rticulating my loss of faith in the justice system, in which, heretofore I’d had the utmost respect, can be best served with a pithy statement attributed to Oliver Wendell Holmes, “This is a court of law, young man, not a court of justice.”
Holmes, the younger (his father also an Oliver Wendell) a graduate of Harvard University was named by Teddy Roosevelt to the Unites States Supreme Court just after the turn of the 20th Century. Influenced by Darwinism, jurist Holmes was also a strong proponent of moral relativism and earned much criticism during his service, albeit one of the longest in American history. He stepped down from the bench at a ripe 90 odd years of age.
By November 2005, more than 18 months had transpired since the local court legally terminated my marriage and DF had still not yet provided a Quitclaim to my home, nor had he proffered other elements of the Court’s mandate either. It was not only frustrating but a crippling financial burden as well. I’d managed to eek out an existence without income but funds were at an all time low.
What was more crushing was the apparent inequity in the application of law. The local judge strictly refused to offer me the opportunity to annul my marriage despite clear evidence of fraudulent intent was available in written form and scathing testimony by a guest at our wedding. No, the judge steadfastly refused to hear an annulment claim and also refused to hear the issues related to fraud (marital assets whistled away prior to disappearing) in the termination of the marriage as well. In accordance with court procedure, in advance of the mandated mediation and settlement conference, I'd provided full disclosure of all assets, both joint and personal, that remained in my possession. DF failed to provide any disclosure of his, even though he'd helped himself to funds in the bank accounts and the equity proceeds from the refinance of my home, and driven out of my life in a vehicle that was my property before marriage, and titled as same. Instead, the judge insisted that he'd address equitable distribution of the remaining assets, as he saw fit and advised me to seek recovery of anything else in another law suit. Accordingly, the judge preserved my right to take separate action against both offenders in a separate claim, upon consummation of the divorce.
By November 2005, more than 18 months had transpired since the local court legally terminated my marriage and DF had still not yet provided a Quitclaim to my home, nor had he proffered other elements of the Court’s mandate either. It was not only frustrating but a crippling financial burden as well. I’d managed to eek out an existence without income but funds were at an all time low.
What was more crushing was the apparent inequity in the application of law. The local judge strictly refused to offer me the opportunity to annul my marriage despite clear evidence of fraudulent intent was available in written form and scathing testimony by a guest at our wedding. No, the judge steadfastly refused to hear an annulment claim and also refused to hear the issues related to fraud (marital assets whistled away prior to disappearing) in the termination of the marriage as well. In accordance with court procedure, in advance of the mandated mediation and settlement conference, I'd provided full disclosure of all assets, both joint and personal, that remained in my possession. DF failed to provide any disclosure of his, even though he'd helped himself to funds in the bank accounts and the equity proceeds from the refinance of my home, and driven out of my life in a vehicle that was my property before marriage, and titled as same. Instead, the judge insisted that he'd address equitable distribution of the remaining assets, as he saw fit and advised me to seek recovery of anything else in another law suit. Accordingly, the judge preserved my right to take separate action against both offenders in a separate claim, upon consummation of the divorce.
All well and fine you say? Well, yes, I suppose except for the fact that bringing a second action costs money, though and in light of the fact that we would not have an opportunity to present the complaint and causes of action before the Court, it would turn out to be a fruitless offer, in the end. Needless to say, at the time, recognising that this would be the only means of retrieving what had been ferretted away by DF in advance of petitioning for divorce a second time in our short two-year marriage, I did file the complaint, which the Defendants defaulted on by failing to answer a complaint that they knew had been preserved. We believed that with a default judgment, all that remained would be a determination of the damages, but the default, however, was set aside by the very judge that presided over the divorce complaint!
An August Motion for Reconsideration of the order was also denied. No reasons were offered by the judge, other than that my attorney had not returned to work after his quadruple bypass surgery soon enough, by his estimation and that he wished to hear and decide the case on its merits. No problem! If merits were going to be considered, we'd have no problem showing that our causes of action were indeed warranted.
An August Motion for Reconsideration of the order was also denied. No reasons were offered by the judge, other than that my attorney had not returned to work after his quadruple bypass surgery soon enough, by his estimation and that he wished to hear and decide the case on its merits. No problem! If merits were going to be considered, we'd have no problem showing that our causes of action were indeed warranted.
I worked alone to read up on everything I could find related to all Court rulings on default judgments. The lower court judge had cited “excusable neglect on the part of unsophisticated laypersons” as satisfactory cause for their failure to answer the complaint, but as far as I could see, the law calls for the twin conjunctive elements of “good cause” and a “meritorious defense” and that had not been provided.
I had only my computer and the Internet at my disposal to search for applicable citations and formulate a solid legal argument for my case. I found Alken Ziegler v Waterbury Headers Corp, where the Supreme court found the Court of Appeals had erred in believing that the good cause prong of the rule was satisfied by a showing of a potentially meritorious defense. "Potentially" meritorious would not apparently meet the requirement. It was conceivable that strangers could perceive DF and KMC as unsophisticated, and that theirs was possibly excusable neglect, but what of the meritorious defense element?
The lower Court had also affirmed Defendants Motion for Summary Disposition as to the remaining counts of fraud and IIED. It’s posture was that a tort for Intentional Infliction of Emotional Distress had not yet been recognized by the Supreme Court as a separate cause of action and certainly not in the divorce context, yet my research uncovered cases before the Court of Appeals, Nelson v Ho, Haverbush v Powelson, Campos v General Motors Corp and Warren v June’s Mobile Home Village & Sales, Inc., where the law clearly recognised IIED as a separate cause of action. Further, in Doe v Mills, the question as to the sufficiency of a claim of IIED it was opined was for a jury to decide, and yet another recent pertinent but unpublished case, Bhama v Bhama, dealt with IIED within the marital context and in a divorce setting. Lastly, court rule states that summary disposition is not appropriate where there is a genuine material issue of factual dispute. In Stebbens v Concord Wrigley Drugs, the test, with benefit of doubt afforded to the party opposing the motion, is if the record could be developed which would leave a material issue upon which reasonable minds could differ. The burden, upon the moving party, to support its position with evidence showing that there are no disputed facts. That burden would be upon the Defendants and according to Smith v Globe Life Insurance Company, if there exists a genuine issue, which should be decided by a trier of fact, then a motion for summary judgment cannot be granted (just as in Metropolitan Life Insurance v Reist). Moreover,a lack of specificity that the lower Court cited as to the fraud allegations, (admittedly, in my attorney’s haste to prepare within hours for a hearing, many citations were not included) the Court of Appeals have opined that opportunity for further amendment is appropriate. Court protocol also recognises that the specificity of an amended complaint need only be sufficient to give Defendants notice of the allegations. If a Court found any insufficiency then it should offer the party an opportunity to amend, and summary disposition is only appropriate when amendment would derive no further purpose. So how could the Court not have offered my attorney such opportunity? All of this caused me to wonder how our case had failed to meet these standards of review and court rules.
Yes, at this point in the process it was difficult not to agree with Mencken when he once stated, “A judge is a law student who marks his own examination papers” or indeed Raymond Chandler, who claimed “ The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer".
There would be yet a need to bring the case before the Court of Appeals and an outlay of yet more funds to see that the terms of the Consent Judgment of Divorce were honoured and that the circumstances arising from the Defendants fraud and consipiracy, the right for a cause of action which had been specifically preserved, were, at the very least reviewed by a Court.
I had only my computer and the Internet at my disposal to search for applicable citations and formulate a solid legal argument for my case. I found Alken Ziegler v Waterbury Headers Corp, where the Supreme court found the Court of Appeals had erred in believing that the good cause prong of the rule was satisfied by a showing of a potentially meritorious defense. "Potentially" meritorious would not apparently meet the requirement. It was conceivable that strangers could perceive DF and KMC as unsophisticated, and that theirs was possibly excusable neglect, but what of the meritorious defense element?
The lower Court had also affirmed Defendants Motion for Summary Disposition as to the remaining counts of fraud and IIED. It’s posture was that a tort for Intentional Infliction of Emotional Distress had not yet been recognized by the Supreme Court as a separate cause of action and certainly not in the divorce context, yet my research uncovered cases before the Court of Appeals, Nelson v Ho, Haverbush v Powelson, Campos v General Motors Corp and Warren v June’s Mobile Home Village & Sales, Inc., where the law clearly recognised IIED as a separate cause of action. Further, in Doe v Mills, the question as to the sufficiency of a claim of IIED it was opined was for a jury to decide, and yet another recent pertinent but unpublished case, Bhama v Bhama, dealt with IIED within the marital context and in a divorce setting. Lastly, court rule states that summary disposition is not appropriate where there is a genuine material issue of factual dispute. In Stebbens v Concord Wrigley Drugs, the test, with benefit of doubt afforded to the party opposing the motion, is if the record could be developed which would leave a material issue upon which reasonable minds could differ. The burden, upon the moving party, to support its position with evidence showing that there are no disputed facts. That burden would be upon the Defendants and according to Smith v Globe Life Insurance Company, if there exists a genuine issue, which should be decided by a trier of fact, then a motion for summary judgment cannot be granted (just as in Metropolitan Life Insurance v Reist). Moreover,a lack of specificity that the lower Court cited as to the fraud allegations, (admittedly, in my attorney’s haste to prepare within hours for a hearing, many citations were not included) the Court of Appeals have opined that opportunity for further amendment is appropriate. Court protocol also recognises that the specificity of an amended complaint need only be sufficient to give Defendants notice of the allegations. If a Court found any insufficiency then it should offer the party an opportunity to amend, and summary disposition is only appropriate when amendment would derive no further purpose. So how could the Court not have offered my attorney such opportunity? All of this caused me to wonder how our case had failed to meet these standards of review and court rules.
Yes, at this point in the process it was difficult not to agree with Mencken when he once stated, “A judge is a law student who marks his own examination papers” or indeed Raymond Chandler, who claimed “ The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer".
There would be yet a need to bring the case before the Court of Appeals and an outlay of yet more funds to see that the terms of the Consent Judgment of Divorce were honoured and that the circumstances arising from the Defendants fraud and consipiracy, the right for a cause of action which had been specifically preserved, were, at the very least reviewed by a Court.
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