate (my separate property), and we were to split the balance of $342, 500, all of which we treated as community property. So my total should have been ($74,500 plus $171,250), or $245,750.
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 an equitable distribution!
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. It isn’t a business that’s worth anything.
Vicki neither clarified the facts appropriately nor argued the law (which I had showed her!) correctly. She then blamed me for not retaining the expensive business valuation expert whom she had recommended. That little combo of failure and blame was one of the reasons that the Court had Marie-Helene pay me so little for my share of the community property.
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 inform me of the procedure for substituting for a transcript for an appeal, a Settled Statement of the proceedings, convoluted though it is.
She failed to establish the foundation for a judgment of divorce at trial, and then did not tell me that the Court’s initial February 2013 decision omitted a judgment, which is a very important omission. The absence of a judgment in the Court’s initial decision involved going back to Court four or five times before a judgment was finally issued, in October 2014.
Of course, Judge Almquist too could have figured out that he might want to enter a judgment of divorce!
It is fair to say that Vicki Parry screwed up pretty much every material aspect of representing my interests in the divorce. I’m not saying that she alone was responsible for various outcomes of the trial and subsequent hearings that cost me (and the children) so much. There was a judge involved too!
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.
The letter on the left conveys one example of what looks like Vicki deliberately misleading me. She recommended against precisely the kind of psychological review that our custody dispute should have involved in the normal course: mediation ordered by the court at trial.
And she did so for fake reasons, its cost (court-ordered mediation is free), and because I’d used the wrong language in my letter to her. Yet again, she hurt the children.
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!