Friday, April 23, 2021

In re Marriage of Maher and Strawn (Cal. Ct. App. - April 22, 2021)

Imagine that you're an attorney in San Diego.  (As some readers undoubtedly are.)  You've been married for 18 years, but your marriage has ended.

You lived fairly well when you were married.  Your spouse has a PhD and has a job with a pharmaceutical company.  She makes a fair chunk of change:  $28,000 per month (over $335,000/year).  You're no slouch yourself, and was making $100,000-$200,000 as a lawyer.  During the marriage, you and your spouse "lived in a $1.8 million, 4,500 square foot home, took expensive vacations, and spent about $8,000 per month on credit cards which they monthly paid in full [and] amassed a 420 bottle wine collection."  One time, you guys spent $20,000 for a one-week Maui vacation at the Four Seasons.  Life was good.

But now, you're divorced.  And you're sort of bitter at the amount of spousal support you received in the trial court.  You were only awarded $4,000/month -- around $50,000/year -- and even that amount steps down to $3,500/month in May 2021 and then to $2,500/month in May 2022.  You're 60 years old at this point.

Sure, you want more.  And you're an attorney, after all.  Why not file an appeal?

Maybe because the opinion might be published.  With your full name contained therein.  As well as each of the following facts about you:

"David has sleep apnea, insomnia, post-traumatic stress disorder (PTSD), anxiety, and severe depression. He testified that crowds, traffic, and noise make him nervous, afraid, and exacerbate his anxiety and PTSD. He remains mostly alone in his apartment and has to 'force' himself to socialize. Yet on cross-examination, David admitted traveling to Las Vegas in 2018 where he attended an indoor rock concert. He also attended 'a few concerts' at the Del Mar fair with a 'social group' and at the House of Blues.

David takes Valium “a couple times a day,” along with antidepressants, anti-anxiety drugs, and hydrocodone—an opioid. He also drinks “three to four” glasses of wine nightly, although he denies having a “drinking problem.” David could not “recall” whether any physician told him to not mix alcohol with his medications. He spends about $600 per month on wine— three times his child support obligation. . . . 

Still, David has worked occasionally as a track and field coach, which he enjoys. In 2018, for example, he earned about $1,000 as a high school track coach and was named “field coach of the year.” He is certified to coach through the college level. In 2017 David obtained a substitute teaching certificate, but he never sought those jobs because he does not awaken until noon (due to his sleep disorder). He is unwilling to work tutoring grade school or high school students, stating he has “patience issues.” . . .

The parties separated in 2016. The triggering event was when David (who is six feet, three inches tall, and weighs about 300 pounds) punched Laurie in the face and slapped her during intercourse. Her nose bled 'all over the bed.' The next day, he assaulted their son (then 17 years old). Both David and the son sustained injuries in the ensuing fist fight. Laurie told responding police officers, 'My nose still hurts, and I think it might be broken. Today he was worse than usual.' Despite David’s testimony at trial denying that he ever hit Laurie, in September 2016 the court issued a domestic violence restraining order against him. . . .

[B]eginning in 2005, the family home became in Laurie’s words, a “hovel” and “squalid.” They lived on bare cement floor after a flood ruined hardwood flooring and bedroom carpet. Laurie testified that “it really became bad once [David] started shopping obsessively online and just piling things up all over the house.” According to Laurie, in addition to leaking toilets and no flooring, three of four showers were not functioning, the pool was a “swamp,” and the home needed $70,000 in repairs to make it livable before it could be sold. 

After separation, David moved to a 1,200 square foot apartment that he rents for $2,800 per month. The garbage disposal, microwave, shower, and refrigerator are inoperable. David has not asked the landlord to repair the appliances because he continues to live in squalor and is embarrassed to have anyone inside his apartment."

You couldn't pay me enough to risk having details like that contained in a published opinion.  What the trial court said was bad enough.  But at least that was unpublished.  Having everyone and their neighbor read the sordid details of one's downfall and life would, for me, be a burden far too great to bear.

(Here's what the trial court said:  "“It is difficult to put a word to the parties’ marital standard of living—appalling comes close. They lived in a filthy refuse strewn home with each evening dedicated to drinking a bottle of wine each. ([Laurie] testified [David] would not allow her to clean the house while he was home, and he seldom left.) The court rarely casts marital standard of living in terms of spendable income; it is particularly inappropriate here . . . .” [¶] . . . [¶] “The court is not confined to choosing upper, middle or lower, none of which describe the parties’ living conditions. At [date of separation], [David] was living in a squalid house strewn with garbage, refuse, discarded items left to sit where they dropped and rooms filled with empty cardboard boxes from his online shopping . . . . He has maintained that same standard of living.” [¶] . . . [¶] “None of [David’s] evidence supported his claim he needed over $15,000/month to meet the marital standard of living. Given the condition of his apartment . . . and the condition of the parties’ home at [date of separation], he is presently maintaining nearly the marital standard of living by living in squalor, drinking a bottle of wine each day and eating fast food.”)

Justice Dato also gets in some shots as well.  Including a funny little reference to Sin City, saying: "[T]he trial court was entitled to, and did view with skepticism David’s claimed inability to work. For example, David claimed that crowds and noise trigger his PTSD and crippling anxiety. But David flew from a presumably busy airport to Las Vegas, a town not known for monastic solitude."  

"Monastic solitude" indeed.

There was one portion of the opinion the merits of which I was uncertain.  Justice Dato at one point says:  "There is also substantial evidence that David has the opportunity to work. In 2017 David passed the test necessary to work as a substitute public school teacher. A vocational expert testified that an entry level teaching job pays about $58,000 per year. There is a strong demand for math and science teachers. David would be “highly competitive” for a teaching position because he has experience working with high school students and holds a Ph.D. in biochemistry. Although David would have to spend a year to obtain a teaching credential, in the interim he could work as a substitute teacher (earning about $125 per day), for which there is a current demand."

Uh, yeah, maybe.  But I'm not so sure there are a ton of schools that'd be thrilled to hire a 60-year old former lawyer with a domestic violence restraining order who routinely pounds alcohol alongside opoids and who sleeps until noon every day.  Those facts -- in a published opinion, no less -- might give potential employers pause, no?  Generalized "current demand" or not.

You learn all this, and more, about (currently inactive) San Diego attorney David Maher from Justice Dato's opinion.  A woeful tale, indeed.