Some Horrors of Minnesota Family Court
to: legal challenges
Divorce court can be a horrible place. The general assumption is that the two divorcing parties are caught in a matrix of anger, greed, and irrationality that the attorneys and court officials must moderate and try to steer in a more productive direction. While the dysfunctionality in some cases may lie with the divorcing parties, I am here to say that the fault, in other cases, lies more with the attorneys and judges involved in the divorce.
The general public does not realize just how bad some of these “family courts” are. It does not realize how unscrupulous and dishonest some divorce attorneys can be. It does not realize the extent of judicial arrogance and misconduct. This is a case history of a divorce gone horribly awry because of the family-court system.
As a 70-year old man, I went through such a divorce in Minneapolis, Minnesota, marred by a greedy attorney and a vindictive, power-hungry judge. Both individuals exhibited a high degree of dishonesty. First let me say that my wife and I, though not entirely blameless in this situation, were reasonably well-intentioned toward each other at the beginning of the process. We both professed to want to settle on fair terms. But we were sucked into a system that would not allow this. The divorce was initiated in March 2011. Now it is March 2015 and the judicial process has not yet run its course.
About myself, I will say little since my self-interested opinions will not be believed. Of course, I assert my own innocence and reasonableness during the process. I do want to say, however, that my wife went from being reasonably honest and well-intentioned in March 2011 to committing major perjury on the witness stand at the trial in May 2012. While she must herself bear blame for this, I think it was the attorney who put her up to the bad behavior. It was the judge who not only allowed it but rewarded her dishonesty. Enough said about my wife; she, too, was the victim of a corrupt system.
The judicial propaganda machine will, of course, deny any blame on the part of its officials. The judges’ halos will be left in place. They are just honest, hard-working people having to deal with irrational, uncooperative litigants, it will be alleged. Let not their gentlemanly or lady-like manner fool you, however. Read this case history to understand that the family-court judges are at the root of this rotten system. Certain attorneys are also major contributors to a process by which the public is thoroughly victimized.
The best evidence for this claim is a case history; and that is what I offer here. The story of my and my wife’s divorce, already written, runs hundreds of pages. Much of this verbiage consists of the text of motions that were filed and judge’s orders. The intent was to give self-represented litigants, as I was in this case, a model for producing documents and some commentary on issues that may develop along the way. I would not want to anticipate that all lawyers and judges in divorce cases are dishonest. Part of the story, written for educational purposes, will show the process assuming that it is decently managed.
But another part of the story involves the unscrupulous characters that I encountered in the course of my own divorce. I’m sure others who have been involved in Minnesota divorces have run into the same types of people. In my case, they are primarily my wife’s attorney who initiated the divorce and the judge who presided at trial and, to a lesser extent, this judge’s clerk. There are a number of people who were also involved but do not deserve blame. Among others, they include: the attorney who represented me from April through the settlement conference in October 2011; my wife’s second attorney who took her case through the appeal process; the divorce-court referee who bowed out just before the trial; and the judges on the Minnesota Court of Appeals who rendered a decision in my appeal of the trial-court judge’s amended order.
This work is meant to be a companion piece to the earlier, book-length narrative on the web (found at http://www.billmcgaughey.com/divorcebook.html), focused upon shortcomings of the family-court system. So let’s get going. With reference to that story, I will here list what I consider to be unethical or, at least, questionable actions and activities connected to my wife’s first attorney and to the trial-court judge. Each point of evidence will be linked to a numbered chapter in the story told on the website so that readers will see its context in the divorce process. Until May 2012, and beyond, we see wrongdoing perpetrated by my wife’s attorney. During and after May 2012, the trial-court judge’s character, or lack thereof, comes into play.
My Chinese-born wife and I were married in Beijing in January, 2000. She and her teenage daughter entered the United States in July 2001 on a spouse-related visa. My wife filed for divorce against me in March 2011 after I had told her that I had once had sexual relations with my former wife while she was out of the country and after she made a telephone call resulting in my arrest for domestic abuse. She was continuously represented by an attorney, a Chinese-American female. I hired an attorney in late March 2011 and engaged his services until he fired me for writing an unauthorized letter to the court. Thereafter, I was self-represented.
This case involves two “settlement conferences”, a two-day trial, and the judge’s decision in July, 2012. Because of the unfair decision, I filed a motion for amended findings of fact/conclusions of law or, alternatively, a new trial. The judge issued amended findings. I then appealed the decision to the Minnesota Court of Appeals which reversed one of the judge’s decisions but kept two others in place. The Minnesota Supreme Court declined to hear an appeal. A year later, I filed a motion to eliminate spousal maintenance because of increased needs of the obligor. That case is pending.
My wife and I had no children of our own. The issue, instead, was property division. I was a 70-year-old retired person who owned and managed rental property in Minneapolis. This property included a 9-unit apartment building which I had purchased before the marriage and a fourplex, also purchased before the marriage, of which one unit was rented. There was also a duplex in Minneapolis, which was purchased after the marriage, and a house in Pennsylvania which I had inherited five years before the marriage. My wife owned two condos in Beijing, but denied having one. She had also sold another condo four months before filing for divorce and gave the proceeds of the sale to her daughter who financed her mother'sattorney fees in the divorce from me. My wife had a small 401(k) from her three-year job at Target. During the marriage we accumulated around $325,000 in debt.
Dollar-wise, the debts included a $173,000 mortgage on the duplex, an $84,000 mortgage on our home, and roughly $68,000 of short-term debt, mostly credit cards and personal lines of credit. The marital duplex had a stipulated value of $110,000. The stipulated values of my non-marital properties were: $160,000 for our home, $280,000 for the apartment building, and $280,000 for the house in Pennsylvania. My wife’s remaining condo in Beijing was worth $200,000. Her 401(k) was worth $5,000.
A Family Court referee originally presided over this case. However, she resigned her position due to illness. The chief judge of Hennepin County presided over the two-day trial. The case also included a hearing for temporary maintenance in January 2012 over which the referee presided. I could not participate because I was sitting in jail on totally manufactured charges of domestic abuse. The charges were later dropped..
Abuses by the opposing attorney
Questionable activities of my wife’s first attorney include the following:
1. This attorney submitted a list of excessively greedy and outrageous requests (such as an “equitable” share of my non-marital property and paying her attorney fees) in her petition for divorce filed on March 8, 2011. (chapter 5)
2. This attorney may have been involved in the extra-legal process of discovery by which my wife and others went through personal papers and other possessions in my office while I was under a no-contact order in a domestic-abuse case and therefore away from my home. When I complained, the Lawyers Professional Responsibility Board ruled that such searches were OK. (chapter 6)
3. When I had my response to my wife’s divorce petition served on my wife’s attorney at her office on March 25, 2011, this attorney told the server by telephone that it was not necessary to file a response because a settlement conference for the divorce had already been scheduled. The server came back to my car, papers in hand. I insisted that the papers be served because failure to do so by the required date would have meant that the court would grant my wife’s petition by default. I see this as attempted trickery of a novice in the law. (chapter 6)
4. Even though I had engaged the services of an attorney on March 30th and she knew it, my wife’s attorney insisted that I meet with her immediately in the absence of my new attorney to negotiate a settlement. (chapter 7)
5. Coming back from China on May 11, 2011, my wife said she would settle for $25,000. I agreed to pay her the $25,000 and even sold stock to raise the money. Against the advice of my attorney, I also offered to let her stay rent-free in a house that I owned in Pennsylvania whenever she wished. On May 23rd, after my wife visited her attorney, I reported to my attorney that the deal had fallen through. She was immediately demanding $5,000 more. I wrote that my wife’s attorney had told my wife to “set her sights on getting my mortgage-free apartment building - which was premarital property - while I assumed all the marital debts.” (chapter 8)
6. Meanwhile, my wife’s attorney was sending emails to my attorney stressing that I had a “mistress” even though divorce law forbids raising issues of marital misconduct. She also claimed that I was hiding assets. She falsely claimed that I had agreed to pay all of my wife’s medical bills while in China. (I had given her $3,000 for that purpose.) My lawyer emailed me: “Trying to work out a settlement at this point is getting to be a ridiculous waste of time and money. She is, in effect, asking you to negotiate against yourself.” (chapter 7)
7. I discovered that my former wife had forged checks on my account worth $4,000 and told my wife about this. Her attorney then demanded that I file a police report. I did visit the police station but was told a report would result in my former wife’s arrest. Since she owed me a large sum of money and had agreed to pay it, I decided not to make the report. My wife’s attorney claimed that this amounted to stealing from my wife. I was therefore guilty of a crime. She would have me prosecuted. (chapter 10)
8. Repudiating our earlier agreement, my wife’s attorney agreed to settle if I paid $45,000 and gave my wife a lifetime tenancy in the house in Pennsylvania. Furthermore, my wife would be allowed to rent out the bedroom to others If she chose not to stay there and could keep the rent while I bore all the expenses. I would also be required to subscribe to a Chinese-language cable station. I rejected that offer. (chapter 10)
9. An option in divorce court was to engage the services of a neutral evaluator of the parties’ financial situation (FENE) whose recommendations might be the basis of a property settlement. I was strongly in favor of this. Having been ordered by the referee to begin that process, both attorneys spent considerable time emailing each other about the choice of evaluator, my wife’s attorney suddenly had the FENE option dismissed. She claimed that neither party wanted the FENE and, even, that she had an email from me to that effect. It was a false claim but the referee evidently bought it. Much expensive attorney time had been expended to no avail. (chapters 7-10)
10. When my attorney emailed the other attorney saying I wanted the FENE, she replied “Are you sure?” and then falsely claimed that I had told my wife that my attorney was not listening to me and he was charging me too much for attorney fees. This fabricated claim was an attempt to drive a wedge between me and my attorney. (chapter 10)
11. After the FENE fell through, I agreed to try mediation. This required several more months of emails between the attorneys. The referee ruled that both attorneys would have to be present at the mediation. Mine potentially would cost $1,200 for an 8-hour session. After my wife returned from China on September 5, 2011, she visited her attorney who evidently put her in a fighting mood. My wife told me that it would take three to five years to settle our divorce. She was willing to sell her big apartment in Beijing to finance a “war” in the courts. (chapter 12)
12. The mediation session held on October 17, 2011, was a complete farce. Flanked by three Chinese-language translators, my wife’s attorney reviewed photocopies of my pilfered check registers at length trying to find evidence of money that I had given my former wife. This attorney falsely claimed that I had agreed to pay my wife $36,000. When I denied this, the attorney offered to settle if I gave my wife the house in Pennsylvania built by my great-great-grandfather. It was valued at $36,000 on the tax rolls. (Her own pre-hearing statement valued the property at $550,000.) When I pointed out that this did not represent fair market value, she claimed that I had told a government agent it was worth that amount and had therefore lied. The attorney’s husband, an accountant, insinuated that I had cheated on my tax return. To match their bogus offer, I agreed to give the duplex to my wife if she would assume the underlying mortgage. Their inflated asset figure showed she would net $43,000. In the end, nothing was accomplished. My attorney told me to prepare for heavy legal expenses. (chapter 13)
13. My wife’ attorney took the position that she and my wife could not communicate directly with each other because my wife did not speak English. Since she, the attorney, spoke Chinese only in the Cantonese dialect and my wife only Mandarin, it was necessary to hire translators to conduct legal business. Fortunately, her husband was such a translator. This alleged need for a translator made for good courtroom theater and it also increased the amount of billable expense which the attorney proposed might be shifted to me. But, of course, my wife’s English was adequate since she spoke English when I first met her and she had since lived in the United States for ten years. (See chapter 13 and 20.)
14. Having spent more than $5,000 on attorney fees without any benefit, I was now representing myself. On October 31, 2011, when I picked up my wife at a medical clinic, she begged me to settle. We agreed that I would pay her $25,000 plus $2,000 to reimburse my wife’s friend for medical expenses. I typed up a list containing ten points of agreement and signed it. My wife said she would first have to run the agreement by her attorney. When she returned from the attorney’s office, my wife said that the attorney had insisted upon adding other points: I needed to pay alimony and more of my wife’s medical bills. My notes state that my wife “commented that her lawyer did not want us to settle. She appeared to be quite angry, in fact. The attorney had said there was a strong possibility that the judge would not approve the agreement since it was not sufficiently favorable to (her).” (chapter 16)
15. My wife was adamant that, even though I had prepared a preliminary Findings of Fact/ Conclusions of Law, her attorney had to prepare the final document sent to the court for approval. I agreed. The attorney, however, used this opportunity to do discovery. She also added a lengthy paragraph in the proposed settlement document about my relationship with my former wife. She added a provision for permanent spousal maintenance, which went far beyond our original agreement. She added a “Karon waiver”, to the effect that once spousal maintenance was ordered, it could never be changed. In the document, she also listed two pieces of real estate that I had purchased before the marriage as “marital properties”. This new document obviously did not reflect our agreement and I refused to accept it. (chapter 16)
16. This lawyerly behavior continued during November and December, 2011. I could not get the attorney to send me a document for the judge’s approval which reflected the terms of agreement between me and my wife. Instead, she kept slipping in provisions of her own that worked to my disadvantage. For instance, she wanted me to admit to much greater income than I actually had. She wanted me to say that I had given my former wife $135,000. She wanted me to agree to pay part of my wife’s attorney fees. She wanted me to assume partial responsibility for my wife’s medical bills. She said she might have me prosecuted for theft since I had decided not to have my former wife prosecuted for the forged checks. Also, she wrote in the document: “Respondent has agreed to withdraw his Answer in its entirety.” Under “waiver of counsel”, I was asked to sign this statement: “ I state that I am of sound mind and that I have freely and voluntarily chosen to represent myself and hereby waive my right to be represented by counsel for the purpose of the foregoing marital termination agreement. Petitioner can proceed without further notice to me.” I regarded these as booby traps that would give this attorney carte blanche to put whatever she wanted in the agreement and I could do nothing about it. (chapters 16 and 17)
17. Completely frustrated by the attorney’s dishonest drafting of a settlement document, my wife and I agreed to draft a document ourselves, aided by two friends. The four of us sat down together at a coffee shop to review a settlement proposal point by point. When my wife’s attorney heard about this, she demanded to know who my friend was and then accused him of practicing law without a license. Unfortunately, we did not sufficiently nail down the manner of payment, my wife objected, and the deal fell through. (chapter 17)
18. I gave the other side a deadline of January 5, 2012, to produce a clean document. The attorney refused to do so. Instead, on January 5th, I was served papers by the attorney’s husband that contained a motion for temporary maintenance. This document made a number of false statements: (1) All the debt that we had incurred since the marriage was characterized as my “non-marital” debt. (2) The stocks and real estate that I owned at the time of the marriage was characterized as “marital” property. (3) I was to assume $999 of my wife’s attorney fees. (4) I would pay my wife $2,100 per month in maintenance and all her medical bills until the trial date. (5) My wife had exclusive use of the car and a unit in my building. Then there was a series of untrue “facts” including, among many others, a statement that my former wife and I were conspiring to have my wife (who was a U.S. citizen) deported, that I had refused to pay for my wife’s work-related injury at Target (it was covered by Workers Compensation), and that I had earned $110,000 per year in my last paid employment (it was actually $35,000 per year). The lying had shifted into high gear. (chapter 18)
19. My wife’s attorney had asked me to come to her office to discuss a settlement. Even though my wife hinted that the office might be bugged, I eventually agreed. The attorney wanted mainly to discuss her latest document. Here it was that I learned the reason an honest agreement had not been drafted was because my wife was paying the attorney. If I also paid some of those fees, she might draft a document more advantageous to me. (But it was my wife who insisted her attorney be used.) The referee had asked us both to prepare “balance sheets”, showing our respective assets and liabilities, and bring these to the meeting. I complied but my wife did not. My wife also declined to disclose her basis for a settlement. (chapter 19)
20. The referee had scheduled a hearing on the motion for temporary relief at 3:00 p.m. on January 24, 2012. On the day before, I sat on the sofa in my bedroom reviewing papers for the hearing. Agitated, my wife came into the room and grabbed the papers from my lap. I called 911 to complain of violence. My wife grabbed the telephone, called me a liar, and then left the house saying she would see her attorney. Later in the afternoon, a Minneapolis police officer arrested me as I was shoveling snow. My wife had made a statement at the police station that I hit her. I was taken to jail. Later, I read in the police report that an Asian female who was a lawyer was with my wife when she made her statement at the police precinct station. In this case, I do not know for sure what was the attorney’s role in my arrest. I can only assume, however, that the attorney had advised my wife to make a false claim of being physically assaulted. (chapter 20)
21. Because I was sitting in jail at the time of the hearing on January 24, 2012, I was unable to attend the hearing. Neither was a friend allowed to sit in the courtroom during the hearing. The referee discussed possible postponement of the hearing but my wife’s attorney complained that she had gone to great expense in engaging translators. Before leaving the courtroom, my friend was given the other side’s brief and was told that I had 48 hours to respond. After being released from jail, I worked on a response. My friend and I then visited the court office to clarify what was required. We were ushered into the courtroom to speak with the referee. During a telephone conference, my wife’s attorney accused me of sending her unspecified documents that had been produced by cutting and pasting other documents. She claimed to have seen crease marks in my documents. It was a complete fabrication. (chapter 20)
22. My wife’s attorney was now claiming to have done $8,000 worth of work on the motion for temporary maintenance and she was saying that I ought to pay this bill since, not being an attorney, I was filing sloppy documents with legal errors that caused extra work to respond. This attorney had submitted a 75-page document filled with false statements. I identified twenty different factual inaccuracies and gave my own version of the facts. For instance, the other side was still claiming that I made lots of money from the rental-property business. My income-tax returns showed otherwise. Their calculation included revenues from rent but omitted the related expenses. Then, after I submitted my response, the attorney prepared yet another document. The attorney bill had now risen to over $9,000; she wanted me to pay most of it. (chapter 19) In the end, the referee rejected the motion for temporary maintenance and referred the matter of attorney fees to the trial court judge. (chapter 21)
23. After two months of relative quiet on the divorce front, I received an email from my wife’s attorney informing me that she had engaged the services of professional appraisers to appraise my real-estate properties (but not my wife’s property in China). This would cost a minimum of $5,000. She would ask the court to have me pay for it. I, of course, objected. Most of the properties were non-marital and, therefore, ought not become an issue in property division. However, she could have an appraisal done at her expense. The attorney wrote a letter to the court accusing me of bringing frivolous motions. I was trying to prevent an appraisal from being done and also blocking my wife’s access to my credit card. (chapter 24)
24. In April, my wife’s attorney sent the court a series of letters whose common theme was that I ought to pay my wife’s attorney fees. In response, I sent the court a compilation of email messages between this attorney and me sent between March 26th and April 4th. The attorney accused me of fabricating the messages. She said she would have me sanctioned by the court if I did not retract them. I asked the attorney which emails had been fabricated. Her response was: “You have them. Please check them.” I would not budge. Eventually, she admitted that the emails were authentic but argued that my compilation of them was contrived. (chapter 24)
25. Since the trial date was drawing near, I wrote my wife’s attorney a letter proposing that we should begin discovery. In return, I received a letter refusing permission for me to come to her office to inspect documents. The implication was that I was a violent person who had confessed to domestic abuse. She also said that I had falsely claimed she wanted to come to my house to inspect documents. No, I had asked if she wanted to make an appointment to do this. My violent nature was again an issue. (chapter 25)
27. The attorney sent me interrogatories that included 42 different questions or “requests” with many subquestions. By my calculation, there were 182 different subquestions in the attorney’s interrogatories. I knew that Rule 33.01(a) in the Minnesota Rules of Civil Procedure limited the permissible number of interrogatories to fifty, including subquestions. So she was 132 questions over the limit. There was also a request to see twenty-one documents. As the previous section indicates, those document requests were also excessively voluminous and detailed. (chapter 23)
29. Because the discovery process was getting nowhere, I requested a “discovery conference” with the court to discuss the appraisal issue and other issues. The chief judge of Family Court presided over a telephone conference. I agreed to appraisals of my real estate and the judge did not rule that I had to pay for them. When the other attorney suggested that I ought to pay for my wife’s hotel expenses in Minneapolis, the judge looked at the referee’s order giving my wife permission to stay in my fourplex where she lived and let that order stand. Regarding discovery, the judge rejected the attorney’s argument that discovery could not take place by personal visits to offices because I was a dangerous person . She ruled that the attorney should bring an escort if she was, as she said, “afraid”. The judge also ordered that the other party prepare a more manageable set of interrogatories. She would have another meeting with us on May 1st to try to narrow our differences. (chapter 25)
30. Shortly after the discovery conference, on April 16, 2010, I received two more letters from the attorney. Although court rules clearly prescribed that discovery take place at offices where the documents are kept, this attorney was refusing to let me visit her office or come to mine. She wrote: “I do not seek to come and inspect documents at your house. Also, I will not permit you to come to my office to inspect documents, unless the court orders otherwise. I will move for a protective order if you do so.” Again, this had an undertone of suggesting that she feared for her personal safety, even in her own office, because I was a certifiably violent person. (chapter 25)
31. This attorney also wrote another of her frequent letters to the court. She complained: “(I) have been receiving about three to four letters per week (from Mr. McGaughey) along with numerous emails ... I am unsure which ones are filed with the court. If it is permissible, may I respond, perhaps, only if his complaints have any bearing on the merits of this case? I maintain a standing objection and continue to deny all of Mr. McGaughey’s letters.” It was my practice, of course, to send letters to the court mainly when I thought I needed to respond to false or misleading statements in the attorney’s previous letters. (chapter 25)
32. Although Kang Ming had refused permission for me to do discovery at her office, I reminded her in an email dated April 16th that “my letter of April 13th proposed that you could make the documents available for inspection at your office or at another place besides your office.” Also, the judge had ordered her to make the documents available. What about discovery at another place? Ms. Kang Ming objected to that idea because I would be “leaving with the file to make copies somewhere, which I do not permit.” I then proposed “You could go with me to the copy shop.” The attorney rejected that proposal and instead suggested I meet her and her husband at the Edina public library where I might photograph documents. She was an hour late to our appointed meeting. Then, when we met, she informed me that none of the requested documents were available because my wife was then in China gathering the requested information. (chapter 25)
33. Later in the day, I received an email from this attorney stating: “Mr. McGaughey fought hard for the real estate not to be appraised, but it was discovered, for example, the house in Milford, Pennsylvania, had the roof replaced with a metal one in 2010.” In other words, this attorney was accusing me of dissipating marital assets by ordering a new metal roof to be put on the Milford house in anticipation of the divorce and then seeking to conceal this move by objecting to an appraisal. In fact, repair work had been done in 2010 (a year before my wife filed for divorce) on a corner of the metal roof which was leaking. The entire roof had not been replaced. The appraiser knew that. (chapter 25)
34. The attorney also included a number of other accusations in her letter. She complained, for instance, that I had not answered all her questions in the Interrogatories. I had answered most of them but not all, since the number exceeded the permissible limit. She also complained that my friend (but not my wife’s friend who was also there) was practicing law when he helped us draft a settlement document. She claimed that I was giving her unreasonable deadlines. I did not know to what that referred. The gist of it, however, was that I should pay my wife’s attorney fees. (chapter 25)
35. The presiding judge of Family Court had scheduled a “settlement conference” for the two parties in the afternoon of May 1st. At 5:00 p.m. on April 30th - the day before the conference - I finally received the promised answers to Interrogatories. There was hardly enough time to digest their information. Characteristically, the document was filled with lies: (1) It claimed that marital income was spent “on improving our rental properties.” Apart from the duplex, it was spent mainly on maintenance. (2) It claimed that I had received two large insurance settlements and “gave it all” to my former wife and her brother after my “numerous affairs.” There was one insurance settlement and no “numerous affairs”. Only a portion of the insurance money went to my former wife. (3) She claimed to have “spent 90% to 95% of my time in the United States.” A witness at trial estimated it was around 20% in recent years. (4) She denied having a second apartment after another one was sold in 2010. I have photographs taken in all three. The apartment in question, which she denied having, is the one-room apartment with a bathroom down the hall. (chapter 23)
36. The “settlement conference” on May 1st was actually an extension of the trial itself. (But calling it a settlement conference meant that I could not discuss any of he issues raised there at trial.) Other than the fact that her exhibit extravagantly claimed hundreds of thousands of dollars of my non-marital real estate as marital, I fault my wife’s attorney on only one point: She had the court clerk persuade the judge to reverse a concession to me to which we had both previously agreed at the conference. I had wanted my wife to be solely responsible for any tax liabilities related to the 2010 sale of an apartment in Beijing, whose proceeds went to her daughter. After the judge had left the room, my wife’s attorney cornered the clerk, claiming, falsely, that we had discussed the apartment sale before preparing the tax return. The clerk then went to the judge in the back room and had her strike that point of agreement. Both of us were asked to initial the change. I did so, intimidated by the court employee. The clerk, prompted by the attorney, had no right to amend the agreement in the absence of discussion in front of the judge. (chapter 26)
37. My wife’s attorney’s husband delivered her exhibits on the evening of May 1, 2012. A problem was that, while the exhibits included most of the appraisals, the one on our home, the only one whose value had not been stipulated, was missing. Also, the appraisal of the Milford property falsely claimed that my parents still owned the house besides claiming that a new metal roof had been installed in 2010. There was also a document, pilfered from my office, from a realtor whose services I had allegedly engaged, giving information about income derived from the apartment. In reality, he was a salesman making an unaccepted proposal. There were numerous documents evidencing loans to my former wife. There was nothing about my wife’s claim - the centerpiece of her argument at trial - of having personally done work to improve my non-marital real estate to create a marital claim. (chapter 27)
38. The judge had asked both parties at the settlement conference to exchange exhibits before the trial. My prior experience with court procedure had told me only that I had to reveal what information I had rather than produce copies of the documents themselves. In the following days, I scrambled to assemble my exhibits and make photocopies for the other attorney and the judge. I was immersed in this work when, on May 2nd, I received an email from my wife’s attorney stating: “We have limited time before trial. I will meet you at your home today at 2:30 p.m. for copying documents.” It was 2:15 p.m. I promptly emailed her: “I will not be available today. I need to prepare my exhibits for you.” Five minutes later, her husband called me on the telephone to ask about doing discovery. I said it would not be convenient for me to do this today since my exhibits needed to be prepared first. I might have time on Thursday afternoon, however. He put his wife on the phone. I repeated the message. She kept arguing with me about how and why she needed to do the discovery immediately. After weeks of saying that she was afraid to come to my office, this attorney was now wanting to come immediately. Because she was interfering my with pre-trial work and would not get off the phone, I hung up on her. (chapter 27)
39. Of course, the attorney sent a letter of complaint to the court saying that I had been “evasive regarding the discovery requests”. I was withholding information. She forwarded the complaining letter to me on May 3rd in a PDF file attached to her email. When I clicked on the icon, strange images filled my screen. I feared it might be a virus. I turned the computer off and back on. It now seemed to be functioning normally. Later in the day, I received another email from my wife’s attorney which stated simply: “We will come in 30 minutes.” I happened not to be home at the time. My suspicion was that the other attorney, in demanding immediate attention to her discovery needs, was trying to prevent me from complying with Judge Reding’s request that we make our trial exhibits available to the other party by a certain time. (chapter 27)
40. I did finally complete my exhibits on Thursday, May 3rd. A friend served them on the other attorney. An email late in the evening contained a letter of protest to the court. The attorney claimed that there were too many exhibits, they were not delivered in time, stock ownership was demonstrated by evidence other than brokerage statements, and exhibits were incomplete. In regard to the last argument, this attorney wrote: “Respondent is acting in bad faith regarding the submission of his exhibits by submitting numerous partial financial records where all pages showing any type of transaction as to the marital debt or asset may be traceable is removed.” For example, if I included in my exhibit only one page from a ten-page bank statement to show the balance on a particular date, she was insisting that the other nine pages also be included. Finally, she objected to nearly all my exhibits on the basis of “relevance” or another of her favorite reasons. (chapter 27)
42. Another deceitful claim was that I had used marital funds to purchase my non-marital real estate. Deeds showed that I had bought the house at 1702 Glenwood Avenue in 1992 and paid off the contract for deed on the apartment building at 1708 Glenwood Avenue in 1997, My parents gave me the Milford house in 1995. We were married in 2000. Despite this clear evidence, my wife’s attorney stated that one or another property was burdened with debt at the time of marriage or, failing that, that marital funds had been used to pay the debt. How did she know this, the judge asked? She said my previous attorney had told her so by email. She had asked for the supporting documents but my attorney had failed to provide them. When the judge asked to see the email, she said it could not be accessed by her laptop computer. She said she had evidence of the pre-marital debt in her “Production of Documents” request. However, she said she had forgotten to bring her discovery file with her that day. She questioned the authenticity of the deed I submitted for the property at 1708 Glenwood because she said it lacked a proper legal description. It became clear to me that this attorney was lying but there was no penalty for doing so in this particular courtroom. (chapter 29)
44. Throughout the questioning, the attorney kept asking my wife “leading questions”. The judge cautioned her against continuing that practice. He said she was dealing with an inexperienced adversary who might not know the rules so well. Spectators in the court later told me that the judge seemed upset that I in my ignorance of courtroom procedure did not object to some of the more flagrant examples of manipulated testimony. My wife was also using her Chinese interpreters to gain a strategic advantage. Every time I asked her a question, the interpreter had to translate it into Mandarin Chinese, my wife then answered in Chinese, and the interpreter gave her answer in English. It was taking twice as long to answer each of my questions as it should have. Also, my wife, rambling on for each question, seldom gave a straight answer to a “yes” or “no” question. They were running out the clock, so to speak. (chapter 30)
45. I did not begin my part of the testimony until 11 a.m. on the second and final day. I was doing well until noon. Then, because my exhibits were not numbered properly, the judge asked me to renumber the remaining exhibits during the lunch hour, using a new scheme. I graciously stipulated to receiving all my wife’s exhibits but her attorney did not return the favor. She slowly reviewed one at a time, deciding which to allow. This process continued well after I had resumed my testimony in the afternoon. As I was testifying and presenting evidence, the other attorney placed exhibits, accepted or rejected, on the table before me in irregular piles. I could not find some of my exhibits. My presentation became confused. The judge criticized me repeatedly for improper numbering. Then he abruptly “rested” my case and let my wife’s attorney take over for most of the remaining time in the trial. (chapter 32)
46. At one point in the trial, my wife’s attorney asked her a leading question meant to elicit the information that I had recently been arrested for domestic abuse. The judge caught the two Chinese-language translators passing written notes to each other. A reading of those notes suggested that they were meant to coach my wife on how to answer certain questions. Since I was a certified domestic abuser, the other side was unable to do proper discovery, it was alleged. (chapter 32)
48. The same messy documents, filled with derogatory statements about me, were sent to the judge in preparation for the hearing on my motion for amended Findings of Fact/ conclusions of law, on October, 2012. I was said to be a rich slumlord. I allegedly hung art works valued in six figures in my living quarters and employed full-time staff to manage my apartment. I boasted of being a millionaire who had said my wife would never see a dime if she won the divorce case. On and on the lies continued; and I was obliged to respond to each factual point. The hearing on October 18, 2012, did not allow for questions or discussion since the Chinese-language translator was a half hour late to the hearing. It would serve little purpose here in reviewing the malicious minutiae generated in documents sent to the court during this period. In the end, the judge made minor adjustments to his July 20th order. By the time the case was appealed to the Minnesota Court of Appeals in February 2013, my wife had a new attorney. I have never learned the reason for the substitution. I suspect that, now it was clear that I would not be paying my wife’s attorney fees, some limit had been placed on the attorney’s fee-generating practice. (chapters 39, 40, 42, 45)
49. A week before the trial in May 2012, I had not met or even heard of the man who was to preside over my wife’s and my trial in family court. After the referee resigned for health reasons, the chief judge of the county court system stepped in. I was immediately hopeful about this judge but now think he was a big part of the problem in finding an equitable solution to dissolution of our marriage. Having given readers a glimpse of my wife’s attorney’s bad behavior, I will now train critical attention upon this judge.
Abuses perpetrated by the judge
Questionable activities and decisions of the trial-court judge include the following:
1. I first met the judge in his courtroom before my wife’s attorney arrived. I wanted to keep the focus of discussion upon financial issues that might lead to a fair outcome. My basic strategy was to calculate and document marital property so that an equitable division might be arranged. I had already prepared a written set of notes to guide my own testimony. I asked the judge if I could occasionally read from these notes. He said that I could not. He also asked me to wait for the other party to be in the court room before asking him questions relating to the trial. (chapter 29)
2. Instead of allowing the parties to make opening statements, the judge immediately took charge of the proceedings, basically continuing the line of discussion initiated by the chief judge of Family Court a week earlier. While this procedure was helpful to an extent, it also prevented the parties from setting their own agenda for controlling the flow of information and evidence to help their case. Suddenly, hours later, the judge called for opening statements. I was taken by surprise and ad libbed a statement that did not adequately express my case. (chapter 29)
The judge made a major issue of the fact that I had not numbered my exhibits as the referee had directed seven months earlier. My exhibits were supposed to start at 101, 102, and continue in that pattern. I had instead numbered them E-1, E-2, etc. (E stood for exhibit.) In truth, the other attorney had asked me about this in an email sent before the trial, but I assumed she was trying to trick me as she had done before. I was unaware that the referee had ordered this particular numbering scheme because the order was sent to my attorney at that time. When he forwarded it to me, I filed the letter with other letters from that attorney, primarily bills, and forgot about the referee’s instructions. However, the judge turned what might have been a minor inconvenience into a major problem. For each accepted exhibit of mine, the judge assigned his own number; and he did so in a highly irregular manner. For example, exhibit E-8 became exhibit 208, exhibit E-13 became exhibit 202, exhibit E-15 became exhibit 391, and exhibit E-17 became exhibit 133. The judge often berated me during the trial for using an improper numbering scheme, saying that it caused much wasted time. Actually, my exhibits numbered E-1, E-2, E-3 etc. were sufficiently differentiated from my wife’s exhibits numbered 1, 2, 3, etc. that there would have been no confusion or delay if the judge had simply left the exhibits alone. But I had been warned that this judge was a stickler for proper form; and, in this case, his actions contributed to a disorderly trial. (chapters 29 and 35)
3. In my opinion, the judge wasted much time in reviewing a large number of minor credit-card or lines-of-credit debts at the beginning of the trial. My wife’s attorney was trying to document money given to my former wife. I was prepared to admit this and assume full responsibility for the money, subtracting it from marital debt. Having given the other attorney an opportunity to make this an issue in the divorce, the judge then turned over the floor to the other attorney for the purpose of questioning her client. The attorney used it for two purposes: 1. to have my wife testify about work she allegedly did to improve my non-marital real estate for purposes of establishing a marital claim, and 2. to try to establish that my properties were not non-marital because marital funds had been used to purchase them or to pay off debts incurred by their purchase. Both claims were totally false. However, the judge let the other attorney claim the bulk of time on the first day of the trial making such arguments. Even later in the trial, the attorney kept coming back to those themes. (chapters 29 and 32)
4. This judge also gave the other attorney the entire time in the afternoon session to resume the interview with my wife. Afterwards, I was allowed to cross-examine her. The most dangerous issue at trial, in my opinion, was that the other party was trying to get $300,000 from me, as announced in the attorney’s opening statement, largely on the basis of fictitious claims to have done work. My wife was prepared to testify falsely about this work, and she had two witnesses who presumably would support the claim. I had only myself and my friend, the building’s maintenance manager, to refute their arguments. Letters written by others to support my position were rejected as hearsay evidence. Faced by this grave danger, I hit upon the strategy of questioning my wife about the layout of rooms in the apartment, whose wrong answers would suggest that she had not spent 1,280 hours in the building doing work. This strategy backfired since the 20 minutes or so of my repetitive questioning irritated the judge. He warned me to use my time more productively. Such cross examination, which I felt I could not avoid, was counting against my time. Also, my wife’s testimony emphasized the money given to my former wife, with its hint of marital misconduct. The better part of the first day of trial had been spent on testimony from my wife and on cross-examination. (chapter 30)
5. The judge also gave my wife’s attorney the first two hours of the second day to put my wife’s female friend and her daughter on the witness stand, presumably to testify about my wife’s work on the properties. Neither witness was convincing in that regard. My step-daughter’s testimony was useful to me in establishing that my wife had given her $100,000 shortly before the divorce from the proceeds of a condo sold in Beijing. However, the two hours devoted to my wife’s witnesses also took time away from the case that I wished to present. Again, the judge criticized me for spending too much time on cross-examination of witnesses. He was excusing himself for giving the other side too much time. But I thought I had to address the “work” issue. (chapter 31)
6. I finally was able to begin presenting my case at 11:00 a.m. on the second day of the trial. (There were only two days.) I cleared up confusion over the credit cards in relation to “dissipated assets”. I denied giving money to a “mistress”. I presented exhibits to establish all the marital assets and marital debts. However, I made a mistake in assuming that the difference in value of stocks between the date of the marriage and April 15, 2011, represented a marital asset or debt. I was also confused about what constituted marital property in real estate. In any event, I had an hour before lunch on the second day to make my case; and around an hour and a half after lunch. That meant I had two-and-a-half hours out of, say, fourteen hours of trial time to make my case. This did not seem fair. In his written memoranda, however, the judge later claimed that he had been keeping track of time spent and I had actually received more time than the other side. (chapter 31)
7. In my opinion, the judge permitted several questionable events to take place in his courtroom. One was to watch the Chinese-language interpreters passing notes to each other which seemed to instruct my wife on how to answer questions. Because this took place on the other side of the witness table, I did not see the note passing or realized the significance of related dialog. But the judge did, and he did nothing about the offense. Also, the judge disallowed a written note from my tenant in Milford, Pennsylvania, refuting my wife’s claim to have done work, but he did allow a telephone call to be made. The court clerk, who placed the call, claimed that the power was off. I called the tenant that evening and was assured that the power was on the entire day and the line had been kept open, waiting for our call. I knew the tenant to be an honest person and I knew the clerk to have been the same person who changed an agreement regarding tax liability for a Beijing apartment sold in 2010 when my wife’s attorney requested this. Finally, the judge’s bizarre numbering scheme and the attorney’s deliberately slow decision to accept or reject my exhibits caused me to lose control of my exhibits and testimony later in the day. The judge also rejected some of my proposed exhibits which would have refuted findings of fact in the judge’s order. (chapter 32)
8. One of the most important failings of the trial was the judge’s decision not to allow either side to make a closing statement. I repeatedly asked for such an opportunity but was consistently rebuffed. The judge seemed to be using this denial as punishment for things about me that he disliked - for instance, my failure to number my exhibits properly, wasteful cross-examinations, or a long statement I made about attorney fees. The judge explained that he would not allow closing statements because too much time had been wasted in other parts of the trial. He said he would allow each side to speak for ten minutes on the afternoon of the second day but when I gave what appeared to be a closing statement during my time, the judge abruptly ended my testimony and the trial itself. I regard this inability to make a closing statement as a serious denial of my right to a fair trial. It prevented me from showing the significance of previous arguments and evidence presented during the trial. (chapter 32)
9. Related to this is that the judge falsely claimed that I had rested my case when he kept asking me if I had other testimony and I said “I can’t think of any right now”. I did not mean to rest my case then but the judge quickly interpreted my remarks that way. The judge was intimidating me. He quickly cut me off and then gave the next half hour of trial time to the other attorney to question her client. Because I lacked further time for testimony, I was unable to introduce important evidence related to my wife’s language abilities, health, property, and work potential which played such an important role in the judge’s decision. And, again, there was no time for closing arguments. (chapter 32 and chapter 79, point 23)
10. This particular judge was overbearing, even rude, in his courtroom conduct. He was particularly insulting towards me. He often interrupted me or accused me of interrupting him when, in my estimate, I was unfailingly polite. His speciality was to claim that whatever problems the trial might have had were due to my deficiencies; yet in his written memoranda he claimed to have bent over backwards to help me as a self-represented litigant. He obviously thought highly of himself as chief judge at the time. His arrogance is seen in this judge’s excessive use of discretion and ignoring of written law when he issued his orders. He ended the trial mid-sentence during testimony and then said he would not allow either party to submit a proposed judgment as the referee had ordered. (chapters 29-32, 34)
11. Since the divorce did not involve children, there were three main issues relating to property division: distribution of our marital property, mainly debt; spousal maintenance; and invasion of non-marital property, if any. The judge did not list the marital assets and property or give totals in a systematic way. He simply left out some of the larger items such as the two US Bank lines of credit. The only debts assigned to my wife were her medical bills. He also awarded my wife shares of a stock that were bought and sold during the marriage. Effectively, this left me with $325,000 of the marital debt - hardly a fair and equitable solution. The judge also awarded my wife $500 a month in permanent spousal maintenance. Finally, he ordered me to pay my wife $10,000 a month for five months, a total of $50,000, in equal installments beginning October 1, 2012. It was a lopsided award in favor of my wife in all significant respects except that he did not require me to pay my wife’s attorney fees. The judge consistently used his “discretion” to depart from specific legal requirements. (chapter 34)
12. The judge’s memorandum began with an argument that two days of trial were adequate for this case, which to me suggested that he knew it was not. Instead, the judge blamed the two parties, especially me, for causing delays. I had failed to follow the prescribed numbering scheme and did not give the judge an exhibit index. (That was because the judge would not accept my folders and index with improperly numbered exhibits.) Posing as “the good guy”, the judge wrote in the memorandum: “ I could have exercised my discretion to follow Referee Cochrane’s order to the letter and excluded husband’s exhibits due to his failure to comply with the trial order, but I declined to do so. Instead, I afforded self-represented husband a considerable amount of accommodation and helped him with his exhibit introductions and lines of inquiry when he struggled.” My main struggle was with the judge. His conclusion: “The case easily could have been tried in less than two days had the parties complied with the trial order and behaved in manners other than I described above.” The real reason the trial took so long was that my wife’s attorney was objecting to most of my exhibits being admitted into evidence, was putting people on the witness stand to make totally false claims, was arguing for me to pay my wife’s attorney’s fees, was consuming time in testimony about trivial issues (e.g., my wife’s personal belongings), was using the Chinese-language translators to prolong the testimony, and, generally, she was engaging in obstructionist tactics to frustrate me in my effort to present evidence.(chapter 34)
13. There was a disconnect between the judge’s lopsided awards in all three areas and the following observation of my wife’s position in the memorandum: “I bring over eleven years of full-time Family Court experience to the table. Based on that cumulative experience, I came away from the trial with a very firm conviction that a number of positions advanced by wife herein were about as weak and unjustified as I have encountered during my many years as a Family Court judge. In my opinion, her unjustified claims drove this litigation, blocked a reasonably prompt settlement, and unreasonably contributed to the cost and length of the proceeding.” In particular, he mentioned my wife’s argument that she had acquired a marital interest in my real estate as a result of having done work. He wrote: “ Credible evidence adduced during the trial belied this claim and demonstrated that her efforts were nominal at best and vastly inflated in a self-serving manner for litigation purposes.” This conclusion I would, of course, applaud; but it did not lead to a fair distribution of property. (chapter 34)
14. The judge’s argument in favor of awarding spousal maintenance was, again, conflicting. On one hand, he wrote: “ Spousal maintenance is paid out of future income and earnings. There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.” (Memorandum, “Spousal Maintenance”) On the other hand, he ordered me to pay spousal maintenance even acknowledging that I had inadequate income. (Memorandum, “Spousal Maintenance”, paragraphs 5, 14) He also reasoned that I could afford to pay maintenance if I sold my ancestral home in Milford, Pennsylvania, whose rental income was less than expenses. (Memorandum, “Spousal Maintenance”, paragraph 6, and Memorandum, “dissipation claim”) The Minnesota statute governing spousal maintenance (518.552) requires a judge awarding spousal maintenance to take into consideration “the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.” (subd. (g) ) He did not. (chapter 34)
15. The way that some judges have skirted the legal requirement to consider the obligor’s needs has been to use case law allowing a judge to “equalize the hardship” when both parties lack inadequate income. This judge cited two cases that were unpublished; and only published cases are supposed to be used as precedent. Following a calculation whose numbers were not explicitly stated, he decided that requiring me to pay $500 in permanent spousal maintenance would “equalize” our hardship. The judge found that my wife had an income deficiency of $1,000 per month. To make the calculation work, my deficiency must have been zero - i.e, my $2,000 monthly retirement income equaled my expenses. However, the judge failed to take into consideration the clearly established fact that my wife had $300 in income from China and the schedule upon which my expenses were based showed that I had monthly expenses of $2,070 rather than $2,000. If these more accurate numbers had been plugged into the “equalizing” equation, the spousal maintenance would have been $315 rather than $500. (700-315 = 385 and 70+315 = 385) However, an even more significant error was that, although the judge knew or ought to have known that assigning virtually all the $325,000 in interest-bearing debt to me would have given me an enormous additional expense that would make my monthly deficiency much greater than my wife’s. Toward the end of the trial, I testified that I was “underwater with my interest payments”; they exceeded my monthly retirement income. (transcript, page 445) But the judge ignored all this when making his “equalizing” calculation to determine spousal maintenance. (chapter 34)
16. The reason that the judge awarded spousal maintenance to my wife, he said, was that she was a “56 year-old immigrant from China who has not mastered the English language, even to a moderate degree.” Also: “She suffers from serious health issues including recurrent cancer for which she has undergone long bouts of debilitating chemotherapy.” The judge concluded: “From a need-based perspective, wife is a strong candidate for permanent spousal maintenance.” However, no testimony was presented at trial to indicate the severity or duration of my wife’s cancer (breast cancer). If the judge never heard my wife try to speak English, he could not have known that she could not speak English. That conclusion is belied by the fact that she worked on the sales floor of the Target store in downtown Minneapolis for three and a half years (once even winning an award as Employee of the Month) and Target does not supply translators for its sales force. But the judge ruled she could not work, and ever could work again, and therefore deserved permanent spousal maintenance. This was another example of this judge jumping to conclusions in the absence of underlying evidence. (chapter 34)
17. The finding that my wife spoke little or no English despite the fact that the judge had never heard her try to speak English might have been too much for appellate court judges to swallow. The judge’s way of establishing the “fact” was quite ingenious. He wrote: “ Petitioner is a 56 Year-old immigrant from China who has not mastered the English language, even to a moderate degree. This is based on my observations during the trial. Often the litigant for whom the interpreter is needed demonstrates a keen understanding of English by answering questions before the interpreter even completes the translation. That did not occur here. Instead, instances occurred when the translation was cumbersome and Petitioner demonstrated confusion.” (Memorandum, paragraph 60) I pointed out that it was other litigants’ linguistic behavior that the judge not observed, not my wife’s, but that argument seems to have had little effect on the decision. (chapter 34)
18. There was extensive testimony at trial that my wife in the fall of 2010 - less than a half year before she filed for divorce - had sold an apartment in Beijing for $110,000 and given most of the proceeds to her daughter for the purpose of purchasing a condominium in Herndon, Virginia. Had she retained this property, my wife’s claim to being destitute would have been even more ridiculous. She would have owned another piece of real estate besides her primary residence in Beijing that was worth $240,000. (And there was also a third owned apartment whose existence she denied.) One of the statutory grounds for obtaining spousal maintenance is lack of property to provide for a person’s reasonable needs. But if that property is transferred to another person shortly before filing for divorce, I would regard it as a transfer intended to skirt the legal requirement. The judge, however, did not take that possibility into consideration while, on the other hand, he did theorize that I had schemed to burden my sole marital real-estate property with debt to gain an advantage in divorce court. (chapter 34)
19. The issue of “dissipated assets” loomed large in this divorce. I had indeed given or loaned my former wife considerable sums of money when she was pregnant with my child in 2010 and at other times. However, I was asked not to go into detail about it during the trial. Yet, the other side harped on this example of marital misconduct (which is not supposed to enter into divorce decisions) and the judge did nothing to stop this. The judge himself wrote: “The record also reflects that husband loaned a not insignificant amount of money to this person, on many occasions, with no seeming legitimate effort to recover the loan proceeds. To put it rather bluntly - this did not pass the smell test.” From the outset, I offered to assume full responsibility for those expenditures by deducting them from the marital debt. The judge instead preferred to assign me the entire debt. Because I had not pressed charges in the check forgery which could have landed my former wife in jail, the judge said I was not making a “legitimate effort” to recover the money. But I could not recover money that my former wife did not have; and, if she was expecting money that she promised to give me, to press for a jail sentence would have been counterproductive. These considerations were known to the judge but he chose to ignore them. He also ignored the legal requirements for dissipated assets. When this was pointed out convincingly, the judge quietly dropped the argument based on statutory asset dissipation in favor of another legal argument along the same lines. (chapter 34)
20. The judge argued that “husband’s opinion is further problematic due to the fact that he was not forthcoming with the information sought by wife during discovery, which was necessary for proper preparation of cross-examination.” (Memorandum, Property Division, Marital) Footnote 12, in the section under Dissipation Claim, also stated: “Husband’s conduct during this litigation, particularly his less than complete cooperation regarding discovery would allow me to infer dissipation.” No testimony was offered at trial that I had been uncooperative with respect to discovery other than the suggestion that my allegedly violent nature might have inhibited examination of documents by my wife’s attorney. Therefore, the evidence to support the judge’s claim must lie in documents sent to the court by my wife’s attorney. When I attempted to enter a packet of such documents into evidence during the trial, the judge would not accept them. He said he reserved for himself the right to examine any such documents that the court might have. I assume that my alleged lack of cooperation during discovery is based on the story of my wife’s attorney that I had refused to let her come to my house, upon 15 minutes’ notice. See the discussion of Discovery in criticisms of my wife’s attorney, points 25 through 32. The judge was again reaching a conclusion that was not supported by the facts on record. (chapter 34)
21. One of the judge’s most egregious decisions was his division of marital property. State statute requires that the decision be “just and equitable” and “without regards to marital misconduct”, taking into consideration a variety of factors. (518.58, Subd. 1) It is presumed that a 50-50 split of marital property would meet this requirement although judges are not required to adhere strictly to that standard. In our case, we had marital assets totaling $115,000 and marital debts totaling $325,000. I received marital real estate worth $110,000 and my wife a marital financial asset worth $5,000. If the remaining debt (some being offset against the assets) were split 50-50, we each should have assumed $105,000 of the remaining remaining debt. Instead, the judge assigned virtually all of this to me. How could that be an equitable division? It was not. The judge used his “discretion” to do as he pleased. Arguing that I had “favored my non-marital property” by mortgaqging the duplex and hanging on to the Milford house, the judge wrote: “As I set forth above, I am exercising my discretion to craft an unequal division of the marital property and debts. Since total marital debt significantly exceeds the marital assets, I am exercising my discretion to achieve equity on the debt side and require husband to pay this debt and hold wife harmless.” Since appellate courts give trial-court judges virtually unlimited discretion in dividing marital property, the judge’s inequitable decision was allowed to stand. (chapter 34
22. This judge made a practice of putting the properties and mortgages together as a package so as to take the mortgage money out of marital debt. For example, If the duplex at 1715 Glenwood was valued at $110,000 and the mortgage placed on this property was $173,000, he would assign both to me and call it even. The same was true of the four-plex at 1702 Glenwood Avenue and its related debt. In that case, of course, the property was non-marital while the mortgage debt was marital. He could not legitimately claim that he was giving me something as an asset to offset the liability when I already owned it. In any event, the judge’s peculiar way of calculating property made $250,000 of mortgage debt go away without seeming to be part of the property division. He simply assigned it to me using his judicial “discretion”. (chapter 34)
23 In several places, the judge took note of the fact that the largest debt - the $173,000 mortgage on the duplex at 1715 Glenwood Avenue - was placed on our only marital real estate. He wrote that “ it is clear that husband favored his non-marital properties to the disservice on the parties’ one marital parcel by not spreading the lien among the multiple parcels.” If that act was intentional as implied by the word “favored”, I must have had in mind gaining an advantage in divorce court from burdening the marital property but not the others. However, I obtained the mortgage loan on the duplex in 2007 while my wife filed for divorce in March 2011. I was not so far-sighted as to have anticipated the latter event. Furthermore, I did also have a mortgage on our home at 1702 Glenwood Avenue, which was a non-marital property. Finally, the judge’s recommendation that the $173,000 should have been spread between several properties shows his complete lack of business understanding. There is much extra expense and uncertainty in negotiating three or four separate loans as opposed to a single one. (chapter 34)
24. The judge decided to invade my non-marital property to the tune of $50,000. Since I did not have this money in liquid assets or remaining credit, the order would have forced me to sell a piece of real estate and do this in a severely depressed housing market. If I sold the apartment building, it would have wrecked my rental-property business; if the Milford house, sabotaged my retirement plans. And I would have had to execute the sale to raise cash before October 1, 2012, which would have resulted in a “fire sale”. Driven by the image of my destitute wife (whose daughter’s paternal grandfather was a multi-millionaire in U.S. terms and whose uncle was a billionaire), this judge nevertheless thought that I could afford to pay since my disclosed non-marital property was worth more than my wife’s non-marital property (some of which was not disclosed at trial). Bending over backwards to help me, he wrote: “ I would not find it fair or reasonable, nor would I exercise my discretion, to award wife anywhere close to 50% of this difference.” But the other shoe dropped with this decision: “Given the length of the marriage, the parties’ financial circumstances as set forth above, the unequal debt division, the hardship-sharing maintenance award, and the merits of wife’s dissipation claim, I am exercising my discretion to award wife $50,000 as a combination dissipation/share of husband’s non-marital property award.” In fact, both statute and case law were clear on the fact that the judge was permitted to invade non-marital property only under extreme circumstances. In this case, the appellate court reversed his ruling. His discretion had been abused. (chapters 34 and 64)
25. This judge seemed only to take my wife’s needs into consideration, perhaps because she was a female. For instance, in awarding my wife $500 per month in permanent spousal maintenance, he wrote: “I fully understand that wife will be disappointed with this amount, but she needs to understand that had I not exercised my discretion to force the parties to share the economic hardship incident of their dissolution, she would have received far less in maintenance or perhaps none.” What about the husband’s disappointment? Why was it necessary for this judge to exercise his discretion to award the wife spousal maintenance? Court house politics, perhaps? (chapter 34)
26. There were several obvious errors in the judge’s order. First, he should not have awarded my wife stock in Qwest which we no longer owned. Although the judge could not find it, a record of its sale had been entered into evidence. Second, the judge falsely stated that my wife and I had agreed that both the 1708 Glenwood Avenue and 1715 Glenwood Avenue properties were marital. The second one was; the first one was not. The judge’s memorandum erroneously claimed that at the “settlement conference” on May 1, 2012, I had agreed to accept the debt against our house at 1702 Glenwood Avenue as my own. I had not. It was part of the marital debt. The judge also claimed that my wife and I were still under a Domestic Abuse No-Contact order, when a judge had lifted this more than a year earlier. (chapter 34)
27. My most urgent problem was the need to raise money from my non-marital assets to pay my wife $50,000 in installment starting in October. To begin with, the installment-payment idea was unrealistic. Unless I was employed and earning an extremely high salary, there was no advantage for either party in stretching out payments over five months. The only way to raise this kind of money would be to sell real estate or borrow against it. A sale would yield the entire sum of money. Borrowing was impossible. After the housing collapse of 2008, I found, banks would not lend money using real estate as collateral. The judge allowed me to stay the execution of payments if I posted a supersedeas bond bond. In order to get the bond, however, I learned that I had to raise an equivalent amount of money to put on deposit in a bank. But the banks would not lend money against real estate. I could sell the real estate but that action would be irreversible. I wrote the judge explaining the situation but never heard back from him. Ultimately, the problem disappeared when I appealed the decision to the Minnesota Court of Appeals and the judge’s decision was reversed. (chapters 41, 56)
28. Meanwhile, I filed a motion for amended findings of fact/ conclusions of law with family court. The trial-court judge would have to be the one to consider this motion. While at first he scheduled a “paper hearing” - a review of documents submitted by both parties by the judge alone - but then he scheduled a live hearing with representatives of both parties present in his chambers. The hearing was to have lasted an hour. It was reduced to a half hour when the Chinese-language translator was a half hour late to the event. The judge allowed both sides to make their initial presentations, but nothing more. Of particular interest to me was that the judge called me a liar when I complained that I did not have adequate time to make my case. When I complained about the Chinese-language translators passing notes to each other during the trial, the judge said I should have made my complaint then; but, of course, I did not know about the note-passing at the time because I was sitting at the other end of the table. The judge did know. Otherwise, the hearing passed without incident. (chapter 45)
29. My appeal for amended findings of fact/ conclusions of law did produce several minor changes in the judge’s order. Most notably, he made my wife responsible for the tax consequences of selling her apartment in Beijing in 2010. He also assigned my wife $5,976.67 of our marital debt, which was the balance on one US Bank line of credit. I assumed $3,000 of her medical debt. Otherwise, all of the judge’s major decisions were left in place. The judge complained that I had not provided a trial transcript; but he had been the signing judge who had denied me the In Forma Pauperis status that I needed then to purchase the transcripts. (chapter 47)
30. There was new cause for alarm. At the very beginning of his memorandum that introduced the order, the judge wrote: “ Before addressing his specific concerns, I need to discuss my serious concerns regarding Respondent’s veracity.” He also wrote: “In addition to this example regarding his substantive arguments, Respondent’s post-trial motion substantially misrepresents what occurred during the trial.” In other words, the judge was again accusing me of lying; and, he was putting this accusation right at the beginning of what the appellate-court judges would see, devoting three whole paragraphs and a footnote to my alleged character deficiencies. I could easily have refuted all the judge’s accusations but the space limitations imposed on my brief for the Court of Appeals would not allow me to do so. The “veracity” issue was later addressed in my motion eliminate spousal maintenance. (chapter 47)
31. The judge clarified his position regarding distribution of marital property. He wrote: “Because the 1702 Glenwood property is worth $160,000 and will be retained by Respondent, this part of the court’s debt apportionment/property award represents a net gain. Second, he ignores the fact that $173,000 of the total debts represents a debt consolidation loan that he chose to impose on the lone Glenwood property that is marital in nature - 1715 Glenwood.” The appellate court rightly pointed out that there was no net gain if I retained my own non-marital property. (chapter 47)
32. In reference to money that came from life-insurance proceeds, the judge wrote that I “did not offer any evidence that the money in question came from non-marital sources in existence before the parties married or from another post-wedding day infusion of non-marital capital. Instead, he argued that, “It is also an error to assume that the money allegedly dissipated to Ms. Johnson came from marital funds.” (p. 23, ¶ 23) That was not my “assumption” - rather, it represented my application of the statutory presumption.” (Memorandum, “Dissipation”) The statute in question is 518.003. Subdivision 3b states that marital property means all property received during the marriage, but this statute also said that non-marital property included property “which (a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse.” The proceeds from my brother’s life-insurance policy, of which I was the beneficiary, clearly falls under that category of exception. The judge ignored the statutory exception, (chapter 47)
33. Regarding his award of non-marital property, the judge wrote: “Respondent has at least $580,000 of unencumbered non-marital real estate and case law explains that the trial court may exercise its discretion to assign debts to the party with greater ability to pay. I am awarding wife a small portion of the debts, but even though the portion is small, the amount of debts I am assigning to her exceeds the total liquid assets in her possession.” The key issue here is whether “greater ability to pay” means greater income or greater ability to sell non-marital assets. The judge was basing his decision on ability to sell assets. Yet, in the section of his memorandum in the July 20, 2012, order regarding spousal maintenance, the judge himself wrote: “Spousal maintenance is paid out of future income and earnings.” He himself admitted that, as a retired person, I had limited prospects for earning income. The judge also observed that the small amount of debt assigned to the wife exceeded her liquid assets. With twenty times more debt assigned to me, I faced the same situation, even worse. (chapter 47)
34. The decision of the Minnesota Court of Appeals to reverse the $50,000 award from sale of my non-marital property but keep the other two major decisions in place was clearly based upon its tradition of deferring to the trial-court judge to the greatest extent possible. It put the settlement to rest. However, my financial position continued to worsen as I struggled to make payments on the huge amount of marital debt while also paying $500 a month in permanent spousal maintenance. I was running out of credit and facing foreclosure on the duplex as I was unable to continue mortgage payments. At this point, I put most of my short-term debt, amounting to $156,610, under a debt-management program administered in Omaha, Nebraska, which required me to pay $3,418 per month over five years to pay down the debt in addition to my normal living expenses. I then filed a motion to eliminate spousal maintenance on the basis of greatly increased obligor needs. The judge instead increased spousal maintenance to $600 a month. The judge is currently considering my motion for amended findings. It is likely that his decision will again be unfavorable and I will have to go once again to the Minnesota Court of Appeals. (See Chapter 65, 76, 78.)
So ends the recitation of facts related to alleged misdeeds of my wife’s first attorney and the trial-court judge in my divorce case. I have tried to put the information together in one place. The purpose of this writing is to suggest that all is not well with Minnesota courts. Perhaps someone in a position of authority will read this and decide to do something about it. My case and its cast of characters may be unique, but I am sure others have faced a similar situation.