Filing the Appellant's Brief
This is the first big step in the appeals process. For a guy who's pro
se, I think this is a pretty effective brief. It's a shame to waste in
on the court of appeals. It's something that should be taught in law
school.
Most lawyers have never done an appeal. I suspect that Mr. Wear and Mr. Sharp have limited, if any, experiance in appellate court. That puts us on even turf. Even though they are lawyers, I'm better at working technology in my favor. And, I'm smarter than they are.
On Februray 10th 1998 the Court of Appeals issued the Opinion. As expected, they fucked me over. It's so full of error it's unreal. But I'm pro se and they are again underestimating me. I filed my Motion to Rehear which is a lot better than the original brief. I am waiting on a decision on it.
IN THE MISSOURI COURT OF APPEALS
SOUTHERN DISTRICT
)
Marc Perkel ) Greene County Case: 194DR3198
Appellant, )
) Appeal No: 21362-1
vs. )
)
Vicki Lorraine Stringfellow ) ORAL ARGUMENT REQUESTED
Respondent, )
Appeal from the Greene County Circuit Court
Division 31
Honorable Paul McGhee Judge
APPELLANT'S OPENING BRIEF
-------------------------
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====================== JURISDICTIONAL STATEMENT ====================
====================================================================
The husband appeals from final judgement rendered in a dissolution of
marriage proceeding in Green County Circuit Court, Division 31. This
court has jurisdiction pursuant to Article 5 Section 3 of the Missouri
Constitution which vests general appellate jurisdiction in the Southern
District of the Missouri Court of Appeals.
====================================================================
======================== STATEMENT OF FACTS ========================
====================================================================
IMPROPER REPRESENTATION
-----------------------
On 12-15-94 the husband ran into Sharp at the Greene County Courthouse
and pointed out to him that a member of his law firm, Evelyn A. Gwin,
was suing husband's corporation for $100,000 and inquired if this wasn't
a conflict of interest to represent two parties who are going after the
same assets. Husband followed up sending Mr. Sharp a fax regarding the
matter.
On 12-16-94 Sharp wrote a letter to the husband stating,
"With regard to your concern that we are associated with Evelyn Gwin,
who is currently suing your corporation for $100,000, I do not see
how our representation of Vicki is in anyway unethical or a conflict
of interest. Evelyn is suing your corporation which is 100% owned by
you. Vicki is suing you for divorce, asking for a reasonable share of
marital assets. As we have never represented you or your corporation,
I cannot see how there is a conflict of interest in this firm
representing Vicki, and, as a result, we will not be withdrawing as
her attorneys." (Page 18)
However, in spite of their apparent admission that the husband owns 100%
of his corporation, Sharp and Wear would later argue that the
corporation and the assets of the corporation were marital property.
THE FAKED DEPOSITION
--------------------
On December 20, 1994, William A. Wear Jr. and James R. Sharp filed a
notice to take the deposition of the husband on January 4, 1995.
On December 21, 1994, the husband filed a motion pursuant to 61.01(a) to
quash depositions. (Page 8)
Thereafter, on December 22, 1994, the husband faxed a letter to Wear and
Sharp, and the Court, averring that the deposition of the husband on
January 4, 1995, had been canceled as a matter of law pursuant to Rule
61.01(a). (Page 25)
The faxed letter also requested that Wear and Sharp advise the husband
if he was in error in interpreting Rule 61.01(a) and as to whether the
deposition had been cancelled or not.
On the morning of January 4, 1995 at 8:45 am, the husband telephoned the
office of Wear and Sharp to confirm that the deposition had been
canceled.
Their secretary said that there were no depositions scheduled for the
morning January 4, 1995.
In a motion filed in United States District Court on October 21st 1996,
a Motion prepared by their lawyer Mr. Duncan, Wear and Sharp state:
"Based on his interpretation of the Missouri Rules of Civil
Procedure, specifically Rule 61.01(a), Plaintiff thought that by
simply filing the motion to quash his deposition was effectively
canceled. Plaintiff communicated this belief by letter and telephone
to both the Court and Defendants Wear and Sharp, requesting that he
be informed if he was in error in believing that his deposition was,
in fact, canceled by his motion. He received no response from either
the Court or Defendants Wear and Sharp. Accordingly, he did not
appear on January 4th 1995 for his properly noticed deposition."
In the above mentioned motion Wear and Sharp further state:
"Nor were Defendants Wear and Sharp under a duty to telephone the
Plaintiff and inquire about his absence when he failed to appear for
his deposition."
Although Wear and Sharp claim they were not under a duty to telephone
the husband, Local Rule 32.1 "Use of Discovery and Certification To
Circuit Division" indicates otherwise. 32.1 states:
"Any motion made pursuant to, or to enforce, the provisions of
Supreme Court Rule 56 through and including 61 will not be considered
by the Court unless the movant files with such motion a statement of
counsel stating:"
"That he or she has communicated with the opposing party or his or
her counsel in a sincere attempt to communicate with the opposing
party or his or her counsel without success and setting forth in
detail the particulars of such attempt."
"Failure to comply with this rule shall be sufficient ground, in the
discretion of the Court, for overruling the motion so filed or
striking it from the files."
The husband has placed phone calls to every court reporter listed in the
Springfield Yellow Pages and in every case after checking their records
shows no court reporter was scheduled to take a deposition at the
offices of Wear and Sharp on the morning of January 4th 1995. The
husband believes that there was in fact no deposition to show up to.
Based on information and belief Wear and Sharp made no provisions for a
court reporter to take the deposition.
MOTION FOR SANCTIONS
--------------------
Later, the same day of the alleged deposition, Wear and Sharp filed a
motion for sanctions against the husband, averring that the husband had
"failed to appear to a lawfully noticed deposition." (Page 26)
At a hearing before Commissioner Tinsley on January 12, 1995, Sharp
averred to the court that although he had expected the husband to
appear, the husband failed to appear.
Based upon this, Sharp sought sanctions seeking: to strike husband's
pleadings in that case pursuant to Rule 61.01(f) of the Missouri Supreme
Court Rules; and for reasonable attorney's fees.
Commissioner Tinsley granted their motion for sanctions against the
husband. (Page 29)
Specific sanctions were not imposed at that time. However the Court
record reflected a ruling for sanctions to be imposed at a later date.
On April 4th 1995 Commissioner Winston Davis entered an order against
the husband directing him to pay Wear and Sharp $2500 in attorney's
fees. This amount was more than twice the amount granted in an earlier
decision he made. (Page 30)
On July 31st 1996 Judge McGhee entered an order which contained in part
that the husband pay to the Law Firm of Wear and Sharp an additional
$12,500 in attorney's fees.
TAMPERING WITH A WITNESS
------------------------
The relevant sections of Missouri Revised Statutes 575.270 states:
"A person commits the crime of tampering with a witness if, with
purpose to induce a witness ... in an official proceeding ... to
absent himself ... he: (2) Uses ... deception ..."
In this instance the "official proceeding" was the deposition that Wear
and Sharp scheduled for January 4th 1995. In this deposition the husband
would have been the "witness", except that the witness was "absent"
because Wear and Sharp had used "deception" to allow through their
silence for the husband to believe that the deposition was cancelled.
A deposition is an official proceeding.
The husband was to be the witness in this official proceeding
(deposition).
The Witness (husband) was absent from the official proceeding
(deposition).
Wear and Sharp have admitted in their motion in Federal Court (see
above) that the reason the Witness (husband) was absent from the
official proceeding (deposition) was because he believed that the
official proceeding (deposition) was canceled.
The husband contends that if the husband can demonstrate to the Court
that the Wear and Sharp used deception to cause the Witness (husband) to
be "absent" for the official proceeding (deposition), that the criteria
for the crime of "Tampering with a Witness" is met.
SEPARATE MAINTENANCE
--------------------
On February 2, 1995, a hearing for temporary maintenance was held before
Judge Davis of the Greene County Family Court.
The husband filed unaltered income tax returns, to which he swore under
penalties of perjury, specifying his net monthly income.
Sharp, Wear and the wife had copies of the husband's tax returns prior
to the hearing that were provided by the husband.
Despite notice of the tax returns Wear nonetheless made the unverified
allegation at the hearing by stating to the Court that the husband
"Cleared $10,000 a month".
The wife proffered documents and stated to the court under oath
indicating her income was $400 per month.
The wife stated to the court under oath that she received $125 per month
of social security income.
However, the wife later disclosed through discovery her checking account
records which indicated her income to be far greater than $400 per
month.
These same checking account records also indicated that her social
security income was in fact $363 per month and she had been receiving
that amount for at least 2 months before the hearing.
On April 4, 1995, an order entered granting the wife temporary
maintenance in the amount of $1200.00 per month, in addition to medical
and auto insurance for the daughter of the wife by a former marriage,
all based upon Wear's unverified allegation and documents the wife
proffered to the Court. (Page 30)
DIVORCE TRIAL
-------------
On June 24 and 25, 1996 a hearing was held in Greene County Circuit
Court to finalize the divorce between the husband and the wife.
The husband is the chief executive officer, board of directors, and
owner of all of the stock of Computer Tyme Inc.
At the hearing the wife produced an inventory list of assets of Computer
Tyme Inc., and their respective values.
In rebuttal, the husband produced documentary evidence including an
inventory list the items of Computer Tyme Inc., specifying the true
value of assets ,income tax returns, and corporate financial statements
prepared by a Certified Public Accountant.
A comparison of the values of specific items proffered by the wife and
the true value of these items indicates the values were inflated by a
factor of 10-20 times.
Despite record evidence to the contrary, the wife represented to the
court that the husband's software was currently worth $750,000.
The wife's expert accountant informed the wife that the company was only
worth $40,000 to $60,000, yet the wife represented to the court the
company was worth about $1,000,000.
In the wife's proposed property division she lists about $1,200,000
worth of marital assets.
The wife produced lists of checks written on the checking account of
Computer Tyme Inc. to pay for personal items. This list was used at
trial to establish that the husband was taking corporate money for
personal use.
The wife worked at Computer Tyme Inc. and was personally familiar with
the computerized accounting system and knew or should have known that
the procedures used to account for personal distributions from the
company checking account.
The wife knew or should have known that personal expenses paid for with
company checks were accounted for in the software and that Computer Tyme
uses accepted accounting procedures. In fact the wife admitted at trial
that she produced the list of personal expenses paid for with company
checks using the software.
The husband produced an expert witness, his CPA Knial Soutee, who
explained that funds dispersed to the husband from Computer Tyme Inc.
were done in a lawful manner.
However, the wife characterized these accounting procedures in her
testimony as a misuse of company funds.
As one of their trial witnesses Sharp called Mr. Dean Powell to the
stand. Mr. Powell is the owner of Powell Enterprises, a used office
supply dealer. Mr. Powell was asked by Mr. Sharp about sales of used
office equipment to Computer Tyme Inc.
Apparently unknown to Mr. Sharp, Mr. Powell had been asked to estimate
the value of Computer Tyme's office equipment and had produced a bid for
Computer Tyme. This evaluation occurred a few months before trial.
Mr. Imhof, in his cross examination of Mr. Powell, asked him to verify a
list of items and prices he quoted for Computer Tyme.
When it appeared that their own witness Mr. Powell would damage their
position, Wear moved to have his own witness disqualified.
Judge McGhee sustained Mr. Wear's objection and refused to allow Mr.
Powell to testify in cross examination.
Without notice to the husband Judge McGhee allowed Mr. Wear to present
an undisclosed expert witness, Mr. Clayton Parman, in spite of
objections from Mr. Imhof. Mr. Parman admitted under oath that he was in
fact not an expert. Mr. Imhof again objected to his testimony on that
basis and was again overruled by Judge McGhee.
JUDGEMENT
---------
On July 31st, 1996 Judge McGhee entered an Order in the "Divorce of
[Respondent] Marc Perkel and [Petitioner] Vicki Stringfellow."
The Order directed the husband to pay a sum of $60,000 plus $1000 a
month for one year plus about $4000 of her credit card debt, and the
husband lost his farm and farm equipment that he paid for, despite that
the husband filed evidence with the Court that his gross assets were
less than the amount of the judgement.
In his arguments at trial, Wear argued that the husband should be
required to pay his attorneys fees because the Court had sanctioned the
husband for failing to show up for his deposition.
The Order also directed the husband to pay attorneys fees in the amount
of $12,500.
The amount of the judgement was in excess of 100% of the husband's net
assets.
AFTER TRIAL MOTIONS
-------------------
On 08-30-97, the husband, through his attorney Mr. Imhof filed his
Motion for New Trial and/or Reconsideration.
On 09-25-96 Mr. Wear and/or Mr. Sharp filed the divorce decree on the
title of a 78 acre piece of land (the Fair Grove Property) in behalf of
the wife to transfer ownership of this property to the wife.
At the time that Wear and Sharp filed the divorce decree on the title of
the Fair Grove property to transfer ownership to Ms. Stringfellow the
judgement was not yet final.
On 10-29-96 a hearing was held before Judge McGhee to discuss the
husband's Motion for Reconsideration. At the hearing Judge McGhee gave
the husband and opportunity to submit a new proposal for a property
settlement. The husband submitted the attached suggestions for dividing
property. The husband dismissed his attorney Mr. Imhof and submitted
arguments himself.
The husband established in the record that no evidence was presented by
either side indicating that the husband had the $72,500 in cash that was
due immediately. The husband pointed out that the judgement was in
excess of 100% of his assets and that he thought that such a judgement
would force him into immediate bankruptcy. The husband pointed out that
the decision of the Court lacked the necessary findings required by law
to support a decision for maintenance.
On 11-18-96 Judge McGhee denied the husband's motions for
reconsideration and/or new trial and thus the judgement became final.
REQUESTS FOR MODIFICATION OF FINAL DECREE
-----------------------------------------
The husband then submitted motions to the court asking Judge McGhee to
grant him a payment schedule for $72,500 that was due immediately. The
husband indicated that the final order would force the husband into
bankruptcy.
The husband also submitted a motion for a restraining order to prevent
execution of final judgement and requested a hearing on his motions.
On 11-30-96 Judge McGhee made the following finding:
"... and the Court finds that it does not have the authority to grant
the motions as the Order entered on November 18, 1996, concluded the
case."
The husband made a motion to recuse Judge McGhee. The motion to recuse
was based on the accusations that in spite of the evidence presented by
both sides that the judge made an order which he knew or should have
known would force the husband into bankruptcy. The husband also
complained that he was being denied due process rights to have hearings
to have his motions considered by the Court.
Within 10 days of final judgement the husband filed his notice of
appeal. (Missouri Court of Appeals Case #21362-1)
On 01-15-97 the husband filed an independent action in equity against
the wife, Wear, and Sharp pursuant to Missouri Rule 74.06 for fraud upon
the court. (Greene County Case #197CC0170)
====================================================================
========================= POINTS ON APPEAL =========================
====================================================================
I have omitted the case sites in this section because I have them in
the Arguments section where it is more readable. It seemed logical to
me to quote the sites where I'm explaining my point.
DIVISION OF PROPERTY
--------------------
The trial court abused it's discretion in the division of property
because the judgement was impossible. It isn't possible for either
party to comply with the order. An impossible judgement is no
judgement. The order of the court calls the husband to pay huge cash
sums far beyond his assets and orders the wife to pay debt that far
exceeds her income.
The trial court abused it's discretion in the division of property
because it was fundamentally unfair in that a person who was married for
only five year with no kids shouldn't have to pay more than 100% of
everything he owns in a divorce. The wife is not entitled to the
judgement.
The trial court abused it's discretion in the division of property
because the judgement was against the weight of the evidence.
The trial court abused it's discretion because the entire divorce
process was tainted with judicial bias.
INCOMPLETE ORDER
----------------
The trial court erred because the order of the court is incomplete,
ambiguous and confusing in that it lacks necessary findings required by
law and it makes the maintenance conditional, but doesn't resolve the
conditional. The order contains no evaluation of property and there are
insufficient findings to justify or explain the decision. Although the
court may not be required to evaluate property, one would think that a
distribution that is in excess of 100% of net assets requires an
explanation.
The judgement is incomplete because it fails to dispose of all the
issues in that it fails to completely divide the property. By giving the
Wife the Fair Grove property and the debt on that property the judgement
failed to divide the marital property. The husbands name is still on the
loan and his home, which he was awarded, is still collateral on the
Wife's loan.
MAINTENANCE
-----------
The court erred in the order for maintenance in that it is unclear as to
if maintenance is being ordered or not. The order is conditional and
a conditional order is void.
The court misapplied the law by granting maintenance in that the
requesting party must state she cannot meet her reasonable needs through
property or employment. The wife stated the opposite was true.
The court misapplied the law by granting maintenance because the court
did not make the required finding to support a decision for maintenance.
Maintenance can only be awarded if the court finds that the requesting
party cannot meet his or her reasonable needs through property or
employment.
The court misapplied the law in that the Court didn't take into account
that the Wife admitted under oath that she could earn an income but
chose not to and therefore expended marital funds or property
unreasonably to the deprivation of the Husband.
The court erred in granting maintenance that was not modifiable.
CORPORATION
-----------
The court erred in ruling that the husbands non-marital corporation was
marital property without any explanations or findings to support this
conclusion.
The court misapplied the law in apparently piercing the corporate veil
because the court did not make a finding that the corporate veil should
be pierced. Common law requires a finding of fraudulent concealment to
justify piercing the corporate veil. The judge allocated corporate
assets as if the corporation didn't exist.
The court misapplied the law in ruling that all the husbands common law
copyrights were a marital asset without any explanations or findings to
support this conclusion. Although the court awarded these copyrights to
the husband, the court apparently placed some value in them in the
distribution of property without stating what that value is. The court
of appeals should rule if the trial court even has the jurisdiction to
evaluate and distribute the contents of the husband's brain as a
division of property.
DUE PROCESS
-----------
The court misapplied the law in allowing a expert witness, Clayton
Parman, because he was not disclosed in discovery and he was to continue
to testify as an expert after he admitted to the Court that he was not
an expert.
The court misapplied the law in allowing the wife's attorneys to
disqualify their own witness when it was apparent that the witness's
testimony would damage the wife's position because one should not be
allowed to disqualify their own witness.
The court denied the husband his due process rights because the judge
acted as an advocate for the wife's position by allowing her witnesses
that the husband couldn't have; by denying the husband his right to
cross examine the wife's witness; and by allowing the wife to have
hearings for injunctions while denying husband the same.
FRAUD UPON THE COURT
--------------------
The judgement was won on the basis of fraud upon the court. That the
Wife proffered fabricated documents to the court and successfully
deceived the judge into believing that the Husband had assets and income
far greater than she knew he really had.
The wife's lawyers tampered with the administration of justice by
scheduling a deposition and then deliberately led the husband to
believe it had been cancelled. Then these lawyers filed and got
sanctions against the husband for failing to attend a deposition
which never occurred.
Allowing the wife's lawyers to file the divorce decision on the deed to
the Fair Grove property to transfer property to the wife before the
judgement was final very irregular because this act indicates that the
wife and her lawyers already knew what the final decision was going to
be before it was made and indicates a conspiracy between the wife's
lawyers and the judge.
DIVISION OF PROPERTY
--------------------
The court abused it's discretion by ordering to pay $60,000 to the wife
and $12,500 in attorney's fees plus about $4000 in credit card fees
because the Court refused to allow a hearing for a payment schedule.
Neither side presented any evidence that the Husband had the ability to
pay or borrow this amount of money. The net judgement was in excess
of 100% of the husband's assets.
The court abused it's discretion in awarding the Fair Grove property
and it's debt to the wife because the husband made all the payments and
improvements on the property while paying a substantial amount of his
salary to the wife as maintenance during this same period.
The court abused it's discretion in awarding the tractors and equipment
on the Fair Grove property and it's debt to the wife because the husband
bought all the equipment from his own money while paying a substantial
amount of his salary to the wife as maintenance during this same period.
The court misapplied the law in ruling that a portion of the husbands
non-marital home was marital because it was paid for with a dividend
check from husbands corporation which should have been ruled
non-marital. The court should have used the "Source of Funds" rule. It
is also inconsistent with his ruling that the wife's former home was
non-marital even though significant marital funds were spent on it.
THE TRIAL WAS IRREGULAR
-----------------------
Attorneys representing Ms. Stringfellow committed an extraordinary
number of violations of the Rules of Professional Conduct that the
administration of justice was subverted. These ethical violations denied
the husband due process of law and turned the trial into a sham.
ATTORNEY'S FEES
---------------
The court abused it's discretion in awarding the wife attorney's fees
when the wife had already been awarded a $60,000 cash settlement. With
that much cash and property the wife would be able to pay her own
lawyers.
====================================================================
=========================== ARGUMENTS ==============================
====================================================================
GENERAL
-------
This case has so many errors and improprieties that I couldn't begin
to document everything. In general, this case shocks the conscience.
It is absolutely unbelievable that this can happen in the United
States of America.
This is a case where two attorneys, who are officers of the court,
abused they power and authority while the husband was representing
himself pro se. As an officer of the court a lawyers word carries
much more weight than does a pro se litigant who is unpopular with
the court. Knowing their advantage these lawyers used dishonesty and
deceit in order to take advantage of the husband who was less
familiar with the rules of court, but no less entitled to justice
than anyone else.
MAINTENANCE
-----------
The Court erred and abused it's discretion in ordering the husband to
pay $1000 per month to the wife. The court also made an error of law
in the award of maintenance.
Missouri Statute 452.335 states that:
"1. In a proceeding for nonretroactive invalidity, dissolution of
marriage or legal separation, or a proceeding for maintenance
following dissolution of the marriage by a court which lacked
personal jurisdiction over the absent spouse, the court may grant
a maintenance order to either spouse, but only if it finds that
the spouse seeking maintenance:
(1) Lacks sufficient property, including marital property
apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment or
is the custodian of a child whose condition or circumstances make
it appropriate that the custodian not be required to seek
employment outside the home."
In the final judgement the required finding is absent. Not only is it
absent, but the wife testified at trial that the opposite is true.
(Page 171-177) She testified that she was capable of earning $15 per
hour (Page 172) stating as follows:
Q. Okay. Do you believe you're capable of earning $15 an hour today?
A. Yes, I am.
Q. You worked as a legal secretary at one point?
A. That's correct.
Q. And are you still capable of working as a legal secretary?
A. Yes.
She also decided to not seek employment to meet her expenses. On Page
175 of the transcripts the wife states:
Q. So, basically, by your own decision, you have made considerably
less money over the last two years than you could otherwise have
made?
A. That's right.
Q. And you made this decision on your own?
A. I did.
Neither the law nor the courts recognize or impose any dependence of
one spouse on the other. Steinmeyer v. Stienmeyer 669 S.W.2d 65,67
and Doerflinger v. Doierflinger, 646 S.W.2d 798. The burden of proof
is on the wife, not the husband to show an entitlement and need for
maintenance.
The law imposes an obligation to make reasonable efforts to support
oneself. Sanders v. Sanders 797 SW2d 874 and Oldfield v. Oldfield,
767 S.W.2d 134,136. Unlike the facts in Sanders and Oldfield the wife
is not disabled. in Heins v. Heins the court upheld the requirement
of Mo. 452.335 that the wife must assert that she needs maintenance
and court is required to make a finding she needs maintenance.
In the final decree [page] the judge is obviously unclear as to his
powers to award maintenance and states;
"The Court finds that it should grant a limited non-modifiable
maintenance order to petitioner, and if this time limitation as
requested by petitioner is invalid, then no maintenance at all
should be ordered."
If the judge doesn't know if it's valid, how are the husband and wife
to know? Obviously the conditional in the judge's decision needs to
be resolved. The husband contends it is invalid because the
requirements of 452.335 are not met.
In Lois M. Burger, v. David W. Burger, III, 1972.MO.293 the court
ruled:
"A final conditional decree, one that does not operate in
praesenti, but is to become operative on the occurrence of some
condition, is void." 30A C.J.S., Equity, Section 584, p. 651.
This case is more than just conditional. In this judgement the judge
is admitting in the decision that he doesn't know what he doing. The
husband contends that this kind of error shows the judge is
incompetent and speaks not only to this issue but casts doubt on the
validity of the entire decree.
The court also erred in making the award of maintenance
non-modifiable. The court should have anticipated that the wife would
at some point have to get a real job and support herself, which she
eventually did.
For almost 2 years during the time the divorce was pending the
husband had to pay the wife $1200 per month, one of her credit cards,
her health and auto insurance as well as the health and auto
insurance of her daughter (not the husband's child) and make the
payments of $921 per month on property that was awarded to the wife.
These payments totaled more than $40,000 which the husband contends
is plenty of maintenance for a five year marriage that produced no
children. The husband contends that the court failed to take into
account that the wife had already received two years of maintenance.
The judge awarded the wife the sum of $60,000 but it's unclear if
this money is to be considered as a division of property or as
maintenance in gross. If it's a division of property then there's a
problem. Neither the husband nor the wife offered any evidence that
the husband had $60,000 or the ability to get $60,000. Since neither
side indicated to the court that this property existed, then the
court would be giving the wife property that neither the husband or
the wife owns.
If the judge intended for this money to be used to balance the
marital division of property then it would have been reasonable to
allow the husband to make payments. However when the husband
requested payments (Page) the judge refused his request. (Page) Such
an order is at least an abuse of discretion.
If the $60,000 was to be construed as maintenance in gross then the
court, as with the $1000 per month payment is required to make a
finding that the wife needs the money, which he didn't do; and the
wife has to state that she meets the requirements of 452.335, which
she didn't do.
Husband contends that the award of attorney's fees are also in effect
maintenance in gross as well as the award for $4000 of the wife's
credit cards.
In Doris Jean Swanson, v. Paul Eugene Swanson, 1971.MO.151 the court
reversed and remanded an excessive award of $36,000 of maintenance
because it was 90% of his net worth, even though the court allowed 10
year for payment. In this case the wife got about 125% of the
husbands net worth and there was no allowance to make payments. This
money was due immediately and since the money could be considered
maintenance in gross the money might not have been dischargeable in a
bankruptcy proceeding. In fact the husband talked to a bankruptcy
lawyer and he said the judgement was so screwed up that he couldn't
tell what a bankruptcy judge would do with it.
Summary:
1) Wife failed to state she was legally entitled to the money.
2) Judge failed to make a finding wife needed the money.
3) The order for maintenance is conditional and it's unclear what
the judge ordered.
4) The court failed to take into account two years of maintenance
that the wife already received.
5) The court awarded money to wife that the husband didn't have which
should be construed as maintenance in gross, or in this case,
error in gross.
6) The court failed to consider that $40,000 of maintenance the wife
received from the husband before the trial.
DIVISION OF PROPERTY
--------------------
Since the wife was awarded the Fair Grove property which was
appraised at $117,000 and had a debt of $80,000 which the wife was
awarded. The court failed to take into account that other than the
$7000 down payment that the husband made all of the payments and
spent $20,000 on improvements to the property including clearing the
land of thousands of thorn trees, putting in electricity, a well, a
road, and 2 ponds. This was paid out of the husbands money while he
was at the same time paying the wife separate maintenance.
The husband also paid $3700 for a portable building on the land and
about $10,000 for 2 tractors, a trailer, and tools, all of which were
awarded to the wife. The wife also got the balance of the note which
she is supposed to pay but hasn't.
The husband got his house which he purchased 7 years before the
marriage, his pickup truck which he paid for, and his business which
he had started 5 years before the marriage. The husband's home is
collateral on the note for the property awarded to the wife. The
order of the court was that the wife hold the husband harmless from
this debt, but the wife is attempting to sell the property while
leaving the husbands name on the note and his house as collateral.
Summary:
1) The wife got the ring, the husband got the finger! The decision of
the court is against the weight of the evidence.
2) The court ignored the "source of funds" rule.
FAILURE TO DIVIDE PROPERTY
--------------------------
By giving the Wife the Fair Grove property and the debt on that
property the judgement failed to divide the marital property. The
husband is still responsible for the debt awarded to the wife and the
husband's home, which he was awarded, is still collateral on the
Wife's loan. Thus the divorce judgement failed to fully separate the
assets of the husband and wife which is what a divorce is supposed to
do and therefore the judgement is at least incomplete. [Corder v.
Corder] Ravenscroft v. Ravenscroft (supra) 1.c. 274[6]; Fields v.
Fields (supra) 1.c. 166-167[8-12]; In re Marriage of V.M., 526 S.W.2d
947, 951[9] (Mo. App. 1975).
Since the judgement became final the wife has made no effort to
remove the husband from is obligation on the loan and free up his
house as collateral even though she now has enough income to take
over the loan as required by the divorce decree. The wife is
attempting to sell the Fair Grove property while leaving the husband
obligated to pay the loan. The wife is attempting to collect money
that is owed to the husband's corporation. The husband it unable to
pay the vast sums of money that the court ordered him to pay and the
court denied him a payment schedule to make the payments affordable.
Since judgement became final the decision of the court has resulted
in several lawsuits being filed in state and federal court. Although
some of the counts of these lawsuits involve civil rights violations,
criminal torts, and fraud, many counts deal with the division of
property and the interpretation of the unclear judgement. It is clear
from the results that this judgement does not work. Neither side has
complied with the order nor does either side intend to. We are stuck
with a judgement that is so full of error that it in effect does not
exist. And how can a nonexistent judgement be upheld by the Court of
Appeals?
In Re: The Marriage of: Ingrid Morovitz, 1985.MO.486
" However, it has also been generally true that an essential
requirement of a judgement is that it be sufficiently certain in
its terms to be susceptible of enforcement in the manner provided
by law. To comply with this requirement, the judgement must
adjudicate the controversy to a conclusion which permits issuance
and processing of an execution without external proof or another
hearing. In re Marriage of Dusing, 654 S.W.2d 938, 945 (Mo. App.
1983); Luna v. Grisham, 620 S.W.2d 427, 428 (Mo. App. 1981);
Ravenscroft v. Ravenscroft, 585 S.W.2d 270, 273 (Mo. App. 1979). A
judgement which is indefinite is void and unenforceable. Luna v.
Grisham, 620 S.W.2d 427, 428 (Mo. App. 1981). Clearly no execution
could have issued on the September 1982 judgement."
Summary:
1) Husband contends that if the judgement fails to divide the marital
property then the judgement must be modified or overturned.
COMPUTER TYME INC.
------------------
The Court ruled in it's judgement that Computer Tyme, Inc. a
corporation duly organized under the laws of the state of Missouri
and in good standing since the time of it's inception in 1984, five
years prior to the marriage of the parties, was a marital asset. Yet
there is no explanation as to why this corporation should be
considered marital property.
It is clear that in order to pierce the corporate veil as the Court
is apparently doing, it must be found that the corporation was used
as a "subterfuge to defeat public convenience, for the perpetuation
of a fraud, or a means to justify a wrong." LYNN VS. LLOYD
A.LYNN,INC. 493 SW2d 363, 366 (Mo. App. E. D. 1973), KRAJOVIC VS.
KRAJOVIC, 693 2d 884, 886-887 (Mo. App. E. D. 1985, BUTLER VS.
BUTLER, 379 SW3d 175, 178 (Mo App. E. D. 1964).
This judgement makes no finding that would pierce the corporate veil.
However the judgement declares by omission that the husband's
corporation, Computer Tyme Inc., a business that was incorporated 5
years before the marriage, is marital property. This one would think
deserves some sort of explanation as to why the court would make such
an unusual decision.
Although the corporation was given to the husband, the judgement
assigns corporate property to the husband and wife as if the
corporation didn't exist. The corporation is a separate legal person
under the law and the corporation wasn't married to the wife. Without
piercing the corporate veil the judge is limited to only declaring
who owns the corporate stock. By assigning assets of the corporation
to the wife the judge is piercing the corporate veil without making a
finding that the corporate veil should be pierced.
Summary:
1) Without a finding of fraudulent concealment the family court doesn't
have the authority to touch the corporate assets.
2) There is no basis in law to support a ruling that a corporation
formed five years before the marriage is marital property without
making some finding to explain this decision.
3) The judge makes no findings to support the unusual decision that
the husbands corporation should be marital property.
ACCOUNTING FEES
---------------
The husband was ordered by the court to pay to the wife's accountant
$3500 to evaluate the net worth of his business. The husband paid.
The accountant made a report to the wife that her estimates of the
worth of the business was too high and they decided not to do a full
evaluation. The accountant indicated that he only had used $1500 of
the $3500 and that $2000 was refunded to Mr. Sharp. Mr. Sharp has
kept the money and hasn't even formally acknowledged he has it or
what he did with it. Since it wasn't part of the judgement, the
appeals court needs to decide how this money should be applied.
If the wife's lawyer intends to keep the money due to the husband he
should at least be required to say how much he got and why he kept it
as well as if he or the wife got the money.
COMMON LAW COPYRIGHTS
---------------------
The husbands business is computer software. By default any one who
writes software, literature, or music by default has a common law
copyright. This gives the author the right to sue if someone
infringes on the copyright. The copyright itself may or may not have
value.
The wife contends that the copyright is worth $750,000 based on a
loan application that was originally filled out in 1990 and copied in
1993 to transfer the loan to a new bank. The trial court heard
testimony on the worth of these copyrights. The husband at trial
explained that the $750,000 was a projection of future gross profits
over a 5 year period and admitted that his company in fact over that
period of time sold more than that. However, there are expenses of
running a company such as rent, salaries, and advertising, the
husband's tax returns indicate that he only averaged about $50,000 a
year from his business.
The software in question is MS-DOS software and is now obsolete.
The wife's own expert accountant evaluated the husband's company at
$40,000 to $60,000 including the "use" of the husband's copyrights.
Although the court gave the copyrights to the husband. In reality the
court had no authority to give them to anyone. These copyrights are
in reality no more than the contents of the husband's brain. Title 17
Chapter 2 Section 201(e) of the United States Code states:
"Involuntary Transfer. - When an individual author's ownership of a
copyright, or of any of the exclusive rights under a copyright, has
not previously been transferred voluntarily by that individual
author, no action by any governmental body or other official or
organization purporting to seize, expropriate, transfer, or
exercise rights of ownership with respect to the copyright, or any
of the exclusive rights under a copyright, shall be given effect
under this title, except as provided under title 11 [bankruptcy]."
Thus, since these common law copyrights were never voluntarily
transferred, it appears that the family court would not have the
authority to do so. These copyrights are not an object that is under
the authority of the family court to divide. Thus, the award of these
copyrights was a misapplication of the law.
Since these copyrights rights are for software they are unlike
copyrights for a song or a movie. Software copyrights are "dynamic"
rather than "static" in that a software copyright includes other
things that make it valuable that are necessary in the transfer of
rights. I would take a moment of the courts time to try to explain
this.
A telephone book is copyrighted. It contains a list of current
telephone numbers. But what is the copyright worth on a phone book
that's 5 years old? Nothing! What gives the copyright on the phone
book value is the promise and trust that the phone company will print
a new phone book every year. If the phone company quit printing phone
books, the copyright would be worthless. The copyright only has value
if the phone company continues to invest the resources to keep it
current.
The husband's software is similar. A company doesn't buy just a
license to use the software. The company expects technical support,
someone to call if they have a problem or question. They expect that
bugs will be fixed, features added, and that the software be
maintained to be compatible with changing technology. Thus the
software's value can't be separated from the services the husband
continues to provide in the future.
Then there's the issue of when the software was written. Some of it
was written before the marriage, some during, and some after. All the
software has been improved, fix, and upgraded before, during, and
after the marriage. The wife admitted she had nothing to do with the
creation of the software. On what basis is the court to contend that
this is marital property and how it is to be divided up? There is no
case law to support the contention that intellectual property of this
nature would be considered marital, and the burden of proof is on the
wife.
Missouri law has recognized the "source of funds" rule in determining
the division of property. If an object is bought with non-marital
funds then it is considered to be non-marital. Perhaps one could
argue that there should be a "source of brains" rule that should
apply. The software was the exclusive creative product of the
husband. Doesn't that make it his then?
If the wife can claim rights to the husbands intellectual abilities
then the wife should have to declare all her creative works,
knowledge gained, or any other ability acquired during the marriage
as marital property. The wife might not have her current job if not
for the business and computer skills she learned while working part
time in the husband's business during the marriage. Is the husband
not entitled to a percentage of the wife's paycheck? I think not. Nor
is the wife entitled to the husband's future earnings.
The decree made no evaluation of these copyrights and it is unclear
what the thinking of the judge was. However common sense would
dictate the following: If these copyrights could be cashed in for
$750,000, that would be 15 years of the husband's income. This
interest alone would be in excess of the husband's average income.
Why would the husband continue to work for a living? Obviously if the
wife were to offer the husband $750,000 cash for these copyrights,
the husband would be more than willing to accept.
DENIAL OF DUE PROCESS
---------------------
The essential elements of due process of law are notice and an
opportunity to be heard and to defend in an orderly proceeding
adapted to the nature of the case before a tribunal having
jurisdiction of the cause." 12 Am. Jur., Constitutional Law, 573, pp.
267, 268.
During the trial the wife's lawyers called a witness to the stand.
The witness was Dean Powell. The witness was examined but the husband
was denied the right to cross examine the witness because the wife's
lawyers were allowed to disqualify their own witness.
Later, the wife was allowed to call an undisclosed expert witness
which the husband had no opportunity to depose. This undisclosed
witness admitted to the court that he was in fact not an expert, yet
the judge allowed him to continue to testify.
The court abused it's discretion in denying the husband his due
process rights. In an attempt to fix clear errors the husband has
made several post trial motions asking the court to fix mistakes,
complete it's judgement, and to supplement it's order for cash
judgement with a payment schedule so as to attempt to make the order
at least possible. All motions were denied without a hearing. All
requests for hearings were denied.
The Court has stated that it considers the case to be concluded and
refuses to hear any motions by the husband. However, the judge did
allow the wife to have a post trial hearing and made a decision for
an injunction in her favor in spite of the rules of court and his
previous ruling that the case was closed. If the wife is allowed to
have her motions heard the husband should be allowed to have had his
motions heard.
PLAIN ERROR REVIEW
------------------
The facts of this case indicate that for whatever reason the
judgement is just plain wrong and that Rule 84.13 (c) should be
applied. Because of the lack of findings of fact, we don't know what
the judge intended.
ATTORNEYS FEES
--------------
Husband contends that attorney's fees should not have been awarded
because the wife already was awarded more than 100% of husbands
assets and should have enough money from that to pay her lawyers.
Vanessa Crawford Wise, v. Keith Arnold Crawford, 1985.MO.655
"Lastly, appellant contends the trial court erred in the award of
attorney's fees to respondent. Although award of fees rests in the
discretion of the trial court, the award may be reversed on appeal
where the trial court manifestly abuses this discretion. L.J.S. v.
V.H.S., 514 S.W.2d 1, 9 (Mo.App. 1974) citing Keefe v. Keefe, 435
S.W.2d 313 (Mo. 1968). "The fundamental consideration in
determining whether the wife is entitled to an award of attorney
fees is whether she is possessed of sufficient means to prosecute
the suit on her own." [514 S.W.2d at 9.] The record indicates that
respondent's yearly income is at the least $18,000.00. Upon an
analysis of the parties relative means, we find the trial court
erred in its award of attorney's fees. The award of attorney's
fees is reversed and vacated."
These attorneys committed professional misconduct to the extent that
it shocks the conscience and because of this conduct they don't
deserve a fee.
FRAUD UPON THE COURT
--------------------
In re the Marriage of ROBERT DAVID McKARNIN, Petitioner 1990.MO.765
the court explained in detail the nature of the type of fraud that
would qualify to overturn a divorce decree. It states as follows:
The independent action in equity to set aside a judgement,
particularly judgements or decrees of divorce or dissolution of
marriage, has been considered in numerous cases. In L.C.F. v.
D.H.F, 333 S.W.2d 320, 323[1] (Mo. App. 1960), the court held that
a court of equity will vitiate decrees of divorce if the decree
was procured by fraud. But the court stated there is a sharp
distinction as to the nature of the fraud which must be shown
before a court will vacate a divorce decree. The court stated:
The fraud must relate, not to the merits of the action, that is,
whether or not the prevailing party was entitled to the decree of
divorce, but rather to some matter by which the prevailing party
secured the decree.
In Jones v. Jones, 254 S.W.2d 260, 261[1,2] (Mo. App. 1953), the
court held that equity has jurisdiction to set aside a judgement
for fraud if the fraud related, not to the propriety of the
judgement itself, but to the manner in which the judgement was
obtained. The court stated:
In other words, the fraud must have been extrinsic or collateral
to the matters which either were or could have been presented and
adjudicated in the original proceeding, and not merely intrinsic
in the sense of having pertained to the merits of the cause upon
which the judgement of the court was rendered.
The court further explained that it is not in the province of this
type of equity relief to give the losing party a retrial of
matters which where tried or concluded by the original proceeding,
but rather the relief is limited to those instances where the
fraud was of such a nature that it forestalled an opportunity for
a fair submission of the controversy.
From Jones it is clear that an action in equity to vacate a
judgement can be based only on extrinsic fraud and not on intrinsic
fraud. In May Dept. Stores Co. v. Adworks Inc., 740 S.W.2d 383,
385[3] (Mo. App. 1987), the court followed the Restatement,
Second, judgements in its definition of extrinsic and intrinsic
fraud. The court held:
"Extrinsic" fraud means "fraud that induced a party to default or
to consent to judgement against him." . . . "Intrinsic" fraud means
"knowing use of perjured testimony or otherwise fabricated
evidence."
Jones made it clear that equity may set aside a divorce decree
only for extrinsic fraud because to set aside a judgement on the
basis of intrinsic fraud would allow a party to retry matters
either tried or concluded by the judgement sought to be avoided.
The basis of the relief afforded by equity in setting aside a
divorce decree is to give relief in those instances where the
fraud was of the character that prevented an opportunity for the
fair submission of the case to the court which entered the decree.
However, although this case had it's share of intrinsic fraud, this
case had a much more serious form of fraud than either intrinsic or
extrinsic fraud. This case is tainted with "Fraud upon the Court".
Blacks Law Dictionary, Sixth Edition id. at 457 defines "Fraud on
Court" as:
"[Fraud on Court] consists of conduct so egregious that it
undermines the integrity of the judicial process."
The court in Sutter v. Easterly (Mo) 189 SW2d 284, articulated the
general rule defining fraud on the court within the courts of
Missouri:
"... Where a lawyer engages in a conspiracy to commit a fraud upon
the court by the production of fabricated evidence and by such
means obtains a judgement then the enforcement of the judgement
becomes manifestly unconscionable' and a court of equity may
devitalize the judgement." Id, at 288.
In Sutter it was concluded by the Court that:
"Peters' scheme and conspiracy were such a violation of a lawyer's
duty to the court --- a duty imposed not alone by the principles
of honesty and good morals but also by a code of ethics adopted as
rules of court, as to amount to a fraud on the court for which
equity will grant relief."
In Hazel-Atlas Glass Co. v. Hartford Empire Co. 322 U.S. 238 64 S.Ct.
997, 1000, 88 L. Ed 1250 addresses the issue of injury caused by
Fraud on the Court by stating:
"Furthermore, tampering with the administration of justice in the
manner indisputably shown here involves far more than injury to a
single litigant. It is a wrong against the institutions set up to
protect and safeguard the public institutions in which fraud can
not complacently be tolerated consistent with the good order of
society. Surely it cannot be that that preservation of the
integrity of the judicial process must always wait upon the
diligence of litigants. The public welfare demands that the
agencies of public justice be not so impotent that they must
always be mute and helpless victims of deception and fraud."
In Hazel-Atlas Plaintiff contends that Fraud on the Court is an act
not only against the litigant, but is an act against the judicial
system itself and demands the exercise of the historic power of
equity to set aside fraudulently begotten judgements. Since Fraud on
the Court undermines the integrity of the judicial system itself, the
husband argues that the power of the Court to devitalize a judgement
is not limited to the amount of specific damages the husband can
prove he suffered as a direct result of the act of fraud, but must
also consider the amount such fraud has damaged the integrity of the
institution of justice itself.
When Wear and Sharp filed their Motion for Sanctions against
Plaintiff they certified to the Court by their signature on the
motion, that there was in fact a deposition, and that the husband was
in fact expected to appear. However, Wear and Sharp used concealment
to deceive the husband into being absent from the deposition, and
that they really had no expectation that the husband would appear,
and it can be additionally shown that there was in fact no Court
Reporter present ready to take the husband's deposition. The husband
contends that Sharp and Wear's Motion for Sanction itself constitutes
the production of fabricated evidence by lawyers (per Sutter).
As you can see from the evidence there is a gross disparity between
the husband's real net worth and the net worth proffered by the wife.
At trial the husband produced copies of income tax statements and
asset lists and corporate financial statements as well as the
testimony of his CPA indicating a total net worth of around $140,000.
wife produced falsified documents which indicated a net worth of well
over one million dollars.
The wife proffered lists of inventory which were 6 years old from
when Computer Tyme was a computer retail store listing retail prices
on inventory that would have been 6 years old if it hadn't been
either sold or thrown away. For example, the wife lists a laptop
computer that was bought in 1992 for $3800 being worth $4500 in 1996.
A computer that old would hardly bring $250. She also lists a 1
gigabyte disk drive for $2200, which is what it cost in 1990.
However, in 1996 a disk drive twice as big brand new sells for $300.
So if a new drive twice as big sells for $300, what does that make
the 6 year old drive worth. Almost nothing.
This kind of disparity in the figures produced by the husband and the
wife should have caused Wear and Sharp to question the integrity of
their clients position and cause them to be concerned about the
validity of their clients evidence. For Wear and Sharp to proffer the
wife's fabricated evidence to the court in light of the husband's
evidence in their possession appears to be a conspiracy to commit
fraud on the court per Sutter.
Rule 55.03 of the Missouri rules of Civil Procedure indicates a duty
of a lawyer to make a reasonable inquiry of the validity of clients
evidence. Rule 55.03 states in part:
"The signature of an attorney or party constitutes a certificate
by him that he has read the pleading, motion, or other paper; that
to the best of his knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and is warranted by
existing law or good faith argument ..."
"If a pleading, motion, or other paper is signed in violation of
this rule, the court, upon motion or it's own initiative, shall
impose upon the person who signed it, a represented party, or
both, an appropriate sanction, which may include an order to pay
to the other party or parties the amount of reasonable expenses
incurred because of filing of the pleading, motion, or other
paper, including a reasonable attorney's fee.
In this case Wear and Sharp, having in their possession the tax
returns of the husband as well as his financial record prepared by
his CPA indicating a gross disparity between the husband's figures
and that of the wife. According to rule 55.03 Wear and Sharp have a
duty to reasonable inquiry which the husband contends they breached
when they proffered the wife's unverified evidence to the court.
Wear and Sharp are lawyers and as such it is assumed that they know
what the rules are. Thus their failure to make a reasonable inquiry
raises a reasonable question if they, in fact, conspired in the
fabrication of false evidence in order to obtain a favorable
judgement.
The husband contends that intrinsic fraud, if there is enough of it
becomes extrinsic fraud. This is one that needs to be written up
because it's a novel concept in law and you have the honor of hearing
it for the first time.
The husband contends that a single act of perjury is intrinsic fraud.
However, what if the perjury is massive. Suppose there is so much
perjury that it prevents the husband from having his case heard? Does
it not then graduate to extrinsic fraud?
Here's how it works. One party contends that the marital assets are
$100,000. The other party, who is lying contends that the assets are
$1,000,000 or ten times what they really are. The judge knows the
wife is lying, but doesn't know how much she's lying. Thus the judge
rules 3/4 in favor of the husband and splits it 50/50. What happens?
The wife gets more than 100% of the assets. That's what happened
here. And that's where prudery and fabricated evidence becomes
extrinsic fraud. And you heard it here first!
Summary:
1) Fraud upon the Court undermines the integrity of the judicial
process. It is unconscionable for the court to support a judgement
which was obtained by tampering with the administration of justice.
2) Faking a deposition and filing for sanctions based on the faked
deposition is tampering with the administration of justice.
3) Conspiring with a client to fabricate false evidence to proffer to
the court is fraud upon the court.
4) A lawyer has a duty to make a reasonable investigation to make sure
that the evidence proffered to the court is good evidence.
5) Fraud upon the Court is a species of fraud that goes way beyond
the mere argument of if the fraud is intrinsic or extrinsic.
6) When a lawyer conspires with a client to fabricate false evidence
and the lawyer knows the evidence is false, he has broken the
Rules of Professional Conduct and committed fraud upon the court.
EXTRINSIC FRAUD
---------------
Extrinsic fraud is the type of fraud the undermines the judicial
process itself rather than fraud relating to evidence or perjury. You
can, for example, lie to the court and present fabricated evidence,
which is intrinsic fraud. And apparently the rule is that if you can
lie and get away with it, the judicial system will support your
judgement. It would almost seem as if one had a right to be
dishonest.
Fraud upon the court however is extrinsic fraud because it subverts
the administration of justice. It's fraud that prevents a litigant
from being able to be heard or acts that would unfairly bias the
judge against a litigant.
A lawyer is an officer of the court and has a responsibility to the
public to act with honesty and integrity. The Rules of Professional
Conduct make this clear. They are there to make sure that justice is
served and that the public can have matters heard in a fair and
honest forum. Because the courts put faith in a lawyers word as an
officer of the court, the words of a lawyer are presumed to be the
truth because of their special role as an officer of the court,
When a lawyer breaks the Rules of Professional Conduct, he subverts
the administration of justice itself. When a lawyer proffers claims
to the court against a pro se litigant, the court is going to give
more weight to the lawyer because he is an office of the court. So
when an officer of the court lies to the court on a significant
matter, it subverts justice itself.
In this case Mr. Wear and Mr. Sharp scheduled a deposition. The
husband filed his timely objections to the deposition and believed,
correctly so, that a hearing must take place first to rule on his
motion to quash. The husband expressed his belief in a letter to the
wife's lawyers and asked that he be informed if he were wrong. He got
no response.
On the morning of the scheduled deposition the husband called the
wife's lawyers to inquire if the deposition was still on. The
secretary said that it wasn't. Thus the husband didn't attend. The
lawyers would later admit in a motion in federal court that they
received the husbands letter stating he believed the depositions were
cancelled, but claim they had no duty to inform the husband that the
depositions were not cancelled.
The same day the wife's lawyers filed a motion for sanctions because
the husband failed to attend the deposition. At the hearing, because
the lawyers were officers of the court, and because the husband was
pro se, the judge ruled in favor of the wife and sanctioned the
husband. This created a black mark on the record which the wife's
lawyers would later argue at trial that the husband's misbehavior
should be considered in the property settlement and the award of
attorney's fees.
Later at a hearing on separate maintenance the wife's lawyers would
again lie to the court about the husbands income. With a black mark
against the husband in the court record the court ruled double the
maintenance it ruled the first time. As a result of that and the
wife's refusal to renew a business loan, the husband could no longer
afford counsel and had to let he second lawyer go.
The husband contends that this is not mere intrinsic fraud, but a
fraud upon the court with the intention of denying the husband due
process of law and to give the wife an unfair advantage. The husband
contends that this isn't a fraud against the husband only, but that
the court and the public are also victims as well. Sutter v. Easterly
(Mo) 189 SW2d 284, Hazel-Atlas Glass Co. v. Hartford Empire Co. 322
U.S. 238 64 S.Ct. 997, 1000, 88 L. Ed 1250.
Rule 55.03 states in part that "to the best of his knowledge,
information, and belief formed after reasonable inquiry it is well
grounded in fact and is warranted by existing law or good faith
argument" and therefore the fact that a lawyer proffers evidence to
the court indicates that he, as an officer of the court, believes the
evidence to be true and credible. A lawyer can't be held responsible
for proffering evidence he doesn't know is false. However, the Rules
of Professional Conduct specifically prohibit lawyers from proffering
evidence to the court they know is false. Lawyers are also prohibited
from assisting a client to commit fraud.
When a lawyer conspires with a client to fabricate evidence, or
offers evidence the lawyer know, or should know is false, then the
lawyer becomes a party to the fraud and the fraud is no longer mere
intrinsic fraud, but extrinsic fraud because when a lawyer
participates in the fraud it becomes fraud upon the court. (Sutter v.
Easterly)
Should the wife's lawyer have known that their client was proffering
false evidence. I would think so. The client claims the couple has
well over a million dollars in assets when the income tax returns
indicate an average of $50,000 income. The husbands figures show
assets of about 1/10 of the wife's figures. It seems to me that if I
were the lawyer representing the wife that I would have to question
that. A lawyer can't take the attitude about evidence he proffered to
the court that "I don't know and I don't want to know" if the
evidence is in fact true. Wear and Sharp had a duty, per Rule 55.03,
to make a reasonable inquiry as to the validity of the wife's
evidence.
Summary:
1) Intrinsic fraud becomes extrinsic fraud or fraud upon the court
when a lawyer participates in the fraud.
2) A lawyer has a duty to make a reasonable inquiry when it is
obvious that his client is lying.
3) A lawyer must refuse to proffer evidence the lawyer believes is
false. (Rule 3.4 (b))
TAMPERING WITH A WITNESS
------------------------
The relevant sections of Missouri Revised Statutes 575.270 which
states:
"A person commits the crime of tampering with a witness if, with
purpose to induce a witness ... in an official proceeding ... to
absent himself ... he: (2) Uses ... deception ..."
In this instance the "official proceeding" was the deposition that
Wear and Sharp scheduled for January 4th 1995. In this deposition the
husband would have been the "witness", except that the witness was
"absent" because Wear and Sharp had used "deception" to allow through
their silence for the husband to believe that the deposition was
cancelled.
Based on this statute the following logic progression can be
concluded:
1) The husband would assume that Wear and Sharp are not going to deny
that a deposition is an official proceeding.
2) Since the husband was to be deposed it is undeniable that the
husband was to be the witness in this official proceeding
(deposition).
3) There was no question that the Witness (husband) was absent from
the official proceeding (deposition).
4) The husband and Wear and Sharp agree that the reason the Witness
(husband) was absent from the official proceeding (deposition) was
because he believed that the official proceeding (deposition) was
canceled.
5) Since Wear and Sharp knew the husband believed the deposition was
cancelled and deliberately allowed him to continue to believe it,
Wear and Sharp through their silence used deception to cause the
husband to be absent from the deposition and thus met all the
criteria for the tort of Tampering with a Witness per Mo. 575.270.
Summary:
1) Wear and Sharp committed a criminal violation of the law and a
serious breach of the rules of professional conduct. It is
unconscionable that the Court of Appeals would sustain a judgement
that was obtained through fraud and criminal activity.
PROFESSIONAL MISCONDUCT
-----------------------
Mr. Wear and Mr. Sharp have committed many acts of professional
misconduct in the process of obtaining judgement. This text is taken
directly from a bar complaint submitted by the husband on June 2nd
1997. However, the Bar has a policy (not supported by the Rules) to
ignore complaints while a matter is in the courts. The Bar seems to
think that the judges should do their job while the case is open.
That's why I made my earlier motion asking the judges of the Court of
Appeals to file a Bar complaint against these lawyers. I'm pro se and
the bar won't listen to me. I still respectfully contend that it
would be appropriate for you to bring this to the attention of the
Disciplinary Counsel and remind him what his job description is. I
don't think judges, like yourselves, need to be doing the work of the
Disciplinary Counsel.
Here's a list of what they did:
1) Fraud upon the court - by faking a deposition that never happened and
then getting sanctions against me for the nonexistent deposition.
2) Conflict of Interest - I have a pending lawsuit against these lawyers
and my ex-wife for fraud upon the court. I filed the suit 4 months
ago but have had no hearings while waiting on a special judge.
However, these two lawyers who are defendants are trying to represent
my ex-wife who is also a defendant.
3) Tampering with a witness - tricking me into missing my own deposition
so that they could have me sanctioned.
4) Fabrication of false evidence - they conspired with my ex-wife to
fabricate false evidence which the proffered to the court.
5) Improper transfer of land title - transferred property to their
clients name before the judgement was final.
6) Lied to the judge about my income when they had my tax returns in
their possession.
7) Falsely inflated their attorneys fees by having interoffice meetings
and billing for the services of about five attorneys for a single
divorce.
8) Garnished money that was owed to my corporation without a ruling
piercing the corporate veil.
Pursuant to Rule 5.13 of the Missouri Rules of Court it is the
responsibility of the Missouri Bar to investigate complaints in order
to uphold the honesty and integrity of the bar. The complaints herein
are very significant and represent a pattern of abuse that reflects
poorly on the integrity of all lawyers who may be judged by the
conduct of these two lawyers.
Specifically, Mr. Wear and Mr. Sharp have violated the following Rules
of Professional conduct:
Rule 1.15 (b),(c)
Rule 1.5 (d1)
Rule 1.7 (a),(b)
Rule 1.9 (a)
Rule 3.1
Rule 3.3 (a1,2,4),(c)
Rule 3.4 (b),(e)
Rule 3.7 (a)
Rule 4.1 (a),(b)
Rule 4.4
Rule 8.3 (b)
Rule 8.4 (a),(b),(c),(d),(f)
OVERVIEW OF BAR COMPLAINT
-------------------------
In September of 1994 my ex-wife retained Mr. Wear and Mr. Sharp and
filed for divorce. On December 15th 1994 there was a hearing for
separate maintenance which was attended by only the lawyers and the
judge. At that hearing the judge, Winston Davis, made an unusual
decision giving my wife access to my corporate office and computer
network in order for her to produce a flyer for an event called the
"World Peace Meditation" where Mr. Wear was the featured speaker.
Upon learning that the court ordered my company to pay for and give
my ex-wife access to my corporate computers for the personal benefit
of her lawyers, I fired my lawyer, Mike Greene, and asked for a new
hearing. Mr. Greene gave me my file and upon examining it I noticed
on their letterhead that Evilyn Gwin was a member of the law firm
with Mr. Wear and Mr. Sharp.
I saw Mr. Sharp at the court house the next day and pointed out to
him that Ms. Gwin had a pending law suit against my company, Computer
Tyme Inc. for $100,000 and inquired if this wasn't a conflict of
interest since both Gwin's client and my X were going after the same
assets. Mr. Sharp responded in a letter (attached) that it was not a
conflict because Computer Tyme was 100% mine. However, at trial he
would claim that it was 50% owned by my ex-wife.
I replied to Mr. Sharp's letter thanking him for admitting the
company was 100% mine by fax. Shortly thereafter Mr. Wear called me
up and cussed me out on the phone declaring that he was "going to
drag my butt down there and depose me". Later that day Mr. Sharp
showed up in my office to personally serve me with a notice of
deposition.
The next day I filed my objections to the deposition pursuant to Rule
61.01(a) and awaited a hearing. Not hearing anything from the court I
faxed a letter to the judge and Mr. Sharp indicating that I believed
the deposition to be cancelled until my objections could be heard. I
asked in the letter that I be informed if this was in fact not the
case. (attached) I received no response.
On the morning of January 4th 1995 I called the offices of Wear and
Sharp to inquire about the deposition. The secretary who answered the
phone said there was no deposition scheduled.
Later that day Mr. Sharp filed a motion asking the court to sanction
me for not showing up for the deposition. At the hearing on January
12th 1995 Mr. Sharp convinced the court that I had failed to appear
for a deposition when in fact there was no deposition. Because Mr.
Sharp is an officer of the court and was known by the commissioner,
the court believed Mr. Sharp and sanctioned me. Mr. Sharp would later
admit through is attorney, Donald Duncan that he knew I believed that
the deposition was cancelled, but that he had no duty to inform me it
wasn't.
Mr. Sharp and Mr. Wear seems to feel that it's OK to conceal a
deposition (if you believe that there even was a deposition) and lie
about it to the court. It seems they are arguing that they have a
right to be deceitful and dishonest. However, lying to the court to
sanction me for not attending a deposition that never took place is a
serious violation of ethical conduct. It's fraud. It's tampering with
the administration of justice. It's unethical. It's deceitful. It's
just plain wrong. And it would be a travesty for the Missouri Bar to
tolerate this kind of behavior.
With sanction by the court on my record Mr. Wear appeared
representing my ex-wife at the second hearing for temporary
maintenance. At that hearing he and my ex-wife conspired to produce
fraudulent documents indicating that she was only making $400 per
month plus $125 in SSI benefits when in fact she was making much
more. Mr. Wear told the court that I "cleared $10,000 per month.
Based on these arguments I was forced to pay her over $2500 a month
in direct payments and expenses.
During this time Mr. Wear and Mr. Sharp were inflating their legal
bills. Most every hearing was attended by at least two lawyers,
sometimes three lawyers. Then they would have interoffice meetings to
discuss the case with as many as five lawyers actively involved, all
of them billing my ex-wife with the expectation that I would
eventually have to pay the bill. In fact the billing got so
outrageous that my X demanded and got a $1500 reduction in the bill
because even she knew they grossly inflated it.
In June of that year my yearly SBA loan renewal was due. It required
the signature of my X. She agreed at first to sign it but when the
note became due she refused. I was forced to pay off the $16,000 note
which I paid $10,000 and got a 4 month unsecured loan from the bank
for the balance.
Because of this I was unable to pay the maintenance as well. Having
devastated my cash flow they would now start garnishing my checking
account. They even did this before the payment was due. This not only
gave them opportunity to run up their bill, and my legal bills as
well, it gave them the argument that I was defying a court order so
they could paint me as a "bad boy" at trial.
Unable to make all these payments and afford a lawyer who was costing
me $1000 per month I went back to representing myself. Mr. Wear made
a motion that I have to pay their "expert accountant" $3500 to
evaluate what my company was worth. The court ordered me to do so. I
paid the money, yet the accountant never called nor made any requests
to see my corporate records.
Upon making his evaluation, (based on what? I don't know) he
concluded my business was worth far less that they had hoped for. He
evaluated the business at $40,000 to $60,000 and said he had used
only $1500 of the $3500 I paid. I asked for a refund, but Wear and
Sharp kept the $2000 balance.
During the entire time I made many attempts to settle this divorce.
However these lawyers don't make as much money to settle and never
made any serious attempt to do so. They always wanted more than 100%
of everything I had.
At trial they conspired with my ex-wife to create false documents
indicating I had a net worth of 10 times what I really had. By
generating such a high figure the strategy was that even if the judge
believed 20% of their lies they still get 100% of everything I own.
These lawyers knew that the evidence they presented to the court was
fraudulent and they knew and assisted my ex-wife to purger herself at
trial.
They also brought in friend of my ex-wife who did about a weeks worth
of temporary work and got her to pose as a full time employee of my
company, claiming she worked for me for six months, and testify
falsely about the internal workings of my company.
As a result of their unethical behavior they obtained a judgement in
excess of everything I owned which included a total of $15,000 of
legal fees. I was represented by a lawyer, Dan Imhof at trial. Mr.
Imhof filed a motion to reconsider. A hearing was scheduled for
October 29th 1996.
A judgement isn't final until the motion to reconsider is ruled on.
However, Wear and Sharp filed the divorce decree against my property
in Fair Grove on September 25th 1996 in order to transfer the deed
before judgement was final.
After the judge refused to reconsider on November 18th 1996 I filed
my notice of appeal. I had fired my third attorney at that point. I
figured I didn't need a lawyer if having a lawyer got a judgement
against me for more that 100% of my assets. I could do that bad on my
own, thank you. He also refused to challenge Wear and Sharp's bill
per my instructions. I proceeded to study law to make my own case.
Shortly thereafter, on January 15th 1997 I filed an independent
action in equity based on Rule 74.06 (b) for fraud upon the court. In
this suit I named Mr. Wear and Mr. Sharp as defendants as well as my
ex-wife.
However, even though they were codefendants, Wear and Sharp entered
an appearance to represent my ex-wife. This is obviously a conflict
of interest in that the suit accuses them of fraud upon the court and
conspiracy to defraud the court and well as criminal offenses that I
alleged they committed together.
Because of the nature of the suit and Wear and Sharp being local
lawyers practicing law before the local judges, every local judge
recused themselves. This caused the Supreme Court to have to appoint
a special judge, Honorable William Syler. Judge Syler has yet to hold
a hearing. I have several motions pending including my opposition to
one defendant representing another defendant at trial. I would think
that to even attempt a stunt like this should be grounds for
disbarment.
Obviously the reason Mr. Wear and Mr. Sharp want to represent my X is
to control her. If she had her own lawyer, this lawyer would have to
recommend she file a cross suit against Wear and Sharp for legal
malpractice. She would be in a position to collect a lot of money
from them for committing fraud upon the court in her behalf.
Can you even imagine what it would be like for Wear and Sharp to
represent my X at trial? What a circus that would be! What are Wear
and Sharp going to say when I ask them if their client was in on the
faked deposition? Are they going to say she was to share the
liability or say she wasn't and take responsibility themselves. When
I ask her if Wear and Sharp were aware that she was presenting
fabricated evidence to the court is she going to be able to testify
against her own lawyers? I hardly think so. The Rules of Professional
Conduct strictly prohibit these kind of conflicts of interest.
However, Mr. Wear and Mr. Sharp break the rules with impunity. Now
the question I have for the Bar is, are you going to let them get
away with it or are you going to enforce the rules?
Now that Mr. Wear and Mr. Sharp (and Mr. Duncan for that matter) have
created a six month delay before I can have a hearing in court, they
now have the opportunity to execute on their ill gotten judgement.
They are trying to sell my land even though they still haven't
transferred title in the manner instructed by the judgement and leave
me stuck paying the note on the property the judgement says my X is
supposed to pay. They are ignoring their responsibilities under the
judgement and are now making fraudulent representation to real estate
agents that the land can be legally sold when in fact they have not
complied with the orders of the court.
As if this isn't enough, there's more. My corporation is owed money
by Computer Services of West Plains. Knowing that the money is not
owed to me personally they garnished these people. Not knowing what
to do they paid the money to the circuit court who turned it over to
Mr. Wear and Mr. Sharp. However, in the interrogatories when asked if
they owe money to Marc Perkel they answered NO. Did Wear and Sharp
give me my money? No, they kept the money for themselves.
You may be asking yourself how these lawyers are being allowed to get
away with this. I'm not a very popular guy with the local court. In
1992 there was a sales tax increase issue on the ballot here in
Greene County to raise the sales tax 1/4 cent to build a new
courthouse. I opposed this sales tax on the basis that I didn't think
we needed a permanent tax to build a single building. I ran an
effective campaign and I won. As a result they ended up with an 8
million dollar courthouse instead of a 24 million dollar court house.
As you can imagine, the Greene County judges are not very happy with
me and when it came time for my divorce I think it gave them an
opportunity to even the score. Thus they turned a blind eye towards
Wear and Sharp and allowed them the latitude to abuse the law for
their own purposes. At least I would like to think that they couldn't
get away with this with just anybody. Maybe they can.
SITES
-----
In re Paul M. Storment, Jr., Respondent. 1994 Mo. 293
"Disbarment is the appropriate sanction. Disbarment is appropriate
when a lawyer, with the intent to deceive the court, makes a false
statement, submits a false document, or improperly withholds
material information, thus causing serious or potentially serious
injury to a party, or a significant or potentially significant
adverse effect on the legal proceeding. ABA Standards, Rule 6.11
(1986). The evidence shows that Storment, with the intent to
deceive, participated in presenting false evidence. See id.
(Commentary). Disbarment is appropriate."
In re: ELGENE C. VER DUGHT, Respondent 1992 MO 201
"The special master found respondent had violated Rule 3.3 of Rule
4 of the Rules of Professional Conduct. Rule 3.3 provides in part:
"a lawyer shall not knowingly: (1) make a false statement of
material fact or law to a tribunal; (2) fail to disclose a
material fact to a tribunal when disclosure is necessary to avoid
assisting a criminal or fraudulent act by the client;" and "(4)
offer evidence that the lawyer knows to be false."
"The special master found respondent had violated Rule 8.4(c) and
(d) which provide it constitutes professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation" and "engage in conduct that is prejudicial
to the administration of justice." The special master's finding as
to Rule 8.4(c) and (d) is supported by the evidence."
In Re: William C. Maier, Respondent 1984 MO. 166
"Respondent devised a scheme to take monies from his client and
his law firm during a five year period. He has betrayed the trust
of his firm and his client and he has dishonored the profession
and the general public by conduct inconsistent with the standards
of the profession. The privilege to practice law is only accorded
those who demonstrate the requisite mental attainment and moral
character and, absent mitigating circumstances, an attorney who
betrays the trust reposed in him for personal financial gain
demonstrates he no longer possesses the requisite moral character.
Respondent claims his law firm undervalued his services and that
his pay was not commensurate with his workload. Such rationale
offers little or no justification for respondent's conduct. Double
billing of a client's account and involvement in a prolonged
deceitful scheme cannot be described as an ethical manner in which
to deal with the accounts and his firm. Nor does it reveal the
judgement, character and integrity required of an officer of the
court."
In Re: Kenneth Joseph Downs, an Attorney 1963.MO.15
"In such cases as this it is almost futile to review the
authorities, except, perhaps, to glean the guiding principles
therefrom. Each case must necessarily stand upon its own facts. We
do, however, note here the following, among the comparatively
recent cases: In re Randolph, Banc, Mo., 347 S.W.2d 91; In re
Sympson, Banc, Mo., 322 S.W.2d 808; In re Oliver, Banc, Mo., 285
S.W.2d 648; In re Woodward, Banc, Mo., 300 S.W.2d 385; In re
Conner, Banc, Mo., 207 S.W.2d 492; In re Veach, Banc, Mo., 287
S.W.2d 753; In re Canzoneri, Banc, Mo., 334 S.W.2d 30; In re
McLendon, Banc, Mo., 337 S.W.2d 56; In re Gitterman, Banc, Mo.,
264 S.W.2d 366. The theme running through these and many other
cases is that the primary and ultimate purpose of disciplinary
proceedings is to protect the public, the integrity of the Bar,
and the courts, from the practice of law by persons unfit to serve
as members of the Bar, - and that the courts have "a solemn duty
to the public and to the legal profession to enforce the code of
ethics governing the conduct of attorneys." Sympson (supra). There
is no inherent right to continue in the practice of law, but
rather it is a mere privilege which will be withdrawn when one
proves himself unfit. Canzoneri, Conner (supra)."
In Re: William R. Murphy, Respondent 1987.MO.647
"Where an attorney has committed an act of fraud, dealt in a
purposefully dishonest manner with a client, or sought to enrich
himself dishonestly at the expense of others, disbarment is the
appropriate sanction."
In the Matter of Stephen W. Mendell, Respondent. 1985.MO.685
"Disbarment of course is the ultimate sanction and should be
reserved for a clear case. Honesty, however, is an all important
quality for an attorney. Situations in which a dishonest attorney
could deceive a trusting client arise far too often. Respondent
demonstrated his willingness to defraud his client and we have no
assurance that there will be no repeated offense: given the
opportunity. The purpose of disciplinary action is to protect the
public. No lesser sanction is consistent with this purpose, the
respondent is disbarred."
In re Paul E. Panek, Respondent. 1979.MO.781
"It is not necessary to the exercise of the disciplinary powers of
this court that the fraud committed by a lawyer be committed in
his capacity as a lawyer, nor is it necessary that a lawyer be
previously convicted of a criminal offense based upon fraudulent
acts. This disciplinary power 'is not limited to those instances
of misconduct wherein he has been employed, or has acted, in a
professional capacity; but, on the contrary, this power may be
exercised where his misconduct outside the scope of his
professional relations shows him to be an unfit person to practice
law. In re Williams, 233 Mo. App. 1174, 128 S.W.2d 1098, 1105 [4,
6, 8]; State ex rel. Clark et al. v. Shain, En Banc, 353 Mo. 542,
122 S.W.2d 882; In re Conner [357 Mo. 270, 207 S.W.2d 492]; In re
Richards, 333 Mo. 907, 63 S.W.2d 672; 5 Am.Jur. pp. 426, 427, 276;
7 Am,Jur.2d pp. 72, 73, 44; 7 C.J.S. Attorney and Client 24, pp.
762, 764.' In re Wilson, 391 S.W.2d 914, 918 (Mo. banc 1965)
"Respondent's retention as an officer of the court would be
inimical to the public confidence and esteem essential to the
courts and the bar in the efficient administration of justice.
Additionally, the specific fraudulent conduct of respondent is
such that he can no longer be allowed to represent clients and to
have reposed in him the trust and confidence necessary to the
proper representation of a client by a lawyer."
JUDICIAL BIAS
-------------
The husband has had problems with the Greene County Court since the
beginning. The husband became unpopular with the court in 1992 when
Greene County put a 1/4 cent sales tax on the ballot for the purpose
of building a new courthouse.
The husband, a fiscal conservative, opposed this sales tax publicly
and effectively challenging the wisdom of having a permanent tax for
the purpose of building a single building. The husband was persuasive
and the sales tax was defeated. Several county officials were angry
with the husband. County Commissioner Dave Coonrod wouldn't even
speak to the husband for about a year. However, a new courthouse was
built without a 1/4 cent sales tax increase but the husband believes
ill feeling still lingered. The judges in Greene County go to work
every day in a courthouse that cost less that it would have cost if
not for the husband stopping that tax.
Husband was represented by counsel at his first hearing on 12-15-94
for separate maintenance. At that hearing, attended by only the
lawyers, Commissioner Davis ruled, in addition to maintenance and
attorney's fees, that the wife should have access to the husbands
corporation to use the computer network and printing equipment in
order to produce literature for and event where the wife's lawyer,
Mr. Wear, was to be a speaker.
The husband found that he could not comply with an order to give the
wife access to the corporation for the purposes of benefiting the
wife's lawyer and informed his lawyer, Mr. Greene, that he wanted an
hearing where the husband could appear in person. Mr. Greene
cautioned against it saying that it would "piss off the judge" to get
this hearing.
The husband then fired the lawyer and took over the case pro se. His
next hearing was in front of Commissioner Tinsley on 01-12-95. Mr.
Wear and Mr. Sharp claimed they scheduled a deposition which the
husband failed to attend. The husband had a number of motions before
the court. Tinsley sanctioned the husband and admonished him for
representing himself. Tinsley made it clear that if the husband
represented himself that he would rule against him. Mr. Tinsley ruled
against the husband on several motions without even reading them.
Husband, getting Tinsley's message hired a new lawyer, Mr. Harpool.
Mr. Harpool appeared before Mr. Davis for the new separate
maintenance hearing. Even though the wife testified that she is
capable of earning a living, the husband was ordered to pay
$1200/month plus health and car insurance for the wife and her
daughter who was not the daughter of the husband. Mr. Davis actually
awarded the wife more than she was asking for.
After the wife refused to renew a business loan and ran the husband
out of money, the husband, broke and despondent, decided he could no
longer afford counsel. He concluded that if he's going to lose it all
anyway, why pay a lawyer. Husband appeared several times before Judge
McGuire for various motions with McGuire always ruling against him.
Like Tinsley, McGuire didn't like pro se litigants and wouldn't take
the time to even read the husband's motions before making a ruling.
Judge McGuire retired that year. Davis and Tinsley recused
themselves. So a special judge was appointed to hear the case. Judge
McGhee was appointed. The husband contacted the new judge to
reschedule a hearing. Judge McGhee advised the husband that he would
be better off if he was represented. The husband then retained Mr.
Imhof as counsel.
The trial was fairly smooth on the judges part except for the
witnesses mention earlier. Five weeks later the judge made a ruling
that was for more that 100% of the husband's assets.
The husband made post trial motions that were all denied. The husband
then fired his attorney figuring that he didn't need a lawyer to lose
more that 100%. The husband felt he could do that on his own. Since
the trial the judge has granted the wife hearings while refusing to
grant the husband hearings.
The husband has since filed this appeal and an independent action in
equity attacking the judgement for fraud upon the court. That suit
was filed 01-15-97. Every judge in Greene County recused themselves
in a very slow, one by one, process. Then Judge Sweeney took forever
to get a special judge appointed. Judge Syler will now hear the case,
but the first hearing will be on July 14th, six months after the suit
was filed.
So, the husband contends that judicial bias has heavily tainted this
whole suit and because of bias, as well as misconduct of the wife's
attorney's, the husband has be denied the chance to have his case
heard by an impartial court.
EQUITABLE DISTRIBUTION OF PROPERTY
----------------------------------
Although this seem complicated, it is only complicated because the
wife's lawyers have made it complicated. Here's an equitable
distribution of property.
The husband should get his nonmarital home. The wife should get the
proceeds of he nonmarital home.
The husband should get his nonmarital business.
The wife should get her business, Peak Produvtions, which is marital
but the husband concedes he has no interest in.
The husband should get the Fair Grove property, tractors, building,
equipment and it's debt because he's the one who paid for it and has
the ability to continue to pay the debt.
The wife should get the majority of the marital furniture which is
already in her possession.
The husband should get his pickup truck which he paid for and any
debt on it.
The husband should get the 1985 Nissan which the wife's daughter
returned to him when she got a newer car. The husband has sold this
car.
The wife should get the 1990 Honda Accord which is in her possession
which used to belong to the husband's business.
The husband and wife should pay for their own credit card debt.
The husband should keep his intellectual property, and the wife keep
hers.
The husband paid his attorney's fees. The wife should pay hers.
Actually, considering that her attorneys broke the law and violated
the rules of professional conduct, they shouldn't be paid at all. In
fact the wife's attorney's should be required to reimburse the
husband $15,000 in attorney's fees.
The husband supported the wife for three years after she quit her
job. This includes court ordered maintenance, car insurance, health
insurance, and payments to her credit cards. The amount of which
totaled around $40,000.
Husband contends that this division of property is more than fair in
that it gives the wife the lions share of the marital assets and more
than compensates her considering the should duration of the marriage
and that the marriage bore no children, and that during the marriage
the husband paid the expenses to raise the wife's daughter from her
first ex-husband.
The husband asks the court to make this division of property and end
this.
SCREENING FOR ERRORS
--------------------
Since the husband is pro se the husband contends that it would be
appropriate in the interest of justice to be fairly warned of
possible deficiencies in this brief.
In Thummel v. King:
"The final disposition of an appeal based on a failure to comply
with the appellate briefing rules has long been a matter of great
concern in this court. On numerous occasions we have expressed our
reluctance to punish innocent parties for the shortcomings of
counsel on appeal. As we have often declared, it is the policy of
this court to decide cases on the merits whenever possible."
"We note that the St. Louis District of the Court of Appeals has
initiated a program whereby briefs are screened promptly by its
research attorneys and, if found not to comply with Rule 84, are
returned to the attorneys for rebriefing prior to argument and
submission. Although this commendable practice by no means
established a right to such treatment, we believe this procedure
is highly beneficial and should be employed whenever possible.
This court is now in the process of establishing its own staff of
research attorneys and will adopt a similar policy. Of course,
counsel may still raise deficiencies found in an opponent's brief
as an aid to framing the issues to be resolved.
Even though the husband feels he has written an impressive brief, the
husband admits that he is easily impressed and therefore would
appreciate any help that is legally available to him from the court.
CONCLUSION
----------
This whole divorce was screwed up beyond belief. Because of the
behavior and conduct of the wife and the wife's attorneys, the whole
trial was a farce. Even though the judge made an unreal number of
errors, even the most competent judge couldn't have come to a fair
decision based on the fraudulent evidence proffered to the court and
dealing with lawyers who feel like it's OK to fake a deposition so as
to have a pro se litigant sanctioned.
In preparing this brief I used several on-line services on the
internet. I did a keyword search for "reversed and remanded" and
"divorce" and read about 100 cases. Never in any of these cases had I
seen the kind of behavior exhibited by these lawyers. Even searching
on the word "disbarment" did I see a case where a law firm broke so
many rules in a single case. I suppose that since I was pro se they
thought they could get away with it. And in the vast majority of
cases they can. But I couldn't sleep at night knowing that there are
lawyers such as these who are practicing law in Missouri courts.
The judgement is fundamentally unfair. A five year marriage with no
children should not cost the husband, who is the innocent party here,
more than 100% of everything he owns. The judgement doesn't make any
sense. Nothing is evaluated except for the husband's house which is
evaluated wrong. The judgement leaves unresolved conditionals. It
give the wife maintenance indicating a lack of income, while at the
same time giving her $1000/month payments on a note for land she
can't afford that the husband paid for. The judgement is impossible
to comply with or enforce because the husband doesn't have the money
or earning capacity to meet the obligations. And the wife doesn't
either.
ORAL ARGUMENTS
--------------
Husband requests oral arguments as the court sees fit.
__________________________________
Marc Perkel * Appellant * 06-06-97
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