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An Unrepresented Man's Odyssey in Divorce Court: A Case Study of Divorce in Minnesota carried through a successful Appeal and Subsequent Disasters

by William McGaughey

 

This is also sold as a Kindle e-book from Amazon.com for $8.95. ASIN: B00JHKXG2S

 

Case Summary

This is a case of divorce not involving children. Property division was the issue. A 56-year-old Chinese-born wife filed for divorce against her 70-year-old Euro-American husband on March 8, 2011. The case was initially settled on March 18, 2014, when the Minnesota Supreme Court denied husband's petition to review a decision of the Minnesota Court of Appeals. However, husband filed a motion to eliminate spousal maintenance in September 2014 which is not yet finished.

The wife was continuously represented by an attorney, two of them. After October 2011, the husband was self-represented. This narrative tells the complete story of the divorce from the husband's point of view. The names have been changed.

The dispute centered on the division of property - the division of marital property (mostly debt), an award of spousal maintenance, and invasion of the husband's non-marital property.

An allegation of marital misconduct played a part in this case, despite statutory requirements that such factors not be considered. The husband was twice arrested and jailed for domestic abuse. There was a claim of dissipated marital assets. There were two unproductive mediation sessions.

This three-year case included often rancorous settlement negotiations between the parties, a motion for temporary relief, a two-day trial with the chief judge of Hennepin County presiding, the husband's post-trial motions to amend the judge’'s findings of fact/conclusions of law or in the alternative grant a new trial, an unsuccessful attempt to obtain a supersedeas bond, two fruitless court-ordered settlement conferences, an appeal to the Minnesota Court of Appeals by the husband which was partially successful, his appeal to the Supreme Court which was denied, and a new motion to eliminate spousal maintenance.

A section near the end gives the author's opinion of persons, institutions, and the divorce process in Minnesota. The concluding section tells what readers might learn from the book in terms of legal rules, processes and experiences.

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Cast of Characters

Lian Yang McGaughey wife, plaintiff in divorce case
William Howard Taft McGaughey husband, respondent in divorce case
Wing-Sze Wong Sun wife’s first attorney (until appeal)
James Gurovitsch husband’s attorney until October 2011
Susan Cochrane referee
Azure Schermerhorn-Snyder referee’s clerk
Celia McGaughey wife’s daughter
Sheila Gorman husband’s former wife
Bob Carney husband’s friend who helped draft settlement agreement
Diane Nelson wife’s friend who helped draft settlement agreement
Alan Morrison husband’s maintenance manager
Jeannice Reding judge who presided at “settlement conference”
James T. Swenson trial judge
Caryn D. Ye wife’s second attorney (handled appeal)

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(Note: Property is valued as of April 15, 2011, the date of the Initial pre-trial conference.)

Property: Non-Marital

Wife’s property

condo in Beijing, China $200,000 to $240,000
second condo (sold in October 2010) $100,000
no other assets or debts disclosed

Husband’s property

four-plex at 17xx Glenwood Ave. $160,000
nine-unit apartment at 1708 Glenwood Ave. $280,000
house in Milford, Pennsylvania $280,000

total real estate $618,000

432 shares Wells Fargo stock $12,972 (158 shares sold before trial)
72 shares US Bank stock $1,867
100 shares Germany Fund stock $1,773
300 shares Pacific Gas & Electric stock $13,458 (all shares sold before trial)
100 shares Target stock $10,048 (all shares sold before trial)
319 shares Gannett stock $4,721
80 shares Arbitron stock $2,916

total non-marital stock $45,858

premarital (non-marital) debt $5,519

Marital property

marital assets:

duplex & yard at 1715 Glenwood Ave. $110,000
wife’s 401(k) $5,000

1,000 shares Excel Energy stock $24,120 (all shares sold before trial)

marital debts:

NationStar mortgage on duplex $175,148
US Bank mortgage on four-plex $84,018

total mortgage $259,166

VISA Omaha credit card $8,355
Chase credit card $5,234
Advanta credit card $3,738
Citibusiness credit card $3,723
US Bank line of credit $39,628
US Bank line of credit $5,977
US Bank reserve line $3,911

total financial debt $70,566

total debt $329,723

minus non-marital debt $5,519

marital debt $324,213

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Bottom Line: Court rulings

Children: The parties had no children together. The wife had a teenage daughter at the time of their marriage. She and the daughter came to the United States in July 2001. They later both obtained U.S. citizenship. The daughter graduated from a private four-year college in 2006, with some financial help from both parties. She later became employed in the Washington, D.C. area and purchased a $320,000 town house in northern Virginia. The wife sold some property in China worth $100,000 and gave the proceeds to the daughter as a downpayment on the town house five months before she filed for divorce against her husband. The daughter then financed the wife's attorney fees for the divorce.

Division of marital property:

Minnesota state law (518.58, Subd. 1) requires the court to “make a just and equitable division of the marital property of the parties”. It is commonly believed that a 50-50 split of the marital property is just and equitable although case law gives the trial-court judge some discretion to depart from that formula.

In this case, the parties had a real-estate asset worth $110,000, a financial asset worth $5,000, and marital debts roughly amounting to $325,000. The husband was awarded the real estate and the wife the financial asset (her 401k). There was a net deficit of $210,000 in the parties’ marital property. A 50-50 split would have given each party $105,000 of that deficit. The husband would therefore have received the $110,000 real estate and $215,000 of the marital debt ($110,000 + $105,000). The wife would have received the $5,000 financial asset and $110,000 of the marital debt, if the property had been split 50-50.

Instead of this, the judge in his initial order awarded the husband the $110,000 real estate and made him assume virtually all the $325,000 marital debt, leaving a net deficit of $215,000. The wife received the $5,000 financial asset and no debt.

In his amended order, the judge shifted $5,771 of the marital debt to the wife, leaving the husband with the remainder.

Spousal maintenance (alimony)

Minnesota state law (518.552, Subd. 1) allows the court to award spousal maintenance to a party seeking it if the party “lacks sufficient property” or is “unable to provide adequate sself-support”. The wife sought spousal maintenance; the husband did not. The law (518.552, Subd. 2) also requires the court to take into consideration: “g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.”

In this case, the trial court found that the wife would be left destitute without spousal maintenance even though she still owned a condo in China worth between $200,000 and $250,000. He found that the wife was incapable of supporting herself because she had had breast cancer and, despite the fact that she had worked on the sales floor at Target in downtown Minneapolis for three and a half years, that she could not speak English, “even to a moderate degree”. He also found that the husband would not be able to support himself if he also had to pay maintenance.

The judge awarded the wife $500 per month in permanent spousal maintenance. To skirt the legal requirement that he take into consideration the obligor’s ability to pay, the judge resorted to a “sharing the hardship” doctrine supported by (non-precedential) case law, assuming that the wife had a needs deficit of $1,000 per month and the husband had needs equalling his income. However, the judge’s calculation ignored $300 per month that the wife received in Chinese Social Security and $70 per month in the husband’s net monthly deficit from the needs budget that he had used for the calculation plus thousands of dollars in unspecified interest payments per month from the marital debt that the husband was meanwhile being made to assume.

Non-marital property

Minnesota state law (518.58, Subd. 2) allows a trial-court judge to award a party up to half of the other party’ non-marital property if the judge “finds that either spouse's resources or property, including the spouse's portion of the marital property ... are so inadequate as to work an unfair hardship.”

The judge ordered the husband to pay the wife $50,000 from his non-marital property in five equal monthly installments of $10,000 beginning two months after his order was issued. The husband had virtually no liquid assets or credit from which to make these payments but the court found he had $580,000 in unmortgaged real estate which might be sold to afford the payments.

Appeals

The Minnesota Court of Appeals reversed the trial-court judge’s award of $50,000 from the husband’s non-marital assets, but upheld the judge’s rulings with respect to division of marital property and award of spousal maintenance. This was in accordance with the broad discretion that appellate courts normally give the judge who presided at trial. The Minnesota Supreme Court declined to review the case.

A year later, the husband was facing additional difficulties in servicing his debt. He therefore filed a motion to eliminate spousal maintenance on the basis of increased needs. Instead, the judge increased the alimony obligation by $100 per month.

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Some of the key events are the following:

date event
   
February 18, 2011 Husband is arrested for domestic abuse when he grabs a checkbook from his wife’s hand. He lives away from his home for a month.
March 8, 2011 Wife files for divorce.
March 16, 2011 Husband files an Answer and Counter-petition.
March 16, 2011 Husband hires an attorney.
April 15, 2011 Initial pre-trial conference takes place with referee who orders Financial Early Neutral Evaluation (FENE).
June 14, 2011 Husband makes an offer to settle the divorce.
July 14, 2011 Rejecting husband's offer, wife makes a counter offer.
July 18, 2011 Reversing herself, referee rules FENE is unnecessary.
September 27, 2011 Referee Cochrane finds private mediator.
October 17, 2011 Mediation conference takes place.
October 21, 2011 Husband writes letter to referee requesting accelerated trial.
October 25, 2011 Husband's attorney withdraws from the case, reducing him to self-representation.
October 31, 2011 Parties reach a tentative settlement which over the next two months is blocked when wife’s attorney refuses to write an agreement incorporating its provisions.
January 5, 2012 Wife's attorney files a motion for temporary maintenance.
January 23, 2012 Husband is again arrested for domestic abuse.
January 24, 2012 Referee holds hearing on temporary maintenance while husband is in jail.
February 2012 Husband brings accusations of wife's attorney's misconduct to Lawyer Professional Responsibility board.
March 20, 2012 The city prosecutor drops domestic-abuse charges against husband.
March 30, 2012 Referee issues an order regarding temporary maintenance.
April 6, 2012 Parties hold a discovery conference by telephone with the chief judge of Family Court.
May 1, 2012 The Family Court chief judge holds a “"settlement conference"” with the parties.
May 7-8, 2012 The divorce trial takes place, Judge Swenson presiding.
July 20, 2012 The trial-court judge issues his decision.
August 20, 2012 The husband files motions for an amended findings of fact/conclusions of law or, in the alternative, a new trial. He also obtains a court date for the hearing (October 9th).
August 28, 2012 Husband files new motion for stay of execution to pay the $50,000 ordered by the trial-court judge because the first payment was due before the hearing.
September 28, 2012 Trial-court judge allows stay of execution of payment of $50,000 if husband provides an approved security bond.
October 9, 2012 The trial-court judge holds a half-hour hearing with the parties.
October 19, 2012 Husband writes a letter to the judge saying that he was unable to obtain a loan or security bond.
December 28, 2012 The trial-court judge issues a ruling in response to husband's post-trial motions.
February 5, 2013 Husband hears from wife's new attorney.
February 20, 2013 The husband files a Notice of Appeal to appellate court.
April 17, 2013 A court-ordered mediation session is held.
August 7, 2013 Husband files a brief in the Minnesota Court of Appeal.
September 10 , 2013 Husband receives wife's responsive brief.
September 16, 2013 Husband files Appellant's reply brief.
October 17, 2013 Minnesota Court of Appeals reviews the case.
January 13, 2014 The Minnesota Court of Appeals issues its decision affirming two awards but overturning the requirement to pay $50,000.
February 7, 2014 Husband files petition with Minnesota Supreme Court to review the order for spousal maintenance.
March 3, 2014 Wife answers petition and files counter-petition.
March 18, 2014 Minnesota Supreme Court denies both parties' petitions.
June 21, 2014 Husband receives refund of $500 deposited with Family Court.
September 24, 2014 Husband files motion to eliminate spousal maintenance.
November 15, 2014 Wife files responsive motion.
January 27, 2015 Judge denies husband's motion and instead increases amount of spousal maintenance
February 12, 2015 Husband files motion for amended findings
March 17, 2015 Wife files responsive motion
July 1, 2015 Judge Swenson issues his decision.
July 10, 2015 Husband files brief with Court of Appeals.
August 14, 2015 Wife files reply brief.
August 20, 2015 Husband files reply brief .
December 8, 2015

Court of Appeals issues decision affirming lower-court decision.

December 28, 2015 Husband appeals to Minnesota Supreme Court.
February 16, 2016 Supreme Court denies appeal.

 

 

List of Court Rulings Where found?
   
Divorce referee on March 30, 2012: In effect, wife's motions for temporary relief are denied since the trial date is approaching. section 20
Trial-court judge on July 20, 2012: 1. Husband is assigned nearly all marital assets and debts, mostly debt. 2. Wife is awarded $500 permanent spousal maintenance. 3. Wife is awarded $50,000 in successive payments from husband's non-marital property. section 32
Trial-court judge's ruling on requested Stay of Execution on September 24, 2013: stay is allowed with posting of a bond. section 39
Trial-court judge's ruling on December 28, 2012, in response to husband's post-trial motions in which certain adjustments are made: 1. Wife ordered to pay $5,976 of marital debt. 2. Husband ordered to pay $3,000 of wife's medical bills. 3. Wife to assume tax liability from sale of her Beijing condo. section 45
Minnesota Court of Appeals ruling announced on January 13, 2014: Judges reverse trial-court judge's invasion of husband's non-marital property but uphold the rulings on spousal maintenance and division of marital debt. section 64
Minnesota Supreme Court on March 18, 2014 declines to review the spousal-maintenance award. section 71
Judge denies husband's motion to eliminate spousal maintenance, instead increasing the monthly payment section 79

 

Sections

I. PERSONAL BACKGROUND

1. Two women in my life
2. Sheila has news for me
3. Lian 's reaction to the news
4. My first arrest for domestic assault

II. HEADED FOR DIVORCE COURT

5. Lian files for divorce
6. My reaction
7. I hire an attorney to negotiate on my behalf
8.The FENE is ordered but nothing happens
9. Sheila’s borrowings and thefts
10.More negotiations and game playing
11.An order for mediation
12. Preparing for the mediation session
13.The mediation session

III. HANDLING THE OTHER ATTORNEY ON MY OWN

14. My letter to the court and the reaction
15. The order for trial
16. Lian and I reach an agreement but her attorney subverts it
17. The lawyerly negotiations turn into a fight
18. Ms. Wing Sun’s motion for temporary relief
19. I do not back down
20. My second arrest for domestic assault
21. A final flurry of documents
22. Referee Cochrane’s decision on the motion for temporary maintenance
23.A more urgent problem needing attention

IV. ON THE HOME STRETCH TO TRIAL

24. Snarling emails
25. Discovery
26. A “"settlement conference"” with Judge Reding
27. Putting my paperwork in order
28 Preparing for the trial

V. THE TRIAL

29. First day of the trial: in the morning
30. First day of the trial: in the afternoon
31. Second day of the trial: in the morning
32. Second day of the trial: in the afternoon
33. In the aftermath of the trial

VI. Judge Swenson"S DECISION

34. The decision on July 20, 2012:

Findings of fact
Conclusions of law
Order for judgment
Memorandum

VII. WHETHER AND HOW TO APPEAL

35. What to make of the judge's decision?
36. Preparations for an appeal

VIII. MY POST-TRIAL MOTION FOR AMENDED FINDINGS OF FACT/ CONCLUSIONS OF LAW OR, ALTERNATIVELY, A NEW TRIAL

37. My post-trial motions filed on August 20, 2012

Notice of motion and motion
Verification
Motion to amend findings of fact
Motion to amend conclusions of law
Grounds for proposed amendments
Basis
Motion for a new trial and stay of execution
Basis for a new trial
Basis for a stay of execution

IX. MOTIONS FILED IN ADVANCE OF A HEARING WITH Judge Swenson ON OCTOBER 9, 2012

38. A motion for stay of execution of the order to pay $50,000
39. Ms. Wing Sun responds to this motion with new accusations
40. My response to Wing Sun's motions and scurrilous accusations
41. Judge Swenson's decision and order regarding the Stay of Execution
42. More motions from Ms. Wing Sun, responses, and snarlings
43. Arguments about proper service
44. A memorandum in preparation for the October 9th hearing
45. The hearing before Judge Swenson on October 9, 2012
46. Bad news about loans

X. Judge Swenson’S DECISION ON MY POST-TRIAL MOTIONS (DEC. 28, 2012)

47. Order p. 265

Memorandum
Amended findings of fact, conclusions of law, order for judgment, and judgment and decree
Conclusions of law
Memorandum

XI. ON TO THE MINNESOTA COURT OF APPEALS

48. Scorched by a fire, the judge's accusations regarding “"veracity"”, and his denial of IFP
49. I examine case law in preparation for an appeal
50. My wife has a new attorney
51. What is required for an appeal
52. The Notice of Appeal and Statement of the Case
53. The Appellate Court orders mediation
54. New attorney, Caryn D. Ye , responds to my Statement of the Case
55. The mediation session
56. The threat of foreclosing on my property
57. I order the trial transcripts

XII. PREPARATION OF THE APPELLANT'S BRIEF

58. The transcripts arrive; what do they show?
59. How to organize the brief

XIII. THE BRIEF SENT TO THE COURT OF APPEALS

60. Text of the brief.

Table of contents
Table of authorities
Legal issues
Statement of the case
Statement of the facts
Arguments
Conclusion
Certificate of brief compliance
Index to Addendum
Index to Appendix

XIV. THE OTHER SIDE'S BRIEF AND PETITIONER’S REPLY

61. Waiting for the other side to reply
62. The respondent's brief
63. Preparing my reply brief
64. My reply brief

the cover
table of contents
table of authorities
statement of the facts
argument
conclusion

XV. THE APPELLATE COURT’S DECISION

65. Announcement that the Minnesota Court of Appeals will review the case on October 17, 2013, and announce its decision on January 13, 2014
66. The appellate court's decision

XVI. AN UNSUCCESSFUL APPEAL TO THE MINNESOTA SUPREME COURT

67. My reaction to the appellate court's decision
68. An appeal to the Minnesota Supreme Court
69. The five-page appeal to the Minnesota Supreme Court
70. Filing the Supreme Court appeal
71. The other side's response to my Supreme Court filing
72. Did the other side's response meet the filing deadline?
73. The Supreme Court renders its decision - not to hear the case.
74. A sigh of relief

XVII. APPEAL OF TRIAL COURT’S AWARD OF SPOUSAL MAINTENANCE

75. Wrapping up loose ends
76. Refund of the bond posted with the trial court
77. I file a motion to eliminate spousal maintenance
78. My motion, Lian's response, and my response to hers
79. Judge Swenson’s order
80. I fight back with a motion for an amended order
81. My wife sends a response
82. My response to petitioner’s response
83. The judge's decision

XVIII. MORE APPEALS

84. Through the appellate routine once more
85. The brief submitted to the Court of Appeals
86. My former wife's replay brief
87. I file a reply brief
88. The Minnesota Court of Appeals schedules a nonoral conference
89.The Minnesota Court of Appeals issues its decision
90. Another appeal to the Minnesota Supreme Court
91. I go off to New Hampshire and then return to a disappointing conclusion in the Minnesota Supreme Court

XIX. WHAT LESSONS FROM THIS CASE?

92. My own opinion about the case and certain people
93. What newcomers to divorce court might learn from this book

94. Appendix - pertinent statutes

Click on the following for quick passage to place in the site:

she files for divorce | the trial | judge's first order | judge's amended order | Court of Appeals decision 

 

I. PERSONAL BACKGROUND

1. Two women in my life

I had been married three times and was in the process of becoming divorced for the third time. As a 71-year-old man, I was not a promising marriage prospect for any woman except, perhaps, for one seeking a payoff in divorce court. In each marriage, I wanted to have children. To date, that desire has remained unfulfilled. After going through the divorce-court wringer, I remain starry-eyed about having a family, but am less enthusiastic about the institution of marriage.

A quirky fact about me is that I have been married to women of all three major racial groups. My first wife was white, as am I. My second wife was black. My third wife was Asian; she was born and raised in Beijing, China. In the process of being a husband to each of these women, I have learned something about diverse cultures. I may not have learned enough to have a successful marriage, however. Now I am disinclined to be married again because such an arrangement, gone awry, brings a judge and two lawyers into the picture.

The reason that my first marriage did not produce children is that my wife had endometriosis. We briefly discussed fertility treatment but then divorced. In contrast, my second wife, African American, had just had her seventh child when we met. What I did not know about her, when we married, was that she had had her tubes tied after the birth of that child. This marriage lasted only a year and a half. We had discussed sending her to Canada to reverse the tubal ligation but our relationship did not last long enough to carry through with those plans.

That leaves wife number three. After a brief correspondence, I flew to Beijing in January 2000 with marriage in mind. My wife was then 43 years of age. I was 58. She was a divorced mother of a teenage girl who was then studying at an international school near Oxford, England, courtesy of her wealthy grandfather.

It seemed then that my wife to be (and I) might be too old to have children but she assured me she was still fertile. She put me on the telephone with her sister in the United States, a medical practitioner in this area, who assured me that there would be no problem for her to have children up to the age of 50. I liked this woman and thought it unseemly to judge her strictly by her reproductive capacity so we signed a document agreeing to marry at the Beijing marriage bureau while seated on a couch. Then we went to a nearby restaurant and had a cup of “flower” tea.

My wife had hired an interpreter to be with us for the first several days but I found her English was good enough to make me believe she was someone special. She assured me she could adapt to American life. “If marry a chicken, is a chicken; if marry a dog, is a dog.” That was her way of telling me that Chinese women assume the lives of their husbands. When I asked what was her religion, she typed in an electronic language translator: “communism”. Chairman Mao had promised that communism would bring happiness and prosperity to the world. Of course, not everything he promised had come true, but the same with other religions. Not all their promises had been kept. This was going to be interesting, I thought.

My wife, Lian , was then head of the hotel department of a Chinese conglomerate. She had previously been general manager of two hotels. This made me believe that she might be a level-headed person wise in the ways of this world. I also assumed that she would be used to resolving conflict. If she and I had differences of opinion, we would be able to talk our way through to a solution, I thought.

Once we were settled in the United States, however, I learned differently. Whenever I tried to argue a position opposed to hers, she would loudly declare that I thought I was always right. I thought I was God. I was “getting angry at her” if I showed the slightest trace of irritation at what she said. In time, I learned never to argue with Lian but just sit there listening.

We were married in January 2000. She and her daughter, Celia, were granted visas to enter the United States in July 2001. They arrived at the Newark airport on the last day of the month. Celia spent a year at a high school in north Minneapolis, graduating in June 2002. Lian , her mother, meanwhile stayed mainly at home for the first year. Often she played solitaire and other games on the computer or watched Chinese-language videos.

I tried my hand at running for political office as a solo candidate with little chance of being elected. At other times, I sat at my iMAC computer, writing books and creating website pages. Lian showed little interest in either of those activities. Her father had been been a high-ranking officer in the People’s Army and head of a construction bureau who was later persecuted during the Cultural Revolution. She excused her lack of involvement in my political adventures by saying that her father had told her that politics was dangerous. I did not push her to become involved.

In fairness, Lian did try to become pregnant. After Celia entered the summer program at Carleton college in Northfield, Minnesota, and began her life as a college student, Lian went back to China for a visit. She made arrangements to be treated at a fertility clinic near the Forbidden City. I soon joined her in Beijing and deposited my sperm at the clinic. We seemed on our way to becoming parents.

But then, in early September back in the United States, I received an email from doctors at this clinic notifying me that the treatment was not going well. Because of our age, there was a low chance of producing a healthy child. The quality and mobility of my sperm was low, the cost of in-vitro fertilization was high, and there was a risk to Lian's health. The hormone treatments could lead to complications and possible death. Did I want her to continue with the treatments?

“How much of a risk?”, I asked, using Celia as an intermediary. What were the odds of her dying? “What odds would you be willing to accept?” was the reply. “Thirty percent?” Of course, I would not insist on Lian's going through with the treatment if she stood one chance in three of losing her life. It would have to be much lower odds. By email I asked the Chinese doctors to put a number on the risk. They did not reply. At length, I told Celia that it would be OK with me if her mother discontinued the fertility treatments that could threaten her life.That put a seal on expectations that we would have a baby together.

Celia was no longer living at home. She now lived in Northfield, Minnesota, forty miles south of Minneapolis. Celia was absorbed in the life of a student at Carleton college. Her mother, Lian , pursued aimless routines in our Minneapolis home while occasionally traveling to China. I twice ran for high political office, once in Minnesota and once in Louisiana. I bought a condemned duplex across the street and spent a ton of money on its renovation. Much of my time was spent at the computer creating websites to support a book I had self-published. Our financial situation was meanwhile worsening.

I purchased the duplex at 1715 Glenwood Avenue in 2001 for about $30,000. However, it cost another $160,000 to do renovation needed to lift the condemnation imposed by the city. My former wife’s half brother, Alan, supervised this project, employing a team of Latino workers. The plumbing contractor, who had worked for a fellow landlord, turned out not to know his trade. We had to tear out sheet rocked walls when another plumber was hired. In addition, an expensive heating and air conditioning system was installed. The electric system had to be completely redone.

I financed this work by selling a vacant lot I owned at 1701 Glenwood Avenue for $42,000, selling stock, charging to my two US Bank unsecured lines of credit, obtaining a secured loan from Wells Fargo, and finally mortgaging our house at 17xx Glenwood for $103,000 in June 2003.

In November 2002, Lian took a temporary job at the Target store in downtown Minneapolis. She did so well during the Thanksgiving and Christmas seasons that Target decided to keep her on as a full-time employee. Her assignment was to tend the fitting room. Given her previous employment, I thought the Target job was below her career potential but it lifted Lian out of her domestic funk. A former corporate executive, she went about cultivating relationships with people who could help her and feuding with a fellow employee she called “Egypt woman”.

Through Lian's employment, I had my first health-insurance coverage in many years. She looked cute in her red Target uniform. In 2005, there were posters in the employee lounge with her smiling face and a proclamation that Lian was the store’s “Great Team Hero” for the month of September, 2005. I wrote a poem about this and recited it in public before a group of men.

Lian's employment at Target ended in May of the following year when a careless employee in the stock room rammed her repeatedly in the leg with a shopping cart. I was called to pick her up in a wheel chair. She was still in a wheel chair during Celia’s graduation ceremonies at Carleton college in 2006. Lian had physical therapy financed through Workers Compensation. Then, a few months later, a police squad car collided with our car while we were driving through Chicago on our way back from the east coast. Lian was taken to the hospital for possible injuries. Because our car was totaled, we had to take a Greyhound bus back to Minneapolis. The city of Chicago denied any responsibility for wrecking my car. I had no collision insurance.

The year 2006 hurt our relationship. I was chafing at being trapped in a childless marriage. Wasn’t marriage supposed to be about providing a structure for children? In this case, it kept me from having a child. In one of my idle moments at the computer, I decided to post a message on Craigslist.com asking if any woman would be willing to have a baby with me without the prospect of marriage. (I planned to stay married to Lian if she would agree.) There was one woman who expressed interest but she sent no responsive message when it came time to meet in person.

Meanwhile, my former wife, Sheila Gorman, who had remarried and lived in Kentucky and Nevada for the first four years of my marriage with Lian , was back in town. She was briefly employed at Boston Scientific in Arden Hills. Lian was staying in China during this time. When Sheila learned of my interest in having a baby with someone other than my wife, she volunteered to fly to a clinic in Florida to reverse the tubal ligation. Originally she thought her health insurance would pay for much of the cost. I wound up paying for just about everything. I had spent $12,000 only to have Lian return from China about the time when Sheila returned from Florida. Evidently, we would have to have clandestine sexual encounters to make the plan work. It was a hare-brained scheme.

On the day that Lian returned to Minneapolis, I had an email from Sheila saying that she needed to spend an extra day at the clinic. It was not possible to speak on the telephone. Would I please put another $2,400 in her bank account so she could return home? No, it would not be convenient for me to meet her at the airport. Just do what I say.

I became suspicious, looked up the clinic on the internet, and called the director. She said that this clinic had no business relationship with Sheila. Maybe the operation was a scam. When I brought this to Sheila’s attention, she said she had actually had the reversal at a hospital in North Carolina. I was unable to confirm that. My suspicion for a long time was that Sheila had not had any operation but had simply pocketed the money.

Lian's health deteriorated. First she contracted Type Two diabetes. Then a cancerous tumor was found in her breast. She had one breast removed. Because of her preexisting conditions, I believed that the cost of health insurance would be prohibitive. We decided to seek medical care in Beijing where costs were lower than in the United States and the quality of care, I thought, was comparable. By late 2007, Celia had become a flight attendant at United Airlines. Employees and their immediate relatives were allowed to travel free on United routes. That meant that Lian and I could travel to Beijing as often as we wished to satisfy her medical needs.

In the meanwhile, Sheila Gorman, who was three years younger than Lian , was raising three teenage daughters and two sons as a single parent. They lived in Cottage Grove and Hastings, south of St. Paul, because her youngest daughter, Erika, had asthma and could not tolerate the city air. Sheila began hitting me up for money for Erika’s medical expenses. Often the request was presented as a loan. Repayment was pitched as a sure thing. For one reason or another, the money never appeared. Sheila always gave a plausible reason for this. Admittedly I was not paying attention to my finances as closely as I ought to have done. Among other things, I continued to run for political office and create text for websites.

Lian split her time between China and the United States. I joined her in Beijing once or twice a year. Sheila’s half brother, Alan Morrison, looked after my buildings in Minneapolis when I was away. Lian and I took on several tours. One was to Hunan province, home of Chairman Mao. Another was to Thailand, Singapore, and Malaysia. We also took a two-day bus trip to inner Mongolia. Lian went on a number of trips by herself to places in Asia - Sinkiang and Fujian provinces in China, Hong Kong, Vietnam, and Korea. She also received continued treatment for cancer with both traditional and western-style medicine. I lived by myself in Minneapolis much of the time.

2. Sheila has news for me

While Lian was in China in early 2010, Sheila showed up unannounced at my house one day and we had sex. To the best of my knowledge, this happened only once. Even so, I was feeling in need of a woman. When Lian was in Minneapolis, we usually slept in separate beds. She later said she thought, as an American man, I might have AIDS.

At that time, the police found drugs in one of my apartment units. I had to submit a management plan. I had to evict a tenant for non-payment of rent. I continued to participate in political discussions on the e-democracy forum. I interviewed Minneapolis landlords to write up their experiences for a web site. When a fellow candidate for Mayor of Minneapolis in 2010 became a candidate for Governor of Minnesota in the Republican primary, I accepted an invitation to be his running mate. Our ticket finished second, with 8 percent of the vote.

In May, when I returned to Minneapolis from a trip to China, Sheila said that she had been feeling uncomfortable. A doctor had told her she was pregnant. Sheila brought a pregnancy kit with her to my home. The test confirmed her pregnancy. I was not unhappy with this turn of events. For one thing, it confirmed that Sheila had not been lying about the tubal-ligation reversal. I knew Sheila was a conscientious mother. Having a baby with her would fulfill a lifelong dream. Sheila, on the hand, had been bogged down with parental responsibilities since her teenage years. She had been looking forward to developing her own career plans.

Together we drove up to a place in Wisconsin, near Lake Superior, where I owned a log cabin and forty acres of land. Sheila said that she wanted to own property like this to raise a child. The fathers of her previous children had either died or disappeared leaving her with nothing. I agreed to give her and our future child a piece of my land. A week or two later, I developed a case of the mumps. After my swollen face subsided, I feared I had become infertile. This would be my last chance to become a father.

Sheila and her children were then living in a rented house in St. Paul, having previously lived in a shelter in Bloomington. I paid the $1,400 monthly rent. Additionally, I was paying for car repairs or auto insurance for Sheila or one of her daughters. I was also paying for cable and wireless phone bills. In retrospect, it seems foolish of me to have given or loaned that money to Sheila except that I believed she was carrying my child. She always had the option of getting an abortion. Sheila was going through with this pregnancy for my sake more than for her own.

I did not promise Sheila to divorce Lian and marry her. In fact, I made it clear to her that I would not divorce Lian . Once the baby was born, I would show it to Lian and give her the option of divorcing me or not. That, at least, was my plan. Knowing that Lian liked children, I was hopeful that she would want to stay married to me. Sheila and I would have a baby together and then share custody as if in a former marriage. Considering that Sheila had already had parenting experience and wished to move on, this was quite a concession for her to make. To open my wallet was small in comparison.

And so, during the summer and fall of 2010, my focus was entirely on the prospect of becoming a father. We decided to name our baby “Payson”. It would be “John Payson McGaughey’ if a boy, and “Jean Payson McGaughey” if a girl. The ultrasounds showed it was a girl. Sheila invited me three times to visit the clinic to view the ultrasound but each time the appointment was cancelled. Once we had car problems. Another time Sheila canceled the appointment believing that I would not return from a trip as promised. I became suspicious about this. Was she really pregnant?

I wanted Sheila to bear a healthy baby so I gave her money for nutritious food. Unwisely, Sheila accompanied her daughter on a trip to Missouri where she became sick and was briefly hospitalized. I paid for that, too. I paid for baby furniture that was never received and for a mattress that would allow the expectant mother to sleep more comfortably, When she complained of back pain, I paid for water therapy.

Sheila had expected to move into one of my rental units in Minneapolis at the beginning of November but did not remember that the current tenant had the unit until the end of the month. She gave her present landlord notice to move as of November 1st. When Sheila realized her mistake and asked to stay another month, the landlord took her to court and won. Sheila and her family had to move out within two days. Therefore, this woman, now six or seven months pregnant, was put through the emotionally and physically demanding ordeal of packing their belongings, hiring a U-Haul van, and moving into a vacant efficiency unit in my apartment at 1708 Glenwood Avenue until the larger unit next door became available at the end of the month.

I flew to China for a week to ten days at the end of November to be with Lian . I returned to the United States around December 6, 2010, to shocking news: Sheila had lost the baby. She had carried a dead fetus inside her for three days before having it removed. Sheila and her family were now staying in the three-bedroom unit below my living quarters. I returned home in the evening of December 6th to learn also that a set of keys and my car were missing and that ten blank checks had been taken from my check register. Checking my account by telephone, I discovered that checks totaling $1,700 had been written and cashed. I could not reach Sheila that night.

In the following morning, Sheila told me about Payson’s death. She admitted to having stolen the checks. She had been severely depressed. The good news, she said, was that the money taken from my account would allow her to get a job with a bank paying $15 an hour. This money had been used to pay off charges from TCF bank so that a “fraud alert” could be removed from her account. The alert had been issued as a result of having complained several years ago about a person who had forged her signature on a check. Sheila explained that some companies have a policy of not hiring anyone with bank accounts associated with a fraud alert. That was why she had lost her job at Boston Scientific, she said.

If Sheila was in line for a good job at a bank, I thought it best not to complain about the theft of money from my checking account. Sheila was now in the main unit of my fourplex and had agreed to pay $1,050 per month in rent. Long term, it appeared that I might get at least some of my money back.

Meanwhile, on December 10, 2010, I signed papers at US Bank to put a mortgage on our home at 17xx Glenwood Avenue in Minneapolis. Lian's signature was obtained through a Power of Attorney form signed at the U.S. embassy in Beijing. This new mortgage refinanced an earlier one with Wells Fargo created in June 2003 which had been paid down from $103,000 to $70,600 in the course of seven years. Even though the interest rate was slightly higher, I wanted a fixed rather than variable rate fearing that U.S. monetary policy might bring hyper inflation. I also paid off two credit lines with debts amounting to $15,600 to reduce the interest rate.

3. Lian 's reaction to the news

Lian came home from China in January 2011. She must have seen Sheila on the porch because she asked me who lived downstairs. She said she did not care about the answer but just wanted to know the truth. Therefore, the moment of truth had arrived. I had expected to show Lian a live baby. Now I had to tell her the whole story. I freely admitted that the tenant downstairs was my former wife, Sheila. I also told her that Sheila had been pregnant with my child. That was why she was living downstairs. She had been pregnant when she moved in, having lost her previous apartment. I thought I had to take care of her and the baby.

Lian's immediate reaction was to say that it was impossible for Sheila to have become pregnant by me. The fertility doctors in Beijing had said my sperm was weak. I was too old. Sheila was lying. And even if Sheila was pregnant, the baby probably was not mine. I said I was not worried about that possibility because Sheila had promised to submit the baby to a paternity test. If the baby been born, we could easily have determined who was the father.

Lian demanded that I evict Sheila immediately. I refused. If Sheila had really been pregnant with my child, I did not want to treat her that way. It was more for my sake than hers that she had attempted to carry the fetus to term. Was I now to throw her out on the street? Sheila had agreed to pay a fair rent. No, I told Lian , I would not evict her.

It was then that we started to talk about divorce. I was hoping that Lian would agree to meet Sheila. Maybe they would even like each other. Lian refused to meet, saying she felt more like killing Sheila. To settle the divorce, she said she would consider taking half of the duplex at 1715 Glenwood while assuming none of the related debt. (This property was under water.) Another possibility was for me to pay her $1,000 per month while allowing her to continue occupying the unit across the hall without paying rent. (There were two adjoining units on the second floor at 17xx Glenwood, each with its own bedroom, living room, kitchen, and bathroom.) Later, she limited the payment to three years. I might settle the divorce by paying her $36,000 in a lump sum. I agreed to nothing.

During this time, Lian was busy packing her belongings in bags. Since we were able to fly free on United Airlines courtesy of our daughter, she would stuff up to fifty pounds of clothing or other belongings in each of two allowable bags and then fly to Washington, D.C. to deliver the luggage to daughter Celia who owned a townhouse near the Dulles airport in Herndon, Virginia. Sometimes she would book a flight for me so we could check four bags at the United counter. I would then “forget” to board the plane. At other times, we shipped packages to Herndon through the U.S. Postal Service. Either way, a steady stream of Lian's possessions flowed out of our Minneapolis home. It did not occur to me then that this might be in preparation for a divorce.

Lian said I was “low”, like Sheila. She had married me because I graduated from Princeton. Instead, I was associating with ghetto trash. There is an expression in Chinese: “singing to a cow”. That means that you put all your creativity into singing a beautiful song but your audience is a cow who cannot appreciate the gift. She was giving her refinement and intelligence to a cow who wanted only to eat grass. I was stooping to Sheila’s bovine level. Lian had seen her. She wasn’t even good-looking. What did I see in Sheila?

Lian wondered if Sheila had paid the promised rent. I had to admit she had not. Because I now thought Sheila had a good-paying job at a bank, I pressed her for rent. I threatened to evict her if she paid nothing. This struck Sheila the wrong way. She thought that because Lian was back in town, I was tossing her away. Sheila later told me that she had been sick after losing the baby. Her absence from work caused her to lose her job so she did not have the money for rent. Sheila paid $300 for rent in February but afterwards nothing. She said she began to fear becoming homeless. She became desperate and panicked.

I had told Lian that, not only was Sheila not paying rent, I had loaned her money. “How much money?”, Lian wanted to know. I decided it was not in my interest to give my wife any more ammunition to use against me. She had told me that she was interested mainly in honesty. Given an honest answer, she was now demanding that I evict Sheila. She was talking of divorce. Therefore, I refused to put a number on the money given Sheila. During February, 2011, Lian pressed me to reveal the amount of money given to Sheila. Once or twice, she resorted to physical violence. It was not something that a sturdy male like me could not handle.

As co-leader of a Minneapolis landlord group, I was working on proposals for legislation to benefit the group at the invitation of a Minnesota state senator. We met with this legislator in his office at the state capitol on Tuesday, February 15th. The meeting went well. I was in the process of contacting other members of the group to get their opinion of what legislation we should pursue.

In the late afternoon of Friday, February 18th, I was sitting at the computer in my office drafting a message to send to one of our members. My check register lay on the desk near the computer. Lian came into the room, grabbed the check register, and began reading through the notations looking for dirt. There was an entry for $1,400 with Sheila’s name on it. “What is this?”, she asked. There was another entry for $850. “What is that?” I ignored the questions for a time but then asked Lian to give me the check register back. She refused.

Suddenly I stood up, reached for the checkbook, and, after a brief struggle, pried it out of Lian's hands. Lian , who was sitting in a chair, came down on me and bit the back of my hand. I freed my hand from her mouth in a sudden move. Then I walked into the other room.

Lian was stunned. I had never reacted this way before. She told me that she would call 911. Rashly, I said, “Go ahead.” She placed the 911 call. Lian began weeping as she made a complaint of physical violence. I gave the matter little thought. When a tenant called to ask for a ride, I left the house briefly and returned ten minutes later. Lian and I sat calmly at a table waiting for the police to arrive.

4. My first arrest for domestic asault

There was a knock on the front door. Our little dog, Do Do, ran down the steps barking at the intruder. I walked down the stairs, opened the door, carried the dog back upstairs, and put him in Lian's room at the head of the stairs. Two officers, one a white male and the other an Asian female, followed me up the stairs. As I was closing the door to the room where Do Do was, the white-male officer ordered me to place my hands behind my back. Without asking a single question, he slipped handcuffs on my wrists. He and his female partner then led me to a squad car parked on the street.

To make a long story short, I was arrested and jailed for domestic abuse. (See story of arrests.) A judge released me on $2,400 bail, imposing a no-contact order. I was ordered not to enter or approach my house. I was not allowed to contact Lian by any means, even through a third party, until the order was lifted. Alan Morrison, Sheila’s brother, raised the bail money and let me stay in his suburban home in Brooklyn Park, Minnesota. My arrest took place on February 18th. The no-contact order was lifted a month later. I returned home then to Minneapolis.

While I was living with Alan and his family in Brooklyn Park, I received a report from Sheila, who was living downstairs, that Lian and some Chinese companions were removing things from our home. Box after box of possessions were being loaded into cars. Sheila said that on the evening of my arrest she could hear a group of people upstairs in my office. Maybe they were looking through my papers.

I was worried that Lian might remove a valuable piece of art from my office. Since I was allowed to remove personal possessions with a police escort, I returned to the home several days later in the prescribed manner. I made a rather clumsy effort to locate and remove the work of art. That attracted Lian's attention. She complained to the officer. After she told the officer that she planned to reconcile with me, the officer would not allow me to remove this object from our home.

 

II HEADED FOR DIVORCE COURT

5. Lian files for divorce

There was a knock on the door at Alan’s home in Brooklyn Park. A process server handed me an envelope containing a divorce petition drafted by an attorney named Wing-Sze Wong Sun. I realized that Lian had filed for divorce. The attorney’s letter, dated March 8, 2011, began in a non-threatening way:

“I have been retained by Ms. Lian McGaughey for this divorce proceeding. She is not in good health and desires a quick resolution and to part terms in an amicable way.

Please contact me at your earliest convenience and we can discuss the dissolution. if you plan to hire an attorney, please let me know.

Attached please find a Petition and Summons.”

This document read:

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of:
Lian Yang McGaughey
Petitioner

PETITION FOR and DISSOLUTION OF MARRIAGE

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent File No. ____________________

__________________________________________________________________

Petitioner, Lian Yang McGaughey, for her Petition in this proceeding states and alleges:

I.

The true and correct name of the Petitioner is Lian Yang McGaughey. Prior to marriage she was known as Ying Min and an alias of Lian Ying McGaughey. She is not known by any other name. Currently she is residing at 17xx Glenwood Avenue in Minneapolis, Minnesota, with a zip code of 55405. Petitioner’s social security number is provided for in the Confidential Information Form.

II.

Petitioner is currently represented by Wing-Sze W. Sun, Attorney at Law, through The Wing Sun Law Firm, located at 8XXX Wayzata Boulevard, Suite 320, in Golden Valley, Minnesota, 55426.

III.

The true and correct name of respondent is William Howard Taft McGaughey, Junior. He is also known as Chet McGaughey or William H. McGaughey. To Petitioner’s knowledge and belief, he is not known by any other name. To the best of Petitioner’s knowledge, Respondent currently resides at 1335 93rd Avenue North, Brooklyn Park, MN 55444. His social security is provided for in the Confidential Information Form.

IV.

Petitioner was born on April 5, 1956 and is fifty five (55) years old. Respondent was born on February 21, 1941 and is seventy (70) years old.

V.

Petitioner and respondent were issued a marriage certificate on January 28, 2000 in the city of Beijing, in the country of People’s Republic of China. They have been husband and wife since the day of their marriage.

VI.

Petitioner has resided in this state and Hennepin county for not less than 180 days (six consecutive months) immediately preceding the commencement of this proceeding.

VII.

Neither party is a member of any branch of the United States military. Neither party is entitled to any relief under the Service Members Civil Relief Act, as amended.

VIII.

The parties have no joint minor children. Lian Yang McGaughey has a child, who is of majority age, Celia Yue McGaughey, and is not subject to this proceeding.

IX.

Petitioner is not now pregnant.

X.

The marriage has not previously been dissolved and no separate proceeding for dissolution legal separation, or custody is pending in any court in this state or elsewhere.

XI.

Petitioner has filed for a divorce in good faith.

XII.

There has been an irretrievable breakdown on the marriage relationship within the meaning of Minn. Stat. § 518.06.

XIII.

The parties have been separated since February 18, 2011, in connection to a current and pending case, regarding Case Number 27CR115037, however Respondent may be allowed back into their marital home.

XIV.

Petitioner is not now employed outside the home. Petitioner has been diagnosed by a licensed physician with cancer and seeks medical assistance, among other illnesses, requiring medical attention. Prior to this, she was diagnosed with a different kind of cancer and required chemotherapy, among other illnesses. Due to her physical illness, she was unable to obtain gainful employment. However, Petitioner receives approximately $280.00, net income, per month of social security from People’s Republic of China. Petitioner’s reasonable living expenses for herself are currently unknown to Petitioner; however, it will be a higher amount due to a possibility that she may not be able to obtain affordable health insurance. Petitioner will relocate because of her illnesses and her reasonable living expenses will increase, however it is unknown to Petitioner at this time.

XV.

The Respondent is currently retired.

XVI.

Respondent’s monthly expenses are currently unknown to Petitioner.

XVII.

Petitioner is not covered by appropriate medical health insurance, but requires medical assistance. Due to her husband’s financial circumstances, she currently does not qualify for medical assistance. The cost of the medical insurance is currently unknown. She is also not covered with vision and dental insurance.

XVIII.

Upon information and belief, respondent is covered with medical health, vision, and dental insurance. However, the insurance information is unknown at this time.

XIX.

Petitioner is not capable of being self-supporting and is in need of an award of spousal support from respondent.

XX.

Respondent is capable of being self-supporting and is not in need of an award of spousal support from petitioner.

XXI.

Upon information and belief, the parties have joint debts that incurred during the marriage. The amount of debt is unknown at this time.

XXII.

Upon information and belief, the parties have separate debts throughout the marriage. The amount of debt is unknown at this time.

XXIII.

Petitioner owns and posses a rusted 1995 Mercury worth approximately $200 in need frequent mechanical repairs. Respondent no longer owns and possesses a car, this vehicle is unencumbered.

XXIV.

The parties do not own any real property jointly and all the real property, except Number 6 and 7, was acquired prior to marriage. Unless specifically stated, the parties do not have any existing liens or encumbrances on the following real property:

Upon information and belief, Petitioner states Respondent owns:

1. A house and land at 100 Sawkill Avenue, Milford, Pennsylvania, the value is currently unknown, and the legal description is unknown to Petitioner at this time.

2. A four-plex at 17xx Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. Lot 4 and 5, Block 16, Maben, White and Le Bron’s Addition to Minneapolis, Minnesota;

b. This property is subject to a term of ten (10) years’ mortgage obtained on December 10, 2010, where the principal line of credit received was $86,300.00 where the debt is joint, the current balance owned is unknown to Petitioner at this time.

3. A nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. Block 16, Lots 6 and 7, Maben, White LeBron’s Addition to Minneapolis.

4. A duplex at 1715 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. The front or Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

b. This property is subject to a term of thirty (30) years’ mortgage obtained on November 29, 2007 in the amount of $182,000.00 where the debt is joint, the current amount remaining is currently unknown to Petitioner at this time.

5. Real estate at 1719 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. The North 138 feet of the East 42 1/2 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26, Hennepin county, except the East 2.0 feet thereof.

6,. A vacant lot by 1719 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26 Hennepin county, Minnesota.

7. 40 acres and log cabin in Orienta Township, County of Bayfield, near Port Wing Wisconsin, the value is unknown at this time, the legal description is:

a. Government Lot 6, Section 29, Township 51 North, Range 6 West.

Petitioner owns:

8. A condominium in Beijing, China at Hualong Residence Community, Tongzhou District, Building 48, Apt 552, the legal description is unknown at this time to Petitioner. To Respondent’s information and belief, the property is worth approximately $220,000.

XXV.

Petitioner owns a diamond ring, her wedding ring, worth approximately $700. Respondent owns a celluloid print of Dynamoe signed by Wunderlix with the current value unknown. Each party owns miscellaneous household goods and furniture.

XXVI.

Petitioner currently has a 401k retirement worth approximately $5,000.00 earned during the marriage. Respondent’s retirement accounts are currently unknown to Petitioner at this time, however, upon information and belief, Respondent worked at Metro Transit as an Accounting Manager before entering into retirement, and may have retirement associated with his previous career.

XXVII.

Petitioner and Respondent own bank accounts jointly and individually, incurred prior to marriage and during marriage. Petitioner does not have sufficient information at this time regarding Respondent’s accounts.

XXVIII.

Upon information and belief, respondent owns common stocks in Wachovia bank, Xcel Energy, Pacific Gas & Electric, Target Corp., Gannett, US Bank, and Germany Fund.

XXIX.

As of now, Petitioner is not in need of a protective order for herself.

WHEREFORE, Petitioner requests that the Court:

1. Dissolve the marriage of the parties.

2. Order respondent to obtain and maintain appropriate medical, vision, and dental insurance for the petitioner.

3. Order respondent pay for petitioner’s attorney’s fees.

4. Grant temporary and permanent spousal maintenance to petitioner, and deny temporary and permanent spousal maintenance to respondent.

5. Order that each party be responsible for his or her separately incurred debts, incurred since the parties’ separation, and order that each hold the other harmless from any current and future responsibility of any separately incurred debts.

6. Make a just and equitable disposition of the marital property of the parties.

7. Order an equitable division of the real property of the parties.

8. Award petitioner an equitable portion of respondent’s stocks and other bank accounts.

9. Order respondent to be solely responsible for respondent’s own temporary and permanent attorneys’ fees and costs incurred in this proceeding, without any contribution thereto on the part of the other.

10. Provide such other relief as the Court deems appropriate in the circumstances.

Dated: March 8, 2011
________________________

Wing-Sze W. Sun
Attorney ID#XXXXXXX
Attorney for Petitioner
The Wing Sun Law Firm
8XXX Wayzata Blvd. Suite 320
Golden Valley, MN 55426
885-XXXX

Another document accompanied the above. It read:

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of:
Lian Yang McGaughey
Petitioner

and

SUMMONS

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent File No. ____________________

__________________________________________________________________
THE STATE OF MINNESOTA TO THE ABOVE-NAMED RESPONDENT:

You are hereby summoned and required to serve upon petitioner’s attorney an answer to the petition that is served upon you together with this summons within thirty (30) days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the petition.

The object of this action is for the dissolution of marriage.

The above-captioned action involves, affects or brings into question the title to or some interest in real property described as:

The parties do not own any real property jointly and all the real property, except Number 6 and 7, was acquired prior to marriage. Unless specifically stated, the parties do not have any existing liens or encumbrances on the following real property:

Upon information and belief, Petitioner states:

1. A house and land at 100 Sawkill Avenue, Milford, Pennsylvania, the value is currently unknown, and the legal description is unknown to Petitioner at this time.

2. A four-plex at 17xx Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. Lot 4 and 5, Block 16, Maben, White and Le Bron’s Addition to Minneapolis, Minnesota;

b. This property is subject to a term of ten (10) years’ mortgage obtained on December 10, 2010, where the principal line of credit received was $86,300.00 where the debt is joint, the current balance owned is unknown to Petitioner at this time.

3. A nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. Block 16, Lots 6 and 7, Maben, White LeBron’s Addition to Minneapolis.

4. A duplex at 1715 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. The front or Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

b. This property is subject to a term of thirty (30) years’ mortgage obtained on November 29, 2007 in the amount of $182,000.00 where the debt is joint, the current amount remaining is currently unknown to Petitioner at this time.

5. Real estate at 1719 Glenwood Avenue, Minneapolis, Minnesota, the value is currently unknown to Petitioner at this time, the legal description is:

a. The North 138 feet of the East 42 1/2 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26, Hennepin county, except the East 2.0 feet thereof.

6. A vacant lot by 1719 Glenwood Avenue, Minneapolis, Minnesota, the value is currently known to Petitioner at this time, the legal description is:

a. The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s Subdivision No. 26 Hennepin county, Minnesota.

7. 40 acres and log cabin in Orienta Township, County of Bayfield, near Port Wing Wisconsin, the value is unknown at this time, the legal description is:

a. Government Lot 6, Section 29, Township 51 North, Range 6 West.

8. A condominium in Beijing, China at Hualong Residence Community, Tongzhou District, Building 48, Apt 552, the legal description is unknown at this time to Petitioner. To Respondent’s information and belief, the property is worth approximately $220,000.

NOTICE OF TEMPORARY RESTRAINING PROVISIONS

UNDER MINNESOTA LAW, SERVICE OF THIS SUMMONS MAKES THE FOLLOWING REQUIREMENTS APPLY TO BOTH PARTIES TO THIS ACTION, UNLESS THEY ARE MODIFIED BY THE COURT OR THE PROCEEDING IS DISMISSED:

(1) NEITHER PARTY MAY DISPOSE OF ANY ASSETS EXCEPT (i) FOR THE NECESSITIES OF LIFE OR FOR THE NECESSARY GENERATION OF INCOME OR PRESERVATION OF ASSETS, (ii) BY AN AGREEMENT IN WRITING, OR (iii) FOR RETAINING COUNSEL TO CARRY ON OR CONTEST THIS PROCEEDING.

(2) NEITHER PARTY MAY HARASS THE OTHER PARTY; AND

(3) ALL CURRENTLY AVAILABLE INSURANCE COVERAGE MUST BE MAINTAINED AND CONTINUED WITHOUT CHANGE IN COVERAGE OR BENEFICIARY DESIGNATION.

IF YOU VIOLATE ANY OF THESE PROVISIONS, YOU WILL BE SUBJECT TO SANCTIONS BY THE COURT.

(4) PARTIES TO A MARRIAGE DISSOLUTION PROCEEDING ARE ENCOURAGED TO ATTEMPT ALTERNATIVE DISPUTE RESOLUTION PURSUANT TO MINNESOTA LAW. ALTERNATIVE DISPUTE RESOLUTION INCLUDES MEDIATION, ARBITRATION, AND OTHER PROCESSES AS SET FORTH IN THE DISTRICT COURT RULES. YOU MAY CONTACT THE COURT ADMINISTRATION ABOUT RESOURCES IN YOUR AREA IF YOU CANNOT PAY FOR MEDIATION OR ALTERNATIVE DISPUTE RESOLUTION, IN SOME COUNTIES, ASSISTANCE MAY BE AVAILABLE TO YOU THROUGH A NONPROFIT PROVIDER OR A COURT PROGRAM. IF YOU ARE A VICTIM OF DOMESTIC ABUSE OR THREATS OF ABUSE AS DEFINED IN MINNESOTA STATUTES CHAPTER 518B, YOU ARE NOT REQUIRED TO TRY MEDIATION AND YOU WILL NOT BE PENALIZED BY THE COURT IN LATER PROCEEDINGS.

Dated: March 8, 2011
________________________

Wing-Sze W. Sun
Attorney ID#XXXXXXX
Attorney for Petitioner
The Wing Sun Law Firm
8XXX Wayzata Blvd. Suite 320
Golden Valley, MN 55426
885-XXXX

There was also a notarized “verification” which read as follows:

VERIFICATION

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

Petitioner, Lian Yang McGaughey, being duly sworn, says that she has read the foregoing Petition, that the allegations made in the Petition are true, except that those allegations made upon information and belief, and she believes those allegations to be true as well.

_______signed______
Lian Yang McGaughey

Subscribed and sworn to before me
this 8 day of March

__________________
Notary Public

 

6. My reaction

Looking through the petition, I found a number of disturbing provisions. Besides dissolving the marriage, Lian wanted the court to order me: (1) to pay for medical and dental insurance for her, (2) to pay for her attorney’s fees, (3) to grant her temporary and permanent spousal maintenance, (4) to give Lian “an equitable portion” of my stocks purchased before the marriage, and (5) make “an equitable division” of the real estate, primarily acquired before the marriage. In short, she would get everything and leave me with nothing.

The “summons” accompanying this petition stated: “You are hereby summoned and required to serve upon petitioner’s attorneys an answer to the petition that is served upon you together with this summons within thirty (30) days after the service upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in this petition.” That statement grabbed my attention. If I did nothing, a court would take away all my buildings, make me purchase health and dental insurance for Lian , pay her attorney’s fees, etc. I could get better terms from a thug on the street.

I received a telephone call from Ms. Wing Sun, Lian's attorney, several days later. When I complained of the harsh terms in the petition, she assured me that this was only a formality. We could negotiate a settlement. I did not yet have an attorney. Because of her illness, this attorney said Lian wanted to get the divorce over quickly. She would be reasonable. Maybe we could sit down together and work out a deal.

Sheila’s report on mysterious happenings in my office now made sense. Perhaps, the people making noise above her were going through my financial records, looking for evidence to use against me in divorce court. Although unethical, there was nothing I could do about this so long as the no-contact order remained in effect.

At the time, my main concern was the arrest for domestic assault and prospect of a trial in criminal court. I took advantage of the Hennepin County Bar Association’s offer of a half hour’s consultation with a qualified attorney for $35. The assigned attorney was James Gurovitsch of Brooklyn Center, Minnesota. He explained to me that he practiced primarily in the area of divorce but did provide some useful information about procedures related to domestic violence. Ultimately I chose another attorney, John Ganley, to represent me in the criminal case.

While living in Brooklyn Park, I had another telephone conversation with Ms. Wing Sun. She told me that Lian had been vomiting nearly every day. I took this as a sign that her cancer might have returned. That fact took precedence over other concerns. I promptly called Wing Sun back to say that I would offer $25,000 in cash to settle the divorce immediately. I would also accompany my wife to China if she had to go there for an operation. The attorney’s response was that $25,000 was too little. Also, my wife wished to make a clean break after the divorce.

Nevertheless, the news about Lian's worsening health colored my thinking about how to respond to the domestic-assault charge. Attorney Olson said I had three options: (1) I could plead innocent and ask for a trial. (2) I could plead guilty to disorderly conduct, a lesser charge which would stay on my record. (3) I could plead guilty - continuance, which meant that I admitted guilt in the charge of domestic assault. However, if no similar offense happened again within a year, all charges would be dismissed. I would also have to take three anger-management classes.

I chose the third option because I urgently needed a judge to lift the no-contact order. That was because on February 28th, while I was living in Brooklyn Park, the city of Minneapolis did a rental-license inspection on our home at 17xx Glenwood Avenue. On March 4th, a bright Day-Glo placard announcing that the house was condemned as being “unfit for human habitation” was posted on the front door.

Actually, there was no major problem with the house. There was no lack of water or heat. It was merely that the city inspector had found a number of code violations and rated them. The total points exceeded a number that triggered condemnation. The placard gave me until April 10th to fix the problems. If enough work was done to lower the point total sufficiently by that time, condemnation might be avoided. However, a court order forbade me to set foot on that property. That was a problem.

Condemnation of the building meant that the city would not allow people to live in it. Potentially, the city council could order the house demolished at the owner’s expense. If I could not do the work myself, I would have to arrange to have it done by someone else. Fortunately, Alan Morrison, who could legally enter the building, stepped up to the plate and did enough work in the time allowed for the condemnation to be avoided.

Another problem, of great concern to me at the time, was that the no-contact order would not allow me to be with my wife in her time of medical need. Despite assurances to the contrary, I learned in court that I would be on probation for a year. I would have to take, not just three, but as many as a half year’s worth of anger-management classes each week. The requirement to attend those classes in consecutive weeks would make it difficult for me to travel to China as I had hoped.

Fortunately, attorney Olson was able to broker a deal with the prosecutor and judge that gave me permission to go to China before the anger-management classes began. Therefore, I pled guilty-continuance to the charge. The no-contact order was lifted. My wife and her attorney’s husband were sitting in the back of the court room. She told the judge that she wanted the no-contact order lifted.

Therefore, I returned home later that day on March 18th. Yes, it was true that Lian had been vomiting. Comparing notes with her, I also learned that the police report was not accurate. This report claimed that I had punched my wife in the face four times while holding her wrists with the other hand. It claimed that blood had come out of her mouth. Lian said her mouth had been bruised when I swung my arm to the side in freeing my wrist from her mouth. She also said that she had filed for divorce after I had tried to remove the art work from the house. She had not tried to steal it and was upset by my lack of trust in her.

Before hiring an attorney to represent me in the divorce case, I asked John Ganley what to do about the petition. He said I could respond in a cursory fashion. Just say: “Respondent admits paragraphs a,b,c,d,e,f,g,h”; and Respondent denies paragraphs t,u,v,w,x,y,z.” I would admit such propositions as my wife’s and my name, current place of residence, date of marriage, and the fact that the marriage had broken down. I would deny that the petitioner was incapable of supporting herself and that I was, and other such self-serving assertions. I asked that each party pay its own medical bills and attorney’s fees and that neither party receive spousal maintenance.

Therefore, I drafted the following document:

STATE OF MINNESOTA
COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of:

Lian Yang McGaughey
Petitioner

and

ANSWER AND COUNTERPETITION

FOR DISSOLUTION OF MARRIAGE

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent File No. ____________________

__________________________________________________________________

Respondent, William Howard Taft McGaughey, Junior, for his Response in this proceeding states and alleges:

Respondent admits paragraphs I, II, III, IV, V, VII, VIII, IX, X, XI, XII, XIII, XV, XVI, XXI, XXV, XXIX.

Respondent denies, all or in part, paragraphs VI, XIV, XVII, XVIII, XIX, XX, XXII, XXIII, XXIV, XXVI, XXVII, XVIII.

WHEREFORE, Respondent requests that the Court:

1. Dissolve the marriage of the parties.

2. Order each party to be responsible for his or her own medical bills.

3. Order each party to pay his or her own attorney’s fees.

4. Deny temporary and permanent spousal maintenance to petitioner and to respondent.

5. Order that each party be solely responsible for his or her separately incurred debts, incurred since the parties’ separation on February 18, 2011.

6. Make a just and equitable disposition of the marital property and debt of the parties including the remaining portion of the proceeds of an apartment unit in Beijing, China, sold by the petitioner in 2010.

7. Allow each party to retain sole possession of his or her premarital property.

8. Order petitioner and respondent to be solely responsible for his or her own temporary and permanent attorney’s fees and costs incurred in this proceeding.

9. In the alternative, order whatever payment or property settlement may be reached by agreement between the two parties.

10. Provide such other relief as the Court deems appropriate in the circumstances.

Dated: March 16, 2011

___________________________
William H. McGaughey, Jr.
respondent

I also submitted a notarized “Verification”:

VERIFICATION

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

Respondent, William Howard Taft McGaughey, being duly sworn, says that he has read the foregoing response, that the allegations made in the Response are true, except for those allegations made upon information and belief, and he believes those allegations to be true as well.

_______signed______
William Howard Taft McGaughey

Subscribed and sworn to before me
this 16 day of March, 2011

__________________
Notary Public

 

The response had to be served within thirty days or the requests stated in the petition would be granted by default. I asked Alan if he would personally serve my response at attorney Wing Sun’s office. He agreed. On March 25th, we drove together to Golden Valley. Alan went into the office building while I waited in the car. The attorney’s office was on the third floor.

Ten minutes later, Alan returned to the car still holding the papers. He said that, although attorney Wing Sun had left the office, he had talked with her on the telephone. He said that she had told him that events had moved beyond the point that a response was required. A conference to settle the divorce was already scheduled.

Recalling that the petition had stated that its terms would be granted by default if no response was served, I asked Alan to go back into the office and make sure that the papers were served. He left them with an employee named Judy Laise. Attorney Wing Sun had said she would not object to the service although she herself was not present.

The Affidavit of Service signed by Alan Morrison follows:

STATE OF MINNESOTA
COUNTY OF HENNEPIN

DISTRICT COURT
FOURTH JUDICIAL DISTRICT

FAMILY COURT DIVISION

Case Type: Dissolution without Children

In Re: the Marriage of

Lian Yang McGaughey

Petitioner,

and

RESPONSE TO PETITION FOR
DISSOLUTION OF MARRIAGE

William Howard Taft McGaughey, Junior,
Also known as Chet McGaughey, and
William H. McGaughey,

Respondent
File No. ___________

_____________________________________________________________________

AFFIDAVIT OF SERVICE

I have served upon the attorney of Lian Yang McGaughey, petitioner, the response to the petition by respondent, William Howard Taft McGaughey This response was served upon attorney Wing-Sze W. Sun (attorney ID #XXXXXXXXX) at her office at 8XXX Wayzata Blvd., Suite 320, Golden Valley, MN 55426. Served on Judy Laise in above-mentioned law office.

_________________________
Alan J. Morrison

Subscribed and sworn to before me

this 25 day of March, 2011 [seal]

 

_____________________
Notary Public

In the meanwhile, I received the following document from the court:

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT


Notice of Judicial Assignment and Order Setting
Initial Case Management Conference

Court File Number: 27-FA-11-XXXX
William McGaughey
1335 93RD AVE N
BROOKLYN PARK, MN 55444
Case Type: Dissolution without Child

__________________________________________________________________

In re the Marriage of Lian Yang McGaughey vs William Howard Taft McGaughey

Date case filed: March 18, 2011 Date of notice: March 23, 2011

Your case is assigned to Referee Susan M. Cochrane.

Your Initial Case Management Conference is scheduled for April 15, 2011 at 10:30 AM in FJC 517, Family Justice Center, 110 South 4th Street, Minneapolis, MN 55401

The purpose of the Conference is to meet with your judicial officer to discuss the issues in your case (custody, parenting schedules, financial support, allocation of assets and debts, etc.) You will learn about the programs available for helping you reach agreements on these issues without a trial. No motions will be heard but any issues agreed to will be memorialized in an Order. At the conference, the issues in the case may be discussed, a discovery schedule may be agreed to, alternative dispute resolution may be arranged, studies, appraisals and evaluations may be ordered, and in some cases a temporary hearing and or/ trial date may be set.

At least 3 days before the Conference, you must submit the Conference Data Sheet and related information to the Court and provide a copy to your spouse/spouse’s attorney, This information is for use at the Conference only and is not evidence for purposes of a trial.

If you need an interpreter ordered, if your case has reached full agreement, or if you have any questions regarding the scheduling of this Conference, contact Referee Susan M. Cochrane’s clerk at 612-543-1130.

The court currently lists the following as participants in this action:

Lian Yang McGaughey
17xx Glenwood Ave.
Minneapolis, MN 55405
__________________________

William Howard Taft McGaughey
1335 93rd Ave. N.
Brooklyn Park, MN 55444
__________________________

Wing-Sze Wong Sun
8XXX Wayzata Blvd.
Suite 320
Golden Valley, MN 55426

 

7. I hire an attorney to negotiate on my behalf.

At this point, I was still not represented by an attorney. James Gurovitsch had impressed me when we had the half-hour conference regarding my arrest for domestic abuse. We made an appointment to meet in his Brooklyn Center office on Wednesday, March 30th. Gurovitsch’s fee structure was based on a sliding scale according to ability to pay. My annual income, toward the lower end of the scale, allowed me to obtain his services for $170 an hour. Framed certificates in his office indicated that Mr. Gurovitsch had been named a “Super Attorney” by Minnesota Law & Politics for several years.

In the meeting in March preceding my sentencing for domestic assault, James Gurovitsch had provided several insights into laws relating to divorce. First, Minnesota is a no-fault divorce state, which means that marital misconduct is largely irrelevant. Second, the law presumes that both parties contributed equally to the marriage. I contributed money; she cooked the meals. Third, the non-marital real estate is subject to an increase in value if, for instance, we substantially remodeled a building using current assets. Fourth, the spousal-maintenance question depends upon whether my wife could survive on her own. It is presumed that she would work if she were able to do so. Otherwise, I might have to provide support. However, I would not be required to liquidate capital assets to pay support. Possibly Lian could apply for Social Security disability. Fifth, I should not offer to let her stay in Milford. Finally, if Lian is willing to settle for a fixed sum of money, consider taking it. Fighting in court is expensive.

All this seemed quite sensible. I judged that Mr. Gurovitsch was a good lawyer. I signed a contract engaging his services. Gurovitsch required that I prepay ten hours of service - $1,700 - as an initial retainer. He would keep track of the hours worked on my case in six-minute increments. When the prepaid time was used up, I would have to pay another $1,700. I wrote a check for that amount. (See "Notice of Appearance", Document 5.)

Gurovitsch also gave me a 27-page form titled “Dissolution Information Form”, to help me assemble documents and information that might be needed in preparing the case. These included an estimate of my itemized monthly expenses, a list of debts and property owned, deeds to the real estate, and other issues that might come up at a trial. We would meet again soon to go over this information.

In the days leading up to this meeting, I received a number of emails from my wife’s attorney. The gist of it was that she wanted to meet with me in person as soon as possible to discuss a settlement. She said she had received a form regarding the Initial Case Management Conference and, if we reached an agreement, a judge could sign an order as early as April 15th. At that point, I was still thinking about flying to China to join my wife. She had left Minneapolis on March 23rd. I wondered if we might not postpone divorce negotiations until after Lian's medical condition was clarified.

Nevertheless, attorney Wing Sun again proposed that we meet in her office to discuss a settlement. I told her that I had an appointment to meet with James Gurovitsch whom I might hire to represent me in this matter. Lian had not yet declared what terms she would accept to settle the divorce. It would not be in my best interest to meet with her attorney before Gurovitsch was hired.

Ms. Wing Sun said that she knew my wife’s settlement terms and I could negotiate with her. She said that she doubted that Lian wanted me to go to China. She sent several messages regarding when she would be available for a meeting. Finally, in the afternoon of March 30th, after receiving ten messages, I emailed Wing Sun: “I have engaged the services of attorney James Gurovitsch.  Please direct future communications toward him.” I felt that she might be trying to take advantage of a novice like me if we met before I consulted my new attorney.

The divorce proceedings now entered a new phase. I ceased receiving emails from Wing-Sze Wong Sun and started to receive them from James Gurovitsch. Frequently, Gurovitsch’s email would contain a prior message from my wife’s attorney. From the stored listing of emails, I can reconstruct the issues raised in the early period of negotiations.

At that point, I was still expecting to go to China. I had applied for a Chinese visa but was not sure when it might be used. I had also given Lian $3,000 for her trip but she now wanted more. Gurovitsch advised me not to give her additional money unless it was clearly understood that this was part of the settlement offer. I also informed Gurovitsch that I had been granted semi-pauper status which, because of my relatively low income and high debts, meant that I could file motions with the court paying fifty percent of the normal filing fee.

Lian and her attorney had rejected my $25,000 settlement offer as being too little. Our first order of business, then, was to prepare for an “Initial Case Management” conference, which was scheduled for April 15th. This event was complicated by the fact that Lian would be in Beijing and her participation was required. She had refused to postpone the conference. We might communicate by telephone. However, Beijing is thirteen time zones different than Minneapolis. When it is noon in Minneapolis, it is 1:00 a.m. in Beijing. Lian would be participating in the wee hours of the morning if she did so by telephone.

Attorneys Wing Sun and Gurovitsch began to consider moving quickly to a procedure known as the FENE - the Hennepin County “Financial Early Neutral Evaluation” program - whereby both parties hire a neutral expert to evaluate their respective financial positions and recommend a settlement. The evaluator’s decision would not be binding. I thought this was a good idea since a settlement would have to be based on our respective financial situations. The neutral evaluator would give us a preview of what we might expect the court to decide.

The Hennepin County district court maintains a roster of attorneys available to conduct the FENE. On April 6th, attorney Wing Sun sent James Gurovitsch the name of her choice from the list. He responded by naming five other persons who would be acceptable from his standpoint. Ms. Wing Sun also requested a Mandarin Chinese interpreter to help Lian communicate. She also kept pressing me to make a better offer but refused to say what offer Lian would accept. The FENE would be useful in narrowing divergent points of view.

The attorneys began to argue about money. Lian wanted me to pay more money for her medical bills in China. My attorney, James Gurovitsch, pointed out that she had sold an apartment in Beijing in the previous year. Probably she had money left from that sale. No, that was incorrect, said attorney Wing Sun; this money had been spent for Celia’s town house near Washington, D.C. Lian's attorney also complained that I had given my “mistress” - Sheila - a large sum of money. I had not evicted her from the downstairs unit at 17xx Glenwood Avenue despite nonpayment of rent.

It became clear that my decision to plead guilty-continuance to allow me to accompany Lian to China for her operation was in vain. Now it was being portrayed as a projection of my ego. Ms. Wing Sun wrote: “Lian does not want William, who cannot speak Chinese, very well at all, to go to Beijing ...  She has asked him not to come and I don't see why he insists on going - all that happens with his presence is that they argue over the mistress and this stresses her out.” This was the new theme of Wing Sun’s negotiating strategy: I had a mistress and was dissipating assets in giving money to her on a grand scale.

Lian meanwhile called me from Beijing to ask for money that she would need for a cancer operation. Following my attorney’s advice, I said that she would first have to agree to a settlement. Any money sent to her now would have to be included in the settlement. Lian refused, saying that that the money for medical expenses and for the settlement were two separate things. She also refused to tell me how much money I would need to meet her settlement requirements; that information would have to come from her lawyer. When I complained that the lawyer would not divulge that information, Lian said that maybe it was because I had not been “friendly” enough to the attorney.

Given our inability to reach a settlement, Gurovitsch made arrangements to hold the Initial Case Management Conference, as scheduled, on April 15th before referee Susan Cochrane. Lian had permission to testify by telephone through a Chinese-language interpreter. I had completed the 27-page questionnaire given to me two weeks earlier and was available to review it with Gurovitsch. What the doctors in China had found regarding Lian's health would be relevant to the conference.

Attorney Wing Sun asked Gurovitsch if I would agree to pay spousal maintenance. She sent him a receipt for medical bills paid in China which, she claimed, “William agreed to pay prior to her going to China.  She had an appointment scheduled here, but agreed to go to China to save money.  It seems somewhere down the line, he changed his mind.” This was untrue. Although I had previously paid all her medical bills in China, we were now in a divorce situation. I had promised nothing more so long as Lian refused to be specific about a settlement.

My attorney, James Gurovitsch, responded: “It is my understanding that it was your client's choice to go to China for evaluation and treatment when she could have applied for Assured Access which would have covered a substantial portion of her medical and hospital costs in the United States. William gave her $3,000 when she left for China. The money came from a draw on his line of credit. His income consists of a non-marital pension benefit, dividends from non-marital stock and Social Security. The amount of net rental income is nominal. Your client has other resources which she is not disclosing. She also gave money to her daughter which could have been used for her support. The parties have accumulated little if any assets during their marriage. Under the circumstances, I cannot tell William he should borrow more money to pay your client spousal maintenance. She rejected William's offer to give her more money for her medical and hospital bills as an advance on her divorce settlement. William offered a lump sum settlement which your client flatly rejected. Under the circumstances, I cannot advise William to pay temporary spousal maintenance. Please give me your client's bottom line proposal which would include a waiver of spousal maintenance and I will discuss it with William.”

Ms. Wing Sun’s response was to argue that I had insisted that Lian receive medical treatment in China in order to save money. “The marital estate has been dissipated due to William's financial funding to his ex-wife, who he later took on as a mistress, while my client was seeking medical attention in China,” she wrote.  “My client saw numerous checks written to her, as this is how they got into a fight over the checkbook resulting in his criminal case.  How much money has he given the mistress, Sharon, I believe?  Also, how much money has he lost in rental income by allowing the mistress to remain in his property for no cost?  Further, what did he do with his investments with Deutsch Bank Group?  I reasonably believe William has more assets than he is disclosing, as Lian obtained a stack of documents to give to me prior to her departure to China ...  A nine-unit apartment will mostly likely be worth more than he is disclosing.”  

 Gurovitsch then wrote me a note: “Trying to work out a settlement at this point is getting to be a ridiculous waste of time and money. She is, in effect, asking you to negotiate against yourself. I do not therefore intend to reply to this email. Since it will be coming up in Court, please try to provide me with answers to her questions.”

 

8. The Initial Case Management Conference; the FENE is ordered but nothing happens.

The Initial Case Management Conference (ICMC) took place in room 517 of the Family Justice Center in downtown Minneapolis on April 15, 2011. It was in the early afternoon. James Gurovitsch and I appeared before referee Susan Cochrane in her chambers as did Wing-Sze Wong Sun and a Chinese interpreter. There was a telephone hook-up to Lian in Beijing, China. Neither Lian nor I said much at this meeting. The two attorneys would work out the details. (See order for financial early neutral evaluation (FENE), Document 6.)

The first order of business was the Financial Early Neutral Evaluation (FENE). Because our joint income was less than $30,000 per year, the evaluator would charge only $50 an hour. We would split the cost equally. It was a bargain to have a professional who could significantly advance the settlement for only $25 an hour. The determination of the parties’ assets and liabilities and possible maintenance would be the main issues to be decided. Lian's illness created time constraints. The neutral evaluator had not yet been picked. Referee Cochrane wanted to be informed about this as soon as possible. There was little more to add. We and the attorneys would have ninety days to work on the case and then check back with her on July 11, 2011.

The negotiations continued. On April 19th, attorney Gurovitsch informed Ms. Wing Sun that I was not interested in hiring a Chinese-language translator for Lian . I did not have the financial resources to pay either spousal maintenance or her medical bills. Most of my assets were non-marital. Lian had contributed very little money to the marriage while I had regularly given her half my monthly income for extra spending money even while she was spending much of her time in China.

He continued: “I have advised William that his previous offer to pay a $25,000 cash settlement is unsupported by the facts. At this point, William is withdrawing that offer and is proposing a settlement along the following lines: Each party would keep their respective pre-marital property. William would be awarded the duplex which is their only marital property, subject to the mortgage which exceeds the fair market value of the property. Neither party would be awarded spousal maintenance. Lian would be awarded her 401k plan which is marital property and William would waive any claim he has to the proceeds of sale of the apartment in China. (William's claim is based on the money he invested to renovate it.) There would be no cash property settlement and each party would waive any other claims they may have against the other.”
 
Gurovitsch also wrote: “I would appreciate it very much if you would refrain from referring to William's ex-wife as his mistriss. (sic) It serves no useful purpose in this case.” Finally, he said: “We should proceed with the FENE as soon as Lian is well enough to participate in it. If the choice of an evaluator does not matter to you, I suggest using Andrea Niemi.”

Wing Sun replied later that day (April 19): “Thank you for proposing a settlement offer.  My client will decline, as it offers her basically nothing for the ten years that they have been married, keep in mind, William has rental income ...  As far as the evaluators, maybe we can flip a coin since you've picked an evaluator and I only know of one.  Does that sound fair?  I'll just use the first person you named, didn't that firm (Niemi’s) start the Bush League?  ... Lastly, we will need full (informal) discovery as to how much money William has given Sharon (I believe that is her name) and how much money he's lost in rental income by allowing her to stay there for free, among other information.  I will e-mail Celia and remind her to try and obtain the document that states how much Lian sold the property for in China.” 

On the following day, Gurovitsch wrote: “Your client somehow thinks she should be compensated just for being married to William. That is not how our legal system works. The rent went to pay for operating expenses, repairs and maintenance. Tenants got behind in rent. William has lost money on the rental property. Let's put the shoe on the other foot: What did Lian contribute to the marriage? She contributed very little financially to the household. She did not provide any assistance in managing the rental property. She spent much of her time in China.”
 
He continued: “William made it possible for her and Celia to get their green cards and U. S. citizenship. Celia was able to get a good education here which enabled her to earn a good living. William spent the majority of his income on Lian including giving her money for her many trips to China. She should be thankful to William for giving her and her daughter these opportunities instead of trying to vilify him and demanding money that he does not have ... The settlement proposal was communicated to you in good faith ... If it is not acceptable, I will advise William to take his chances in court. As I see it, he has nothing to lose.”

Attorney Wing Sun replied: “My client has given me quite specific instructions prior to leaving for China.  I do not think court is cost efficient for these parties.  I disagree with you regarding what Lian as contributed to and how William can deduct all his rental income on his tax returns and then say he earned nothing.  William was a accountant as I'm sure you know.  Let's figure out the FENE first, get his/her opinion, before deciding to litigate this case.” She added on the following day: “These types of communications (Gurovitsch’s) do not promote settlement.” More constructively, she agreed to the selection of Andrea Niemi as the court-appointed neutral evaluator.

On May 5, 2011, referee Susan Cochrane issued an order arising from the Initial Case Management Conference held on April 15th. She noted having been informed on April 25th of Andrea Niemi’s selection as the person to perform the FENE. She ordered: (1) The parties shall participate in the FENE process. (2) Counsel shall participate in a phone conference on Monday July 18, 2011 at 1:30 p.m. The Court will initiate the call.”

There had been a development which I reported to attorney Gurovitsch on May 1st. I had been in regular telephone contact with Lian . I reported that my wife was “out of the 
hospital and evidently doing quite well. Lian wants to "end World War III" as she puts it, come back to  America, and live with me.  We would still get a divorce.  I don't know what kind of financial settlement she will accept - I'm not prepared to offer much - but she does want to be cooperative & not cause further problems. I would expect that she would return to Minneapolis in a week or so. Then we can discuss the terms of the divorce.”

Ten days later, I reported: “Lian returned from China today.  The operation was successful.  She says she is now willing to settle for a lump-sum payment of $25,000. I am inclined to accept but would be interested in your opinion as to how this would compare with what a neutral party is likely to suggest.” Gurovitsch could not say what a FENE might decide but did point out: “It does not appear to me that you and Lian have any net marital assets to divide. There is the issue of what you spent on your ex wife and the rental income forgone. There is also the issue of spousal maintenance. You have some exposure there too. Also, you need to consider the additional legal fees and other expenses associated with contested litigation. If it is worth $25,000 for you to buy your peace of mind, it may not be too high of a price to pay.”

Lian and I seemed on the verge of a settlement. I went ahead and sold non-marital stock to raise the $25,000. I gave Lian our $1,720 federal income-tax refund for 2010. Because Lian had expressed fear of homelessness, I also offered to let Lian stay rent-free in an empty bedroom in my Milford house. This proved to be a sticking point. Because of Lian's unreasonable behavior in the past, I wanted the right to live in the Milford house to be conditioned on her good behavior. I would have the right to evict her from the Milford house if she caused problems. Lian argued this provision gave me the power to evict her arbitrarily.

Gurovitsch strongly objected to that provision. He wrote: “I advise you not to include the life tenancy as part of the settlement. Perhaps these negotiations should be handled through counsel or at least discussed with me first.” He wrote that, if I ever decided to sell the Milford house, I would need Lian's permission.

I was more relaxed about this working out an agreement with Lian which included: (1) $25,000 in cash, (2) the right to store some of her belongings indefinitely in the basement of the house at 17xx Glenwood, and (3) lifetime tenancy of a room in the Milford house with the understanding that Lian would not raise an objection if I sold the house provided that I found her another place to stay. Lifetime tenancy would not confer any rights of ownership. On May 20, I wrote Gurovitsch: “Lian has looked at this and agrees with the terms.”

Three days later, I reported to him that the deal had fallen through. Since then, Lian had visited her attorney who had discouraged a settlement. The offer of $25,000 was not enough. Immediately, she was demanding $5,000 more. I explained to Gurovitsch: “Ms. Wing-Sun has told my wife that I have offered her too little and she has a good strategy to get more money from me.  She has proposed that Lian set her sights on getting my mortgage-free apartment building - which was premarital property - while I assume all the marital debts.”

I added: “I am undecided whether to give this more time in hopes that Lian will come back to something close to our original agreement or to proceed with a court-imposed settlement through the neutral evaluator.  In the latter case, I suspect that Ms. Wing Sun will throw lots of junk at me as she has done in the past to try to make the proceedings as expensive as possible. She was upset when Lian said she wanted to settle, refusing to answer Lian's question about the best way to structure the settlement.” Gurovitsch wrote on May 23rd: “My advice to you: Do not give Lian any more money without checking with me first and do not make any more settlement offers at this time.”

Even so, I did continue to negotiate with Lian . I offered to pay her $2,000 more than what was accepted in the previous agreement. Gurovitsch reacted as follows: “Is this an offer or is it a settlement that Lian has accepted and agreed to? I do not understand why, in case of the latter, she is unable to communicate it to her lawyer. It sounds like Lian wants me to communicate it to her lawyer as a settlement offer which will no doubt be interpreted as an invitation to further negotiations. I think she is trying to see how much she can get from you. I do not recommend this course of action.”

In the meanwhile, Lian flew to Washington D.C. to consult with daughter Celia about my proposal. I hoped I could get a firm agreement from the two of them. Gurovitsch remained adamant that I should cease negotiations especially regarding the Milford house. Lifetime tenancy could cause me untold difficulties down the line. But I felt it was important to maintain reasonably friendly relations with Lian who, as a cancer survivor, might well die in the near future. She had conditioned her staying at the Milford house on not damaging the property and maintaining good relations with people in Milford. “To go through a long and bitter divorce would be devastating for us both,” I added.

Lian and I traveled to New Orleans to attend a conference of the International Society for the Comparative Study of Civilizations at Tulane University in the first week of June. I was program chair of the conference. The probation officer had given me permission to travel out of state. For a week Lian and I were able to enjoy each other’s company.

Returning home, I wrote my lawyer on June 6th: “My wife and I went to New Orleans and are back.  My wife says that she will accept the language I proposed.  Her attorney is against this settlement.” I also had to report, however, that I had discovered that my former wife, Sheila, had stolen some check blanks from me, forged my signature on two checks, and withdrawn nearly $4,000 from my checking account.

 

9. Sheila’s borrowings and thefts.

While the divorce negotiations were taking place, Sheila, my former wife who was living downstairs, was continuing to access my checking account and run up bills on my credit card with Citibusiness. The money disappeared in a variety of ways. Sometimes I would write her a check voluntarily to meet some urgent need such as keeping her property in St. Paul from going into foreclosure or a car from being repossessed. Increasingly, however, the money was stolen.

I found that Sheila was using my checking account and my credit card to pay her bills. The Sprint bill was a big one; Security Auto Loan and Ace Cash Express were others. Once Sheila had my checking account number and bank routing number she could access my account to pay her bills by computer, telephone, or another means. The same was true of my credit card once she had the account number displayed on the card.

I told Lian about the two forged checks, written on May 17th. US Bank would refund the money provided that I reported the fraudulent transactions to the bank’s fraud unit and made a police report. The checking account would then be closed and a new account be opened. I had already gone through that procedure twice in 2011. The problem for me was that I had more than twenty vendor accounts on automatic payment through the bank. To cancel one checking account number and create another caused the automatically submitted checks to bounce unless I was able to change the paperwork in time; and each vendor had a different system. I was paying hundreds of dollars in late fees and returned check fees each time I closed an account.

In this case, I did visit the 4th precinct police station in Minneapolis intending to report the forged checks. The check copies obtained from the bank showed, for instance, that check #3588 (a check blank stolen from me) was made out for $2,736 paid to the order of Sheila Gorman or Erika Thomas. Erika Thomas was Sheila’s 18-year-old daughter, whom I had once held in my arms as a baby. (The back of the check was not endorsed. I learned that an endorsement was unnecessary so long as the money was deposited directly into an account.) The officer at the desk at the 4th precinct told me that the police would almost certainly investigate and prosecute the forgery. If convicted, Sheila could be looking at prison time. Susan, who had nothing to do with the forgery, would be unable to take a job at a bank or similar institution for the rest of her life.

This made me think twice about turning the case over to the police. I told the officer I would come back if I wished to press charges. If Sheila was sent to prison, it would create other problems. In the meanwhile, I worked out a deal with her. A year earlier, when Sheila was pregnant, I had given her twenty acres of my 40-acre plot of land in northern Wisconsin. After the fetus died, she had promised to return the land to me. She had never done it. Now Sheila agreed to return this property worth perhaps $20,000 if I did not report the $4,000 forgery.

Sheila did execute a quit-claim deed to me dated June 20, 2011, returning the land. Unfortunately, when I attempted to register the sale with Bayfield County two months later, I discovered that Sheila no longer owned the 20 acres. She had sold it to a neighbor on April 1, 2011 - April Fool’s Day, me being the fool.

Sheila told me months later that she had gone into a deep depression following the death of “Payson” in early December, 2010. The depression turned into anger when I put pressure on her to pay rent. She was angry at me for my ungrateful demands brought on by Lian's complaints. She began drinking and even considered taking hard drugs as she had done years before. Despite the divorce filings, Sheila thought Lian and I were getting back together and she was the odd woman out. I could understand her feelings but, at the same time, could not permit her to continue to steal from me.

This story took a turn in June, 2011, when Sheila said she had a plan to repay some of the money. She had a friend named Georges Milet who came from a prominent family in Haiti. There was $90,000 in his Haitian bank account which he wanted to retrieve. However, he had a criminal conviction which barred his return to the United States if he ever left the country. The plan was that Sheila would withdraw Georges’ funds from this bank. He promised her half the money - $45,000 - and she promised me $30,000 from her share once she brought these funds into the United States and received them.

Sheila did fly to Haiti in July - or I believed that she did - and she successfully withdrew the money. It was later deposited in a bank in Miami, Florida. Sheila explained why, in a series of improbable events, she was unable to claim her share of the loot and give most of it to me.

First, the Miami bank had a policy of holding large sums of money deposited in newly opened accounts perhaps because of suspected drug-money laundering. Sheila and Georges were supposed to travel to Miami together and be issued several checks when the period of time was up. However, Georges decided to double-cross Sheila. He visited the bank by himself, demanding the money. When bank personnel did not cooperate, he made terroristic threats. The Miami police were called and Georges disappeared. This created new suspicions that the money was hot.

Another problem was that Sheila’s and Georges’ names were both on the checks for money that was supposed to go to Sheila. Somehow, she had to persuade him to sign the checks to receive her share of the money. That was not going to happen. Sheila explained how she was negotiating with people at the Miami bank to have the checks released to her without Georges’ permission. She arranged, for instance, for the checks to be sent to an Unbank in Minneapolis owned by her cousin’s wife who would turn them over to her. The checks were sent to Minneapolis but were returned after the Unbank proprietor got cold feet.

Sheila was told, she said, that if she went to the bank in person, its employees might issue the checks to her in person. Once those checks were in her hands, she would find a way to cash them, either by forging Georges’ signature (he had disappeared) or, if she could find it, by using a power of attorney that he had once given her. Sheila did travel to Miami several times - at my expense - but always came back empty-handed. I still had not received any of this Haitian money by the time of the trial. Sheila later hired an attorney (or paralegal) to deal with the Miami bank.

Everyone who has heard this story from me believes it is a scam. I maintained a glimmer of hope for two reasons: First, Sheila once showed me a partial picture taken with her cell phone which looked like a check for $28,000 written out to her. Second, she told what seemed a realistic story about her visit to Haiti and other events happening over a period of months. In any event, the prospect that she would eventually get her hands on the $45,000 and give some of this money to me kept me from reporting her thefts to the police since an incarcerated person would be unable to take possession of the Haitian money. Another reason was that I did not want to hurt Sheila, my former wife, or her innocent daughters.

Lian and her attorney often complained of the unpaid rent on the downstairs unit of 17xx Glenwood then occupied by Sheila, her daughter Lena, and Lena’s two sons. I kept postponing eviction because it seemed that both had good prospects for paying rent in the near future. Sheila had purchased a house in St. Paul which she planned to use as a facility for housing troubled teenagers. She told me her newly formed non-profit, Hopewell, could receive up to $800 per day for this service. Money problems would then be a thing of the past. Unfortunately, she did not have the money for certain start-up costs so this prospect fell through. I was hit up again for money when, for instance, utilities were to be discontinued due to unpaid bills or when the building was threatened with foreclosure.

Daughter Lena did seem to have better prospects. A veteran manager of clothing stores in malls, she started her own fashion boutique. At first, she sold teen clothing out of the unit downstairs in my four-plex. Then, the owner of a small shopping center in Stillwater, Minnesota, an upscale community, offered her space in one of his stores rent free if, after several months, she would give him a share of sales revenue. She named her new store, “Catwalk”, and produced flyers, business cards, and a website to draw in customers. Despite an initial flurry of interest, however, store sales did not adequately support her so she took a position in an established clothing store at the Mall of America to supplement her income.

The irony was that, although I tried to downplay my wife’s complaints about the money given to Sheila in the divorce proceedings, it was a major problem for me. I was being ferociously attacked on two fronts. I had to deal with both sets of problems in this difficult period. My money was fast becoming depleted.

 

10. More negotiations and game playing.

Returning from New Orleans on June 6th, I wrote my attorney that, even though the terms of settlement were disadvantageous to me, “I want to get this done fairly soon.” Gurovitsch advised me not to give Lian any more money until we had a settlement. She could always take the money and then change her mind.

On the following day, Gurovitsch received a letter from Ms. Wing Sun: “My client would like to quickly settle this dissolution ... I am requesting an update of the status of this case. Does your client intend to settle this case, financially, near $30,000.00, while offering my client a lifetime tenancy at one of his real estate locations, both written in the proposed order and in his will? If so, between you and I, who will be in charge of drafting the bulk of documents? With this settlement offer, that the parties have created, I have clearly advised my client that I feel this is not an equitable settlement and she should participate in the Financial Early Neutral Evaluation.”

A week later, I communicated to my attorney a possible snag. I had always agreed to assume the entire debt incurred during the marriage. The bulk of it was in two mortgages, on 17xx Glenwood Avenue (our home) and the duplex at 1715 Glenwood Avenue, together totaling more than $250,000. State law required a spouse’s signature to be on mortgaged real property owned in a marriage. Therefore, Lian's signature was on the mortgage documents. I was not sure that if I assumed the responsibility for the debt, the lending institutions would let Lian off the hook. She was worried about this. Gurovitsch responded that, if Lian's signature was not on the loan documents, “it should not be a problem for her.”

Seeking a quick settlement, James Gurovitsch on June 14th drafted and sent to the other attorney a settlement proposal that called for me to pay Lian $27,000 in cash, give her lifetime tenancy of “a bedroom in the northwest corner of the second floor overlooking the river and the mountain and adjacent to a bathroom. The right of occupancy would be non-assignable and would terminate upon the death of either party. If my client should sell the property he would pay your client from the sale proceeds a sum of money comparable to the rental value over the remainder of the average of the life expectancy of both parties, discounted to present value. Your client would also have the right to store some of her personal property in the locked area in the basement at 17xx Glenwood for a limited period of time after the divorce.”  Gurovitsch believed that in specifying the bedroom I might avoid some of the legal problems he had previously feared.

Ms. Wing Sun had no immediate response. Instead, a week later, my attorney received an email from her, threatening in tone, which read: “My client was informed that Sheila and her daughter was stealing money from William and had somehow gotten ahold of his checks, thus William was not voluntarily giving money to his mistress and children.  William also stated to my client that he had filed a police report on this theft, but did not mention Sheila's daughter.  No such report or any sort of contact to the Minneapolis police department was found, please see attached.  I also called this morning to verify if anything, even a CAD call occurred this year where William was a victim, but there is not.  Sheila however claims to be a victim of a crime in January 2011.  Please explain.”

She was referring to the two forged checks. As previously stated, I had decided not to file a police report. This email implied that I was willfully giving money to Sheila if I did not report the forgery to the police. I explained to Gurovitsch what had happened. In an email to the other attorney, he questioned the relevance of the incident to this case.

She replied: “James, Please don't waste time by avoiding the question and asking to its relevancy - see Minn. Stat. 518.58, Sect. 1a. Is your client stating that Lian's and William's money was stolen to avoid refunding the martial estate?  William told Lian he filed a report with the police, but did not.  Why does he need to say he filed anything with the police at all?  To make it more believable?  I'd say this fact alone makes it less probable that William's theft story stands to be true ... This is something I would like answers for before advising my client of whether this settlement is even remotely equitable.”

Gurovitsch replied: “The settlement was agreed to by the parties before this happened to William. That is why it is irrelevant in my opinion. William will have to bear the loss. ... As I told you before, there is no marital estate to speak of. William is not in a position to offer Lian any more than he has. If she will not accept it without your conducting a full investigation of William's finances then I suggest you go about it in a proper manner instead of making accusations via email ... The next step is the FENE. Unless I hear from you within the next 7 days, I will contact the evaluator to get that going.”  
 
Ms. Wing Sun shot back: “Please reread the statute, the first line of subd. 1a states the timeline that is applicable.  It does not state that if a settlement is being negotiated that William can dissipate the marital estate or transfer funds without Lian's permission ... Further, if William has nothing to give Lian , he should start by not allowing Sheila to stay without payment at his property, because this act alone, qualifies as a dissipation of the marital estate ... William told Lian he communicated the theft to the police, not maybe communicated, or changed his mind, but acted on it.  This act of contacting the police logically makes sense, as any reasonable person, who has money stolen, would do, even if it is only to ask the police for advice.  If William contacted the police in anyway there should be a record and again making the existence of this theft more probable than not.”

Signaling future problems, she added: “My client does not want full discovery, however, she changes her mind sometimes.  Nonetheless, she is fully prepared to go down this path if need be.  Also, I do wish both parties to participate in the FENE, however, it seems neither party wants to now . . . or so it was communicated to me.  Since I’m not the client, I’ll talk to her.  Does your client want to participate in the FENE?”

Gurovitsch emailed me simply: “We are getting nowhere with this approach. I recommend proceeding with the FENE.” I replied: “I'll talk with Lian tonight or tomorrow morning to see if she wants to settle on the agreed-to terms.  She has indicated that Ms. Wing-Sze is pressuring her not to settle.  This attorney is simply lying in suggesting that I had a police report filed.  Yes, if Lian is unwilling to settle, I would participate in the FENE.”

There was an interlude of two weeks. I kept asking Lian for a response to the settlement offer that attorney Gurovitsch communicated on June 14th. On July 5th, he received an email from Wing Sun to the effect that, because Sheila continued to live in the downstairs unit without paying rent, Lian needed more time to think about the settlement offer and the FENE. After making another complaint about my “affair” with Sheila, Lian's attorney wrote: “My client has made clear she does not desire anyone to call the FENE evaluator until July 5th, 2011. It appears that William does not want to participate in the process. However, the threat of attacking Lian , financially, a housewife who worked at Target for a couple of years, within this last decade, is quite unnecessary.” She added: “I do feel that FENE, which both parties and counsel initially agreed to, will streamline the discovery process.”

After waiting another ten days for a response to our offer, James Gurovitsch reminded me on July 14th that referee had scheduled a conference on July 18th at 1:30 p.m. to discuss the status of our case. He said: “I plan to tell Referee Cochrane that neither of you wanted to proceed with the FENE because you were trying to settle on your own and the settlement you had agreed on fell through. I will also tell her that you now want to proceed with the FENE. Please let me know if I should be telling her something else.” I responded by saying that Lian was in China with her phone turned off, but I would try to reach her.
Later in the day came a bomb shell, the other side’s response to our settlement proposal made a month earlier. After a month of stalling, the response was this:
Dear Mr. Gurovitsch,

I am writing in response to your June 14, 2011 letter. My client and I have discussed what we think is in her best interests. Ms. McGaughey wishes to have a quick and amicable resolution to the dissolution matter.

1. Petitioner requests an offer of $45,000.00 USD as a one time, lump-sum payment, in representation of her equitable share of the marital estate, as well as costs incurred to Petitioner during the separation. The settlement amount, presented in a cashier’s check or comparable method, will be given to Attorney Wing Sun; on the day that the parties sign the agreement and it will be held at my Office. Petitioner shall not receive the funds, until the settlement agreement is approved by the court, i.e., court order.

2. Petitioner responds with the following terms for the Milford, Pennsylvania house:

a. Petitioner has the right to a life-time tenancy of a portion of the home located at 100 Sawkill Avenue, Milford, Pennsylvania. I request the legal description of this property be provided by Respondent in order to avoid any confusion of said property in the future. Petitioner will be a tenant in one of the bedrooms of said property of Petitioner’s choosing. Petitioner will be able to request an exchange of the room in said residence, providing, a written notice of this request to Respondent. The timing of this notice shall be reasonable, but not less than thirty (30) calendar days, subject to shortened period of time, upon good cause shown, or stipulation by the Petitioner and Respondent;

b. Petitioner may sublease the room to a third party subject to Respondent’s approval of the third party. Respondent may not unreasonably withhold consent as to the sublease. If Petitioner subleases the room, then she will reserve the right to receive rent from this property, however, Petitioner will assume liability limited to only physical damages incurred for this sublease;

c. If a dispute were to arise between the Petitioner and any of the tenants in the Sawkill Avenue property, then Petitioner and Respondent will engage the services of a professional third party, such as an arbitrator, to decide the tenancy related issues. The costs of using a third party will be shared equally by Petitioner and Respondent, however, if more parties are involved in using this dispute method, then the costs may be reduced equitably between all of the parties involved;

d. If Respondent transfers title of the property, or predeceases Petitioner, Respondent, or his estate, shall pay Petitioner the remainder of the value of the tenancy, discounted to present value, using an average life expectancy of Petitioner, which is currently seventy four (74) years of age;

e. With a lifetime tenancy, Petitioner will not have to incur any expenses, including, but not limited to: utilities, rent, and any other fees related to having said residential property as a tenant, or comparable residential replacement property; and

f. While Petitioner is physically living at the Sawkill Avenue property, in addition to Clause 2e, Petitioner will also receive a subscription to either a satellite or cable company that allows Chinese speaking channels to be viewed, paid by Respondent.

3. Petitioner requests to store some of her personal effects at the 17xx Glenwood Avenue, Minneapolis, Minnesota residence for the remainder of Petitioner’s life. Petitioner’s personal property would have the same securities and protections as any individual who stores items at a commercial storage unit.

4. Respondent will be solely liable for all debts and will hold Petitioner harmless for any debts incurred during the marriage and separation. A Quick Claim deed will be signed, giving the residential property to Respondent for any property where Petitioner and Respondent have any sort of joint interest. Then, said deed will also be given to the appropriate bank or company to relieve my client of any real property debts.

If these terms are acceptable to your client, then I will draft the Stipulated Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree. My client agrees to share the cost of this drafting, 30% is her cost, and 70% is your client’s.

My client will agree to dismiss the Financial Early Neutral Evaluation (FENE) and I will proceed immediately towards drafting at the Proposed Order.”

My reaction was prompt. I emailed my attorney: “ I am shocked by this latest proposal from my wife’s attorney.  Please inform Ms. Wing-Sze W. Sun that I reject this proposal.  I am also withdrawing all previous settlement offers.  I am not offering my wife any money to settle the divorce.  I am not offering to let her stay in the Milford house.  I might agree to let her store some of her belongings in the basement of my Minneapolis house for a period of several years but it would have to be at her risk.  I would assume no liability for those belongings.

The next step, I think, is to prepare for the FENE.  I assume that I will need to prepare financial information and documents for the evaluator.  I can start this task at any time.  Please advise if there is something for me to do.

I am sorry for Lian that this has happened.  We had an agreement in May to settle the divorce for $25,000.  I sold some of my premarital assets to raise most of the money. Then Lian said she needed another $2,000 and I agreed.  When she expressed concerns about being homeless, I agreed to let her stay in the Milford house.  But the terms of that tenancy became a sticking point that kept us from moving forward with the settlement. The provision in the proposed settlement allowing Lian to sublease the room in Milford to a third party is really quite cynical.

I suspect that this is the handiwork of attorney Wing-Sze W. Sun who has been urging Lian not to settle on the terms I offered.  This attorney might have caught Lian in a weak moment; it was in the middle of the night, Lian's time, when I think Lian agreed to what the attorney proposed. But never mind.  We’ve been caught up in games long enough.  Proceed with the FENE and a court appearance, if need be.”

James Gurovitsch said that he had already drafted a letter to Ms. Wing Sun consistent with those instructions. He then mentioned some information that I would need to gather to prepare for the FENE. The letter to the other attorney was short and sweet: “This is to advise you that the counter-proposal sent forth in your letter of July 14th is totally unacceptable. This letter will also serve notice to you and your client that the settlement proposal contained in my letter of June 14, 2011, is withdrawn.”

Ms. Wing Sun was not done with her mischief. On July 15th, she wrote: “Thank you for this letter.  Let’s discuss how to proceed with the dismissal of the FENE.  My client does not want to participate and she told me your client does not either . . . actually . . . I have an e-mail from your client that states this.” Of course, she did not have such an email from me. I wanted the FENE because it would keep the focus on our finances instead of on my alleged marital misconduct.

Attorney Wing Sun now rushed to attack my attorney and attempt to destroy my credibility with him. He had written: “My client wants to have the FENE. It is Court-ordered and the parties cannot simply agree to do otherwise.” She replied: “Are you sure?  William told Lian that you were not listening to him and running up his attorney’s bill.  He did not like that you charged so much, etc.  Also, Lian is out of country.  I believe that when both parties want the FENE dismissed, stipulate to it, especially when they intend to settle anyway, as clearly shown here, it can be by the court.”

My attorney, Gurovitsch, then replied: “Yes, I am sure. You are out of line to suggest that I am pushing for the FENE just to increase my billable hours. Making ridiculous settlement proposals and questioning my professional integrity gets us nowhere. Your client needs a good dose of reality that an FENE may provide.”

The climax came in a conference call with referee Cochrane on July 18th in which I did not participate. When I spoke with attorney Gurovitsch on the telephone, he told me that the referee had ruled it would not be necessary to have a FENE. He did not say how she had decided to vacate her own order issued on May 5th but I must assume that this came at the urging of attorney Wing Sun. She might have said, as in her earlier email suggests, that both Lian and I wanted to dispense with this part of the process. I have no idea how Gurovitsch reacted; I was not part of the conversation. So the whole effort from April 4th through July 18th to move toward a resolution of the case through the FENE was largely wasted. I began then to suspect that there was something wrong with referee Cochrane.

Now that the FENE was ruled out, Gurovitsch gave me several options. One was to have a settlement conference. Another was to schedule a pretrial hearing which would lead straight to trial. A third was to seek mediation. Here we would hire a professional mediator who would lead a discussion between the two parties and try to guide them toward a settlement. I asked Gurovitsch for his opinion. He thought mediation was the most promising option. Therefore, I agreed to that.

 

11. An order for mediation

There were no more settlement offers or counter-proposals, just a continuing stream of emails relating to the mechanics of the process. On July 20th, Gurovitsch informed Ms. Wing Sun that I had agreed to mediation. For at least the next month, email discussions between the two attorneys concerned whether or not a free mediator could be obtained through the Family Court Services. If Lian was out of the country, that option was unavailable. Then there was the question of when Ms. Wing Sun’s busy schedule would permit meeting with a mediator. She had a few names of mediators to suggest. Also, the mediator had to be approved through a court order. When the order from the court came on August 19th, we were no closer to a settlement than we had been in early April. (See Prehearing Conference Order, Document 7. )

The order stated:
_________________________________________________________________

STATE OF MINNESOTA

COUNTY OF HENNEPIN

DISTRICT COURT

FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION


Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Lian Yang McGaughey
Petitioner

PREHEARING CONFERENCE ORDER

William Howard Taft McGaughey, Junior
Respondent

Counsel for the parties participated in a phone conference with the Court on July 18, 2011. Present for the Petitioner was Wing-Sze Wong Sun Esq. Present for the Respondent was James Gurovitsch, Esq.

Based on the information provided, the Court makes the following:

ORDER FOR PREHEARING CONFERENCE

1. The parties participated in a phone conference with the Court on July 18, 2011. At this time counsel was to report as to the status of the Financial Early Neutral Evaluation with Zach Kretchmer. The court was informed that the Petitioner no longer wished to participate in the FENE process. Counsel was then given three choices:

a. Attend a settlement conference
b. Set the matter for pretrial
c. Attend Mediation, either through a private mediator or through Family Court Services (in person, as Petitioner was out of the Country)

2. The parties chose the option of mediation with Family Court Services through correspondence to the Court dated July 26, 2011.

3. Upon further review, the Court was informed by Family Court Services that they are unable to mediate pre-decree financial issues.

4. The Court will therefore bring in a private mediator from the community to work with the parties on settling their financial issues. All parties and counsel should be present in person for this mediation.

5. The parties shall prepare for both mediation and a prehearing conference.

6. This case is set for prehearing conference and mediation on October 17, 2011 at 9:00 a.m. in Courtroom 517, Hennepin County Family Justice Center, 110 South Fourth Street, Minneapolis, Minnesota.

7. This is a mandatory conference, which shall be attended by the attorneys who will try the case and by the parties. Attorneys and parties should anticipate mediating the whole day, from 9:00 a.m. to 4:30 p.m.

8. A continuance will not be granted except for the most extraordinary and unforeseeable events. Requests for continuance and reasons therefore must be submitted in writing to the Clerk for the undersigned within ten days of receipt of this Order and a copy of the request furnished to other attorneys of record(or party if not represented). If the prehearing date in this matter is continued, the deadlines set forth herein realign to the new date without further Court Order, with the exception of the discovery deadline which shall remain as set forth herein unless modified by a subsequent Court Order.

9. No later than ten days prior to the conference, the parties shall exchange and file with the Court their prehearing statements or update previously filed prehearing statements with service on all parties.

10. No later than ten days prior to the conference, the attorneys (or parties representing themselves) shall meet in person for the purpose of:

a. stipulating the facts and matters not at issue;
b. attempting to settle outstanding issues; and
c. preparing a list of disputed issues.

This meeting is mandatory and may not be waived. It is recommended but not required that the parties participate in this meeting.

11. Prior to the meeting described above, each attorney shall prepare and exchange at such meeting a complete balance sheet setting forth a proposed division of assets and liabilities of the parties, including the valuations of such assets, and denoting any property claimed to be non-marital.

12. No later than three days before the conference, the attorneys shall exchange written offers of settlement s to each of the disputed issues identified at the meeting described above.

13. No later than two days before the conference, the attorneys shall deliver to Chambers of this Court the documents listed above, with the exception of settlement offers.

14. In the event the case cannot be settled, counsel shall be prepared to:

a. identify witnesses that are expected to be called and estimate the length of the trial;
b. discuss the prospective proof with regard to any property whose non-marital or marital character is disputed by the parties;
c. discuss the prospective proof with regard to any property whose valuation is disputed;
d. schedule any motions that should be heard prior to trial; and
e. discuss any unusual or disputed evidentiary or legal issues that are anticipated to arise at trial.

15. If a stipulation is reduced to writing prior to the prehearing conference, that case may be heard as a default at the time scheduled for the conference. In that event, only the party obtaining the Decree need appear.

16. Failure to comply with this Order will subject the parties to appropriate sanctions to include striking the pleadings and hearing the matter as a default, the assessment of costs against the delinquent party or other relief as the court may deem appropriate.

17. THE DISCOVERY DEADLINE set for this case is 14 days before the date set forth in this Order for the Prehearing Conference. This means discovery shall be COMPLETED (not started) by this date. Any discovery not disclosed and exchanged by this date shall not be admissible at trial. By this Order, the court imposes upon all parties a duty reasonably to supplement prior discovery responses made, under Minn.R.Civ.Proc. 26.05(c).

18. The Clerk of this Court shall mail copies of this Order to counsel and any pro se parties, which shall be good and proper service for all purposes.

BY THE COURT: August 19, 2011

FINDINGS OF FACT AND
ORDER RECOMMENDED.

ORDER APPROVED.

Dated: 8/19/2011 dated: 8/19/2011

_____________________
Referee of District Court

Laurie Miller, judge of District Court,

Family Court Division

The court order stated that, because there were no mediators from Family Court Services able to mediate pre-decree financial issues, we would be using the more expensive private mediators. More ominously, the referee’s order stated: “This is a mandatory conference, which shall be attended by the attorneys who will try the case and by the parties.” In bold print, it added: “Attorneys and parties should anticipate mediating the whole day, from 9:00 a.m. to 4:30 p.m.” At $170 per hour, I realized that it would cost $1,275 to have Mr. Gurovitsch with me for the entire day. The fee of the mediator would be additional. I suppose referee Cochrane figured that Lian and I were dragging our feet on a settlement and she would put some financial pressure upon us to narrow our differences.

 

12. Preparing for the mediation session

The email exchanges between the two attorneys, all costing me money, continued through August and September and into October. Not much happened. Evidently, a pretrial hearing was set for August 24th but it was canceled. The court had ordered that the mediation session take place on October 17, 2011. Ms. Wing Sun wrote Gurovitsch on August 29th: “I have no objections to postponing the hearing. However, since we will have to prepare for both a mediation and pre-trial hearing, we should make another attempt to settle, unless your client doesn't want to.” I had already submitted two serious settlement proposals and had yet to learn what Lian's negotiating position was. But in Wing Sun’s eyes, I was the stumbling block.

By mid September, my financial situation had become desperate. Sheila was continuing to take large sums of money from me. The money from May’s sale of stock to support my $25,000 settlement offer was now almost entirely gone. A new threat now emerged as expressed in an email to Gurovitsch on September 12th: “In a telephone conversation from China, Lian threatened to come back to the United States and check herself into a hospital, sticking me with a large expense.  I argued that we were legally separated.  She said, if we lived together, we would not be separated and I would be responsible for her medical bills. I would like to see Lian again but am concerned that she will follow through on the threat.”

I asked Gurovitsch: “I am wondering if there is a way to protect myself legally against the prospect of Lian's hospital bills? Do I have to prevent her from returning to the house or is there another way?” He replied: “If you and Lian are living separately you are not liable to the hospital and doctors for her medical Bills. However, the court may order you to pay those bills as part of the divorce. Why does Lian need hospitalization? Has the cancer come back?” In a subsequent email, he wrote: “Assuming she incurs a bill for hospital or medical care, separated means that you are living separately and apart in different residences.”

Attorney Gurovitsch wrote me on September 16th: “We need to start preparing your Pre-hearing Statement. You need you to provide the information requested in the blank form I mailed to you on August 25, 2011. Please advise.” I had not received any Pre-hearing Statement forms so I arranged to drive to Gurovitsch’s office in Brooklyn Center to pick up another copy. I wondered if it was necessary for me to hire an appraiser to determine real-estate values. What about the values at the time of marriage? Gurovitsch asked me to make an appointment to come to his office to discuss those questions. (See Respondent's prehearing statement, Document 9.)

Lian returned to the United States from China on September 25th. On the first day back she visited her attorney. The visit put her in a fighting mood. Lian told me that it would take three to five years to settle our divorce. She was willing to sell her big apartment in Beijing to finance a “war” in the courts.

Lian said that, unless Sheila vacated the downstairs unit, there would be no settlement. She punched me when I walked down the steps to the front door to take our dog outdoors for a walk. Later, she threatened to kill me. I asked Sheila to leave the house temporarily while I was engaged in sensitive negotiations with Lian . Sheila checked herself into a hotel but sent me the bill. Although she was expecting to receive a large sum of money from Haiti, it had not yet arrived.

On September 27th referee Cochrane informed the two parties that a private mediator was available for the reduced rate of $50 an hour for each party. The court would also make available a free interpreter for Lian . I informed Gurovitsch that I was not in a position to offer Lian more money unless Sheila came through with repayment of her loans. He advised me that this was not going to happen. Gurovitsch also asked me to come to his office to answer a few questions about my Pre-hearing Statement. On October 14th, he sent me copies of Lian's Pre-hearing Statement. It was minimally informative. (See Petitioner's prehearing statement, Document 8.)

 When Lian received a signed copy of my Pre-hearing statement, she said it showed my desire to “continue the war” - take the case to trial - because she had not yet signed her statement. Therefore, I was the aggressor in the divorce. Lian also said that she had a doctor’s appointment in Minnesota on the day after the settlement conference. I could avoid its expense by agreeing to a settlement now. She said she could force me to sell real estate to pay her medical bills.

Looking at Lian's Pre-hearing Statement, I found that some of the values for my non-marital real estate were greatly inflated - $499,500 for the nine-unit apartment, $550,000 for the Milford house. She did not mention that she possessed another “small apartment” besides the one she had sold. All the debt she had listed as mine. Her household expenses were also inflated. The statement falsely claimed that I had received the 2010 tax refund from our joint return.

 

13. The mediation session

The next big event was at hand. The session with the court-appointed mediator, Dan Simon, took place in a conference room on Monday, October 17th, on the fifth floor of the Family Justice Center near referee Cochrane’s court room. I greeted my team mate, James Gurovitsch, in the hallway. Attorney Wing-Sze Wong Sun, her husband Hang Sun, two other Mandarin-language interpreters, and Lian herself comprised the team on the other side.

From the beginning, Chinese interpreters had been prominent in Lian's divorce case. I knew that Lian spoke reasonably good English. After all, we had talked with each other in English in January, 2000, while considering whether to get married. Lian had taken English as a Second Language courses. She had worked on the sales floor at Target for three years and been in the United States for ten years. Granted, she might have been uncomfortable about her English ability in reading the fine print in medical or legal contracts but, evidently, something else was happening here.

I came to the conclusion that use of interpreters was one of the “tricks of the trade” that attorney Wing Sun used in representing her Chinese clients. Psychologically, it conveyed the message that her client, Lian , was a poor immigrant woman who did not understand American life so well and might have been taken advantage of by her husband. To have an Chinese-language interpreter was, in other words, a “victim accessory”. In liberal Minnesota, the educated classes in the judiciary and elsewhere bend over backwards to be sensitive to the needs of people like this. Financially, the arrangement also made sense because the courts often paid for interpreters requested by a party. Ms. Wing Sun’s husband,Hang Sun, who spoke both English and Mandarin Chinese, could sometimes be employed in communicating with clients like Lian whose English ability was limited.

In this situation, the two parties, unevenly matched by numbers, sat on opposite sides of a conference-room table with mediator Simon at its head. Mr. Simon stated the ground rules: This was to be a free-wheeling, candid discussion. What was said during the mediation session could not be used in court. He himself would not testify. His role was to facilitate a discussion leading to a settlement. Lian and I would be the ones to make this happen. We would be paying Simon a reduced fee of $50 an hour. We each signed a contract to that effect.

Now came time for the discussion. I began by asking what the other side wanted. I wanted a settlement. Attorney Wing Sun began by pointing out that, because Lian was not in good health, she wanted her attorney to speak on her behalf. My previous offer had been $27,000 in cash and occupancy of a room in the Milford house. Originally, I had agreed to pay $36,000. (I had never agreed to those terms.) They wanted me to increase my cash offer. Even if I did not have much cash or credit, I had $43,000 in stocks so I could afford to pay more.

Then Wing Sun launched in to a comparison between what I had given Sheila and what they wanted for Lian . I had given Sheila $84,000, and Alan, her brother, $53,000. Attorney Wing Sun produced a thick stack of papers representing copies of my check register as if to present evidence of my gifts to Sheila. There were also unrepaid loans to Alan. Attorney Wing Sun made no attempt to identify the questionable payments or show how the totals had been reached. Evidently these were the fruit of the documents pilfered from me several months earlier.

Lu Ming, Wing-Sze’s husband, was an accountant. He hinted that I had falsified our income taxes. My rental properties were making money despite reported losses on the return. The Schedule E expenses were inflated. I had paid Alan $180,000 to renovate the duplex at 1715 Glenwood..

As Dan Simon said little, James Gurovitsch and I were trying to redirect the conversation to proposals for settlement. Again, what did Lian want to settle the divorce? “The Milford house”, was the answer finally given. With a smirk on her face. Ms. Wing Sun argued that this house was worth around $36,000, which she observed was not far different from $27,000 and about the same amount of money that I had originally agreed to pay Lian . Its tax-assessed value was $36,030. This number had not changed in years.

But, of course, the petitioner’s own pre-hearing statement had estimated that the same property was worth $550,000. When I pointed this out, the other attorney said that I had told an employee at the Social Security office that the Milford property was worth $36,000. Was I lying to a government employee? No, I recall telling the employee that I had no number for its value other than what was shown in the tax statement. The property had never been assessed.

Since we were not buying the idea that the Milford house was worth only $36,000, we asked for other settlement proposals from Lian . Wing Sun then said Lian would settle if I paid her $10,000 in cash up front and then agreed to pay $10,000 per month until a total of $50,000 was paid. Alternatively, she would settle for $10,000 plus joint ownership of the Milford house. Those proposals were also unattractive.

On his own initiative, Gurovitsch offered Lian half of what my marital Xcel Energy stock was worth: about $12,000. I cut him off, saying I would have to think about it. I later offered a flat $15,000.

In the spirit of the occasion, Gurovitsch and I put forth our own bogus offer to match Wing Sun’s. On the petitioner’s pre-hearing statement, Lian had estimated that the duplex at 1715 Glenwood was worth $216,327. (Typically, they inflated all the properties that I might expect to receive.) We now offered to give Lian the duplex if she would assume the $173,000 mortgage against this property. If she took this offer, she would net $43,000 when she sold the property, we said. I even offered to manage the property without charge for half a year until the property was sold. Lian knew that the duplex was under water. It had been assessed at $140,000 in the previous year. She did not appreciate our attempt at humor.

Such discussions went on all morning and through part of the afternoon. Lian denied having used her potential medical bills as a weapon to make me settle on her terms. The only useful thing to come out of mediation was the revelation that Celia had been paying her mother’s attorney bills. The case was obviously going to trial. Mediation had accomplished nothing. I wrote out a check to Mr. Simon. Referee Cochrane set a trial date in May. Then, together with Gurovitsch, I made my way out of the building.

Before we left the building, the referee issed an order for a trial. (See Trial Order, Document 10.)

As we stood on the street corner, Gurovitsch said I needed to prepare myself for heavy legal expenses. I needed to analyze my debt to separate the marital and non-marital components. If the rental-property losses pertained to non-marital properties - 17xx Glenwood and 1708 Glenwood - perhaps some of the losses might also be non-marital. It was a complicated subject.

 

III HANDLING THE OTHER ATTORNEY ON MY OWN

14. my letter to the court and the reaction

Mediation had turned out to be a charade. Attorney Wing Sun was playing games with us and running up Lian's legal tab. When I received Gurovitsch’s bill two weeks later, I learned that the mediation session had required six hours of his time - $1,020 - plus another four hours preparing the Pre-hearing materials. Meanwhile, I checked my bank balances at US Bank and found that my reserves of cash and credit were running dangerously low. The divorce process was unsustainable. The referee had set a trial date of May 6th and May 7th next year. I could not hold out that long at the current pace.

Some persons commit suicide in such a situation. I decided to write a letter to the court, copying the two attorneys. The letter was dated October 21, 2011. Here is what it said:

“Dear Ms. Cochrane:

On Monday of this week, you set a tentative trial date of May 7 and 8, 2012, for the dissolution of the marriage between Lian Y. McGaughey and me. I would ask you to reschedule the trial for later this year. The current date would pose a significant hardship for me.

As a retired person, I am facing an immediate cash squeeze. Today, I have total bank balances of $1,738 and remaining balances in my credit lines of $3,227 plus $10,000 in a business account which I could access at an interest rate of 25 percent. I have an unpaid credit-card bill, due today, with a balance of $7,448. Of this, around $1,300 represents charges that Lian made on her card that is part of my account.

In addition, I currently have $81,100 in mortgage debt to US Bank, $68,700 in unsecured debt to US Bank, another mortgage of $173,000, and debt of $16,100 on three other credit cards, for a total debt of $348,900. I began the marriage eleven years ago with approximately $18,000 in debt.

A year and a half ago, I used the proceeds of a life-insurance policy worth $113,000 to pay off debt owed at that time. I have now run through the entire sum of money. My decline in cash balance has averaged between $6,000 to $7,000 per month for the past 18 months. Around $30,000 of this represents unauthorized charges to my credit card and checking accounts. If the losses continue at this rate, I will be out of money in a week or two and will have to start selling hard assets to raise cash.

For this reason, I cannot sustain a full-scale legal battle for seven months. I will have to cut back substantially on the discovery process and, possibly, cannot afford the services of an attorney at trial. My wife’s attorney bills are meanwhile being paid by her daughter who lives in northern Virginia and has a high-paying job. The daughter is also being helped financially by her paternal grandfather. I doubt if I can last financially until May, especially if I have to pay for extensive discovery.

As a practical matter, my wife’s attorney already has the bulk of my financial records. At the hearing on Monday, this attorney produced a thick stack of photocopies of my personal and business checking accounts that were made without my knowledge or permission when I was living away from home in early March of this year. She also has knowledge of my stock and real-estate holdings from papers in my office that were surreptitiously copied at the same time.

Our only significant marital asset is a duplex located at 1715 Glenwood Avenue. I ordered an appraisal of this property two years ago in an unsuccessful attempt to refinance the debt. My wife’s attorney wants now to do another appraisal of the property. I think that is unnecessary.

I would argue, then, that there would be ample information available to both parties if we went to trial in four to six weeks. Despite an earlier agreement to the contrary and my strong desire to comply, my wife’s attorney objected to having a FENE do an intensive evaluation of my wife’s and my financial situations. You allowed her to escape that part of the process.

My wife has announced her intention to seek medical treatment and a possible operation in Minneapolis. She has some health insurance in China and has previously obtained treatment there. She has no health insurance in the United States. Several times recently, she has threatened to stick me with the bill by falsely claiming she lives with me (and we are therefore not legally separated) if we do not settle the divorce soon on her terms. In fact, she normally lives in Herndon, Virginia, and also in China when she is not here on divorce-related business.

My wife is mainly interested in showing that I dissipated marital assets by loans to my former wife that have not yet been repaid and to her half-brother who does the maintenance work on my properties. There is a basis for her concern but much that can be explained. I would agree to summon both persons as witnesses and allow my wife’s attorney to cross-examine them on whatever topic she wishes on the witness stand.

Monday’s pretrial hearing with a mediator took four and a half hours. About 80 percent of that time was spent in personal accusations leveled at me by my wife and her attorney. I tried unsuccessfully to keep the discussion on a possible settlement.

Being currently strapped for cash, I made two separate offers: (1) I would pay my wife $15,000 in cash if my former wife repaid the loans to me. (Again, I am promised that repayment is near.) If the loans are not repaid, we would go to trial. (2) I would transfer title of the duplex at 1715 Glenwood Avenue to my wife, which my wife’s attorney estimates is worth $231,000, if my wife assumed the $173,000 balance on the related mortgage. I would also manage the property for six months while my wife tried to sell the duplex. My wife and her attorney rejected both offers.

My wife, in turn, made several offers. (1) I would transfer title to a non-marital house in Milford, Pennsylvania, to my wife which I estimated was worth $170,000 and my wife’s attorney wildly estimated was worth $550,000. This house was built by my great-great grandfather and was given to me by my parents in 1995, before the current marriage. My parents and two brothers are buried in the Milford cemetery where I also have a grave plot. (2) I would pay my wife $10,000 in cash immediately and then pay her $1,000 per month until we reached a total payment of $50,000. (3) I would pay my wife $10,000 in cash immediately and also give her half ownership of the house in Milford, Pennsylvania. I rejected these proposals.

So you can see that we are far apart with respect to terms of settlement; and it may well take a trial to reach a decision. I am 70 years old. My wife is 55. Mainly, I want to get this ordeal over quickly so that I can settle with my wife, sell my remaining non-marital property in Minneapolis, liquidate all or most of my debt, and move to Milford where, hopefully, I can minimize future losses (especially the unauthorized charges) and have something left in my retirement years. There will be little left if the two attorneys continue their email communication over a period of months and do extensive discovery.

My wife had a high-level executive position in China when we married in January, 2000. My step-daughter’s paternal grandfather, now in his 80s, is a multi-millionaire. Speaking passable English and being intelligent and relatively young, my wife could conceivably land a decent job here. Alternatively, if she cannot work because of health problems, she would be a prime candidate for Social Security Disability. She is not eligible now, we have found, because my monthly income from pension and Social Security ($2,000 per month gross) is too high.

This is another reason to get the divorce over quickly. My wife needs to start the application process soon. Also, seven months filled with legal bickering may not be good for my wife’s health.

I made another attempt this morning to reach a settlement offering my wife complete access to my financial records so we could see what might be given to her. Sensing that there would be few assets to divide, my wife refused to look at these documents saying that my impoverished condition is due to ill-advised generosity toward my former wife. Over the course of many weeks, we have not been able to advance the discussion beyond that point.

Again, I am ready to go to trial almost immediately. Having nothing to hide, I would cooperate fully, even enthusiastically, with my wife’s attorney’s discovery efforts if that would hasten the date of trial.”

I soon learned that I had committed one of the worst sins known to the judicial system: ex parte communication. Another blunder was to mention specific settlement proposals. In a telephone conversation, I had given Gurovitsch an inkling of what I was about to do. I had said I could not afford the services of an attorney any more. He said it would be “suicide” if I tried to represent myself in divorce court. In an email, I had asked him to stop working on my case. Gurovitsch warned me not to communicate with the court. Now that I had done it, I received a letter from him withdrawing from the case.

He wrote on October 25, 2011:

“I am enclosing and serving on you my Notice of Withdrawal as your attorney in the above matter. I am withdrawing because of your email telling me to stop working on your case and also because of your sending the enclosed letter to the Court and Lian's attorney after I told you on more than one occasion not to do that. Your actions have made it impossible for me to continue to represent you. I would advise you to hire another attorney as soon as possible. My withdrawing as your attorney does not excuse you from honoring your agreement to pay for my services. I will expect you to pay the balance of your account promptly after you receive your October statement.”

I had given James Gurovitsch an initial payment of $1,700 on March 30th, and then another $1,700 on June 19th. Now a final payment of $1,810.60 was due, bringing the total payments up to $5,210.60. For all this, little or no progress had been made in settling the case. While on the whole I considered Gurovitsch to be a good lawyer, I was nursing a grudge that he had allowed the FENE to be thwarted by Ms. Wing Sun in the conference call with referee Cochrane. Wasn’t a top lawyer such as him supposed to protect me from such shenanigans? Therefore, I was not about to take a tongue lashing from him.

I drafted a letter in response, which was dated October 27, 2011:

“I have received your letter withdrawing as my attorney in the divorce matter and accept your decision. Whether you asked me once (as I recall) or several times not to send the letter to Referee Cochrane, I believe I acted responsibly in stating to all parties concerned that I could not pay for the legal services that would be involved in seven months of intensive preparation for a trial. It is clear that my wife’s attorney is playing games with the process, does not intend to settle on fair terms, and intends to churn legal communication to the maximum. I will try to deal with this myself. I may, however, seek the services of an attorney to review the agreement if my wife and I reach a settlement. Your concluding statement about my need to pay the bill for services already rendered is uncalled for and personally offensive.”

In time, I also received a response from the court. The letter dated November 6, 2011, which was signed by referee Cochrane’s law clerk Azure Schermerhorn-Snyder, read: “The Court is in receipt of a letter from Mr. McGaughey dated October 21, 2011, and Ms. Sun’s subsequent letter dated October 24, 2011. Currently, no motions are before the Court, nor did the Court request submissions on any outstanding issues. Therefore, Referee Cochrane has not read the substantive material in Mr. McGaughey’s letter. If you would like to make a motion for an accelerated trial, you must properly file such requests with the Court. Please be advised that the Court cannot amend orders based upon ex parte communication from parties or their attorneys. Evidence supporting the motion must be served on the opposing party and/or their attorney and filed with the Clerk of Court, not sent directly to the referee or judge. If Mr. McGaughey has not obtained counsel he may contact the Family Justice Self-Help Center at 612-3596-8519 for legal advice and assistance in these proceedings. Thank you for your attention to this matter.” A copy of this letter went to Ms. Wing Sun.

 

15. the Order for Trial

After the unproductive mediation session, the referee issued an Order for Trial. The text is as follows:

STATE OF MINNESOTA
COUNTY OF HENNEPIN

DISTRICT COURT

FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution Without Children

In Re the Marriage of: Court file N. 27-FA-11-xxxx

Lian Yang McGaughey
Petitioner

TRIAL ORDER

William Howard Taft McGaughey, Junior
Respondent

_________________________________________________________________

The above-entitled matter came on for hearing before Referee Susan Cochrane on October 17, 2011.

Appearances:

Petitioner appeared with Counsel, Wing-Sze W. Ming, Esq.

Respondent appeared with Counsel, James Gurovitsch, Esq.

Now, therefore, the Court makes the following:

ORDER FOR TRIAL

1. The trial is scheduled for a 2 (two) day trial beginning at 9:00 a.m. on May 7, 2012 and the following day of May 8, 2012, in courtroom 517, Hennepin County Family Justice Center, 110 South Fourth Street, Minneapolis, Minnesota. In the even that Petitioner is not able to attend those dates, the Court has reserved June 11 and June 12, 2012. Petitioner’s attorney shall notify the Court before January 1, 2012, as to whether or not her client will attend the May trial.

2. The following are the deadlines for trial in this matter:

A. PETITIONER’S EXPERT WITNESS DEADLINE is seven days before trial. By this date, the Petitioner shall deliver to opposing counsel and to the Court in Chambers the written report of any experts. Direct examination of all experts shall take place by this pre-marked written report. The expert must be made available at trial for cross-examination. any evidentiary objections shall be as stated below.

B. RESPONDENT’S EXPERT WITNESS DEADLINE is seven days before trial. By this date, the Respondent shall deliver to opposing counsel and to the Court in Chambers the written report of any experts. Direct examination of all experts shall take place by this pre-marked written report. The expert must be made available at trial for cross-examination. any evidentiary objections shall be as stated below.

C. THE EXHIBIT LIST DEADLINE is seven days before trial. By this date counsel shall exchange all trial exhibits and file with the Court a list of exhibits (plus any stipulations as to admissibility) that shall be introduced into evidence.

Petitioner’s exhibits shall be marked beginning with the number 1. Respondent’s exhibits shall be marked beginning with the number 101. At trial, each party shall make one copy of their exhibit notebooks available for the witnesses and one copy available for the Court’s clerk.

The parties shall attempt to stipulate as to admissibility of exhibits, and the stipulations shall be a part of the exhibit list filed with the Court. Any exhibits not included on the exhibit list filed with the Court shall not be admissible at trial. All objections to exhibits shall be addressed prior to trial as outlined below.

As a part of their trial exhibits, each party shall draft an inventory of the parties’ tangible personal property (household goods and furnishings, etc.) The inventory shall include a description of the item, when it was acquired, who acquired it, who has current possession, the cost of the item, current worth, and whether either party has a non-marital claim to the item. The inventory shall be filed with the Court along with the Exhibit List. If a party fails to file an inventory, that party will be precluded from providing direct testimony as to personal property.

1) The Deadline for Opposing Admissibility is three days before trial. Any party opposing admissibility of any exhibits shall deliver to the Court by this date a letter describing the reasons for opposing admissibility.

2) The Deadline for Explaining Admissibility is two days before trial. The proponent of the disputed exhibits shall deliver to the Court a letter by this date, explaining why the exhibit is admissible.

D. THE STIPULATIONS DEADLINEis two days before trial. The parties shall stipulate, in writing, to all uncontested facts and matters not in controversy. By the date set forth herein, the parties shall file all stipulations with the Court.

E. THE ASSETS/LIABILITIES DEADLINE is seven days before trial. By this date, the parties shall prepare a list of all assets and liabilities. Counsel shall use the values and balance as of the date of the Initial Case Management Conference scheduled before this Court. Exhibits supporting the stated values or balances shall be referenced in and attached to the schedule. After counsel examine the exhibits, if they cannot agree as to the correct values or balances for a particular asset or liability, then each attorney shall prepare a separate schedule of the disputed items with exhibits attached referencing values. The Court will receive the undisputed schedules and exhibits at the beginning of the trial without the necessity of any testimony or foundation unless there is a dispute regarding admissibility.

F. THE DEPOSITION DESIGNATION DEADLINE is seven days before trial. By this date, the parties shall file with the Court a designation of testimony to be offered by deposition, whether oral or video deposition. At trial, the original copy of the deposition shall be incorporated into the record as a Court Exhibit and preserved for purposes of appeal.

1. The Deadline for Specifying Objections to Deposition Testimony is three days before trial.

Counsel shall consult and attempt to resolve objections to any deposition testimony. Objections then remaining shall be listed, including page and line number, on a document filed with the Court by the date specified in this paragraph.

G. THE WITNESS LIST DEADLINE is seven days before trial. By this date, the parties shall file with the Court a list of witnesses to be called, including possible rebuttal witnesses. The list shall include a short substance of the testimony of each witness.

3. TRIAL FINDINGS OF FACT, CONCLUSIONS OF LAW. The parties shall exchange, and deliver to the Court, proposed Findings of Fact, Conclusions of Law, and Order for Judgment TWO WEEKS AFTER THE CONCLUSION OF THE TRIAL.

4. FAILURE TO COMPLY. Failure to comply with the provisions of this Order may result in the imposition of sanctions, including, but not limited to, refusal to allow introduction of exhibits and/or witness testimony, award of attorney’s fees, or imposition of costs.

5. NO CONTINUANCES: NOTIFY THE COURT. The Court will not grant a continuance to produce witnesses or evidence except in the most extraordinary circumstances. If counsel has questions regarding the availability of witnesses at trial, depositions shall be taken for use at trial. The parties shall immediately notify the Court, in writing, of any disposition of the case prior to trial.

The Clerk of this Court shall mail copies of this Order to counsel and any pro se parties, which shall be good and proper service for all purposes.

FINDINGS OF FACT AND
ORDER RECOMMENDED.

Dated: 10/18/2011

FINDINGS OF FACT AND

ORDER APPROVED.

___________________
Susan Cochrane
Referee of District Court
Family Court Division

Judge of District Court

Even though the trial order was a significant court document which governed the discovery process and the trial itself, I promptly filed it away with my former attorney’s other letters after he sent the document to me. Since this was seven months before the trial, I forgot all about it, with disastrous consequences. Therefore, none of the deadlines were met. I was not even aware of them in relation to various discovery and trial procedures. But my wife’s attorney was not following the procedures either. When we came to trial, few of the court requirements were met.

 

16. Lian and I reach an agreement but her attorney thwarts it


Later in October, Lian returned to Minneapolis after visiting Celia in Washington, D.C. She, of course, visited her lawyer and asked me incessantly for money. Once, she refused a check for $83 saying it was too little.

Meanwhile, Sheila and Lena, her daughter, offered to move out of the downstairs unit. I interviewed a young woman whom Lena knew and was prepared to accept her as a tenant. Then I learned that she had a drug-dealing boy friend. The acceptance was off. I had told Lian about my prospects for a new tenant and, when plans did not materialize, she accused me of lying. Lian was also visiting doctors in Minneapolis. She admitted that her lawyer was an obstacle to settlement and agreed with me that we might have to approach the judge ourselves with a settlement proposal. However, she accused me of constantly changing my mind and said I might do so again.

On or around Halloween day, 2011, I picked Lian up at Whittier clinic on Nicollet Avenue, a block from Lake Street. My car was parked in the K-Mart lot. As I was walking Lian back to the car, she said that she did not want to die in Minneapolis and begged me to settle. I asked if she would settle for $25,000. She said “Yes”. Now we had something to work with. Back at home, we had further discussions. She asked if I would contribute $2,000 toward repaying a medical loan incurred in China. I agreed.

Then I typed a complete list of the points representing our agreement. It read:

“Agreement to Settle Divorce between William and Lian McGaughey

1. William will pay Lian $25,000 in cash.

2. William will pay Da Zhe $2,000.

3. Both parties will pay their own attorneys for present and past services rendered.

4. William and Lian will file a joint tax return. William will receive the refund, if any, and/or pay the tax owed, if any.

5. Lian will pay her own medical bills, both in the United States and in China.

6. Both parties will retain full ownership of their premarital property. William’s include the fourplex at 17xx Glenwood Avenue, the apartment at 1708 Glenwood Avenue, the house in Milford, the land in Wisconsin, and the Wunderlix prints. Lian's include the “Big Apartment” in Beijing.

7. William will be responsible for marital debts. He will also receive the marital assets at 1715 Glenwood Avenue (a duplex) and 1719 Glenwood Avenue (a vacant lot).

8. Lian may store her belongings in a locked area of the basement at 17xx Glenwood Avenue for the remainder of her life, or until the building is sold, or until Lian voluntarily removes her belongings, or until an involuntary external act occurs necessitating the end of this arrangement.

9. There are no other agreements regarding occupancy of real estate.

10. If Lian dies and if Celia agrees, Lian's ashes will be buried in the Milford cemetery.”

I thought the deal could be concluded quickly and inexpensively using this document as a basis of settlement. I signed the sheet of paper; ominously, Lian did not. To cut down on attorney fees, I even prepared a “findings of fact, conclusions of law, order for judgment and judgment and decree” using my two previous divorce decrees as models. Lian said she wanted her attorney to look at it first. I agreed. Lian went to see Ms. Wing Sun taking my ten-page agreement with her. The idea was that she would check to see if everything was in proper legal form.

That evening, at a coffee shop, Lian reported the results of her meeting with the attorney. First, Ms. Wing Sun objected to disclosing Social Security numbers in the document. Second, she said that each asset should show a valuation. Third, she wanted an additional provision for monthly alimony that I would pay Lian . Fourth, she wanted me to pay part of Lian's medical bills. These additional points went beyond our agreement. Lian commented that her lawyer did not want us to settle. She appeared to be quite angry, in fact. The attorney had said there was a strong possibility that the judge would not approve the agreement since it was not sufficiently favorable to Lian .

In discussions that took place on the following morning, Lian said she wanted me to pay her a sum of money each month after the divorce until she received income, either from a job or from Social Security disability. I expressed concern that taking a lump-sum settlement of $25,000 might disqualify her from Social Security disability. Perhaps the money should be paid periodically in small amounts that would keep her under the asset limitation? Lian said some of the money would be spent on medical care in China and she had a plan for the rest. Maybe in six to nine months she would be ready to apply for Social Security disability (which would give her a monthly income of around $680).

Lian also demanded that Sheila stay away from her downstairs apartment until the divorce was settled. There would be no agreement so long as she remained in the house. At my urging, Sheila agreed to those terms. However, she had to rent a room in a hotel for two weeks at a cost of $350. The money was taken from my checking account.

Lian also proposed that I pay half of her medical bills at HCMC that were incurred before the divorce. She would assume responsibility for bills after the divorce. She proposed that I pay half of her attorney’s legal fee for helping to draft the settlement. That did not sit well with me. I called James Gurovitsch to ask if he would consider checking the agreement that Ms. Wing Sun might prepare for us. He said he would.

That night (November 3rd or 4th) I could not sleep. I suspected that Lian's attorney was trying to sabotage our agreement. I was also worried that Lian would drag her feet in applying for Social Security disability. I wanted a limitation on the time when I would pay alimony - perhaps three months. Meanwhile, Lian's attorney said she was busy with other work and could not get to our agreement until the middle of next week.

My friend, Bob Carney, suggested that we simply take a typed agreement to the judge and ask her to sign. I expressed my concerns about her attorney to Lian the following morning. She became angry that I might be backing out of earlier commitments. We took a walk along the Mississippi river in the afternoon. When Lian raised the subject of alimony, I objected and Lian again became angry.

Sunday afternoon, I met Lian at the Mall of America. While shopping at Marshall’s, Lian proposed that the alimony be limited to one year. That seemed an improvement. I tried to have her agree as well that the alimony payments would cease when she was approved for Social Security disability. Lian refused. As a substitute proposal, she suggested that I pay alimony for an indefinite period until she received this approval.

Lian also said that her attorney, Wing-Sze Wong Sun, had plans to “punish” me. James Gurovitsch was a well-regarded attorney. The fact that he had withdrawn from representing me did not bode well for my case. I gathered that Ms. Wing Sun was planning to pounce on me, exploiting my lack of legal experience. But I did not know what to expect.

Using pilfered documents, her husband might tell the IRS that my tax returns were fraudulent and I would face audits. The attorney might petition the court for “temporary relief” of perhaps $1,000 a month until the trial took place. This attorney might coach Lian on running up tens of thousands of dollars of medical bills in Minneapolis and have the court assign the cost to me. There were plenty of legal tricks that she could use, all of them dangerous.

Rather foolishly, I sold my last large block of stock to raise the money that would be given to Lian in the proposed settlement. My 1,000 shares of Xcel Energy stock, purchased during the marriage, raised $25,875. The other $1,125 might be squeezed from other resources. Even though I had drafted a document embodying our points of agreement, Lian was adamant that Ms. Wing Sun had to prepare the document sent to the judge for signature. I gave in to this demand.

On November 5th, I emailed Wing Sun saying that I would agree to sealing the Social Security numbers. I would also work on preparing estimated market values of assets and liabilities. Her response was: “It is difficult for me to give you any legal advice because I would not want to construe in any manner that I am crossing lines for professional responsibility reasons.  I will advise my client (as you suggested).” On November 11th, she wrote: “Please give me a list of the liabilities/debt.  The information I would require is a (a) list of the creditors, (b) the amount owed to date, and (c) the purpose of the debt (consideration).  Thank you.”

When attorney Wing Sun sent me her own settlement document on November 12th, I found that it had been substantially changed from what I had submitted. The rant against Sheila Gorman continued. Ms. Wing Sun wrote in the document:

“During the time petitioner received medical treatment for breast cancer, the parties received a written letter that respondent impregnated a third party, Sheila Gorman.  However, due to uncertain circumstances, Ms. Gorman did not produce a child.  Since this time, respondent has given Ms. Gorman and her family marital assets and permitted Mr. Johnson’s family to live at one of the apartments without any payment of rent.  Respondent has claimed Ms. Gorman and her family has stolen money from him, however, to date, no police report was filed and respondent continues to refuse to file a police report or an eviction action against the family.  The amount of assets whether given, lost, stolen from the marital estate from the Johnson’s are $________ , which all incurred without petitioner’s permission.”

I objected to this paragraph as a personal attack. Wing Sun denied my request saying it was relevant to her claim that marital assets had been dissipated.

This attorney also wrote: “Due to medical reasons, Petitioner believes her life expectancy is limited to no more than one year; however, spousal maintenance may change in lieu of a change in circumstances.” I pointed out that our agreement explicitly excluded any spousal maintenance for Lian after one year. Ms. Wing Sun denied my request to delete that addition.

This attorney added: “By respondent presently waiving any right to receive spousal maintenance, the parties intend to forever divest the Court of jurisdiction to award maintenance in the future for respondent.  Consideration for this waiver of past, present, and future spousal maintenance is that respondent earns more income than petitioner, respondent is self-supporting, and the property settlement and division of debts stated therein.  The court finds this “Karon Waiver” of spousal maintenance is just, fair, and equitable under the circumstances.”

I pointed out that there had been no discussion about the possibility of future maintenance awards.  I was not self-supporting but had been forced to borrow to meet current expenses.  Nevertheless Ms. Wing Sun insisted on keeping her proposed new paragraph intact.

Elsewhere, I objected to the fact that attorney Wing Sun had listed the fourplex at 17xx Glenwood and the nine-unit apartment as marital properties even though I had purchased them both before the marriage. She insisted that there were “marital components” to these properties, refusing to say what they were. It was up to me, attorney Wing Sun said, to prove that the two properties were non-marital.

When I said that I had no 401(k) or similar retirement account, the attorney wrote: “It is noted and change will ensue.  However, I will advise my client that any statement made which could constitute fraud down the road will be kept on file for her.” To accuse me of possible fraud with no evidence whatsoever was standard practice for her.

Besides stating that I would pay Da Zhe, $2,000 for Lian's medical debt, Wing Sun added “and any other health care costs incurred before the filing of this dissolution decree.”   She struck out the sentence:  ‘Petitioner shall not reimburse Respondent for any health care costs incurrent prior the filing of this dissolution decree.” I argued that Lian's and my agreement limited my responsibility for her medical debts to the single payment mentioned above. Wing Sun said she would discuss this with her client.

Lian's attorney was not just putting our agreement in the proper legal form but was obviously changing the agreement itself. I could not accept this. I told Wing Sun to go back to the drawing board and produce a document faithful to her client’s agreement with me. Her response was: “These documents that I am drafting will benefit both of you, even though I am Ms. McGaughey's attorney, thus do you feel it is fair that she pays for both of your benefit?  Also, why is there so much contention when I have not changed the terms of the agreement.  I am stating the facts as required by law.”

I sent Ms. Wing Sun an email on November 16th complaining that her document not only changed my wife’s and my agreement but also failed to include a conclusion of law. I wrote: “Your assignment, as I understood it, was to draft a document incorporating the points of agreement between me and my wife.  The proposed order was to list those points in the document that would be sent to the judge to settle the divorce... I gave a copy of a proposed agreement to Lian which also included those points.  You chose to ignore them, preferring instead to free-lance the agreement as you preferred that the parties might have decided.”

Ms. Wing Sun replied: “These accusations do not help here.  Please scan a copy with information that I requested handwritten in if you feel that your task is complete. ... Please stop with the accusations, if you are too frugal to chip in when you are a party to this agreement, then just state it.  I am unclear as to why you have to be the victim, when you are the other party that is benefitting from my drafting the agreement.  I'd suggest you go into the court room with no agreement written and see what the judge would say, she'd would ask you to find an attorney and write the agreement down.” Evidently, this attorney was interested mainly in who would pay her attorney’s bill. I was also assisting her in discovery relating to asset and debt values.

Referring to the mediation session, I complained: “(Y)ou are using information stolen from me and I am quite unhappy about that.  At the pre-trial hearing, you displayed a stack of documents which I understood to be photocopies of my check register.  Your husband, who I have learned is an accountant, also implied at this hearing that I had cheated on my income-tax return.” She replied: “This information is not stolen, again these accusations are unnecessary.  Please stop giving Ms. Gorman money and then keeping good records of doing so.  I can see that all you will do is sling speculation and conjecture at me, thus I will stop reading here.”

An emerging issue was who should pay for Ms. Wing Sun’s services which Lian had insisted we needed. I flatly refused to pay her. Once she was on my payroll, I felt, there was no stopping the amount of time she would consume doing billable work. On November 15th, Wing Sun argued: “These documents that I am drafting will benefit both of you, even though I am Ms. McGaughey's attorney, thus do you feel it is fair that she pays for both of your benefit?  Also, why is there so much contention when I have not changed the terms of the agreement.  I am stating the facts as required by law.”

I set to work providing market values for assets and debts as requested. Ms. Wing Sun gave my wife a paper version of her proposal, asking me to pencil in the numbers on blanks in the documents. She had still not progressed to a conclusions of law because she said she needed to nail down the facts first. Presumably, these facts would drive the terms of settlement. I thought my wife’s and my agreement drove the terms of settlement. From the written notes, it appeared that Ms. Wing Sun still intended to include a lengthy recitation of facts related to Sheila Gorman and the thefts, despite my objections.

Lian and I were still living together. While I was dealing with Ms. Wing Sun on the outside, my wife was exerting pressure from the inside. She was making demands about how I should respond to her attorney. Lian , at times, used violence or the threat of violence to support her arguments. She would pound her fist on the table, break dishes in the kitchen, shove or hit me, and occasionally make death threats. Once, I vomited through the night after eating one of her meals. (This might have been a coincidence.)

Sheila was often reminding me that I needed to change my will. It still gave everything to Lian and Celia after my death. I changed the will in early December to give the Milford house to my niece, the house at 17xx Glenwood Avenue to Alan, my Wunderlix cartoon print to Celia, and have everything else sold to pay debts, with the remainder divided in various proportions among certain other parties. It also stated explicitly that if I should die within a year for any reason, Lian and Celia would receive nothing. The death threats stopped.

Even so, I visited the Domestic Abuse Center in downtown Minneapolis to inquire about obtaining a restraining order against Lian . I filled out a form detailing the various threats or acts of violence that my wife had made recently. When I met with a counselor, she asked whether or not I wished to have Lian excluded from our home. I decided that this would be going too far and therefore abandoned my complaint. It could always be reintroduced, if need be.

Attorney Wing Sun delivered an amended settlement proposal on November 24th. New problems were apparent. First, the attorney claimed that I had $3,531 in monthly income which included $1,147.00 from social security, $984.00 from a state pension, and $1,400.00 in net rental income from my landlord business. I stated that our joint income-tax return for 2010 showed that there had been a loss in the amount of $1,400.00 (actually, $1,117) from the rental-property business, not a gain. Therefore, my monthly income, excluding the loss, was only $2,121.

Second, this attorney claimed that I had dissipated “approximately $135,000.00” in marital assets through loans or gifts to Sheila, “which all occurred without petitioner’s consent.” I had never given her such a figure. Although I knew the other side had stolen my check registers and other financial records while I was temporarily living away from home, I was unaware that the attorney or husband had compiled any list of transactions related to the dissipated assets or taken any total. When I asked for documentation of that number, she asked me to provide it.

Third, Wing Sun’s document continued to put the property at 17xx Glenwood Avenue and 1708 Glenwood Avenue in the category of marital property although I had purchased both before the marriage. The same lurid description of my activities with Sheila Gorman was in the document. It still prescribed that spousal maintenance might be extended beyond one year if circumstances warranted this. For each existing debt, Ms. Wing Sun also wanted to know the dates when these debts were incurred although they often accumulated in small increments. In short, I objected to many provisions in this document. It was back to the drawing board.

There was another settlement document from Ms. Wing Sun six days later (November 30th) which I critiqued on the same day. It continued to state that I had $3,531 in monthly income (including $1,400 from the rental-property business) and had given $135,000 away to Sheila Gorman. A new element was that Wing Sun was now claiming that Lian had contributed $8,000 in spousal labor to upkeep and improvement of the house at 17xx Glenwood Avenue; and $15,000 in labor to the nine-unit apartment building at 1708 Glenwood Avenue. Evidently, these claims were meant to establish a marital component to properties I bought before the marriage.

 

17. The lawyerly negotiations turn into a fight

In utter frustration, I emailed Wing Sun: “It was discouraging to receive your latest draft of a proposed settlement.  This is the third attempt in so many weeks to formulate a settlement agreement acceptable to both parties and we seem to be making little, if any, progress ... You know that certain elements are unacceptable to me, Yet you keep sticking them back into your draft.  Both Lian and I want to settle now.  I am asking whether you are also set on that goal?” I also objected to the idea that we needed Ms. Wing Sun’s ministrations to produce a document that would be acceptable to a judge. If both parties agreed to the terms of settlement, that should be enough.

Attorney Wing Sun’s response was defiant: “I am representing my client.  If you are frustrated with this process, then that is understandable because divorce is a tough time ...  However, getting me to back down is not the solution.  You told me that you wanted certain elements in the settlement, which has been reflected.  However, you are not satisfied with the facts, then it should not have been created.  I will not ethically hide or conceal any facts that I know to the court to be true.  Are you asking me to lie to the court?  ... Let me just say that I looked at the last settlement that you drafted with Ms. Gorman and there were a lot of facts you left out.  I am an officer of the court.  I will not conceal facts.  The judge is a recovering cancer patient, might I add.” (So, of course, was Lian . I imagine a sinister cackle accompanying that revelation.) 

We had now spent an entire month trying to get this attorney to produce a document reflecting terms of agreement already agreed upon at the beginning. Another month of the same would follow. On December 5th, I wrote Wing Sun a lengthy email making several points. First, I expressed my concern about stipulating to facts that might be untrue. Where did the $135,000 figure representing dissipated assets come from? I said I could find around $89,000 worth of expenditures relating to Sheila or her family in my records, of which around $33,000 represents unauthorized or fraudulent charges. I was still hoping to recover some of this money. I also objected to their failure to disclose that in the summer of 2010 Lian had sold an apartment in Beijing for around $100,000 and given the money to Celia without my knowledge. I continued to dispute the “fact” that I earned $1,400 per month from the rental-property business and that Lian had contributed $8,000 and $15,000 in labor to two properties I owned before the marriage. The old falsehoods all remained in her document. This was frustrating to me.

I could almost hear the snarl in the response from Ms. Wing Sun made the same day:

“Upon a brief reading, please look at your checking statements over the last 10 years to Ms. Gorman, her daughter, and loans to the brother in law (not payment to brother in law - loans!).  Why don't you add them up and then send me your figure.  Please look at your checking account records - all of them.  I have asked you repeatedly to provide me with any mutual financial records, but this request is specifically ignored. As an officer of the court I will not fabricate facts.  I will also not cover up any criminal activity.  You have confessed to me, without any attorney/client privilege that Ms. Gorman stole from you, hence she also stole from Ms. McGaughey.  The figure I have determined does not include the figures that you claim Ms. Gorman or her daughter or anyone else related in this family that used the McGaughey credit cards made unauthorized charges.  This figure MUST be provided to me.  

Since Ms. McGaughey does not authorize these charges in any manner and you have expressly forbid Ms. McGaughey to report this criminal activity and refused to do so yourself, I would conclude that you are conspiring against your own wife to conceal assets.  I will give you two weeks to report any criminal activity to the police and fully prosecute theft, if not, then I will report you to the police for criminal activity.  You told me Ms. Gorman stole from you, hence she is stealing from my client.  At no point did my client authorize these transactions. If you are covering this theft up then it is a criminal matter that you are also guilty of, especially when Ms. McGaughey is not agreeing with this cover up.

Therefore, since you insist on going down this path, please provide me a detailed record of all of your credit bills for the entire time you were married to Ms. McGaughey and underline all the unauthorized charges of anyone that Ms. McGaughey did not approve of, which would include anyone with even a shred of familial or legal relationship to Ms. Gorman. I advise that you are forthcoming with your facts because this will be more than a simple civil matter.  Stealing is a criminal matter.  Covering it up is a criminal matter too. As far as your $1400 income argument.  Why don't you send me your 2005-2008 tax returns, with the IRS copy stamp, so I can compare what you reported to the IRS as opposed to what you reported to a real estate agent when you are trying to make a sale. Also I have made some comments below.   Have a good day Mr. McGaughey.”

Two days later, I emailed Wing Sun that Lian and I had talked it over and wanted to settle soon. However, I continued to disagree with the $135,000 figure for dissipated assets, The $1,400 figure as monthly profit on rental property, as well as the $8,000 and $15,000 supposedly contributed by Lian to improving my two non-marital buildings in Minneapolis. Wing Sun responded with this remark: “When you say you can't agree to the facts, this is telling me you want a trial.” I was meanwhile coming under pressure from Lian and her friend, Diane Nelson, who argued that the “facts” were less important than the statement of conclusions - i.e., the settlement terms. Just swallow a few lies and be done with it, they seemed to argue. Having just been through the domestic-abuse routine, I was gun-shy about admitting to false facts. (See Settlement Agreement as Amendedby the Parties in Discussion with Two Friends, Document 12.)

On December 7th, I received another settlement proposal from Wing Sun which was much the same as previous proposals. The main improvement was that it now listed 17xx Glenwood and 1708 Glenwood as my non-marital property. I noted that the other attorney was continuing to misspell referee Susan Cochrane’s first name. Accuracy was not her strong suit. Diane Nelson, in an attempt to be helpful, communicated to Lian's attorney my remaining objections to the settlement proposal. New elements were that I was no longer offering nor was Lian asking for a burial plot in the Milford cemetery. Also, I thought I should disclose to Wing Sun and to the court that I no longer owned 40 acres of land in Wisconsin, but only 20 acres. (Otherwise, she had not a clue about this.)

Finally, there were new provisions in the document that worried me. On the first page, the document read: “Respondent has agreed to withdraw his Answer in its entirety.” Under “waiver of counsel”, I was asked to sign this statement: “ I state that I am of sound mind and that I have freely and voluntarily chosen to represent myself and hereby waive my right to be represented by counsel for the purpose of the foregoing marital termination agreement. Petitioner can proceed without further notice to me.”

This rang a bell. Hadn’t the original petition stated that if I failed to serve an Answer to the petition within thirty days the court would grant the terms of the petition by default? Now I was being asked to withdraw my Answer. Why was that necessary? What legal effect would it have? Give this attorney a blank check? I was nervous about allowing attorney Wing Sun to proceed by default in any regard. She seemed to have only tricks up her sleeve.

This was only a formality, I was assured. “Some of the language seems scary upon an initial read, but it's not what it actually means.” Nevertheless, I insisted that some of this language be removed from the settlement document and it eventually was done.  I, in turn, sent Wing Sun a “scary” message. It read:

“My wife is greatly upset after reading your latest response to the proposal which Diane Nelson made after consulting with Lian and me.  There seems to be a direct relationship between the frustration which she feels over our inability to settle the divorce.  Lian often predicts that her life may come to an end soon.  She believes it is essential to settle the divorce soon so she can get medical treatment that may save her life. I strongly agree. Your paramount duty as an attorney is to respect the best interests of your client.  Her interest at this point is to enjoy further life.  You need to respect this need and stop quibbling over minor points.  I have made every effort to propose how this case can be settled but you continue to throw up barriers.  This is highly unprofessional. Consider this a warning that a quick and fair settlement is what your client needs and that to ignore this need for the sake of more income is a serious ethics violation.”

In my email, I also disclosed that I had asked my former attorney, James Gurovitsch, to review any settlement document we might produce, and he had agreed. Ms. Wing Sun chose to respond to this part of my message: “I read you have counsel.  I can no longer speak to you.  Have your counsel call me.  I need a new certificate of representation since he withdrew.  Thank you.”

I subsequently disclosed that I had not rehired Gurovitsch but merely asked him to review a document for a fee. I also wrote: “I am missing my digital camera with memory chip, a recording device, and my U.S. passport, which could be useful to you in the discovery process.  Do you have any of these objects?” Professing to be “a bit confused” by the question, she denied having taken or possessing any of these items. She also wrote: “I think I hear you say that I am able to speak to you now.  He (Gurovitsch) would be willing to continue to work for you despite that you are behind in his attorney's fees?”

I continued into December seeking a settlement. In the document received from Ms. Wing Sun on December 15th, I read the history of my relationship with James Gurovitsch, a statement that I had given Ms. Gorman’s daughter a car worth $2,000, the repeated claim that my dissipated assets totaled $135,000, a waiver from me for future spousal maintenance, a statement that I desired a quick and amicable settlement with Ms. McGaughey “due to his age”, Lian's claim to have contributed $8,000 and $15,000 worth of labor to two properties, a reference to the twenty acres of land sold by Sheila of which Lian did not approve, plus, in the conclusions section, my assumption of all the debt. I went through the various points of contention. Little seemed to have changed.

The response from Wing Sun was typical: “I was not looking at anything or responding to anything you wrote on December 9's e-mail because you told me you had counsel.  Based off of this first statement in this e-mail, I believe you are being rather contentious and I am declining to read the rest of this e-mail as well ...  If you would like to come in and settle this agreement instead of trying to argue and bring on one accusation after another, which you should know will get nowhere with me. My office is open to you and my client for negotiations.  All I know is that my client wants to settle and you keep coming back to me and trying to make it personal.  I have no personal interest in your divorce and your behaviorisms.”

Since wording was an issue in the settlement, Lian and I tried another approach. We asked two personal friends, Diane Nelson (for Lian ) and Bob Carney (for me), to sit down with us in person and review a proposed settlement document. At a restaurant in Hopkins, Carney read the document aloud line by line. We resolved all issues between us, both with respect to substance and wording. Once we had agreed on everything, the idea was that we would take it to Ms. Wing Sun and say: Take this settlement document, exactly as written, to the divorce court judge and ask her to sign it.

Generally, we completed the process amicably. The reference to Gurovitsch was stricken from the document. Instead of withdrawing my Answer, it stated: “Respondent submitted an Answer.” A statement that Lian stayed away from our home because of Sheila was stricken. My monthly income was put at $2,131, rather than $1,400 more. The $135,000 figure was made palatable to me by stating “ The Petitioner estimates the amount of marital assets whether borrowed, stolen, or lost from the marital property ... to the Gormans ... to be approximately $135,000.00.” Her estimate did not mean the number was correct. Likewise, the $8,000 and $15,000 figures indicating Lian's work contributions to two properties were said to be her estimates.

Ms. Wing Sun had listed all our debts (totaling $350,255) after this header, “The following are debts occurred prior to marriage or solely by Mr. McGaughey, unless specifically stated otherwise:” That was replaced by a statement: “ The respondent’s total indebtedness at the time of marriage in January 2000 was approximately $18,000. The petitioner then had no debt.” Also, I agreed to pay a flat $400 to avoid responsibility for Lian's present and future medical bills. Under waiver of counsel, we removed the booby-trap sentence: “Petitioner can proceed by default without any further notice to me.”

The main sticking point in our negotiations with Bob Carney and Diane Nelson had been a statement relating to manner of payment. The document said: “that respondent gives petitioner (a) one-time settlement amount of $25,000.00 in a personal check payable to Lian McGaughey given to her on the date when the signed agreement is presented to the court and (b) a personal check for $2,000.00 payable to Da Zhe when the divorce becomes final. Petitioner shall not cash her check before the divorce becomes final.” It had previously said that I would pay $25,000 by giving Lian immediately a personal check for $6,000, giving Diane Nelson a cashier’s check for $9,000 to be cashed when the divorce became final, and giving Lian a $10,000 personal check once the divorce was final. Lian did not trust me to pay the last sum of money so we changed the agreement to give Lian a check for the entire amount to hold until the divorce was final.

I believed that we had cleaned most of the junk out of the agreement. Lian and I were both satisfied. What could stand in the way of a prompt settlement now? Well, just one thing. Ms. Wing Sun in an email dated December 21st wanted to know: “Who is the identity of this individual that helped you draft the agreement?  Are you sure this person has any knowledge of the terms relevancy or applicable laws for divorce?” In other words, she was insinuating that Bob Carney was practicing law without a license. His role was actually more like that of a mediator except that, unlike Dan Simon, he did not charge for his services. We did buy him a cup of coffee.

Before receiving an answer to her question about Carney, Lian's attorney submitted another agreement, with many of her old provisions, on December 23rd. I was amused by the way she handled her two “booby traps”. She wrote: “Respondent has agreed to withdraw his Answer in its entirety as it conflicts with this Order.” Under “waiver of counsel”, this language was offered: “Normally the language states that the petitioner can proceed without further notice to the respondent, but respondent insisted this affects a major legal right, thus it is removed.”

“Normally” was an exaggeration since I knew that in a book titled “How to File for Divorce in Minnesota” a sample “Waiver of Counsel” form was included without that statement. When I told Ms. Wing Sun about my research, she sniffed: “You are asking me to argue why book that you can purchase at Barnes and Noble for about $40.00, probably $5.00 off at half.com takes precedence over what I am doing.” I replied: “No, I take the book of forms to be a better guide to Waiver of Counsel than your prescriptions.  It is less biased.” Actually, I had bought the paperback book for less than $10 at Amazon.com.

Lian and I flew to Washington, D.C. to spend Christmas with each other and with Celia at Celia’s town house in Herndon, Virginia. I emailed Wing Sun on the morning of December 24th: “Lian and I will be going to Washington D.C. today for Christmas.  Off hand, I would say it does not appear that your proposed agreement is in accordance with the agreement I sent you.” She replied: “I think you have unreasonable expectations.  When a group of people sit down, who have no formal legal training, then ask the attorney to sign off on it, it will almost always have changes.  Again, I feel you are purposefully wasting time when it is clear the result of what you wanted has not been touched.” Also, she asked: “Have you discussed the reason behind your rather bizarre payment schedule with my client?”

Lian and I walked around the Capitol Mall on Christmas Day, had lunch at a Chinese restaurant, and then took a tour bus around Washington, D.C. We also discussed the settlement agreement with Celia. Lian was now complaining that changing the manner of payment to a single check for $25,000 which would be held by her until the divorce became final violated the terms of our original agreement. Yes, it did but the change had been made at her insistence.

Once back in Minneapolis, I received an email from Wing Sun asking me to track all my changes made in the new document using a tracking function in MS Word. She asked me if I had yet found an attorney. (I had not looked for one.) She said she was confused by my Christmas Eve email message which questioned assigning the debt to me as non-marital debt. I replied: “My wife is expecting that you will draft an agreement which incorporates the points of agreement which she and I have reached.  We have now been at this for over a month.  My wife urgently needs to conclude the divorce soon so she can get treatment in China before her cancer worsens.”

For several weeks now, I had a standing offer to give Lian $6,000 in cash immediately so she could go to China for prompt medical treatment. She did not take me up on this offer.

With regard to the delay in reaching a settlement, Ms. Wing Sun wrote in an email dated January 2, 2012: “Please do not place the burden of the slow settlement negotiation process on me.  This is clearly not my fault.” I tried to explain how we had determined the payment schedule. Wing Sun replied: “My client did not agree to those terms and made it clear to you.  I want to assist my client to settle her case, however, I do not appreciate being lied to.” Regarding the hiring of an attorney, she wrote: “Am I to read that you cannot find an attorney because the settlement agreement that you have changed by yourself is not agreeable to my client?  Whether I draft a document does not prohibit you from hiring anyone.  Please stop playing games with me Mr. McGaughey . . . speculation, innuendo, and conjecture will not help this case.”

We were now heading into the third month of negotiations over producing a settlement document. On the following day, January 3, 2012, I dropped a bomb on the other side in an email which read, in part: “Today was the day when we were to settle.  I was not sure I would have all the money by then but I do. However, I had several rancorous conversations with Lian yesterday and today have received an insulting email from her attorney, Ms. Wing-Sze Wong Sun. So things do not seem to be going well ... Enough of this.  Now is the time to settle. If Lian wants her attorney to draft the agreement, I would ask that she do so soon.  If she refuses to draft a clean agreement, then I suggest that Lian get rid of the attorney and sign an agreement herself.  I will give Lian and her attorney two more days to get this done.  After January 5th, I will withdraw my proposal and we will be headed for court.”

A final settlement proposal by Ms. Wing Sun arrived by email on January 4th, containing the characterization of our debt as my non-marital debt and other questionable provisions. I could tell that something was amiss when I read in the opening paragraph: “ Respondent also has as his “attorney,” reporter, Bob Carney, draft and review the settlement agreement. Petitioner is represented by Counsel. Respondent is representing himself as Attorney Pro Se. Respondent would like to be referred to as “attorney pro se.” Any reference to attorney or attorney pro se in quotations does not delineate that these individuals have an attorney’s license.” Also, at the end of this document there was a new highlighted “required notice” about paying support, including child support, which had little to do with our case.

Bob Carney never pretended to be an attorney; he was simply trying to help us as a friend to find consensus on points in the settlement document. Lian's attorney was now trying to go after him. I considered this to be little more than “legal churning”.

In Ms. Ye’s latest settlement proposal, not only did the findings of fact characterize all the debt as my non-marital debt with the exception of 15 percent of the NationStar mortgage covering the duplex, but also characterized all the stocks that I owned at the time of the marriage, and still owned, as marital assets. The total debt was said to be $185,000 even though a total given a paragraph earlier indicated that the total debt exceeded $350,000. It was mystifying. All the old mistakes remained in this document. I could not detect any improvements.

 

18. Ms. Wing Sun’s motion for temporary relief

Lian had hinted to me that Ms. Wing Sun had a trick up her sleeve to make me settle on their terms. It came in a knock on the door to our home around 9:00 p.m. on Thursday, January 5th. The attorney’s husband,Hang Sun, was serving me with a new set of papers. It took me awhile to realize what was happening: The case was entering a new phase. Lian's attorney was petitioning the court for me to pay temporary relief to Lian . I took a few minutes to browse through the packet of materials.

For a time I indulged comfortable old habits, not realizing the implications of the papers that had been served. Ms. Wing Sun told me in an email dated January 7, 2012, that a new settlement proposal was in the works. It arrived on January 11th, replete with red tabs indicating where changes had been made. Lian urged me to respond positively. (See Petitioner's Motion for Temporary Relief, Document 13.)

Information about Sheila’s alleged pregnancy and dissipation of assets was still in this new document. Lian's living expenses were estimated to be $1,510 per month. A new paragraph calculated the amount of money that had been lost due to Sheila’s nonpayment of rent. (Sheila had already moved out at Lian's insistence.) Not only did I need to pay spousal maintenance on the first of the month for a year, I needed also to send her the check’s tracking information to make sure it was mailed on time. Now all the $350,255 in debt was non-marital while all my stocks remained marital, giving Lian a 50 percent claim to this property acquired before the marriage.

A new feature was attorney’s fees. Ms. Wing Sun added this paragraph: “Respondent does not have an attorney for the negotiating process, however, significantly contributed to the increase of Petitioner’s legal fees through various acts. Respondent has agreed to contribute nine hundred and ninety nine dollars ($999.00) towards the total cost of Petitioner’s attorney’s fees and costs. Respondent agrees to pay Petitioner said amount immediately with a cashier’s check upon the signing of this agreement to dismiss the motion hearing.” This was news to me. We had never discussed such a thing.

A few days later, another proposal arrived containing this provision: “Respondent shall not harass or subject or encourage any third parties, including Sheila Gorman and her family, to harass Petitioner.” These new accusations might have kept me busy for another month. As I said, Sheila was no longer living in the downstairs unit of our house. She had signed a letter two months earlier agreeing to move out until Lian and I settled out divorce. Before that, Sheila told me that Lian had tried to force her way into the back door of her living quarters, presumably to pick a fight. So this proposed order forbidding Sheila to harass Lian represented the latest round of lies. Where would it end?

Fortunately, about this time, as I sat on my couch, I decided to take another look at the envelope from The Wing Sun law firm delivered a week earlier. This was a serious matter. What galvanized me was a statement at the end of the “Petitioner’s Notice of Motion and Motion”: “ALL RESPONSIVE PLEADINGS SHALL BE SERVED AND MAILED TO OR FILED WITH THE COURT ADMINISTRATOR NO LATER THAN FIVE (5) DAYS PRIOR TO THE SCHEDULED HEARING. THE COURT MAY, IN ITS DISCRETION, DISREGARD ANY RESPONSIVE PLEADINGS SERVED OR FILED WITH THE COURT ADMINISTRATOR LESS THAN FIVE (5) DAYS PRIOR TO SUCH HEARING IN RULING ON THE MOTION OR MATTER IN QUESTION.”

Then, what really focused my attention was this statement: “All new issues must be served and mailed with the court administrator no later than ten (10) days before the hearing or mailed to the other party at least thirteen days (13) before the hearing.” Thirteen days? The hearing was January 24th. It was now January 11th, Could I possibly file a response in time?

I was horrified to read the terms of the motion. Lian's attorney was proposing that I pay Lian $2,100 per month to support her during the period until the trial in May. She also wanted the court to order that I pay all her medical Bills. Lian would have exclusive (and free) use of one of my apartment units and exclusive use of the car. I could no longer harass Lian or have Sheila do it. I could not dissipate assets. I needed to insist that all nonpaying tenants pay the rent. I needed to pay Lian $999.00 toward her attorney’s fees and also pay for attorney’s fees and expenses related to filing this motion.

Part of the packet included a nine-page “Affidavit of Lian McGaughey in Support of Petitioner’s Motion”. This was especially hard to accept for it included a large number of false statements that I needed to address lest the court accept them as a basis for accepting Lian's motion. It was filled with innuendos such as Sheila being my “mistress” or “paramour” and our having sex while she was undergoing chemotherapy in China. Many of the statements were flatly untrue. For instance:

1. The affidavit said: “I hear William and Sheila talk to each other and they say things like they should find ways to kick me out of the country.” In fact, Sheila and Lian have never been in the same room together. Sheila and I have never discussed deporting Lian , which would be difficult to carry out because she is a U.S. citizen.

2. The affidavit said that Lian had contributed $13,100.00 toward increasing the value of my non-marital properties at 17xx Glenwood and 1708 Glenwood Avenues. Lian seldom set foot in my rental properties except for her own living quarters.

3. The affidavit said, regarding the “small apartment” which Lian sold in 2010: “William may claim he gave me cash, one time, to fix up the property, but this is not true, because his money was used to cover his dental expenses and sightseeing in China.” Lian spent about $1,000 remodeling this apartment a year or so before it was sold. She got the money from me.

4. The affidavit said: “William keeps busy by engaging in political campaigns and debates and spent a little bit of money campaigning, but I know William would not become a politician with a lot of debt, especially running for Lieutenant Governor of Minnesota in 2010.” My only expense in the Lieutenant Governor campaign was the $300 filing fee. The web site was free since it was added to another site. Lian's statement falsely implied that I had other campaign expenses.

5. The affidavit said: “I worked at Target for a few years, but I stopped working because I hurt my leg. I wanted to get medical care here, but William did not want to pay for it, therefore, I went back to China and received medical care and had to quit my job.” Lian did receive medical care for her leg injury in Minneapolis. Workers Compensation, provided by Target, paid for it. The injury was treated primarily in the United States. It was not serious enough that Lian could not have returned to work at Target but she chose to end her employment then.

6. The affidavit said: “Prior to our marriage, William has worked full time as a cost accountant, accountant in the budget section, and as a controller, who earned $110,000.00 annually.” My top salary, when I left my cost-accounting position at the public transit agency, was around $35,000 per year. I did work as a controller for six months in 1980 but earned less than $25,000 on an annual basis in that position.

7. The affidavit said: “Income: William receives at least approximately $40,000.00, net, annually ... (including) ... 4. $24,000 from the rental properties.” This was a new version of the claim, which I had often disputed in the settlement negotiations, that I was earning a profit of $1,400 per month from the rental properties. The earnings carried forward from Schedule E on our 2010 federal income-tax return was a negative $13,396.95. Admittedly, part of that loss was due to depreciation taken in 2010.

8. The affidavit said: “I don’t believe that William’s expenses are all legitimate. The 2008 tax return is lower than what he told he receives in rent from his relator. (sic) (Exh. 5,6) I think my figures are more accurate.” Our annual income-tax return represented my best effort to calculate earnings from the rental-property business. The man who provided the information in Exhibits 5 and 6 was not my realtor but someone who approached me in 2007 about selling the apartment, Philip Reesnes of Michel Commercial Real Estate. I did not contract for his services. Lian did not know what this document represented when she found it among my papers.

9. The affidavit included this innuendo: “Secured debt 1. $84,000.00. William took out a line of credit while divorce conversations were taking place in December 10, 2010.” Serious divorce conversations had not yet begun. The $84,000 loan was a mortgage with US Bank on the house at 17xx Glenwood Avenue used primarily to refinance earlier mortgage debt.

10. The affidavit said after noting how I had dissipated assets: “William is very prideful and even ran for office in 2010 for Lieutenant Governor, because he thinks he can do a better job at balancing the budget and getting out state out of debt.” I ran for Lieutenant Governor because a friend, Bob Carney, was running for Governor and needed a running mate. I was doing him a personal favor. The campaign’s policy proposals were largely left up to Carney.

11. The affidavit stated: “William ... refuses to fix what various housing authorities require. If he does this long enough, they will condemn his property ..” If I refused to respond to work orders issued by city housing inspectors, I would face increasingly stiff fines. I never ignore work orders. However, the city did issue a condemnation notice for our home at 17xx Glenwood Avenue in March 2011 while I was under a no-contact order related to my arrest for domestic abuse. Alan Morrison did the work required to get the order lifted. Lian , who was then living in that house, did little or no work to deal with the threat.

12. The affidavit said: “William has given Sheila and her family a lot of money, including but not limited to: ... In May 2011, William paid for Sheila’s entire family to see her son’s graduation worth $2,500.00 iv. William paid for Sheila’s trips to Haiti, twice, worth about $1300.00 in total. v. I know that William and Sheila have money tied up to help operate her store in Haiti. About $200,000.00 is tied into it, but ... it is not reported on our tax returns.” I did allow Sheila to purchase airline tickets on Priceline.com for herself and daughter to attend son Chris’ graduation from Marine Corps boot camp in San Diego in February 2011 upon the assurance that Chris would promptly repay me from his savings. She ordered an extra ticket and later gave a reason why Chris did not repay me. I was out $1,360 for those tickets. iv. Sheila went to Haiti once, not twice. v. Sheila does not own or operate a store in Haiti. I have no idea where the $200,000 figure comes from. No such money is report on our tax returns because the store does not exist and I have no interest in any such business.

13. The affidavit said: “I will also ask William to pay for my attorney’s fees ... William makes statements, which are untrue and challenges my attorney for the simplest things. For instance, he demands to be referred to as attorney pro se, when he does not hold an attorney license ... William represents himself and contacts my attorney several times and argues over things he does not understand.” Yes, I did occasionally refer to myself in documents as “attorney pro se” which I thought was a proper term for an unlicensed person representing himself in court. Ms. Wing Sun, not I, made an issue of this. I was not continually contacting and arguing with Lian's attorney but customarily responding to email which she had previously sent me. In fact, Lian sometimes begged me not to answer her attorney’s email because it would run up her bill.

14. The first two documents in her exhibits were a copy of a website page related to Bob Carney’s and my campaign and my resume, both apropos of nothing related to the divorce case. Then there is a report from my supposed realtor, who was really a salesman making a proposal that was not accepted. Another exhibit was a photocopy of my borrowed check registers. In her list of exhibits, Ms. Wing Sun had written hearts next to entries which she thought represented money given to Sheila Gorman.

I was in a near panic. My wife was asking for $2,100 (including a $750 housing allowance) in monthly living expenses until trial when she was already living rent-free in a home whose expenses I paid. I was paying for most of her other living expenses as well and was then letting her charge up to $1,000 per month on my credit card. In addition, as a person without health insurance in the United States, she was asking for me to pay all her medical bills. She was asking me to pay her attorney bills. All this came at a time when, living on a fixed income, I discovered that my cash and credit resources were becoming severely squeezed. Worst of all, I had only a day or two to respond to these various demands if I wanted to bring in new issues. Otherwise, the court might grant them.

 

19. I do not back down

Not knowing the court rules, I quickly drafted a document that told the story of my attempt to settle the divorce amicably with my wife. The point was to suggest that it was not my fault that we had been unable to reach an agreement; attorney Wing Sun had contributed significantly to the delay.

I also announced that I intended to call Alan Morrison as a witness at the hearing on January 24th. I offered a brief explanation of my relationship with Sheila Gorman and explained why Lian and I had sought medical care in China rather than the United States. I explained why it was unjust to grant Lian the requested temporary relief at my expense. Her claims to have done work to improve my properties were hugely exaggerated. Finally, I pointed out that in the days when I needed to prepare this document Lian had sat at my computer for long periods of time and prevented me from working there. (She had seldom visited my computer before.) I had to work through the night to complete the submission which included a list of 23 exhibits. (See Respondent's Reply to Petitioner's Application for Temporary Relief, Document 14.)

I completed the document, titled “Response to Petitioner’s Application for Temporary Relief without Children - New Issues”, on Thursday, January 12th, but was unable to schedule time with a paralegal at the self-help desk in the Family Justice Center to review the documents on that day. Alan served these papers on attorney Wing Sun on Thursday afternoon in order to meet the ten-day deadline required for “new issues” submissions served in person.

Unfortunately, in my ignorance of court documents I had forgotten to include a signature page. On the following day, Friday, I conferred briefly with a paralegal, Mary Delli, who advised me on how to prepare the documents. I signed a document titled “Affidavit in response to petitioner’s application for temporary relief without children - new issues” and Delli notarized the signature. Alan served both the subpoena and my responsive motions and exhibits on Wing Sun later in the day.

I also applied for a subpoena of Lian's passports. This was Alan’s idea. He thought that one of my most compelling arguments in divorce court would be that Lian was seldom at our Minneapolis home during the marriage. If the visa stamps in the passport showed that Lian was in China for much of the time, it would undermine her claim to have made a significant contribution to the marriage.

Unfortunately, my narrative of past events disclosed the details of settlement negotiations, which I learned the court would not allow. The lack of a signature page on certain of my documents gave an opening for the other attorney to cite lack of timely service for the “new issues” motions submitted after January 14th. Ms. Wing Sun sent me an email at 5:34 p.m. on Friday, January 13th, with attached zip files which I could not open then. I learned that in a letter to the court she was objecting to every exhibit in my submission on the grounds that it was “irrelevant”, “prejudicial”, or “hearsay”. Many of the sentences in my exhibit documents were stricken with a black felt pen.

Monday, January 16th, was the Martin Luther King national holiday when the courts were closed. I needed to return to the self-help desk at the Family Justice Center to prepare a revised package of materials. On Tuesday morning, Alan and I again conferred with Mary Delli. I provided an answer to each of the major points made in Lian's application for temporary relief and also a response to the factual allegations included in her affidavit. Delli prepared a “second response” list of documents for the hearing and had me sign this. She again notarized my signature. Since an earlier set of documents had gone out without a signature, this submission would have to do. She thought if this set of documents was served promptly and personally on the other attorney, the court might accept their timely service.

I also prepared a set of motions to accompany my response including a request that Ms. Wing Sun give me a list of all the documents taken from my office without permission, that she provide documents related to the sale of Lian's Beijing apartment in 2010, that Lian give me copies of the visa pages in her Chinese and U.S. passports, that Lian disclose her bank accounts and use of Celia’s credit card in Virginia, and that Ms. Wing Sun reimburse me $2,133.50 for my direct costs related to the mediation session on October 17, 2011 and reimburse Lian for all the attorney’s fees billed to her after November 1, 2011, minus those for five hours of work. Finally, I asked the court to consider moving up the date of the trial.

I found the self-help desk at the Family Justice Center to be quite helpful. Not only had Mary Delli helped me to put my papers in good order, I was able to consult briefly with a volunteer attorney about some of my questions and concerns. What exposure did I have for Lian's medical and legal bills? The attorney thought I would not be held responsible for the medical bills if we were going through a divorce. It would also be hard for Ms. Wing Sun to prove that I was filing frivolous motions or otherwise setting myself up to pay part of her attorney’s fees. I also asked about the procedure to remove referee Cochrane from the case because of bias. The attorney said that, while it could be done, this was quite difficult. He advised me not to go that route.

A more significant concern was whether I could be ordered to pay spousal maintenance. First, the attorney advised me to cut Lian off immediately from use of my credit card. I needed to stop giving her money until the divorce was settled. My defense against paying spousal maintenance should be: (1) Lian has sufficient resources to support herself through property owned in China. After all, she gave her daughter more than $60,000. (2) I do not have the ability to pay maintenance without going further into debt. (3) Lian already has adequate support through access to free housing in the fourplex, free food, and use of my credit card. (4) She has the ability to acquire income and health-care assistance through government programs. (5) I have no ability to acquire reasonably priced health insurance for Lian .

In the meanwhile, referee Cochrane had requested a meeting with both parties in a telephone conference. This was set for 10:00 a.m. on Wednesday, January 18, 2012. I took this call from the court in my bedroom. Classified as a “motion hearing”, this conference was an attempt to see where the parties were in their negotiations and prepare for the hearing on the petitioner’s motion for temporary relief scheduled for Tuesday, January 24th.

Ms. Wing Sun had been insisting in the emails that I come to her office to discuss a settlement. I did not see what could be accomplished in such a meeting that could not be accomplished in an exchange of emails. Furthermore, Lian had once hinted that her attorney’s office might be bugged. I knew nothing of that. Nevertheless, to show my good-faith effort to settle the divorce, I agreed to a face-to-face meeting with Lian and her attorney at The Wing Sun law firm at 5:30 p.m. on the following day, January 19th.

Wing Sun had frequently complained of dealing with someone who was not an attorney. Referee Cochrane said she would try to find me an “unbundled” attorney to assist me at the hearing on temporary relief. It later turned out that this could not be arranged in time. I had the impression that Cochrane was pressing us to settle. She asked both parties to prepare a “balance sheet”, which consisted of a list of our respective assets and liabilities. The parties should also indicate to each other what they wanted out of the settlement. I thought this meeting had been useful.

On the following day, Friday, January 19th, Lian and I drove together to her lawyer’s office in Golden Valley, just off highway I-394. Diane Nelson was there when we arrived.Hang Sun, the attorney’s husband, was there as a translator. (Evidently, Lian and Wing-Sze spoke different dialects of Chinese so they could not communicate with each other. I thought they might try having a conversation in English.) As we entered the conference room of an office serving several attorneys, Ms. Wing Sun said that listening devices were not allowed in that room. She assured me that she did not have such devices planted there herself.

The meeting itself, which took two hours, was not particularly useful. Mainly, we reviewed one of Wing Sun’s old settlement proposals line by line. I can not remember if this discussion resulted in any change of positions. What I do remember is that Wing Sun justified her failure to stick with our original points of agreement in the months of negotiating a settlement document by saying that she was, of course, representing her client. If I wanted a document that reflected both our interests, I would have to pay part of her attorney fees. That was not my understanding when Lian asked me to send my document to her attorney to review with respect to legal form. I did not expect Wing Sun to be slipping new provisions favorable to her client into the agreements.

The referee had asked both sides to prepare balance sheets. I had prepared mine. For the first time, I realized that I was paying more for interest on the debt that we owed than the money deposited as retirement income each month in my checking account. I asked Wing Sun for Lian's balance sheet. She said this was not a settlement conference; their balance sheet would be ready for the meeting on January 24th. I was therefore unclear what we were doing at this meeting. Were we preparing for the hearing on temporary relief or for a settlement, or for both perhaps? I now understood that it was forbidden to disclose specific settlement offers to the court before a final agreement was reached.

At the meeting in Ms. Wing Sun’s office, I reminded the other party that I had withdrawn my previous settlement offer, which was the basis of our negotiations through November and December, after January 5th of this year. (This was $27,500 in cash plus $400 per month in maintenance for one Year.) I would now make a new offer: $25,000 minus the $9,984.05 that I now owed on my Citibusiness credit card. Some of it was due to Lian's expenditures. According to Lian , Diane Nelson left the meeting early in disgust over my changed mind.

Evidently, Ms. Wing Sun was also confused about what the referee wanted us to do. She emailed me on Friday, January 20th, that “we should clarify to the court that we don't know what to prepare for this Tuesday, whether it's a motion hearing or settlement conference”, adding that “if you do not want to settle, we will have to mutually exchange documents, i.e., conduct formal discovery.” I said that I did wish to settle but did not have much money left to give to Lian at this point.

Ms. Wing Sun sent me twelve other emails on Saturday, January 21st, and two more on Sunday, January 22nd, about whether my documents had been properly signed and served and other matters. I suggested that if Lian wanted to settle, she should make me an offer. Wing Sun wrote: “My client has made her offer to you at the settlement conference and when you decreased your offer she responded accordingly.” I did not recall receiving any serious offers from her.

Monday, January 23rd, was the day before the scheduled hearing on temporary maintenance with referee Cochrane. I was not sure what to expect. The referee’s law clerk, Azure Schermerhorn-Snyder, called me on the telephone in the late morning to remind me of the meeting which would begin at 3:00 p.m. We would each have half an hour to make our respective cases. I sat in my office reviewing my papers and typing up a statement that Alan might make at the hearing or submit as a notarized document. When Lian wanted to use my computer to look at Chinese-language websites, I moved to the sofa in my bedroom.

 

20. my second arrest for domestic assault

Perhaps because I had reduced the money in my settlement offer, Lian was in a belligerent mood. During the morning, she hit me in the shoulder and tried to push me out of bed. She threw the bedroom slippers and the plastic television remote at me. Besides being the day before the court hearing, it was also the first day of the Chinese New Year. Lian (and other Chinese) are emotional about this holiday.

While she was in her own living room across the hall, I asked Lian how she wanted to celebrate Chinese New Year. She replied: “Give me money.” I asked how much I should give. She first said $1,800 and then reduced the amount to $600. I said I did not have that much money to give her. She said I had plenty of money to give Sheila.

I was sitting on the sofa reviewing papers for the next day’s hearing when, shortly after 2:00 p.m., Lian came into my bedroom from the office, sat on the edge of the bed, and again asked for money. I again declined the request. Then she reached over to grab the divorce-related papers that were on my lap. I managed to keep them in my possession. Then, against all previous practice, I decided to call 911 and did not hang up before the operator spoke. I used the land-line phone on a table beside the sofa to place the call. Lian's violent behavior had gone on long enough.

I told the 911 operator that my wife was becoming violent - not to an extreme degree - but I was worried it might become worse. At that point, Lian grabbed the cordless phone on the wall above the table and interrupted the conversation. “No, no, not true. He’s a liar, fighting me. Come here, come here. He doesn’t want to give me money because today is Chinese New Year," she said to the operator. Lian abruptly hung up and told me she was going to visit her attorney. She then left the house.

I explained to the 911 operator that Lian had me arrested for domestic assault a year earlier and “she pulls this all the time.” The operator said officers were on the way. When they arrived, Lian was nowhere to be seen. I said the disturbance had died down and told the officers there was no reason to make a report. They left without further activity.

While Lian was gone, I had another hour or so to work on preparations for the hearing on temporary relief. Then I went outside to shovel the sidewalk. As I was crossing the street to shovel the pavement in front of the duplex, a police squad car pulled up. The officer called my name. This officer explained that my wife had made a complaint of assault. He had to arrest me. The officer seemed to indicate that he realized the charges might be false but he had little discretion in this matter. I was driven downtown and booked in the county jail. It was my second such experience in less than a year.

When I later received the police report and supplements, I read the statement from officer Jeremiah Kocher. It said: “On 1/23/2012, I was directed to the 4th Precinct lobby regarding a domestic assault victim .. V/Lian also had an Asian female with her who stated she was her attorney. V/Lian attorney called a language line that spoke Mandarin Chinese ... V/Lian said she was looking for the cell phone so V/Lian could call her daughter. While V/Lian was sifting through papers in AP/William’s room V/Lian stated that AP/William struck her in the face with a closed fist on her lips. I did not observe any swelling, cuts, or redness on the face of V/Lian or on her lips. After V/Lian was struck she stated she left the house and came to the precinct. It should also be noted that V/Lian stated police were dispatched to this address during the day but it was not clear as to why. V/Lian requested that officer drive her home so she could retrieve some property. When officers arrived at 17xx Glenwood V/Lian pointed to a white male who was shoveling the sidewalk and identified him as her husband ... AP/William was placed under arrest for domestic assault.”

I was driven downtown to the Hennepin County jail and booked around 5:30 p.m. There I remained for the next 24 hours. On the morning of January 24th, Judge Philip Carruthers set bail at $2,400. Mercifully, his no-contact order allowed me to stay in unit #3 at 17xx Glenwood Avenue while Lian stayed in unit #4. At first, I was so dispirited that I thought I would refuse release and simply stay in jail. Then, it dawned on me that I had a divorce hearing later in the day. I talked with Alan and then Sheila on the telephone who told me they were working on raising bail to get me released. The hearing was to start at 3:00 p.m. As the afternoon began, I was placed in solitary confinement for several hours before being released on bail in the late afternoon. The time of the hearing was past.

Alan later told me that he had gone to the 3 o'clock hearing in the Family Justice Center. At first, there was discussion about postponing it because I could not attend. However, attorney Wing Sun argued that she had gone to great expense in hiring interpreters for the hearing and postponement was unfair. Therefore, they held the hearing in my absence. Referee Cochrane would not allow Alan to sit in the chambers during the hearing. However, she gave him a stack of papers representing Wing Sun’s latest set of motions and said she would give me two days to respond.

Alan was not sure whether I should respond to the documents which the referee had given him or to something else which the court would send me later. Luckily, for the rest of the day on January 24th and on January 25th, I worked to respond to the document that Alan was given. On the morning of January 26th, Alan and I decided to go to the Family Justice Center to ask whether I would be receiving other documents. The procedure is to call the referee’s clerk from the telephone in the downstairs lobby. Azure Schermerhorn-Snyder, the clerk, told us to come up to the fifth floor and wait in the lobby.

I wanted only to ask whether I should respond to the documents given Alan at the hearing on January 24th or I would be receiving another set of documents from the court. It was a simple question which I thought could be answered with a telephone call or short visit to the court office. To my surprise, Alan and I were ushered into the court room where referee Cochrane had just finished presiding over another case. Cochrane put attorney Wing Sun on the telephone. We had a half hour discussion about several topics.

It turned out that the documents given to Alan were the ones to which I needed to respond. However, these documents did not tell me what had transpired at the hearing itself. To know that, I needed order a transcript of the hearing. This now needed to be done on a rush basis. It would be quite “spendy”, though. Since the 48-hour deadline for responding was at 4:30 p.m. the same day, the whole conversation struck me as surrealistic. Finally I told the referee that I was not interested in ordering a transcript. I said I would do my best to produce and deliver my response in time. No doubt Ms. Wing Sun and referee Cochrane thought I was blowing smoke.

Ms. Wing Sun made more of her usual accusations during the meeting with referee Cochrane. For instance, she claimed that I had sent her phony documents produced by cutting and pasting pieces of other documents; she could see crease marks in the papers given to her. This was a pure fabrication of hers.

The other topic which I remember clearly from this conference was my arrest for domestic assault. I felt that I needed to explain what happened in the incident that had prevented me from attending the hearing on January 24th. In my mind, the fact that referee Cochrane had not postponed the hearing indicated that she gave some credence to the charges leveled against me. It was important for me to state that I was innocent; or, at least, she should know that the question of my guilt was in dispute. However, referee Cochrane cut me off short. The issue of my arrest and incarceration was not to be discussed. ( However, I will discuss it here.)

 

21. A final flurry of documents

I had three to four hours left to prepare and serve my response in the 48-hour time frame allowed by the court. Fortunately, most of the work had been done the previous day. I therefore completed my work and Alan served the papers on the Wing Sun law office before 4:30 p.m. Really, it was not so important to know what had been said at the hearing two days earlier. I needed to complete the paperwork in time.

My “Answer to Petitioner’s Motion” purported to respond to motions presented by attorney Wing Sun at the hearing on January 24th. The responsive motions stated:

“ANSWER TO MOTION

The respondent, William McGaughey, moves the court for an order as follows:

1. Deny Petitioner’s motion to deny Respondent’s motion in its entirety.
2. Deny Petitioner’s motion that Respondent pay temporary maintenance.
3. Deny Petitioner’s motion that the Respondent pay any attorney fees charged to the Petitioner.
4. Deny Petitioner’s motion that the Respondent pay Petitioner’s medical Bills incurred in the United States after Petitioner filed for divorce.
5. Deny Petitioner’s allegations that Respondent’s service of documents related to the motion for temporary maintenance was untimely.
6. Disregard all testimony offering new arguments and evidence presented at the above-referenced hearing on January 24, 2012, while the Respondent was in jail or included in the notice of motion delivered to Respondent after the hearing.
7. Require the petitioner to comply with the subpoena of her U.S. passport to photocopy certain pages.
8. Require the petitioner to present a balance sheet disclosing both her assets and liabilities as the respondent did at the request of referee Cochrane.

Respondent bases his motion on documents presented by Petitioner and Respondent in reference to the motions presented by the Petitioner for Temporary Maintenance, the police report of the Respondent’s arrest for domestic abuse on January 23, 2012, and other pertinent exhibits.”

Even though referee Cochrane had asked me not to discuss my arrest for domestic assault in the court chambers, I did not interpret this to mean that the subject could not be brought up in documents filed with the court. In fact, four of my eight exhibits pertained to that incident. Lest the referee make any assumptions about my arrest, I wanted to give a complete account of events leading up to the arrest, from my point of view. Though somewhat provocative, I felt that such evidence had to be given. Would referee Cochrane have failed to postpone the hearing if, for instance, I had suffered a stroke and lay unconscious in the hospital? No, de facto, she had accepted the charges brought against me.

I divided my response to attorney Wing Sun’s motions for temporary relief into two parts: (1) her request that I pay a part of my wife’s attorney fees and (2) all other issues. The first set of motions, prepared on January 4th, had asked me to pay $999.00 in attorney fees. Now this had ballooned to more than $8,000.00, of which $7,125.00 was associated with the motion for temporary relief alone. The idea was that, because I was not an attorney, I had created extra work for Ms. Wing Sun in presenting numerous frivolous or ill-crafted motions.

My defense lay in reciting for the court the entire sequence of obstructionist tactics employed by Ms. Wing Sun since she took the case in March, 2011. I argued that the motion for temporary relief was quite unnecessary since my wife’s financial needs were adequately provided at the time of the motion. It was a harassment tactic, culminating in the false charges of assault made by my wife in the presence of her attorney. Also, my finances were such that I could not afford the extra burden of paying my wife’s attorney bills.

Some of the other issues addressed in my response were, first, the arrest for domestic assault which, as previously indicated, was covered at some length. Then I addressed the question of untimely service, pointing out that the referee had waived the requirement that Wing Sun give me five days of advance notice on her documents presented at the January 24th hearing. I pointed out that I had not agreed to pay Lian's U.S. medical bills and had not signed any agreements to that effect. I explained why Lian had sought medical care in China. I had also offered to pay her $6,000 before reaching a divorce settlement to take care of medical emergencies there.

With respect to the $2,100 per month requested in spousal maintenance, I used some of the arguments that the volunteer attorney at the self-help desk had listed for me. I reviewed at some length my own financial situation, providing a recent Internet summary of my assets and debts with US Bank. Perhaps Lian had money left from the sale of her Beijing small apartment in 2010? I had provided the other side with a balance sheet, as requested by Cochrane in the telephone conference, but not yet received Lian's balance sheet in return. I offered to put Sheila Gorman on the witness stand if that would help to answer questions about our relationship and the alleged dissipation of assets. Finally, I pointed out factual inaccuracies in Lian's affidavit to support her motion for temporary maintenance. This was the substance of my initial response to Wing Sun’s motion. More was to come, however.

On Monday, January 24th, at 1:00 p.m., as I was sitting in jail, Ms. Wing Sun sent me another set of documents by email in a file too blurry to read. To be honest, I am not sure if this was the same set of documents that referee Cochrane had given Alan at the January 24th hearing or an expanded version. Her submission presented, however, a sweeping condemnation of me and the mistakes I had made in recent weeks. Some of the documents were:

“MEMORANDUM OF LAW IN SUPPORT OF PETITIONER’S MOTION (Responding to Issues Raised by Respondent)”,

“AFFIDAVIT OF Wing-Sze Wong Sun IN SUPPORT OF PETITIONER’S MOTION FOR ATTORNEY’S FEES AND EXHIBITS”,

“AFFIDAVIT OF Lian McGaughey IN SUPPORT OF PETITIONER’S MOTION RESPONSE 1”, and

“PETITIONER’S RESPONSIVE EXHIBIT LIST”.

This document, delivered to me by email, was a 75-page submission. Wing Sun’s cover letter to the court, dated January 24th, included this sentence; “Due to yesterday's circumstances, which will be addressed today if the court would like an update, I will make oral arguments without bringing in any technology.” I took this to mean that they might have discussed my arrest at the January 24th hearing. Also, the discussion may not have been recorded.

One gains a sense of the emotional masterpiece which attorney Wing Sun was intending to create from the opening paragraph: “This is about a woman from China who fell in love with a man from the United States. She loved him, trusted him, and gave up her career for him. In return, in an attempt to save money, he sent her to China for needed medical treatment and begrudged any money saved on treatment in the United States. He dissipated family assets by spending substantial amounts on his mistress. After his assault on her, she filed for divorce. He continued to spend money on the mistress and treated her better than his wife. The wife’s only remaining asset is her premarital condo in China, but, here, she is reduced to living without a functioning kitchen and bathroom and is forced to share the husband’s living quarters, while being harassed by William and his mistress.”

Having previously discussed such allegations in Lian's court filings, I will not respond in detail to similar statements made in the document here. (For instance, Sheila could not have been harassing Lian if she had not lived in the house at 17xx Glenwood since the first week of November.) What may be useful now is to quote the section headings in Lian's argument:

I. “Respondent’s submission requesting new issues for a motion hearing are untimely and should be disregarded by the court.”
II. “Respondent’s submissions violated various rules of procedure, rules of evidence, and substantive law.”
III. “No basis for petitioner’s attorney to pay attorney’s fees and costs”
IV. “Petitioner’s attorney’s fees should be paid due to petitioner’s needs and respondent’s conduct which unnecessarily increases the cost of litigation.”
V. “Respondent’s subpoena and testificandum and subpoena duces tecum upon petitioner and petitioner’s documents should be ‘quashed’ as it is an abuse of discovery process.”

The highlight of this new submission was a spreadsheet showing the legal bills that Lian had incurred from December 24, 2011, through January 24, 2012. The hours listed purported to represent work which Ms. Wing Sun had done on the motion for temporary relief. Although my emailed copy was not entirely legible, I made out the fact that the spreadsheet had two categories of expenses: “needs based attorney’s fees” and “conduct based attorney’s fees”. Whose (mis)conduct? Mine, of course.

Ms. Wing Sun was claiming that $5,325 of the fees represented totally unnecessary work that she had to do because I had submitted improperly prepared or junk documents to her. An additional $776 was required for translation. That meant that my “misconduct” as a self-represented litigant was responsible for $6,101 of the $7,901 which Ms. Wing Sun had billed my wife or was planning to bill her. She was asking the court to require me to pay that portion of the bill.

Some of the new allegations in Wing Sun’s latest submission were the following: (1) that I had engaged in improper conduct by going to the Family Justice Center on January 26th to clarify which documents needed a response, (2) that my own response delivered on January raised the issue of my arrest for domestic assault when referee Cochrane had specifically asked me not to talk about this, (3) that I made untrue statements in my filings and, not being an attorney, “argued over things that he does not understand”. Wing Sun’s submission, supposedly prepared for the January 24th hearing, was mailed on the same date. I received it in the mail four days later. That was not exactly timely submission.

Because so many new arguments and information had been included in this latest set of documents, I felt obliged to set the record straight. I prepared a response to those documents - Wing Sun’s second (or perhaps third) submission related to the motion for temporary relief and served it on her at her Golden Valley office on January 31st. When I notified the court office that another set of papers was on the way, the clerk told me that referee Cochrane probably would not read them.

Even so, I addressed each of the other attorney’s complaints directly in my Answer to Wing-Sze W. Sun’s Affidavit; and, in my answer to my wife’s affidavit, I identified twenty different factual inaccuracies and gave my own version of the facts. For instance, the other side was still claiming that I made lots of money on the rental-property business. Their calculation included revenues from rent but omitted the related expenses.

I also formulated a proposed order for the court that involved denying the motion to pay temporary maintenance, denying my assumption of Lian's attorney’s fees, making Lian responsible for her own medical bills, and giving Lian exclusive use of unit #4 at 17xx Glenwood Avenue until the divorce was concluded. I also dropped my request for $2,000 from attorney Wing Sun for having acted in bad faith during the mediation session.

Ms. Wing Sun was not done, however. On January 28th, she issued yet another set of affidavits and exhibits related to her motion for temporary relief. The most interesting one for me was the spreadsheet of her own work and attorney’s fees, labelled Exhibit N. Now the total fees for work done on the motion for temporary relief had climbed to $9,150, of which $8,246 was totally unnecessary work brought on by my supposed ignorance and misconduct. I was amused to find that Ms. Wing Sun had classified $825 of the $900 in fees for preparation and participation in the “settlement conference” that had taken place in her office on January 19, 2012, at her urging, as “unnecessary work”. Additionally, $160 was charged for “totally unnecessary translation” - her husband’s services - at the same meeting. I recalled how Wing Sun had relentlessly urged me to come to her office for discussions and I, wanting to seem conciliatory, had finally done it. At $150 per hour, each such conference in the office would be a huge pay day for Ms. Wing Sun and, to a lesser extent, for her husband.

Things were obviously out of control The activities in January were directed at a motion for temporary relief, not the divorce settlement itself. Yet, Ms. Wing Sun and I had exchanged three rounds of documents that were growing more accusatory in nature with each volley. The quantity of paper consumed was enormous. The lies and accusations of lies would not cease. After my third production of documents on the last day of the month, I thought enough is enough. It was time to turn my attention to other aspects of my life. Ms. Wing Sun’s email to me on January 31st aptly summed up the situation: “Please stop sending numerous communications to the court.  This is increasing my client's attorney's fees, unnecessarily.”

In hindsight, I will admit that I made a number of mistakes in filing my papers. First, in an effort to give an accurate and thorough account of negotiations up to that point, I had disclosed specific settlement proposals. Court rules forbid such disclosure so the referee sealed a part of my testimony in an order issued on January 27th. I also think it was a mistake to have raised new issues, especially the argument that Ms. Wing Sun had not acted in good faith in first promoting and then dumping the FENE and in game-playing events at the settlement conference. Those arguments were legitimate but not appropriate for a hearing on temporary maintenance.

The same applied to my motion to have Ms. Wing Sun forgive part of Lian's attorney fees. I believed, without knowing, that this attorney used the accumulated unpaid fees as a bludgeon against her client to prevent a settlement. Finally, it was a mistake to have filed a subpoena to produce Lian's passport. Alan had been urging me for some time to do that, but the appropriate occasion was in preparation for the trial rather than at the hearing on temporary maintenance. I was in a panic at the time I received the first set of papers from Wing Sun and did not want to leave anything out.

Some of this came about at Alan Morrison’s urging. He was full of ideas on what to do to gain an advantage at the trial. Most were good but they needed to be done carefully to avoid problems with the court. For instance, it was Alan’s idea to subpoena Lian's passport. Another idea, which paid off brilRosetly, was to try to learn if Lian had an undisclosed checking or savings account by visiting a branch of the Wells Fargo bank in Minneapolis and trying to deposit money in her account. I would say that I did not have my wife’s account number; could I deposit some money for her anyhow? If the deposit went through, that showed that she had an account with Wells Fargo. If it was not disclosed in her filings with the court, Lian would be shown to be offering dishonest testimony.

Alan also suggested a way to end the divorce proceedings themselves. There was a legal requirement that, to petition for divorce, the person had to be a resident of Hennepin County in the 180-day period that preceded filing. If we could show through the subpoenaed passport that Lian was living in China much of the time, the case would be thrown out. Furthermore, if attorney Wing Sun knew that Lian was ineligible to file for divorce, she would be unable to collect attorney fees.

The problem with the last option was that I, too, wanted the divorce. It would hardly serve my interest if we had to start over again. Alan and I had raised the subject at the meeting with referee Cochrane on January 26th. She reacted quite negatively saying that people could qualify for filing in various ways even if they did not live continuously in Hennepin County. For instance, members of the armed forces serving abroad qualified. To kill the divorce proceedings at this late date would obviously anger the judge who did not want her time wasted. That was not a good idea. Alan’s other suggestion was.

On April 14, 2012, around 11:30 a.m., he and I went to the Olson highway branch office of Wells Fargo to request use of their notary public. While in the bank, I approached a teller with a deposit slip, asking that $50.00 be deposited in my wife’s account. I did not have her account number, I said. I gave the name of Lian Yang McGaughey and the address of 17xx Glenwood Avenue, Minneapolis, Minnesota. The teller asked me to give the date of my wife’s birthday, which I did to her satisfaction. The teller then looked at an electronic file and said she could not find an account for Lian McGaughey at 17xx Glenwood Avenue. “How about Herndon?”, she asked. I said, Yes, that was the right account. So the teller deposited my $50.00 in that account and gave me a deposit slip. The slip showed that Lian's name was on an account with Wells Fargo in Herndon, Virginia, where Celia lives. The account number had ten digits ending in 8472.

This information was useful in undermining Lian's credibility, if not at the trial with a judge at a settlement conference on May 1st. In answer to a question in my interrogatories “Do you now have or have you had any savings accounts or checking accounts within the past two years, either by yourself or jointly with your daughter, Celia?”, Lian responded: “In the last two years, Celia owns an account and gives me money from it, but I do not put money in it. She does not give me gifts but loans me some money to help me since William reduced my income to $400 per month.” I told Judge Reding at the May 1st conference that I had hard evidence of Lian's name being on a bank account. I asked her to issue an order for Lian to produce a copy of the account. The judge declined, but Lian and her attorney voluntarily disclosed a statement copy of an account at Wells Fargo jointly held by Lian and Celia before the trial.

 

22. Referee Cochrane’s decision on temporary maintenance

However, we are getting ahead of ourselves in this story. The current chapter ends at the end of January, 2012, when referee Cochrane received the last sets of documents from the parties related to the motion for temporary relief. On March 30th, she issued the order. Her “Order for Temporary Relief” read:

“This matter came on for a hearing on January 24, 2012. Present is petitioner, Lian McGaughey, with her counsel Wing-Sze W. Sun. Respondent was not present and is representing himself pro se. Respondent (had) unforeseen circumstances which did not permit him to attend the hearing, therefore the court permitted respondent, William McGaughey, to argue his motion through written submissions to the court and for petitioner to respond with written submissions.

Based on the files, records, affidavits, and arguments, therein, the court finds as follows:

FINDINGS OF FACT

1. The parties were married on January 24, 2000. On March 18, 2011, dissolution of marriage was filed. In this Order Petitioner will hereinafter (be) referred to as Wife, and Respondent as Husband.

2. Wife is 55 years old, and Husband is 70 years old.

3. Neither party is employed. They have been meeting their needs through a variety of sources. The court is unable to determine the nature and extent of the parties’ assets, income or debts based solely on the contradictory affidavit evidence. For example, Husband claims Wife sold some property in China worth approximately $100,000. He believes she still has some of those funds, and that she purchased a home for her daughter where she can live rent-free. He also alleges she has other real estate in China worth over $200,000. The Wife believes the Husband has monthly income of $6316 from his retirement and investments, and the Husband claims he is incurring losses each month. She also claims he has been dissipating marital assets and income in the amount of approximately $90,000 by paying them to his ex-Wife, which he denies. In light of the great disparity in allegations, the matter will need to be resolved through oral testimony at trial. The trial is currently set for May 7 and 8, 2012. Therefore, any temporary Order that the Court issues will only be in effect for a few months. It is not feasible for the Court to make these important findings of fact based solely on the conflicting affidavit evidence.

4. The parties acknowledge that Mr. McGaughey has been supporting Ms. McGaughey during the marriage. The Court will order that he continues to pay for these basic living expenses without any decrease. He does not wish to pay for any more of her medical costs, which is an issue in dispute. She has a serious medical condition. Due to a recent claim of domestic abuse, the Wife cannot share living quarters with the Husband and she will need a suitable separate residence.

5. The Court cannot determine the parties’ abilities to pay attorney’s fees based on the above. That issue will be reserved to trial.

NOW THEREFORE, IT IS HEREBY ORDERED

1. Husband shall continue to provide for Wife’s housing, food, and transportation pending trial as is and for temporary spousal support.

2. Wife will have the exclusive use of the 1995 Mercury Tracer, however, she will be required to pay for the insurance and any necessary maintenance on the vehicle while she has possession of the vehicle.

3. Husband shall abide by the Domestic Abuse No Contact Order issued in Hennepin County Criminal Court.

4. Wife is granted exclusive right of occupancy for 17xx Glenwood Avenue, Apt. #4, Minneapolis, MN 55405 for a reasonable time, until petitioner is able to secure another residence that has a functioning kitchen. Husband shall pay the costs of deposit, rent and moving costs on a temporary basis.

5. Husband shall not be permitted to enter into the Wife’s residence at any time, or at any address.

6. Unless for necessary living and business expenses or by mutual written agreement, neither party shall transfer any assets or income, and both parties shall account for all transfers from January 2010 to the date of this order.

THE FOREGOING FACTS WERE FOUND BY ME AFTER DUE HEARING AND SUBMISSIONS AND THE FORG(O)ING ORDER THEREON IS RECOMMENDED.”

Referee Susan Cochrane’s order was signed on March 18, 2012. Except for provisions pursuant to my arrest for domestic assault, I thought it was a fair order. Even the continuation of the no-contact order did not bother me especially since I continued to occupy unit #3 in our home. Much of the order did not apply since Lian was no longer living in Minneapolis.

 

23. A more urgent problem needing attention

If it can be believed, I did not receive a single email from Ms. Wing Sun for the following seven weeks - until March 26th - and I sent no emails to her. However, all was not bliss. My attention had shifted from the divorce case to my arrest for domestic abuse.

Recall that on the afternoon of January 23, 2012, my wife announced that she was going to see her attorney (which would be Ms. Wing Sun) after she put down the cordless-telephone receiver. The supplement to the police report noted that an Asian female said to be Lian's attorney was with Lian at the 4th precinct police station when Lian made her false accusation of assault. While a reader of this text may have no way of knowing whether or not I am telling the truth, I do know and assert that I did not assault my wife. I did not even touch her during the alleged incident (which I think she says took place when I was placing a call to a 911 operator). I do know, therefore, that my wife lied about the assault. From the attorney’s presence at the police station, I can only infer that Ms. Wing Sun advised her to lie. I am told that such things often happen during contentious divorces.

When I was released from jail on January 24th under a no-contact order but continued to reside in unit #3 at 17xx Glenwood Avenue, my wife called me on the telephone to ask if she could retrieve some personal belongings from my unit. I told her this was technically a violation of the no-contact order but if she named the items she wanted, I would put them out in the hallway between our units.

While no-contact order forbid contact through third parties, attorneys are exempted. I therefore emailed Ms. Wing Sun to see if she would be willing to be a channel of communication with Lian regarding transfers of clothing and other mundane matters. She replied: “ I will have to speak to my client about the matter regarding her clothing and needed items.  My husband who helps translate from time to time is out of town ... I should not be the person to be the intermediary between the two of you as I do not speak Mandarin Chinese.  I am the lawyer on this case.”

Then she added: “Further, if you are insinuating that I fabricated facts or advised her as to how to talk about her story to make you guilty, this is false.  Lian told her story to the police officer through third party translation services, individuals on the family law roster, which Lian had to pay for.  There was no one available at the police station at the time and there would have to be a wait.  I will not represent her in this matter, however, generally speaking, a prosecutor from the city (or county) is your opponent, not me.  I did not find out that you had been arrested until later that evening.”

Yes, I suppose I was insinuating that she might have given Lian advice in this matter but, of course, I could prove nothing.

This incident fundamentally changed my relationship with Lian . Previously, I tended to excuse her lying and other bad behavior as a manifestation of her illness. I thought she was basically an honest person. Granted, she seemed sometimes to believe that lying was OK so long as the lie could not be proven. She was unusually sensitive to the possibility of being secretly recorded. (Alan told her that our living quarters were bugged to inhibit possible bad behavior.) But there was no excuse for her to tell the police that I had hit her in the face, especially knowing how the accusation could get me in serious trouble. Since I had pled guilty-continuance to a similar charge less than a year ago, the new offense would be a violation of probation and a gross misdemeanor crime. I could receive prison time if convicted.

My offers of $25,000 or more to settle the divorce were attempts to reach an amicable settlement. I did not want to drive a hard bargain with Lian that would leave her in misery. But the false accusation of assault changed everything. The other side was playing hard ball. I needed to begin to do the same. My strategy was therefore to fight for everything that I could get in a divorce settlement. If I wished to be nice, that could come after Ms. Wing Sun’s gun was no longer pointed in my direction.

Lian hung around in Minneapolis through the end of January and then vanished. Presumably she went to live with daughter Celia in her townhouse in Herndon, Virginia. Before leaving unit #3, she changed the locks and did not give me a copy of the key. When I checked my credit-card charges with Citibusiness, I found that Lian had charged almost $800 to her card in the previous month. I reduced the credit limit to $400 per month.

Lian called to complain when an attempt to use the card failed. Here the arrest worked to my advantage. I told her that I was under a no-contact order and could not speak to her. It was a month and a half before she learned, from me, that her credit was not withdrawn but was limited to a certain amount each month. Then she started charging again to the maximum.

I had a score to settle with attorney Wing Sun. After the court filings over her motion for temporary relief ceased at the end of January, I presented a lengthy list of accusations of unethical conduct concerning her to the Office of Lawyers Professional Responsibility. The documents took several days to prepare. They were mailed on February 7, 2012. The complaint concerned ten different issues and had 27 exhibits. I related each complaint to a violation of professional ethics listed on this organization’s website. My case was turned over to a volunteer attorney named Julie Gripen. She said that the board would initially investigate the complaint that Lian and her attorney had removed documents from my office without my knowledge and consent. Ultimately, the Professional Responsibility board dismissed my complaints. For one party to a divorce to rummage through the other party’s personal records while he was ordered away from his home was OK with them. (See Respondent's Complaint against Petitioner's Attorney, Document 16.)

Mercifully, the communications with attorney Wing Sun stopped when I had to turn my attention to defending myself against the criminal charge. As with the divorce case, I could not afford an attorney. Because I had a compact disk with the recording of the 911 call, I thought I had objective evidence that the assault did not, or probably did not, take place. Surely the prosecutor would decide not to press charges.

I was too optimistic. At the pre-conference hearing that took place on February 6th, a representative of the Minneapolis city attorney’s office offered me a choice between pleading guilty to disorderly conduct and remaining on probation for another year or else pleading guilty to a probation violation and spending 45 days in the work house less 4 days already served. I rejected both offers and agreed to stand trial. It was set for Monday, March 26th.

Throughout February and into March, I was focused on representing myself in a criminal trial. This had a fortunate result. A friend and fellow landlord loaned me a book titled “Minnesota Rules of Court” which contained all the rules which Minnesota courts follow in both criminal and civil proceedings. I could read rules that pertained to my situation to understand what I should do in representing myself. To defend myself, I made requests of the prosecutor and police to obtain needed documents. I reviewed pertinent state laws to understand issues in the case that the other side was preparing against me.

Then, suddenly, early on Monday morning, March 19th, my probation officer called to inform me that the state was dismissing the case. I received a letter to that effect several days later from the city attorney. My deceased father’s 100th birthday was on March 28th. Now I was free to travel to Milford, Pennsylvania, to put flowers on his grave on that anniversary. One of the two big threats against me had been removed.

    

IV. ON THE HOME STRETCH TO TRIAL

24. Snarling emails

It was if Ms. Wing Sun knew what was happening. Once back in Minneapolis, I had an email from her in my box dated March 26th. The header was “sharing the cost of the appraiser”. The email said: “This is a reminder that your discovery is due soon. Also, we have asked the court for you to pay in full the cost of the appraiser.  However, if we are not awarded the full payment of fees, I will seek that you pay for 50% of the costs.  The fees are estimated to be $5,000.00 and it is the cheapest appraiser that I can find for three commercial properties.  The other two I have looked at charge $10,000 and $7,500 ... I kindly, yet strongly advise against showing up at the court house unannounced again.”

I judged Ms. Wing Sun to be about as “kind” as a malnourished pit bull that had been tortured as a puppy. We were back in fighting mode. When I looked at my email after returning to Minneapolis, I told the other attorney that I did not think appraisals needed to be done considering that most of the properties were non-marital and that the single marital property, the duplex at 1715 Glenwood, had been appraised a year before the initial case management conference, which was held on April 15, 2011. I wrote: “The expense in doing appraisals is disproportionate to the benefit received.”

Characteristically, Ms. Wing Sun claimed that I had already agreed to an appraiser and she had witnesses. It was again untrue. We argued about this for a time. She accused me of having a convenient memory loss.  When I asked if there was any legal requirement to have appraisals done, she replied: “ I am not your attorney and I cannot give you legal advice.”

I shot back on April 2nd: “ I will not pay for any appraisers you hire.  That is your decision.  You pay.  I have an alternative method of estimating fair market values.  However, my non-marital property is off limits to you.” I then added: To hire appraisers at a cost of $5,000 or more to appraise my non-marital properties as well as the marital property (but not appraise Lian's two remaining non-marital properties in Beijing) is unduly burdensome and expensive relative to the needs of the case as well as the resources of the parties involved.”

Continuing, I wrote: “I understand you may be upset by charges brought against you before the Office of Lawyer's Professional Responsibility and may wish to pump up fees; however, this does not justify the excessively contentious and burdensome approach you are taking toward discovery.  I would urge you now to abandon this unproductive course and limit your requests to what you reasonably need to advance your client's interests at trial.”

Wing Sun now wrote: “ I believe you are very confused.  I do not need your permission to appraise my client's properties.  I am tracking all of this time and billing them to you.” Six minutes later, she added: “ Until I see your law license I cannot take legal advice from you. Please stop engaging in the practice of law and bringing false accusations against me.  I will not respond anymore to your attempts at raising my client's fees.  All accusations are denied.”

I had written referee Cochrane a letter on April 5th after receiving her order with respect to temporary maintenance. Since the order continued the no-contact provision begun with my arrest, I wished to point out that the prosecutor had dismissed those charges against me; however, I would not complain if the no-contact order remained in effect. I, of course, copied Ms. Wing Sun.

That prompted a letter to the court from her on the same day complaining that I had objected to having an appraisal done and I had also limited Lian's use of my credit card. She wrote: “The purpose of this letter is an attempt to stop, pro se litigant, from bringing more frivolous motions to court, which is both costly and time consuming to defend. In light that opposing party may again misunderstand the purpose of this legal process, I prey (sic) this letter to the court along will suffice as a warning to opposing party.”

Implying that I had not copied her on some of my documents, she requested “a time to review the file to see what Mr. McGaughey has been filing with the court.” With unclear reference, she added: “Temporary Orders are not typically heard at the Court of Appeals.”

This began a series of letters to the court, typically initiated by her, which complained of my behavior in some respect. Essentially, they laid a foundation for asking the court to make me pay a large part of Lian's attorney fees. I felt obliged to respond to each erroneous statement or assumption contained in Wing Sun’s letters.

In this instance, I pointed out that she had in fact been copied. I defended my decision to request a Discovery Conference (in accordance with rule 26.02) which would cover the question of whether to do appraisals and procedures for discovery before the trial began. I also included a transcript of the email exchanges that had taken place between Ms. Wing Sun and me between March 26th and April 4th.

Ms. Wing Sun went ballistic. In a letter dated April 11, 2012, she wrote: “The purpose of this letter is to inform the court that Mr. McGaughey has falsified information in the e-mails to the court by typing up communications that I did not write and partially submitting e-mail communications in a document called “Subject: Sharing the Cost of the Appraiser.” The letter stated in bold lettering: “Mr. McGaughey, you are hereby demanded to retract the entire e-mail correspondence entitled Subject: Sharing the Cost of the Appraiser that you have submitted to court immediately. If you do not, I will move for sanctions.”

I knew that attorney Wing Sun had a habit of making up facts on the run. She had done this, without repercussions, during the telephone conference with referee Cochrane on January 18th. But this was different. Email messages are easily proven. If I had falsified them as she claimed, I wanted Wing Sun to show me an example of the falsification. I requested this in an email dated April 11th. On the same day, I notified the court of my request.

Wing Sun’s response was: “You have them. Please check them.” When I would not accept that answer, she suggested forwarding the entire set of emails to her and she would do the same.” Eventually, she acknowledged that the emails were authentic but insisted I had falsified the transcript into which these had been pasted. I was hoping that the court would also ask her to provide an example of my falsification but they evidently do not have the resources for fact-checking. I think Ms. Wing Ming knew this.

There were more letters from her to the court, each requiring a response. My response to the attorney’s charge of falsification was to accuse her of violating the oath of office taken by attorneys: “You will use no falsehood or deceit, nor delay any person’s cause for lucre or malice.” We had been at this divorce for over a year now but, thanks to Ms. Wing Sun, were unable to settle. An email from that attorney on April 16th accused me of sending frequent letters to the court that had nothing to do with the case, thus causing extra work. She now sent a letter to me refusing permission to come to her office to do discovery. I said that, while Ms. Wing Sun had the right to hire an appraiser, she did not have the right to make me pay for it.

On April 17th, I had to respond to an accusation that I had distorted the facts when, as she said, “Mr. Mc Gaughey initiated that I wanted to inspect documents at his house. I was caught off guard by Mr. McGaughey making a request for me.” No, I did not tell Judge Reding that Ms. Wing Sun had asked to come to my house. I asked her to make an appointment to do so, as prescribed by court discovery rules.

 

25. Discovery

This last statement refers to a Discovery Conference which I requested in a motion to the court filed on April 6th. I had emailed Wing Sun three days earlier: “ Unless we can reach an agreement on this matter, I will be presenting a motion to the court under Rule 26.02 to hold a discovery conference to seek a ruling on whether it is necessary to have all my properties appraised but none of Lian's and, if so, who should bear the expense.  I will also be seeking a ruling on a plan for reasonable discovery efforts.” She sneered: “I'm sure you received the court order and I again suggest that you hire counsel because you really don't understand the law, otherwise our side wouldn't have won so many issues and had almost all of your issues denied.”

I had emailed Ms. Wing Sun on April 2nd: “I have started working on the Interrogatories.  I recall that you also wanted to look at some paper documents.  For some reason, I do not have the list of documents you wanted to see.  Could you please send me this list again?” She replied: “It is every document used to support the answer to the interrogatories, for example, if you have a tax return, then I want all evidence that you used to fill out the tax return, including section 8 vouchers, CRPs, any utility subsidy, paystubs showing you paid the utility company, how you came up with your depreciation numbers (you have documents that support these figures which were already created), etc.” 

She sent me another copy of her request for “Production of Documents which included just about every financial record that I had created within the past ten years. For example, REQUEST NO. 19 was “All documents that evidence your inability to obtain or maintain income whether the end result is profitable or not.” REQUEST NO. 20 read: “All documents used to assist you in answering the interrogatories.” REQUEST NO. 21 was “All documents relevant to this dissolution proceeding.” She wanted me to bring photocopies of all these documents to her office. It would have taken months of work and thousands of dollars to comply conscientiously with her demands. (See Petitioner's Production of Documents, Document 18.)

While I was still under the threat of a trial for domestic assault, Ms. Wing Sun had sent me in the mail her set of interrogatories which were signed and dated on March 14th. Ever pretentious, she prefaced her questions with thirty-three different definitions of terms used in them. For example, Definition No. 33 revealed that the term “Petitioner or divorcing spouse means a reference to Lian McGaughey.” Definition No. 32 revealed that “You, your, respondent or Mr. McGaughey means a reference to William Howard Taft McGaughey, and all and any of his employees, agents, or other individuals acting on his behalf.” My guardian angels were evidently not included. (See Petitioner's Interrogatories, Document 17.)

The Interrogatories themselves included 42 different questions or “requests”. Most of them had subparts. For example, in request No. 2, Ms. Wing Sun wanted me to “identify each item of property you claim to be to be your ‘non-marital property’ by stating the following: (a) a description of the property, (b) the identity of the person from whom the property was acquired, (c) the date of acquisition, (d) the manner in which the property was acquired, (e) the fair market value at the time of acquisition, (f) the current fair market value, (g) whether any gains, interest, dividends, rent, or other income has been received incident to your ownership of this property, (h) the disposition of any gains, interest, dividends, rent, or other income incident to your ownership of this property, (i) the facts upon which you rely in asserting that the property is ‘non-marital”; and (j) for each item of property which you asset to be non-marital because it was acquired in exchange for another item of non-marital property, provide the information requested in subparts ‘a’ through ‘g’ above with respect to the original item of non-marital property that was exchanged.”

I had expected discovery to be rough but not like this. Here I was facing trial for a criminal charge that could send me to prison for several months and I had to research each piece of property I owned to see if it was marital and non-marital and, in the latter case, answer a battery of questions.

Luckily, I had read Rule 33.01(a) in the Minnesota Rules of Civil Procedure and found this passage: “No party may serve more than a total of 50 interrogatories upon any other party unless permitted to do so by the court upon motion, notice, and a showing of good cause. In computing the total number of interrogatories each subdivision of separate questions shall be counted as an interrogatory.” There were 42 questions in Wing Sun’s set of interrogatories and, by my calculation, 188 subdivisions of questions. If caught in a time squeeze, I thought I could always stop answering her questions part of the way through and dare Ms. Wing Sun to complain to the court.

My own set of interrogatories had gone out on March 18th. Unfortunately, I had neglected to sign the documents thinking that because they went to Wing Ming, and not to the court, that it was unnecessary. However, court rules require that interrogatories be signed. I therefore sent the interrogatories again on April 3rd, this time with a signature. The other attorney had 30 days to respond. A May 3rd deadline would give me four days to look at Lian's answers before the trial began. I limited my interrogatories to to twenty-nine questions, not forty-three, that had far fewer sub-questions than Wing Sun’s set of questions. My “production of documents” requested four documents or sets of documents rather than Lian's twenty-one. (See Respondent's Interrogatories, Document 19 and Production of Documents, Document 20.)

I answered Lian's interrogatories, which had been signed and sent on March 14th, on April 12th. Despite their excessive number, I answered most of the questions. I did, however, refuse to disclose the content of my current will. I enclosed copies of our joint federal income-tax returns from 2006 through 2010, a roster of tenants for 2008 through 2011, and a list of tenants in recent years who had Section 8 vouchers. I also wrote: “Please contact me regarding a time to inspect documents which you requested pursuant to Rule 34, Minnesota Rules of Civil Procedure. The documents are kept in my office at 17xx Glenwood Avenue, Minneapolis, MN, unit #3. You will need to request specific documents.”

The Discovery Conference, which I had requested on a motion on April 6th, was held with Judge Jeannice Reding by telephone on April 13th. I argued that it was unnecessary to do formal appraisals on the real estate in Minneapolis and Milford because only one of those properties was marital, an appraisal had been done on it a year earlier, I had an alternative method of determining property values, and I did not have the money to pay the appraisers. Judge Reding ruled that I could not prevent attorney Wing Sun from doing appraisals if she wanted this. I had to cooperate fully with the appraisers that she hired. However, she was not issuing an order about paying the appraisers. (See Respondent's Motion for a Discovery Conference, Document 21.)

Ms. Wing Sun tried to argue that I was violating referee Cochrane’s order for temporary maintenance in limiting Lian's credit card use and in other ways. She told the judge - falsely, I believe - that Lian was not living with her daughter in Virginia but at an undisclosed location, perhaps in Minneapolis, and needed to rent a hotel room whose cost I should pay.

After reading the order, Judge Reding noted that Lian was allowed to stay rent free in unit #3 at our home at 17xx Glenwood Avenue. Wing Sun objected that it did not have a functioning kitchen. Specifically, the stove needed to be fixed. I pointed out that we had offered to replace the stove before Lian left in late January but she would not allow Alan Morrison into her unit to install it. She wanted her own installer although Alan was not a dangerous person. The judge decided that Lian would have to accept Alan’s work if she wanted a stove; and since the trial was less than a month away, it was unreasonable to have me pay to have Lian moved into a hotel.

I wanted to clarify procedures for discovery. First, I asked what Ms. Wing Sun intended to do about the interrogatories that I had mailed on March 18th. Admittedly, they lacked a signature. Would she respond to them, however? Ms. Wing Sun said she would answer those interrogatories by April 22nd. I also asked that attorney if she would make an appointment to visit my office to to view the documents that she wanted to inspect and copy. She said she would not come to an office in my house because she was “afraid”. She was afraid that Sheila or, perhaps, Alan might be lurking somewhere.

Judge Reding said that, in that case, she should bring an escort who would protect her. Ms. Wing Sun would not set a date then to do the document inspection because she said it would take some time to schedule an escort. I also complained that the other party’s request for production of documents was overly broad. After hearing some examples of excessive requests, Judge Reding asked that a more manageable set of them be prepared.

A settlement conference had been scheduled for April 23rd. Judge Reding said she would cancel that conference and instead have another meeting with us on May 1st. Our divorce case was so messed up that we could not possibly cover all issues in a two-day trial. It would be helpful to try to narrow some of the differences beforehand. Each party should bring to the conference “a proposed balance sheet containing a complete list of assets and liabilities and how they are to be apportioned between the parties.” The May 1st conference would held in court room 637 at the Family Justice Center starting at 1:30 p.m. An order was issued to that effect.

In the meanwhile, Sheila had arranged for me to have a free one-hour conference with attorney Keilin Curtis whom I had met briefly while in jail. There he had made an offer to represent me in the domestic-assault case for a flat $500. He also said he had looked up Wing-Sze Wong Sun on the internet. She was a graduate of the University of North Dakota Law School out of school for only three years. That accounted for some of her weird behavior: she might not know what she was doing. Keilin thought it possible that she would crack under the pressure.

This time we met in a coffee shop in south Minneapolis. I had prepared a long list of questions but we covered only a few. Keilin suggested sending a registered letter to Lian at Celia’s address in Virginia to see if she was living there. Could I subpoena Lian's passport? Yes, but the issue of her residence might also be raised during the cross-examination of witnesses. Did she work in China, for example. Also ask Lian during cross-examination if she took any documents from my office. The court official presiding at trial might be referee Cochrane. I should immediately prepare witness lists and exhibits. It might also be a good idea to prepare a findings of fact and conclusion and a proposed order. Keilin also gave me the name and telephone number of a paralegal who might review my documents at a reasonable price before the trial.

Another exchange of communications took place after the telephone conference with Judge Reding. On April 16th, I received by email copies of two letters sent by Ms. Wing Sun, one addressed to me and the other to the court. The letter to me stated: “I do not seek to come and inspect documents at your house. Also, I will not permit you to come to my office to inspect documents, unless the court orders otherwise. I will move for a protective order if you do so.”

Her letter to the court complained that “(I) have been receiving about three to four letters per week (from Mr. McGaughey) along with numerous emails ... I am unsure which ones are filed with the court. If it is permissible, may I respond, perhaps, only if his complaints have any bearing on the merits of this case? I maintain a standing objection and continue to deny all of Mr. McGaughey’s letters.” It was my practice, of course, to send letters to the court mainly when I thought I needed to respond to false or misleading statements in Wing Sun’s previous letters.

Nevertheless, this was an interesting situation. Ms. Wing Sun, the professional attorney, was refusing to do discovery in the prescribed way. She would neither inspect documents in my office nor permit me to come to her office to inspect documents. Her letter implied that such court-prescribed practices amounted to harassment. Ms. Wing Sun did not know or understand the rules. I am not required to photocopy all documents within a category but let her come to my office, where my records are usually kept, and let her decide which documents to copy. The photocopying would then be done at her expense (rule 34.02).

On April 16th, Wing Sun let me know in an email that an appraiser, Todd Wicker, would be arriving at my house in two days, at 9:30 a.m. “He will want to go into all of the apartments.” Mr. Wicker was a pleasant person. I was able to let him enter, or take a peak at, all the apartment units except for Lian's, of course. The door was locked and I did not have a key. That posed no problem for Wicker. He completed his work in barely more than an hour since the three properties were near each other.

Regarding discovery procedures, Ms. Wing Sun wanted me to know that I had not received any documents from her yet and would not since they were not due until May 3rd because I had neglected to sign the request when first sent. If I tried to obtain them earlier at her office, she would seek an order for protection. I reminded her that she had promised Judge Reding to send a response by April 22nd. She replied “I am not going to respond to what I said to Judge Reding.”

Ms. Wing Sun did, in a sense, keep her promise with respect to my interrogatories. A letter dated April 17th contained Lian's responses making it clear, however, that, because I had failed to sign my first set of documents, the official answers were not due until May 3rd. Even so, she would provide them before the May 1st conference with Judge Reding. In the meanwhile, looking at Lian's present submission, I found that she was objecting to every single question because it violated rule 26.07 which requires that each request for discovery be signed. In other words, Ms. Wing Sun was keeping her promise to answer my questions by saying that she would not answer any questions because on March 18th I had failed to comply with the signature rule. Quite logical this was - for her.

Besides making a blanket objection to all the questions presented in my interrogatories, Wing Sun made other objections to answering the particular questions, signaling how she might respond after May 3rd. She objected to all but two of the twenty-nine questions on one ground or another. The most frequent objection was “relevance”. However, certain of my questions were said to be “over broad”, “unduly burdensome”, “harassment”, “vague”, “duplicative”, “compound question”, “speculation”, “(violates) attorney-client privilege”. I sat down immediately to answer all those objections, not that it mattered.

Although Wing Sun had refused permission for me to do discovery at her office, I reminded her in an email dated April 16th that “my letter of April 13th proposed that you could make the documents available for inspection at your office or at another place besides your office.” What about discovery at another place? Ms. Wing Sun objected to that idea because I would be “leaving with the file to make copies somewhere, which I do not permit.” I then proposed “You could go with me to the copy shop.”

I wrote a letter to the court on April 17th summarizing the difficulties I had encountered with respect to discovery. The letter ended: “Ms. Wing Sun’s ignorance of the Rules of Civil Procedure is stunning.  She often berates me for wasting her time because I am not an attorney for the purpose of arguing that I ought to pay part of my wife’s attorney Bills. In this instance, however, I know the law better than she does ... As I indicated in a letter mailed earlier today, Ms. Wing Sun now takes the position that she will not come to my house to inspect any documents and she will also not permit me to come to her office to inspect documents.  I believe that this violates the Rules of Civil Procedure.  I find it strange that Ms. Wing Sun chose not to notify the court of her decision.”

That may have prompted another order from Judge Reding dated April 19th. This order instructed attorney Wing Sun to “appropriately limit her request for production of documents.” It ordered me to let Wing Sun and an escort come to my home office and inspect documents. Either I could give her the documents to copy or, at my discretion, I could make copies of the requested documents at her expense. Finally, Wing Sun was ordered “to name a place in the Twin Cities metro area where Petitioner (she meant, Respondent) may inspect Petitioner’s document production” and arrange for photocopying. It was a common-sense order.

After I received this order, I emailed attorney Wing Sun on April 25th: “I have received an order from Judge Reding relating to discovery.  Since we have less than a week since the scheduled conference with her, it would be good to undertake this task soon. I will be available almost any time to let you inspect documents in my office.  My preference is not to let the documents out of my sight ... My proposal is that, after you decide which documents you want to copy, we go together to Copymax (two miles from your office) where you can run the copies. Please let me know when you want to come to my office with your escort. The judge also instructs you to name a place in the metro area where you will make your documents available.  Lian will need to provide these documents.  Please let me know the time and place when I can do my discovery of documents.  I will also need to go to a copy shop.”

I soon received this response: “(We can go to) Edina Public Library - this is the only day I and the third party is available: 5280 Grandview Square  Edina, MN 55436 Tonight at 4:00 p.m..  The library will close at 8:00 p.m.  Please bring numerous quarters as leaving with the documents is not feasible at this time. Sorry for the late notice ...  Also, I am entirely unavailable to answer any questions during the document hunt and will be preparing for a court hearing in Reding County this Friday.”

I did drive to the Edina Public Library in Edina (somewhat hard to find for a nonlocal) and arrived around 3:45 p.m. Wing-Sze Wong Sun’s husband, Han Sung, greeted me in the library. He said his wife was caught up in traffic. She arrived around 4:30 p.m., carrying a large plastic file cabinet filled with documents. I had four that I wanted to see: (1) Lian's passport (hopefully both Chinese and American), (2) a current statement of any checking or savings accounts that she might have, (3) some of her recent medical Bills, (4) documents showing the sale of her Beijing apartment in 2010 including a trail of money receipts and expenditures related to this sale.

Ms. Wing Sun then told me that none of those documents was available. Lian was in China gathering the information. However, she did let me copy papers in her plastic box. Having a limited supply of cash, I was able to copy her photocopies of my check register made last year.

Later in the day, I received an email from Wing Sun with a load of complaints against me. The new one was expressed in the cover letter regarding appraisals. A letter addressed to the court declared: “Mr. McGaughey fought hard for the real estate not to be appraised, but it was discovered, for example, the house in Milford, Pennsylvania, had the roof replaced with a metal one in 2010. (Parties filed for dissolution in March 2011.) There is also an existing order from Referee Cochrane to account for all marital dissipation, which has not been complied with.” In other words, this attorney was accusing me of dissipating marital assets by ordering a new metal roof to be put on the Milford house in anticipation of the divorce and then seeking to conceal this move by objecting to an appraisal.

There were a few problems with this theory. First, I was not the one who filed for divorce. I had no idea in 2010 that such a motion would be filed. Second and more important, I did not replace the roof on the Milford house in 2010. The tenant, Linda Davis, noticed that the ceiling was coming down in the small room next to the kitchen. Because Lian had put locks on upstairs rooms to keep Linda from entering rooms that she was not renting, Linda could not check the source of the problem in the second-floor room. I gave her permission to cut the lock. She discovered that the ceiling was also leaking in the room just above the first one. Linda found a contractor to check and fix the problem. A corner of the roof had been improperly installed. For $1500, this contractor did the needed repair work. When I talked with Linda on the telephone, she said the appraiser was made aware of what had happened.

There were thirteen other pages filled with accusations against me. Wing Sun was complaining that I had not answered all her questions. For that, I decided to stand fast with an explanation that she had exceeded her allowable fifty questions. She now submitted a “narrowed down” version of the first request for production of documents as ordered by Judge Reding. For this, I would let her come to my office to identify the documents. It would take her several weeks of hard work to come close to locating all the documents she was requesting.

The main part of her argument, however, seemed intended to justify my paying her attorney’s fees. She complained that Bob Carney was practicing law when he and Diane Nelson tried to help Lian and me come to an agreement. She claimed that I gave her unreasonable deadlines - three hours - to meet some particular request. Her “Appendix A” went on and on with arguments about why I should pay.

I went through this lengthy set of documents point by point, repeating much that had been said before. “In conclusion,” I said, “this is the latest in a series of letters I have sent to the court to clear up false allegations previously submitted by Ms. Wing Sun.  I would like the trial to focus upon financial discussion that would lead to a just division of marital assets and debts. The bulk of my own testimony will be devoted to that end.  To date, however, Ms. Wing Sun has chosen to vilify me in various ways ... In response, I accuse Ms. Wing Sun of throwing me a series of ‘curve balls’ aimed at tripping me up on technicalities which has required me to waste precious time and of injecting her own interests into the settlement process. She has needlessly prolonged the process and forced my wife and me to go to trial.  The only motive that makes sense to me is Ms. Wing Sun’s desire to maximize legal billings, collecting whatever money she can from me and the rest from her client.  My wife and I originally wanted an amicable divorce.  Ms. Wing Sun has prevented this from happening.” 

As another “curve ball”, I finally received Lian's answers to my interrogatories at 5:00 p.m. on Monday, April 30th. This was the first time I had ever seen her information. The document was filled with lies. For example:

“William and I purchased a home together. We have spent some of our income on improving our rental properties.” (Our home at 17xx Glenwood Avenue was bought and paid for by me eight years before the marriage.) “He (William) received two large life insurance policies in 2010, but gave it all to Sheila Gorman, Alan Morrison, and Lena Morrison after William’s numerous affairs.” (I received one large life-insurance policy in 2010 which was mostly spent paying off existing debt.) “I spent 90-95% of my time in the United States; only a fraction of that time was time away from William. William should know that’s when he had the affair.” (She was actually living in China much of the time.) “I do not have another small apartment in Beijing. William must be confused.” (Yes, there was another apartment which she still owned - the one with the bathroom and sink down the hall. I had spent the night there a number of times in recent years - I even had photographs.)

I refer to this as a “curve ball”, however, because the document arrived at the end of the day on the day (April 30th) before we were scheduled to meet with Judge Reding.

 

26. A “settlement conference” with Judge Reding

Lian , together with her attorney and interpreters, joined me in a settlement conference with Judge Reding in the early afternoon of May 1st. The judge directed the conversation. The purpose of this meeting was to find points of agreement so that more time would be available for other issues at the trial. We were asked to bring balance sheets to the conference.

The appraisals were the prime topic of discussion. The appraisals ordered by Ms. Wing Sun came in at the following values: the duplex at 1715 Glenwood Avenue, $95,000; the four-plex at 17xx Glenwood Avenue, $160,000; the nine-unit apartment building at 1708 Glenwood Avenue, $275,000; and the Milford house and land, $285,000. The calculations that I had done came in at: $125,630 for the duplex at 1715 Glenwood Avenue; $103,389 for the four-plex at 17xx Glenwood Avenue; $285,522 for the nine-unit apartment building at 1708 Glenwood Avenue; and $276,371 for the Milford property.

The judge observed that some of our values were not so far apart. As a compromise, we stipulated that the duplex at 1715 Glenwood Avenue and the vacant lot next to it together were worth $110,000; the Milford house and land for the parking space were worth $280,000; the nine-unit apartment building at 1708 Glenwood Avenue as also worth $280,000. The value of our home at 17xx Glenwood Avenue was left to be determined.

Lian was awarded, as non-marital property, her condominium (“big apartment”) in Beijing, which she valued on her spreadsheet at $240,000. I was awarded our home at 17xx Glenwood and the apartment building at 1708 Glenwood Avenue but, curiously, not the Milford house built by my great-great-grandfather. I also received the 1995 Mercury Tracer, the wooded land in Port Wing, Wisconsin, and the valuable cartoon prints. My wife received her 401(k). In the spirit of compromise, I also agreed to assume half of my wife’s $6,000 medical loan.

Those were points of agreement that the judge negotiated. She asked me if I wanted to take the duplex (which was marital property). Of course, if I did, I would also have to take the related debt - $173,000 worth. Real estate assets and mortgages go together. Having not just climbed off the banana boat, I declined that offer. Judge Reding also ruled that the payout from my brother’s life-insurance policy, given to me exclusively, was marital property because the money had been co-mingled with household funds. “Co-mingled - Look it up,” she said sarcastically.

I raised the issue of Lian's passport, arguing that it was relevant to this case because, if it could be shown that Lian had spent much of her time in China during the marriage, some of her claims to a marital contribution in improving our property would be undermined. Judge Reding agreed it was relevant and instructed the other side to make the visa pages available for photocopying. It was also then that I revealed that Lian's answers to my interrogatories had implied that she did not have any checking or savings accounts in the United States but I had proof of one such account at Wells Fargo in having deposited $50.00 in it several weeks before. The judge remarked that it would undermine Lian's credibility if she was untruthful about such matters.

I asked who would preside over the trial. To my surprise, Judge Reding said it would be the chief judge of Hennepin County, James Swenson. Evidently, referee Cochrane was still on medical leave. This turn of events pleased me. From some of her previous decisions, I thought Cochrane was favoring the other side. There was also the disclosure that, like Lian , she was a recovering cancer patient. The chief judge of district court might be assumed to be relatively impartial and fair in his decisions.

During the discussions, I argued that Lian should assume all tax liabilities and responsibilities related to the sale of Lian's small apartment in Beijing in 2010. I had not known about the sale before it took place and was not thinking about it when I prepared the 2010 tax return. Lian agreed to do that. Therefore, as point nine on the judge’s typed sheet, “McGaughey Partial Settlement Agreement May 1, 2012”, was this notation: “Wife will be responsible for any tax liabilities or debts related to the sale of her Beijing apartment in 2010.”

Judge Reding left the room after handing the sheet to her assistant,Azure Schermerhorn-Snyder, who was referee Cochrane’s law clerk. Ms. Snyder gave the sheet to both parties to sign. I signed the sheet but Lian evidently did not.

Meanwhile, attorney Wing Sun told Azure Schermerhorn-Snyder, the court assistant, that Lian and I had, in fact, discussed the apartment sale before preparing our joint tax return. I protested that this statement was untrue. Ms. Snyder told me to be quiet, sit down, and wait for her to return. She then went into the back area to speak with the judge. During that time, Ms. Wing Sun proposed to me that Lian would accept responsibility for any additional tax but not for whatever penalties might be assessed. I refused the deal. Then Ms. Turner came back into the room. Judge Reding had crossed off point #9 so it was no longer part of our agreement. We were asked to initial and date the deleted sentence before being given our respective copies of the document.

The document now read as follows:

“McGaughey Partial Settlement Agreement May 1, 2012

1. Husband is awarded the following nonmarital property: 3 Wunderlix Celluloid prints, value not determined, Port Wing Wisconsin property and land

2. Wife is awarded her nonmarital property as follows: Condo in Beijing China

3. Husband is awarded the following real estate and shall pay all encumbrances: 17xx Glenwood Avenue (four-plex), 1708 Glenwood Avenue (nine-unit). The characterization of the debt is not determined.

4. Husband is awarded the Mercury Tracer.

5. The parties agree that the value of 1708 Glenwood is $280,000.

6. The parties agree that the value of 1715 Glenwood and 1719 Glenwood together is $110,000. They are both entirely marital. The encumbrance against 1715 Glenwood is $173,000. The characterization of the debt is not determined.

7. The parties agree that the Milford house and parking land are valued at $280,000. The does not include the large acreage lot. Wife is not making any claim on the large acreage which is from his Father’s estate and has not been distributed.

8. Wife’s 401(k) is valued at $5,000.

9. Wife will be responsible for any tax liabilities or debts related to the sale of her Beijing apartment in 2010. (This provision was crossed off and initialed by both parties.)

10. The parties agree that the Wife’s medical Bills of $6,000 are a joint debt.

We agree to the foregoing and understand these values and/or terms will be incorporated into their Judgement and Decree of dissolution.”

This paper was signed both by Lian and me.

Lian and I also exchanged balance sheets prepared for the occasion. I had a spreadsheet showing my assets and my liabilities at the time of our marriage on January 28, 2000, and at the present time in late April, 2012. That was a mistake. The ending date should have been April 15, 2011, when the initial case management conference was held. It was useful for me to know now that the valuation of property at the end of the marriage had to be changed to a different date.

Lian's attorney had prepared a large spreadsheet on 11” by 17” glossy paper which was, at first, incomprehensible to me. Then I could see what the other side was doing. It was dividing “marital assets” in a certain way. However, the facts were all wrong: Attorney Wing Sun was claiming that $120,000 of the $160,000 value of our home at 17xx Glenwood Avenue was a marital asset even though I had purchased this house eight years before the marriage. That meant that Lian had a $60,000 stake in this property, presumably because of work she had done around the house. Likewise, $160,000 of the $275,000 which the apartment at 1708 Glenwood Avenue was said to be worth was a “marital asset” even though I had owned the building outright for several years before the marriage. This gave Lian an $80,000 stake in the property. She even had a $20,000 stake in the Milford house, said to be worth $285,000.

On the other hand, the Beijing condominium worth $240,000 was said to be entirely Lian's non-marital property. The stocks worth $20,000 that I had owned at the time of the marriage were now said to be marital assets, as were my meager cash savings and even $20,000 of the proceeds from my brother’s life insurance policy of which I was the beneficiary. The cartoon prints which I had owned since the 1950s were my non-marital property. So, however, were the $326,059 debts which were incurred during the marriage: Except for the large NationStar mortgage on the duplex and Lian's unpaid medical Bills of $6,000, they were all my non-marital debt.

For the bottom line, in a section with a green background, Lian's attorney equalized the marital assets. She took $71,225 out of my assets due to “marital dissipation” and gave this money to Lian . She redistributed $18,000 of Lian's attorney’s fees to me. At the end of this calculation, Lian had $242,520 of the “marital assets” and I had only $64,070. The bulk of those assets were claimed equity in the three pieces of real estate that I had owned before the marriage.

I felt that we were dealing here with “Alice in Wonderland justice” assuming that a judge should be so biased or foolish as to buy Ms. Wing Sun’s argument. Yes, by hook or crook she did think that she, being the clever attorney, could get Lian the nine-unit apartment or even the Milford property and stick me with the debts including her attorney’s bills. That hapless, unrepresented American male - me - would not realize what hit him.

 

27. Putting my paperwork in order

Before concluding the meeting, Judge Reding had instructed us both to share with the other party the exhibits that we planned to introduce at trial. From my experience with the criminal case, I thought we would be exchanging a list of exhibits only. To share the exhibits themselves would be difficult for me because I had more than one hundred separately numbered documents. Some were several pages long. Therefore, this request required me to produce hundreds of photocopies. Besides my own copy, I would need a copy for Lian's attorney and for the judge. It would be an effort to keep the papers straight.

Ms. Wing Sun had her husband deliver her exhibits in the evening of May 1st. (See Petitioner's Exhibit List, Document 23.) There was an immense volume of paper but not much substance. For example, one of the exhibits consisted of our joint income-tax returns for 2006 through 2010 which I had previously given her in discovery. She also included copies of the appraisals done on the duplex at 1715 Glenwood, the apartment building at 1708 Glenwood, and the Milford property. Curiously, the appraisal on the four-plex at 17xx Glenwood - the only property whose value was in question - was missing from the packet although the list of exhibits included it. Finally, there were perhaps one-hundred pages of photocopied pages from my present and past check registers taken from me in my wife’s informal “discovery”. No entries were highlighted. There were no totals or other indication of their significance.

A problem with the appraisal of the Milford property was that the appraiser identified its owner(s) as “William H. McGaughey and Joan Durham c/o Margaret McGaughey and William H. McGaughey, Jr.” William H. McGaughey was my deceased father. Joan Durham was the maiden name of my deceased mother. Margaret McGaughey, my sister, was trustee of my father’s estate which included wooded acres of land across the river from my home, mostly on the side of a mountain. Some of this property I might inherit some day but it had not yet been distributed. The appraisal included property in that estate. However, my parents had given me the Milford house in 1995. Therefore, if the appraiser could not correctly identify the property owner, what confidence might one have in the rest of his work? The appraisal incorrectly stated: “A new metal roof was installed in 2010.” That was a particular concern.

This production of appraisals made little sense to me. The Milford property (along with two of the three properties owned in Minneapolis) was my non-marital property. What relevance did it have to a divorce settlement? I incorrectly assumed that there might be a marital component in the increased market value of non-marital real estate. In other words, the difference in value at the time of the marriage in 2000 and the ending point in 2011 might be considered marital property which should be evenly divided between the parties. As I later learned, that assumption was incorrect. Only demonstrable improvements made during the marriage (which presumably required marital assets to finance) such as adding a new room to a non-marital building could be considered marital. Therefore, the appraisals were not relevant to this case.

Other exhibits were relevant. Most importantly, I obtained for the first time some information about how money from the sale of Lian's Beijing apartment in 2010 had been deposited and used. Exhibit #4, a “Workplace Checking Account Statement” for the period 10/15/2010 to 11/12/2010 for Celia Yue McGaughey at 2634 William Short Circle, apt. 305, Herndon, VA 20171 at the PNC Bank was included. It showed that a deposit of $90,000 had been made on October 18, 2010, which was only $10,000 less than the supposed sale price of the Beijing property in U.S. dollars.

That was one piece of the puzzle: The money from the sale had been deposited into Celia’s checking account. How had this money been spent? Between 11/30/2010 and 12/6/2010 the balance in Celia’s checking account dropped from $86,328.08 to $23,412.42. No check had been written but, instead, a notation labelled “other deductions” showed that, on 12/6/2010, $61,862.16 had been withdrawn. The Withdrawal Reference was No. 525240750. I suspected that this money was spent as a down payment on Celia’s newly purchased town house.

In Lian's Exhibit 5, there was a bank statement written in Chinese, which I could not understand. Her handwritten notes showed that the account was at the China Industrial and Commercial Bank in Beijing. The numbers, in arabic numerals, indicated money transactions and bank balances in renminbi, the Chinese currency. The statement showed that on September 26, 2010, the balance in Lian's account suddenly increased from 100 to 710,100 renminbi. The sales price of the apartment was 710,000 renminbi. The paper trail was clear.

Lian's (or Celia’s) handwritten notations at the bottom of the sheet revealed that 334,045 renminbi were equivalent to about $50,000, indicating an exchange rate of 6.68 renminbi per one U.S. dollar. There were another 267,610 renminbi from the sale exchanged into dollars at the same rate, producing $40,056 dollars. Therefore, Lian had received $90,056 from the exchange from funds withdrawn on October 10, 2010, which was almost the same amount of money deposited in Celia’s PNC Bank account five days later. The bank statement also showed that Lian had also withdrawn 60,000 renminbi ($8,982.00) on October 3, 2010 and presumably used this money for unrelated purposes. Another 40,000 renminbi ($5,988.00) taken out by Lian on October 10, 2010, was also not explained.

In summary, we had roughly $106,200 received from the sale of Lian's Beijing apartment shortly before September 26, 2010, and deposited in renminbi in Lian's account at the China Industrial and Commercial Bank. Of this, $90,000 was transferred to Celia’s checking account at the PNC Bank between October 10th and October 15th in 2010. Then on December 6, 2010, Celia withdrew $61,862, leaving $28,138 from those funds in her account.

Between December 16, 2010 and January 14, 2011, the balance in Celia’s checking account dropped from $21,630 to $7,112, indicating further withdrawals. In January 5, 2011, I found a deduction of $8,634.77 paid to a vendor identified as “Great Lakes Px0987469050002.” I recalled that a company with “Great Lakes” in its name was processing Celia’s student loan. I assumed that she must also have used the money from Beijing to pay down her student loan from Carleton college.

Most of Lian's other exhibits were garbage, in my view. Exhibit 6 included some financial information about the apartment from my supposed “realtor”, who was really a salesman making an unaccepted proposal. My rent rolls provided during discovery were also included; they proved nothing. There was an email from Celia showing that I had flown back from Washington, D.C. to Minneapolis around October 19, 2010. Presumably this proved that I knew about the sale of the Beijing apartment or Celia’s purchase of a Virginia town house in advance. All it showed was that I was asked to look at the town house and the purchase agreement and make comments. Then there was the purchase agreement itself. Celia’s town house cost $320,000 of which 20 percent, or $64,000, represented a down payment. Finally, Ms. Wing Sun included in her exhibits a large number of loan or other agreements involving Sheila Gorman, Alan Morrison, and me, which Lian had evidently found among the papers in my office while I was away and had delivered to her attorney for photocopying.

Lian's witness list included Lian herself who would provide testimony on: (1) how she had “helped with the rental properties”, (2) that I “approved of the sale of the small apartment in Beijing”, (3) ‘improvements (she had) made on real properties”, (4) “rental income of tenants”, (5) “being away from the United States because of medical treatment”, and (6) “marital dissipation”. Our daughter Celia would also be a witness testifying on the same subjects as her mother except for marital dissipation. Lian's friend, Diane Nelson, would testify on how “Lian McGaughey helped with the real properties.” Appraiser Jerry Romano in Pennsylvania might testify (by telephone) regarding “appraisal report and the value of the improvements and repairs”. The Minnesota appraiser, Todd Wicker, would testify about “appraisal reports and the value of the improvements and labor is of the petitioner (Lian ). Finally, a man from Vienna, Virginia, named Kevin Parker might testify about “meeting William McGaughey and having his active involvement in purchasing the Virginia property.” I did not remember him.

As I said, most of those papers arrived at our house in the evening of Tuesday, May 1st. (The answers to my interrogatories had arrived the night before.) Judge Reding had scolded us for our late discovery. She even hinted that exhibits not submitted by the deadline might not be admissible in court. I needed to get going on my own exhibits - pronto!

Therefore, in the following days I frantically located documents, photocopied them at CopyMax and in the office of my local neighborhood association, and prepared a list of exhibits. The immediate goal was to have three completed sets of exhibit documents - one for Lian's attorney, one for the judge, and one for myself. Most importantly, I had to finish and deliver my exhibits to attorney Wing Sun soon enough that the late delivery would not become the basis of a complaint. (See Respondent's Documents to be presented at Trial, Document 24.)

Murphy’s Law kicked in next day, May 2nd. In the late morning, the paper jammed in my Epson printer, I made several calls to Epson’s technical-support help desk, bought another UBS cable from Radio Shack, and finally managed to have the printer working again. Then I read an email which attorney Wing Sun had sent at 11:20 a.m.: “We have limited time before trial. I will meet you at your home today at 2:30 p.m. for copying documents.” It was 2:15 p.m. I promptly emailed her: “I will not be available today.  I need to prepare my exhibits for you.”

Five minutes later, husband Lu Kang called me on the telephone to ask about doing discovery. I said it would not be convenient for me to do this today since my exhibits needed to be prepared first. I might have time on Thursday afternoon, however. He put his wife on the phone. I repeated the message. She kept arguing with me about how and why she needed to do the discovery immediately. She said I could continue working on my exhibits while she was browsing through others materials in my office. Since Ms. Wing Sun would not take “no” for an answer, I finally hung up on her.

Sure enough, a letter of complaint was sent to the court. I, of course, had to respond. Ms. Wing Sun’s letter declared: “The purpose of this letter is to inform the court that Respondent has been evasive regarding the discovery requests I sent to him pursuant to the Court Order and respectfully seek the court’s assistance either (i) a telephone conference, (ii) a court order permitting me to obtain documents for trial, or (iii) instructing me to bring a formal discovery motion ... Respondent has indicated that all of my discovery requests were available, but he continues to cite to Minnesota Rules of Civil Procedure 34 and states that he does not have to copy and produce them to Petitioner, but that I should have to come inspect them and incur the costs of copying. Although I disagree with the interpretation of this rule, I have offered to inspect documents at his house and will incur any costs, but now Respondent refuses to state when I may perform this task and yelled and hung up on me when I tried to set up times to meet with him pursuant to his request. Although I acknowledge that it is late to continue discovery, Respondent should not be permitted to withhold information.”

Ms. Wing Sun forwarded the complaining letter to me on May 3rd in a PDF file attached to her email. When I clicked on the icon, strange images filled my screen.  I feared it might be a virus. I turned the computer off and back on. It now seemed to be functioning normally. Later in the day, I received another email from Wing Sun which stated simply: “We will come in 30 minutes.” I happened not to be home at the time. My suspicion was that the other attorney, in demanding immediate attention to her discovery needs, was trying to prevent me from complying with Judge Reding’s request that we make our trial exhibits available to the other party by a certain time.

My letter to the court in response to Wing Sun’s letter began: “ I’m sure that you, and perhaps the entire Hennepin County court system, will be relieved when our divorce case goes to trial next week and the matter hopefully is resolved.” Then I recounted events relating to discovery in the past month including the quixotic trip to the Edina Public Library. Attorney Wing Sun had still not complied with Judge Reding’s order to produce Lian's passport. Finally, I wrote: “While I was out serving the exhibits, I received another email to the effect that she would be arriving at my office in half an hour. Maybe some day we can get the discovery done through the technique of making an appointment.” It was my last message to the court before the trial began.

I did finally complete my exhibits on Thursday, May 3rd. Alan Morrison served them on the other attorney. An email late in the evening contained a letter of protest to the court. Ms. Wing Sun claimed that there were too many exhibits, they were not delivered in time, stock ownership was demonstrated by evidence other than brokerage statements, and that exhibits were incomplete. In regard to the last argument, this attorney wrote: “Respondent is acting in bad faith regarding the submission of his exhibits by submitting numerous partial financial records where all pages showing any type of transaction as to the marital debt or asset may be traceable is removed. The case most relevant to this is Federated Mutual Insurance Co. v. Litchfield Precision Components Inc.” For example, if I included in my exhibit only one page from a ten-page bank statement to show the balance on a particular date, she was insisting that the other nine pages also be included.

Ms. Wing Sun also wrote: “Petitioner is also objecting to the use of number of 1-100 by Respondent as the Trial Order demands that Respondent’s exhibits are labeled beginning with the number 101.” The Trial Order also said that I could not make any objections to her exhibits (delivered in the late evening of May 1st) after May 3rd. Finally, she objected to nearly all my exhibits on the basis of “relevance” or her other favorite reasons. All this struck me as Ms. Wing Sun’s usual junk. In retrospect, I should have paid closer attention to some of the items.

I thought I needed to consult once more with self-help attorneys at the Family Justice Center about trial procedures. Friday, May 4th, would be my last opportunity to do so. I arrived in the morning at the Family Justice Center only to be told that the attorneys would not be in until the early afternoon. They would decide then if they could meet with me. Instead of waiting, I headed over to the self-help desk at the Government Center. There an attorney did meet with me.

He informed me that James Swenson, the chief judge of Hennepin County, was a no-nonsense judge who would probably give me a fair trial. I should address my statements to him and look him in the eye while speaking. Don’t attack the other attorney. Of particular interest, he advised against asking for reimbursement of attorney’s fees from Ms. Wing Sun during this trial. The burden was upon her to prove her case if she requested attorney’s fees from me. If she insisted that complete documents be included in the exhibits, try to have a copy on hand. The main concern was whether a partial submission withheld essential information. Carefully prepare my opening and closing statements. In the latter, I should tell the judge what I wanted in the settlement order.

There was a more cooperative exchange of emails later that day, May 4th, regarding exhibits. I agreed to her request to limit exhibits to what was already submitted or would be submitted until midnight on that day. I agreed to let out-of-town witnesses testify by telephone. I agreed that we would not object to late delivery of exhibits. Were there any exhibits I would not object to? If so, she would look through my list an agree not to object to some of the exhibits. I replied, rather rashly: “I will accept all your exhibits if you accept all of mine.” She was not so generous, saying “I will make evidentiary objections to your exhibits and I expect you to do the same.” On that day, I also reported that I was unable to find the appraisal for 17xx Glenwood Avenue among her exhibit submissions although it was included in the list.

In the evening of Saturday, May 4th, I finally received a copy of Lian's U.S. passport. Her answer to my interrogatories had stated that the Chinese passport was destroyed. I was hoping now to be able to read the visa stamps made upon entering a country to tell which country had issued it and the date of issuance. Unfortunately, U.S. passports now have faint images of scenes such as Independence Hall or Mt. Rushmore which make it more difficult to read the stamps on photocopies. (If I could inspect the passport itself, it would be easier to read these entrance stamps.)

Even so, I studied the stamps meticulously and came to certain conclusions. The four pages copied in Lian's passport had 23 different stamps. Two were entries into Korea, five into the United States, and the rest (16) into China. Lian became a U.S. citizen on July 15, 2009. Her passport was issued soon afterwards. That meant that in the 34 months between July 2009 and May 2012 Lian had entered China 23 different times - once every one to two months. Even if this evidence was not conclusive, it did belie the claim made in Lian's answer to my interrogatories: “ I spent 90-95% of my time in the United States; only a fraction of that time was time away from William.”

 

28. Preparing for the trial

In the week before the scheduled trial, I developed a strategy. The issues in a divorce seemed simple and easy to grasp. Minnesota statute 518.58, “Division of Marital Property”, stated in Subdivision 1: “Upon a dissolution of a marriage ... the court shall make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. The court shall base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs, opportunity for future acquisition of capital assets, and income of each party. The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker ... The court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled pre-hearing settlement conference...”

Marital property was, therefore, the focus of inquiry. There was to be a “just and equitable division” of this property between husband and wife. Absent other factors, I took this to mean an equal division - i.e., 50-50 - regardless of who was the main breadwinner or whether one of the parties engaged in marital misconduct. Subdivision 2 did allow that up to one half of the non-marital property might also be divided between the parties “if the court finds that either spouse's resources or property ... are so inadequate as to work an unfair hardship.”

What was non-marital property? Minnesota statute 518.003 states: “"Non-marital property" means property real or personal, acquired by either spouse before, during, or after the existence of their marriage, which
(a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse;
(b) is acquired before the marriage;
(c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e);
(d) is acquired by a spouse after the valuation date; or
is excluded by a valid antenuptial contract.”

By my interpretation, most of the existing debt of $329,923 was marital debt because I had less than $10,000 in debt at the time of the marriage and my wife claimed to have none. Mortgage debt accounted for $259,165, debt to US Bank on unsecured credit lines accounted for $49,516, and the rest was credit-card debt. The duplex at 1715 Glenwood Avenue and the vacant lot at 1719 Glenwood Avenue, valued at $110,000, were also marital property since we purchased these properties during the marriage.

The other real estate was non-marital. Lian owned her “big apartment” condominium in Beijing at the time of the marriage and also the remaining “small apartment”. I also then owned the four-plex at 17xx Glenwood Avenue, the nine-unit apartment building at 1708 Glenwood Avenue, the Milford house and .75 acres of land, and the wood land in northern Wisconsin. Also non-marital were the proceeds of life insurance payable to me as a beneficiary: $114,633 from a policy purchased by my brother David and $9,312 from one purchased by my father. A vacant lot at 1701 Glenwood Avenue that I owned at the time of the marriage and later sold for $42,000 less commissions to raise cash was also my non-marital property.

I also owned $137,664 worth of stock at the time of marriage. Some had been given to me by my parents; other shares I had purchased through a stock broker. My stock holdings were worth $70,718 on April 15, 2011, the date of the initial pre-hearing settlement conference. Half of the previous value had been lost. My stocks owned at the time of the marriage were, of course, non-marital. I sold some of these during the marriage. All the stocks owned on April 15, 2011, were carried forward from January 2000 under the same or a different corporate name except for the 1,000 shares of Xcel Energy, which I purchased in 2002. They were now worth $24,120.

I mistakenly assumed that non-marital assets might have a marital component in the change in market values between the date of the marriage and the ending valuation date. Therefore, the difference between the beginning and ending values of all the real estate and of the stocks held in my portfolio would be marital property. The real estate had appreciated in market value by $178,564. I would have to share this gain with my wife. My stock holdings, on the other hand, had depreciated by $66,946 in value. My wife would have to bear her fair share of this loss. The change in cash holdings at the beginning and end of the marriage were negligible. I made my calculation of marital property on that basis.

I later learned that this is not how divorce settlements work. Yes, the losses were marital but change in asset value due to fluctuations in the market were not marital unless one was continually trading in those types of properties. With respect to real estate, if a non-marital property increased in market value during the marriage, the gain was non-marital. Non-marital real estate could acquire a marital component in either of two ways: (1) if a substantial improvement such as an addition to a building or a new roof was made during the marriage requiring marital funds, and (2) if the real estate had a mortgage or other debt at the time of the marriage which was paid down using marital funds. Then the other party could claim a share of that non-marital asset. With respect to stock holdings, non-marital shares held throughout the marriage remained non-marital.

Ignorant of this, I prepared a spreadsheet which summarized the change in assets and liabilities during the marriage. In Exhibit 1, one set of columns showed the dollar value of the asset or the liability at the time of the marriage on January 28, 2000, and another set of columns showed the value of the assets and liabilities on April 15, 2011. According to my calculation, my assets (broken down between real estate and financial assets) declined from $901,482 to $867,166 during the marriage, a decrease of $34,315. (The real estate increased by $178,564 and the financial assets decreased by $212,880.) Also, the liabilities increased from $5,519 on January 28, 2000, to $329,923 on April 15, 2011, an increase of $324,403 during the marriage. If we combine assets and liabilities, my net worth decreased by $358,719 during the marriage. Theoretically, my wife should assume half of that loss, or $179,359, since the loss was marital.

However, the other attorney was making a big issue of my dissipation of marital assets. Referee Cochrane had ordered both parties to calculate their respective transfers of property to third parties from January 1, 2010, through the date of the trial. I rigorously reviewed entries in my check register and bank statements and charges to my Citibusiness credit card in search of anything that might be considered a “dissipation”. I found a total of $16,798.41 in third-party, mostly unauthorized, charges to the card. Questionable charges to my checking account totaled $85,790. Most of these were unpaid loans but $12,105 represented checks with forged signatures. The two categories added together totaled $102,588.41. I subtracted this number from $358,718.52 (the reduction in value of my marital property) to arrive at a figure which represented the reduction in marital property during the marriage apart from dissipated assets: $256,130.11. If my wife and I split this loss equally, we would each have $128,065.05.

This was my grand strategy. My principal argument during the trial would be what was shown in Exhibit 1. I would calculate the loss in marital property, acknowledge the claim of dissipated assets by subtracting it from the loss, and then suggest that a “ a just and equitable division of the marital property” called for assigning half the loss - $128,065.05 - to me and the other half to my wife. There had been so many wild accusations and diversions from the court’s main task relating to marital misconduct that I thought a judge would welcome this focused approach. It was certain that Ms. Wing Sun would raise objections to my introducing these numbers into evidence at every turn, so I resolved to use my allotted time during the trial to make a complete argument about the decline in marital property first and then work down to less important issues.

The lesser issues, peculiar to this case, consisted of the following:

1. The unpaid taxes on the gain realized from the sale of Lian's Beijing apartment in 2010: When Lian and I filed a joint income-tax return on March 22, 2011, I was not thinking of the sale of my wife’s property in China. It was less than a week after returning home from a court-ordered exile in Brooklyn Park and my papers were in disarray. I had never seen any documents related to the sale of the Beijing apartment or the subsequent handling of money and had no idea of the apartment’s purchase date or price. Evidently my wife had deposited the bulk of the proceeds from the sale directly into Celia’s checking account without making provision to pay federal taxes on the capital gain, which could be up to $15,000, with additional money owed to the State of Minnesota.

I would argue at trial that paying this tax and related penalties, if any, should be my wife’s responsibility. First, she had agreed to this at the settlement conference with Judge Reding but had then reneged. The court clerk had persuaded the Judge behind closed doors to cancel the agreement. Second, Lian had not shared any information about the sale with me other than letting me know afterwards that the apartment had been sold for around $100,000. The money had been deposited into Celia’s account. Third, Lian's answer to one of my questions in the interrogatories (request #9) stated: “Celia and I owned the apartment, jointly.” If that was true, then Celia had half of the responsibility for paying the capital-gains tax. It made more sense for Celia and her mother to coordinate paying the tax than for Celia and me. Fourth, I did not have the money to pay an additional amount for taxes in 2010.

2. Responsibility for paying the appraisers: I would argue that Lian should pay the bill for the appraisers since it was her attorney who hired them. I had strenuously argued against using their services but Ms. Wing Sun had insisted upon it. The appraisals were unnecessary, I thought, since three of the four properties appraised were my non-marital properties whose valuation ought not to affect the court-ordered division of marital property. The sole marital property had been appraised a year before April 15, 2011. I had an alternative method of valuing real estate that had not recently been appraised and could not afford the $4,000 appraisal cost.

3. The question of who should pay Ms. Wing Sun’s attorney’s fees: Normally, I had to assume that each party would be responsible for paying its own attorney’s fees. However, Ms. Wing Sun in her pleadings had waged a vigorous campaign to persuade the court to order me to assume a large portion of my wife’s attorney fees. The main reason she offered was that, because I was not an attorney, I was introducing frivolous motions and making legal errors that a trained attorney would not have made, and she was forced to do extra work in response; and it was unfair for my wife to bear this cost.

How much did they want? Lian's spreadsheet showed $18,000 for attorney’s fees being transferred from my wife to me. A spreadsheet covering Bills from mid December through the trial date showed that the total billings to Lian were $21,075 during this period of which $10,575 represented “conduct based attorney’s fees” or, in other words, work that Ms. Wing Sun had to do because of my misconduct. Interestingly, $7,075 of Lian's attorney’s bills were past due.

I would argue, in defense, that most of the billings related to Wing Sun’s motion for temporary relief in early January, 2012, were unnecessary since I was adequately providing for Lian's material needs up to that point. The motion was introduced for harassment purposes after two months of fruitless settlement negotiations. Most of my letters or documents sent to the court were in response to a previous message from attorney Wing Sun. I had to deal with an endless stream of bogus facts, false accusations and innuendos in her emails.

Also, it was ironic that, while Wing Sun continually accused me of being ignorant of the law and of legal procedure, it was I who had to advise her on the proper procedure for doing discovery. She thought she could simply order me to photocopy a large number of documents and bring them to her office. However, the rules of civil procedure call for her inspecting documents at my office and making her own photocopies. I had an email on May 1st from her asking me which rule prescribed this. I replied that it was rule 34.

4. Lian's failure to disclose the existence of a second “small apartment” which she still owned in Beijing and of possible undisclosed financial assets owned at the time of the marriage or acquired since then: Asked about this in question #17 of my interrogatories, Lian replied: “I do not have an interest in another small apartment in Beijing. William must be confused.” In fact, she and I had stayed overnight in that apartment a number of times in recent years. Lian knew full well of its existence. I also suspected that Lian might have around $16,000 in cash remaining from the sale of the other apartment in 2010 since her own records showed that the sale of that apartment yielded $106,000 but she gave Celia only $90,000. Lian might also have had financial assets at the time of the marriage. Her statement in answer to my question #16 showed that Lian bought her “big apartment” in 1996 for 300,000 renminbi (around $37,000) and she had no debts at the time of the marriage (her answer to my question #2). Lian was an executive with the China Everbright Company, China’s first corporation, at the time of our marriage in 2000. Are we to believe that she earned enough to purchase an apartment for cash in 1996 but saved or accumulated nothing during the four years between 1996 and 2000?

5. Lian's claim to a part of my non-marital real estate on the grounds of having done work that increased the property value: Even though there were few, if any, structural improvements to my non-marital real estate made during the marriage, Lian's attorney had been trying to prove the opposite. She insisted including in the “findings of fact” in some of our settlement proposals in November and December 2011 statements claiming that Lian had contributed “$11,000.00 worth of labor” to benefit the property at 17xx Glenwood Avenue and “$2,200.00 worth of labor” to benefit the property at 1708 Glenwood Avenue even though she had hardly set foot in those properties other than her own living quarters. Now Lian was intending to call her friend, Diane Nelson, to testify on how “Lian McGaughey helped with the real properties.” With respect to the property in Milford, her answer to my question #20 claimed that “I helped out a lot with getting the driveway ready, cleaning the attic, and helping William’s dad with the home when he lived there. I would (estimate) from the years I put in at least 300 hours worth of labor into Milford.” Lian also claimed that a new metal roof was put on the Milford house in 2010, using marital funds.

Her claims were quite outrageous, especially those relating to Milford. My father had resided continuously in a nursing home in New Jersey between the time of Lian's arrival in the United States in late July 2001 and his death in November 2004. Lian had seen him once for less than half an hour during her single visit to the nursing home. We had visited Milford infrequently during the marriage. The “300 hours” - 13 full days - of claimed work overstates the total amount of time she spent in Milford in any activity. My best witness to Lian's Milford contribution was Linda Davis, the tenant in that house since July 2003. Ms. Davis could also testify that there was no “new metal roof” on the house but only the repair of one corner of the roof which was leaking.

Regarding the Minneapolis properties, Alan Morrison had handled virtually all the maintenance in all three buildings during the marriage. Keith Baker, who was a caretaker in the apartment building during Lian's first four years in America, sent a notarized letter to the effect that “(William’s) wife never did no (any) work around the building. She never help(ed) me at all. Most of the time she was gone.” Alan Morrison, who had agreed to testify in person, was expected to offer similar testimony.

6. My immediate financial situation was relevant. It was important that I submit evidence in court to show my financial inability to meet Ms. Wing Sun’s various demands. The most revealing document was a printout of my accounts at US Bank taken from the Internet on May 4, 2012. This exhibit showed that I had a total of $1,182.21 cash in my savings and checking accounts, $137,771.35 in total debt at US Bank, and only $4,858 in remaining credit, other than some business credit and business reserve lines totaling $20,000 that charged 25 percent interest. My total debt to all creditors on May 4, 2012, was $337,302. The interest charged on that debt was $2,131 per month which was $174 more than the $1,957 that was deposited each month in my account from Social Security and a state pension. Therefore, if the court imposed additional obligations upon me, I could only meet that demand by selling or mortgaging non-marital property. However, Lian , by her own admission, also had $240,000 in non-marital real estate in Beijing. Clearly, my relative lack of liquid assets ruled out the court’s awarding up to one half of my non-marital assets to Lian to satisfy a hardship claim on her part. The Hennepin County courts had, in fact, granted me “pauperis” status.

All these issues were important to the case, but the reality was that we had only two days - one day for each side - to make our case in trial. It was necessary to develop priorities. My top priority was the calculation of marital assets needing to be divided. The second highest priority was the demonstration of my inability to pay much, if anything, in a settlement. If I had time left over after dealing with Ms. Wing Sun’s expected objections, I could work my way through some of the other issues.

If my main argument was presented in its entirety in Exhibit 1, I needed to roll out the supporting evidence in other exhibits. Exhibit 2 took my argument to the next level of detail. It, too, was a spreadsheet, divided into separate sections for assets and liabilities. The totals from this spreadsheet fed directly into Exhibit 1. I had circled the corresponding numbers.

For instance, under real estate on Exhibit 2, I had a listing of the properties owned on April 15, 2011, and their market values at that time. The properties were: 17xx Glenwood Avenue, $103,389; 1708 Glenwood Avenue, $280,000; 1715 Glenwood Avenue, $110,000; 1719 Glenwood Avenue, (included with 1715 Glenwood); Milford PA property, $280,000; Wisconsin land, $20,000. The dollars totaled $793,389. The same number appeared on Exhibit 1 under “real estate” owned on April 15, 2011. So it was, too, with other groups of assets and liabilities. The different components appeared, with totals, on Exhibit 2. Those totals fed into numbers on Exhibit 1.

There was also another spreadsheet titled Exhibit 3 which included calculations of real-estate values. Since my understanding of the marital component of non-marital assets was flawed, this had limited value. Also, Ms. Wing Sun and I had stipulated to the value of properties at 1708 Glenwood Avenue, 1715 Glenwood Avenue, and 1719 Glenwood Avenue in Minneapolis and the value of the house and property in Milford, Pennsylvania.

The property whose value remained in dispute was our house at 17xx Glenwood Avenue. Here the appraised value differed sharply from the value that I calculated in Exhibit 3. The appraiser, Todd Wicker, thought the property was worth $160,000, and I calculated it was worth $103,389. Exhibit 3 also calculated the value of real estate as of our marriage date on January 28, 2000, in order to determine the change in values between that date and April 15, 2011. It turned out that the court reckoned the marital component of non-marital real estate differently.

This was my approach to calculating real estate values in Minneapolis in Exhibit 3: The duplex at 1715 Glenwood Avenue had been appraised for $140,000 by a licensed appraiser, Byron Miller, on April 9, 2010, in connection with a loan application that was denied. I also had the tax-assessed values for each property owned in Minneapolis from a page, City of Minneapolis PropertyInfo, on the city’s website.

The tax-assessed value of the house at 17xx Glenwood Avenue was $86,000 in 2010 and $77,500 in 2011. Likewise, the tax-assessed value of the rented duplex at 1715 Glenwood Avenue was $104,500 in 2010 and $99,500 in 2011. The ratio of the tax-assessed value of the property at 17xx Glenwood to the property at 1715 Glenwood in 2010 was .82297. Therefore, the imputed appraised value of 17xx Glenwood in 2010 was $115,215 - the appraised value of 1715 Glenwood ($140,000) times .82297. That value adjusted to 2011 was $103,389. It was calculated by multiplying $115,215 by .897355, which was the ratio of the average real estate price in Minneapolis in 2011 ($184,769) to that in 2010 ($205,904) according to figures supplied by the Minneapolis Area Board of Realtors.

My method was objective, if not authoritative. It was interesting that the tax-assessed value of the house at 17xx Glenwood Avenue was lower than that at 1715 Glenwood - and my estimates of relative values were pegged to the tax assessor’s numbers - whereas appraiser Wicker estimated that 17xx Glenwood Avenue was worth $160,000 and 1715 Glenwood was worth only $95,000. I thought we must take appraised values of real estate with a grain of salt even if courts consider them sacred. Had the market value of 1715 Glenwood, as calculated by two certified appraisers, dropped from $140,000 to $95,000 in one Year? I doubt it. I suppose appraised values depend on which “comparable properties” one chooses and when sales took place.

There was much yet to be done. I had to value the debt held on January 28, 2000, and that held on April 15, 2011, to calculate the increase in debt during the marriage. I also thought I needed to value the assets owned on January 28, 2000, and on April 15, 2011. The real-estate assets have already been covered. Of the financial assets, the more significant part consisted of stocks owned on January 28, 2000, and on April 15, 2011. To calculate their market values, I needed the number of shares owned on the two dates multiplied by the price per share on those dates. The assets also included a small amount of cash in savings or checking accounts: around $3,000 in April 2011 and $1,100 in January 2000.

My assets on January 28, 2000, which were therefore non-marital, also included the cash payout of a life-insurance policy purchased by my brother David that was worth $114,633, a life-insurance policy purchased by my father that was worth $9,313, and a vacant lot at 1701 Glenwood Avenue that I owned at the time of the marriage but sold two years later to raise needed cash. Sold for $42,000, it was worth an estimated $23,949 in January 2000. No similar assets were owned in April 2011.

Each dollar amount appearing on the spreadsheet titled Exhibit 2 had to be tied to a supporting document that could be taken as objective evidence of the asset or debt. The debts in April 2011 were easy to establish. I needed only to present in court a mortgage, credit-card, or unsecured credit-line statement from a lender around that date. Since a number of my debts were owed to US Bank, a consolidated statement from the bank’s website, if recent enough, established their values. If not recent, I had to find a monthly statement from the creditor close to the relevant date showing the balance owed. Such evidence of debt owed on April 15, 2011, was presented in the documents that were numbered Exhibits 8 through 17.

The debt owed on January 28, 2000, was harder to establish. At length, I found in a storage box in my basement three consolidated bank statements of US Bank from the period between December 15, 1999 and February 23, 2000, representing two different checking accounts. (They were Exhibits 5 through 7.) The statements all indicated that my two US Bank unsecured lines of credit had zero balances. On one statement, I found that $4,519.45 was owed on a “reserve line” - for overdraft protection. I used that number in my calculation of debt owed on January 28, 2000. However, I also knew that I had two credit cards, one a Visa card with First Bank of Omaha and the other a credit card for Menards, open on that date. Since I could not find any credit-card statements from that period, I simply estimated that I owed $1,000 on the two cards together. My $5,519.45 figure for debt owed at the time of marriage was $4,519.45 plus $1,000.00.

I knew that the beginning debt number might become a point of controversy. Ms. Wing Sun could claim that I had other debts on January 28, 2000, that I was not disclosing. How could I prove that I did not? I had an account with a credit-monitoring outfit called PrivacyGuard through which I could obtain credit reports from the three credit agencies, Equifax, Experian, and Transunion. Those agencies’ reports were supposed to show all the credit accounts that I have ever had. They also showed the dates when accounts were open and also indicated if particular accounts were closed.

In Exhibit 4, I made a listing of all accounts using information obtained from this source. The only credit instruments I had open on January 28, 2000, were: the reserve line with US Bank, the two credit lines with US Bank, the Visa credit card with First Bank of Omaha, and the Menards credit card. I could be reasonably sure that there was no other debt at the time of the marriage. The credit limits on those cards were quite small. There were no mortgages on any of my real estate at that time.

With respect to the assets, the most important exhibits were deeds to the real estate because they showed the date when the deed was recorded and, therefore, proved whether the property was marital or non-marital. They were presented in Exhibits 88 through 93. Somewhat more difficult to prove were the listings of stocks owned in January 2000 and in April 2011. Stockbroker’s transaction slips showing purchases and sales of particular stocks on particular dates were a certain evidence of stock ownership on the two debts. The problem was that, because my parents had given me certain stocks before the marriage, I did not have purchase slips for them. Also, some of the companies whose stocks I owned in 2000 had changed names or had spun off subsidiaries eleven years later.

The most significant holding at the time of marriage was 2,143 shares of First Union Corporation acquired from my mother. First Union merged with Wachovia Bank in 2001. Wachovia was one of the more spectacular casualties of the financial meltdown in 2008. Its shares plunged from around $50 a share earlier in the Year to around $1 a share when the FDIC offered the company to Citibank. Wells Fargo then stepped in with a slightly higher offer. As a result, I owned 433 shares of Wells Fargo Bank on April 15, 2011, worth $12,942, down from more than $100,000 a year earlier.

When I sell shares of stock, I customarily make a photocopy of the surrendered stock certificate. This certificate shows the date on which it was issued and, of course, the number of shares and the owner’s name. Such photocopies as Exhibits 20, 27, 28, and 29 showed that at the time of the marriage I owned 2,143 shares of First Union, 100 shares of Germany Fund, 300 shares of Pacific Gas & Electric, and 100 shares of Dayton Hudson (Target Corp.) which later split 2 for 1. I had purchase confirmation slips from a stockbroker for 525 shares of Latin American Equity, 800 shares of BMC, 1005 (actually 800) shares of US Bank, and 200 shares of Control Data. (Exhibits 23, 25, 26, and 31) Although my mother had given me 200 shares of Gannett before the marriage, I did not have the stock certificate and had to rely upon a stock-transfer agent’s statement as evidence of owning this stock. (Exhibit 50)

Stocks owned on April 15, 2011, included 1,000 shares of Xcel Energy, purchased at Recom Securities in 2002. (Exhibit 51) Otherwise, the list in 2011 included some stocks held continuously in my portfolio since 2000 - BMC, European Equity (formerly, Germany Fund), Gannett, Pacific Gas & Electric, and Target. Arbitron was a spin-off from Control Data. Wells Fargo was successor to First Union. I had sold 938 of my shares in US Bank during the marriage. BMC went bankrupt in 2004. I prepared two schedules (Exhibits 18 and 19) that listed stocks bought and sold from 1985 to the present. Those schedules would help to keep track of what was owned on which date.

Valuation of stocks depend upon the price per share on the relevant date. Stocks owned on April 15, 2011 could be researched on the Internet at Marketwatch.com. Exhibits 52 through 59 gave those stocks’ price per share as of that date. It was more difficult to gather information about stock prices on January 28, 2000. For this, I had to go to the downtown Minneapolis library to find the price in a book titled “National Daily Stock Price Record, first quarter of 2000”. Each page of this book had the names of companies in the column headers. The dates were shown in rows down the page. One could find the stock price of the desired company on a particular day at the intersection of particular rows and columns. Photocopies of those pages became Exhibits 38 through 45.

I also needed documentation to support assets such as the life-insurance payouts and the sale of a vacant lot to raise cash during the marriage. Exhibit 35 was an insurance confirmation certificate from AXA Equitable and cover letter dated February 16, 2010. Exhibit 37 was a confirmation statement dated August 1, 2005, from the Northwestern Mutual Payment Plan. I could not find papers related to the sale of the vacant lot so I used Schedule 6252 from the 2002 and 2003 federal income tax relating to installment-sales income as evidence to support this item. Though a non-marital asset, money from the land sale also went toward marital expenses. Later, I submitted a photocopy of the check register for an account at AXA Equitable to show how the insurance money was spent.

By and large, Exhibits 2 through 71 and 88 through 93 related to the valuation of assets and liabilities which culminated in the calculation of marital property shown in Exhibit 1. Exhibits 72 through 87 documented funds given to Lian and Celia during the marriage or “dissipated” in unpaid loans or thefts associated with Sheila Gorman and her children. A subset of these exhibits related to the transfer of 20 acres of Wisconsin land to Sheila and the fraudulent quit-claim deed involved in its purported return. The total amounts were about the same - $113,634 to Lian and Celia over a ten-year period and $102,588 to Sheila and relatives since January 2010. However, as attorney Wing Sun was quick to point out, Lian and Celia were my legal family while Sheila, though my former wife, was not. On the other hand, payments to Sheila were generally loans rather than gifts. Sometimes, they were payments in anticipation of receiving a larger sum of money. In the worst case, they represented money swindled from me or foolishly given away.

Exhibit 94 consisted of a depreciation schedule used in our federal income-tax return for assets put in service between 2002 and 2006. Exhibits 95 through 98 included mortgage documents issued in 2002, 2006, and 2010. These might be useful in explaining why money needed to be borrowed in the early part of our marriage, how money was raised to meet this need, and how debt was refinanced in the later years.

The exhibits beginning with Exhibit 99 related to other issues. For instance, there was a letter from the Minneapolis city attorney’s office showing that the domestic-assault charges brought against me had been dismissed. Five emails from my then attorney, James Gurovitsch were also included. They each contained an earlier email from Ms. Wing Sun with revealing information. Another of the exhibits was Lian's set of answers to my interrogatories. I also included a photocopy of the deposit slip for the $50.00 deposited into Lian's Wells Fargo account in Herndon, Virginia, which she had previously not disclosed. Two notarized letters - one from Keith Baker, a former tenant and caretaker in the apartment building, and one from Linda Davis, long-time tenant in the Milford house - were also among the exhibits. I later prepared an analysis of the entry stamps in the visa section of Lian's U.S. passport showing that she had entered China 23 times since receiving the passport in July 2009.

In total, I prepared 137 paper exhibits for submission. Additionally, I had assembled, labeled, and arranged my past check registers to be able to find any check quickly which would support an expenditure displayed on another document. I also located income-tax returns for earlier years in the marriage in case they were needed as evidence. Together with my friend’s thick book on “Minnesota rules of court”, I packed these various items into two brief cases which would be carried to the court.

Before going to trial, I prepared a written statement of the argument that I intended to present in court. If the judge allowed me to read the statement, I would be sure that all my main points were entered into testimony. Such a document would help me to stay on track as the other attorney raised numerous objections and distracting issues. I could use the prepared text for my opening or closing statement and adjust it in length for the time available.

The rules of civil procedure gave me less guidance in what to expect during the trial than what I would have hoped. However, the clerk at the self-help desk at the Hennepin Government Center gave me a stapled document titled “What to Expect as a Self-Represented Plaintiff or Defendant” which was quite helpful. From this, I learned that both parties would have roughly the same amount of time to present their case. The plaintiff - in this case, the person who had filed for divorce - would go first. Then I would have a chance to make my argument. There would be a brief opening statement in which I would introduce myself and tell the court what I intended to accomplish. Then would come testimony, followed by cross-examination of witnesses. Finally, both parties would make a closing statement that would summarize what they hoped to prove. I assumed that the first day of the trial would be Ms. Wing Sun’s to make her case; and I would have the second day.

 

V. THE TRIAL

29. First day of the trial: in the morning

I had been working so hard on document preparation over the weekend that I feared insomnia. It was important to be well rested for the trial. However, I slept reasonably well and arose by 7:00 a.m. I dressed in a business suit and then left my home for the bus stop, carrying the two brief cases. The bus dropped me off three blocks south of the Hennepin County Government Center where I expected that the trial would take place.

I ordered a cup of coffee at a shop in the Government Center before looking at an electronic bulletin board that gave information on cases to be heard that day. The sign indicated that referee Cochrane would be hearing Lian's and my case in room 517, which I assumed was in the Government Center. However, when I took the elevator to the fifth floor, I discovered that these rooms in the 500 series were court rooms for mental-health trials. A court employee told me that referee Cochrane’s cases would be heard at the Family Justice Center. Sure enough, that’s what the sign said when I read it for a second time downstairs.

The Family Justice Center was three blocks away. I still had plenty of time. Lian and Celia were seated in the lobby after I passed through security. We greeted each other politely. Celia suggested I visit the men’s room to tuck my shirt inside my pants. Either she meant to be helpful or to ruffle my self-confidence. But I did as suggested and then headed for the fifth floor to find room 517. The court clerk asked me to take a seat in the hall. Attorney Wing Sun had not yet arrived. There was a female Chinese interpreter in the hallway who looked familiar.

After being allowed into the court room, I took a seat at the far end of the table facing the judge. A male judge (obviously not referee Cochrane) entered the chambers. It was James Swenson. He was seated in front of me, slightly to the right.

While we were waiting for Lian and her attorney to arrive, I asked the judge if I would be permitted to read my argument. He said “no”. Later Judge Swenson explained that he did not allow written testimony because the unbroken arguments in testimony from self-represented persons did not allow the other side to ask questions as when testimony was given in response to a set of questions. Also, I suppose, the judge needed time to write his notes. Judge Swenson asked me to pause after each few sentences in my testimony. He also asked me to wait for the other party to be in the court room before asking him questions relating to the trial.

I set my evidence folders on the table before me and waited for the trial to begin at 9:00 a.m. Glancing around the room, I spotted the witness stand across the room to the left of the judge. The spectators’ seats were to the left of that, near the door. Celia took a place there. Attorney Wing Sun was around ten minutes late. She and Lian sat together at the table to my left along with an interpreter. Later another interpreter arrived, a younger woman. We were all sworn in by the judge. Because he was the chief judge, Swenson said he might have to pause briefly from time to time during the trial to take care of judicial business. The trial would be in accordance with the order which referee Cochrane had issued on October 18, 2011. He had to say, however, the case appeared to him to be a “mess”.

As the trial began, Judge Swenson took charge of the proceedings to continue the line of questioning that Judge Reding had begun on May 1st. He wanted first to nail down points where there might be agreement between the parties. The debts owed on April 15, 2011, were a good place to begin. I had supporting documents for all these debts. I wanted first to submit my spreadsheets, Exhibits 1 through 3, to Ms. Wing Sun and the judge. She objected because there was no supporting evidence. Judge Swenson agreed, however, to accept those documents for illustrative purposes.

At that point, I ran into a major problem. The judge would not accept the exhibits as is because they had been numbered incorrectly. My numbered exhibits began with the number one - Exhibit 1, Exhibit 2, etc. Judge Swenson said my exhibit numbers should have started with 101. He was quite upset that I had not followed court rules. From that point on, the judge renumbered all my exhibits as they were submitted, making sure that the numbers were larger than 100.

I could not understand why the judge was making such an issue out of what seemed to me to be a minor point. Admittedly, attorney Wing Sun had also suggested that I renumber my exhibits in one of her emails; but, based on past experience with her, I assumed her suggestion was meant to harass me. Now the renumbering turned out to be a significant problem. It should not have been since my exhibit numbering differed from the other side’s. I had prefixed each exhibit with E- (E for exhibit), for instance: E-1, E-2, E-3

I later checked court regulations about numbering exhibits. There was nothing here which required exhibits to begin with 101; they just had to be numbered in consecutive arabic numerals. Then, going through my papers, I came across the Trial Order which referee Cochrane had issued on October 18th last Year. It was among the billing letters received from James Gurovitsch. There, plain as day, it was written: “Petitioner’s exhibits shall be marked beginning with the number 1. Respondent’s exhibits shall be marked beginning with the number 101.” That, then, was why Judge Swenson was upset. I had evidently ignored a court order.

In truth, I did not know about the order at the time. After the futile mediation session on October 17, 2011, I wrote a letter to the court, and my attorney, James Gurovitsch, had promptly withdrawn from representing me. The court sent the trial order to Gurovitsch. Gurovitsch, no longer my attorney, forwarded this document to me. I briefly glanced at the order but then put it in a folder with Gurovitsch’s other letters, unread until after the trial. Referee Cochrane’s order also set the time and place of the trial - May 7 and 8, 2012, in room 517 of the Family Justice Center. I had remembered the date of the trial but not its location. The trial order was, indeed, the key to much of what happened at the trial. Judge Swenson did accept my exhibits but only on condition that they be renumbered. That process slowed down the trial, much to the judge’s irritation.

The first exhibit considered at trial was a quarterly statement from Citibusiness which attorney Wing Sun submitted perhaps to show that I had allowed others besides Lian to use my credit card and thus dissipate marital assets. Evidently, she considered the fact that the report showed two other credit-card account numbers in addition to the ones assigned to Lian and me a “smoking gun”. Were those cards given to other persons? Judge Swenson reviewed some of the charges appearing on the statement. Progressive Insurance? Wholesale Fashion? Were these charges that I had made? I told the court that they were not. I had been a victim of identity theft.

Judge Swenson then went systematically through evidence relating to debt on April 15, 2011 - the US Bank mortgage, Chase, First Bank of Omaha VISA, Advanta, the two US Bank unsecured lines of credit, the Citibusiness credit card, the Menards card, and finally the big one, the NationStar mortgage. I submitted my supporting exhibits for this debt, the judge renumbered them in rather chaotic fashion, and they were accepted into evidence. This was important work I had expected to do during my own testimony but now it had done for me. Half of the debt section on exhibits 1 and 2 was finished. There remained the debts owed at the time of marriage.

After Judge Swenson was finished with this part of the evidence in the middle of the morning, he turned the floor over to Ms. Wing Sun. She now took testimony from her client. Lian's initial testimony concerned how much work she had done in the apartment at 1708 Glenwood to help the rental-property business. She said she had cleaned the units after tenants moved out, which included cleaning the stove and bathrooms, washing walls, and changing light bulbs. She said she had cleaned apartments even when she was sick. She changed carpets in the units between tenants. Then, too, she had found some Chinese handymen to repair an apartment unit after a fire. She had negotiated prices with them and supervised their work. She had unlocked doors to apartment units when the pest-control technicians needed to enter. She had done cement work in the parking lot, picked up garbage around the trash containers, and shoveled snow off sidewalks in the winter. She regularly went to garage sales to buy used tools for me at a good price.

In reality, I could only remember one time when Lian helped clean an apartment unit after a tenant left; and that was shortly after she filed for divorce. She might have spent two hours on that job. Otherwise, Lian hardly ever set foot in the building. She did not install or “fix” the parking lot; she had watched me caulk some cracks in the pavement before the onset of winter. We did not regularly change carpets after changed tenants but only when they remained soiled after shampooing. Actually, Alan Morrison did most of the maintenance work at 1708 Glenwood Avenue. When he checked the work of the Chinese contractors, he found their work to be shoddy. But it was not yet time for me or him to testify.

Attorney Wing Sun made a great effort to show that the apartment building at 1708 Glenwood Avenue was purchased with marital funds. She suggested that I kept “rolling over debt” to pay for this property when the money might have been used for household purposes. I submitted the deed to 1708 Glenwood, issued in 1997, as an exhibit. The property was fully paid for at the time of marriage.

The judge asked Wing Sun how she knew that the property was burdened with debt in January 2000. Did she have any documents supporting this claim? Attorney Wing Sun replied that she had asked for such documents through James Gurovitsch when he was my attorney but I had failed to provide them. The judge asked her to produce an email to that effect but she said it was in a file that could not be accessed on her laptop computer. Later she said the request for evidence of premarital debt on the apartment was included in her “Production of Documents” request. However, she said she had forgotten to bring her discovery file with her that day. She questioned the authenticity of the deed I submitted for the property at 1708 Glenwood because she said it lacked a proper legal description. I sensed that the judge was becoming aware of this attorney’s habitual lying.

Judge Swenson then asked me about the financing of 1708 Glenwood. How did I know there was no debt against this property at the time of marriage? I testified that I had paid off a contract for deed to purchase the property. How did I know, though, that the contract was paid off? I said it was because deeds are not issued unless the related encumbrances are fully paid. This happened in 1997 - three years before the marriage. Where did I get the money to pay off the contract? I said I paid half the $72,000 purchase price as a down payment at the time of purchase. I paid on the contract for several years and then cashed in my deferred compensation that was acquired while working as an accountant at the public transit agency. Otherwise, the money to pay off the contract for deed came from current earnings and, possibly, stock sales.

I also testified that, after the deed was obtained, I never borrowed any money against the apartment building. Ms. Wing Sun believed otherwise. She asserted that marital funds had been used to pay debt existing at the time of the marriage although she had no evidence to support that contention. She said that the debt against 1708 Glenwood had never been fully paid off.

What about the debt at 1715 Glenwood? I said there was no second mortgage against this property. Ms. Wing Sun agreed. However, she now objected to the stipulated value of the Milford property. Judge Swenson would not buy that. She had knowingly entered into an agreement. I testified, and Wing Sun agreed, that there was no debt encumbering the Milford and Wisconsin properties.

Even so, attorney Wing Sun wanted to assert a marital claim to the Milford property. Why? Lian testified that the property was old and dirty when she arrived in the United States. A curtain rod was broken. She had to clean house from the attic to the basement each time she visited. She cut trees beneath the patio (the greenhouse beyond the porch). Even though the tenant mowed the lawn, she had to cut a strip of uncut grass at the edge of the yard. Lian said she had fixed a gate near the trash and picked up loose garbage around the plastic container. She had put up “No Trespassing” posters on the property. She said that, after I told her that the tenant doesn’t follow the rules, I asked her to put locks on the doors so she could not enter rooms that she didn’t lease.

How often did Lian visit Milford? She replied that in recent years it was once or twice each year. Each visit to Milford, she said, averaged two to three weeks. On her first visit to Milford, she stayed over twenty days. Lian testified that she had helped me to finish the “driveway” by which she meant a small parking space up the road on the side of a hill.

Lian's statements about work done in Milford were preposterous. She and Celia had stayed in Milford maybe two days after their arrival in America. She had visited Milford maybe a total of five times during the marriage, usually for short periods of time. Her main work contribution was to install padlocks on the interior rooms, antagonizing the tenant. I was counting upon testimony from this tenant, Linda Davis, to set the record straight.

Referee Cochrane’s trial order had prescribed that each party notify the other of testimony that would be made by expert witnesses at least seven days before the trial. The only expert witnesses were the appraisers hired by Ms. Wing Sun. She had not given me copies of their written appraisals in time to meet the deadline. Even so, we had stipulated to the values of most real estate at the settlement conference hosted by Judge Reding. We entered that agreement into evidence.

Judge Swenson asked me if I had read all the appraisal reports. I said I had seen all but the appraisal of 17xx Glenwood Avenue which was listed among the Petitioner’s exhibits but, in fact, had been missing from the packet of materials. Judge Swenson instructed me to review that appraisal during lunch for possible objections.

For a few minutes, the judge allowed me to explain how I had calculated real estate values. The calculations were presented in Exhibit 3 (or its replacement number). My calculation of fair market values of properties in Minneapolis was tied to an appraisal of the duplex at 1715 Glenwood Avenue done by another appraiser in April 2010. I attempted to submit a photocopied page from his report into evidence. The judge rejected it. I then attempted to enter the entire report into evidence. Judge Swenson rejected this, too. I had not shown the court and the other party this report seven days before the trial. Furthermore, the appraiser was not scheduled to be a witness. Since he could not be cross-examined, the evidence that he produced was hearsay.

Now it was time for opening statements from both parties. Attorney Wing Sun began by saying that I had begrudged Lian any money while spending lavishly on my former wife. Now Lian wanted $300,000 from me. All my non-marital properties had appreciated in value during the marriage due to my wife’s hard work. All my non-marital stocks lost their non-marital character when the funds received from their sale were co-mingled with marital funds. Our debt was not acquired for marital purposes but because assets had been dissipated to third parties. Now Lian was asking for me to assume $21,000 of her attorney’s fees. Lian also wanted $300,000 from the sale of my apartment building and the remaining stocks. She wanted the court to award her half of my non-marital assets. She was asking for the works, in other words.

When my turn came to make an opening statement, I did not deliver a prepared statement. Winging it, I instead identified myself as a 71-old man who had married a woman from China twelve years ago. She had filed for divorce after I was arrested for domestic assault on trumped up charges. We were going through a long and difficult divorce. I had tried three times to settle but the other side had always held out for more. Initially, I had an attorney, I said, but Ms. Wing Sun ran up the bill, especially during the mediation session. After spending $5,500 in attorney’s fees, I ran out of credit and was forced to represent myself. The judge listened intently.

At this point, I ran out of emotional energy and could think of nothing more. I never got around to stating what I wanted in the settlement. Ms. Wing Sun objected to my presentation. The judge adjourned for lunch. It was noon. We would reassemble at 1:15 p.m.

 

30. First day of the trial: in the afternoon

I had lunch at a nearby Asian restaurant in the skyway. After ordering two egg rolls and a Coca Cola, I looked over the appraisal of 17xx Glenwood. Compared with my own calculation, the $160,000 value seemed high. I thought of challenging this number on the basis of the comparables chosen for this property. But then I thought I was chasing a meaningless claim. The fourplex at 17xx Glenwood Avenue was my non-marital property. What difference did it make if the appraised value was too high or too low? Even if (as I then assumed) there would be a marital component in the difference in market values at the beginning and end of the marriage, such differences in value would have little impact upon the settlement. Rather than spend precious time arguing about the value of this property, I would simply accept the appraiser’s estimate. Saving a few minutes of trial time was more important than saving a few dollars related to the appraisal.

We resumed at 1:15 p.m. The rest of the day was consumed with Lian's testimony and my cross-examination of her. Lian first testified that, despite the time spent in China, she never intended to move from Hennepin County. That was meant to deal with the possibility that she did not meet the 180-day residency requirement in the county when she filed for divorce. Although I could submit evidence to show otherwise, I held my tongue, not wishing to sabotage the divorce. Judge Swenson warned the other attorney not to repeat testimony given in the morning.

Lian said that the duplex at 1715 Glenwood Avenue, purchased in 2004, was marital property. It was marital because the property was purchased in 2002. She said the duplex was purchased for $20,000 but there was a mortgage of $173,000 on it. Other debt had been transferred to this loan. Therefore, the money was not spent to benefit the family. Lian was claiming that part of the debt consolidated in the mortgage was acquired before the marriage. What happened in 2007, her attorney asked? Lian replied that in 2007 Sheila and I planned to have a baby together.

For some unknown reason, attorney Wing Sun then asked Lian to give her impression of the various properties I owned at the time of the marriage or had acquired since then. Lian remembered 1715 Glenwood as having broken windows. The basement leaked water and there was no insulation in the walls. The building had not been occupied for several years. The yard was in poor condition. She tossed out numbers for money spent in 2006 - $248 for materials (or should there be a zero or two after that number?) She had no recollection of the money spent in 2007.

Lian said that 17xx Glenwood Avenue, our home, did not have a mortgage against it in 2007. (No, there was a mortgage with Wells Fargo on this property beginning in 2003 and running through 2010.) What about the $84,000? Lian wasn’t sure.

Regarding 1708 Glenwood Avenue (the apartment building), Lian said when she first saw this building in 2001, it looked OK. She testified that we fixed the roof, the windows, and the parking lot. After each tenant moved out, we changed the carpet. (Like Tonto, I was asking in my mind: What do you mean “we”?) Lian had done virtually nothing to maintain the apartment building during the entire marriage. The roof and parking lot had received their last major repairs before the year 2000.

As for the Milford property (which Lian said was on 5 acres of land rather than 0.75 acres), she said the house was built 100 years ago, it looked old, and it was without a parking lot. The house had been vacant for a long time. The attic was dirty and old clothes were lying around. In the summer time, there were bugs in the house. She had to remove dead bugs from the floor of a bedroom. I was wondering what this testimony had to do with our divorce. She was making a better case for me being a slumlord than a spendthrift husband.

That brought the testimony to our respective spending habits. She said Chinese people are good with money. They always buy at low prices. She, for instance, often went to the farmers market. Customarily, she spent less than $50 per month on herself, buying mostly used clothing and hygiene products. As for me, she bought all my clothes. I bought lots of office supplies, always buying the best rather than the cheapest products. Also, I spent money on “someone else”. My office-supplies purchases were nothing compared with that.

Lian testified that she brought no debt into the marriage. The Chinese value system will not allow debt to be brought into a relationship. Their philosophy is: Spend little and save. How had she contributed to the marital debt? She had spent some money on jewelry and a luxury watch while I was giving away much larger sums of money. She was not sure why we needed to borrow money in December 2010. I had told her, while she was in China, that we would be refinancing existing debt at a lower rate of interest. I never told her where the money went. She learned that another woman was then having my baby while she was receiving cancer treatment in China, trying to save money for me.

What about the issue of the apartment in Beijing that was sold in 2010. Lian said that in 2010 daughter Celia was living in suburban Virginia paying high rent. She discussed with me the need to buy an apartment for Celia. Lian said she discussed everything with me. She wanted money to provide a down payment for Celia’s town house. Had this sale been reported in our taxes? Probably not. It was a gift from parents to their child. There is no tax on gifts to children under $100,000, she said. She also said this had all been discussed with me.

Regarding her own finances, Lian said she had a 401(k) worth $5,000. Her Chinese bank accounts showed a monthly income of 2,000 renminbi, money used to pay for apartment expenses and medications. Another bank account was used to transfer money from the Bank of China relating to the apartment sale. She also had an bank account at Wells Fargo jointly with Celia. Its current balance was $375.12. Lian also said she has an account with me. (Perhaps, she meant the credit card?) She said her car, purchased by me, was worth $1,000. She also bought a wedding ring when we were married in January 2000.

Lian said she wanted to keep the items listed in Exhibit #10, worth $2,000. She was on a special diet for cancer and diabetes. She needed roughly $2,000 a month from me to subsist. The amount of money required for rent and utilities depended on where she lived. Lian also needed approximately $100 per month for clothes, $450 per month for food, and $250 per month for transportation. She was now trying to move to Virginia. I wondered how she had supported herself during the past two months in the absence of money from me.

Lian referred to my loans to third parties. In one email, I had admitted to giving a woman I had sex with $89,000. Some money was stolen but the woman promised to pay it back. She referred to life insurance that we had received during the marriage. I might have been lying. Perhaps I bought the policy. It was an AXA Equitable policy that paid over $100,000.

What did Lian want from the court? “A fair trial”, was her judicious answer. Besides that, she had several other requests. First, she wanted $2,000 in monthly maintenance. After all, she needed something for being married to me for eleven years. She was also asking that a substantial portion of her attorney’s fees be paid by me. She had needed to hire an attorney because she was ignorant of U.S. law, her husband had an affair, and she spoke limited English. She was overwhelmed and heart-broken by her situation. Lian then submitted to the court an accurate and current copy of billings from her attorney that totaled $21,075. Judge Swenson said I would receive a copy.

Why should I pay part of this attorney bill? I had delayed litigation and increased its cost by producing 100 pages of documents that Ms. Wing Sun had to review and to which she had to make a response. I had also sent her many emails that cost money in reviewing. I had delayed the discovery process. Those were some of the reasons why I should pay part of her attorney’s bill.

Throughout the questioning, Ms. Wing Sun kept asking Lian what is called “leading questions”. Judge Swenson cautioned her against continuing that practice. He said she was dealing with an inexperienced adversary who might not know the rules so well. Spectators in the court later told me that the judge seemed upset that I did not object to some of the more flagrant examples of manipulated testimony.

Finally, my turn came to cross-examine Lian . My most urgent task was to refute the testimony that she had offered about doing work that increased the value of my non-marital real estate and therefore made part of it marital. How could I find evidence to show that she had not done something?

I had two thoughts: First, if Lian had spent so many hours working in the apartment building, she would surely know its layout. If she did not know much about how the individual units were arranged, that would suggest that she had not spent much time there. Second, the condemnation of our home in March 2011 would be an event disturbing to someone committed to maintaining the marital estate. I would therefore ask Lian what work she had done to abate the condemnation orders. She could say anything, of course, but the work orders issued by the city were quite specific. If she said she did a particular piece of work that had not been ordered, that indicated that she had largely ignored the condemnation and was, therefore, not telling the truth.

First, I addressed her claim about changing carpets in the apartment units. Did she ever change a carpet? Lian said she helped me change carpets. If fact, Alan Morrison had arranged for new carpets when needed. I asked if anyone else had worked in the fire-damaged unit before the Chinese contractors. The correct answer was Alan. Her answer was that Alan had harassed the contractors so much that they quit their job. In fact, Alan had checked their work after they said they were done and found many problems with it. I would not pay the entire bill until they corrected many of those problems. How much time had Lian spent working in the apartment building? She said she had spent 1,280 hours there - more than a half year of full-time work. This was a preposterous claim but not one that could be easily refuted in court.

So I reverted to my earlier plan. I asked Lian how many units there were in the apartment building. Nine - she knew that. How many units on each floor? There were three units on each of the three floors. Were they efficiency apartments, one-bedroom, or two-bedroom units? Lian knew that the two upper floors each had two one-bedroom units and an efficiency. She was doing quite well in answering my questions. But then she tripped up. She guessed that there was a single one-bedroom apartment and two efficiencies at the basement level, based on the fact that the boiler room was also there. The correct answer, however, was that the basement level had three efficiencies. I would ask Alan the same questions to confirm the right answer.

Now I asked a different set of questions. How many of the apartment units had she entered? Lian said she had been in all the units except for unit #3 which was at the end of the hallway on the basement level. Well, then, I wanted to ask about some of the units where she had been: When you enter unit #4, is the bathroom on the right side or the left side for someone standing at the door. Lian correctly answered that it was on the right hand. She was familiar with the apartment above it and guessed that apartment #4 had the same layout. Next question: When you enter apartment #6, is the bathroom on the right or left side? Lian answered: the right side. This was incorrect.

I also asked her about the bathroom position in apartments #1 and #2. Lian answered those questions correctly. It was on the left side in apartment #1 and the right side in apartment #2. Even so, she had answered two questions incorrectly. After eliciting the correct answer from Alan, I would argue that Lian was not as familiar with the apartment layout as someone who had spent half a year working there ought to have been. Ms. Wing Sun objected to those questions but Judge Swenson overruled her saying that he understood the point of my questioning her knowledge of the apartment layout.

Ultimately, however, Lian may have had the last laugh. She was using her Chinese interpreters to best advantage. Every time I asked her a question, the interpreter had to translate it into Mandarin Chinese, Lian then answered in Chinese, and the interpreter gave her answer in English. It was taking twice as long to answer each of my questions as it normally would have.

Lian was running out the clock. Instead of giving a simple “right” or “left”, she would answer my question like this: “Well, let me see. If you walk into that apartment, the kitchen is straight in front of you and the living room is on the right. I think there is a closet to the right. The bathroom, if I am not mistaken, would be next to the kitchen on the left. That’s right. The bathroom is on my left.” It could take three or four minutes for Lian to answer each such question, especially when the questioning was run through a Chinese-language interpreter.

Once or twice, I angrily remarked: “Stick to the subject. Just tell me if the bathroom is on the left or right.” Even the judge took notice of this tactic. He said that he did not know what was being said in Chinese by the translator but he did come to realize that Lian was rambling on with unneeded testimony. It was an implied reprimand to the other side.

But Judge Swenson also criticized my performance. He said I was repeating questions too many times when I did not receive the answer I wanted. I was editorializing about answers instead of sticking with questions. He said cross-examination was difficult even for an experienced attorney. I would be better off concentrating on my own testimony instead of wasting time in the cross-examinations. They counted as part of the time that would be given to me to make my case.

I must admit, in hindsight, that my lengthy questioning of bathroom placements backfired; but it was the only way at the time that I thought I could disprove Lian's claim to have spent so much time working in the apartment. She had given me little advance warning that the bulk of her case would rest upon such arguments. None of the exhibits had anything to do with this claim. It all had to do with witnesses at trial.

What tripped me up was that Lian was answering many of the questions correctly. She had an amazing memory of room layout, honed perhaps by her years of being a hotel general manager in China. I had to keep asking much the same question before receiving an answer that I could use. I did not know how much evidence would be needed to make it clear to the judge that Lian was lying about her excessive claims to have done work.

The judge’s disparaging comments about my courtroom tactics came at the end of the day. Before then, however, I had questions about other work that Lian claimed to have done. If Lian said she visited Milford once or twice a year during the marriage and spent an average of two to three weeks for each visit, she must have spent around 40 whole weeks in Milford during the marriage. Linda Davis could easily refute this claim. Lian also said she helped built the “driveway” - oops, parking space. Had this space been built largely within a year or had the project taken several years? It had taken about four years. Lian admitted that she had been there only one of those years. She said she had helped me shovel some gravel and dirt behind the retaining wall.

Why were locks put on the rooms? Lian said it was because Linda Davis, the tenant, was a photographer who needed frames for her pictures. There were plenty of old frames in the attic. She locked the doors to prevent Linda from stealing frames. If that was the case, however, why did she put locks on a number of the interior doors rather than just the door to the attic? Lian also claimed that I had asked her to put locks on the doors. This was untrue. Among other things, Lian's lock on the door to the living room where the thermostat was kept prevented Linda from turning the heat down during the winter so that my heating bills were unnecessarily high. It also prevented Linda from discovering why water was leaking down into the room next to the kitchen, causing unnecessary damage.

I also asked questions relating to the condemnation of our home at 17xx Glenwood Avenue. Had she done any work to help lift the condemnation. Lian said she had painted the exterior. Editorializing, I pointed out that the exterior was stucco which did not require much painting; in any case, it had not been ordered by the inspector. Lian then said she had painted the stairwell leading up to our unit. This, too, was not included in the work orders since the inspector was concerned about areas of the house rented to others. The fact was that Lian had done work mainly in her own living quarters. She had not contributed much to our rental-property business, even when its ownership was in peril.

Since Judge Reding had let Lian off the hook in regards to the tax liability resulting from the sale of her Beijing apartment, I had some questions about that situation. Did she mention to me beforehand that she was thinking of selling that apartment? If so, when and where? Lian said we had discussed the possible sale in July, 2010, in the United States. That was untrue. I was informed of the sale in Celia’s Virginia apartment in October after the sale had taken place. Lian testified it was actually my idea to sell the Beijing apartment to make a gift to Celia. I asked if I ever saw legal or financial documents related to the sale and transfer of money before receiving such documents in discovery? Lian said, yes, she had shown me the receipt of money from the sale as we flew together to Dulles airport in October. She was lying, of course, but I knew there was no way I could disprove what she said.

Finally, I had questions about her living arrangements in Celia’s town house in Herndon, Virginia. Lian said she was paying Celia $750 per month to stay in an empty bedroom but the rent had not been paid. Therefore, it was a loan from Celia. Since Lian , her mother, had financed the down payment in purchasing the town house, I wondered how hard Celia would try to collect the debt? I also wondered how, if she was without income or means, Lian would be able to repay the debt? These were questions that I did not ask because we were out of time and the judge was irritated by my prolonged questioning.

After I finished with the cross-examination, Judge Swenson made some brief comments about the trial and then announced that it would resume at 9:00 a.m. on the following day. I gathered my papers, packed them into the two brief cases, and walked out of the court room and the Family Justice Center.

On the way out, Celia asked me if she could stop by the house that evening to gather some of her mother’s belongings that were left in my unit at 17xx Glenwood Avenue. We made plans to meet at 7 p.m. I spent much of the evening, however, producing a typed version of my handwritten notes of the first day’s trial’s proceedings. I needed to offer contrary testimony to some of the things that Lian had said on the first day. During the trial, it would be easier to work from a typed than a handwritten text.

Later in the evening, Celia called to say that she would not be coming to my house after all. She had decided instead to spend the evening with Wendy, a friend from Carleton college who was now working for the college. It was just as well. I needed a good sleep to prepare for events on the second day.

 

31. Second day of the trial: in the morning

I did not sleep quite as soundly for Tuesday’s trial as I had the night before. In the morning, I dressed in the same suit and, this time, took three brief cases bulging with papers with me as I headed for the bus stop. I bought a cup of coffee at Caribou coffee in the skyway several blocks away from the Family Justice Center. After drinking some of the coffee, I made my way to the court house first through the skyway and then outside where it was lightly raining.

As I was looking through my papers in the fifth-floor hallway, a tall young man named Michael Petelin asked if I minded if he sat in on the trial. I gave my permission. He said that he himself was going through a difficult divorce that had taken two years. He had finally managed to dismiss referee Cochrane whom he described as totally biased. I said the chief judge was presiding at this trial. As sympathetic as I was to his situation, I told Petelin that I needed to have time alone to prepare myself for the trial. Maybe we could talk in a few days. He gave me his business card from a job he had lost because of divorce stress.

Ms. Wing Sun’s case continued as we began the second day of the trial at 9:00 a.m. She had two witnesses: Diane Nelson and Celia McGaughey.

I thought Nancy’s testimony was relatively truthful. Though originally from China, she needed no translators. She testified that she had visited the house at 1715 Glenwood Avenue several times. The judge asked: Did you go inside the house or just drive by? She had been in the house once in Lian's company while the building was being renovated. The house looked “damaged”; there were holes in the wall.

As for the other buildings owned on Glenwood Avenue, Diane Nelson did not notice much change in their condition during the marriage. She had never been in the apartment building. She had also not been in any of the units at 17xx Glenwood other than Lian's own living quarters. Lian had done work to make it a nice place. Asked if she ever saw Lian do any maintenance work elsewhere, Nancy answered that the work seemed to be confined to her own unit in the fourplex.

Now there were questions about Lian's living habits. Nancy said she was frugal. Lian often shopped at Goodwill and the farmer’s market. Mainly she brought necessities such as groceries and underwear. Lian was currently unemployed. She had worked at Target for three years. She could not work now because of her health. She was often tired and took daily injections of insulin. How was Lian's English? When they were together, Nancy and Lian spoke mainly in Chinese. Sometimes Lian could not express herself properly in English.

The next witness was my step-daughter, Celia. Up on the witness stand, she was giving support to Lian's contention that I had been informed of her selling the Beijing apartment in 2010 and had approved of this. But first, she gave her own employment history. She was working as a Chinese linguist in the security field while also working as a dance instructor and as a tutor giving private lessons in Chinese. She had previously been a flight attendant with United Airlines.

While working in that position near the Dulles airport, Celia said she had rented a high-rent apartment. Her parents had suggested that she find more suitable living quarters. Therefore, she had invited me to come to Washington, D.C. to inspect several town houses that she might buy. She wanted me to look at the features in each house and give my opinion as to which was the best buy. She also sent me a copy of the purchase agreement to review for the town house finally chosen. This and an email documenting that I had flown to Reding were entered into evidence. The town house cost $320,000. A twenty-percent down payment was required.

That part of Celia’s testimony was truthful. What followed was not. I did not know that the Beijing apartment had been sold until Lian told me this in the morning of the day when we were to look at prospective town houses for Celia to buy. Celia testified, however, that I had known about plans to sell the apartment beforehand. How had I known? She said that we had had discussions about this on the telephone in the summer of 2010. (The Beijing apartment was sold in September, 2010.) It was both her mother’s and my idea for her to use that money to buy the town house in Virginia. Was the money a loan or a gift? It was a gift. Was the word “gift” ever used? No, in Chinese culture it is understood that parents give their children such things. Did we have any discussions of where the money was coming from? Yes, we had. I was informed of this as well.

Under cross-examination, Celia’s testimony showed some inconsistencies. I asked her what banks were involved in transferring the money from the apartment sale in China to the account in the United States from which the down payment on the town house was made. Celia said the money had come from “the bank of Mom and Dad”. What was the name of this bank? The Bank of China. Did I have an account at the Bank of China? She had no answer for that question.

The money from China had gone into Celia’s account at the PNC Bank. Besides the down payment, some of the money had been used to remodel Celia’s town house - $3,000 to $4,000, perhaps. Some other money from China had been used to pay down Celia’s student loan. I asked if anyone else had helped for pay for the town house. Celia said “no”. That was questionable. In one of the exhibits (Exhibit #107), I had an email from attorney Wing Sun to James Gurovitsch dated April 7, 2011, stating that “the money Lian gave (to Celia for purchasing the town house) was not enough and her grandparents gave Celia more.”

Celia was a good girl (if a 29-Year-old woman may be called that). She was self-supporting, responsible, hard-working, generous, and reasonably honest. It pained me that she was now willing to lie upon the witness stand although I knew it was out of loyalty to her mother. Even so, one’s sense of self-esteem takes a hit from such dishonesty. There was also a risk of committing perjury.

The fact was that Celia and her mother were a team ever since Lian raised Celia as a single parent. That is what made American divorce law so unrealistic. The court would consider Lian's financial situation by itself, assuming that Celia had no legal obligation to help her mother. But, of course, Celia would; it’s a part of Chinese culture.

In reality, Celia’s earnings and assets were relevant to Lian's ability to support herself. In addition to her earnings, Celia stood to inherit money or property from her wealthy grandfather, now in his 80s, who had been vice chairman of China Minmetal Corporation in Beijing. He was a multi-millionaire in U.S. terms; and Celia’s paternal uncle, who owned a chemical company in Germany, might even be a billionaire. Her biological father, living in California, had supposedly given Celia nothing. So here Celia and Lian were, fleecing me in the courts, while they were poised to live quite comfortably in the United States, both from Celia’s earnings and her likely inheritance. But I could not argue that in court.

Celia’s testimony continued to the subject of her mother’s contribution to improving my rental properties. Celia, too, had once visited the duplex at 1715 Glenwood Avenue while it was being remodeled. She thought the porch on our four-plex at 17xx Glenwood Avenue might also have been remodeled and that the parking lot in back of the house had been “resurfaced” several times. (It was a concrete lot which developed cracks each year. I occasionally filled them in with a caulking gun.) Did Celia see any improvements to the apartment building during the marriage? She thought a new roof might have been put on the building. How did she know that? She had heard her mother and me talking about it. (The present roof was installed in 1997.) Had she witnessed her mother doing any work at 1708 Glenwood? No, but her mother had once asked her to come over to the building to help clean. She was then too busy with college to notice or remember such things.

Celia was on the witness stand for a long period of time testifying about things that were mostly already known. I did a thorough cross-examination, concerned especially about the sale of the Beijing apartment and the claim of Lian's role in “improving” my properties. The first point was relevant to the question of who should assume responsibility for the unpaid capital-gains tax that had not been reported on our income taxes in 2010. I was in a stronger position to have Lian pay the tax if I had known nothing beforehand about the sale. The second point was relevant to Lian's claim of a “marital component” to my non-marital real estate. This would both affect the property division and lay a foundation for the court to order me to sell non-marital property to meet Lian's settlement demands. However, I might have argued too much. Judge Swenson criticized me for spending too much time in the cross-examination of Lian's witnesses. This would be counted against the time I had to make my own case.

Finally, at 11 a.m. on the second day of the trial, it came time for me to present my case. I would be offering testimony on my own behalf. I thought I needed first to refute certain points in Lian's testimony given on the previous day. I used the sheet I had typed up in evening. I noticed that my friend and fellow landlord, Charlie Disney, was seated in the spectator section. He had just returned from his winter home in Arizona. In the afternoon, another friend, Ed Eubanks, came to watch the trial and possibly testify.

First, I dealt with the issue of dissipated assets. The judge had wondered why there were four separate accounts for the Citibusiness credit card and why Progressive Insurance and Wholesale Fashion had charged the card? I said it was my attempt to deal with fraud. Twice that year I had cancelled cards and ordered new ones to throw the identity thieves off course. I did not intend for Progressive Insurance or a number of other unauthorized vendors to charge my account. Such expenditures were “unintended”. The judge nodded in recognition. I had read the night before that to prove dissipation of marital assets one had to show that the money was intentionally given to a third party.

At this point in the trial, I stated explicitly: “Sheila Gorman is not my mistress. In no way was the money given to her or taken from me by her a payment for sexual favors.” I could see Judge Swenson writing down my statement in his notes. I did not deny that I had ever had sex with Sheila Gorman, who was my former wife, but I did imply that the sex was not of a frequency or nature befitting a mistress relationship. I did not mention the pregnancy.

Now it was time to nail down my claim to increased debts during the marriage. We had covered the debts owed on April 15, 2011, in discussions on the first day. I planned to go through the lines on exhibit E-2 (or its renumbered equivalent) which the judge already had. Now I needed to present evidence concerning debts owed at the time of marriage. There were three bank statements of US Bank from this period, one of which revealed a balance of $4,519 owed in my reserve-line account. I could not find credit-card statements for the accounts open at that time, so I estimated an additional $1,000 in debt. I did not go through the whole argument showing accounts open in 2000 in the PrivacyGuard listing, but my case was evidently good enough. Between the $5,519 of debt owed at the time of marriage and the $329,923 of debt owed in April 2011, my debt load had increased by $324,403. This was all marital debt.

Turning to the assets, I attempted to show that there had been a substantial decline in the market value of stocks that I owned during the marriage. I did not realize at the time that gains in the value of stocks held during the marriage did not represent a gain in marital assets. Conversely, such losses were not a decline in marital assets. The same was true of real estate. Changes in the market value of non-marital real estate held during the marriage did not represent an increase or reduction in marital assets. In my ignorance, however, I proceeded to make the opposite case.

First there were the stocks owned on January 28, 2000. They were listed in Exhibit 2, giving the names of the companies, the number of shares owned, and the market value of the shares on that day. First I needed to prove that I owned the shares. My mother had given me the shares in the First Union Bank, the Germany Fund, Pacific Gas & Electric, Target, and Gannett. Therefore, I did not have purchase confirmation slips from a broker to show I owned the stock. I did, however, have photocopies of the stock certificates of stocks once owned. I proceeded to enter these into evidence. Purchase confirmation slips were used for the stock in Latin American Equity, BMC, US Bank, and Control Data, whose shares had been acquired through a stockbroker.

Ms. Wing Sun objected that the stock certificates and purchase slips did not prove that I owned those stocks on a particular day. I replied that there was no statement anywhere of stocks owned on a particular day. All I could do was give evidence of ownership before the marriage. Absent evidence that I had later disposed of those shares before the marriage, it would indicate that I owned the shares on January 28, 2000. Judge Swenson remarked that my reasoning seemed logical to him.

The judge was tougher on me when I turned my attention to the price per share of those stocks. I attempted to enter into evidence a sheet that gave the price per share of First Union Bank - $32.00 - on January 28, 2000. Wing Sun objected that such evidence was “hearsay”, and Judge Swenson initially sustained her objection. I think the judge was frustrated that the sheet given into evidence had so many rows and columns. I had not marked clearly where the $32.00 price was to be found.

Judge Swenson asked what he was looking at. I said it was a page from a book on early stock prices kept at the Minneapolis Public Library. “What was the title of that book?”, the judge wanted to know. I could not immediately answer. Then I found the title: “National Daily Stock price Record, first quarter of 2000”. I blurted out the name when I found it in my list of exhibits. The judge expressed irritation. He had warned me several times not to speak out of turn. Who had published the book, he asked? Did I have a copy of its title page? Nevertheless, Judge Swenson said he would accept my exhibits of stock prices into evidence, perhaps because of their possible use in an appeal.

Now I turned to submissions of exhibits relating to the stocks owned on April 15, 2011. The judge remarked that it was foolish of me to go through this exercise because the stocks were mostly non-marital property. I explained that the difference in market value of stocks owned at the time of marriage and on April 15, 2011, represented an increase or decrease in marital property. Judge Swenson said it did not work that way. There were special rules for dividing marital property in a divorce. If I regularly traded in stocks, he would accept that argument. But non-marital stocks held throughout the marriage were not relevant to the calculation of marital property. That revelation threw me for a loop. My whole approach was invalid. I did not attempt to enter any of the exhibits about stock ownership or value on April 15, 2011.

As we approached lunch time at noon, Judge Swenson suggested that, in order to save time, attorney Wing Sun and I should sit down to decide which exhibits we would each accept without objection. Also, he asked me to renumber my remaining exhibits, beginning with 136. Do this over the lunch hour, he said. The trial would resume at 1:15 p.m.

 

32. Second day of the trial: in the afternoon

For lunch, I went back to the same skyway-level restaurant where I had eaten lunch on the day before. I had brown rice and a one-dish serving of menu items. Ms. Wing Sun was eating in the same place. There was time for me only to wolf down the food. Then I hurried back to the Family Justice Center where I took a conference room on the fifth floor and began the work of renumbering my exhibits. There was a typed list of the original exhibits numbered 1 to 133. On a yellow pad of paper, I made a new list of exhibits giving both the original exhibit number and a new number beginning with 136. This would be my new reference guide for introducing exhibits. The list included only what I later planned to introduce. Unfortunately, I did not have time to include descriptions of what the exhibits contained.

I finished my work around 12:45 p.m. By this time, attorney Wing Sun was sitting at her lap-top computer in an adjoining conference room. I gave her the stack of renumbered exhibits to review. She gave me a large white binder filled with her own tabbed exhibits. Rather impulsively, I said I would accept all her exhibits. The reason was that time was running short and I did not want spend time arguing about whether one exhibit or another would be accepted. Wing Sun said she needed time to review my set of exhibits.

Lian and Celia were seated in the hall way. I took an empty chair next to Lian and waited. She handed me a bottle of water. Then Alan Morrison, a scheduled witness, arrived wearing a new suit, which was unusual garb for him. Alan and I went into a conference room for a private discussion. Alan often wanted to talk about issues that he thought I should emphasize. It was a few minutes past 1:15 when we reentered the court room. The judge was already seated at the bench.

Attorney Wing Sun was still reviewing my exhibits in a seat next to me as I took my place at the table. The first business was to take testimony from the Minneapolis appraiser, said to be waiting outside. I told the judge that I would accept the appraiser’s figure of $160,000. We needed to save time. ( His testimony and cross-examination could consume half an hour of precious trial time.) Judge Swenson then told the other attorney that her witness could go home. I delivered the renumbered exhibits which Wing Sun had accepted to Judge Swenson. There were dozens of them. The judge sat quietly making a list of accepted exhibits. As Wing Sun passed more of them to me, I would deliver them to the bench. When the last of my exhibits had arrived, Judge Swenson commented that, because the exhibits had not been numbered properly, we had wasted 45 minutes of trial time.

Now it was time for my witness, Alan Morrison, to take the stand. Mainly I wanted him to testify that, as the maintenance manager of my Minneapolis properties, he had not seen Lian do much work in the buildings other than in her own living quarters. No, he testified that he had not seen Lian cleaning at the duplex located at 1715 Glenwood Avenue during its renovation or afterwards. Had she helped preparing units in the apartment building for the next tenant after someone moved? Yes, he had seen that once. It was apartment #8, not long after she had filed for divorce. That was the only time he had seen her in the building. I asked Alan about the configuration of apartments in the basement and whether the bathroom was on the left or right sides in apartment #6. Unlike Lian , he gave the correct answer both times. This was direct testimony that Lian's claims to have improved the rental properties were without merit.

I now tried to solicit testimony about how attorney Wing Sun had tried to persuade him not to deliver my response to her divorce petition in March 2011. Wing Sun objected on the grounds of relevance and Judge Swenson agreed. But Alan’s next point of testimony was a zinger: He had known me for more than fifteen years, lived for a time in the downstairs unit, and been at the buildings nearly every day doing maintenance work. How much time did he estimate Lian had spent in Minneapolis during the marriage? Alan’s answer was: perhaps 20 percent of the time. Mostly she lived in China. In that case, she could not have done much maintenance work or performed too many chores for me as a housewife.

Alan also testified that he had been a Section 8 tenant at 17xx Glenwood paying a relatively high rent. He moved out to Brooklyn Park mainly because of Lian's relentless hostility toward him. He did not want to cause marital problems for me. As the contractor who supervised the renovation of the condemned duplex at 1715 Glenwood Avenue, I asked Alan to estimate how much money I had spent on that project. He guessed it might have been around $175,000. A crooked plumbing contractor had caused much extra work to be done. At that point, Judge Swenson said he would prefer that we used the terms “duplex”, “four-plex”, or “apartment building” rather than a particular address on Glenwood Avenue.

It was Wing Sun’s turn to cross-examine Alan Morrison. Her questions were intended to show that he was not an independent witness but someone who had a financial interest in a favorable outcome for me at this trial. Was it true that I had decided to give Nelson the four-plex in my will because I did not get along with my sister? She said Lian had seen a copy of the will and she believed he would receive the house. Alan said he did not know what was in the will. I then jumped in to say that until last December my will was written to give Lian and Celia virtually all my property after my death. Yes, it was true that I gave Alan the house and its offsetting mortgage. I had started receiving death threats from Lian about then. I wrote in the new will that if, I should die for any reason within one year, Lian and Celia would receive nothing. The death threats then stopped. So did Ms. Wing Sun’s questions for Alan Morrison.

After this cross-examination, I tried to enter the notarized letters from Keith Baker (a former caretaker at the apartment building) and Linda Davis (tenant in the Milford house) into evidence. The other attorney objected that this was hearsay evidence because those witnesses could not be cross-examined. Judge Swenson sustained her objection. It was a major blow to my case. I then asked the judge if we could take Linda Davis’ testimony by telephone. He agreed. I gave the court clerk a slip of paper with Linda’s telephone number written on it. She placed a call and then told the court that the power was off. Judge Swenson remarked that perhaps we could try to place another call later in the day.

This was a surprising development. Linda Davis was quite reliable. She had told me that she would keep her cell phone on most of the day but especially in the afternoon expecting to receive a call from the court. Next morning, after the trial, I called to ask her what had happened. Linda said that she did have her cell phone the whole day, the power was always on, she used the land-line phone for other calls, and there was no interruption of electrical power, but that a call never came from the court.

This raised suspicions of foul play by the court clerk who said she had placed the call. I suppose it is also possible that she had dialed the wrong number. But Michael Petelin, the young man who had complained bitterly of referee Cochrane earlier in the day, later told me that similar things had happened to him. The court clerk at the trial was also referee Cochrane’s clerk.

At this point in the trial, I was becoming disorganized. My renumbered exhibits that had been rejected by Wing Sun one by one were strewn in front of me on the table. I could not find the yellow sheet that was a key to the renumbering. Many exhibits were, of course, missing from their original folder. I could not find anything I wanted when I needed them.

Since it was still my turn to testify and offer exhibits, I should have attempted to introduce into evidence all the exhibits which Ms. Wing Sun had rejected or, perhaps, remember other points I wished to raise at the trial and offer them in my own testimony. Maybe I should have followed a typed statement of arguments intended to be made at trial. But I was immediately concerned about the $21,000 in attorney’s fees that Wing Sun was trying to assign to me.

My argument was basically that Ms. Wing Sun herself had generated most of the paperwork that she was claiming required extra work. Evidence for this, in part, would lie in the numerous letters and documents which she had sent to the court, complaining about me. I asked Judge Swenson if letters previously sent to the court would be part of the evidence reviewed in making his decision. No, he said, he would review what was submitted during the trial. However, he might also take a look at some of those other materials. I had brought with me Wing Sun’s motions and affidavits submitted in the second round of document exchange relating to temporary relief, along with my response. I then attempted to introduce two large envelopes containing this material into evidence. The judge refused to accept them.

To counter the demand for attorney’s fees, I was reduced to oral testimony about Ms. Wing Sun’s behavior in the months leading up to trial. I brought in my three attempts to settle, the game playing at the settlement conference, and the “discovery” trip to the Edina Public Library. I forgot to tell the court that Wing Sun waited until 5:00 p.m. on April 30th to give me any information that I had requested, that she had arbitrarily rejected most of my questions, and that an email sent to me showed that she was completely ignorant of the requirements of Rule 34 with respect to discovery procedures.

After that, I turned my attention to the issue of who should pay the capital-gains tax on the sale of Lian's apartment in Beijing. I first tried to argue that Lian herself had agreed to pay the tax. Judge Reding had included this item on a list of stipulated agreements but it was crossed off when Lian falsely claimed I had known about the liability for the apartment sale while preparing our 2010 taxes. Judge Swenson told me sternly that points of discussion at a settlement conference could not be entered into evidence at trial.

I was searching through my papers to find the place in Lian's answers to my interrogatories where she made the claims about working in Milford but could not find the question. Since Linda Davis would not be offering testimony, I needed to say something. However, I did have presence of mind to testify that Lian had said the apartment that was sold was owned jointly by Celia and her. In that case, Celia would owe half the tax. It would be easier for Lian and Celia to coordinate whatever response needed to be made with respect to payment of back taxes than for Celia and me.

A lot was left out of testimony that I had intended to give at the trial. Ms. Wing Sun had made sure of that. Searching through the stack of rejected exhibits, I later found that I had not introduced into evidence at this trial the following, among others: copies of all mortgage agreements used to refinance debt during the marriage, information used to calculate real-estate values, anything relating to my arrest for domestic assault, the picture of a check forged by Sheila, James Gurovitsch’s emails or my own emails containing revelations from her, Lian's acceptance by the Assured Access medical program, Alan Morrison’s lease at 17xx Glenwood Avenue, the deposit slip for my deposit of $50 to Lian's Wells Fargo account in Herndon, my schedule of current income and debts showing that my monthly interest expense exceeded my retirement income, my analysis of Lian's passport stamps, and much more.

On the other hand, I did manage to submit (or think I did) some exhibits beyond those previously mentioned: some evidence of stock ownership, a list of money given to Lian and Celia in particular years during the marriage, my lists of assets dissipated by third-party thefts or unpaid loans, the “Great Team Hero” award given Lian at Target in 2005, her citizenship certificate issued in 2009, Linda Davis’ lease for the Milford house, and, most importantly, certain documents establishing the debt that I owed in 2012 including my US Bank consolidated statement.

I could not think of anything further to say. It was 3:30 p.m. Ms. Wing Sun began her cross-examination of me. Her questions seemed to be petty. For instance, she reviewed a list of things that Lian had bought for herself during the marriage. She had bought a refrigerator for $100, a television set for $25, a washer for $100, a book shelf for $25, a couch for $35, etc. What was the point? I would certainly not object to Lian's keeping those items. The point may have been to suggest that I was too cheap to buy Lian much of anything. In retrospect, the real point was to run out the clock.

Ms. Wing Sun had allowed into evidence my list of dissipated assets showing that Sheila and her relatives had received more than $100,000 from me since January 2010. Part of this dissipation represented unauthorized charges by vendors to my credit card. The larger part consisted of checks which I wrote to benefit Sheila or checks which Sheila forged. This attorney also allowed money given to Lian and Celia during the marriage to be entered into evidence. It was about the same amount of money. Wing Sun was trying to compare the two types of expenditures. I had given my mistress almost as much money in three years as my wife and daughter in the twelve years of marriage.

I replied that the money given to Lian and Celia was in addition to paying all the household expenses for them. It was extra money or, in some cases, money for Celia’s tuition. Furthermore, most of the money “given” to Sheila was in the form of a loan, or was given in anticipation of receiving a larger sum of money, or was stolen from me. I forgot to state explicitly that Lian had paid virtually none of the household expenses. While working at Target, she had accumulated $5,000 in a 401(k) while I was sinking further in debt. Among other things, attorney Wing Sun asked me if I could lift fifty pounds. I said I could. The purpose of that question was, I suppose, to suggest that I also did not do any work. I did do some physical work. I may be old but am not weak.

Ms. Wing Sun now made an argument about my application for “pauperis” status with Hennepin County courts. Because of my high debts and low income, I was allowed to file motions in court without paying the normal filing fee. I had not seen the applications in some time. It was disturbing to see that on one of the applications I had estimated I owned only $20,000 worth of real estate other than my home. Had I lied? It appeared so. I do not remember lying, but I was worried that this forgotten application would undermine my credibility. I therefore tried to exclude that submission. The judge allowed it nonetheless. I had promised Ms. Wing Sun that I would allow all her exhibits into evidence and Judge Swenson now made me stick to the promise. Fortunately, however, Wing Sun did not mention my asset valuations in submitting the pauperis application. It was some other inconsequential point that she made.

Ms. Wing Sun was evidently worried that the judge would fault her for the lateness of discovery. The solution was surprising. She had Lian testify that she was afraid of me. She was afraid of being a victim of domestic violence. Therefore, Lian was intimidated about asking for documents in discovery. This was a ridiculous argument. I pointed out to the judge that the attorney did the discovery, not Lian . Attorney Wing Sun could always bring a burly escort with her to my office if she felt afraid. I therefore objected to the testimony on the ground of relevance. Judge Swenson sustained my objection.

Because Wing Sun was trying to capitalize on my arrest for domestic assault, however, I was inspired to enter into evidence a letter from the city attorney’s office dismissing the assault charges brought against me. Judge Swenson allowed the submission but commented that this letter showed only that the prosecutor thought there was insufficient evidence to convict me. By implication, it did not prove my innocence. I still might have committed the assault.

While Lian was giving testimony, Alan Morrison, sitting in the audience section, noticed that one of the Chinese translators was passing slips of paper to the other translator who read them before giving Lian's testimony in English. He thought these might be messages telling Lian how to answer the questions. He also thought that the judge had noticed this. Judge Swenson said, at one point, “I can see what you’re doing.” Sitting at the other end of the table, I could see nothing and was therefore unaware of the significance of the judge’s comment.

During her cross-examination of me, attorney Wing Sun was still trying to argue that several of my non-marital properties were, in fact, burdened with debt at the time of our marriage. She also argued that the mortgages put on two of the properties in 2007 and 2010 raised money that might have been given to Sheila. I had five exhibits relating to the mortgages concluded then but Ms. Wing Sun had objected to them so they were never entered into evidence. But now, in the cross-examination, one of Wing Sun’s remarks gave me an opening. I said: “I’ve been waiting to testify about this. May I explain what happened? The judge said: “Please do.”

With that I launched into a monologue about how the money was handled. I first pointed out that the $173,000 mortgage on the duplex at 1715 Glenwood Avenue placed in November 2007 was not to raise funds to purchase or renovate that property even though the cost was roughly the same. Rather, this mortgage was placed in 2007 to refinance other debt as follows:

In 2007, I had a second mortgage on our home at 17xx Glenwood Avenue with Citibank whose loan was originally $104,100. The mortgage on the duplex paid that loan in full at a lower interest rate. A review of my check-register entries also revealed that I had done a balance transfer from my US Bank lines of credit of roughly $19,000 to the First Bank of Omaha VISA card in April 2007 most of which was still owing in November. I might have paid off that debt plus accumulated debt on my two lines of credit, which could have been as much as $65,000. Those debts might also have been rolled into the duplex mortgage in November 2007 for the sake of obtaining a lower interest rate.

With respect to the expenses in purchasing and renovating the duplex, I had tried to enter into evidence my depreciation schedule for assets acquired in 2002 and 2003. That schedule showed that a total of almost $188,000 of expenditures relating to the duplex were capitalized in those two years, near the beginning of the marriage. How did I raise the funds? First, I sold a vacant lot across Glenwood Avenue for almost $40,000. I sold 938 shares of US Bank stock for around $20,000. I had loans from Wells Fargo for up to $50,000. Then, in June of 2003, I arranged for a mortgage of $103,000 to be placed with Wells Fargo on the four-plex. I was also borrowing on the US Bank lines of credit. The Wells Fargo mortgage remained in place until December 2010. Its remaining balance of $70,600 was then paid off with another mortgage for $86,300 from US Bank, which also paid the balances on two US Bank lines of credit.

Therefore, the financing mechanisms were not simply explained. There were no mortgages on any of my properties at the time of the marriage. The two big mortgages that currently existed were not intended to raise money to give to Sheila but to refinance other existing debt. Usually, the debt started with borrowings on my two US Bank lines of credit. When I approached my credit limit, I usually consolidated the loans with a mortgage having a lower interest rate. At that point, I managed to enter into evidence a photocopied page from my check register from the AXA Equitable checking account, showing that the insurance money, too, was used mainly to pay existing debt.

With about fifteen minutes left in the trial, I complained to the judge that the other attorney was hogging most of the time. Although irritated by the complaint, he agreed to give me the final ten minutes to present my case. He said there was not time for closing arguments by either side since we had wasted so much time in the cross-examinations.

With the settlement in mind, I decided to stress my precarious financial situation. My debts were around $237,000, mostly accumulated during the marriage. The interest on those debts each month exceeded by $174 the retirement payments deposited into my checking account from Social Security and the state pension. This was not sustainable. I would have to sell non-marital assets to remain solvent. Was it fair to saddle me with all this debt when Lian also had non-marital property? I proposed that a lien be placed against Celia’s town house in Herndon, Virginia, since Lian had given her the down payment on this property from the sale of assets in China without my knowledge.

My ten-minute talk was starting to sound like a closing statement to the judge. I thought I needed to explain the significance of evidence and testimony presented for the judge to put the case together. When I again complained of the crushing debt load, Judge Swenson said we had wasted a lot of time during the trial and there was not any more time for testimony. We were done. Even though referee Cochrane’s trial order had asked each party to submit a findings of fact and proposed order, the judge said he would do that himself.

The trial was over. I had not had a chance to submit Lian's passport photocopies, discuss her other “small apartment”, and do several other things. The lack of opportunity to do a closing statement meant that I could not relate Lian's testimony about room placement to Alan’s testimony as an experienced building manager which would disprove her excessive claims to have done work in the building. My whole case depended on tying the facts together. Now the judge was preventing me from doing that.

Stunned, I slowly gathered my papers from the table and put them into the brief cases. As I Lian to leave the room, I said softly: “Thank you, your honor.” The other side, including the translators, then profusely thanked the judge. He looked up and smiled faintly but said nothing.

I was emotionally drained. Alan Morrison and I walked out of the Family Justice Center together around 4:40 p.m. I did not see Celia or Lian . Alan’s van had been parked at an electronic meter that was now expired. It was also in a no-parking zone after 4:00 p.m. Fortunately, the van had not been towed and there no tickets on the wind shield. Counting that as a blessing, we drove off to St. Louis Park to eat a sandwich together at Quiznos. I was still worrying about testimony not given and evidence not submitted, but the trial could have been worse.

 

33. In the aftermath of the trial

After the trial, I wrote a letter to Gerald Romano, the man who did the appraisal on the Milford property, Under “improvements” on page 9, he had written: “A new metal roof was installed in 2010.” Linda Davis had told me that she had told this appraiser about water leaking through the ceiling and the repair on one corner of the roof. So why was the appraiser claiming in his report that the entire metal roof had been replaced?

Another problem was that my deceased parents were listed among the owners; it seemed that the appraisal improperly included the wooded land across the Sawkill creek which remained in my father’s estate. Had Ms. Wing Sun asked that this property be part of the estate to be reviewed at trial? I said in my letter that the claim of a new roof on the Milford house implied that a significant amount of marital funds had been used to improve the house, giving my wife a marital claim to the property. It could cause me real problems.

I never received a reply from Mr. Romano. Instead, on May 22, 2012, I received this email from attorney Wing Sun: “Please state the reasons why you are communicating to my expert witness without my knowledge.  Also, you are in direct violation of a court order.  You have entirely eliminated my client from any spousal maintenance.  You are demanded to immediately give her the credit card with her name on it that she was using and raise the limit to include the costs of her hotel stays when she travels back to Minnesota for doctor's visits.  The court order permits my client to move out of the apartment and for you to cover the moving costs and any rent.”

I shot back the same day: “The trial is over.  No further evidence can be presented. Do you not remember Judge Reding's instruction to you that Lian should stay in unit #4 at 17xx Glenwood Avenue.  If she claims a non-functioning kitchen, I can have Alan take a look at the stove.  But he would do the installation work if a new stove is required. I am unaware of having violated any court order.  Please stop harassing me.”

Ms. Wing Sun replied: “Since you don't know how to communicate professionally, I will not respond.” But then, on the following day, she had an urge to respond. She wrote: “A clarification has come my way.  Ms. McGaughey has obtained a credit card, but does not have anywhere to stay during her stay in Minnesota while seeking medical treatment.  The court order clearly indicates that my client can temporarily move and has not done so due to finances.  It was clearly argued at the January 24 motion hearing that my client should move out and presiding judicial officer, Referee Cochrane agreed with our position.  Judge Redding did not take either side.  The court said it was unsure and the issue was reserved.  It is highly unethical to state that a court took your side when it did not.  

The rental income from the properties is also her income.  What legal authority do you have to cut her off from her own money?  Ms. McGaughey is not staying at your place for safety concerns and will not have your former wife's half brother, Alan Morrison, who is about to inherit your property located at 17xx snooping around in her apartment.  The dismissal of the criminal case was not because a court found you innocent as you claimed to Judge Reding, it was dismissed because there was not enough evidence to bring the claim.  You were not found by a court of law to be NOT guilty.  Furthermore, you and I were both at the trial when Judge Swenson was not happy about a blatant lie to court from both you and Alan Morrison regarding Alan Morrison inheriting 17xx Glenwood.  I highly suggest that he stay out of this.  You still have not given me any reason why you are contacting my expert witness without my knowledge and I have to find out through my expert.”

I decided not to respond. This attorney was denying that in a telephone conference Judge Reding had ruled that Lian should stay in her unit at 17xx Glenwood Avenue while visiting Minneapolis, not in a hotel. She was also trying to smear me once more with the false allegation of violence which Lian made in her presence at the police station. Furthermore, I had every right to write the appraiser after the trial. So I made no response to this latest diatribe and the conversation ended.

Several months later Lian told me that her attorney had billed her $1,000 for work done after the trial necessitated by my emails. I urged her not to pay.

 

VI. Judge Swenson’S DECISION

34. The decision on July 20, 2012

Following the trial and the post-trial exchange of emails, I had a good two months of relief from the legal system. Among other things, the free time allowed me to write the above narrative. Then, on July 24th, I received Judge Swenson’s decision in the mail. I was shocked. The decision read:

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of: Court File No. 27-FA-11-XXXX

Lian Yang McGaughey

Petitioner

and

William Howard Taft McGaughey

Respondent

FINDINGS OF FACT, CONCLUSIONS OF LAW

ORDER FOR JUDGMENT, AND JUDGMENT AND DECREE

________________________________________________________________

The above entitled matter came on for trial before the Honorable Stephen F. Swenson at the Hennepin County Family Justice Center, Minneapolis, Minnesota, on May 7th and May 8th, 2012. Petitioner appeared in person and was represented by Wing-Sze Wong Sun, Esq. Respondent appeared in person and was pro se. Based upon all of the evidence presented, the exhibits, the specific portions of the record mentioned herein, and the Memorandum attached hereto, the court the following:

FINDINGS OF FACT

1. The parties names, addresses, birth dates and ages are as follows:

Petitioner:
Name: Lian Yang McGaughey
Previous Name(s): Lian Ying McGaughey, Ying Min
Address: 17xx Glenwood Avenue, Minneapolis, 55405
Birth date: April 5, 1956

Respondent:
Name: William Howard Taft McGaughey, Junior
Also known as: Chet McGaughey, William H. McGaughey
Previous Name(s): None
Address: 17xx Glenwood Avenue, Minneapolis, 55405
Birth date: February 21, 1941

Petitioner is also referred to as Wife and Respondent is also referred to as Husband in this decree. The Social Security numbers of the parties have been filed as confidential information.

2. Petitioner is represented in these proceedings by:

Wing-Sze Wong Sun, Esq.
Wing Sun Law Firm
8XXX Wayzata Boulevard, Suite 320,
Golden Valley, MN 55426

Respondent is currently self-represented, but he had counsel at the beginning of these proceedings.

3. Petitioner has resided in Minnesota 180 days prior to commencement of this proceeding, and was a resident of Hennepin County at the time of commencement of this proceeding.

4. The parties were married on January 28, 2000 in the City of Beijing, Country of China, ever since have been and still are married.

5. There has been an irretrievable breakdown of the marriage relationship between the parties. The parties have been separated since February 18, 2011.

6. No separate proceeding for dissolution or legal separation is pending in any court in this state or elsewhere.

7. Neither party has been a member of the armed forces of the United States and has no been since the pendency of this proceeding. Accordingly, the Service Members Civil Relief Act of 2003 does not apply.

8. There are no children born of this marriage.

9. Petitioner is not now pregnant.

10. The parties are subject to a Domestic Abuse No Contact Order with provisions allowing contact, Hennepin County Court File 27-CR-11-XXXX.

11. The parties’ financial circumstances are set forth in the attached Memorandum.

12. The parties’ real estate and investment assets are set forth in detail in the attached Memorandum.

13. The legal descriptions of the parties’ real estate interests are as follows, along with encumbrances thereon:

a. The four-plex at 17xx Glenwood Avenue, Minneapolis, MN 55405, Hennepin County, State of Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to Minneapolis, Minnesota.

There is an encumbrance in the approximate amount of $86,300.

b. The nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

There is an encumbrance in the approximate amount of $0;

c. The duplex at 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

There is an encumbrance in the approximate amount of $182,000.

d. Two parcels at 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, Minnesota.

e. 100 Sawmill Avenue, Milford, Pennsylvania. The legal description of this property has not been provided to the Court.

f. Property located in Orienta Township, County of Bayfield, near Port Wing Wisconsin. There is a dispute between the parties as to whether this land consists of 20 or 40 acres. A log cabin is also located on this property. The only legal description presented to the court is as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

g. Condominium in Beijing, China at Hualong Residence Community, Tongzhou District, Building 48, Apt 552. No legal description was provided to the Court.

14. The parties have an interest in Petitioner’s 401k, account (number unknown) valued at $5,000 as of May 8, 2012.

15. A 1995 Mercury is titled in Respondent’s name. The fair market value is unknown, but nominal for purposes of an equitable property division.

16. The parties have various bank accounts with nominal value. Petitioner’s Wells Fargo checking, $100 as of April 15, 2011; Petitioner’s Chinese Bank Accounts, $400 as of April 15, 2011; Respondent’s Wells Fargo checking, $1,000 as of June 7, 2011; Joint Respondent’s banking account through US Bank, account ending in 3556, $1,200 as of April 18, 2011; and Joint Respondent’s banking account through US Bank, account ending in 2032, $500 as of April 29, 2011.

17. The parties own miscellaneous personal property, household goods and furnishings, furniture, and appRoseces of nominal value that are not at issue herein.

18. Prior to trial, the parties disagreed regarding the marital debts in this matter. In order to clarify these issues, the court used Petitioner’s Pre-hearing statement balance sheet to facilitate discussion and achieve agreements regarding the debts. Using this process, the parties arrived at the following agreements: The Advanta debt is $2,630.50; the Citybank Business card debt is $12,001.85 (Petitioner’s Exhibit 25 and Respondent’s Exhibit 116); and the debt on the Menard’s credit card ending in account # ending in 5093 is $1,893.52 (Exhibit 133). Although disputed, Respondent agreed to be responsible for the Citybank Business card, account # ending in 5466. There was no agreement regarding the responsibility for the First national bank of Omaha Visa charges (Exhibit 200) and the Menard’s credit card debt in account #5093.

19. Prior to trial the parties stipulated that Husband would be awarded the Wunderlix Celluloid Prints, the Port Wing, WI, improvements and land, the Mercury Tracer, 17xx Glenwood Avenue (4-plex), and 1708 Glenwood Avenue (nine-unit), and pay all encumbrances on these Glenwood properties; and that Wife would be awarded the condo located in Beijing, China. The parties agreed that the value of 1708 Glenwood Avenue is $280,000 and the value of 1715 Glenwood Avenue is $173,000 (meaning no equity). The parties agreed that these two Glenwood properties were entirely marital. The also agreed that value of the Milford, Pennsylvania improvements and parking is $280,000, which includes the large adjacent acreage lot. Wife is not making any marital claim as to the large acreage from Husband’s father’s estate and it has not Yet been distributed. The parties agree that the Petitioner’s 401k should be valued at $5,000, and that Wife’s medical bills totaling $6,000 as of May 1, 2012 are a joint marital debt.

20. Petitioner has a non-joint daughter, Celia McGaughey, who has reached the age of majority.

21. Petitioner has health insurance available to her through the People’s Republic of China, Respondent receives Medicare. Neither party carries separate health or dental insurance plans.

22. Neither party receives any form of public assistance as defined by Minn. Stat. section 256.741.

23. Neither party is seeking a name change.

CONCLUSIONS OF LAW

I. DISSOLUTION OF MARRIAGE:

The marriage existing between the parties is hereby dissolved.

II. SPOUSAL MAINTENANCE:

Commencing August 1, 2012, as and for permanent spousal maintenance, Respondent shall pay to Petitioner the sum of $500.00 per month in two equal installments on the first and fifteen days of each month, until the earlier of the following events:

(a) Death of Petitioner

(b) Death of Respondent

(c) Remarriage of Petitioner

(d) Further order of the Court

It is intended that this maintenance payable to Petitioner shall be included in Petitioner’s gross income, pursuant to Section 71 of the Internal Revenue Code, and shall be deductible by Respondent, pursuant to Section 215 of the Internal Revenue Code. The Court retains jurisdiction to enforce Respondent’s obligation to pay maintenance to Petitioner.

III. MEDICAL, HOSPITALIZATION AND DENTAL INSURANCE:

Neither party is obligated to provide medical, hospital or dental insurance for the other.

IV. MARITAL AND NONMARITAL PROPERTY AWARDED TO PETITIONER:

“1. The Beijing, China, condominium at Hualong Residence Community, Tongzhou District, Building 48, Apt. 552.

2. All bank accounts, investment accounts, and retirement accounts in her name, including but not limited to her Wells Fargo and Chinese Bank Accounts;

3. The parties joint US Bank accounts ending in numbers 3536 and 2032 at the values set forth above in Finding 16.

4. All personal items in her possession;

5. Her 401k;

6. The parties Qwest/Century Link stock;

7. $50,000 which shall be paid by Respondent in successive equal monthly installments of $10,000 each (with no interest thereon) commencing October 1, 2012. As an alternative, Petitioner may elect instead to have assigned to her the loans owed by Sheila Gorman, Alan Morrison, and Lena Morrison. If chooses the loans instead of the $50,000 cash, she shall advise the court within 30 days after the Decree is entered.

V. MARITAL AND NONMARITAL PROPERTY AWARDED TO RESPONDENT:

1. Wunderlix Celluloid Prints;

2. The Port Wing, WI, improvements and land legally described as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

3. The Mercury Tracer;

4. All bank accounts, investment accounts, and retirement accounts in his name, including but not limited to his Wells Fargo checking.

5. The four-plex at 17xx Glenwood Avenue, Minneapolis, MN 55405, Hennepin County, Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to Minneapolis, Minnesota;

6. The nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

7. The improvements and land located at 100 Sawmill Avenue, Milford, Pennsylvania.

8. 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated;

9. 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, Minnesota.

10. The following stocks/ securities: Gannett, Wells Fargo, Wachovia, Arbitron, US Bank, Target, and Germany Fund/Euro Equity Fund;

The following life insurance policy: AXA Life insurance account (zero balance).

VI. DEBTS ASSIGNED TO RESPONDENT:

Respondent shall pay and hold Petitioner harmless from: all encumbrances against the real estate awarded to him above; the Advanta debt; the debt on the Menard’s credit card account # ending in in 5093; the Citybank business card, account # ending in 5466; and the debt to First Bank of Omaha.

VII. DEBTS ASSIGNED TO PETITIONER:

Petitioner shall pay and hold Respondent harmless from her medical bills.

VIII. ATTORNEYS’ FEES: Each party is responsible for their own individual attorneys’ and experts fees and costs incurred in this proceeding.

IX. SERVICE OF A COPY OF JUDGMENT AND DECREE: Service of a copy of this Judgment and Decree may be made on the attorney for the other party, by United States mail and the same shall be in lieu of personal service upon a party.

X. DISCHARGE OF COUNSEL: Sixty-one (61) days after filing of this Judgment and Decree, all attorneys of record will be automatically discharged without further notice.

XI. DOCUMENTS OF CONVEYANCE: Each of the parties shall, upon demand, now or in the future, execute, acknowledge and/or deliver any and all documents necessary to carry out the terms and conditions of this agreement and Judgment and Decree. If a party is unable, unavailable or refuses to do so, a certified copy of this Judgment and Decree of dissolution may be recorded and/or utilized with the same force and effect as if a deed, conveyance, transfer, assignment or other document had been personally executed, acknowledged and delivered to that party. If a party refuses to cooperate, the other party shall be entitled to collect all reasonable attorney’s fees and other costs in connection with enforcement of this agreement and Judgment and Decree due to the failure of a party.

XII. APPENDIX A The attached Appendix A is incorporated and made a part of this Judgment and Decree.

XIII. ENTRY OF JUDGMENT AND DECREE. Entry of Judgment shall not be stayed pursuant to Rule 125 of General Rules of Practice for District Courts, but shall be entered immediately by the court administrator.

ORDER FOR JUDGMENT

NOTWITHSTANDING GEN. R. PRAC. 125,
LET JUDGMENT BE ENTERED IMMEDIATELY

BY THE COURT:

Dated: __7/20_, 2012 _____________________________
James T. Swenson
Judge of District Court

I hereby certify that the above Conclusions of Law constitute the Judgment and Decree of the Court.

IT IS HEREBY ADJUDGED THAT JUDGMENT
IS ENTERED AS STATED ABOVE.
ATTEST: Family Court Administrator

Dated: ______________, 2012 By: __________________________
Deputy

 

MEMORANDUM

McGaughey, File No. 27-FA 11-2008

Procedural background

This case was assigned to Referee Susan Cochrane, but she was out on an extended medical leave when the case came on for trial and I agreed to step in and handle the trial. (Footnote 1 Referee Cochrane recently announced that she will not be returning to the court and is resigning her position.) Referee Cochrane’s October 18, 2011, Trial Order set the case for a two-day trial. The Presiding Judge of Family Court, Jeannice Reding, recently met with the parties and attempted to settle the case. She helped the parties negotiate a partial settlement (Exhibit 300) and then reminded both parties that the trial would be limited to two days. This information was imparted to me before I agreed to pitch in and handle the trial in Referee Cochrane’s absence. As Chief Judge, I needed to know how much trial time would be expected of me in order to determine whether I could accept the assignment and still meet my obligations as Chief Judge.

My file review revealed that Referee Cochrane had imposed certain obligations on the parties that were designed to expedite the trial. Her decision to limit the trial to two days appears to have been based on the assumption that the parties would comply with those obligations. Neither did. Husband failed to pre-mark his exhibits starting with the number 101. Instead, he pre-marked his exhibits with the number 1 - using the numbers assigned to wife. He also failed to provide the court with an exhibit binder, failed to provide his proposed exhibits to wife in a timely manner, and failed to follow the required protocol for garnering exhibit admissibility stipulations. These shortcomings meant that a significant amount of trial time had to be used to re-mark all of his proposed exhibits, followed by arguments regarding admissibility. Husband’s failure to provide the court with an exhibit index also meant that a significant amount of time was wasted frequently shuffling through loose piles of exhibits whenever particular exhibits became germane to the inquiry I could have exercised my discretion to follow Referee Cochrane’s order to the letter and excluded husband’s exhibits due to his failure to comply with the trial order, but I declined to do so. Instead, I afforded self-represented husband a considerable amount of accommodation and helped him with his exhibit introductions and lines of inquiry when he struggled. (Footnote 2: [A] district court ‘has a judicial duty to ensure that a case is presented based on all applicable law’ and must be ‘especially aware’ of this duty when, as here, a party is pro se. Christenson v. Argonaut Ins. Cos., 380 N.W. 2d. 515, 519 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986)” Mignone v. Bouta, 2005 WL 3371082 (Minn. App. 2005). “A trial court has a duty to ensure fairness to a pro se litigant by allowing reasonable accommodations so long as there is no prejudice to the adverse party.” Kasson State Bank v. Haugen, 410 N.W. 2d 392, 395 (Minn. App. 1987).)

Wife also also failed to exchange her exhibits and file them with the court in a timely fashion. I accommodated her as well by not excluding her untimely exhibits. I also helped wife with the presentation a few times when neither wife nor the Mandarin interpreter understood her attorney’s questions. I might add that even in English I had trouble understanding some of counsel’s questions. In order to move the trial along I intervened on occasion and asked a question or two in a manner intended to aid the interpreter’s understanding.

In addition to the foregoing efforts, the record will reflect that on numerous occasions I advised husband that his cross examination was taking way too long and yielding little of substance. I urged him to reserve more of his allotted time for his own testimony. He ignored my attempts to help.

Wife also contributed to the difficult trial. On a number of occasions wife attempted to interject fault into the proceedings, charging husband with having an affair and fathering a child with another woman. This improper conduct started with her discovery responses. For example, in response to ‘request” number 8 (e.g. interrogatory #8), wife stated, “He (husband) received two large life insurance policies in 2010, but gave it all toSheila Gorman, Alan Morrison, and Lena Morrison after William’s (husband’s) numerous affairs.” (Ex. 118) Wife’s response to number 13 suggested that husband ‘spent all of his money on mistress Sheila Gorman.” (Id.) Instead of reigning in her client, wife’s counsel signed the discovery responses that improperly interjected fault. When wife attempted to replicate her discovery responses and interject fault at trial, I made it clear that I would not entertain such testimony. Wife was not deterred and adduced Respondent’s alleged extra-marital affairs on more than one occasion. I mention this not just because the topic was improper, but because husband was unrepresented, obviously upset with the topic, became distracted, and it veered him off task. As far as I could glean, counsel did nothing to restrain her client from proceeding ahead in this manner. Wife also repeatedly failed to confine her answers to the matters raised by the questions. Time and time again she went far beyond the question, vented her anger at husband, and otherwise provided non-responsive information that riled husband and shifted his focus off task.

I made all these observations simply to support my view that the two days set aside for trial by Referee Cochrane, and reaffirmed by Presiding Judge Reding, were not overly optimistic. The case easily could have been tried in less than two days had the parties complied with the trial order and behaved in manners other than I described above.

Attorney’s fees

Wife seeks both need based and conduct based attorney’s fees. I will address her need based request first. It is clear that wife, who is currently unemployed and dealing with recurrent cancer symptoms, does not have the ability to pay her attorney with her current income. (Footnote 3: She receives $280 to $300 per month in retirement from China. (Exhibit 118, #29)) It is equally clear that husband does not have the ability to contribute to wife’s attorney’s fees using current income (especially considering the hardship sharing maintenance award.) He is a 71 Year-old retired person with less than $2,000 per month in combined pension and social security income, plus steadily mounting debts. (Footnote 4: I discuss elsewhere in this memorandum the fact that husband’s real estate holdings do not yield significant, consistent, positive cash flow.) Although he enjoYed legal representation at the beginning of these proceedings, he was reduced to self-representation during the bulk of the litigation.

Both parties have little, if anything, in liquid assets. Their bank accounts are modest, wife has a modest retirement account, and husband has sold most of his pre-marital securities. If husband were required to contribute to wife’s attorney’s fees, he would need to sell non-marital assets to come up with the money. The bulk of those non-marital assets are real estate holdings in the depressed north side of Minneapolis. Wife has non-marital real estate in China, valued at approximately $200,000. (Ex. 118, #14) If non-marital property must be liquidated to pay counsel fees, wife is able to liquidate her own non-marital real estate to achieve that end.

I stepped in to preside over the parties’ dissolution trial because their assigned judicial officer was out on an extended medical leave. Because I had not presided over this case from the beginning, I did not have the opportunity to watch the case unfold and thus gradually develop an opinion regarding which party had been the most obstreperous and which party had been pursuing the most unreasonable agenda. However, I bring over eleven years of full-time Family Court experience to the table. Based on that cumulative experience, I came away from the trial with a very firm conviction that a number of positions advanced by wife herein were about as weak and unjustified as I have encountered during my many years as a Family Court judge. In my opinion, her unjustified claims drove this litigation, blocked a reasonably prompt settlement, and unreasonably contributed to the cost and length of the proceeding.

For example, most of the real estate held in husband’s name was acquired prior to the marriage, but wife contended that she acquired a marital interest in husband’s small apartment building and 4-plex on Glenwood Avenue in North Minneapolis, plus his parents’ former home in Milford, Pennsylvania. She argued that she acquired a marital interest in these properties because she spent a considerable amount of time and effort improving and maintaining them. Credible evidence adduced during the trial belied this claim and demonstrated that her efforts were nominal at best and vastly inflated in a self-serving manner for litigation purposes.

Wife also contended that the enhanced value of husband’s pre-marital securities portfolio became marital property because he “actively managed” his securities accounts to the point that any increase in value attributable to such efforts became marital. (Footnote 5: Husband’s securities produced nominal, taxable interest that would qualify as marital property. See the Schedule E’s from the parties 2006 through 2010 tax returns. (Exs. 14-18)) There was no credible evidence that husband actively managed his portfolio. Instead, credible evidence demonstrated that husband bought or sold stock on average once per year, with many of those transactions involving the liquidation of pre-marital securities in order to pay mounting debts.

One could spend a fortune of time reviewing each and every pleading and correspondence item herein and probably find that husband was dilatory on numerous occasions. That same exercise would likely reveal that wife took positions, both procedurally and substantially, that also increased the length and cost of this litigation in small increments. For example, with counsel’s complicity, wife objected on relevancy grounds to a number of husband’s interrogatories, or objected that the question was duplicative, when neither was the case - not even close. (See Ex. 118 numbers 3 and 10 for examples.) Such actions by both sides likely contributed to the length of this litigation, but such delays pale in comparison to the main litigation drivers that I explained above: wife’s unreasonable and unjustified positions on big-ticket items that made settlement impossible and a trial inevitable.”

Spousal maintenance

Wife seeks spousal maintenance from husband, while husband makes no such request. Spousal maintenance is paid out of future income and earnings. There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.

Wife is a 56 Year-old immigrant from China who has not mastered the English language, even to a moderate degree. She worked at Target for a short time until a work injury ended that job. She suffers from serious health issues including recurrent cancer for which she has undergone long bouts of debilitating chemotherapy. She also requires regular insulin injections (the cause of which was not explained during the trial.) Lacking medical insurance in the US, wife frequently travels back to China for medical treatment. She is currently unemployed and receives at most $300 in retirement income from China. From a need-based perspective, wife is a strong candidate for permanent spousal maintenance.

Wife contends that she needs $2,000 per month upon which to live. At no point in her testimony did wife testify that this “need” number comports with the standard of living established during the marriage. There was plenty of testimony that the parties lived a frugal existence, but the record does not reflect whether the amount wife claims she “needs” today reflects that frugality. (Footnote 6: At the present time wife resides with Her daughter in Herndon, Virginia, when she is not in China. The down payment for her daughter’s townhouse, plus considerable additional funds for improvements and furniture came from the proceeds generated when wife sold the smaller of her two apartments in China. Wife’s answer to interrogatory number 9 states that her daughter was a joint owner of that smaller apartment. (Ex. 118) Wife has a bedroom in the Herndon townhouse for which she pays no rent - although she contends that her daughter is merely “loaning” her the money and that she must repay her daughter for the rent free living. Wife’s $2,000 “needs” budget includes $1,000 per month for rent, up from the earlier $800 figure included in her trial exhibit. (Ex. 5) It should be noted that when husband tried to inquire into this rent-free living arrangement, wife refused to answer the interrogatory, claiming that husband sought irrelevant information. (Ex. 118, #26))

Unless unusual circumstances exist, the standard of living established during the marriage is a mutual standards, which appears to be the case here. Although husband did not offer any trial evidence regarding his monthly budget or “needs”, wife introduced into evidence husband’s interrogatory answers which revealed a $2,070 monthly “needs” budget. (Ex. 24A, answer to #13)

Although husband clearly lacks sufficient retirement and social security income to meets his needs and still contribute to the wife’s needs in a significant amount, it remains possible that his real estate holdings generate enough positive cash flow to fund a maintenance payment. Neither party offered any compelling evidence on this topic, but my detailed review of the exhibits yielded useable information.

Husband’s Milford, Pennsylvania property that he inherited from his family does not produce any income - it has been a drain on other resources/income. Exhibit 377 is the lease that allows Linda Davis to occupy part of the Milford property in return for which she pays $350 and does some maintenance work. Schedule E from the parties’ 2006-2010 tax returns shows that the Milford property produces less than $5,000 per year in rent. (Exs. 14-18) The combined taxes and utility costs exceed that rent by 100 + %, without even factoring in other ownership expenses. (Id.)

The appraisal for husband’s 4-plex at 17xx Glenwood Ave. in Minneapolis suggests that the property enjoys a rental income stream of $32,640 per year, but that rosy figure has not been borne out by the actual rents generated between 2006 and 2010. 2006 appears to have been a particularly poor Year, rent-wise, so I will exclude it from my analysis. During 2007 through 2010, the 4-plex averaged about $17,000 per year in rental income. The 2010 rental income was $16,545. Core expenses including taxes, insurance, utilities, and mortgage payments ate up over $14,000, and 2010 represented a Year during which husband paid only approximately half of his normal mortgage costs. Adding other costs of ownership during 2010 produced a loss of over $2,000, even after backing out depreciation. The 4-plex produced useable net income only once in those five years and it was paltry - approximately $2,600. (Footnote 7: It should be noted that because one of the units has functioned as their homestead, the building might be profitable if that unit were rented out, but then husband would have to spend money on housing elsewhere.)

The appraisal for husband’s 9-unit apartment building at 1708 Glenwood suggests that it produces $57,000 per year in rental income, but the actual average yearly rent was $42,000 between 2006 and 2010. With no mortgage encumbering the apartment building, the complex produces, on average, over $9,000 per year in net income. With depreciation added back, the number rises to almost $13,000.

The parties’ duplex at 1715 Glenwood alternates between losing years and profitable years, but over a 5-year continuum, the duplex loses money.

The rental picture would improve if the parties sold the duplex, but then a whopping deficiency judgment would be added to the mix. On balance, the four real estate holdings yield little combined yearly income to insert in the maintenance equation.

The next question is whether husband receives yearly dividends sufficient to fund maintenance. Husband owned Gannett shares on the marriage date which paid dividends in excess of $300 per year between 2006 and 2008, but declined thereafter to $51 in 2010. (Exc. 14-18) Husband’s pre-marital Wells Fargo shares paid a $208 dividend in 2011, which was the highest amount since he acquired the stock; his pre-marital shares in Arbitron pay a nominal dividend each year; and his pre-marital shares in US Bank ceased paying dividends after 2009. (Id.) Although his pre-marital shares of PG&E paid an average of $500 per year, the stock was sold in May 2011. His Target shares paid a dividend of less than $200 per year, but that ceased after a significant portion was sold in May 2011. Finally, his pre-marital Germany Fund paid small dividends through 2010. (Footnote 8: This may now be called the “Euro Equity Fund.”)

The only security owned by husband that paid significant dividends was Wachovia Bank. It paid an average of $5,000 per year in 2006 and 2007, but then the amount dropped precipitously to $145 in 2009. It appears that the Wachovia stock may have been sold, or rolled into Wells Fargo, a stock that husband owned prior to the marriage. No sale receipt was introduced at trial, but the acquisition of Wachovia by Wells Fargo may account for the increase in Wells Fargo dividends between 2010 and 2011, but still paltry in comparison to what Wachovia once paid.

Bottom line: husband’s dividends are now a fraction of what they were in the past, many of his stocks have been sold, and his dividend income will have little impact on his ability to pay maintenance because maintenance is paid out of future income and there is little evidence that husband will be enjoying significant dividend income.

I have already explained that wife is a strong candidate for maintenance from a need perspective, but husband does not generate enough current income to meet his needs and pay a significant amount of maintenance. This means that wife will walk away from this dissolution without any maintenance unless I exercise my discretion to make the parties share the economic hardship of their dissolution. (Footnote 9: In Seidl v. Seidl, 1998 WL 8480, (Minn. App. 1998), the Court of Appeals explained that, “A maintenance award is not an abuse of the trial court’s discretion simply because the obligor lacks sufficient income to pay the award and his reasonable expenses. Cf. Justis v. Justis, 384 N.W.2d 885, 891-92 (Minn. App 1986).” Valenta v. Valenta, 1998 WL 346684, (Minn. Appl. 1998) added that, “this principle that changes in living standards resulting from dissolution should be equalized is supported by Supreme Court precedent station that a spouse requesting maintenance is entitled to support that is ‘not simply that which will supply her with the bare necessities of life, but such a sum as will keep her in the situation and condition in which [the other spouse’s] means entitle her to live.’ Arundel v. Arundel, 281 N.W.2d 663, 666-67 (Minn. 1979)” In Parker v. Parker, 1997 WL 658938, *4 (Minn. App. 1997), the trial court determined that the obligee suffered a $2,468 shortfall between income and reasonable and necessary expenses, while the obligor enjoyed a $408 surplus. In addition to awarding the surplus, the trial court divided the shortfall and made the parties share the pain on an equal basis, stating that “given the length of the marriage, it would be unfair to allow [appellant] to meet all of his own needs and let [respondent] experience such a significant shortfall.” The court of Appeals held that this was not an abuse of discretion. See also Ganyo v. Engen, 446 N.W.2d 683 (Minn, App. 1989), Shaw v. Supalo, 1996 WL 438807 (Minn. App. 1996), Martins v. Barnes, 2002 WL 31369512 (Minn. App. 2002), Austin v. Austin, 2004 WL 422566 (Minn. App. 2004) and Viola v. Viola, 2006 WL 44349 (Minn. App. 2006).) Both parties suggest that they require approximately $2,000 per month to meet their needs, but $1,000 of wife’s budget represents “rent” that she does not pay when she resides with her daughter. Although wife testified that eventually she must begin paying rent, her testimony was not at all convincing. As her interrogatories explained, wife jointly owned with her daughter the China condominium that was sold to finance the acquisition of her daughter’s Herndon, Virginia townhouse. There was some suggestion that the China property was not available to single people and thus wife put her daughter’s name on the title so that wife could acquire the property If that is the case, the approximate $100,000 in sale proceeds given to wife’s daughter to purchase, improve, and furnish the Herndon townhouse may amount to adequate consideration for wife’s rent free living arrangement. The record is not at all clear in this regard, but the paltry record presents more of problem for wife than husband because it was wife’s burden to prove her actual costs necessary to duplicate the marital standard of living and, perhaps more important, wife bore the practical burden of persuading me to exercise my discretion and apply the sharing of the hardship doctrine.

If I require husband to pay $500 per month in maintenance, husband will not be able to meet his full needs out of current income. On the other hand, he has been diverting income generated during the marriage to pay the losses incurred to carry his family home in Pennsylvania. Husband always remains free to divest himself of the Milford property, cut his losses, and free up some real estate related, positive cash flow to lessen the burden of any maintenance obligation. With $500 per month in maintenance wife will be alike amount short in meeting her non-rent needs. I fully understand that wife will be disappointed with this amount, but she needs to understand that had I not exercised my discretion to force the parties to share the economic hardship incident of their dissolution, she would have received far less in maintenance or perhaps none.

Dissipation claim (Footnote 10: “dissipation” is a common law term of art that has been codified in Minnesota. See section 518.58, subd. 1a Today the question is whether a spouse “transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life.”)

Wife’s dissipation claim was grand in scope and theory, but short on detail. (Footnote 11: By statute, the party advancing the dissipation claim bears the burden of proof. Minn. Stat. section 518.58, subd. 1a.) There was no testimony that husband gambled away marital assets or spent marital money on drugs - the usual fare of dissipation claims. Instead, wife’s main theory segues from her attempt to interject fault into the equation: she contends that husband spent copious amounts of money on his mistress (or mistresses). The record does not contain a credible summary of the amount of money allegedly spent in this manner. (Footnote 12: Husband’s conduct during this litigation, particularly his less than complete cooperation regarding discovery would allow me to infer dissipation. See Hovelson v. Hovelson, C6-99-1893 (Finance & Commerce 6/5/00), 2000 WL 687782 (Minn. App. 2000) wherein the trial court made a “reasonable” decision, per the Court of Appeals, that Husband had dissipated assets during the dissolution because “Husband continually refused to turn over the [requested] documents, and only turned over partial, inaccurate and disorganized records when the court ordered compliance with the discovery when the court ordered compliance with the discovery requests. See Federated Mut. Ins. Co. v. Litchfield Precision components, Inc., 456 N.W..2d 434, 436-437 (Minn. 1990) (Noting that failure to produce evidence permits inference that evidence, if produced, would have been unfavorable); Baker v. Citizens State Bank of St. Louis Park, 349 N.W. 2d 552, 558 (Minn. 1984) (the district court may draw inference from circumstantial evidence). The difficulty lies in translating the dissipation inference into a supportable number. Also, as explained above, wife failed to cooperate with discovery as well as by refusing to answer patently relevant inquiries.) However, as I explained above, between 2006 and 2010, husband’s rental properties were never occupied by tenants paying full market rent year round. The record also reasonably supports a finding that the person identified by wife as husband’s mistress (with that label challenged by husband) spent a considerable number of months living in husband’s rental property without paying rent (or anything close to market rent). The record also reflects that husband loaned a not insignificant amount of money to this person, on many occasions, with no seeming legitimate effort to recover the loan proceeds. To put it rather bluntly - this did not pass the smell test. I understand philanthropy, charity, and a helping hand, but husband offered no credible evidence that explained such benevolence when, as a married man, he and his wife were experiencing an ever increasing debt load and husband was liquidating assets left and right. The problem I am having here is that wife did not offer credible evidence to support a specific dissipation number that I could insert in my marital asset division formula, In addition, wife is making inconsistent claims. On the one hand, wife contents that husband dissipated marital assets by making these “loans”, but, on the other hand, wife treats these loans as legitimate assets in crafting her property balance sheet.

Instead of adding back such expenditures/ loans to the marital balance sheet (for which I have not been provided a usable accounting), I am exercising my discretion to award wife a larger portion of the remaining marital property (meaning a significantly larger share of the marital debt, including a $63,000 potential deficiency regarding 1715 and 1719 Glenwood) and awarding her $50,000 as a combination dissipation/share of husband’s non-marital property award. She is entitled to such treatment because she needs it and because it is reasonable to find/conclude that the marital pie would be significantly larger today sans the money spent by husband for non-marital purposes as discussed above. Awarding wife this amount is also supportable based on the realization that husband chose to retain his inherited family home in Milford, Pennsylvania even though it did not produce positive cash flow. He necessarily had to spend other resources to keep the property afloat and the most-consistent source of such funds was the $9,000 plus yearly net income from the 9 unit apartment building. (Footnote 13: Even without finding “dissipation” in so many words, the trial court may still consider the parties’ respective efforts in preserving marital property and there is no presumption that they both contributed equally to the preservation. Luomo v. Luomo, C3-01-704 (September 18, 2001), 2001 WL 1085094 (Minn. App. 2001).) Although there is certainly a major non-marital component to this property, husband devoted considerable efforts to manage, maintain, and improve this property during the marriage such that a significant portion of the positive cash flow reasonably should be treated as a marital assets that was never used in a marital way.

Property Division

a. Marital

Before discussing the division, it is important to revisit the key assets. The parties agree that the 9 unit apartment complex at 1708 Glenwood Avenue, Minneapolis is worth $280,000. (Exh. 300) Husband owned this before the parties’ marriage and it is presently unencumbered. As I explained above, there was no credible evidence that wife made a significant enough contribution to the management, maintenance, and improvement of the apartment building to warrant transforming the non-marital character of this property let alone manufacturing the $100,000 marital component asserted by wife. The marital component is nominal at best. The parties stipulated that husband would received the apartment complex. (Ex. 300)

The 4-plex at 17xx Glenwood was also acquired before the marriage and the parties have agreed that it should be awarded to husband in its entirety. (Ex. 300) He has also agreed to assume the debt against the property. It has been appraised at $160,000. (Ex. 20) Husband attempted to opine that the 4-plex is worth just $103,000, but his opinion is based in large part on extrapolations from hearsay. Relying on husband’s opinion is further problematic due to the fact that he was not forthcoming with the information sought by wife during discovery, which was necessary for proper preparation of cross-examination. I will accept the appraised value. Wife takes the position that the entire net value of the 4-plex is marital, again based on vastly inflated claims of her efforts to manage, maintain, and improve the property. Any marital component is nominal.

The duplex located at 1715 Glenwood (and the adjacent property at 1719 Glenwood Ave.) which was purchased after the marriage, has no net value, although it has a stipulated market value of $110,000 (Ex. 300) and is encumbered by a $173,000 lien. (Id.) This property presents a debt division issue - not an asset division issue. Wife argued that the debt against the property includes pre-marital debt that was folded into a new loan, but credible evidence adduced at trial persuaded me that the property was debt free on the date of marriage. (Footnote 14: See Antone v. Antone, 645 N.W. 2d 96, 103 (Minn. 2002), “We hold as a matter of law that a portion of market-related appreciation during the marriage [where marital funds were used to reduce the encumbrance] is marital property.” Wife argued that Antone was at play in this case, but there was no credible evidence that marital funds were used to retire debts. There was credible evidence that non-marital assets (such as life insurance proceeds on the life of husband’s brother) were used to retire debts.)

Even though I find that the $173,000 encumbrance does not include pre-marital debt that was folded into the most recent loan, it is clear that husband favored his non-marital properties to the disservice on the parties’ one marital parcel by not spreading the lien among the multiple parcels. As explained above, significant amounts of cash had to be dumped into the Milford, Pennsylvania property every year. Husband’s pre-marital 4-plex also lost money more often than it made money and the sustaining cash flow likely came from the proceeds of the current $173,000 encumbrance against the duplex or prior loans that were rolled into the $173,000 jumbo debt that the parties face today. As I set forth above, I am exercising my discretion to craft an unequal division of the marital property and debts. Since total marital debt significantly exceeds the marital assets, I am exercising my discretion to achieve equity on the debt side and require husband to pay this debt and hold wife harmless.

Consistent with her claims regarding the Glenwood rental properties, wife claims that her contributions to the duplex produced a marital component, but this time wife suggests a much more modest marital component ($30,000 versus $170,000 + for the other two). Even at wife’s more modest level, her claimed marital component remains vastly inflated. Once again, I find that the record only supports a nominal marital component at best.

Wife contents that the parties own marital securities valued in excess of $70,000. The record does not support such a rosy picture. The parties acquired two different positions in BMC, but that company went belly up. (Ex. 316) Their marital shares in Northwest Airlines were sold in 2007 at a loss. Their Metris interest was sold, yielding a significant gain, but the proceeds were not traced by either party and their Xcel Energy stock was similarly sold, as was what little was left of their Enron stock. Husband had a number of other equity positions that were acquired before the marriage, most of which have been sold. No sale document was introduced regarding the parties’ Qwest stock and I can only assume that they still hold the position (now Century Link), but its value at acquisition was just $1,200. Bottom line, the parties have little if any marital securities. (Footnote 15: I am not ignoring Baker v. Baker, 753 N.W. 2d 644 (Minn. 2000) or Prahl v. Prahl, 627 N.W. 2d 698 (Minn. app, 2001) There just isn’t much, if anything, left in the portfolio, against which to apply such cases.)

Wife contends that husband has a $100,000 + AXA Life Insurance account and that $15,000 in interest on that account is marital. The evidence does not support her claim. Credible evidence reflects that husband received the proceeds from a large life insurance policy insuring his now deceased brother and deposited the funds in an AXA Equitable account that held $114,663.01 as of February 26, 2010. (Exhibit 300) By May 11, 2011, 2011, it was down to $1,337.01. Husband credibly testified that the insurance proceeds were used to retired a number of pre-existing loans and cover other “shortages”. These “shortages” are consistent with the ongoing negative cash flow generated by the Milford, Pennsylvania, and 4-plex properties.

Other than a few minor property items discussed in the numbered Findings of Fact, I have completed my analysis of the “major” assets and have found little in the way of major marital assets, but quite a bit in major marital debt, which I am assigning to husband along with the real estate itself.

The only possible significant marital assets would be the loans to Sheila Gorman. If wife wants husband to assign those loans to her and undertake collection efforts, I will consider it. Accordingly, I am reserving jurisdiction over the Sheila Gorman and related loans and will afford wife 30 days to step forward and indicate her interest in having the loans assigned to her.

B. Non-marital

In order to avoid unfair hardship to one spouse, Minnesota Statutes section 518.58, subdivision 2, allows the trial court to award up to 50% of the non-marital property owned by the other spouse. Numerous factors must be considered before doing so. First, the trial court must consider the length of the marriage, plus any prior marriage by either party. Although the parties’ marriage was not an exceedingly long one, just about eleven years, it came at a time in their lives when the prospects of a subsequent marriage seem dim. As explained above, wife is in her 50’s, husband is over 70. Neither party testified regarding prior marriages, if any. Next, the trial court must consider the age, health, station, occupation, amount and sources of income, vocational skills, and employability of each party. Wife is in poor health and suffers from recurrent cancer among other health problems; is Chinese with little command of the English language; has a limited work history and the record does not reflect job skills that would warrant employment at a significant salary should her health suddenly improve; and has only a modest retirement income from China. In short, her prospects of an improved economic status are extremely limited. That reality, coupled with husband’s inability to pay her significant maintenance, portend a near destitute existence, unable to meet her basic needs on her own, with no legitimate prospects of acquiring additional capital assets.

Husband is 71 and not a likely candidate for significant future employment income. The record reflects that the parties lived a frugal existence, with husband not generating considerable income at his pre-retirement, accounting related job. He appeared in good health for his age and no evidence was introduced to the contrary. The Glenwood Avenue properties discussed above were acquired by husband based on his perceived need for retirement funds. The duplex has no net value, but the 9 unit apartment complex has significant value, as does the 4-plex. The family home and property that husband inherited in Pennsylvania is worth over $250,000,. He also owns non-marital property in Port Wing, Wisconsin, for which neither party offered a value figure. The value of husband’s over-all estate is already being reduced by $63,000 because I am exercising my discretion to assign husband a larger share of the marital debt, including the $173,000 mortgage against the Glenwood Avenue duplex valued at $110,000.

The record does not support a finding that husband has substantial, liquid non-marital assets. Any decision to award wife a percentage of his non-marital estate necessarily must contemplate that he will be unable to pay such funds when judgment is entered. In order to satisfy such an award, husband likely will need to sell a portion of his non-marital real estate or borrow money secured by that real estate. Excluding the Port Wing, Wisconsin property, the Pennsylvania and two multi-unit properties at 17xx and 1708 Glenwood Avenue have a combined net value of approximately $631,000. (Footnote 16: Husband’s Milford Pennsylvania property has been appraised at $275,000; 17xx Glenwood Avenue is worth $160,000, but is encumbered by a mortgage of approximately $84,000, leaving an approximate net of $76,000; and 1708 Glenwood Avenue, Minneapolis is worth $280,000.) By requiring husband to pay the loan on the duplex at 1715 Glenwood, and hold wife harmless, I am already reducing the approximate net value of husband’s big ticket items to $568,000. Wife’s China real estate is worth approximately $200,000. The difference between the two is approximately $368,000. I would not find it fair or reasonable, nor would I exercise my discretion, to award wife anywhere close to 50% of this difference. Husband is 71, with little or not chance to build up new capital, and I am already causing him to share the hardship incident to the dissolution by ordering him to pay more maintenance than he can afford and still meet his own needs, plus a disproportionately large percentage of the marital debt. Other than the Pennsylvania property, his estate represents a lifetime of effort and it would not be fair or reasonable to divest husband of close to 50% of such efforts based on a relatively short marriage to wife.

Given the length of the marriage, the parties’ financial circumstances as set forth above, the unequal debt division, the hardship-sharing maintenance award, and the merits of wife’s dissipation claim, I am exercising my discretion to award wife $50,000 as a combination dissipation/share of husband’s non-marital property award, unless she elects instead to be awarded the loans made by husband to Sheila Gorman, Alan Morrison, and Lena Morrison. (Footnote 17: I have already indicated that I will reserve jurisdiction over these loans to give wife and her counsel time to decide whether they really believe these are marital assets and wish to have them assigned to wife for collection purposes.)

SWJ

 

VII. WHETHER AND HOW TO APPEAL

35. What to make of the judge’s decision?

The first thing to attract my attention was the fact that the judge was misrepresenting the amount of marital debt. Point 18 in his Findings of Fact asserted that “the parties arrived at the following agreements: “The Advanta debt is $2,630.50; the Citybank Business card debt is $12,001.85; and the debt on the Menard’s credit card ending in account # ending in 5093 is $1,893.52.” The debts identified here totaled $16,525.87 - and these were not even the right numbers for the debts on April 15, 2011. The judge said his figures came from the Petitioner’s Pre-hearing statement balance sheet. Yet the Petitioner’s statement given to me contained no such numbers; its balance-sheet section was blank. From the judge’s statement, I was not sure which parties agreed to what.

From testimony given on the first morning of the trial, Judge Swenson knew that the duplex at 1715 Glenwood Avenue had a mortgage of $175,147.90 and the four-plex at 17xx Glenwood Avenue had a mortgage of $84,017.51 on the date of valuation. These items totaled $259,165.41 and they were marital debt. The total marital debt, in fact, was $324,403.32, not $16,525.87. What game was the judge trying to play? Reading further, I learned that he was proposing to stick me with the entire debt under the guise of achieving “a just and equitable division.” I had supposed this phrase meant a roughly “equal” division but, for this discretion-loving judge, equity was an all or nothing proposition.

I think what happened was that, despite testimony that the mortgages had not been used to acquire properties, the judge was putting the properties and mortgages together as a package so as to take the mortgages out of marital debt. If the duplex at 1715 Glenwood was valued at $110,000 and the mortgage placed on this property was $173,000, he would assign both to me and call it even. The same was true of the four-plex at 17xx Glenwood Avenue and its related debt. In that case, of course, the property was non-marital while the mortgage debt was marital. In any event, his peculiar way of calculating property made $250,000 of mortgage debt go away. He simply assigned this to me using his judicial “discretion”.

The second thing to strike me was how the judge was attempting to shift the blame for the inadequacy of time in this two-day trial. It was not the court’s fault for miscalculating the time or allowing trial events to get out of hand but, rather, the fault of the two contesting parties for failing to heed Referee Cochrane’s instructions that were “designed to expedite the trial.”

I was especially singled out for criticism. According to the judge, I had failed to number my exhibits in accordance with the referee’s instructions, had failed to give the court an exhibit binder, had failed to meet deadlines for exchanging exhibits, and had failed to “follow the required protocol for garnering exhibit admissibility stipulations.” (I had stipulated to all the Petitioner’s exhibits while she objected to most of mine.) The judge asserted that “these shortcomings meant that a significant amount of trial time” was wasted by my failure to follow instructions. Therefore, it was not the court’s fault but mine, if I had insufficient time to present my case.

What I remembered about the trial was that Judge Swenson gave my wife’s attorney more than three times as much time to present their testimony as he gave me for testimony. This was plainly unfair. So how did he deal with that issue in his memorandum? First, he professed to be lenient, even generous, regarding my judicial sins: “I could have exercised my discretion to follow Referee Cochrane’s order to the letter and excluded husband’s exhibits due to his failure to comply with the trial order, but I declined to do so. Instead, I afforded self-represented husband a considerable amount of accommodation and helped him with his exhibit introductions and lines of inquiry when he struggled.”

Judge Swenson claimed he went out of his way to help me make my presentation more effective: “ (O)n numerous occasions I advised husband that his cross examination was taking way too long and yielding little of substance. I urged him to reserve more of his allotted time for his own testimony. He ignored my attempts to help.” I did not remember him being so helpful.

The fact that the judge thought it necessary to address the time issue as the first point in his memorandum suggested to me that he knew that two days were not enough for the trial. The judge’s solution was to state dogmatically that two days were enough; or, in the contrary case, it was our fault, not the court’s: “ I made all these observations simply to support my view that the two days set aside for trial by Referee Cochrane, and reaffirmed by Presiding Judge Reding, were not overly optimistic. The case easily could have been tried in less than two days had the parties complied with the trial order and behaved in manners other than I described above.”

Complying with the trial order was the least of it. The real reason the trial took so long was that my wife’s attorney was objecting to most of my exhibits being admitted into evidence, she was putting people on the witness stand to make totally false claims, she was arguing for me to pay my wife’s attorney’s fees, she was consuming time in testimony about trivial issues (e.g., my wife’s personal belongings), she was using the Chinese-language translators to prolong the testimony, and, generally, she was engaging in obstructionist tactics to frustrate me. Such things may not have been foreseen when referee Cochrane allowed two days for the trial. Also, Judge Swenson’s bizarre renumbering scheme contributed to the confusion and delay experienced during the trial. That, too, might not have been predicted.

Then my attention turned to substantive matters. Having saddled me with more than $300,000 of marital debt, Judge Swenson was ordering me to pay my wife $500 per month in spousal maintenance for the rest of my life (or hers, whichever comes sooner) and, worse Yet, ordering me to make five monthly payments of $10,000 apiece starting October 1, 2012, with the bizarre alternative of allowing my wife to squeeze this money out of Sheila Gorman, Alan Morrison, and Lena Morrison if she preferred.

The judge knew that I had few liquid assets and was running out of credit. In fact, he stated several times that I could not afford to do what he ordered - for instance, on page 15 he said: “husband clearly lacks sufficient retirement and social security income to meet his needs and still contribute to wife’s needs in a significant amount.” He decided to “exercise my discretion” to make me do this anyhow. In other words, there was a disconnect between the facts of the case and the judge’s order.

The order to pay $500 per month for the rest of my life ignored the fact that my two principal sources of income, retirement checks and rental income, did not afford such a payment. I had testified that my monthly interest obligation on the marital debt exceeded the amount deposited in my account from Social Security and state retirement. My rental-property business had been losing money in recent years. Nevertheless, the judge opined that “it remains possible that his (the husband’s) real estate holdings (can) generate enough positive cash flow to fund a maintenance payment.” His pet idea was for me to sell the inherited house in Milford built by my great-great grandfather whose monthly rent was insufficient to cover expenses. The money saved from that move would almost be enough to meet the court-ordered maintenance.

I had supposed that dipping into a party’s non-marital property was considered a last resort. This discretion-happy judge seemed to consider it just another option. Evidently, he thought my wife would be left completely destitute without taking some of my property. Here the judge was ignoring testimony that my wife owned an apartment in Beijing worth $200,000 to $240,000. He heard no testimony about her past employment history, her current health condition, her language skills, or other relevant factors but simply reached a decision based on his impression of the situation. He was using a “combination dissipation/share of husband’s non-marital property award” - whatever that means - as a cover for the decision. What’s more, I had to come up with the $50,000 in cash in five monthly installments of $10,000 starting October 1st.

Prior to trial, I had hopes that because Judge James T. Swenson was the chief judge of Hennepin County, my wife and I would be getting a high-calibre person to try our case. Now it seemed that the judge’s high position in judicial circles had gone to his head. This judge presumed to have discretion to do whatever he wanted regardless of what the law said.

It should be admitted that, when Judge Swenson wrote his opinion in our divorce case, he was no longer the chief judge but an ordinary judge assigned to divorce court, which is not seen as a plum position. Maybe Swenson was experiencing a crisis in his career and wished to demonstrate his chief judge’s authority and power full force for the last time. Whatever the case, it was not a pretty picture from my point of view.

Shortly after reading the judge’s decision, I sat down to identify the points of disagreement. There was no doubt in my mind: I had to appeal.

Some of the judge’s errors were beyond question. For instance, Findings of Fact No. 19 included this statement: “The parties agreed that the value of 1708 Glenwood Avenue is $280,000 and the value of 1715 Glenwood Avenue is $173,000 (meaning no equity). The parties agreed that these two Glenwood properties were entirely marital.” We had discussed at some length in the trial how I had finished paying off a contract for deed on the property at 1708 Glenwood Avenue four years before the marriage. The deed showed that I owned this property free and clear. It was therefore non-marital property.

The judge’s Memorandum also claimed that I had “agreed to assume the debt against the property (17xx Glenwood Avenue)” when documents in evidence showed that I had not. The judge claimed that my wife and I were still under a Domestic Abuse No-Contact order, when another judge had lifted this more than a year earlier. Judge Swenson was confused about a number of things.

 

36. Preparations for an appeal

There was no doubt that I had to appeal the judge’s decision. From my first marriage, I knew that the Minnesota Court of Appeals in St. Paul heard such cases. In fact, it had overturned a decision by a judge who presided over my case then. From the court web site, I learned that I had 60 days to file an appeal with the appellate court. I needed to bone up on procedures related to this court. Among other things, I would need a transcript of the trial which would be an official record upon which the panel of judges would base its decision.

I called the court administration to ask about obtaining a trial transcript and soon afterwards received an email from the Court Reporter unit, 4th Judicial District, in the Hennepin County Government Center. I would need to fill out a Transcript Request Form and make arrangements for payment. Two court reporters were involved in our trial. Byron Nelson handled the first day, May 7th; and Kathy Appel handled the second day, May 8th. The estimated bill for Nelson’s service would be $1,500; and for Appel’s service, $1,600. Therefore, it would cost me a total of $3,100 to obtain typed transcripts of the trial for both days. The court reporters needed payment in full before they would begin working on the transcripts.

Because of my high debts relative to income, I was eligible for some free court services under an arrangement called “In Forma Pauperis”. In simple English, the court regarded me as a pauper. I had a form signed by Judge Reding to that effect. Unfortunately, the free services did not include transcripts. For this, I had to apply to the court for a “Supplemental Order for Proceeding in Forma Pauperis.” This completed form had to go to a signing judge who would decide whether or not to approve my application.

The signing judge for the day was Judge Mary Vasaly, who had taken my testimony in my first Domestic Abuse case. She might or might not remember me from that appearance in March 2011. Then, after the clerks at the front desk in the Family Justice Center conferred with each other, I learned that my application would have to go to the judge who had presided at trial: Stephen F. Swenson. It seemed at the time that there might be a conflict of interest. Would Judge Swenson want to approve an application allowing me to obtain a trial transcript without paying for it if the purpose was to appeal one of his decisions? Nevertheless, that was the rule. I had to go through Judge Swenson.

I went up to the 5th floor of the Family Justice Center where our trial had been held and where Judge Swenson was then presiding over another trial.Azure Schermerhorn-Snyder, still clerking for the judge, came out to see me. She said that she would take my application to the judge for him to review during a recess in the proceedings. After a relatively short wait, she brought my application back from the judge. A notation at the bottom in Judge Swenson’s handwriting said: “Denied - until I see the notice of appeal and the issues raised, I cannot tell whether it (the appeal) is frivolous.”

Since I had previously delivered the completed Transcript Request Forms to the court reporters’ offices at the Government Center, I emailed Kathy Appel informing her that I would have to delay my transcript order until I had satisfied the judge’s requirement. I did not know what a “Notice of Appeal” was but assumed it was a document filed with the Minnesota Court of Appeals. Evidently, I would have to state or summarize the issues that I intended to raise upon appeal. That would take some time to prepare.

Meanwhile, I was talking with my friend, Bob Carney, who, although not an attorney, had considerable experience with court proceedings including preparing motions for the Minnesota Court of Appeals. He showed me two briefs he had prepared, both appearing to be quite professional.

Carney took an interest in my case and was willing to advise me but was worried that he could be accused of practicing law without a license. Searching the statutes, he thought he had found a loop hole. A provision of law allowed a person to deal with the court on another’s behalf if he was an authorized management representative of a rental-property business.

Voila! All I had to do was authorize Carney to represent me in helping me to conserve assets in my rental property business. Since the divorce was threatening to take those assets away, it was entirely legitimate for him to advise me in this matter. I signed a formal agreement with Carney to pay him $100 per month for that service, revocable upon a month’s notice. The effective start date was July 29, 2012, when Carney had started researching issues related to appealing divorce decisions.

It was a wise decision for me to consult with Carney. He had made photocopies of pages in manuals issued by the Family Law Institute that covered various aspects of appealing divorce cases. This information came from the Hennepin County Law Library on the top floor of the Government Center. Without such guidance, I would have made many more mistakes.

I soon learned that one seldom went straight to the Minnesota Court of Appeals. Typically, lawyers first file motions for a new trial or for amending findings of fact and conclusions of law. The trial judge is thus given an opportunity to review the case in light of arguments presented by the appealing party. The other party then has fifteen days to respond to those arguments. No new evidence is permitted. After reviewing the post-trial motions, the judge may change his orders or keep them the same. If this motion is made, he may order a new trial. Even if nothing is done, the documents presented to the judge become part of the record that goes to the Court of Appeals. It helps to strengthen the appellant’s case in seeking to overturn the judge’s decision.

Before the judge’s decision came down, I was planning to attend an academic conference in Grand Rapids, Michigan, related to my interest in history. (It was the first conference of a start-up group, the International Big History Association.) I had paid the conference fee and the fare for bus transportation. The judge’s order was dated July 20, 2012. I received it in the mail several days later. The conference would require me to leave Minneapolis on Wednesday evening, August 1st, and return in the early morning of Monday, August 6th.

Court rules gave me thirty days to file post-trial motions; sixty days, to file a case with the Minnesota Court of Appeals. If I returned from the conference on August 6th, I would have exactly two weeks to prepare and submit the papers for the post-trial motions calling for amended findings of fact and conclusions of law and possibly a new trial. This was enough time to do the work properly but not allowing much time to waste. Bob Carney would meanwhile be helping.

Before attending the history conference, I had limited myself to writing down all the discrepancies, errors of fact, and questionable decisions by the judge that I could find in the court ruling. I had also briefly read selected chapters in the Family Law Institute’s publication that Bob Carney had found in the law library. Carney himself would be reviewing the same materials as well as the judge’s order while I was in Grand Rapids.

I had little idea of form and format for the document I would need to present to the court in my post-trial motions. It seemed that models for such documents were unavailable, at least to self-represented persons. I therefore formed an idea of what I had to do from documents previously encountered and submitted during the divorce proceedings, especially during the period in January when I was dealing with the motions for temporary relief. In other words, I was using my wife’s attorney as a guide to proper format. Generally, my document would start with a set of motions and be followed by statements of fact relating to those motions, supported by a signed affidavit.

In that spirit, I prepared two separate documents, each containing a set of motions and factual arguments relating to those motions. One was a “post-trial motion for a new trial.” The other document was a “post-trial motion for amended findings and sufficiency of evidence review.” In the first document, I asked both for a new trial and for an order from the judge requiring Ms. Wing Sun to forgive part of my wife’s unpaid attorney’s Bills. (I later removed the second provision because it represented a new issue.) In the second document, I asked for fifteen changes in the judge’s decree.

The fifteen requests, each expressed as a separate motion, were as follows:

1. Issue an amended finding about the amount of marital debt.
2. State the aggregate debt instead of associating mortgage debt with a related property.
3. Order an equitable and just distribution of marital property (instead of assigning 100% of the debt to me).
4. Break the category “combination dissipation/share of husband’s non-marital property” into two categories and assign a dollar amount to each.
5. Amend the order regarding “dissipation of marital property” in accordance with evidence presented at trial.
6. State whether wife’s sale of Beijing apartment in 2010 represents disposition of property in anticipation of divorce.
7. Hold wife responsible for the 2010 tax liability relating to that property sale.
8. Issue a finding of fact regarding wife’s second unsold apartment.
9. Determine which party exhibits a greater degree of financial hardship.
10. Eliminate the requirement for husband to pay wife $50,000 from his non-marital property.
11. Issue findings of fact to support conclusions about wife’s financial situation.
12. Cancel the order for permanent spousal maintenance.
13. Remove statement about a Domestic Abuse No Contact Order.
14. Correct various other factual errors.
15. Stay the requirement to pay $10,000 per month starting October 1, 2012.

I thought I had presentable documents. Carney then showed me what he had prepared. His approach made more sense. Instead of making a series of motions to express what I wanted the judge to do, I should be amending the judge’s order. In other words, start with the document that the judge issued and then strike the unwanted language and add proposed replacements. This is the procedure which legislators use in amending law. The proposed additions are underlined while the proposed deletions are indicated by a line striking through the unwanted language as such: Additions Deletions

Carney began with the Findings of Facts section. His proposed additions were quite brief. I took what he had written and added new sentences with respect to items of marital debt and the judge’s calculation of my wife’s deficiency in living expenses. I added my wife’s undisclosed apartment to the list of non-marital assets. Likewise, I went through the judge’s Conclusions of Law, crossing off points I wanted removed and adding new features.

Originally, I had presented my argument in the form of an affidavit, as if swearing that the facts were true. Since new facts were not allowed to be admitted in the appeal, this format was no longer appropriate. Instead, my arguments supporting the amended Findings of Fact and Conclusions of Law became a new section titled “Grounds”, which came after the amendments. I had to remove elements not presented at trial and instead, in some cases, state that the judge’s ruling lacked a foundation in the evidence presented.

Another requirement was to state the court rule in the Minnesota Rules of Civil Procedure which authorized the motion. Rule 52.02 allowed the court to amend its findings upon motion of either party. Finally, I prepared a list of twenty-five exhibits which I thought would support my argument, but later removed them because the exhibits had already been presented at trial or else were new evidence that was inadmissible in appeals.

My other document contained a motion for a new trial. Here I presented a number of arguments showing that two days were adequate for this case, or that I was given significantly less time than the other party, or that court employees or my wife’s attorney were guilty of misconduct in some respect. I originally included a motion that the judge order some of my wife’s attorney’s bills forgiven but removed this, thinking it new material. However, I did later add a motion to stay the execution of paying my wife $10,000 per month for five months starting in October because the time requirement was clearly unreasonable.

Bob Carney argued that the two documents could be combined in a single document titled “post-trial motion for amended Findings of Fact/ Conclusions of Law or, alternatively, a New Trial.” This would give Judge Swenson (who Carney insisted was not my enemy) more flexibility in responding to my request. He might amend certain findings or conclusions; or he might order a new trial, either in whole or in part. I indicated that a partial trial would be adequate giving me additional time, for instance, to present testimony about my wife’s financial situation and prospects for future employment. To the two motions, I added the motion to stay execution of the payments from non-marital property whose execution would be irreversible.

Carney thought that my “Basis” section had to cite Minnesota statute authorizing the court to act but I could find no suitable statute. Maybe a volunteer attorney at the self-help desk in the Family Justice Center could tell me if my document needed to cite statute rather than court rules.

I was worried about timing. Originally, court rules stated that a party had fifteen days after the court ruling was made to file a motion for amended findings or ask for a new trial. Some of the literature issued by the Family Law Institute still contained that language. Judge Swenson had signed his order on July 20th. Had the filing deadline already passed? Fortunately, the law had been changed in 2001. Appellants now had thirty days to file their motions with the court. Since July has 31 days, the 30-day time period was up onSunday, August 19th. I would have to get my papers in during the week ending July 17th. However, there was also a rule that when the deadline fell on the weekend, the filing period was extended to the following Monday. I wanted to file on Friday just to be sure. Bob Carney assured me that Monday would be acceptable.

My plan, then, was to have my filing documents checked by a volunteer attorney at the Family Justice Center in downtown Minneapolis and then, if they were acceptable, file the documents with the court and the other party’s attorney on the same day. There would be no questions concerning timeliness if these things were done on Friday.

The procedure for seeing attorneys at the Family Justice Center is to register at 8:00 a.m. at the front desk for an appointment in the afternoon, starting at 1:00 p.m. It is first come, first served. Around 7:15 a.m. I left my house for the bus stop three blocks away. Within a half block of the stop, I saw my bus whiz by on the 19 line. I then walked back to drive my car, hoping to park at a nearby meter. I should have known that there was a no-parking order between 7:00 a.m. and 9:00 a.m. on the street next to the Family Justice Center. I drove around for awhile in search of an empty parking space, finally parking in the Post Office lot five blocks away. By the time I entered the Family Justice Center around 8:10 a.m., five other persons had already registered to see an attorney that afternoon. I agreed to be put on a waiting list as the sixth person in line in case the attorneys had extra time. Then I drove home.

Arriving back at the Family Justice Center at 1:30 p.m., as suggested by a staff person, I sat in the main lobby waiting to be called. However, I had to report first to the desk in the self-help center around the corner. A legal technician, who was not an attorney, reviewed the documents that I intended to file later in the day. Other than two omissions, my documents passed muster with her. However, the technicians pointed out that I had failed to include with my motions a “Notice to Other Party”, which is a boilerplate signed statement, and I had failed to leave a blank for the hearing date. She gave me a three-page form for the “Notice” and showed where the blank for the hearing should be placed in my document. However, she could not tell me what statute, if any, needed to be referenced in the document or whether the 30-day period was adequate because that would be giving legal advice.

After meeting with the technician, I sat in the hall for a long time in hopes that the five persons in front of me would together require less than two hours with the attorney. Around 2:50 p.m., I began to have doubts. Also, the parking meter would expire in eight minutes. (And, since they are electronic meters, the meter maid or guy knows exactly when a meter has expired.) I therefore inquired at the front desk about my chances of being seen that day. Regrettably, the attorney had not yet spoken with two of the five persons ahead of me in line. I was out of luck this day but might come back on Monday to repeat the routine.

Feeling some sympathy for me, a woman at the desk pointed out that self-help attorneys in the divorce area would also be available in the lobby of the Government Center on Monday morning. I should first sign up for an attorney at the Family Justice Center at 8:00 a.m. and then go to the Government Center, three blocks away. Their attorneys began seeing customers at 9:00 a.m. while the Family Justice Center attorneys consulted between 10:00 a.m. and noon on Mondays.

This meant that I had the entire weekend to fine-tune my submission to the court. It was then that I decided, as Carney advised, to present the motions in a single package. I decided to drop all the exhibits listed at the end. Prospectively, the “basis” section had no references to state statute but only to court rules. There would be no affidavits with signatures needing to be notarized. A single unnotarized signature at the end would do. Everything had to be double-spaced. Carney also informed me that each paragraph had to be numbered so that references could be easily located. That required that I combine several of the existing paragraphs, having to deal with the automatic paragraph numbering feature that my Pages software unhelpfully requires.

With Carney’s help, I reworked the motion for a new trial. Three rules authorized the motion, each citing a kind of abuse that justified a new trial. Rule 59.01 (a) allows a new trial where there has been “irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial.” Rule 59.01 (b) allows it in the case of “misconduct of the jury or prevailing party”. Rule 59.01(g) states that a new trial may be granted if “the verdict, decision, or report is not justified by the evidence.” We would, of course, downplay errors made by the judge while mentioning them for the record. Also, the basis for the Stay of Execution motion is Rule 62.01. The court has discretion whether or not to grant this request.

I was up bright and early on Monday morning, August 20th, intending this time to drive to the Family Justice Center and park in a lot if need be. I found a meter instead and went into the Family Justice Center to sign up for an attorney. A line had already formed. After fifteen minutes in line, I learned that, again, five people had registered ahead of me. Did I wish to be first on the waiting list? Why not? Again, I went around the corner to the self-help center where someone needed to check my application form. The clerk was spending a long time with another customer. I decided simply to leave my application on the counter. When the clerk said she needed to speak with me in person, I said I was withdrawing my application. She wished me a good day.

Now I drove to the southern edge of downtown where unmetered parking was still available. It was an eight-block walk to the Government Center. I arrived around 9:00 a.m. The court clerk said an attorney would see me in about an hour if I wished to wait. I did. This would still get me an appointment with an attorney around 10:00 a.m., the same time as if I had been first in line at the Family Justice Center. In the meanwhile, I went out for a cup of coffee. I sat pleasantly in a plastic chair with a caffeine high.

A youthful male attorney looked over my documents prepared for the court. All seemed to be in order. He confirmed that I needed only to cite the court rule authorizing the motions and need not worry about citations to statute. Another concern of mine was the 60-day period for filing cases with the Minnesota Court of Appeals. Yes, the post-trial motions would stop the clock. I had sixty days after the judge made his ruling on those motions to file the appeal. I was also within the 30-day time period for filing post-trial motions with the district court if the papers were personally served (not mailed). When I briefly explained issues in the appeal, this attorney confirmed that Judge Swenson was a stickler for proper form. “But you know that already,” he added.

I was back on schedule. Although everything needed to be completed that day, there was still plenty of time. I drove back home and then made two copies of my documents at the neighborhood center. Then I called Alan Morrison to see if he would be available to serve one copy on my wife’s attorney. He arrived at my home before too long and we drove to the attorney’s office in Golden Valley. Ms. Wing Sun was not in the office. However, another person accepted the papers. Then we drove back to the Family Justice Center.

When I tried to file the original documents with the court, the clerk told me that my documents would first have to be reviewed by the self-help center. That was a requirement for self-represented parties. Their stamp had to be on the papers before the court would accept them. There was, however, no problem with my status of “in forma pauperis”. The court would waive the normal $100 filing fee.

Alan Morrison had some personal business at the Family Justice Center. He took care of this while I waited in the lobby. A self-help employee promised to see me at 1:15 p.m. I sat in a daze in the hallway. At various times I saw Judge Swenson, Judge Reding, and even Wing-Sze Wong Sun standing in the lobby or walking by. The president of my local neighborhood association was also there. Around 1:40 p.m. I realized that my appointment time had passed. I should have been waiting in the self-help center. Eventually, they put me back into line and looked at my documents.

There was a problem. I had failed to indicate the time and place of the hearing in the document served on the other attorney and prospectively to be filed with the court. The judge needed first to schedule the hearing. Which judge? A new court official, referee Mark Labine, had been appointed to replace referee Cochrane who had retired. I had previously faced him in Housing Court and had a generally favorable impression. The assignment might go to Labine or it might go to Judge Swenson. The chief judge of Family Court, Jeannice Reding, would make that decision. Ultimately she chose Judge Swenson.

Since he was in trial, it took more time for him to schedule the hearing. I was asked to go up to the fifth floor, dial his office on the house phone, and wait for someone to meet me in the lobby. A young woman unknown to me who said she was Judge Swenson’s clerk took my papers and later returned with the hearing line completed. My motions would be heard on Tuesday, October 9, 2012, at 9:00 a.m. in room 517 of the Family Justice Center. The clerk said that Judge Swenson would decide whether the hearing would take place in person or he would make his ruling on the basis of paper documents reviewed and mail both parties his decision.

Now I needed to send attorney Wing Sun a copy of the page indicating the time and place of the hearing. I could buy a postage stamp in a gift shop in the skyway of an adjacent building. Alan Morrison would then mail the document to this attorney by dropping an envelop in a mail slot on the ground floor of this building. Then he would fill out another affidavit of service and have it notarized. Then, finally, I could file my motions with the court. There would be the motion papers and Alan’s two affidavits of service. The filing desk would give me a complete copy of what I had filed.

It was around closing time in the self-help center when all these papers were ready to be filed. The filing itself took five minutes. Then Alan and I left the Family Justice Center. He drove me home. The deadline was met. I was a nervous wreck for the rest of the day.

 

VIII. MY POST-TRIAL MOTION FOR AMENDED FINDINGS OF FACT/ CONCLUSIONS OF LAW OR, ALTERNATIVELY, A NEW TRIAL

37. My post-trial motions filed on August 20, 2012

This is the set of motions that I filed with the district court on Monday, August 20th. I have eliminated the double spacing for the sake of convenient reading:

_____________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without children

In Re the Marriage of:

Lian Yang McGaughey
Petitioner
and

William Howard Taft McGaughey

Respondent

POST-TRIAL MOTION FOR AMENDED FINDINGS OF FACT/ CONCLUSIONS

OF LAW OR, ALTERNATIVELY, A NEW TRIAL

Presiding Judge: Stephen F. Swenson substituting for referee Susan Cochrane

File No. 27-FA-11-XXXX

________________________________________________________________

NOTICE OF MOTION

TO: Lian Yang McGaughey, The Wing Sun Law Firm, 8XXX Wayzata Boulevard,

Suite 320, Golden Valley, MN 55426

PLEASE TAKE NOTICE that the undersigned brings a post-trial motion before Judge

James Swenson for amended findings of fact/ conclusions of law or, alternatively, a

new trial in the divorce proceedings between Lian McGaughey and William McGaughey.

 

MOTION FOR AMENDED FINDINGS OF FACT/ CONCLUSIONS OF LAW OR, ALTERNATIVELY, A NEW TRIAL

The Respondent, William McGaughey, moves the Court pursuant to Minnesota Rules of Civil Procedure 52.02 and 59.01 to amend its Findings of Fact / Conclusions of Law or, alternatively, to order a new trial.
 
The motion for a new trial concludes with a BASIS FOR A STAY OF EXECUTION.  Respondent requests the Order filed July 20, 2012 be stayed until a ruling is made on these post trial motions.
 
Minnesota Rules of Civil Procedure states after the listing of (a) through (g) under 59.01 of Grounds for a new trial:  “On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and  conclusions of law or make new findings and conclusions, and direct entry of a new judgment.”  Based on this, Respondent understands the Judge’s order may include any combination of elements of a new trial and amended findings and conclusions of law as are presented and requested in this motion.”

The motion for amended Findings of Fact / Conclusions of Law is presented in Part I of this petition. The motion for a new trial is presented in Part II of this petition. The motion for a stay of execution is presented in Part III of this petition.

 

Court hearing on October 9, 2012 at 9:00 AM at Room 517

at Family Court at 110 S. 4th St. Minneapolis, MN

 

Notice to other party (See attached.)

=== === === === === === === === === === === === === ===

NOTICE TO OTHER PARTY

1. This is an important document that affects your rights. A court hearing has been scheduled, and the other party is asking for new court orders. If you do not understand this document, contact a lawyer for help. You must prepare a written response if you disagree with the other party’s requests and you want the Judge to consider your facts and information. You cannot simply attend the court hearing and tell the Judge your side of the situation.

2. The other party asked for this court hearing. This Notice of Motions and Motion and the Affidavit in Support of Motion were prepared by the other party. They explain what the other party is asking for and how the requests satisfy the law.

3. If you fail to follow all of the court rules, the Court may give the other party everything they have asked for, without your input.

4. Responding This is what you should do now:

Read the Motion. Read the Notice of Motion and Motion and Affidavit in Support of Motion very carefully. If you do not understand what the other party is requesting, ask a lawyer for help.

Prepare your response. If you disagree with any of the other party’s requests, and you want the court to consider your facts and what you want, you should prepare papers called Responsive Motion and Responsive Affidavit in Support of Motion. If you do not have a lawyer, you can get forms at the Family Court Self Help Center, 1st Floor, Family Justice Center, 110 S. 4th St., Minneapolis, Telephone (612) 596-8519. These forms will guide you in preparing your responsive papers.

Inform the other party. Your Responsive Motion and Responsive Affidavit in Support of Motion must be hand-delivered to the other party at least five (5) days before the hearing or mailed to the other party at least eight (8) days before the hearing. Note: You must follow the court rules and laws for service and filing. This is not a complete explanation of the requirements.

File your response with the court. Your Responsive Motion and Responsive Affidavit in Support of Motion and an Affidavit of Service must be filed in person with the court administrator at least five (5) days before the hearing, or mailed to the court administrator at least eight (8) days before the hearing. The filing address is:

Family Court Division
Hennepin County District Court
Family Justice Center, 1st Floor
110 South 4th Street
Minneapolis, MN 55401-2279

Filing Fee: If you never paid a filing fee in this case, you will pay the filing fee now. The initial filing fee is $402.00 (or $372.00 if this is a divorce case), and the fee to file your motion is an additional $100.00. You can request an order waiving the fee if you are low-income. The court administrator cannot accept your papers for filing without payment of the fee or a waiver.

New Issues: If you want to raise new issues in your Responsive papers, instead of just responding to issues raised by the other party, your papers must be hand-delivered to the other party at least ten (10) days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the Court Administrator in person at least ten (10) days before the hearing, or mailed at least thirteen (13) days before the hearing.

5. The Hearing: Go to the hearing and bring a copy of your papers with you. Arrive at court 15 minutes before the scheduled hearing time. If you are late, the Court may hold the hearing without you. If you missed the deadlines for the written response, you should still attend the court hearing. However, if you missed the deadlines for the written response, the Court rules state that the Judge may refuse to look at papers you bring to the hearing, and may refuse to let you explain your side of the situation at the hearing.

6. Accommodation: If you need an interpreter or an accommodation due to a disability, please call your Judge’s clerk at least 5 days before your scheduled court date. To reach the clerk, call (612) 348-6734, select option 1 and then option 2. The Judge/Referee’s name and your hearing date are listed after the notice section on the first page.

7. Court date concerns: If you have questions about your court date or need to change your court date, please call the clerk for your Judge/Referee. To reach the clerk, call (612) 348-6734, selected option 1 and then option 2. The Judge/Referee’s name is stated after the notice section on the first page.

VERIFICATION AND ACKNOWLEDGEMENTS

I have read this document. To the best of my knowledge, information and belief, the information contained in this document is well grounded in fact and is warranted by existing law.

I have not been determined by any Court in Minnesota or in any other state to be a frivolous litigant and I am not the subject of an Order precluding me from serving or filing this document.

I am not serving or filing this document for any improper purpose, such as to harass the other party to cause delay or needless increase in the cost of litigation or to commit a fraud on the Court.

I understand that if I am not telling the truth or if I am misleading the Court or if I am serving or filing this document for an improper purpose, the Court can order me to pay money to the other party, including the reasonable expenses incurred by the other party because of the serving or filing this document, court costs and reasonable attorney’s fees.

DATE August 20, 2012 William McGaughey

signature of: Petitioner X Respondent

Street Address 17xx Glenwood Avenue

City/State/Zip Code Minneapolis, MN 55405

Telephone Number (612) 374-XXXX

Telephone Number of other party (612) 885-XXXX

=== === === === === === === === === === === === === ===

 

 

PART I: MOTIONS TO AMEND FINDINGS AND CONCLUSIONS OF LAW

The respondent, William McGaughey, moves that the Court amend its findings of fact and conclusions of law entered on July 20, 2012, as follows: Deleted text is indicated by strike through line. Additional text is underlined.

A. Findings of Fact

1 Amend Finding of Fact No. 10 to read: “ The parties are not currently subject to a Domestic Abuse No Contact Order. with provisions allowing contact, Hennepin County Court File 27-CR-11-XXXX.

2. Amend Finding of Fact No. 11 to read: “The parties’ financial circumstances are set forth in the Attached Memorandum, supplemented by Respondent’s motion for Amended Findings, are as follows:

a. Husband

i. Husband has little in the way of liquid assets, little remaining credit other than what might be raised by mortgages, and, considering his age, no reasonable prospect of employment.

ii. Husband’s rental property business has been yielding little or no profit or positive cash flow, even after depreciation is backed out. In 2010, the total loss was $13,396.65. With depreciation omitted, there was a gain of
$1370.22 for the year. Three properties contributed to the loss: 17xx Glenwood, $4593.07; 1715 Glenwood, $11,064.90; and Milford, $5468.00. One property, 1708 Glenwood, contributed a gain of $7,728.90. (See Petitioner Exhibit #18.) Over five years, the four properties together lost an average of $9287.77 per year and gained $3,255.04 per year if depreciation is excluded. Items newly capitalized between 2006 and 2010 were
significant.

iii. Husband requires about $2,000 a month excluding monthly interest obligations to meet his needs, and has less than $2,000 per month in combined pension and social security income. His income has been insufficient to meet expenses during the years of marriage, forcing him to borrow continually or sell assets to make ends meet.

iv. By stipulation, Husband is to assume all real estate except for Wife’s pre-marital estate in China.

v. The Petitioner’s Pre-hearing Statement listed no debt. The parties’ marital debt as of 4/15/11 totaled $329,732.14 according to exhibits presented at trial. Monthly interest on this debt was $1812.16 or $511.15
excluding interest included in the two mortgage payments. Today it is $2,061.89 or $807.27 excluding interest included in the two mortgage payments. (See Exhibit #4. )This would be an additional burden on the husband’s ability to support himself if he assumes all the marital debt.

vi. Due to a high debt level relative to income, it will be difficult or impossible for Husband to borrow if it is necessary to raise any substantial amount of cash. If substantial cash is needed within a short time, Husband would therefore be forced to sell property at a “fire sale” price, with a very substantial loss of equity and probable destruction of his rental-property business in Minneapolis.

b.Wife

i. Wife has little in the way of reported liquid assets, and no immediate prospect of employment.

ii. Wife has a bedroom and lives with daughter in the Reding DC area. Because Wife sold a condo in Beijing and provided daughter with the down payment for the condo -- consideration totaling $100,000 -- Wife lives rent free in this condo with her daughter.

iii. Both parties suggest that they require approximately $2,000 per month to meet their needs, but $1,000 of wife’s budget represents “rent” that she does not pay when she resides with her daughter. (Petitioner’s exhibit 5)
showing her monthly living expenses reports that, apart from rent paid to the daughter, Petitioner requires $1,050 per month for other expenses. Some other “needs” figures may be too high. For instance, Petitioner
reports that she needs $450 per month for food, compared with the Respondent’s stated need for a $100-per-month food allowance. As shown later, an estimate of the overstated needs would be about $350 per month. Petitioner reports a monthly income of approximately $400 per month. (Petitioner exhibit #6) If one subtracts $350 and $400 from the wife’s claim to need $1050 per month excluding rent, it leaves $300 per month in an income shortage for the month. The Petitioner owns two apartments in Beijing - one a four-bedroom, two-bathroom apartment - which are sitting empty and could be rented. (The Respondent’s income profile assumes that all his properties are rented.) The rent money from China would supplement whatever money the Petitioner needs to maintain her current life style, even assuming she receives no spending money from her daughter and is ineligible for a government disability payment if unable to work. She would then have no hardship justifying spousal maintenance or a share of non-marital property from the husband.

iv. If Husband assumes all marital debt, Wife will be debt free.

v. Wife owns free and clear one rentable condominium in Beijing, valued at $240,000. Wife also has a second condominium in Beijing, which may be a life estate, not disclosed during the proceeding, with an unknown value. Wife has in the past received rental income from this second condominium.

c. Relative ability to assume debt: Husband has an on-going residential rental business which has marginal and uncertain net cash flow. Wife has the China pension of $300/ mo., but owns rentable property in China. There are
mortgages on the marital real estate to be assumed by the husband and on one of three non-marital properties owned by the husband but on neither of the wife’s two non-marital properties in China.

3. Amend Finding of Fact No. 12 to read: “The parties’ real estate and investment assets are set forth in detail in the attached Memorandum, supplemented by Respondent’s motion for Amended Findings. Investment assets as of 4/15/11 are as follows:

a. Husband:

i. Financial assets total $73,777.7

ii. Stipulated values of real estate owned or assumed by husband are: $110,000 for marital duplex at 1715 Glenwood Avenue, $160,000 for non-marital four-plex at 17xx Glenwood Avenue, $280,000 for nine-unit apartment building at 1708 Glenwood Avenue, and $280,000 for the house and adjacent property in Milford.

b. Wife

i. Financial assets are unknown.

ii. Wife owns a four-bedroom, two bathroom apartment in Tongzhou section of Bejing worth $240,000 according to wife’s balance sheet dated May 1, 2012, and a one-bedroom apartment near the Beijing zoo which is undisclosed and unvalued but roughly similar to the apartment sold in 2010 although without an enclosed bathroom and kitchen.

4. Amend Finding of Fact No. 13 to read: “The legal descriptions of the parties’ real estate interests are as follows, along with encumbrances thereon:

a. The four-plex at 17xx Glenwood Avenue, Minneapolis, MN 55405, Hennepin County, State of Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to Minneapolis, Minnesota.

There is an encumbrance in the approximate amount of $86,300.

b. The nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

There is an encumbrance in the approximate amount of $0;

c. The duplex at 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

There is an encumbrance in the approximate amount of $182,000.

d. Two parcels at 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, Minnesota.

e. 100 Sawmill Sawkill Avenue, Milford, Pennsylvania. The legal description of this property is: .75 Acre and improvements thereon, being set forth on tax map 113.13-03-70 Pike County, Pennsylvania.


f. Property located in Orienta Township, City of Bayfield, near Port Wing Wisconsin. There is a dispute between the parties as to whether this land consists of 20 or 40 acres. A log cabin is also located on this property. The only legal description presented to the court is as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

g. Condominium in Beijing, China at Hualong Residence Community, Tongzhou District, Building 48, Apt 552. No legal description was provided to the Court.

h. A second one-room condominium in Beijing, China, not disclosed to the Court by Petitioner, but referenced in Exhibit 369, email to James Gurovitsch dated 4/14/11, and in Petitioner’s reply to Respondent’s Interrogatories. This may be a lifetime tenancy, and not owned. Legal description is unknown.

5. Amend Finding of Fact No. 15 to read: “A 1995 Mercury is titled in Respondent’s name. The fair market value is unknown, but nominal for purposes of an equitable property division $500 according to Petitioner’s Pre-hearing Statement.”

6. Amend Finding of Fact No. 16 to read: “ The parties have various bank accounts with nominal value. Petitioner’s Wells Fargo checking, $100 as of April 15, 2011; Petitioner’s Chinese Bank Accounts, $400 as of April 15, 2011; Respondent’s Wells Fargo checking, $1,000 as of June 7, 2011; Joint Respondent’s banking account through US Bank, account ending in 3556, $1,200 as of April 18, 2011; and Joint Respondent’s banking account through US Bank, account ending in 2032, $500 as of April 29, 2011. The two latter accounts with US Bank were closed to prevent fraud.

7. Amend Finding of Fact No. 18 to read: ” Prior to trial, the parties disagreed regarding the marital debts in this matter. In order to clarify these issues, the court used Petitioner’s Pre-hearing statement balance sheet to facilitated discussion and achieve agreements regarding the debts. Using this process, the parties arrived at the following agreements: The Advanta debt is $2,630.50; the Citybank Business card debt is $12,001.85 (Petitioner’s Exhibit 25 and Respondent’s Exhibit 116); and the debt on the Menard’s credit card ending in account # ending in 5093 is $1,893.52 (Exhibit 133). Although disputed, Respondent agreed to be responsible for the Citybank Business card, account # ending in 5466. There was no agreement regarding the responsibility for the First National Bank of Omaha Visa charges (Exhibit 200) and the Menard’s credit card debt in account #5093. Testimony and exhibits introduced and accepted during the trial identified the following items of debt existing on April 15, 2011, the date of the initially scheduled pre-hearing settlement conference: $175,147.90 mortgage loan with NationStar encumbering duplex at 1715 Glenwood Avenue (Respondent’s exhibit 208) and $84,017.51 mortgage loan with US Bank encumbering fourplex at 17xx Glenwood Avenue (Respondent’s exhibit 209); credit-card debts of $8,356.42 with VISA First Bank of Omaha (Respondent’s exhibit 200), $5,233.49 with Chase), $3,737.66 with Advanta, and $3,723.32 with Citibusiness (exhibit 132) and $190.62 with Menards (exhibit 133) ; two unsecured lines of credit with US Bank with balances of $39,628.01 and $5,976.67 (exhibits 201 and 202); and a balance of $3,911.17 on a overdraft-protection account with US Bank. These debts total $329,732.15. Testimony given and exhibits accepted on the second day of trial revealed that the respondent had a total of $5,519.45 at time time of marriage on January 28, 2000, and that the petitioner had no debt. Therefore, the marital debt of the parties was $324,212.70 ($329,732.15 minus $5,519.45) on April 15, 2011.

8. Amend Finding of Fact No. 19 to read: ” Prior to trial the parties stipulated that Husband would be awarded the Wunderlix Celluloid Prints, the Port Wing, WI, improvements and land, the Mercury Tracer, 17xx Glenwood Avenue (4-plex), and 1708 Glenwood Avenue (nine-unit), and pay all encumbrances on these Glenwood properties; and that Wife would be awarded the condo located in Beijing, China. The parties agreed that the value of 1708 Glenwood Avenue is $280,000 and the value of 1715 Glenwood Avenue is $173,000 $110,000 (meaning no equity). The parties agreed that these two Glenwood properties were entirely marital 1715 Glenwood Avenue is entirely marital. The also agreed that value of the Milford, Pennsylvania improvements and parking is $280,000, which does not include includes the large adjacent acreage lot. Wife is not making any marital claim as to the large acreage from Husband’s father’s estate and it has not Yet been distributed. The parties agree that the Petitioner’s 401k should be valued at $5,000, and that Wife’s medical bills totaling $6,000 as of May 1, 2012 are a joint marital debt.”

B. AMEND CONCLUSIONS OF LAW:

II Amend Conclusion of Law SPOUSAL MAINTENANCE to read: “Commencing August 1, 2012, as and for permanent spousal maintenance, Respondent shall pay to Petitioner the sum of $500.00 per month, payable for six months on the first day of the month in two equal installments on the first and fifteen days of each month, until the earlier of the following events:

(a) Death of Petitioner
(b) Death of Respondent
(c) Remarriage of Petitioner
(d) Further order of the Court

It is intended that this maintenance payable to Petitioner shall be included in Petitioner’s gross income, pursuant to Section 71 of the Internal Revenue Code, and shall be deductible by Respondent, pursuant to Section 215 of the Internal Revenue Code. The Court retains jurisdiction to enforce Respondent’s obligation to pay maintenance to Petitioner.”

IV Amend Conclusion of Law MARITAL AND NONMARITAL PROPERTY AWARDED TO PETITIONER to read:

“1. The Beijing, China, condominium at Hualong Residence Community, Tongzhou District, Building 48, Apt. 552.

2. All bank accounts, investment accounts, and retirement accounts in her name, including but not limited to her Wells Fargo and Chinese Bank Accounts;

3. The parties joint US Bank accounts ending in numbers 3536 and 2032 at the values set forth above in Finding 16.

4. All personal items in her possession;

5. Her 401k;

6. The parties Qwest/Century Link stock;

7. $50,000 which shall be paid by Respondent in successive equal monthly installments of $10,000 each (with no interest thereon) commencing October 1, 2012. As an alternative, Petitioner may elect instead to have assigned to her the loans owned by Sheila Gorman, Alan Morrison, and Lena Morrison. If chooses the loans instead of the $50,000 cash, she shall advise the court within 30 days after the Decree is entered.

8. Petitioner’s one-bedroom apartment which has not been disclosed near the Beijing zoo.

V Amend Conclusion of Law MARITAL AND NONMARITAL PROPERTY AWARDED TO RESPONDENT to read:

1. the non-marital Wunderlix Celluloid Prints;

2. The Port Wing, WI, improvements and land legally described as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

3. The Mercury Tracer;

4. All bank accounts, investment accounts, and retirement accounts in his name, including but not limited to his Wells Fargo and US Bank checking.

5. The four-plex at 17xx Glenwood Avenue, Minneapolis, MN 55405, Hennepin County, Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to Minneapolis, Minnesota;

6. The nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin county, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

7. The improvements and land located at 100 Sawmill Sawkill Avenue, Milford, Pennsylvania.

8. 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

9. 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, Minnesota.

10. The following stocks/ securities: Gannett, Wells Fargo/Wachovia, Arbitron, US Bank, Target, and Germany Fund/ Euro Equity Fund;

11. The following life insurance policy: AXA Life insurance account (zero balance).

12. The Petitioner shall assume $100,000 of the parties’ marital debt to be evidenced by an unsecured, non-interest bearing note from Petitioner to Respondent in the same amount. The note may be satisfied by payment of $60,000 from sale of Beijing property or another source at any time in the next five years.

VII Amend Conclusion of Law DEBTS ASSIGNED TO PETITIONER to

read: “Petitioner shall pay and hold Respondent harmless from her medical bills except for $3,000 in existing medical debt to be paid by Respondent by the end of 2012.”

XIV Add Conclusion of Law RESPONSIBILITY FOR TAX ON SALE OF BEIJING APARTMENT IN 2010 The wife will be responsible for filing an amended return of the parties’ 2010 joint income-tax returns and for any additional tax or penalty owed in relation to the gain on the sale of wife’s apartment in Beijing in 2010.

 

C. Grounds for proposed amendments

________________________________________________________________

Argument #1 In regard to amending the Findings of Fact, including Memorandum discussion, with respect to the amount of marital assets and debts. (Findings of Fact #11)

1. In point #18 of his Findings of Fact, the trial judge used incomplete or erroneous information regarding marital debt based on the Petitioner’s Pre-hearing Statement. The Petitioner’s Pre-hearing Statement did not list any debts in its balance sheet given to Respondent. More complete information was given in testimony and exhibits offered at trial.

2. The marital assets included the wife’s 401(k) retirement account worth $5,000 and the real estate at 1715 and 1719 Glenwood Avenue worth $110,000, assigned to the husband. The latter values and assignments were stipulated by the parties at the conference with Judge Jeannice Reding held on May 1, 2012. The marital debts, as previously stated, totaled $324,212.70.

3. The statement made in point 19 of the Findings of Fact includes two factual errors: First, the stipulated value of 1715 Glenwood Avenue (and 1719 Glenwood Avenue) is $110,000, not $173,000 (which represents the mortgage debt). Second, the parties did not agree that the property at 1708 Glenwood Avenue was “entirely marital”. It is a non-marital property as evidenced by the deed and testimony given at trial. The property at 1715 Glenwood Avenue is marital, however.

Argument # 2 “ In regard to associating marital debt with the mortgages placed on two Minneapolis properties.”

4. Testimony presented at trial made clear that the duplex at 1715 Glenwood Avenue and the four-plex at 17xx Glenwood were not purchased with money raised from these mortgages. The four-plex was purchased in 1992 (before the marriage) while the duplex was purchased and renovated in 2002 and 2003 with funds raised from borrowings on the Respondent’s two lines of credit with US Bank, sale of his premarital stock and premarital real estate (a vacant lot at 1701 Glenwood Avenue). The mortgage was placed in 2007. Even though the Petitioner’s attorney objected to the submission of related exhibits, the Respondent explained the series of events related to the two mortgages in a statement made during cross-examination. Essentially, these mortgages allowed the parties to refinance existing debt on credit cards or lines of credit at lower interest rates. It is therefore inappropriate to yoke the asset and debt mortgage on the two properties. The mortgage debt is part of total marital debt. One of the assets (17xx Glenwood Avenue) is non-marital property while the other asset (1715 Glenwood Avenue) is marital.

5. A statement made on page 20 of Judge Swenson’s decision, under division of marital property, is factually incorrect: “”He (the Respondent) has also agreed to assume the debt against the property (at 17xx Glenwood Avenue).” As Respondent’s Exhibit 300 reveals, no such agreement was reached about assumption of debt.

6. Regarding the mortgage debt related to 1715 Glenwood, the judge’s order states on page 21: “it is clear that husband favored his non-marital properties to the disservice of the parties’ one marital parcel by not spreading the lien among the multiple parcels.” It is true that $182,000 of existing debt was consolidated in a mortgage in 2007 on the marital property at 1715 Glenwood Avenue. However, this statement implies intention to burden the marital property selectively in anticipation of divorce. This implication is untrue for several reasons: (1) The respondent did not anticipate divorce in 2007 nor was he the one who filed for divorce four years later. (2) The non-marital property at 17xx Glenwood Avenue was similarly burdened with mortgage debt, albeit to a lesser degree. (3) Given fee structures, appraisal costs, and other expenses related to obtaining a mortgage, it is simply not economical to “spread the lien around among several parcels” as the judge suggests ought to have been done. Due to the parties’ low income-to-debt ratio, it was difficult to obtain debt refinancing and the Respondent was
lucky to arrange this when he did.

Argument #3 In regard to the division of marital property based on the amended findings of fact.

7. Minnesota statute 518.58 requires the court to “make a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property ... The court shall also consider the contribution of each in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.”

8. A manual issued by the Family Law Clinic states under Property Division:

a. “Generally, an equal division of wealth accumulated through the joint efforts of the parties is appropriate on dissolution of a long term marriage. Miller v. Miller, 352 N.W.2d 738, 742 (Minn. 1984) But the division of marital property need not be mathematically equal; it need only be just and equitable. Ruzic v. Ruzic, 281 N.W.2d 502 (Minn. 1979).

b. The manual also states: “Apportionment of marital debt is treated as a property division.” Justis v. Justis, 384 N.W.2d 885, 889 (Minn. App. 1986) In this case, the parties had $324,212.70 in marital debt compared with $115,000 in marital assets.

9. Despite the presumption of an equal property division, Minnesota statute 518.58 suggests that an unequal division of property might be allowed based on “the contribution of each (party) in the acquisition, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker.”

10. Testimony given at trial showed that, despite the wife’s attempt to assert a marital interest in the husband’s non-marital properties through work allegedly done, the husband was solely engaged in running the rental-property business; that he contributed almost all the money used for the parties’ living expenses; that he gave his wife and daughter Celia more than $100,000 during the marriage over and above what was needed for household expenses including money for Celia’s college tuition; that the wife contributed little if any of her earnings from employment at Target or other money to household expenses; and that she sold an apartment in Beijing and gave the proceeds from the sale to her daughter shortly before filing for divorce. Also, according to testimony given by a witness, the wife spent approximately 20 percent of her time in Minnesota (compared with 80% in China or northern Virginia). Her contribution to the marriage as a homemaker was therefore less than what would normally be expected from a stay-at-home wife.

11. Additionally, testimony showed that the husband sold non-marital property worth $24,000 and used the proceeds from two non-marital life insurance policies, amounting to $9,300 and $114,600, to pay debts incurred during the marriage. None of these funds were commingled with marital funds. Had the Respondent not voluntarily paid some expenses from his non-marital property, the parties’ marital debt would have been $148,000 higher.

12. In summary, to assign 100 percent of the marital debt to the husband and none to the wife cannot be considered “a just and equitable division of the marital property.” An equitable division of the marital property based on an equal division would assign $214,701.66 of the $324,403.32 total marital debt to the husband, and $109,701.66 of this debt to the wife, assuming that the husband took the marital real estate at 1715 Glenwood Avenue and 1719 Glenwood Avenue valued at $110,000 and the wife took her marital 401(k) account valued at $5,000. During testimony given at trial, the Respondent suggested that a lien might be placed on the daughter’s town house in Herndon, Virginia, considering that the wife’s sale of her Beijing property in 2010 provided funds for its purchase.

Argument #4 In regard to categories relating to dissipated assets and division of non-marital property.

13. There is no legal category titled “combination dissipation/share of non-marital property” and therefore no provision in law for such a situation. Pertinent statutes relate separately to dissipation of marital assets and to awarding non-marital property. The judge should separate these two categories, issue findings of fact for each, and make an award of property, if any, based on the appropriate laws.

Argument #5 In regard to the issue of dissipated assets.

14. According to lawyers.com: “The wasting or dissipation of assets involves the frivolous and unjustified spending of assets by a spouse. There must be more than just the mismanagement of property or spending in a way that's disapproved of by the other spouse. Instead, there must be evidence of intentional misconduct.”

15. In this case, there was no intent to spend or dissipate assets. The Respondent initiated virtually none of the transactions in question. Testimony presented at trial gave evidence of several forged checks or unauthorized charges to his credit card. In some instances, Respondent did report and receive reimbursement from the bank or credit-card companies. In others, where he did not seek reimbursement, he made a calculated decision aimed at asset preservation. Although Petitioner’s attorney demanded it, to report Ms. Gorman’s crimes to the police would have accomplished little other than her possible incarceration. Repayment would then have become impossible.

16. The loan documents with Ms. Gorman which the Petitioner took without permission from the Respondent’s files and submitted in Exhibit 12 are not evidence of an attempt to hide assets but, to the contrary, to document that the monies advanced to Ms. Gorman were loans rather than gifts.

17. The fact that the loans have not yet been repaid do not indicate that no attempt was made to seek repayment. In today’s tough economy, money is sometimes hard to collect. The Respondent declined to have Ms. Gorman prosecuted for the sake of recovering small sums of money because he wished to maintain good relations and obtain larger sums in the end.

18. The order related to dissipation of assets is, to a large extent, based on the judge’s perception of Respondent’s evasive activity during the discovery process. Footnote 12, on page 19, states: “Husband’s conduct during this litigation, particularly his less than complete cooperation regarding discovery would allow me to infer dissipation. See Hovelson v. Hovelson, C-6-99-1893 (Finance & Commerce 6/5/00), 2000 WL 687782 (Minn. App. 2000) wherein the trial court made a ‘reasonable’ decision, per the Court of Appeals, that Husband had dissipated assets during the dissolution because ‘Husband continually refused to turn over the (requested)
documents, and only turned over partial, inaccurate and disorganized records when the court ordered compliance with discovery requests.” This conclusion lacks a foundation in evidence presented at trial. The judge has given no specific example of what he considers “less than complete cooperation regarding discovery”. Perhaps this conclusion is based on correspondence from Petitioner’s attorney in the court file. The Respondent attempted to put some of the correspondence into evidence during the trial but it was rejected.

19. The fact is that the Petitioner and her attorney had a complete set of photocopies of the Respondent’s check registers in recent years as a result of the Petitioner removing papers from his desk when he was temporarily living elsewhere under a no-contact order. (See Petitioner’s exhibit #11) Perhaps lack of cooperation can be inferred from the heated complaints which Respondent made regarding this procedure.

20. Despite having Respondent’s financial records, Petitioner’s attorney made no attempt to identify improper transactions and produce a total of dollars misspent. Instead, Petitioner’s attorney asserted that $135,000 of marital funds had been dissipated. She ignored his request for a list of items coming up to that total. (See Petitioner’s exhibit #19.) Respondent then did a review of his own and asserted that he could find $86,000 in funds distributed to Ms. Gorman or her daughters. This hardly indicates uncooperative behavior.

21. Minnesota statute 518.58 Subd. 1a states: “The burden of proof under this subdivision is on the party claiming that the other party transferred, encumbered, concealed, or disposed of marital assets in contemplation of commencing or during the pendency of the current dissolution, separation, or annulment proceeding, without consent of the claiming party, and that the transfer, encumbrance, concealment, or disposal was not in the usual course of business or for the necessities of life.”

22. Bearing the burden of proof, the Petitioner has failed to provide sufficient evidence that the Respondent intentionally transferred property to a third party in anticipation of divorce or with the purpose of concealing property in a divorce proceeding. The Petitioner did not even attempt to make such an argument; the dissipation issue was raised mainly to smear the Respondent with the marital-misconduct allegation. At worst, the Respondent was guilty of trusting that his ex-wife would repay the borrowed money.

23. It is also an error to assume that the money allegedly dissipated to Ms. Gorman came from marital funds. The Petitioner alleges, on the basis of Exhibit 19, which contains an email from Respondent dated December 5, 2011, that Respondent admits to having dissipated $89,000 in assets. However, the Respondent in February 2010 became the beneficiary of a life-insurance policy worth $114,000. This was the Respondent’s non-marital property. That insurance money, dispersed during the next year, more than covers the $89,000 allegedly dissipated to Ms. Gorman. Respondent’s exhibits 320 and 392, to which the Petitioner objected, give evidence of thelife-insurance policy and of funds dispersed at several times from the related checking account.

Argument #6 “In regard to the wife’s sale of her Beijing apartment in September 2010 and subsequent transfer of the proceeds to her daughter

24. Shortly before September 26, 2010, the Petitioner sold an apartment in Beijing for $100,000 without her husband’s knowledge or permission. The bulk of the money was transferred from Petitioner’s account at the Bank of China into her daughter’s checking account at PNC Bank in northern Virginia on October 18, 2010, where much of it was used for a down payment on the daughter’s purchase of a $320,000 town house in Herndon, Virginia, and the rest to help pay down the daughter’s student loan. Despite false testimony given by the daughter at trial, the respondent first learned of this transaction on October 17, 2010 in Herndon, Virginia, when he was asked to fly to Virginia to help evaluate town houses which the daughter wished to purchase. (See Petitioner’s exhibits 1, 2, and 9.)

25. The Petitioner filed for divorce on March 4, 2011. In January or February of 2011, Petitioner sent more than a dozen boxes or suitcases stuffed with clothing or other personal belongings from Minneapolis to northern Virginia. In view of the time periods involved, it seems likely that both the apartment sale and the transfer of other property represent transfer of assets in anticipation of divorce.

Argument #7 “ In regard to the responsibility for income taxes on the gain associated with the sale of the wife’s Beijing apartment

26. The capital gain on the sale of the wife’s apartment in Beijing in 2010 was not reported on the couple’s joint income-tax return for 2010. The judge should issue a decision assigning responsibility for this omission to the wife for two reasons:

27. First, the wife agreed to accept this responsibility at the settlement conference conducted by Judge Reding on May 1, 2012. As explained in the motion for a new trial, the court clerk,Azure Schermerhorn-Snyder, improperly arranged to have the agreement reversed. When the Respondent attempted to raise the issue of the unpaid taxes at trial, the judge would not allow discussion of this subject because it pertained to topics raised at a settlement conference. (See Respondent’s Exhibit 300.) Second, the Respondent has no information about the original cost of the sold apartment in Beijing which would be needed to calculate the capital gain. It would be more convenient for the Petitioner to calculate and assume responsibility for the tax liability than the Respondent especially if the filing must be coordinated with her daughter.

Argument #8 In regard to the wife’s second unsold apartment in Beijing

28. The Petitioner owns or has lifetime use of another apartment in Beijing besides the one sold in September 2010 and besides the one valued at $200,000 or more which she disclosed as a non-marital asset. Although the Petitioner failed to acknowledge its existence, this second apartment is mentioned in Petitioner’s response to Respondent’s Request #17, if only in denial. (Exhibit originally numbered E-118.) The number used when it was
accepted into evidence is unknown.) Also, it is mentioned in an email sent from Petitioner’s attorney to Respondent’s then attorney, James Gurovitsch, dated 4/14/2011 9:56 p.m. (See Respondent’s exhibit 369.)

29. The apartment discussed here is neither the apartment sold in September 2010 (since it would no longer be a property issue in April 2011) nor the “big apartment” which the Petitioner still owns (since the Petitioner bought this apartment for cash. See Petitioner’s response to Respondent’s request #16.) The Respondent slept in all three apartments numerous times during the marriage. This is the one, near the Beijing Zoo, where the Petitioner put in a new sink about three years ago.

Argument #9 In regard to the relative degrees of hardship experienced by the Petitioner and the Respondent

30. The trial judge’s order requiring the Respondent to pay the Petitioner $500 per month (twice a month) for permanent spousal maintenance is based on the judge’s stated “discretion to force the parties to share the economic hardship.” (page 18) The judge’s argument appears to be based upon the parties’ respective “living expenses” (or monthly budgets) in the Petitioner’s and Respondent’s Prehearing Statements. The Prehearing Statements show that the Petitioner reported a need for $2,031 in monthly living expenses while the Respondent reported $1,920 for needed expenses, omitting interest expense. The judge has properly questioned the
Petitioner’s payment of rent to her daughter considering that the Petitioner supplied money for the down payment on the town house in which she lives.

31. Several other of the Petitioner’s reported needs seem questionable. For instance, the Petitioner, who weighs less than the Respondent, said that she needed $450 per month for food while the Petitioner said he needed only $100 per month. According to the U.S. Department of Agriculture’s Economic Research Service (as reported by the Agricultural Marketing Resource Center) in 2010: “A single female, age 19-50 spent $36.20 a week on the thrifty model and $71.80 a week on the liberal food cost plan.” To reduce this number to $54 per week ($216 per month), which is the average between the two figures, would knock $234 per month off the wife’s food claim. Petitioner also claims to need $280 per month for a transportation allowance despite enjoying free air travel on United Airlines because her daughter was a flight attendant. Respondent, without this benefit, claims to need only $160 per month for transportation, which is also the number Petitioner used in her Prehearing Statement. Another $120 per month could be saved here. One would conservatively estimate that, apart from the rent, the Petitioner’s stated monthly living costs are $354 ($234 + $120) too high.

32. If this adjustment is taken into consideration, the wife’s “shortfall” in money for needed living expenses becomes different from that in the calculation on which the spousal-maintenance award was based. The Petitioner’s total monthly expenses in her Pre-hearing statement were $2,031. From this, one would deduct $800 for rent not needing to be paid, $234 for excessive food claim, and $120 for excessive transportation claim. This leaves $877. In her Exhibit #5, Petitioner reports a monthly income of $400. This leaves a shortfall of $477 rather than $1,000. Since the Petitioner owns two apartment in Beijing which might be rented if she lives in the United States, the entire shortfall might easily be covered from that source. There would then be no “hardship” needing to be “shared” with the Respondent.

33. However, the main reason against the spousal maintenance award to the Petitioner is that the Respondent, if required to assume all the marital debt, would be required to pay $2,061.88 in interest to his creditors as disclosed at trial. Interest was not reported in the Respondent’s Prehearing Statement because the debt determination had not yet been made; however, the fact that the monthly interest exceeded the Respondent’s monthly retirement income from Social Security and a state pension was mentioned in testimony given during the trial. Also, the evidence shows that the Respondent has chronically lost money in his rental-property business so no relief can be expected from that quarter.

34. If one backs out the $268.36 in monthly interest associated with the Respondent’s $845.00 monthly mortgage payment and the $986.26 of interest associated with the mortgage on the duplex which are included in the rental-property business (on the false theory that the rental-property business breaks even), it leaves $807.27 in other monthly interest. This needs to be added to the Respondent’s monthly budget, bringing monthly expenses up to $2727.20. Even without the need to pay spousal maintenance, the husband would be $770 short of his $1958 monthly retirement income. If hardship must be equally shared, it would require a monthly payment from the wife to the husband. Otherwise, the husband would be required to keep sinking further into debt whose repayment would require eventual sale of his non-marital real estate.

35. The judge acknowledges (on page 15) that “there is no statue or case law of which I am aware that requires one party to sell assets in order to pay maintenance.” Nevertheless, his decision to force the Respondent to dip into his non-marital assets is based upon what he perceives to be the Petitioner’s financial “hardship”.

36. The judge wrote (on page 15): “Although husband lacks sufficient retirement and social security income to meet his needs and still contribute to wife’s needs in significant amount, it remains possible that his real estate holdings generate enough positive cash flow to fund a maintenance award.” This hopeful possibility is negated by the hard evidence of six years of income-tax returns. The judge tends to dismiss the reported losses in favor of cash-flow results that show depreciation being added back. This procedure is unjustified if newly capitalized items during a year exceed the depreciation taken on the tax return in the same year. No testimony was given in that regard.

37. What are the relative positions of Petitioner and Respondent with respect to ability to pay current expenses? Testimony was given in Respondent’s opening statement that he had initially engaged the services of an attorney but was forced to represent himself when his money and credit were drained. The Petitioner meanwhile continued to engage the services of her attorney at $150 an hour. The Respondent made several serious offers to settle while the Petitioner consistently held out for more. If the Petitioner had been under a greater degree of financial stress than the Respondent, she would have been equally or more concerned about the legal bills that she was incurring in her refusal to settle over more than a year’s period.

Argument #10 In regard to legal justifications for invading non-marital property

38. The statute authorizing invasion of non-marital property in a divorce is 518.58, subd. 2: “If the court finds that either spouse’s resources or property, including the spouse’s portion of the marital property as defined in section 518.54, subdivision 5, are so inadequate as to work an unfair hardship, considering all relevant circumstances, the court may, in addition to the martial property, apportion up to one-half of the property otherwise excluded under section 518.54, subdivision 5, clauses (a) to (d), to prevent the unfair hardship. If the court apportions property other than marital property, it shall make findings in support of the apportionment.”

39. This motion is related to to issues raised in the previous motion. The statute allows invasion of marital property where the division of property otherwise ordered would work “an unfair hardship” on a party, specifically taking account the apportionment of marital property. In this case, however, the judge has assigned 100 percent of the marital debt - $324,400 - to the Respondent and none to the Petitioner. It can hardly be argued that this arrangement relating to the division of martial property creates an unfair hardship for the Petitioner that would justify invading the Respondent’s non-marital property.

40. In its chapter titled “Property Division”, a publication of the Family Law Institute states: “Invasion of non-marital property occurs only in extraordinary circumstances. See Hogsven v. Hogsven, 386 N.W.2d 419 (Minn. App, 1986). There must be findings of unfair hardship to support the invasion. Roel v. Roel, 406 N.W.2d 619 (Minn. App. 1987); Graeber v. Graeber, 392 N.W.2d 589 (Minn. App. 1986) ... The usual circumstances are where one spouse would be left destitute, where the nonmarital asset represents the entire estate, etc. Faus v. Faus 319 N.W.2d 408 (Minn. App. 1987); Hanson v. Hanson, 378 N.W.2d 28 (Minn. App. 1985) ... The contributions one spouse has made to the other’s nonmarital property may also contribute to a finding of unfair hardship. Wilson v. Wilson, 348 N.W.2d 357 (Minn. App. 1984). Also, contributions to the other spouse’s family may be considered. Arundel v. Arundel, 281 N.W.2d 663(Minn. App. 1979).

41. It would seem that few if any of the above-mentioned conditions that justify invading non-marital property apply to this case. The marriage dissolution has not created unfair hardship when, after 11 years of marriage, the wife has acquired a 401(k), she retains non-marital real-estate conceded to be worth $240,000, her daughter has obtained a college education from a private college and an expensive townhouse, and she assumes none of the marital debt. She is not left destitute in this situation. Neither does the husband’s non-marital property represent the entire estate. Despite efforts to argue otherwise, the wife made little, if any, contribution to the
husband’s non-marital property. She made no contributions to the husband’s family and contributed few, if any funds, to the parties’ household expenses. The husband has a monthly shortage of funds to meet his living expenses while the wife does not.

42. In short, there is no reasonable basis for assigning $50,000 worth of the Respondent’s non-marital property to the Petitioner. The only way to justify this is to create a legally ambiguous category called “combination dissipation/share of non-marital property” in which judicial discretion replaces judgment based on application of law.

Argument #11 “In regard to the sufficiency of evidence to justify property transfer based on the wife’s health condition, ability to speak English, and prospects for future employment

43. The award of non-marital property is based on certain understandings of the wife’s condition that were not supported by evidence presented at trial. This statement appears on page 23 of the judge’s memorandum: “Wife is in poor health and suffers from recurrent cancer among other problems; is Chinese with little command of the English language; has limited work history and the record does not reflect job skills that would warrant employment at a significant salary should her health suddenly improve; and has only a modest retirement income from China. In short, her prospects of an improved economic status are extremely limited. That reality, coupled with husband’s inability to pay her significant maintenance, portend a near destitute existence, unable to meet her basic needs on her own, with no legitimate prospects of acquiring additional capital assets.”

44. It is true that the wife does suffer from recurrent cancer. However, it is by no means clear that her current state of health is poor since she appears to be in normal health. She has refused to disclose her medical records or give related information to her husband.

45. Other than the fact that the wife communicated through an interpreter during the trial, the judge has no evidence to support his assertion that the wife has “little command of the English language.” She and her husband conversed quite adequately in English when they first met in January 2000. Respondent has a sound recording of his wife speaking English with a 911 operator in January 2012 while she interrupted his call.

46. The judge also has no evidence whatsoever to support his claim that the wife “has limited work history and the record does not reflect job skills that would warrant employment at a significant salary should her health suddenly improve.” No testimony or evidence was offered regarding her past positions in China and possible job prospects there, or, for that matter, her three-year stint at Target. What is on the record is that the wife is fifteen years younger than the husband and she has more recent job experience. If she is truly unable to work, she would be eligible for government assistance. The husband, already on Social Security, would not be eligible.

47. The reality is that the wife’s economic well being is intimately connected with that of her daughter Celia, whom she raised as a single parent. They share use of both a checking account and the daughter’s credit card. The daughter has a high-paying job with the federal government. The daughter’s paternal grandfather is a multi-millionaire, now in his 80s. Her uncle is the billionaire owner of a chemical company in Germany. Her biological father lives in California. There is evidence that the grandfather has recently given Celia money to help purchase the townhouse (Respondent’s exhibit 369, email from Petitioner’s attorney to James Gurovitsch, 4/7/11 2:32 p.m. See also Petitioner’s response to Respondent’s Request #28.) While gifts or inheritances from relatives are uncertain, the extraordinary wealth of Celia’s paternal relatives belies the conclusion stated on page 23 that “her (Petitioner’s) prospects of an improved economic status are extremely limited.”

48. There was insufficient time during the trial to inquire into these matters. The Conclusion of Law related to them is not supported by the available evidence.

Argument #12 In regard to the order requiring the Respondent to pay Petitioner spousal maintenance for an indefinite period of time

49. Unless the Petitioner exhibits a greater degree of financial hardship than the Respondent or her prospects for future income are significantly less encouraging, there is no justification for spousal maintenance to be paid by the Respondent. The argument about making the parties share (equally) in the hardship is based on erroneous assumptions. (See arguments in Argument #9.) The conclusion regarding the Petitioner’s poor prospects for future employment and income lacks a foundation in facts presented at trial. (See arguments in Argument #11.) If the Respondent is to assume all the marital debt, the resulting interest payments will create a permanent deficit in his monthly budget. (See arguments in Argument #9.)

50. If the judgment further requires the Respondent to sell or financially burden his apartment building at 1708 Glenwood Avenue to pay the Petitioner $50,000 in cash starting in October 2012, it will likely destabilize his rental-property business since that apartment building is his only income-producing property. At age 71, it is unlikely that Respondent will find any other employment. (The wife is 15 years younger.) This is not a good time to be selling property in north Minneapolis or to be trying to obtain a mortgage loan against commercial property.

51. That leaves the possibility of selling the Milford property to free up roughly $450 per month so that the $500 in permanent spousal maintenance can be paid. This was a house built by the Respondent’s great-great grandfather where many family heirlooms are kept. His parents, two brothers, and relatives going back several generations are buried in the Milford cemetery. He himself has a grave plot reserved there. He may well
retire to Milford after he is too old to work in the rental property business. In any event, the requirement to pay spousal maintenance to the Petitioner is, in fact, unfairly forcing the Respondent to sell non-marital property.

52. In that case, the question is why the trial judge did not instead require the Petitioner to sell one or her two remaining non-marital apartments in Beijing. Considering the Chinese cost of living, she could live comfortably on the proceeds from the property sale for years and continue to have another place in Beijing to live. Alternatively, if she does not plan to live in China, she could sell both apartments and have a nest egg of more than $300,000 (not considering taxes) for living in the United States.

Argument #13 In regard to a Domestic Abuse no-contact order

53. Point 10 of the Findings of Fact states: “The parties are subject to a Domestic Abuse No Contact Order with provisions allowing contact, Hennepin County Court File 27-CR-11-XXXX.” In fact, Judge Mary Vasaly cancelled the no-contact order associated with this case on March 18, 2011. It is unclear what a no-contact order means if there are provisions allowing contact. There was also a no-contact order associated with a second arrest resulting from a false allegation of domestic assault on January 24, 2012, coordinated with this divorce case. However, those assault charges were dismissed by the prosecutor on March 19, 2012.

Argument #14 In regard to other factual errors of fact in the findings of fact

54. The judge’s Findings of Fact and attached Memorandum contain a number of factual errors or misinterpretations.

a. First, the parties have never had a joint account at US Bank with account numbersending in 3556 or 2032 or anything else. The respondent has maintained several accounts at US Bank in his name alone while the petitioner banked alone in her name at Wells Fargo.

b. Second, the parties no longer own stock in Qwest/Century Link. It was sold in 2003 to pay bills.

c. Third, the respondent owns property at 100 Sawkill Avenue in Milford, Pennsylvania, not 100 Sawmill Avenue.

d. Fourth, the respondent no longer owns stock in Arbitron, Target, or Germany Fund/ Euro Equity Fund or any equity in an AXA Life Insurance account.

e. Fifth, the wife’s disclosed apartment building in Beijing is valued at $240,000 according to her attorney’s latest statement, not $200,000.

f. Sixth, Linda Davis, the tenant in Milford, currently pays $410 per month, not $350 per month as in the lease dated 2003.

g. Seventh, Wachovia went out of business during the financial crisis of 2008. Its business was acquired by Wells Fargo. Respondent did not own any Wells Fargo stock prior to the marriage. Its ownership came about after the dissolution of Wachovia.

h. Eighth, the trial judge claimed that respondent has been “diverting” money from property earnings to retain the money-losing house in Milford, Pennsylvania. In a normal year, the excess of expense over revenues for the Milford house is around $5,400. Why was not the Respondent also “diverting” money in keeping the duplex, which loses over $11,000 per year? The answer is that there are reasons other than “diverting” assets in
a marriage dissolution for retaining such properties. It should also be noted that an exhibit presented and accepted at trial showed that the respondent gave the petitioner and daughter Celia more than $100,000 during the marriage, above and beyond their normal living expenses. This, too, had a larger impact on household finances than the Milford diversion.

i. Ninth, the judge stated “he (the husband) was not forthcoming with the information sought by wife during discovery, which was necessary for proper preparation of cross-examination.” The reference is unclear. If the statement refers to the appraisal of 17xx Glenwood Avenue, it is true that the respondent questioned the need for an appraisal in emails exchanged with the petitioner’s attorney considering that this was non-marital
property and non-marital property would not normally be redistributed. On the other hand, he fully cooperated with the appraiser once this work was ordered. If this statement refers to discovery in general, there is much evidence to suggest that the Respondent cooperated to an extraordinary degree with the Petitioner and her attorney while receiving little cooperation in return. However, the trial record does not reflect this since the Respondent had inadequate time to make his case. Presently, the record contains insufficient evidence to support the judge’s statement that the Respondent was not “forthcoming” in production of evidence which, in turn, supports a decision to transfer property from one party to another.

D Basis

This motion is made in accordance with Rule 52.32, Minnesota Rules of Civil Procedure.

 

Part II Motion for a New Trial and Stay of Execution

The respondent, William McGaughey, moves the Court for an order as follows:
 
1. Granting a new trial in the divorce proceedings between Lian McGaughey and William McGaughey, in whole, or limited to fact finding regarding any or all of the following:

a. Petitioner’s living expenses including food and transportation;
b. Existence of a second apartment in Beijing, not previously disclosed by Petitioner;
c. Petitioner’s ability to derive income from renting her property in China;
d. Petitioner’s financial situation and future employability;
e. The parties’ debt at the outset of the marriage, and the net amount of marital debt;
f. The extent, if any, of alleged dissipation of assets;
g. The parties’ lack of cooperation regarding discovery;
h. Petitioner’s English speaking ability;
i. The Petitioner’s time spent away from Minneapolis;
j. The Petitioner’s personal network and her ability to acquire money from various sources;
k. The evidence does not justify decisions;
l. Such other topics as the Judge determines require additional fact finding.

2. Granting a stay of execution of Conclusions of Law, IV Marital and Non-Marital Property Awarded to the Petitioner, 7. Payment of Respondent’s Non-Marital Property

 
BASIS FOR A NEW TRIAL

a. Minnesota Rules of Civil Procedure, Rule 59.01 lists the grounds for a new trial.

b. Rule 59.01 (a) states: “Irregularity in the proceedings of the court, referee, jury, or prevailing party, or any order or abuse of discretion, whereby the moving party was deprived of a fair trial;” 

c. The following irregularities occurred:

1. The time allowed for testimony and witnesses during the two-trial greatly favored the petitioner and disadvantaged the respondent. The Respondent calculates that he and his witness consumed two and a half hours of trial time while the petitioner and her witnesses had nine hours.

2. The respondent’s turn to offer testimony did not even begin until 11 a.m. on the second day. No time was allowed for closing statements. When the respondent complained of insufficient time to present testimony, the judge gave him the final ten minutes but then abruptly cut him off and ended the trial when respondent offered certain testimony.

3. The severe time limitation did not allow the respondent to ask any questions about the petitioner’s career background, health, and financial resources so that the judge based his decisions about spousal maintenance and division of non-martial property on erroneous assumptions made in the absence of information. The lack of sufficient time to present the Respondent’s side of the case had a significant impact on the evidence available for the judge’s decision.   

4. The trial judge’s Memorandum accompanying his decision states that the two-day trial was adequate for the case but that the parties’ failure to comply with certain of referee’s requirements. He especially criticized the Respondent for failing to number exhibits properly and provide an exhibit binder.

5. It is true that the Respondent’s exhibits were not numbered in accordance with referee Cochrane’s instructions. The Respondent did not deliberately disobey the numbering instruction but was unaware of it when he prepared his exhibits. The reason for this was that referee Cochrane’s trial order was mailed to the Respondent’s attorney, James Gurovitsch, who soon afterwards withdrew from the case. Gurovitsch mailed the trial order to the Respondent, who took a look at it before filing the letter with Gurovitsch’s other correspondence, not remembering the numbering requirement seven months later.

6. Instead of the harsh approach that he took, the trial judge might have allowed the respondent to renumber the exhibits on the spot by adding two digits to each or else he might have accepted the exhibits as is. Respondent had numbered his exhibits E-1, E-2, etc. (E for exhibit) which were clearly differentiated from the petitioner’s numbered exhibits.

7. A factor which contributed to the length of the trial and to general confusion was the unsystematic scheme proposed for renumbering. For example, exhibit E-8 became exhibit 208, exhibit E-13 became exhibit 202, exhibit E-15 became exhibit 391, and exhibit E-17 became exhibit 133.

8. The Petitioner’s attorney took advantage of the judge’s instruction that respondent renumber his exhibits beginning with 136 during the lunch break of the second day and show them to her for stipulated submission. She took much time in deciding which of the respondent’s exhibits to accept. In addition to twenty minutes available at lunch, her decision-making process consumed at least forty-five minutes of precious trial time.

9. While deciding which of the Respondent’s exhibits to accept, the Petitioner’s attorney placed the renumbered, rejected exhibits one at a time on the table in front of Respondent in great disarray so that the Respondent was unable to locate documents which he wished to introduce into evidence when it was his turn to testify.

11. Respondent did not have an exhibit binder because he again was unaware of that requirement. However, he did bring a manila folder for the court including copies of all exhibits and a table of contents (in addition to his own and the other attorney’s copies). This was not presented because of the problem with numbering exhibits.

12.. The trial judge blamed the Respondent for contributing to insufficiency of time during the trial by spending too much time on cross-examination. He wrote on page 12: “In addition to the foregoing efforts, the record will reflect that on numerous occasions I advised husband that his cross examination was taking way too long and yielding little of substance. I urged him to reserve more of his allotted time for his own testimony. He ignored my attempts to help.” The word “ignored” is too strong. The Respondent’s recollection, without having access to the transcript, is that he did promptly stop his cross examination of Petitioner after hearing the judge’s initial comments.

13. On the other hand, it is clear that Respondent needed to spend time on cross-examination to avert a situation of grave danger to his case: Without much warning or supporting exhibits, the Petitioner’s attorney sent three witnesses to the witness stand to testify that the Petitioner had spent a large amount of time working on the Respondent’s non-marital real-estate properties so as to justify a large maritalcomponent.

14. Lian McGaughey’s Balance Sheet presented to Judge Jeannice Reding on May 1, 2012, claimed that, for this reason, $120,000 of the $160,000 value of the four-plex at 17xx Glenwood Avenue was marital, $160,000 of the $285,000 value of the apartment building at 1708 Glenwood Avenue was marital, and $40,000 of $285,000 value of the Milford property was marital. This was all untrue. The Petitioner, while claiming to have done $160,000 worth of work, had hardly set foot in the apartment building. The Respondent’s witness, his maintenance manager, testified that he had only seen her once in that building in over ten years.

15. In the end, the trial judge acknowledged that the Petitioner’s claims were without merit. However, the Respondent at the time did not know how much counter evidence
was required to establish that fact. He believed that he could not afford to let the Petitioner’s false testimony go unchallenged.

16. The Respondent attempted to introduce evidence into the trial from the tenant in the Milford house, Linda Davis, regarding Petitioner’s role in conserving or improving that property. The judge would not allow a notarized letter from Davis to be introduced into evidence but he did allow a telephone interview to be conducted. The Respondent gave the law clerk,Azure Schermerhorn-Snyder, the cell-phone number of Ms. Davis. When the clerk dialed that number, she informed the court that the power was off. The Respondent called Ms. Davis the next morning to ask about this. Ms. Davis, whom the Respondent considers to be unusually honest and reliable, said that she had made sure that the power was on for the entire day. She had used an alternative land-line phone for her normal business and personal calls. Of course, Ms. Snyder might have innocently dialed the wrong number.

17. The two-day trial period was inadequate because referee Cochrane’s law clerk,Azure Schermerhorn-Snyder, engaged in inappropriate behavior in having a point of agreement removed from the Partial Settlement Agreement reached by the parties during the conference with Judge Jeannice Reding on May 1, 2012. The Petitioner had agreed to Point 9 of the agreement which read: “Wife will be responsible for any tax liabilities or debts related to the sale of her Beijing apartment in 2010.” Judge Reding,who had negotiated the agreement, presented a typed list of settlement points to the parties for signature and then left the room. In the judge’s absence, attorney Wing-Sze Wong Sun falsely told the law clerk,Azure Schermerhorn-Snyder, that the Respondent had known about and consented to the sale of Petitioner’s apartment. When the Respondent denied that claim, the law clerk told him to be quiet and sit down. She then went into a back room to confer with Judge Reding, who agreed that point 9 of the agreement should be stricken. Ms. Turner returned to the court room with the amended agreement which she asked both parties to initial. The Respondent complied believing this to be the package of agreements authorized by the judge. (See attached Exhibit #300.)The failure to decide the question of tax liability for sale of the Beijing apartment consumed a significant amount of trial time, especially during Celia McGaughey’s testimony and cross-examination.

f. The court employed two Chinese-language interpreters to handle testimony from Petitioner and related cross-examination. While the Petitioner was being cross-examined, a witness for the Respondent sitting in the visitor’s section noticed that one of the Chinese-language translator was passing written notes to the other. The judge also said: “I can see what you’re doing.” The note, read in court, seemed to be coaching the Petitioner on answers that she might give in response to the questions. Also, the Petitioner used the process of translating slowly from English to Chinese and then from Chinese back to English to great advantage in consuming trial time.

Rule 59.01 (b) states: “Misconduct of the jury or prevailing party”.

d. The following misconduct occurred, both before and during the Trial:

    Before the Trial: 
                                             
1. The Judge’s memorandum states (page 12, emphasis added): “On a number of occasions wife attempted to interject fault into the proceedings, charging husband with having an affair and fathering a child with another woman.  This improper conduct started with her discovery responses…  Instead of reigning in her client, wife’s counsel signed the discovery responses that improperly interjected fault...  As far as I could glean, counsel did nothing to restrain her client from proceeding ahead in this manner.”

2.        The Judge’s memorandum states (page 13-14, emphasis added): “Because I had not presided over this case from the beginning, I did not have the opportunity to watch the case unfold and thus gradually develop an opinion regarding which party had been the most obstreperous and which party had been pursuing the most unreasonable agenda.  However, I bring over eleven years of full-time Family Court experience to the table.  Based on that cumulative experience, I came away from the trial with a very firm conviction that a number of positions advanced by wife herein were about as weak and unjustified as I have encountered during my many years as a
Family Court judge.  In my opinion, her unjustified claims drove this litigation, blocked a reasonably prompt settlement, and unreasonably contributed to the cost and length of the proceeding.
 
3 The Judge’s memorandum concludes his section on Procedural Background with this statement (page 14, emphasis added): “… such delays pale in comparison to the main litigation drivers that I explained above: wife’s unreasonable and unjustified positions on big-ticket items that made settlement impossible and a trial inevitable.

     At the Trial:                                  

4. The Judge’s memorandum states (page 12-13): “Wife also contributed to the difficult trial. On a number of occasions wife attempted to interject fault into the proceedings, charging husband with having an affair and fathering a child with another woman … When wife attempted to replicate her discovery responses and interject fault at trial, I made it clear that I would not entertain such testimony.  Wife was not deterred and adduced Respondent’s alleged extra-marital affairs on more than one occasion.  I mention this not just because the topic was improper, but because husband was unrepresented, obviously upset with the topic, became distracted, and it veered him off task.  As far as I could glean, counsel did nothing to restrain her client from proceeding ahead in this manner.  Wife also repeatedly failed to confine her answers to the matters raised by the questions.  Time and time again she went far beyond the questions, vented her anger at husband, and otherwise provided non-responsive information that riled husband and shifted his focus off task.”

e. Rule 59.01(g) states that a new trial may be granted if the verdict, decision, or report is not justified by the evidence.

1. The evidence does not justify invasion of the Respondent’s non-marital assets.
2. The evidence does not justify the division of marital assets.
3. The evidence does not justify spousal maintenance, especially the failure to recognize wife’s Chinese income and possibility of gaining rent from her Chinese properties.

                                         

PART III BASIS FOR A STAY OF EXECUTION
 
a. Minnesota Rules of Civil Procedure, Rule 62.01 provides that: “In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment as a matter of law made pursuant to Rule 50.02, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 50.02.”

b. The argument for the stay is as follows:

1. The order for the Respondent to begin paying $10,000 per month for five consecutive months starting in October acknowledges that the Respondent does not have the resources or credit to pay this money unless he sells or mortgages his non-marital property. The Judge states on pages 23 and 24 of the Memorandum: “The record does not support a finding that husband has substantial, liquid non-marital assets. Any decision to award wife a percentage of his non-marital estate necessarily must contemplate that he will be unable to pay such funds when judgment is entered. In order to satisfy such an award, husband likely will need to sell a portion of his non-marital real estate or borrow money secured by that real estate.”

2. This order does not comport with current business realities. Apartment buildings in north Minneapolis cannot be sold on ten weeks’ notice without slashing the price to “fire sale” levels in an already depressed market. It is unjust to impose this requirement upon the Respondent.

3. With respect to placing a mortgage, it was difficult enough to find a lender for commercial property five years ago when the parties’ income-to-debt ratio was more favorable than it is today and the banks were more willing to lend. Again, ten weeks’ notice is inadequate to raise the cash to meet the court-ordered payments.

4 The prospect of selling property in a small town such as Milford, Pennsylvania, or finding mortgage money in that market would be even more difficult than in Minneapolis.

This motion is brought pursuant to Minnesota Rules of Civil Procedure 62.01.

The motions brought forward in this filing are based on the files, exhibits, and minutes of the Court and on the attached Affidavit of Respondent, William McGaughey.

signature page

_________________________________ Dated: __________________

William McGaughey
Respondent

17xx Glenwood Avenue
Minneapolis, MN 55405

612-374-XXXX

 

IX MOTIONS FILED IN ADVANCE OF A HEARING WITH Judge Swenson ON OCTOBER 9, 2012

38. A motion for stay of execution of the order to pay $50,000

Five days later, I received a notice in the mail that referee Mark A. Labine would be presiding at the hearing, not Judge Swenson. I had a favorable impression of him from a previous appearance in Housing Court. However, Bob Carney remembered reading in the Family Law Institute materials that only the trial-court judge could amend findings of fact. That meant that referee Labine was not authorized to change incorrect statements in the Findings of Fact section such as the amount of the marital debts.

Searching through my Family Law Institute photocopies, I found this passage on page 301 confirming Carney’s recollection: “Amendments of the findings of fact should only be made by the trial judge who has heard the evidence and observed the witnesses, but any judge before whom the motion may properly be made, in addition to the original trial judge, may order an amendment to a conclusion of law. In re Estate of Hallock, 221 Minn. 25, 20 N.W. 2d 881 (1945).” According to this statement, Judge James T. Swenson would be the only person able to amend findings of fact in this case.

In the meanwhile, I received an email from attorney Wing-Sze Wong Sun chastising me for setting a hearing date without having previously consulted her. She would be unavailable to attend a hearing on October 10th (and, I assume, also on October 9th, the actual hearing date). She wanted me to contact the court and obtain three possible hearings dates after October 15th, from which she would pick one. I wrote a letter the presiding judge of Family Court, Jeannice Reding relaying these various concerns but decided to call the court offices before sending it.

I wanted a hearing date before October 1st so that I would know if my motion for a Stay of Execution in the payments from sale or encumbrance of my non-marital property had been granted. if this obligation was reversed, it would be too late to repair the sale of property or the mortgage obligation.

Monday morning, I talked with Azure Schermerhorn-Snyder, now clerking for Judge Swenson. She said that Judge Swenson would be presiding over the hearing after all. However, it might be a “paper hearing” - the judge would simply review the documents submitted. If the case went beyond that, then referee Labine would take over. I asked about alternative dates for Ms. Wing Sun, which were communicated to her by email. I was also encouraged to submit a motion just for the stay of execution if I was concerned about the requirement to pay $10,000 on October 1st.

Alan Morrison and I went downtown to file the motion for stay of execution. First, he dropped a copy of the motion in the mailbox at the Loring station which would be sent to attorney Wing Sun. We then went to the Family Justice Center. The clerk at the filing desk said that, being a self-represented person, I needed first to have my documents reviewed by the self-help technicians. When I signed up to see them, I was told that this department was done for the day. Come back tomorrow at 8:00 a.m. I thought I would take my chances on a later time.

When I arrived in the late morning of August 28th at the Family Justice Center, I was able to consult promptly with a woman in the self-help center. She advised me that I should have seen her before mailing anything to the other attorney. She said I needed a sworn affidavit for the section presenting my arguments; and it had to be notarized. From my previous document, she took it upon herself to prepare a new motion and affidavit in the proper form. She asked me to take this up to the judge on the fifth floor. My recollection is that the judge saw my document but set no hearing date. Afterwards, I submitted it at the filing desk on the first floor. The motion was received by the court. The remaining step was to send another copy of the motion to attorney Wing Sun by mail. A tenant in the apartment building undertook the service for which I paid her $10.00.

The new motion prepared at the Self-Help Center is as follows:

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Lian Yang McGaughey
(Plaintiff/Petitioner) Case No. 27-FA-11-XXXX

v.

William Howard Taft McGaughey Affidavit of William McGaughey, Jr.
(Defendant/Respondent)

BASIS FOR A STAY OF EXECUTION
 

a. Minnesota Rules of Civil Procedure, Rule 62.01 provides that: “In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment as a matter of law made pursuant to Rule 50.02, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 50.02.”

b. The argument for the stay is as follows:

1. The order for the Respondent to begin paying $10,000 per month for five consecutive months starting in October acknowledges that the Respondent does not have the resources or credit to pay this money unless he sells or mortgages his non-marital property. The Judge states on pages 23 and 24 of the Memorandum: “The record does not support a finding that husband has substantial, liquid non-marital assets. Any decision to award wife a percentage of his non-marital estate necessarily must contemplate that he will be unable to pay such funds when judgment is entered. In order to satisfy such an award, husband likely will need to sell a portion of his non-marital real estate or borrow money secured by that real estate.”

2. This order does not comport with current business realities. Apartment buildings in north Minneapolis cannot be sold on ten weeks’ notice without slashing the price to “fire sale” levels in an already depressed market. It is unjust to impose this requirement upon the Respondent.

3. With respect to placing a mortgage, it was difficult enough to find a lender for commercial property five years ago when the parties’ income-to-debt ratio was more favorable than it is today and the banks were more willing to lend. Again, ten weeks’ notice may be inadequate to raise the cash to meet the court-ordered payments.

4 The prospect of selling property in a small town such as Milford, Pennsylvania, or finding mortgage money in that market would be even more difficult than in Minneapolis.

5. Immediate satisfaction of the judgment by October 1, 2012, would require actions to be taken at a substantial cost which could not be reversed if the order is amended.

This motion is brought pursuant to Minnesota Rules of Civil Procedure 62.01.

The motions brought forward in this filing are based on the files, exhibits, and minutes of the Court.

signature page

William McGaughey
Respondent

17xx Glenwood Avenue
Minneapolis, MN 55405

612-374-XXXX

notarized 28th day of August 2012

 

39. Ms. Wing Sun responds to this motion with new accusations

Attorney Wing Sun now suggested in an email that I had gone up to see Judge Swenson to ask for a stay of execution without informing her. She was also riled up about the website telling the story of my arrests for domestic abuse. I had agreed not to use my wife’s and step-daughter’s real names in the narrative but did not extend the same courtesy to this attorney. I would continue to identify her by name.

The next thing I knew, someone had deleted the Dreamweaver file from my hard drive used to create the websites (English and five other languages) with the narrative about my arrests. I first asked my wife if she had done it, bringing an angry denial. She had probably planted something in my computer. I dared not accuse the attorney of hacking into my computer though I considered her the more likely suspect. However, there was no way to identify the culprit without doing a forensic computer investigation at great expense.

I had requested that the court identify the exhibits from me that were entered into evidence during the trial. The renumbering scheme and confusion during the trial made it difficult to know what was accepted.Azure Schermerhorn-Snyder sent me a file on September 5th containing a list of exhibits. Those introduced early in the trial were included in the list but few that Judge Swenson reviewed after lunch on the second day. The submission from Ms. Turner noted that “the Court cannot produce it’s work product for parties.”

This prompted a complaint from my wife’s attorney that I was communicating with the court behind her back. She emailed me later that day: “Please hire a lawyer.  It is not the court's responsibility to keep track of things for you or prove/disprove any of your accusations via e-mail.” She wrote in a subsequent email that I needed to order a trial transcript to learn such things. “You cannot make the court engage in any unnecessary work because you want to save money that you are more than able to spend. “

On September 7, 2012, I received an email from Ms. Wing Sun with several attachments. Curiously, she was responding only to my second set of motions pertaining to the stay of execution rather than the motion for amended findings of fact and conclusions of law or a new trial. Her “Notice of motion and motion” read:

STATE OF MINNESOTA
COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT

FAMILY COURT DIVISION
Case Type: Dissolution Without Children


Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

Petitioner

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent

NOTICE OF MOTION AND MOTION
_____________________________________________________________________

TO: William McGaughey, RESPONDENT, 17xx Glenwood Avenue in Minneapolis, Minnesota, 55405


NOTICE

PLEASE TAKE NOTICE, that before the honorable James T. Swenson, without any oral argument, at the Family Justice Center, at 110 South Fourth Street, Minneapolis, MN 55401, the Petitioner, by and through the undersigned counsel, will move the Court for an order granting the following relief:

MOTION

1. Ordering the ex parte stay of execution to be dismissed;
2. Ordering Respondent to pay Petitioner $985.00 in attorney’s fees;
3. Alternatively, ordering the Petitioner’s attorney’s fees to be reserved for another motion hearing date already reserved by respondent at the Family Justice Center on October 9, 2012 at 9:00 a.m.;

SAID MOTION is based upon the Affidavit of Lian McGaughey, Memorandum of Law, together with all pleadings, exhibits, and records and files therein.

All responsible pleadings shall be served and mailed to or filed with the Court Administrator no later than five (5) days prior to the scheduled hearing. The Court may, in is discretion, disregard any responsive pleadings served or filed with the Court Administrator less than five (5) days prior to such hearing in ruling on the motion or matter in question.

All new issues must be served and mailed with the court administrator no later than ten days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the court administrator at least (10) days before the hearing.

THE COURT MAY GRANT ANY OR ALL OF THE ABOVE RELIEF EVEN IF YOU ARE NOT PRESENT.”

This document was signed by Ms. Wing Sun and dated September 6, 2012.

The second attachment was titled “Affidavit of Lian McGaughey in support of Petitioner’s motion”. It read:

STATE OF MINNESOTA
COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT

FAMILY COURT DIVISION
Case Type: Dissolution Without Children


_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

Petitioner

AFFIDAVIT OF Lian McGaughey
IN SUPPORT OF PETITIONER’S MOTION

v.

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent
Presiding Judge: Honorable James Swenson
_____________________________________________________________________

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

“1. I am Lian , the petitioner, in the above stated matter. I deny all the allegations that William makes in his affidavit. I am a survivor of lung cancer, stomach cancer, and breast cancer. However, I am much weaker than I used to be because of all of my operations and treatments. I went to China to save our money for William and I and incurred little medical debt and overall expenses for my medical treatment. William agrees that I spent little and saved money by going to China. I have little money and $780 monthly income. My daughter was a flight attendant and I could fly standby for almost no expense.

2. I am frustrated that respondent Chet McGaughey keeps filing all of these documents to increase my attorney’s fees. I am upset that William tried to get the court to sign off on his motion without me being there. William claims he was only at the court to get a date and was evasive about his answer. He always uses mistress’s half brother, Alan Morrison, to hand-deliver documents and knows how to send an e-mail or call if he needs something. I am attaching a true and accurate copy of my attorney’s fees and his state of going to the court to get a date for the hearing order at exhibit 1 and 2. William has showed up a the court before in January 2012 and was there trying to speak to the judge and refused to leave. The court had to then include my counsel with this conversation and was told not to communicate to the court without my side being there again.

3. William has always been very difficult to deal with and all I want is to live the rest of my life peacefully. Debate excites him and for my years, his reputation in the community is not good. Almost everyone discredits him and his arguments. I believe the court is a place to be taken seriously and not a place to submit his personal opinions to make money through a book deal through his own publishing company. I wish William would respect my wishes about keeping our life private. Our divorce and his domestic violence is not something he should write false blogs on. Not to mention, William presents the court, judges, the clerk, my attorney, and myself in a false light in a 62 page single spaced blog, which is too cumbersome to attach found as http://www.WilliamMcGaughey.com/domesticabuse.html. Because it is I am attaching a true and accurate copy of the Internet blog of his landlord tenants issues as exhibit 3, bragging about being on the news for chanting heartless at the Minneapolis City Council. William is one of the authors of landlordpolitics.com and I’ve seen William write about himself in the third person.

4. William also continues to run for political office because he tells me he is bored. He never wins - not even close, but continues to run because it is fun for him.

5. I prey that the court can help me stop this behavior of running up my legal fees by awarding me some attorney’s fees. This entire motion was unnecessary and his ‘basis’ for trying to obtain a stay of execution is that the court is does not know what it is doing, which I find offensive. Besides, we already have a court hearing for October 9, 2012. William did not inform me of this court date either, but it was found.

6. William has a lot of assets. He pretends to be poor, but as an accountant and he graduated from Princeton. I know William owns at least 20 acres of land and a cabin in Wisconsin. During his first divorce, in early 1980s, he owned forty acres was worth $17,000.00. Half of this land he gave to his mistress, Sheila Gorman, while we were getting divorced. He has three Disney’s Animation Celluloid of Dynamoe, signed by Disney himself. Some of Disney’s cels sold for $61,000 - $400,000, exhibit 4. William would not let me take and appraise these cels, but had told me about $40,000 each is what he expected based on his research and openly tells the court he has them and that they are non-marital. He owns a house and land near a beautiful river in Milford Pennsylvania. He also is a slumlord in North Minneapolis dealing with tenants paying mostly cash for three rental properties. I remember that he used to brag that even if he added up the values of his real estate and personal property taking away the debt he purposely incurred for the divorce, he has nearly $1 million - and I would not see a dime if I divorced him. Besides for rental income, he also has his social security and pension.

7. William has always said if a court would dare order him to pay anything from what he considered as his, he would do everything to make sure I do not get a dime. He is the one who purposely sabotaged our settlement agreement with bad faith. He came and offered me nothing at the last minute after a year of offering the same amount, but finding some other thing wrong with the agreement. If I had known he was like this, I would not have tried so hard to settle with him, incurring extra attorney’s fees trying.

8. Further, William will not give me what he tried to get the court to sign ex parte and only this notice of motion and motion with out any hearing date. It has been asked many times if this is the complete seat of documents he gave to the court to sign and I received no answer. I have received two envelopes of information now. One was just the notice of motion. The second is a notice and an affidavit that I am attaching it as exhibit 5 only because I am not sure what he has shown to the court.”

Dated: 9/ 6/ 2012 Lian Y. McGaughey
Lian McGaughey
Petitioner

This document was notarized on the same day.

The third document was titled “Memorandum of law in support of petitioner’s motion”. It read:

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution Without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

Petitioner

MEMORANDUM OF LAW
IN SUPPORT OF PETITIONER’S MOTION

v.

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent
Presiding Judge: Honorable James Swenson
_____________________________________________________________________

INTRODUCTION

Respondent moves this court with untimely personal opinions, derogatory messages to the court, and vague guesses as to the potential consequences that he may suffer in the future. Petitioner responds by moving the court for an immediate dismissal of the ex parte stay of execution and for an award of attorney’s fees based on the party’s financial need and to help prohibit respondent’s repeated nuisances.

FACTS

On August 28, 2012, the respondent sought the court to rule ex parte for a stay of execution in regards to a monetary award ordered to the petitioner as a result of a two-day evidentiary hearing held on May 7 and 8, 2012 [Judicial Notice and Aff. Lian , paragraph 2] The trial order permits the petitioner to collect her award from the dissolution of marriage beginning in October 2012. [Judicial Notice]

On and prior to August 28, 2012, the petitioner did not receive any notice regarding said motion [Aff. Lian paragraph 2] On August 30, 2012, a notice of motion and motion, without a date, time, or location was received through United States Parcel post [Id.] Then, over the Labor Day weekend, petitioner was served a ‘post-trial motion for stay of execution,’ without a date, time, or location and an ‘Affidavit of William McGaughey’ [Exh.5, Aff. Lian paragraph 8]

In Exhibit 5, the respondent does not mention whether any application of relief was made and added no new facts to support his allegations, but claims the court ‘does not comport with business realities.’ [Exh. 5] Further, petitioner sent respondent several communications over the Labor Day weekend seeking any other documents, which were brought before the court. [Exh. 2] Respondent never clarified or gave an answer to petitioner’s inquire [Id.] He only claimed to ask the court for a court hearing date [Id.]

With this motion to dismiss the emergency post-trial motion for stay of execution, the petitioner has incurred $985.00 of attorney’s fees [Exh.1]. She claims both a need-based attorney’s fees due to her low income and high expenses and conduct-based attorney’s fees. The respondent is able to afford to pay these fees with the assets he possesses and his income, particularly if he were to rent to paying tenants [Aff. Lian paragraph 1] He told petitioner that he had nearly a million worth in property and admitted to both voluntarily transferring and making little to no effort to collect the $89,000 given to Sheila Gorman, which does not include the twenty acres of property in Wisconsin for $1.00 [Aff. Lian paragraph 6; Exh. 6] The respondent then created long internet blogs about the petitioner’s private life, misstating several facts, has a history of being difficult to deal with, and ran for political office numerous times, including being the Attorney General, after he retired as a hobby [ Aff. Lian paragraphs 3-5, 7] Therefore, with the limited information received, the petitioner has no option but to respond.

ANALYSIS

The court should not permit ex parte relief when the respondent does not make any effort to notify the petitioner of the application for relief. Minnesota General Rules of Practice 3.01 states, ‘(i)n any application for ex parte relief, the court may require a demonstration or explanation of the efforts made to notify affected parties, or the reasons why such efforts were not made.’ In this case, the respondent clearly violated Rule 3.01 by mailing documents after he unsuccessfully tried to obtain ex parte relief. Because of respondent’s delayed actions and providing no explanation of the delay, the court should continue not to order respondent’s ex parte stay of execution.

Additionally, the court should not provide ex parte relief when it is in violation of Minnesota General Rules of Practice 3.02. Rule 3.02 states:

(b)efore an ex parte order is issued, an affidavit shall be submitted with the application showing: (1) No prior applications for the relief requested or for a similar order have been made; or (2) The court and judge to whom the prior application was made; the result of the prior application; and what new facts are presented with the current application.

Here, the respondent failed to state or make reference to whether any application for relief has been made. Then, the respondent failed to present any new facts with the current application and continued to reiterate his previous allegations.

Furthermore, respondent’s argument for ex parte relief contained in his affidavit fails in its entirety. Respondent states in five bullet points that the court does not understand the realities of anything in regards to respondent’s properties. It does not take into consideration ‘business realities’ and ten weeks’ notice is not enough time to secure a mortgage or sell real property, along with several other reasons. However, respondent immediately contradicts his own argument by citing to the court’s passage that clearly shows the court has taken into consideration respondent’s hardships - ‘husband would have to sell a portion of his non-marital real estate or borrow money secured by that real estate.’ [FOOTNOTE 1: Affidavit of William McGaughey, paragraph 1, last sentence.] Additionally, if the court were to dismiss this motion, respondent still has time to include it in the other motion hearing that is to take place on October 9, 2012.

However, if respondent had presented a shred of new evidence, or presented a proper motion before the court, then his argument of being unjustly harmed in the future would still fail because respondent has severely misrepresented and devalued his property and consequently would not be unjustly harmed. Respondent owns at least twenty acres of land in Wisconsin, a cabin in Wisconsin, three Disney prints, signed by Walt Disney, with an admitted value of at least $40,000 each, a house and land in Milford, Pennsylvania, an income producing nine-unit apartment buildings without any liens. Respondent transferred twenty acres of land to Sheila Gorman for $1.00, then permitted both Sheila Gorman and her daughter to remain in the couple’s income producing properties without paying rent and made little effort to collect rent. Petitioner claims respondent bragged about owning at least $1,000,000 in property after paying his debts and that she would never see a dime of what was considered non-marital property.

Additionally, the petitioner requests attorney’s fees as authorized by the Minnesota Statute, Section 518.14, which has a need’s based requirement and permits the court to award fees based on conduct:

[T]he court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:

(1) that the fees are necessary for the good faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Nothing in this section or section 518A.735 precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.

In this case, petitioner needs these fees to assert her rights, respondent has a means to pay them, and petitioner does not have a means to pay them with her approximate $780 in income. The court may always award any other fees due to the misconduct of the respondent. Respondent has knowingly misrepresented that he tried to obtain an ex parte order and was only at the court to obtain a court hearing date. He then files an affidavit that is has no legal or substantiated factual basis and merely slings insults at the court.

Lastly, the petitioner objects to all of Respondent’s page two of his affidavit. Paragraph two, which tells the court that it does not understand the real word of business, is argumentative. The mere idea of not being able to sell a property in ten weeks is speculative. Paragraph three is speculative because respondent was able to secure a loan on a commercial property five years ago, but now that same loan would not be secured. Paragraph four is again speculative and Mr. McGaughey is not a real estate expert or loan expert, thus using his personal opinions regarding small town real estate and lending is not appropriate. Paragraph five again is speculative as there is no evidence that the cost would be substantial, besides for his personal opinion.

Conclusion

The court should dismiss respondent’s ex parte motion for a stay of execution because it is speculative, filled with unreasonable insults, and does not have any basis in law or fact and award the petitioner her attorney’s fees.”

Dated: 9/ 6/ 2012 Wing-Sze W. Sun

Wing-Sze W. Sun
Attorney at Law
8XXX Wayzata Blvd. Suite 320
Golden Valley, MN 55426
(612) 885-XXXX
Attorney ID #XXXXXX

The document had referred to several exhibits but Ms. Wing Sun had failed to include them with her email submission. I requested the exhibits in an email sent on September 10th. There were five exhibits: (1) a spreadsheet showing that her attorney’s bills for work done between August 28th and September 6th totaled $985 for 9.1 hours all of which was classified as “unnecessary billed hours”. In other words, I should have to pay for this expense. (2) An email dated August 31st showing that I thought my motions were properly prepared and submitted and also that I had refused to remove her name from my web narrative of the arrests for domestic abuse. (3) A copy of a web narrative about my leading a landlord protest at Minneapolis city hall. (4) A copy of a page from your3dsource.com showing prices which some Wunderlix celluloid prints have received at auction. (5) A copy of my separate motion for stay of execution dated August 28th. (6) A copy of an email sent by Ms. Wing Sun to me accusing me of criminal activity because I did not file a police report when Sheila Gorman forged my signature on some checks. None of these exhibits had much to do with my motion for stay of execution.

The exhibits themselves are too voluminous to be usefully displayed here. The notarized document submitted to the court on September 7, 2012, is as follows:

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution Without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

Petitioner

EXHIBIT LIST

v.

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent
Presiding Judge: Honorable James Swenson
_____________________________________________________________________

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

I, Wing-Sze W. Sun, have received the following documents and attached true and correct copies of each:

Exhibit 1 Attorney’s Fees William
Exhibit 2 Emails from Mr. McGaughey stating he went to receive a court hearing date
Exhibit 3 Landlord politics
Exhibit 4 Celluloid Print Values
Exhibit 5 Mr. McGaughey’s Exhibit List
Exhibit 6 Admission for transferring $89,000 to Sheila Gorman

Dated: 9/ 7/ 2012 Wing-Sze W. Sun

 

 

 

40. My response to Wing Sun’s motions and scurrilous accusations

The ex-parte communication, I suppose, referred to the fact that I went up to the 5th floor to get a hearing date at the suggestion of the self-help desk at the Family Justice Center. The reason thought I needed to file the motion relating to stay of execution was that the first payment of $10,000 was due October 1, 2012, but the hearing would not be held until October 9th.

In response, I sent an affidavit responding to my wife’s previous affidavit instead of a new motion. Dated September 11, 2012, this is what it said:

________________________________________________________________

STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )


DISTRICT COURT
FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION

Case Type: Dissolution without children

In Re the Marriage of:

Lian Yang McGaughey
Petitioner

RESPONDENT’S AFFIDAVIT IN RESPONSE TO PETITIONER’S NOTICE OF MOTION AND MOTION
AND PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION (RAISING NEW ISSUES)

William Howard Taft McGaughey

Presiding Judge: Stephen F. Swenson substituting for referee Susan Cochrane
Respondent
File No. 27-FA-11-XXXX

________________________________________________________________

 

STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )

I am William McGaughey, the respondent in the above matter. I am responding to statements and issues raised in the petitioner’s motion for the court to my requested stay of execution of payments to begin on October 1, 2012 and petitioner’s request for me to pay $985.00 of her attorney fees.

I deny that my motion presented to the court on August 28, 2012, represents ex parte communication. It was a motion prepared and approved by a representative of the Self-Help Center at the Family Justice Center. At this person’s instruction, I did take my motion to show the judge on the fifth floor but I did not, to the best of my recollection, receive a hearing date at that time. After the document was approved, I submitted it to the court at the filing desk and mailed a copy to the other attorney through a third party.

Not knowing that motions prepared by self-represented parties had to be reviewed and approved first by the self-help center and unable to schedule an appointment on that day, I had my representative mail the motion to the other attorney on the previous day. The self-help center prepared the second document. The principal difference between the two documents was that in the latter my statements were made in the form of an affidavit which was notarized. It may be that the two similar submissions confused the other attorney.

My motion for stay of execution of part of Judge Swenson’s order dated July 20, 2012, was simple and straightforward. The reason for making the motion was that the scheduled hearing date on October 9, 2012, came after October 1, 2012, when I was obligated to pay a large sum of money that I did not have. This was a legitimate request, not involving extraordinary efforts or issues that would warrant my paying the other party’s attorney bills. However, such attempts to shift those bills to me have been a main theme of my wife’s and my divorce case for most of the year.

The petitioner’s affidavit contains a number of statements many of which seem intended to sully my reputation with the court. Some of the statements are true, but most are either half truths or lies. It would serve little purpose here to respond to each allegation. However, I feel obliged to address a few of them.

In the truth category, the petitioner has indeed received treatment for cancer in China although the current state of her health is unknown. It is also true that she now has a monthly income of $780 which, I believe, roughly corresponds to payments for Social Security Disability. It is true that I wrote and published on the Internet a complete, detailed account of my arrests for domestic abuse. About a week ago someone hacked my computer and erased the related Dreamweaver files on my hard drive although they are still on the web. It is true that I have run for elective office several times but I have no future plans of this sort. I also worked in the accounting field and graduated from Princeton.

It is untrue, however, that I file motions for the purpose of increasing my wife’s attorney fees or have tried to get the court to sign off on my motions in the absence of her attorney. Despite my allegedly poor reputation in the community, I have been co-leader of a landlord group in Minneapolis and have coauthored a book with the late U.S. Senator Eugene McCarthy. In 2008, I received more than 22,000 votes as a third-party Congressional candidate. I do not recall having told anyone that I ran for political office because I was bored. I did inform the petitioner of the October 9th court date through the copy of motions sent to her attorney. Sheila Gorman is not my “mistress” and I am not a “slumlord”. I have not boasted that I have nearly $1 million in property and that my wife would “not see a dime” if we were divorced. In fact, I have already made several payments in accordance with Judge Swenson’s order. I have not tried “to get the court to sign ex parte.” I am not withholding documents related to the motion from the other party.

The Petitioner’s exhibits were not initially sent to me. Having received them today (September 11th), I see a repetition of exhibits submitted during the trial as well as other materials having little relevance to my motion.”

This signed affidavit was filed with the court clerk on September 11, 2012.

*** ***** ***

On September 19th, I received a copy of an email to the court clerk from Ms. Wing Sun supposedly enclosing a one-page affidavit responding to my email. However, there was no affidavit attached to this email. On the following day, September 20th, it arrived. The notarized affidavit read:

STATE OF MINNESOTA
COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT

FAMILY COURT DIVISION
Case Type: Dissolution Without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

AFFIDAVIT OF
IN SUPPORT OF PETITIONER’S MOTION

Lian McGaughey

Petitioner

v.

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent

Presiding Judge: Honorable James Swenson
_____________________________________________________________________

STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )

“1. I am Lian McGaughey, the petitioner, in the above stated matter. I want to make some corrections to my affidavit. I have many doctor’s visits at the time the documents to the court were due to the court and my English is not very good.

2. I have had intestinal cancer and breast cancer. I have had things removed from my lung but it was not cancerous. I do not have $780 monthly income. I was trying to say that William only gave me about $750 total as of Sept. 14, 2012. He is supposed to pay spousal support but says he has no money.

3. I deny everything William writes. I hope William find some other hobby and leaves me alone.”

Dated: 9-19-2012 Lian Y. McGaughey
Lian McGaughey
Petitioner

*** ***** ***

My wife’s affidavit, whose signature notarized in Minnesota, was dated September 19, 2012. We had been scheduled to meet for lunch that day but my wife canceled the appointment. To me, this document indicated that she had instead met with her attorney.

What stood out in this email was the suggestion that I had failed to make the payments for spousal maintenance as ordered by the court giving as an excuse that I had no money. Obviously, I had to respond. This I did in another affidavit that was delivered to the court two days later. It read:

_____________________________________________________________________

STATE OF MINNESOTA
COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT

FAMILY COURT DIVISION
Case Type: Dissolution Without Children
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX


In Re the Marriage of:

Lian Yang McGaughey
Petitioner

RESPONDENT’S AFFIDAVIT IN RESPONSE TO PETITIONER’S NOTICE OF MOTION AND MOTION
and AND PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION (RAISING NEW ISSUES)

William Howard Taft McGaughey
Respondent

Presiding Judge: Stephen F. Swenson substituting for referee Susan Cochrane

I am William McGaughey, the respondent in the above matter. I am obliged to respond to new untruthful statements and suggestions in Petitioner’s latest affidavit, dated September 19, 2012.

The Petitioner states: “He (William McGaughey) is supposed to pay spousal support but says he has no money.” This statement clearly implies that I have violated the court order to pay Petitioner $250 in spousal maintenance twice a month starting August 1, 2012. I have fully complied with the order. I paid $250 by check (Check #3844) on August 1st, and $250 on August 14th (Check #3859). When Petitioner said she had not received the second check, I issued a replacement check (Check #3802) on August 22nd. For September, I paid $250 by check (Check #3805) on August 30th. The second check in the amount of $250, issued on September 14th, was paid directly to Petitioner by US Bank, as she had requested. In summary, all obligated payments to date have been made. Also, I did not tell the Petitioner that I had no money for these payments.

The Petitioner states: “I deny everything William writes.” This type of blanket denial is not really responsive to points that I made. For instance, part of what I wrote in the earlier affidavit (point 6) was what I admitted to be true in Petitioner’s earlier affidavit. Is Petitioner now denying the truth of her own statements? That would appear to be the case, however, when she wrote in her latest affidavit: “I also do not have $780 monthly income.” Her previous affidavit had declared in the first paragraph: “I have little money and $780 monthly income.” Clearly, her latest sworn statement is disingenuous. She has belatedly realized that revealing this income contradicts the claim of being destitute upon which the spousal-maintenance award was based. The specific amount of $780 suggests that Petitioner has some as yet undisclosed source of income equalling that amount rather than that it was confused with my monthly payments. She offers as excuses for the earlier misstatement the fact that she has had cancer and the claim that she does not speak English very well. Such arguments have worked well for her in the past.”

Dated: September 21, 2012

______signed______________
William McGaughey
Respondent

 

41. Judge Swenson’s decision and order regarding the Stay of Execution

On September 28th, I received Judge Swenson’s decision in the mail regarding my motion to stay the execution of the five monthly payments of $10,000 apiece. The order was dated September 24, 2012. It read:

“The above-entitled matter came on before me by written submissions on September 24, 2012, on Respondent’s motion to stay execution regarding a provision of the parties’ Dissolution Decree. Respondent was self-represented and Wing-Sze K.Ming, Esq. appeared on behalf of Petitioner. Based on the written submission and the specific portions of the record mentioned herein, I issue my order as follows.

Respondent seeks to stay execution of Conclusion IV.7 of the Decree that requires him to pay $50,000 to Petitioner as part of her property award in $10,000 monthly installments commencing October, 2012.

He has a motion for Rule 59 and Rule 60 relief set to be heard on October 9, 2012.

3. Rule 62.01 affords me discretion to stay execution and impose security as a condition of stay.

Petitioner seeks need-based and conduct-based attorney’s fees for having to respond to the motion. There is merit to her alternative request that I reserve this for later determination.

IT IS HEREBY ORDERED AS FOLLOWS:

Respondent shall deliver to me for my approval and signature a security bond in the amount of $51,000.

Effective upon my approval of the security bond and filing thereof by Respondent, paragraph IV.7 of the Judgment and Decree is stayed.

Petitioner’s motion for attorney’s fees is reserved.

The order was signed by Judge James T. Swenson on September 24, 2012.

 

I knew little or nothing about security bonds. Looking through the Yellow Pages, I found and called a bond broker in Minneapolis at the Patrick Thomas Agency in Minneapolis, Rick Davies. What I was looking for, said Mr. Davies, is called a “supersedeas bond.” The Patrick Thomas Agency was a family-owned business that dealt with several bond companies. I was worried about cost. If the bond company charged 10% of the bond (as bail-bond companies did), I would have to come up with $5,100 immediately.

The key factor was the ratio of my net worth to the requested bond amount. I estimated that my net worth was $600,000. This would give me a ratio of roughly 12 to 1. It might not be enough to obtain a bond without additional security. I mentioned that I had sought a mortgage with US Bank. Rick Davies suggested that I apply for a line of credit using the apartment building as security. The bond company would get a letter of credit. If I defaulted on the bond, it could apply this to my line of credit to be reimbursed for the bank-ordered payment.

Davies also said that he knew Eric Magnusson, former chief justice of the Minnesota Supreme Court who was now in private practice. For a fee, he might review my papers to be filed with the Minnesota Court of Appeals and give an honest estimate of my chances of success as well as a recommendation on how the motion might be improved.

I called back to lower my estimate of net worth to $500,000. Surely, the bond companies would require additional security. Davies said he would check with several bond companies Monday morning and get back to me.

I had discussed the possibility of placing a mortgage on my nine-unit apartment building at 1708 Glenwood Avenue in Minneapolis with a commercial-loan officer at US Bank’s Stillwater branch, Brian Schak, to cover the $50,000 judgment, plus additional money to pay down some of my unsecured lines of credit and, perhaps, lend Bob Carney $10,000 to avert foreclosure on his house in south Minneapolis. Now it was time to apply for the loan. Schak told me what documents were needed: a copy of my 2011 income-tax return, a copy of the judge’s order, a copy of the appraisal on 1708 Glenwood, etc. He would mail me the forms which I needed to complete. I did this when the forms arrived and delivered them in person at the Stillwater branch of US Bank (just around the corner from the apparel store which Sheila’s daughter, Lena Morrison, who was also my tenant, used to have in a shopping mall.)

Monday morning, Rick Davies called to say that no bond company would issue a bond unless it was fully covered by a bank line of credit. Everything therefore depended on US Bank’s decision. Davies estimated that the cost of such a bond, if successful, would be 5 percent - 2 percent for the bond company and 3 percent for the bank. He also said that Eric Magnusson was no longer in the business of reviewing papers for appeal. However, he would recommend some good lawyers if I chose to go that route.

On September 29, 2012, I emailed Ms. Wing Sun:

Yesterday, I received Judge Swenson’s decision on my motion to stay execution of payments totaling $50,000 over five months. He will consider staying its execution if I provide a suitable security bond.

I have been trying for some time to arrange for a mortgage to be placed on the apartment to raise the money but, to date, the bank has not made a decision.  Money is tight and my financial position is weak.

I have also contacted a broker to arrange for security bonds.  He was not sure that I could get one but thought it might be possible at a high cost - probably at around 10 percent of the $51,000 amount.  I have no alternative now but to pursue this option.

If I do get a security bond and the judge approves it, this would stay the execution of payments.  Unless the judge substantially changes his decision on October 9th, I expect to be filing an appeal with the Minnesota Court of Appeals, challenging both this invasion of my non-marital property and other of the judge’s decisions.  The security bond would mean that no payments will be sent until the case is resolved. That could take the better part of a year.

I am willing to spend a smaller amount of money now on the chance that the court will not require me to pay the $50,000.  If I lose, this will be money lost.   If I win, it will take care of my problem in raising the cash from mortgaging or selling my apartment building.

The mortgage bond will likely be decided next week.  I think it is possible that you could make certain decisions to change the judge’s order.  If you agree not to seek payment of the $50,000 until after the case is decided and for a reasonable time afterwards to sell the apartment, I will pay you the $5,100 or whatever the cost of the security bond is regardless of the outcome.  In other words, if the court awards you nothing, you would still get this money.  If the court sustains the judge’s original award, you would get this money plus $50,000.  You will have to decide how to respond to this offer in the next several days or I will go ahead in obtaining the security bond.

Also, I would consider other offers to settle but the $50,000 award would have to be significantly reduced and I would need time to raise the money.”

Ms. Wing Sun replied the same day:

“I advise you drop both of these motions because I predict that I will receive a favorable decision and secure a larger outcome if I have to retry the case.  You should not have dissipated $89,000 to Sheila Gorman and more to others.  In fact you owe Lian stocks, the money in the US bank accounts, and $50,000.  Thank you.”

 

42. More motions from Ms. Wing Sun, responses, and snarlings

I received two new documents by email from Ms. Wing Sun on September 29th. The first was a “Notice of Motion and Motion” similar to the one dated September 9th but with a few additions. It read:

STATE OF MINNESOTA
COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT COURT
FAMILY COURT DIVISION
CASE TYPE: Dissolution/Post-Trial

______________________________________________________________________

Court File No.: 27-FA-11-XXXX

Lian McGaughey, Also known as Lian Ying McGaughey, and Formerly known as Ying Min
Petitioner,
v.

William Howard Taft McGaughey, Junior, Also known as Chet McGaughey, and William H. McGaughey
Respondent.

______________________________________________________________________

TO: William McGaughey, RESPONDENT, 17xx Glenwood Avenue in Minneapolis, Minnesota, 55405

NOTICE

PLEASE TAKE NOTICE, that before the honorable James T. Swenson, with or without any oral argument, at the Family Justice Center, at 110 South Fourth Street, Minneapolis, MN 55401,on October 9, 2012 at 9:00 a.m., the Petitioner, by and through the undersigned counsel, will move the Court for an order granting the following relief:

MOTION

1. Denying Respondent’s motion for relief in its entirety (responsive);
2. Ordering Respondent to pay Petitioner $999.00 in attorney’s fees (new);
3. In the alternative, ordering Respondent to pay a percentage of the above stated attorney’s fees;
4. Ordering Respondent to sign a consent form or waiver for the Petitioner to access the US Bank Accounts, even if Respondent claims he closed them due to alleged future and potential fraud prevention (responsive);
5. For such other relief that the court finds just, fair, and equitable.

SAID MOTION is based upon the Affidavit of Lian McGaughey, Memorandum of Law, together with all pleadings, exhibits, and records and files therein.

All responsible pleadings shall be served and mailed to or filed with the Court Administrator no later than five (5) days prior to the scheduled hearing. The Court may, in is discretion, disregard any responsive pleadings served or filed with the Court Administrator less than five (5) days prior to such hearing in ruling on the motion or matter in question.

All new issues must be served and mailed with the court administrator no later than ten days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the court administrator at least (10) days before the hearing.

THE COURT MAY GRANT ANY OR ALL OF THE ABOVE RELIEF EVEN IF YOU ARE NOT PRESENT.”

Date: September 29, 2012. By: Wing-Sze Wong Sun

The other document read:

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution/ Post-Trial
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

Petitioner

PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION
(RAISING NEW ISSUES)

v.

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent
Presiding Judge: Honorable James Swenson


_____________________________________________________________________

ARGUMENT

Lian McGaughey is an immigrant with below average language skills from another country which requires special legal attention and care. She needs translation and interpretation services and when time is limited, often times, the frustration of having a very important part of her life be determined without the comfort of her first language proves to be difficult and miscommunications over the simplest issues can and do occur. Ms. McGaughey requires counsel who has the knowledge of cultural communications, which involve primarily using indirect communications.

The court decided on July 20, 2012, that the Petitioner has met two out of the three subdivisions of the Attorney’s Fees statute in Minnesota Statute paragraph 51814. First, Petitioner needs to have counsel to assert her legal rights. Second, Petitioner does not have the means to pay for them. However, the court may be hesitant to find that Respondent has the means to pay for Petitioner’s legal fees. They are more affordable than the first request. Even if the Respondent cannot pay for all of the fees, he may have the mean to partially for them. Respondent owns five real estate properties, four of which, generate income, hangs art valued in the six figures, pays for full time staff, has stock ownership, and guaranteed monthly income through his pension and social security. He can afford it.

Further, the court will most likely weigh whether it should have a pro se litigant pay for the attorney’s fees of his opponent. A court has a duty to ensure fairness and give deference to pro se litigants so long as he is not prejudicing the other part. Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987). However, Minn. Statute section 518.14 also governs the conduct of the parties, which permits the court to award attorney’s fees due to unnecessary delay. It is a conduct driven provision in the statute. In this case, the Respondent has claimed that Petitioner is using her cancer for a strategic advantage in her marital dissolution case when he was merely correcting the type of cancers that was misstated. The Respondent states, the “[Petitioner] offers as excuses for the earlier misstatement the fact that she has had cancer and the claim that she does not speak English very well. Such arguments have worked well for her in the past.”

This statement was hurtful and egregious. It has no place in the court system or anywhere. If there was a chance that the parties may have worked out some part of this case, it has been lost due to a callous statement made the Respondent. Therefore, the Petitioner seeks an award of attorney’s fees and will submit her responsive memorandum of law before the deadline.

Date: September 29, 2012. By: Wing-Sze Wong Sun

On the following day, I filed the following affidavit with the court:

_____________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without children

In Re the Marriage of:

Lian Yang McGaughey
Petitioner

RESPONDENT’S AFFIDAVIT IN RESPONSE TO PETITIONER’S NOTICE OF MOTION AND MOTION
and AND PETITIONER’S MEMORANDUM OF LAW IN SUPPORT OF HER MOTION (RAISING NEW ISSUES)

William Howard Taft McGaughey
Respondent

 

Presiding Judge: Stephen F. Swenson substituting for referee Susan Cochrane
File No. 27-FA-11-XXXX

________________________________________________________________

 

STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )

 

“1. I am William McGaughey, the respondent in the above matter. I am obliged to respond to the Petitioner’s latest motions and legal arguments.

2. The Petitioner’s five-point motion is untimely and should be disregarded by the court. It comes in a document signed on September 29, 2012. A PDF file was emailed to the court a minute before midnight on the same day (11:59 p.m. on September 29, 2012). I was copied. The same email contained the Petitioner’s legal memorandum. I became aware of this email late on the following day. Both parties have thirty days after the court decision or another party’s responsive motions to file post-trial motions. The judge’s decision was signed on July 20, 2012 and the Notice for Entry of Judgement was filed on July 30, 2012. The Respondent’s post-trial motions for amended findings of fact and conclusions of law or, alternatively, a new trial, and motion for stay of execution was filed with the court on August 20, 2012. Therefore, the thirty-day period for Petitioner’s response ran out on September 20, 2012. She chose not to respond to Respondent’s post-trial motions filed on August 20, 2012, but did respond to a later motion pertaining to the requested stay of execution. Therefore, her time for responding to issues raised in Respondent’s post-trial motions has expired.

3. The “Notice to other party” served on August 20, 2012, contained this statement: “New Issues: If you want to raise new issues in your Responsive papers, instead of just responding to issues raised by the other party, your papers must be hand-delivered to the other party at least ten (10) days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the Court Administrator in person at least ten (10) days before the hearing , or mailed at least thirteen (13) days before the hearing.” The Petitioner’s motions and arguments raise new issues. The hearing is scheduled for October 9, 2012. Ten days before the hearing would beSunday, September 30, 2012. Thirteen days before the hearing would be September 27, 2012. No personal service was made on me on or before September 30, 2012. If the document was prepared on September 29, 2012, it is obvious that service by mail also was not made before that date. Communication by email does not constitute personal service. The same considerations apply to filing with the court. Therefore, the motions raising new issues are untimely and should not be considered by the court.

4. Alternatively if the court chooses to consider motions and arguments contained in the latest documents, I am obliged to respond to the arguments. Since the Petitioner’s documents contain alleged factual information, I am obliged also to introduce pertinent facts to set the record straight. I will start with issues raised in Petitioner’s Notice of Motion and Motion.

5. The Petitioner’s first and fourth motions are untimely since they pertain to the Respondent’s post-trial motions filed with the court on August 20, 2012. The motion to deny my motions in their entirety is unsupported by arguments. The request to access my US Bank checking account is inappropriate since the trial is over. New information may not be introduced.

6. With respect to the second and third motions ordering Respondent to pay all or part of $999.00 in Petitioner’s new attorney fees, the argument is made that Minnesota Statute 518.14. The statute allows such fees to be collected from either party provided that “(1) that the fees are necessary for the good faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding; (2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.” There is no evidence that I have the means to pay these fees when my wife does not, that the fees are necessary for my wife’s assertion of her rights, or that they do not contribute unnecessarily to the length and expense of the proceeding, especially when introduced in response to my post-trial motions related to the trial decision. The request for payment of my wife’s attorney fees is an unnecessary distraction from those issues.

7. Minnesota Statute 518.14 does allow the court to order payment of the other party’s attorney fees to a party “who unreasonably contributes to the length or expense of the proceeding”. This is, in fact, what the Petitioner’s attorney claims. In an earlier filing I made the statement “(Petitioner) offers as excuses for the earlier misstatement the fact that she has had cancer and the claim that she does not speak English very well. Such arguments have worked well for her in the past.” The attorney claims that inclusion of this statement in my argument caused “unnecessary delay” in the proceedings. I fail to see why.

8. I am fully sympathetic to my wife’s cancer. Even after I was arrested for domestic abuse in February 2011 on trumped-up charges, I pled guilty-continuance with a special provision that I be allowed to travel to China to accompany my wife during her planned cancer operation as we had discussed. The attorney said my wife did not want me there so I did not go. I am less sympathetic to the frequently made point that my wife does not speak good English. Her English is much better than what the court has been allowed to see.

9. The reason that I made the above-quoted statement was to point out that references to my wife’s health or her linguistic ability had nothing to do with any of my previous motions or arguments or issues. I have tried to keep my arguments focused on the trial decision and, secondarily, on points raised in my wife’s documents. Throughout the divorce proceedings, however, my wife’s attorney has consistently steered the discussion in an emotional direction - on one hand, vilifying me and, on the other, portraying my wife as a victim. I fault this attorney for using such a strategy to prevent my wife and me from settling and, in the process, driving up the length and cost of the proceeding. The word “churning” best describes what is happening here. It is churning of irrelevant issues and facts by the attorney intended to increase her fees.

10. In an earlier set of motions, dated September 6, 2012, my wife’s attorney argued that I should be made to pay part of her fees because I had attempted to obtain an “ex parte stay of execution” regarding the requirement to pay $50,000 in cash. I have never understood why this was “ex parte”. As I previously explained, I only attempted to contact the court directly when people at the self-help center of the Family Justice Center asked me to go upstairs to obtain a hearing date. The court clerk met me and obtained such a date from the judge. All papers were then properly filed with copies sent to the other attorney.

11. I am fully entitled by law to request a stay of execution. It is a normal part of post-trial proceedings. Normally, both parties pay their own attorney fees. The only aspect which may require closer examination would be the fact that my motion for stay of execution filed with the court on August 28, 2012, duplicates a portion of the documents submitted to the court on August 20, 2012, regarding my post-trial motions. Presumably this duplication caused my wife’s attorney to do the same work twice and increase the billings to her client. But, of course, she failed to respond to my first set of documents so there was no duplication of effort.

12. Why did I file the motion for stay of execution twice? I included it initially with my other motions to create a package that would be convenient for the court to examine. My expectation was that the judge would rule on my motions within thirty days as court rules prescribe. However, the same rules allow the court to extend the time of the hearing; and that is what happened. Judge Swenson set a date of October 9, 2012 for the hearing. That posed a problem for me. I was required to make my first payment of $10,000 to the Petitioner on October 1, 2012, and the judge would not make a decision on the motion to stay the execution until October 9th. I consulted both with the court clerk and the people at the self-help center about this problem and on the basis of those conversations decided that my best option was to introduce a separate motion for staying the execution. Hopefully, that issue would be decided before October 1st; and it was.

13. I did not unreasonably prolong these proceedings. If anything, the proceedings have been prolonged by the fact that I have had to respond to a broad range of personal attacks that include much false information. I believe that if this misinformation is not addressed, it will become part of the court record and be considered undisputed fact. Therefore, I have been obliged to offer lengthy rebuttals to points raised by the other side which, in many cases, had little to do with the issues raised at trial. For example, there were exhibits related to my landlord activism, the commercial value of Wunderlix prints, and an email related to the story of my arrests for domestic abuse posted on the internet. I have already identified several “facts” in my wife’s affidavits which I believe to be false.

14. My my wife’s latest set of motions, though untimely, present additional allegations of fact which are false or misleading. Turning to the “Argument” section of my wife’s latest submission, the first paragraph deals with her skill in using the English language. I would say that, compared with many other immigrants of her age, she has above-average proficiency in using English. Lian learned English from a subordinate when she was a hotel manager. We conversed mainly in English during my first visit to her in Beijing in January 2000. Since then, Lian has lived in the United States for the better part of twelve years. She has taken English as a second language classes. She worked for three years as a sales employee at Target dealing mainly with English-speaking customers, earning an award for excellent service. While I do not deny that having an interpreter to deal with complex legal or medical issues may be prudent, it is not justified to assume that my wife has inadequate language skills for living in the United States. It is also odd that my wife’s attorney, Ms. Wing Sun, claims not the speak the same dialect of Chinese as my wife but that her services are required for linguistic as well as commercial reasons. What language do they use when discussing legal strategy? I would guess it is English. This attorney’s use of interpreters - two of them - may be partly theatrical, intended to convince the judge who has never heard my wife speak English that she has little or no such skills. We saw at trial how those interpreters were used. They passed notes to each other evidently giving answers that my wife might use in response to my questioning and also contributing significantly to the time needed for that part of the trial.

15. The second paragraph proposes that two out of three requirement to shift the burden of attorney’s fees to the other party have been met. “First, Petitioner needs to have counsel to assert her legal rights.” I would point out that after spending nearly $6,000 on counsel I could not afford further counsel to keep up with Ms. Wing Sun’s relentless game playing designed to drive up fees. I made numerous serious attempts to settle the divorce and was always rebuffed. My wife might have agreed to settle had not her attorney repeatedly discouraged this. Cost was evidently no object.

16. My wife once told me that the game plan was to convince the court to shift those attorney’s fees to me; and indeed that is the only theme that makes sense in this complicated, messy divorce. The process has been entirely driven by my wife’s attorney’s wish to generate fees for herself. She has some unknown hold on my wife to gain consent for this scheme. I would guess it has to do with leverage in collecting the fees that have not yet been paid. This attorney is quite ruthless in pursuing her monetary objectives.

17. With respect to the second point, it is untrue that Petitioner lacks the means to pay her attorney’s fees. She owns a non-marital apartment in Beijing valued at $250,000. She has an interest in another apartment which she has failed to disclose. She may also own other investments in China but there was not time for me to search for them in questioning. If my wife plans to live in the United States, why is she allowed to keep those Chinese investments when the court order taps into my non-marital property with the prospect of destabilizing my rental-property business?

18. With respect to the third point, the attorney’s argument overlooks the fact the that the trial order saddles me with more than $320,000 in marital debt. I have very little cash or credit left. I do not have full-time staff to help manage my rental property, only someone who helps with maintenance when needed. My stock ownership is less than one tenth what it was at the time of marriage. The art work, a family heirloom never intended for sale, was agreed at the settlement conference to be off limits. Now my personal finances are thrown into turmoil by the spousal-maintenance award and possible sale of my non-marital apartment building in order to raise cash.

19. Some context is required to understand why the divorce has been so long and bitter, especially when no children are involved. First a time line: My wife filed for divorce on March 8, 2011, while I was living away from home under a court order. I made my first settlement offer two weeks later; it was promptly rejected. I engaged the services of attorney James Gurovitsch on March 30, 2011. He and Ms. Wing Sun agreed to a procedure known as the FENE at a pretrial hearing with referee Cochrane held on April 15th. On May 5th, referee Cochrane ordered the FENE. In June, I made my second settlement offer which the other party rejected a month later, making an unreasonable counteroffer.

20. On July 15th, after months of negotiating over the FENE, Gurovitsch received an email from Wing Sun stating: “ Let’s discuss how to proceed with the dismissal of the FENE.  My client does not want to participate and she told me your client does not either . . . actually . . . I have an e-mail from your client that states this.” This was a complete lie. I was looking forward to the FENE and had communicated this to my attorney. There was no such email. When my attorney told the other attorney the FENE was court-ordered, she replied: “ Are you sure?  William told Lian that you were not listening to him and running up his attorney’s bill.  He did not like that you charged so much, etc.” Again these were lies. I was not objecting to the FENE. I had made no such complaints about my attorney. Nevertheless, at a telephone conference which the two attorneys held with referee Cochrane on July 18th, Cochrane decided to reverse her previous order and release my wife from the FENE. I was devastated. This would have kept us on track for a reasonable settlement.

21. Then began a period in which little or no progress was made toward settlement. My best option, Gurovitsch advised me, was to agree to mediation. The court-ordered mediation session took place on October 17th. Both high-priced attorneys were required to be present. However, mediation proved to be just another exercise in game playing by attorney Wing Sun. Instead of negotiating a settlement, the other side was interested only in discussing marital misconduct. Nothing was accomplished. With dwindling finances and seven months of time before the scheduled trial, I wrote referee Cochrane a letter pleading for her to move up the trial date. I could not afford much more of the expensive game playing. At that point, my attorney withdrew from the case. I was on my own.

22. At the end of October, Lian and I suddenly agreed on a settlement. I drafted a list of points to be included in the agreement and also a preliminary version of the agreement which might be submitted to a judge for approval. Lian wanted her attorney to review this document. I agreed. However, Lian then insisted that her attorney write the document. Over the next two months we went through four or five different versions. Each time, Lian's attorney would slip extraneous points into the document disadvantageous to me. I would object, and a new document filled with new booby traps would be produced. Two friends, one Lian's and one mine, sat down with us to hammer out the wording of a document acceptable to us both. Ms. Wing Sun accused my friend of practicing law without a license. This went on until the first week of January, 2012. I gave Ms. Wing Sun three more days to produce a clean document or I would withdraw my offer.

23. The day that my offer expired, Ms. Wing Sun’s husband served me with a motion for temporary relief. Even though my wife had free lodging, spending money, and all other expenses paid, this motion would have me pay my wife $2,100 per month additionally and also a large part of her attorney’s fees. I boned up on court rules and procedures, managing to respond to the other attorney’s motions while adding a few of my own. This then triggered a new set of motions to which I also responded. There was also a third exchange of documents in preparation for a court hearing on January 24th. Meanwhile, my wife started getting violent. After one such incident, I called 911 to try to get the police to calm her down. She interrupted my 911 call and then went to visit her attorney. Later that afternoon, after my wife went to the police station in the presence of her attorney, the police arrested me for allegedly striking my wife as I was shoveling snow outdoors. I was sitting in jail when the January 24th hearing was held. Referee Cochrane decided not to postpone the hearing after Ms. Wing Sun complained that she had gone to great expense in assembling her entourage.

24. My next two months were preoccupied with defending myself in the Domestic Abuse case. I represented myself. On March 19, 2012, the city prosecutor informed me that the charges were being dismissed. Then it was back to dealing with Ms. Wing Sun’s vicious charges and complaints. She sent letters of complaint to the court on an almost daily basis. I invariably responded. I sensed what her strategy was when Ms. Wing Sun informed me in an email that referee Cochrane was a cancer survivor. My wife, too, was a cancer survivor. She stayed on message in asserting at every opportunity that while my wife was in China getting less expensive cancer treatment, I was having sex with Sheila Gorman and giving her lots of money. It would not take a rocket scientist to figure out what decision the court might reach.

The month before the May 7th trial was supposed to be focused on discovery. I received a set of interrogatories that included 44 questions with 188 sub-questions - only 50 are allowed under court rules - and requests for production of 24 types of documents which included most documents I possessed. My requests, including 29 questions, were far more modest. I answered most of her questions on April 12th, refusing a few (such as the content of my current will). She complied at 5 p.m. on April 30th - the day before we were scheduled to meet with Judge Reding. I also asked her to schedule an appointment to visit my office to obtain requested documents. She refused, citing a physical danger to herself. She would also not permit me to come to her office to inspect documents. She offered instead to produce the documents which I had requested at the Edina Public Library. Then, when I showed up, she told me that none of the requested documents were available; my wife was in China looking for them. In the days before the trial, Ms. Wing Sun abruptly changed course. She now insisted that she come to my office to inspect documents on fifteen minutes’ or half an hour’s notice. Busy with more pressing matters, I refused. For such reasons, perhaps, Judge Swenson came to the conclusion that I had been uncooperative in the discovery process and therefore might have dissipated assets.”

signature William McGaughey Date October 1, 2012

Subscribed and sworn to before me this ___ day of October, 2012

On the same day, I also filed an affidavit titled “Respondent’s list of exhibits”. It read:

“I, William McGaughey, have received the following documents and attached true and correct copies of each.

Exhibit #1 Email from Ms. Wing Sun, Petitioner’s attorney, dated 4/14/11 referring to an apartment given to Lian by Chinese government. It could not be the apartment sold in September 2010 or the “big apartment”, still owned, which Lian purchased. This represents concealment of assets.

Exhibit #2 Petitioner’s answer to interrogatories - request Number 17. Here the Petitioner denies having an interest in another apartment, the one referred to in Exhibit #1.

Exhibit #3 Email from James Gurovitsch, Respondent’s attorney, dated April 14, 2011, stating that “trying to work out a settlement at this point is getting to be a ridiculous waste of time and money.” Ms. Wing Sun’s “churning” of legal communications was just getting started.

Exhibit #4 Email from Ms. Wing Sun dated July 15, 2011, stating that I do not want the FENE and that she has an email from me to that effect.

Exhibit #5 Email from Ms. Wing Sun dated July 15, 2011, questioning Mr. Gurovitsch’s professional integrity and again stating that both parties wanted the FENE dismissed

Exhibit #6 Email from Ms. Wing Sun dated November 30, 2011, disclosing that “the judge is a recovering cancer patient, I might add.” See underlined sentence on page 2.

Exhibit #7 Email from Ms. Wing Sun dated April 12, 2012, denying me permission to come to her office to do discovery of documents, which is the prescribed procedure.

Exhibit #8 Email from William McGaughey to Ms. Wing Sun dated April 25, 2012, proposing that they get started on discovery

Exhibit #9 Email from Ms. Wing Sun dated April 25, 2012 in response to Exhibit #8 in which she proposes to meet at the Edina public library to satisfy my discovery requests. I was told at the library that none of the requested documents were available.

Exhibit #10 Email from Ms. Wing Sun dated May 3, 2012 stating that she will be arriving at my office in 30 minutes to do discovery.

Exhibit #11 A breakdown of the number of questions asked in Ms. Wing Sun’s interrogatories keeping in mind that fifty questions or sub-questions are the maximum number allowed.”

A day later, on October 2nd, I received an email from attorney Wing Sun: “We will have to serve you again Thursday around noon.  Will you be around at your apartment?” I replied: “I expect to be here but it would be good to call ahead of time.” She promised to do that. Then, on Thursday, October 4th, I received a telephone call from Ms. Wing Sun around 12:15 p.m. saying that she was still trying to find someone to serve the papers. I said I would be sure to remain at home for the following hour but might also stay for a longer time although I had some errands to do. By 3:00 p.m., no one had served me and there had been no more telephone calls. I then drove to the bank on West Broadway to deposit rent checks. The rest of the day I devoted to other matters.

On the morning of Friday, October 5th, I found legal papers from the other attorney in my mail box. I promptly filed the following affidavit with the court:

_____________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without children


In Re the Marriage of:

Lian Yang McGaughey
Petitioner

RESPONDENT’S AFFIDAVIT IN RESPONSE TO PETITIONER’S MEMORANDUM OF
LAW IN SUPPORT OF HER MOTION

William Howard Taft McGaughey
Respondent

Presiding Judge: James T. Swenson substituting for referee Susan Cochrane

File No. 27-FA-11-XXXX

________________________________________________________________

 

STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )

“1. I am William McGaughey, the respondent in the above matter.

2. This morning, Friday, October 5, 2012, I discovered a copy of a lengthy document titled “Petitioner’s Memorandum of Law in Support of her Motion” in my mail box. If this is intended to constitute personal service, it is untimely since delivery of those documents comes within five days before the hearing scheduled for October 9, 2012. I also question whether putting documents in someone’s mail box without informing them of that fact constitutes personal service.

3. By way of explanation, Petitioner’s attorney sent me an email several days ago stating that she wanted to serve papers on me at noon on October 4, 2012, and asking if I would be at home then. I said I thought I would be home then but requested that she call beforehand. She did call at 12:15 p.m. on October 4th. I promised to be at home for the next hour, adding that I might remain there for an additional hour or so. By 3 p.m., no one had yet served the papers so I left home to run some errands and other things. Evidently, the papers were put in my mail box after that time but before I looked in the mail box this morning.

4. I will not respond to the points made in the memorandum because it is now within five days of the hearing. I note that, even if the other party’s documents had been served in time, I would not have had enough time to prepare a proper response to the many new points that were raised. The process was abused.”

I was asking the court to disregard the other side’s latest motions because of untimely service. Papers had to be served at least five days before the scheduled hearing, which, in this case, was October 9th. Service in the mail box on October 5th did not meet that requirement. Furthermore, I was concerned about delivering to the judge another long, detailed rebuttal of Ms. Wing Sun’s arguments which included many untrue statements. The record was cluttered enough.

The papers put in my mail box on Friday morning included a “Notice of motion and motion” and a “Petitioner’s memorandum of law in support of her motion.”

The “Notice of motion and motion” read as follows:

STATE OF MINNESOTA

COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution without Children

Court File No.: 27-FA-11-XXXX


Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

Petitioner

v.

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent

 

NOTICE OF MOTION AND MOTION
Presiding Judge: Honorable James Swenson
_____________________________________________________________________

NOTICE

PLEASE TAKE NOTICE, that before the Honorable James T. Swenson, on October 9, 2012 at 9:00 a.m., at the Family Justice Center, at 110 South Fourth Street, Minneapolis, MN 55401, the Petitioner, by and through the undersigned counsel, will move the Court for an order granting the following relief:

MOTION

Ordering Respondent’s motion to be dismissed in its entirety; Ordering Respondent to pay Petitioner $985.00 in attorney’s fees for the emergency stay of execution and an additional $999.00 in attorney’s fees for this hearing, which may have been reserved from the prior hearing; Alternatively, ordering Petitioner to place into trust any martial property awarded to her from the Respondent until after said motion:

SAID MOTION is based upon the Affidavit of Lian McGaughey, Memorandum of Law, together with all pleadings, exhibits, and records and files therein.

All responsive pleadings shall be served and mailed to or filed with the Court Administrator no later than five (5) days prior to the scheduled hearing. The Court may, in is discretion, disregard any responsive pleadings served or filed with the Court Administrator less than five (5) days prior to such hearing in ruling on the motion or matter in question.

All new issues must be served and mailed with the court administrator no later than ten days before the hearing or mailed to the other party at least thirteen (13) days before the hearing. Your papers raising new issues must be filed with the court administrator at least (10) days before the hearing.

THE COURT MAY GRANT ANY OR ALL OF THE ABOVE RELIEF EVEN IF YOU ARE NOT PRESENT.”

DATE: October 4, 2012. BY: Wing-Sze Wong Sun

The other document submitted concurrently read:

FOURTH JUDICIAL DISTRICT

FAMILY COURT DIVISION
Case Type: Dissolution without Children

STATE OF MINNESOTA
COUNTY OF HENNEPIN

Court File No.: 27-FA-11-XXXX

Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

Petitioner
v.

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent

NOTICE OF MOTION AND MOTION
Presiding Judge: Honorable James Swenson
_____________________________________________________________________

STATE OF MINNESOTA FOURTH JUDICIAL DISTRICT
COUNTY OF HENNEPIN FAMILY COURT DIVISION
Case Type: Dissolution/ Post-Trial
_____________________________________________________________________
Court File No.: 27-FA-11-XXXX

PETITIONER’S MEMORANDUM OF
LAW IN SUPPORT OF HER MOTION

Lian Yang McGaughey
Also known as Lian Ying McGaughey, and
formerly known as Ying Min

Petitioner
v.

William Howard Taft McGaughey, Junior
Also known as Chet McGaughey, and
William H. McGaughey

Respondent


Presiding Judge: Honorable James Swenson
_____________________________________________________________________

INTRODUCTION

Greed – the fuel that drives this case. The price of his greed? $50,000 and a $500 monthly award of spousal maintenance. A man who was born into a family of wealth, went to Princeton, owns five real estate properties, four of which, generate income, hangs art valued in the six figures, pays for full time staff, has stock ownership, and guaranteed monthly income through his pension and social security, will tell this court – he can’t afford it. But, before the during the commencement of the divorce, Chet McGaughey was able to afford transferring $89,000 and real estate to his other woman, Sheila Gorman, giving her adult daughter thousands, making repeated loans to friends, and renting apartments without any effort to collect rent.

Now, the one thing, the court of appeals does not typically decide is credibility. Lian McGaughey flew home early from her out of country medical treatment and found William’s mistress had moved downstairs into their largest rentable apartment. He told her, he was having a baby. She forgave him. Lian lived with this man for ten years, never knowing he had an affair or that he could afford to pay her medical treatment in the
United States. Then, one day, she looked at his checkbook log and saw that tens of thousands of the family money was given away. When he caught her, he bloodied her lip, bruised her face, and was sent to jail. As the divorce progressed, he became more evasive towards disclosing his finances – never permitting the money to be traced. After a Year’s time passed, a child was never produced. This man tells the court, “[Lian ] offers as excuses for the earlier misstatement that the fact that has had cancer and cannot speak English very well. Such arguments have worked well for her in the past.” The court again is left to decide – who is more credible?

ARGUMENT

An order denying a motion for amended findings is not an appealable order. Tompkins v. Sandeen, 243 Minn. 256, 67 N.W.2d 405 (1954); Urbanski v. Merchants Motor Freight, 239 Minn. 63, 57 N.W.2d 686 (1953). If a party does not bring a motion to make findings on an issue, that part will not be ordered stricken, even if the fact was material. Larsen v. People's State Bank of Butterfield, 171 Minn. 116, 213 N.W. 542
(1927); McDonald v. Whipps, 137 Minn. 450, 163 N.W. 746 (1917).

The Court shall make a “just and equitable” division of marital property, but the Court of Appeals will not alter the district court decision absent a clear abuse of discretion or an erroneous application of law. Sirek v. Sirek, 693 N.W.2d 896, 898 (Minn. Ct. App.2005).

The format of the arguments will be as follows: an evidentiary objection, summary of arguments made in the Respondent’s Amended Findings and Grounds section, then Petitioner’s arguments. Everything is denied, even if not responded to.

I. RESPONDENT HAS VIOLATED THE RULE REQUIRING THE MEMORANDUM OF LAW NOT TO EXCEED 35 PAGES WHEN HE SUBMITS A 52-PAGE DOCUMENT FILLED WITH OVER 35 PAGES OF HIS ARGUMENTS.

Pursuant to Minnesota General Rules of Practice 115.05, a Memorandum of Law, not including the recitals, shall not exceed 35 pages, including the original Memorandum and any responsive Memorandums. Petitioner has exceeded the page limitations by submitting a 52-page document, signed one time, consisting of:

• 2 pages of a notice of motion and motion, without a court hearing date, time, or place as required by Minnesota General Rules of Practice for the District Courts, 303.01(a)(1);

• 13 pages of “Motions to Amend Findings and Conclusions of Law” with woven in arguments;

• 33 pages of “Grounds;” and

• 2 copies of notices and 1 page of verification and acknowledgements.

Therefore, this court should not permit any more submissions by the Respondent and has the discretion to read or utilize 35 pages of Respondent’s argument.

II. THIS COURT SHOULD DENY RESPONDENT’S MOTION FOR A NEW TRIAL BECAUSE RESPONDENT HAS FAILED TO MEET HIS BURDEN OF PROOF IN REQUESTING ONE.

The trial court has substantial discretion in determining whether a new trial should be granted. see generally Brooks v. Realty, Inc. v. Aetna, Co.,149 N.W. 494 (1967); Sanchez v. Waldrup, 136 N.W.2d 61 (1965). A new trial should be granted cautiously and sparingly and to further substantial justice in the application of trial procedure. Boland v. Morrill, 132 N.W.2d 711 (1965) citing Boutang v. Twin City Motor Bus Co., 248 Minn. 240, 80 N.W.2d 30; Beebe v. Kleidon, 242 Minn. 521, 65 N.W.2d 614; Willmar Gas Co. v. Duininck, 239 Minn. 173, 58 N.W.2d 197. The appellate court usually defers to the trial court, for issues related to credibility in determination of whether to grant a new trial. Lamb v. Jordan, 333 N.W.2d 852, 856 (Minn. 1983).

From what Petitioner can deduce, the Respondent desires a new trial based on two primarily reasons found in Minnesota Rules of Civil Procedure 59.01(a) irregularity in the proceeding of the court whereby the moving party was deprived of a fair trial and 59.01(b) misconduct of the prevailing party. The Respondent also recites the string of allegations and Rule 59, 60, 50.02. It is the moving parties burden to argue law and
fact and not merely state them.

Because of the nature of this case, and the issues that surrounded the renumbering of the exhibits created, the Respondent should have incurred the cost of obtaining the trial court transcript to assist him in his aide of arguments and not relied on his memory of seventy plus years. If Respondent has the funds to give away nearly $89,000 to Sheila Gorman and thousands more to others in the last two years, then of all places, this would not be the place to choose to be frugal.
 

A. Respondent Failed to Show Irregularity and that the Court Deprived him of a Fair Trial, Therefore the Court Should Not Award a New Trial.

The Respondent has failed to present sufficient evidence that there was irregularity and may misunderstand the meaning of irregularity, which caused him an unfair hearing. This part of Respondent’s motion is difficult to argue because eleven of his points are related to his defense or excuse of violating a court order and not properly numbering his exhibits. This section provides key insight as to how the Respondent allocated his time at the trial. The rest of it is that Respondent jumps to conclusions or has a faulty memory.

1. Deny. The Respondent voluntarily rested his case and did not ask for any extensions of time. Respondent dominated the hearing due to mislabeling of exhibits and listened while the Petitioner made evidentiary objections of 133 of mostly incomplete exhibits and letters, which the court would then fairly determine. Neither party could begin until the afternoon on the first day of trial. Both parties stipulated to exhibits over the lunch break because Petitioner gave in and wanted to move things along. On the first day,
most of the afternoon was used up for Respondent’s cross-examination of the Petitioner, asking her where bathrooms and kitchens were of almost every single apartment in the nine-unit building. To the left or to the right. Over and over. The cross-exam continued until the next morning. The court tried to help manage
Respondent’s time several times, but the Respondent ignored the court. Petitioner objected to relevancy and asked and answered to try to speed up the process, but the court permitted the Respondent to allocate his time however he wanted. Claiming it was very relevant.

2. Deny. The Respondent made inappropriate accusations at the court and counsel throughout the proceedings. Judge Swenson was stepping in for Referee Cochrane and was almost immediately accused of impropriety due to Respondent’s frustration over the last motion hearings. Referee Cochrane would not permit ex parte communications even when Respondent showed up day after day demanding to speak to her and when she made an exception he accused the court of acting inappropriately. Then Respondent was angry at Judge Reding because the court would not order the Petitioner to find an affordable real estate expert for the Respondent to help him bring his case and that the Respondent had to cooperate with Petitioner’s real estate expert to evaluate his properties. Counsel refused to take up time at trial to discuss the allegations Respondent made, but denied them.

3. Deny. At all times, the Respondent prevented any marital tracing to be done.

4. Deny.

5. Objection, relevance. Deny. The Respondent interjects fault to his previous counsel for not complying of the court order, which is neither appropriate nor relevant to the court’s irregularities.

Deny.
Deny.

8. Deny. The court in no way gave an instruction to counsel regarding the Respondent’s
mislabeling of exhibits.

9. Deny.

10. (missing)

11. Objection, relevance. Ignorance of the law is not a valid defense. The recognition of a manila envelope does not replace a binder or the simple fact that the court order was violated.

12. Deny. No one prevented Respondent from accessing the trial transcript.

13. Deny. Petitioner had three total witnesses including the Petitioner, the expert did not testify.

14. Deny. Respondent’s sole witness who is Sheila Gorman’s half brother set to inherit one of Respondent’s properties, but tried to conceal this from the court, was most likely not credible. [1Sheila Gorman is William McGaughey’s former wife and person whom he had the extra-martial affair.]

15. Deny.

16. Deny. It is entirely inappropriate to accuse the law clerk of dialing the wrong number to help Petitioner advance her case.

17. Deny. It is entirely inappropriate to accuse the law clerk of misconduct. When the parties reached a settlement agreement at the first chance Petitioner had to review it she made a correction to a point she did not agreed to. The law clerk never instructed the Respondent to be quiet, but told him to sit down when he began to follow her. The Respondent has the burden to prove the debt is non-martial when it occurred during the marriage, but was too concern about where the kitchen was in any given apartment.

18. Deny. The interpreters were not acting inappropriately and were not passing notes to advantage the Petitioner. Throughout the whole 18-point process, it is clear that Respondent interjects fault to every person but himself from the court appointed Mandarin interpreters, the judges, the law clerk, lawyer, etc. However, because his focus is that everyone is at fault, he failed proved that none of these alleged irregularities deprived the Respondent of a fair bench trial whereby an unfair award to the Petitioner was the result of it.

B. The Discussion of the Extramarital Affair is Appropriate and Does Not Amount to Misconduct When the Presentation of Facts are Required to Prove Marital Dissipation when the Respondent Failed to Cooperate with Financial Discovery and to Defend Against the Respondent’s Claims of Petitioner’s Consent.

Respondent has failed to meet his burden of proof for misconduct of the prevailing party because the extramarital facts were so intertwined with this case that the discussion of them was necessary to show:

1. A party has the burden to prove the existing debt was not for a marital purpose [Minn. Stat. § 518.58];

2. A party alleging marital dissipation has the burden to prove there was no consent [Minn. Stat. § 518.58, subd.1a]; and

3. Parties in a dissolution context have fiduciary duties to each other and must exercise prudency in regards to marital funds [Minn. Stat. § 518.58, subd.1a].

First, the discussion of the extra-martial affair places into proper context that the character of the husband’s spending was non-marital. Their marriage did not benefit from the monetary transfers to the husband’s mistress, mistress’s daughter, or mistress’s half brother.

1. Compare: A party repeatedly spends money for his gambling addiction.

2. Contrast: A party did not spend any money, or spent nominal amounts, on his mistress (and her relatives), but humiliated the wife because he engaged in extra-marital affairs.

The latter example pinpoints the wife’s inappropriate objective for the court to assign fault, where as the first example shows a need to explain why the money was not for a marital purpose. Also, Respondent had many competing themes to explain why he gave Sheila Gorman money. One of them was because he and his wife wanted a child, presenting the e-mail regarding the wife’s infertility treatment and signing a tentative
recognition of parentage. [Exh. 113 e-mail regarding fertility treatments of Lian McGaughey and Exh. 12 – regarding tentative recognition of parentage]. However, no biological child of the Respondent was ever produced. In any regard, the transfer of money to Sheila Gorman was not for a marital purpose.

Second, the Petitioner discusses the extra-marital affairs and to show a lack of consent. The Marital Dissipation statute allows the parties to spend money for non-martial purposes so long as both parties agree.

1. Compare: Husband contributes to his mistress’s nonprofit, e.g. Hopewell, which is
husband’s mistress’s formerly run nonprofit organization who assists foster home children that husband has contributed to in this case and discussed in January 18, 2012’s motion hearing

2. Contrast: Husband contributes to a nonprofit, e.g., Susan G. Komen for the Cure

The first example illustrates that even if the nonprofit does a good thing, the law requires the wife to consent to donating the parties’ marital funds. The husband had claimed that he was contributing to Sheila Gorman’s business and Sheila Gorman thanked him on behalf of the children for his contributions. Because Sheila Gorman organized it, there was little possibility the wife would consent. [2 It is unclear if this nonprofit still exists. Sheila Gorman never came to testify, but she was placed on the witness list as someone who would. Petitioner conducted her case first and was not aware that Sheila Gorman would not show up.]

Third, because of Petitioner’s unique circumstance of her deteriorating health, she has to calm any concerns that the existing debt was due significant medical expenses incurred during the marriage or that she somehow was responsible for inappropriately spending the family money. The Petitioner shows that even in her time of needed of medical attention, she travelled out of country to save the family money by not
purchasing United States health insurance or seeking medical attention in the United States. The husband on the other hand, took benefit from this saving, and breached his fiduciary duty to the wife by choosing to spend it on a person who did not benefit the marriage in any way or was a necessity.

Petitioner’s testimony was essential to prove marital dissipation in this case. Her emotion as seen in her genuine anger towards the acts of Respondent’s spending illustrated to the court that she was truthful in her claims that the transfers of money were both not for a martial purpose or consensual. Further, Respondent did
not cooperate in the discovery process, which disallowed Petitioner to trace these transfers using the normal means such as bank and credit card records. Had he done so, the focus would be on the transfers. Respondent also denied marital dissipation in his Answer. Settlement negotiations according to the Rules of Evidence was not permitted to be discussed, if it were, the court could have seen it was Respondent’s bad acts that prevented settlement. Lastly, even if the Petitioner had engaged in inappropriate conduct, it was harmless error, as this trial was a bench trial and the court did not use any of it to attribute fault to the Respondent to give the Petitioner more money.

III. THIS COURT PROPERLY DETERMINED PETITIONER’S FINDINGS OF FACTS AND CONCLUSIONS OF LAW.

  When a claim that the record does not support findings, the party moving for amended findings should address the record evidence, explain why the record does not support the district court's findings, and explain why the proposed findings are appropriate. Lewis v. Lewis, 572 N.W.2d 313, 316 (Minn. Ct. App. 1997) (concluding Because wife's motion for ‘amended findings’ did not identify the alleged defects in the challenged findings or explain why the challenged findings are defective, it was not a proper motion for amended findings . . .). A ruling under Minnesota Civil Rules of Procedure, 52.02 may not consider new evidence. Rathbun v. W.T. Grant Co., 291 N.W.2d 641, 651 (1974) citing Urbanski v. Merchants Motor Freight, Inc., 57 N.W.2d 686 (1953). A motion to amend findings must be based upon the files, exhibits and minutes of the record, not upon newly discovered evidence that is not part of the record. Zander v. Zander, 720 N.W.2d 360, 364–65 (Minn. Ct. App. 2006). The Respondent did not provided a transcript to the court or the petitioner in making his arguments.

A. Finding of Fact 10 – Domestic Abuse: Objection, relevance. Respondent’s amended finding addresses the recital of the criminal court’s decision of a domestic abuse no contact order and its effect has no relevancy in this civil case addressing monetary issues. In its syllabus to the court, the Minnesota Supreme court stated a “request for amended findings of fact that are immaterial, or that call for a statement of the evidence on which such findings are made, may be properly refused by the trial court.” Coggins v. Higbie, 85 N.W. 930, 930 (Minn. 1901). Coggins supports that no changes to a court order are required when the facts are immaterial, as it here, because the division of marital/non-marital assets and an award of spousal maintenance depends on the financial status of the parties and not upon a party’s criminal guilt, innocence, or character evidence relating to violence. Id. Further, as stated in the Petition, the court captured its overall truthful character because Chet McGaughey pled guilty to at least one act of criminal assault in February 2011, in 27-CR-11-XXXX, and had a no contact order placed against him. The letter states that Chet McGaughey had the second criminal case dismissed because of a lack of evidence, not because he was found to be innocent by a court or jury of his peers. [Exh. 99 re-labeled to Exh. 199]. Therefore, the court acted appropriately and does not need to amend its finding of Domestic Abuse by the Respondent upon the Petitioner.

B. Finding of Fact 11 – Setting Forth Finances: Objection. Speculation, Ripeness. With the exception of only citing to one exhibit, a parties’ 2010 joint tax return, Respondent fails to show support for his editorials and adds five pages of facts without any citation for the Petitioner to respond to. Even with the one exhibit, the Respondent conceals the cause for the loss of rental income was due to his voluntary non- efforts to collect rent as articulated by the court.

Respondent hindered determination of his assets and the martial assets. Bank accounts, brokerage accounts, and other investment accounts were asked for in Petitioner’s discovery, but were not produced [Exh. 24]. Further, more rental income should have been received and made a part of the marital property. Respondent could have rented two apartments out to paying renters instead of giving them to Sheila Gorman and Lena Morrison. Respondent used to rent Sheila Gorman’s apartment out to Alan Morrison for $1150 around April 28, 2008. [Exh. 112, not relabeled]. Further, the basement apartment where Sheila Gorman lives may rent for $1250 per month. [Exh. 20]. This entire amount lost can be claimed as a marital asset placing both parties in the position it had been before the disposition of marital asset occurred.

In regards to future income, in addiction to renting to paying tenants, Respondent may receive extra rental income from renting the one bedroom apartment in the four-plex, where Petitioner no longer resides. Further, the Milford house can also have its other bedrooms with extra bathroom, kitchen, rented out for extra income as the Milford lease indicates that those spare rooms and bathrooms are there, but we only know of one
tenant. [Exh. 119 not relabeled].

Furthermore, the court correctly captures that an individual who is in poor financial restraints would not voluntarily make repeated numerous transfers to other people. Respondent borrows at least of $10,900 to Alan Morrison over the years,3 which does not always include money transferred in the checkbook logs. [Exh. 13; Exh. 11]. [ 3
Exhibit 13 shows transfers to Alan Morrison: $200 on June 29, 2009, $5,000 on December 3, 2007, $1,750 in October 12, 2002, not collect $1500 for April 28, 2004, $2500 in May 19, 2003.] Lena Morrison received $4,000 check number 2144 on October 31 (Year unknown) in addition to several thousands more. [Exh. 11]. Respondent gave Sheila Gorman $89,000 by permitting her to use his credit cards and check cards4. [Exh. 19]. [4
Exhibit 19 shows that Chet McGaughey claimed Sheila Gorman $89,000 made charges to his credit card and bank cards that he is disputing about $5,000 to $10,000 with the bank. The checkbook logs have numbers written next to them indicating checks are written, which is clearly different than a charge to a card.] Numerous checks are written to Ms. Gormanover the years, e.g., check number 2612 for $2,000 on December 15, 2011, check number 1812 for $1,100 on May 17, 2006 totaling tens of thousands [Exh. 11]. The checkbook log does not show the $15,000 transfer that Sheila Gorman discusses receiving in 2009 from the Respondent. [Exh. 12]. A snapshot of one week of Respondent’s checkbook logs, from November 15-22, 2011, Respondent transferred $2,895 as follows:

Check No. Date Transaction Description Amount Paid
3335 11/15/2011Sheila Gorman $350
3336 11/??/2011Sheila Gorman $450
3238 11/17/2011 Alan Morrison $650
2739 11/18/2011 Bob Carney $220
2740 11/19/2011 Lena Morrison $900
2743 11/22/2011 Sheila Gorman $325
6 Checks One Week 4 people $2,895

Even if somehow the court was wrong in determining the credibility of the Respondent, which it is not, the Respondent still cannot overcome the law, which required him not to make any unnecessary transfers without Petitioner’s permission during the pendency or during the marital dissolution. The $89,000 transfer to Sheila Gorman much more than the $50,000 plus some stock and nominal amounts in bank accounts awarded to the Petitioner.

Respondent then continues to spend numerous paragraphs speculating as to a second apartment. First, Respondent accuses that Petitioner admits to owning real property that she does not own, referred to as “second apartment,” because she denied it. Respondent then continues to accuse former wife that she does not need a special diet due to her type II diabetes, as discussed in January 18, 2012 hearing, even though a $350 per month food expense is not high to begin with. Respondent then purposefully brings up petitioner’s daughter’s non-legal obligation to assist her mother when all this information was objected to and sustained to at trial because it is not relevant.

Further, the Respondent’s Answers to Petitioner’s discovery shows that Respondent actively obstructed Petitioner’s financial requests and prevented her from capturing the value of the parties’ marital assets. This obstruction prevented tracing of assets because he omitted all pages of his financial documents, except for the ending balances of bank statements, credit card statements, and loan documents. Petitioner
sought for negative inferences that the liability was not marital and the marital assets were not accurate.

C. Finding of Fact 12 – Real Estate and Assets: Objection, beyond the scope. Petitioner opposes the introduction of a new opinion that Respondent has $70,000 in total assets, by simply claiming a figure without any type of support. Respondent had ample opportunity to bring this information forward, especially when Respondent was legally represented for approximately six months. Respondent claims the lawyers discuss this life estate second apartment, but it does not appear on the exhibits that the Respondent claims. Further, Respondent purposely prevented any discovery of assets during the discovery process. Even if this claim had any merit, this calculation could not be correct summary. Two of the five real estate properties are worth over $550,000, which the parties stipulated as their values. [Exh. 62 re-marked to Exh. 300]. Only one of his real properties has no equity. Therefore, the court should disregard a need to change this finding.

D. Finding of Fact 13 – Statement of Legal Descriptions: Objection, confusing, redundant. Simply because a person falsely accuses a party of the same fact numerous times as a trial tactic does not make it true. The Respondent claims an apartment was not disclosed, but then provides claims that one of his exhibits shows it was disclosed, eleven months prior to trial. Which on is it?

E. Findings of Fact 15 – Automobile: Objection, findings should not include the data placed on pre-hearing statements and the amount is relatively nominal. However, the Petitioner would stipulate to the value of the car if Respondent mentioned it before the conclusion of our evidentiary hearing.

F. Findings of Fact 16 – Bank Accounts: Objection, vague and confusing. Petitioner does not understand the addition.

G. Findings of Fact 18 – Parties Stipulations of Facts: The court appropriately determined that neither party stipulated to classification of the liability as being marital, except Petitioner’s $6,000 medical debt. [Exh. 62 re-marked as Exh. 300]. The petitioner does not seek an amendment of the relatively small amounts assigned as marital debt, but only to preserve this issue when she will be likely forced to respond to
an appeal. However, former wife only accepts that debt existed at the time the exhibit stated it existed and not to show that he did not take out loans and simply transfer the money to his own bank accounts until after the divorce.

H. Findings of Fact 19 – Parties Stipulations of Awards: Deny: Objection, misstates the facts. It is the movant’s burden to show that the stipulated facts are not what was agreed to. Former husband has not shown anything in this motion that warrants a change. The two Glenwood properties were stipulated as being marital and the former husband was given both properties and the existing debt.
   
I. Conclusions of Law II – Spousal Maintenance: Objection, confusing. Former husband moves to strike the language for permanent spousal maintenance amends into maintenance for six total months, but provides no legal or factual basis requiring this change. Further, the language regarding the IRS and this Court’s authority is unnecessary. Simply because it is not stated in a court order does not negate the existence of laws. Each party will have to pay their own respective taxes and this court will retain jurisdiction of this case, regardless of the addition of the proposed language.

J. Conclusions of Law IV – Martial and Non-marital Property Award to Former Wife: Objection, speculation. Former husband moves for amended changes but does not provide any basis for the change and continues to speculate about the ownership and benefit of property.

K. Conclusions of Law V – Marital and Non-marital Property Awarded to Former Husband: It is the burden of the movant to bring enough evidence to support the requested change. Former wife does not know why he is entitled to the US bank accounts or that she should pay $100,000 of the debt that were not determined to be for a marital purpose. Former husband has kept all of the real estate in the United States and has at least three unencumbered properties, 100 Sawkill Avenue and 1708 Glenwood Avenue worth total stipulated value of $560,000. This is in addition to the land in Wisconsin and the valuable Dynamoe prints.

IV. STAY OF EXECUTION

The Court has granted the Respondent his stay of execution in until this hearing. Respondent denies this request, but would agree to place any amount recovered into a trust until after the decision is made. The respondent has the burden of proof to show that a stay of execution is necessary, but does not bring forth any evidence that he cannot attempt to exhaust his financial avenues. He may simply sell a valuable item or take out the money in a bank or brokerage accounts. Respondent has been alleged that Sheila Gorman was able to sell his Wisconsin property and secure funding. The only alternative does not have to be the speculative possibility of not being able to secure another loan on the property, while continuously giving $100,0000 or more to friends and not fully maximizing the potential of his rental properties.”


 DATE: October 3, 2012 BY: Wing-Sze Wong Sun

Normally, I would go through such a document with an eye to identifying false statements. I did not do it this time because I would not have time to file an affidavit with the court which, in any event, was tired of all the nitpicking. Had I written such a document, however, it might have addressed these statements:

a. Petitioner’s statement: “A man who ... pays for full time staff” My response: I do not have “full time staff” but someone who helps when needed.

b. Petitioner’s statement: “A man who was ... renting apartments without any effort to collect rent” My response: I do make strenuous efforts to collect rent.

c. Petitioner’s statement: “One day, she looked at his checkbook log and saw that tens of thousands of the family money was given away. When he caught her, he bloodied her lip, bruised her face, and was sent to jail.” My response: Lian did not see “tens of thousands” of dollars given away in my check register. I did not bloody her lip or bruise her face when she bit me and I removed my hand. The photographs taken by police do not show blood on her lip or a bruised face.
 
d. Petitioner’s statement:   “RESPONDENT HAS VIOLATED THE RULE REQUIRING THE MEMORANDUM OF LAW NOT TO EXCEED 35 PAGES” My response: Although the total document (including amended findings) exceed 35 pages, the “grounds” - memorandum of law - are less than that.
 
e. Petitioner’s statement: “Respondent should have incurred the cost of obtaining the trial court transcript to assist him in his aide of arguments and not relied on his memory of seventy plus years.” My response: The transcripts cost $3,100. I have pauper status and requested transcripts on that basis. Judge Swenson himself denied my request.
 
f. Petitioner’s statement:
“The Respondent voluntarily rested his case and did not ask for any extensions of time.” My response: I did complain at trial that I did not have enough time and was given ten minutes - cut short - at the end. That still was not enough time. Furthermore, I could not find my exhibits because Petitioner’s attorney was doling them out in dribbles after determining whether she would accept them.
 
g. Petitioner’s statement:   “Both parties stipulated to exhibits over the lunch break because Petitioner gave in and wanted to move things along.” My response: I stipulated to accepting all the Petitioner’s exhibits. Petitioner’s attorney took over an hour in deciding which of mine to accept.

h. Petitioner’s statement: “most of the afternoon was used up for Respondent’s cross-examination of the Petitioner, asking her where bathrooms and kitchens were of almost every single apartment in the nine-unit building.” My response: It was necessary to ask these questions to show that, despite claims to having spent over 1,000 hours doing maintenance work in the apartment, she did not know the layout of certain units or the number of efficiency apartments in the basement. Alan Morrison gave the correct answers, thus demonstrating Lian's untruthfulness.
 
i. Petitioner’s statement:   “No one prevented Respondent from accessing the trial transcript.” My response: The judge would not grant my in forma pauperis request to obtain a transcript prior to filing an appeal with the Court of Appeals.
 
j. Petitioner’s statement:   “Respondent’s sole witness who is Sheila Gorman’s half brother set to inherit one of Respondent’s properties, but tried to conceal this from the court, was most likely not credible.” My response: It was I who told the court that I had changed my will, after threats of violence from my wife, to make Alan Morrison a beneficiary in my will. I did not “conceal” this.
 
k. Petitioner’s statement:   “It is entirely inappropriate to accuse the law clerk of dialing the wrong number to help Petitioner advance her case.” My response: Linda Davis, the Milford tenant, said she had her cell phone on and available all day to receive a call from the court. The law clerk said the power was off. I was actually being kind in suggesting that the wrong number might have been dialed.
 
l. Petitioner’s statement:   “It is entirely inappropriate to accuse the law clerk of misconduct. When the parties reached a settlement agreement at the first chance Petitioner had to review it she made a correction to a point she did not agreed to. The law clerk never instructed the Respondent to be quiet, but told him to sit down when he began to follow her.” My response: It was serious misconduct for the law clerk, after the judge had left the room, to take additional testimony from the other attorney but not from me and then persuade the judge in private to strike a point to which both parties had agreed. Yes, she did tell me to sit down and be quiet. No, I did not “follow her”.
 
m.  Petitioner’s statement:   “The interpreters were not acting inappropriately and were not passing notes to advantage the Petitioner.” My response: The judge himself noticed that the translators were passing notes to each other which, when read, seemed to be coaching my wife on how to answer questions. Sitting at the other end of the table, I was not aware of this at the time. Alan Morrison observed the whole scene from the visitor’s section.
 
n. Petitioner’s statement:   “Respondent has failed to meet his burden of proof for misconduct of the prevailing party because the extramarital facts were so intertwined with this case that the discussion of them was necessary” My response:  The judge faulted Lian for stressing marital misconduct; now her attorney argues that this was necessary.
 
o. Petitioner’s statement:    “Respondent did not cooperate in the discovery process, which disallowed Petitioner to trace these transfers using the normal means such as bank and credit card records. Had he done so, the focus would be on the transfers.” My response: The other attorney successfully objected to my introducing copies of bank-loan agreements that showed how the debt was accumulated. I answered questions about bank and credit cards in general terms but did not respond to the excessively lengthy and detailed requests. I did, however, submit an itemized list of possible “dissipations”.
 
p. Petitioner’s statement:   “ the court captured its overall truthful character because Bill McGaughey pled guilty to at least one act of criminal assault in February 2011, in 27-CR-11-5037, and had a no contact order placed against him.” My response: The court record stated that a non-contact order for this case was still in effect. I pointed out that a judge had lifted it.
 
q. Petitioner’s statement:    “Respondent hindered determination of his assets and the martial assets. Bank accounts, brokerage accounts, and other investment accounts were asked for in Petitioner’s discovery, but were not produced.” My response: The Petitioner asked 188 questions or sub-questions, compared with the 50 questions allowed and many of the questions were excessively detailed.
 
r. Petitioner’s statement:   “Respondent then continues to spend numerous paragraphs speculating as to a second apartment. First, Respondent accuses that Petitioner admits to owning real property that she does not own, referred to as “second apartment,” because she denied it.” My response: I did not “accuse” the Petitioner of “admitting” to having possession of a second apartment. I accused her of denying this. I have photographs.
 
s. Petitioner’s statement:   “Respondent then continues to accuse former wife that she does not need a special diet due to her type II diabetes, as discussed in January 18, 2012 hearing” My response: I knew nothing of a special diet due to type II diabetes. I did not attend the January 24th hearing since I had been falsely arrested for domestic abuse and was sitting in jail.
 
t. Petitioner’s statement: “Respondent actively obstructed Petitioner’s financial requests and prevented her from capturing the value of the parties’ marital assets. This obstruction prevented tracing of assets because he omitted all pages of his financial documents, except for the ending balances of bank statements, credit card statements, and loan documents.” My response: I submitted “incomplete” bank statements when they were intended to show balances on certain dates rather than the entire multi-page statement.
 
u. Petitioner’s statement:  “Petitioner opposes the introduction of a new opinion that Respondent has $70,000 in total assets, by simply claiming a figure without any type of support. Respondent had ample opportunity to bring this information forward” My response: I attempted to introduce exhibits to that effect at the trial but do not know whether they were accepted.
 
v. Petitioner’s statement:   “The court appropriately determined that neither party stipulated to classification of the liability as being marital ... former wife only accepts that debt existed at the time the exhibit stated it existed and not to show that he did not take out loans and simply transfer the money to his own bank accounts until after the divorce.” My response: No, there was no stipulation of marital debt. However, the difference between debt owed at the beginning of the marriage and the date of valuation is marital debt. Exhibits to that effect were introduced at trial. It is false speculation to say that I took out loans and transferred money into undisclosed accounts.

 

43. Arguments about proper service

Anyhow, these were the documents which I discovered in my mailbox on the morning of October 5th - four days before the scheduled hearing. Ms. Wing Sun requested permission to deliver them by email but I did not consent. On October 6th, I received this email: “Please let me know that you have received the documents.  Hang Sun tried to serve them and Sheila Gorman slammed the door on his face at your residence.” I replied: “I found some documents from you in the mailbox on Saturday morning.  This was untimely service.”

Ms. Wing Sun then wrote: “Please stop playing these games.  Han Sun will come down and testify knowing you were purposely evading service and sent Sheila to the door.” I informed her on October 8th: “I have asked Sheila to try to come to court to give her side of the story.” She then informed me: “There is no live testimony permitted.” And finally, she wrote: You have received this e-mail andHang Sun, the last minute process server is out of town, and will not be testifying unless ordered to by the court.”

Lu Ming was not in court but a statement from him, notarized in Pennsylvania, said: “I have twice tried to serve Mr. McGaughey the Notice of Motion and Motion and Memorandum of law at the 17xx Glenwood Avenue in Minneapolis, MN ... The person who I suspected was Sheila Gorman and later confirmed to be Sheila Gorman did not permit me entrance to the building. I tried at both entrances at 17xx Glenwood. She physically blocked both entrances and let in another individual. The only words communicated by Sheila Gorman were: ‘William is not here.’ I saw her look at my hand and the documents in my hand, then slammed the door in my face. She never asked if she could help me or what I was doing there. I saw the little dog from William’s apartment window upstairs come downstairs and believed Chet McGaughey was home or at least left his apartment door open a slummy part of Minneapolis so the little dog could come downstairs.”

Sheila’s version of this incident is that she saw an Asian man on the porch, whom she mistook for a Hmong deliverer of leaflets, talking with her 21-year-old daughter, Justine. When Justine gave her a frightened look, Sheila opened the front door, whisked her inside, and then closed the door without exchanging any words with Mr. Ming. Sheila, who is a tenant in the downstairs unit, did not “physically block” him other than by closing the door to her unit. She did not go to the other door which Mr. Sun knew was where I lived because this would have required going upstairs, passing through my apartment, and then going down my front steps to the door. Again, it was after 3 p.m. and I was depositing money in a bank. Basically, Mr. Sun was committing perjury here. However, no testimony was taken at court even though Sheila was available.
 
  Meanwhile, another altercation was taking place in an exchange of emails. I started it. When I received an email from the court clerk,Azure Schermerhorn-Snyder, on October 5th that a live rather than paper hearing would be held on October 9th, I sent her this email, copying Ms. Wing Sun: “I recall that attorney Wing Sun said about a month ago she would not be available to participate in a hearing on or around October 9th because she would be out of town  She had requested alternative dates.  I assume that the October 9th date is now OK with Ms. Wing Sun; otherwise, she would have objected.  It is OK with me.”

This precipitated an email from Ms. Wing Sun to the court clerk and me: “Thank you for your response Ms. Snyder.  I am out of town and will be returning today.  I planned to be out of town on October 9, 2010 for this event:  http://www.americanbar.org/calendar/2012/10/section_of_familylaw2012fallcleconference.html  I cannot receive any refunds for the conference, but decided to cancel it because with this case, it has consumed an abnormal amount of time trying to figure out how to respond and that I have to here to monitor submissions after this parties's motion hearing, as it has been in the past with the on January 18, 2012's submissions.  My flight was set to leave the morning on October 9, 2010, which I was able to cancel with minimum fees.  

To respond to Mr. McGaughey's accusation that I no longer needed it or would have objected:  I had initially feared that because Mr. McGaughey inappropriately attacked Referee Cochrane's unbiasedness that extending me any courtesy in the matter would mean I would have to argue that the court was not acting inappropriately.  It is not a good use of time.  It also gets expensive defending all the allegations that Mr. McGaughey has stated with the Judge Reding, Referee Cochrane, and Judge Swenson, the law clerk Turner, the interpreters, and myself.  The person who suffers from all of these allegations is my client.  

First, I did not receive proper notice when Mr. McGaughey scheduled the conference or I would not have scheduled and paid for the conference.  Second, Mr. McGaughey threw out a couple of dates pretending he would cooperate to move the hearing, but did not follow through.  They are all in e-mail, if the court requests, it can be provided.  I then could not receive any fee refund for the ABA conference.  I believed if Mr. McGaughey would have extended me the common courtesy that all other attorneys almost always extend to each other, especially since he failed to state the motion hearing date on his motion submission.   

I am sorry that appear frustrated with the events that unfolded.  My client is kindly requesting that the court provide her with an interpreter and we will be there to defend.”

I then responded to the other attorney, copying the court clerk:

“Let me clear up a few misstatements of fact and innuendos:

1. I am not "accusing" Ms. Wing Sun of anything in making sure that everyone would be available on October 9th.

2. Ms. Wing Sun did receive proper notice of the hearing date and place in my initial "post-trial motion for amended findings of fact/conclusions of law or, alternatively, a new trial".  Page 2 of my submission clearly indicates a hearing on October 9, 2012 at 9:00 AM at Room 517.  Ms. Wing Sun received a copy of the same thing.

3.  After Ms. Wing Sun complained that she could not make the October 9th hearing, I promptly asked the court for alternative dates and received some.  I then forwarded these promptly to Ms. Wing Sun.  I am unclear why I should have been expected to "follow through" after that.  That was her responsibility if the October 9th date was unacceptable. I was not "pretending" anything.

I am getting tired of having always to clean up the record.”

That brought a stiff response from Ms. Snyder: “Ok, you both need to stop.  I will not be responding to either of you, nor will I forward this to the Judge.” In other words - a plague on both your houses, equally.

 

44. A memorandum in preparation for the October 9th hearing

As I approached the October 9th meeting with Judge Swenson, it seemed that Ms. Wing Sun’s original focus on my motion to stay the execution of the order to pay my wife $50,000 in five installments of $10,000 apiece was being replaced by a response to my original motion for amended findings of fact/ conclusions of law or a granting new trial. I would have thought the latter would be more important; and now it was receiving proper attention. Perhaps the judge’s order allowing me to get a bond had decided the first question; however, there was also the request for attorney’s fees. Ms. Wing Sun’s motion was based on the allegation of ex parte communication with the court. In plain English, I was accused of having gone up to the judge’s chambers and having tried to persuade him to grant a stay of execution without letting the opposing attorney know. The judge would know that this accusation was preposterous; and that is, perhaps, why Ms. Wing Sun was switching to the other issue.

The problem with responding to my original motions was timeliness. From my readings, I had the impression that a party had fifteen days to respond to a post-trial motion. I had filed on August 20, 2012. Fifteen days later was September 4th. Ms. Wing Sun had clearly missed that deadline. However, she could have had thirty days. In that case, she needed to respond before September 20th. She had missed that deadline, too. Not being a lawyer, I was not sure what the real deadline was.

The other attorney was accusing me of violating a 35-page limit in my filing the post-trial motions. The pertinent rule was Minnesota General Rules of Practice 115.05. I felt more comfortable to learn that the limit pertained to Memoranda of Law only. My “Grounds” section was 33 pages only. Looking at the statutes, I noticed that ”dispositive motions”, covered in 115.03, required that opposing attorneys serve papers at least nine days before a scheduled hearing. That meant that I should have been served by September 30th. However, rule 115.01(c) stated that “the timing provisions of sections 115.03 and 115.04 of this rule do not apply to post-trial motions.” So what provisions did apply?

Surely, the five-day rule applied. The standard “notice to other party” contained this statement: “Your responsive motion and responsive affidavit in support of motion must be hand-delivered to the other party at least five days before the hearing or mailed to the other party at least eight days before the hearing.” The five-day deadline for a hearing on October 9th ended on October 4th, whenHang Sun had tried to serve me. But he had failed to do proper service. I received the documents a day later. Therefore, according to my calculation, the court could not receive Ms. Wing Sun’s motions and memorandum of law. That was why she was now claiming that I had deliberately tried to avoid service. The court could decide that issue either way.

In the meanwhile, I prepared for the hearing. I had little idea of its length or format except that we would be appearing before Judge Swenson in the same court room as where the trial was held. I decided my best strategy, in the limited time available, was to focus upon the “findings of fact” that had led to the horrendous “conclusions of law”. I wanted to make a coherent and complete argument about such matters.

Therefore, I prepared a three-page memorandum which read:
 
“William McGaughey File No. 27 FA 11-XXXX

Findings of fact to be corrected

1. The amount of marital debt

On page 5, Judge Swenson wrote: “ 18. Prior to trial, the parties disagreed regarding the marital debts in this matter. In order to clarify these issues, the court used Petitioner’s Pre-hearing statement balance sheet to facilitated discussion and achieve agreements regarding the debts. Using this process, the parties arrived at the following agreements: The Advanta debt is $2,630.50; the Citybank Business card debt is $12,001.85 (Petitioner’s Exhibit 25 and Respondent’s Exhibit 116); and the debt on the Menard’s credit card ending in account # ending in 5093 is $1,893.52 (Exhibit 133).”

The debts identified here total $16,525.87. The total marital debts, as identified in exhibits introduced at trial, totaled $324,212.70. We need an accurate amount of marital property - mainly debt - so that it can be equitably and fairly divided. Assigning 100% of the debt to the husband does not meet that test.

2. Misstatements of marital assets

On page 5, Judge Swenson wrote: “ 19. ... The parties agreed that the value of 1708 Glenwood Avenue is $280,000 and the value of 1715 Glenwood Avenue is $173,000 $110,000 (meaning no equity). The parties agreed that these two Glenwood properties were entirely marital.”

There are two problems here. 1. The value of 1715 Glenwood Avenue was agreed to be $110,000, not $173,000. 2. The parties never agreed that the apartment building at 1708 Glenwood Avenue was “entirely marital” property. It was entirely non-marital.

3. Spousal maintenance

On page 15, Judge Swenson wrote: “Wife is a 56 Year-old immigrant from China who has not mastered the English language, even to a moderate degree. She worked at Target for a short time until a work injury ended that job .... Lacking medical insurance in the US, wife frequently travels back to China for medical treatment. She is currently unemployed and receives at most $300 in retirement income from China.”

a. Her mastery of English: Judge Swenson has never heard Lian speak English and, therefore, his conclusion is unwarranted. We conversed in English in 2000. She has since lived in the United States for eleven years. She has taken English as a Second Language courses. She worked three and a half years at Target. I have a sound recording of her speaking English.

b. Lian currently has financial aid to pay her medical Bills in Minnesota - Sage?

c. Her recent filings disclose that she has $780 in monthly income.

d. Judge Swenson does not take into consideration her future income potential as a former hotel general manager in China. He neglects the potential for her to earn income by renting her two apartments in Beijing. He neglects the possibility of getting Social Security disability if she is judged unable to work.

e. The judge neglects the provisions of Minnesota statute 518.552 (g) which requires him to take into consideration “the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.

f. Respondent’s initial post-trial motion argues that Petitioner’s stated living requirements were overstated.

4. Dissipation

On page 19, Judge Swenson wrote: “ The record also reflects that husband loaned a not insignificant amount of money to this person, on many occasions, with no seeming legitimate effort to recover the loan proceeds.”

a. The loan agreements put into evidence by Petitioner as Exhibit 12 indicates a serious intent to recover the money as loans. Otherwise, the judge has no basis for saying no effort was made to collect them.

b. Evidence given in testimony showed that much of the dissipation came about by forgery and unauthorized use of credit cards over which Respondent had no control. If he had gone to the police and put Ms. Gorman in prison, that would have jeopardized recovery of the loans which were promised to be repaid.

c. Respondent received $113,000 in insurance proceeds from his brother in February 2010. These were non-marital funds. The amount more than covers the dissipation claim. Therefore there was no dissipation of marital assets because this money was not marital.

Respondent had a credible basis for believing that the loans would be repaid and still believes that some of the money will be repaid.

On page 19, Judge Swenson wrote in footnote 12: “ Husband’s conduct during this litigation, particularly his less than complete cooperation regarding discovery would allow me to infer dissipation.”

The reference to “his less than complete cooperation regarding discovery” is completely unsupported by facts introduced during the trial. Respondent’s latest affidavit offers a thorough account of the parties’ respective cooperativeness during discovery. Petitioner had copies of most of Respondent’s financial documents taken from his office without permission. She made no attempt to produce a total of dissipated assets. It was, instead, the respondent who offered such exhibits into evidence at the trial.

5. Assumption of debt

a. On page 20, Judge Swenson wrote under division of marital property: “He (husband) has also agreed to assume the debt against the property (17xx Glenwood Avenue.

There was no such agreement.

b. The judge neglects to discuss marital debt which is, by far, the largest component of this couple’s marital property.

6. Division of non-marital property

On page 23, Judge Swenson wrote: “ Wife is in poor health and suffers from recurrent cancer among other health problems; is Chinese with little command of the English language; has a limited work history and the record does not reflect job skills that would warrant employment at a significant salary should her health suddenly improve; and has only a modest retirement income from China. In short, her prospects of an improved economic status are extremely limited.”

a. As previously discussed, the statement that wife has “little command of the English language” is completely unsupported by the facts.

b. Wife does not have “a limited work history”. She was general manager of two hotels in China and head of the hotel division of China Everbright Corporation, China’s first corporation. Such management skills might still be in demand.

c. She has prospects for “an improved economic status” if she sells her non-marital apartment in China worth $250,000 or if she rents it. The same is true of a second non-disclosed apartment near the Beijing zoo.

Why is husband required to mortgage or sell his non-marital real estate to pay for debts incurred during the marriage plus a $50,000 cash award when wife is not required to do likewise?

Why does not wife’s income prospects take into consideration the possibility of obtaining rent from her two Beijing properties (one of which has recently been rented) when husband’s income assumes such rent?”

I also made a list of all the motions, affidavits, and memoranda of law filed with the court after the judge’s order was issued on July 20, 2012, both for me and my wife. In case additional exhibits could be introduced, I had prints of color photographs taken in all three of Lian's Beijing apartments in order to show that the second “little apartment” existed. I had copies of recent emails to show the consistently belligerent attitude taken by Lian's attorney.

 

45. The hearing before Judge Swenson on October 9, 2012

Now came the day of the live hearing before Judge Swenson. Sheila Gorman and I drove to the Family Justice Center in downtown Minneapolis and paid for an hour of parking starting at 8:44 a.m. Lian was seated in the first-floor waiting area. As Sheila went up to the fifth floor, I spent five minutes or so seated next to her. I had an impacted tooth in my left lower jaw. Lian offered to arrange for dental work in China. I was planning to have the tooth pulled for free at Sharing & Caring Hands in Minneapolis. I briefly complained of what her attorney was doing but Lian did not want to discuss this. Then I took the elevator up to the fifth floor where Sheila was waiting. It was a few minutes before nine, the scheduled hearing time. The law clerk let us into the court room where we waited in the visitor’s area.

Around 9:15 a.m., Ms. Wing Sun came into the court room. She gave me a copy of papers which summarized the arguments she planned to make during the hearing. I gave her a copy of my three-page argument for amended findings of fact. Alan Morrison arrived. He asked the court clerk whether the two translators at the trial were court employees and was told that they were. They were on a roster of approved Chinese-language translators. There were two translators because they worked in shifts to cover the whole trial. We waited another fifteen minutes before the hearing began. Evidently, the Chinese-language translator was tied up in traffic. The hearing could not begin until he arrived. By then, it was almost time for Sheila to revisit the parking meter which had a one-hour limit.

Abruptly a number or people came into the court room at the same time including the judge. I took my place at the far end of the witness table where I had sat during the trial. Judge Swenson first criticized the Chinese-language translator - don’t let this happen again. He said he had another meeting to attend at 10 a.m. We would each have ten minutes to make our respective statements. I was asked to begin.

I began by asking the judge if I could submit my typed statement. Rather reluctantly, Judge Swenson said he would look at it. I stuck quite closely to the script, hitting hard on all the points. The judge said nothing; neither did the opposing attorney object. I began by saying that the $16,000 in the judge’s order did not fairly represent the marital debt. We needed first to get a correct total. Then the judge needed to make a fair and equitable division of this debt. I could tell that Judge Swenson did not like being talked to this way but I continued through my other points.

Although I do not recall the exact conversation, I sensed a certain hostility when the judge called me a liar. I think it was when I complained that I was not given enough time for my testimony during the trial. I might have said that I did complain and was given ten minutes at the end of the trial but the judge cut my testimony short. Also, when I pointed out that Lian had twice been general manager of hotels in China so she did have substantial work experience, Judge Swenson said I could not submit new testimony.

I did stress that the judge was basing some of his conclusions relating to monetary awards on suppositions of fact ungrounded in testimony. For instance, the judge did not know how well Lian spoke English. He did not substantiate the allegation that I had not cooperated during discovery. The alleged “dissipated marital assets” were, in fact, not marital since the amount was fully covered by proceeds from my non-marital life-insurance benefit. At the end, I also mentioned that the translators were caught passing notes to each other. Judge Swenson said that I should have pointed this out at the time. (I did not know about it until after the trial when Alan Morrison told me.) I then said I thought my ten minutes were up. Judge Swenson said I had twenty seconds left. So I repeated the point about a fair and equitable division of the marital debt. There were no follow-up questions.

Then it was attorney Wing Sun’s turn. Her testimony was based on the hand-out that she had given me before the hearing. First, she argued that my original motion exceeded the 35-page limitation. Second, she said raised the marital-misconduct issue for reasons other than attributing fault. Third, I had not objected to not having been given enough time to testify during the trial. I had not asked for an extension of time but had simply rested my case. Fourth, my arguments were based on faulty memory rather than the trial transcript. Fifth, I had failed to answer questions in her interrogatories which would have allowed her to trace the money to see how the marital debt was incurred. The attorney did not discuss her motion to have me pay attorney’s fees or charge me with having evaded service on September 4th. Neither did Lian offer testimony. (Why, then, was a translator required?) Judge Swenson again asked no questions but abruptly left the room when testimony was finished.

Lian , attorney Wing Sun, and the translator huddled in the hallway after the hearing. Alan Morrison, Sheila Gorman, and I met briefly in a conference room. Sheila had missed all but the last minute of the hearing. Alan was adamant that I should immediately file a motion for a mistrial because of the admission concerning the two translators. They were both court employees caught cheating during the trial. I could not have brought this to the judge’s attention during the trial because I did not know about it. However, the judge himself had raised the issue. Now he was denying knowledge of this incident. I needed to have Judge Swenson replaced and then request a new trial. I was more cautious thinking that I should wait to receive the judge’s decision regarding my post-trial motions. I also needed a favorable decision from him about the security bond, especially if I could not secure a bank line of credit.

 

46. Bad news about loans

Later in the afternoon of October 9th, I received a call from Brian Schak of US Bank. Unfortunately, my application for a line of credit had been denied. I would be receiving a letter from the bank on its letterhead stating the reasons. Evidently, the request for credit totaling $51,000 was thought excessive. I then asked Schak whether it might be possible to obtain additional credit on my home mortgage whose balance, initially $84,000, had dropped to $73,000. He said he would check with Jeremy Stout who had handled the mortgage application in December 2010.

Stout called back in the evening. He took some basic information from me over the phone and, otherwise, had access to my application for a commercial loan. The preliminary results were good. The computer had not rejected my application. The main concern here was the ratio of my total debt - $350,000 - to my annual income - between $25,000 and $30,000. However, Stout was trying to massage the debt by using my two existing lines of credit, both loaded to the maximum, as a payment vehicle. I did not comprehend that approach. Stout said it might take a week to get a decision on this new application.

Several days later, Stout called to say that my loan application had been rejected. He recommended another division at US Bank which might try to salvage the loan using another approach. It, too, rejected the loan application.

I then went to my local branch of Wells Fargo to see if that bank could consider a loan application from me for the purpose of covering a security bond. Sitting at a table with banker Nia Torres, I learned that Wells Fargo was also rejecting my application. Again, the reason was that my debt to income ratio was too high.

Now I had four bank rejections rejections. I wrote a letter to Judge Swenson dated October 19, 2012.

“To date, I have been unable to obtain funds from a bank to support a bond that would be required for a stay of execution of the money to be paid to my former wife starting in October, 2012. Please let me give a progress report.

The bond broker, Patrick Thomas Agency, reports that the ratio of my net worth to bond request is inadequate to obtain a bond without providing additional security. If I obtained a line of credit from a bank which could be accessed by the bond company in case of default, I would probably be approved for a bond.

I contacted the commercial banker at the Stillwater office of US Bank, Brian Schak, to ask about obtaining a line of credit using the apartment building at 1708 Glenwood Avenue as security. This application was denied late last week. I was promised a letter of explanation but it has not yet been received. Mr. Schak’s telephone number is 651-351-2583.

I also applied for an unsecured line of credit from Wells Fargo. That request was also turned down last week. I believe the problem was that the ratio of my debt to income is too high. The personal banker at Wells Fargo is Nia Torres. Her number is 612-667-9276.

I tried to obtain the needed credit by amending the mortgage on my residence at 17xx Glenwood Avenue through US Bank. This application was denied yesterday. The banker is Jeremy Stout. His number is 651-430-2820. The reason for the denial was the inadequate ratio of income to debt.

Mr. Stout suggested another person at US Bank, Thomas Hibbard (1-800-322-9178 x6606) who might approach this from another angle. He also denied my application. Evidently, the guideline is that the applicant’s debt payments cannot exceed 50 percent of monthly income. In my case, the monthly interest on the debt exceeds my monthly income from state retirement and Social Security. I do have income, but also expenses, from the rental-property business. Its profitability varies greatly.

Since bank credit is difficult for me, I would request that the security need be met by my placing a $51,000 mortgage to my wife’s credit on the yet unmortgaged apartment building at 1708 Glenwood Avenue in Minneapolis, whose appraisal value is $280,000. This would not require the participation of banks or bond companies. I believe that such a mortgage would give my wife assurance that the judgment of $50,000 would be paid unless it is overturned by a court. I would, of course, pay whatever filing fees are required to file the mortgage against this property.

In the meanwhile, I will continue to look into other opportunities for loans or lines of credit. I can also forward you the letters of rejection when they are received.”

I did later receive two letters of explanation which I forwarded to Judge Swenson on October 26, 2012. The judge did not respond. Was it because I had not made a formal motion to amend his order allowing me to obtain a security bond? In the middle of November, I telephoned the judge’s office (expecting to talk with his clerk) but spoke with the judge himself. He said he could not speak with me. He did give me the telephone number of his clerk,Azure Schermerhorn-Snyder. I explained the situation to her. A week or so later, she called back to say that the judge would include his decision concerning my request to amend the order granting a stay of execution in his order responding to my other motions. Judge Swenson was currently working on this.

 

X Judge Swenson’S DECISION ON MY POST-TRIAL MOTIONS (DEC. 28, 2012)

47. Judge Swenson’s Decision on December 28, 2012, regarding my post-trial motions

I was my impression that the judge had sixty days to respond to my motions. The deadline would be December 9, 2012, in that case. However, the judge’s order, dated December 28, 2013, arrived around January 5, 2013. The decision was, again, quite shocking.

At the time, I was in bed recovering from the flu which I had contracted on Christmas eve from a friend of Sheila’s daughter who was staying in the unit downstairs. I had gone to the hospital, received a chest x-ray, and been told I had a trace of pneumonia. The doctors gave me antibiotics to kill the virus. I later learned that at least a hundred people in Minnesota had died from this outburst of the flu.

Judge Swenson’s decision in response to my post-trial motion to amend his findings of fact and conclusions of law read:

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

In Re the Marriage of: File No. 27-FA-11-XXXX

Lian Yang McGaughey
Petitioner and
William Howard Taft McGaughey
Respondent

ORDER
________________________________________________________________

The above-entitled matter came on before me on October 9, 2012 on the parties’ various motions the details of which are set forth herein. Respondent was self-represented and Wing-Sze W. Sun, Esq. appeared on behalf of Petitioner. Based on the written submission, the specific portions of the record mentioned therein, and the attached Memorandum, I issue my order as follows.

1. Respondent’s motion to amend Finding 10 of the July 20, 2012, Judgment and Decree is granted. See Amended Finding 11.

2. Respondent’s motion to amend Finding number 11 and 13 of the July 20, 2012, Judgment and Decree is denied.

3. Respondent’s motion to amend Finding number 18 of the July 20, 2012, Judgment and Decree is granted. See Amended Findings 13, 50, 51, 52, and 53.

4. Respondent’s motion to amend Finding 19 of the July 20, 2012, Judgment and Decree to delete the language suggesting that he agreed to pay the encumbrance against 17xx and 1708 Glenwood is denied. The request to delete the finding that both 1715 and 1719 Glenwood are entirely marital is denied. Respondent’s motion to amend Finding 19 to reflect a different value for those properties is granted. See Amending Findings 14 and 15.

5. Respondent’s motion to amend Conclusion of Law II is denied.

6. Respondent’s motion to amend Conclusion of Law IV is granted regarding US Bank account #s ending in 3556 and 2032. See Amended Conclusion V. 4. The motion is denied in all other respects.

7. Respondent’s Motion to amend Conclusion of Law V is granted except for the request to have Petitioner assume $100,000 of the marital debt. The other requests are reflected in the Amended Findings of Fact.

8. Respondent’s motion to amend Conclusion of Law VII is granted. See Amended Conclusions VI and VII.

9. Respondent’s Motion to add Conclusion of Law XIV is granted. See Amended Conclusion VII.

Dated: December 28, 2012

James T. Swenson
Judge of the District Court

 

File No. 27-FA-11-XXXX

MEMORANDUM

Introduction

Respondent seeks wholesale changes in the Findings portion of the parties’ Judgment and Decree and challenges specific property awards, along with the duration of the maintenance award. Before addressing his specific concerns, I need to discuss my serious concerns regarding Respondent’s veracity. I will start by focusing on the approximate $114,000 in life insurance proceeds that Respondent received during the marriage. During trial Petitioner claimed that Respondent dissipated these proceeds. Respondent disagreed and adduced a number of exhibits to support his contention that he spent all of the insurance policy proceeds on pre-existing marital debts. The debt payment theme was consistent with Respondent’s earlier, unsolicited October 21, 2011, letter to Referee Susan Cochrane in which he claimed that, “A Year and a half ago, I used the proceeds of a life-insurance policy worth $113,000 to pay off debt owed at the time.” ¹ Now, as part of his post-trial motions, Respondent suggests that the life-insurance policy was not used to pay debts, but was the source of the money that he gave to his ex-wife (referred to at trial as “Ms. Gorman”):

It is also error to assume that the money allegedly dissipated to Ms. Gorman came from marital funds. The Petitioner alleges, on the basis of Exhibit 19, which contains an email from Respondent dated December 5, 2011, that Respondent admits to having dissipated $89,000 in assets. However, the Respondent in February 2010 became the beneficiary of a life-insurance policy worth $114,000. This was the Respondent’s non-marital property. That insurance money, dispersed during the next year, more than covers the $89,000 allegedly dissipated to Ms. Gorman.

(Post-trial Motion, p. 23-24 ¶23)

(Footnote 1 This unsolicited letter to Referee Cochrane was just one of many that caused much consternation for Petitioner and her attorney and contributed to increased counsel fees.)

In addition to this example regarding his substantive arguments, Respondent’s post-trial motion substantially misrepresents what occurred during the trial. He argues that the time allowed for witness presentation greatly favored Petitioner and disadvantaged him. He further contends that he and his witnesses consumed just two and a half hours of trial time while Petitioner and her witnesses had nine hours. Nothing could be further than the truth. I kept track of the time and Respondent used at least 50% of the trial time, although not wisely. He spent far too much of this time on unproductive cross-examination, a point that I tried to impress upon him numerous times when I urged him to end his unproductive cross and save more of his time for direct.

Respondent includes the following fact assertion in support of this contention that he had insufficient time to present his case: “When the respondent complained of insufficient time to present testimony, the judge gave him the final ten minutes but then abruptly cut him off and ended the trial when respondent offered certain testimony.” (page 40, ¶ 2) This too bears no resemblance to what actually transpired. Respondent had already rested his case before this final “ten minutes”. Even though he had rested his case, I gave him the final ten minutes to present additional testimony if any he had. The record will reveal that a good portion of that ten minute span was dominated by the same problem that plagued the trial: Respondent’s repeated reference to mismarked exhibits. More important, the record will reveal that Respondent stopped offering testimony long before the ten minutes expired and spent the remainder of the time advancing closing arguments. It is pure fabrication to argue that I cut him off while he was attempting to offer testimony.

In addition to veracity observations, it is important to understand the general theme that drove my decision, which should be kept in mind as the analysis unfolds. “In dissolution cases, the court sits as a third party, representing the citizens of the State of Minnesota to see that a fair property distribution is made. Karon v. Karon, 435 N.W.2d 501, 503 (Minn 1989).” Miranda v. Maranda, 449 N.W.2d 158, 165 (Minn.App. 1989) Maranda and Karon focus on the fairness of the overall distribution, not the fairness or correctness of individual components. This key nuance was explained as follows by the Court of Appeals in the unreported case of Knutson v. Knutson, 2003 WL 21788984 (Minn. App. 2003):

In focusing solely on constituent elements of the property settlement, both parties overlook the fact that this court’s (Court of Appeals) review centers not on the disposition of individual items of marital property, but rather on the equity of the overall property division. See, e.g. Prahl v. Prahl, 627 N.W.2d 698, 705 (Minn. App. 2001)

I attempted to craft an overall fair award and none of the individual property award components were determined in a vacuum. Respondent faired very well in my analysis regarding some of Petitioner’s claims, and not so well regarding others. The same applies to Petitioner. The manner in which I distributed assets (along with the spousal maintenance award) and the ability to pay. ² The manner in which I resolved disputes regarding the marital and non-marital components of certain assets cannot be isolated from the manner in which I distributed other assets/debts and determined maintenance.

(Footnote 2: A district court may apportion to one party a substantial amount of marital debt or the debt in its entirety. See Lynch v. Lynch, 411 NW. 2d 263, 266 (Minn. App. 1987) (affirming requirement that husband pay all marital debts); Jones v. Jones, 402 N.W. 2d 146, 149 (Minn. App. 1987) (district court’s apportionment of debt upheld where husband voluntarily incurred exorbitant debts and filed to show any reason why wife should be forced to pay half); Maher v. Maher, 393 N.W. 2d 190, 194 (Minn. App. 1986) (apportionment of debt upheld where district court considered husband more able to pay the parties’ debts given his steady source of income); Justis, 384 N.W. 2d at 889 (apportioning appellant entire marital debt was not erroneous where respondent had limited financial resources and custody of parties’ children). Additionally, where husband has incurred most of the marital debts without consulting his wife, this court has upheld apportionment of entire marital debt to the husband. Dahlberg, 358 N.W. 2d at 80. Quance v. Quance, 1999 WL 1216649 (Minn. App. 1999).

I strove to distribute assets and debts, plus award maintenance, in a manner that gives both parties a decent chance to start their separate, post-dissolution lives, considering their ages and infirmities. For example, Respondent complains about the debt distribution but ignores the fact that saddling Petitioner with a larger share of the marital debts, which she could not pay, would be a pyrrhic victory at best. Unless lenders agreed to absolve Respondent of responsibility, they would remain able to collect from him any debts assigned to Petitioner and he would be left with a contribution/indemnity claim against Petitioner, at best. Furthermore, had I exercised my discretion to assign a larger share of debts to Petitioner, I would have awarded her more spousal maintenance and/or increased her property award.

As another example, Petitioner asked me to award a large dissipation claim but I did not do so. She also asked that I turn a much larger percentage of Respondent’s non-marital property into marital property by virtue of her alleged contributions. Had I been more generous regarding the value of her contributions, Petitioner would not have fared any better in the end. Instead, for every additional dollar of property awarded to her via her contribution theory, Petitioner would have received a corresponding reduction in her case property award, including the extent to which I exercised my discretion to award to her a portion of Respondent’s non-marital property.

There are additional themes that must be kept in mind as the analysis unfolds. Respondent frequently asks that I amend certain findings to reflect “facts” that were not introduced into evidence. This I cannot do. Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) explains that in considering motions for amended findings, the trial court may neither go outside the record, nor consider new evidence. For example, Respondent wants me to factor into Petitioner’s needs versus income equation the fact that she owns two condominiums in China which Respondent speculates could be rented, thus improving Petitioner’s prospects of meeting her needs without spousal maintenance. No evidence was introduced at trial regarding the second condominium, nor the rentability of the first. ³ See Exhibit 300, the parties’ partial settlement agreement, which states that, “Wife is being awarded her nonmarital property as follows: Condo [singular] in Beijing, China. “ Respondent admits on page 6 of his submission that evidence regarding the alleged second condominium was not adduced at trial:

(Footnote 3: It is also important to remember that Petitioner has no health insurance in the United States and returns to China for medical treatment. Even if Respondent had provided evidence of the rentability of the one apartment in China, before arriving at a “net” rental figure, I would have needed to factor in the cost of a hotel or other accommodation for Petitioner when she travels to China for medical reasons.)

Wife also has a second condominium in Beijing, which may be a life estate, not disclosed during the proceeding, with an unknown value. Wife has in the past received rental income from this second condominium (emphasis added)

Respondent’s motion and supporting arguments refer to many more “facts” that were never introduced into evidence. For example, as discussed in the initial memorandum, Respondent allowed his friend/ex-wife, Ms. Gorman? to live in rental property without paying market rent, provided her with significant amounts of cash, and let her use his credit cards. Petitioner claims that the reduced rent, cash payments and credit card usage constituted gifts to a paramour, while Respondent claims that they were loans. If they were loans, there was no credible evidence of legitimate evidence to collect the loans. In the “argument” section of his post-trial submission, Respondent asserts numerous statements of “fact” regarding this Johnson situation and repayment considerations that were not introduced at trial. See paragraph numbers 15-16 on page 21.

(Footnote 4: Respondent now asserts, for the first time, that Ms. Gorman is his ex-wife. (p. 23, ¶ 22.)

Petitioner’s post trial submissions also resort to “facts” not introduced at trial. She asks the court to award attorney’s fees even though her initial request was denied in part because I found that Respondent lacked the resources to contributed to her fees. (See the Memorandum attached to the Decree.) In her post-trial renewed request for fees, Petitioner claims that Respondent “hangs art valued in the six figures [and] pays for full time staff.” (Petitioner’s 9/12/12 Memorandum, p. 1) No evidence was introduced at trial to the effect that Respondent owns six figure art ? and there was no evidence that he pays for “full time staff.”

(Footnote 5: Respondent’s pre-hearing statement references one Disney print worth $50,000.)

If Respondent had secured a transcript to facilitate the review process, as he should have, he would have been required to cite by page and paragraph the testimony/exhibits that support each of his factual assertions, plus summarize the evidence that supports the court’s findings. “(A) proper motion for amended findings must both identify the alleged defects in the challenged findings and explain why the challenged findings are defective.” Lewis v. Lewis, 572 N.W. 2d 313 (Minn. App. 1997) “By analogy, this requirement is similar to the process for challenging findings on appeal, which require the party challenging a finding to summarize the evidence that supports the challenged findings. See Minn. R. Civ. App. P. 128.02, subd. 1(c).” Lewis, supra. If the motion for amended findings and conclusions is indeed analogous to the process for challenging findings on appeal, then the party bringing the post-trial motion should be required to limit his/her factual assertions to facts/matters that were introduced at trial. ?

The unreported case of Schrock v. Schrock, C6-01-518 (Finance and Commerce 12/17/01), explains that, “A motion to amend the findings must be made on the existing files, exhibits, and minutes of the court. Minn. R. Civ. P. 52.02.” ?

(Footnote 6: “When a party challenges a trial court’s findings, the evidence ‘tending directly or by reasonable inference to sustain the *** findings * shall be summarized” by the party challenging the findings. Minn. R. Civ. App. Pl 128.02 , Subd. 1(c); c.f. Minn. Stat § 645.4, subd. 16 (1998) (stating, in context of statutory interpretation, “[s]hall’ is mandatory”) When summarizing the evidence supporting a trial court’s findings, the party challenging the findings must cite the portions of the record containing those findings. See Minn. R. Civ. App. P. 128.02, subd. 1(c) (stating each statement of material fact in appellant’s brief “shall” be accompanied by cite to record); Minn. R. Civl. Appl. P. 128.02, subd. 2 (requiring respondent’s brief to conform to same requirements as appellant’s brief); Hecker v. Hecker, 543 N.W.2d 678, 681-82 n. 2 (Minn. App. 1996 (noting “material assertions of fact in a brief are ... ‘particularly important’ where ‘the record is extensive’) aff’d 568 N.W.2d 705 (Minn. 1997).” Vangsness v. Vangsness, C0-99-1551 (Finance & Commerce 3/27/00).)

(Footnote 7: I fully understand that an unreported case has no precedential value, but such cases often remain instructive.)

Respondent also challenges certain numerical findings as being incomplete, but ignores the Memorandum attached to the decree. The numeric findings cannot be read in isolation from the Memorandum or vice versa. Rule 52 explains that findings required in court tried cases may include those set forth in accompanying memoranda. (In order to make the reading easier for Respondent, I rearranged the Amended Findings and reduced the amount of findings set forth in the Memorandum and added the material to the numeric findings.)

Requests to amend specific findings

Finding 10

Numeric Finding 10 referenced domestic abuse between the parties. Respondent wants Finding 10 amended to reflect that there is not a no-contact order currently in effect. I scoured my minutes along with the exhibits and could not locate where this nuance was raised at trial. Nevertheless, I am allowed to take judicial notice of court orders found in MNCIS. I looked at the subject case and found that Respondent’s assertion is correct. I will amend Finding 10 as requested.

Finding 11

Respondent asks that I re-write Finding 11, but most of what he requests is already set forth in the combined numeric findings and memorandum. For example, Respondent wants me to include in finding 11 that “Husband has little in the way of liquid assets.” I already found in finding 16 that “The parties have various bank accounts with nominal value,” and added in the Memorandum that, “both parties have little, if anything, in liquid assets.” (Memorandum p. 13)

Respondent wants me to find that “considering his age, [he has] no reasonable prospect of employment.” I have already found as part of the Memorandum that, “Husband is 71 and not a likely candidate for significant future employment.” My language and the language proposed by Respondent represent a distinction without a difference. I will not substitute Respondent’s language for mine and will not address the dozens of similar requests to rewrite concepts that are already found in the Judgment and Decree.

In addition to Respondent’s proposal that I re-write what I already included, Respondent seeks to amend Finding 11 by adding facts not adduced at trial, including the contention that “it will be difficult or impossible for Husband to borrow [money]” or that he would ‘be forced to sell property at a ‘fire sale’ price in order to raise case. Not only did Respondent not adduce such facts at trial, but it would be reasonable to infer otherwise from the admitted facts. For example, the facts disclose that a portion of Respondent’s Pennsylvania real estate is worth more than $280,000, with no secured debt adduced during the trial. Exhibit 300 revealed that Respondent also owns property in Port Wing, Wisconsin, and there was no evidence that it is encumbered. Also, there was no evidence adduced at trial to suggest to suggest that Respondent could not obtain funds secured by either or both of these properties, or that selling either at this point in time would yield a “fire sale price.”

Finding 13

Respondent proposes minor amendments. the first proposed amendment would add a legal description for his Pennsylvania property, but Respondent fails to cite an admitted exhibit in which this description is contained. The second proposed amendment refers to Petitioner’s alleged second condominium in Beijing. I have already explained (and quoted Respondent’s admission) that evidence regarding this alleged second condominium in China was not adduced at trial. Respondent suggests that this second condominium is referenced in Exhibit 369, but that exhibit was not introduced at trial, nor do my minutes or those of my clerk reflect that it was even offered. ?

(Footnote 8: Respondent failed to procure a transcript for me to use.)

Respondent requests that I amend Finding 13 to reflect that the 1995 Mercury is worth $500. He cites Petitioner‘s Pre-hearing Statement as evidence, but he did not offer that statement at trial. In addition, my finding that the value of the 1995 Mercury was “nominal for purposes of an equitable property division” would remain accurate even if there had been evidence in the record that it was worth $500.

Finding 18

This part of Respondent’s motion demonstrates the manner in which Respondent continues to unreasonably contribute to the length and expense of these proceedings. He asks that I find the debt against 1715 Glenwood Avenue to be $175,147.90, citing his Exhibit 208, but the parties stipulated that the debt was $173,000 (Exhibit 300) and I used that figure in my memorandum (page 21). Respondent asks that I use $84,017.51 as the debt against 17xx Glenwood, citing exhibit 209. I used $86,300 (Finding 13.a.), which is about $2,000 more than Respondent wants to use now, but I will be happy to accommodate him and decrease the number to $84,017.51.

Respondent wants me to add $8,356.42 as the balance owed on the First Bank of Omaha VISA, citing Exhibit 200. My finding identified the lender as “First national bank of Omaha visa charges” and referenced Exhibit 200, but did not set forth the balance. I will add the balance and change the name of the lender to “First National Bank Omaha.” I agreed with Respondent that the Chase balance should be added. He argues that it should be $5,233.49, but my notes show that the parties agreed to use $3,728 (and his pre-hearing statement suggested that the debt was $4,339.) Respondent wants me to use $3,737.66 for the Advanta loan balance, but my minutes show that the parties agreed to the $2,630.50 figure shown in Finding 18.

Respondent wants me to include $3,723.32 for the Citibusiness debt citing exhibit 132. Exhibit 132 is the March 2011 statement for the account ending in #7415. It shows a new balance of $3,723.32. That date is close to the spring 2011 Initial Case Management Conference date, but my Finding 18 opted for the April, 2012, balance figure of $12,001.85. The trial court has discretion to vary the valuation date and I exercised my discretion to choose the later date because I was trying to construct an award that more reasonably reflected what the parties would need to pay to retire the debt. Remember, as I stated above, I was trying to fashion a global award that would allow the parties to start afresh. Using outdated account balances would hardly advance that goal.

My Finding 18 reflected the parties’ Menards debt, but did not set forth the balance. Respondent cities Exhibit 133 for the proposition that the balance was $190.62, but Exhibit 133 reflects a balance of $1,893.52. (His pre-hearing statement identified it as just $70.)

Finding 18 did not reference the two unsecured line of credit balances at US Bank: $39,628.01 and $5,976.67. They should be added. My decision did not assign these debts to either party and the amended Decree does so.

Finding 19

Respondent requests that I strike from Finding 19 the reference that Respondent agreed to “pay all encumbrances on these Glenwood properties.” I intended the phrase “these Glenwood properties” refer to 17xx Glenwood and 1708 Glenwood, not 1715 and 1719. My finding regarding 17xx and 1708 is the exact language shown on Exhibit 300, the parties’ partial settlement agreement. See number 3 on the list: “Husband is awarded the following real estate [17xx and 1708] and shall pay all encumbrances.” (emphasis added) This finding will not be changed.

Respondent also requests that I strike the finding that 1715 and 1719 Glenwood are entirely marital and state that only 1715 Glenwood is entirely marital. Once again my finding comes from the parties’ agreement. Paragraph 6 of Exhibit 300 states that, “these [1715 and 1719] are both entirely marital.” This finding will not be changed.

Requests to amend the conclusions of law/award paragraphs of the decree

“Dissipation”

Respondent correctly cites subdivision 1 of section 518.58 as setting forth the necessary elements for a successful dissipation claim, plus the fact that Petitioner bears the burden of proof regarding her dissipation claim. ? However, Respondent ignores two other key aspects of the statutory scheme for fashioning property awards. First, even in the absence of a successful “dissipation” claim, the court is required to consider, among other factors, the extent to which each party contributed to the acquisition, preservation, and depreciation ... of the marital property. Id. Second, “marital property” is defined to include all property acquired during the marital relationship, and this includes income earned by either party regardless of whose name appears on the paycheck or other payment vehicle. Minn. Stat. § 518.003, subd. 3b.

(Footnote 9: Although I titled one section of my Memorandum as “Dissipation”, that was not intended to suggest that the claim was righteous. After inserting the title, I went on to explain in detail Petitioner’s shortcomings in meeting her burden of proof in this regard, including: “the problem I am having here is that wife did not offer credible evidence to support a specific dissipation number that I could in my marital asset division. In addition, wife is making inconsistent claims.”)

The record credibly demonstrated that Respondent allowed his friend and ex-spouse, Ms. Gorman, to reside in rental property at below market rent (or for no rent at all.) ¹? This means that the marital estate was deprived of this rental income, thus depreciating the overall marital estate. The same holds true regarding cash given to Ms. Gorman from time to time and her frequent use of Respondent’s credit cards. Whether or not such payments and credit card usage constituted gifts or loans, there has been no legitimate attempt to collect them. By taking such action, Respondent failed to preserved the marital estate in amount equal to all the unpaid or underpaid rent, plus the cash payments and credit card usage. Stated differently, but still using statutory language, by taking such action Respondent depreciated the marital estate. The unreported case of Luoma v. Luoma, C3-01-704 (September 18, 2011) WL 1085094 (Minn. App. 2001) explained this nuance when it held that without finding a “dissipation” in so many words, the trial court, “may still consider the parties’ respective efforts in preserving marital property and there is no presumption that they both contributed equally to the preservation.”

(Footnote 10: As just one example, Respondent testified that he allowed Ms. Gorman to live in the duplex starting in November 2010 and she stayed there until July 2011. Respondent testified that she only paid “a couple hundred dollars” in rent even though the unit rents for $916 per month. That represents at least $5,600 in rent for which Ms. Gorman paid “a couple hundred dollars.”)

Respondent argues that Petitioner failed to carry her burden of proving a dissipation claim because she did not prove that the transfers to Ms. Gorman (or the rent relief) were done in anticipation of filing for divorce. (p. 23, ¶ 22) Even if Respondent is correct in this regard, it does not detract from the fact that the marital estate was still reduced in value equal to such transfers, credit card usage, and/or rent relief. It was consistent with my statutory discretion (and direction I might add) to consider such activity when fashioning a just and equitable award. I should also add that Respondent admitted that he “dissipated” marital assets. Toward the end of the trial Respondent stated the following regarding the parties’ marital estate: “some of it was dissipated by me foolishly making loans [to Ms. Gorman].”

Respondent attempts to moderate the impact of these actions that decreased the marital estate by arguing that he “gave his wife and daughter Celia more than $100,000 during the marriage over and above what was needed for household expense including money for Celia’s college tuition.” (p. 19, ¶ 10) Respondent apparently does not understand, or refuses to accept, that if this money came from employment during the marriage or from income earned on properties that he actively managed during the marriage, the money was marital property, not his property, and he was in no position to “give” it to his wife: it was equally hers the moment he received it. It was Respondent’s burden to overcome that presumption and he did not offer any evidence that the money in question came from non-marital sources in existence before the parties married or from another post-wedding day infusion of non-marital capital. Instead, he argues that, “It is also an error to assume that the money allegedly dissipated to Ms. Gorman came from marital funds.” (p. 23, ¶ 23) That was not my “assumption” - rather, it represented my application of the statutory presumption.

I repeated in a footnote above the concerns expressed in my initial Memorandum that wife was making inconsistent claims regarding the loans and/or cash to Ms. Gorman. Respondent is doing the same thing. He argues that there was no dissipation regarding the $86,000 that he identified as flowing to Ms. Gorman (p. 23, ¶ 20), but ignores the fact that if these were legitimate loans collectible in due time, it necessarily follows that if these “assets” are awarded to him in the Decree, he can use the money collected from Ms. Gorman to pay the debts assigned to him or fund the installment property award to Petitioner. The property awarded to him necessarily increases by an amount equal to the Johnson and associate loans (at least $86,000). ¹¹

(Footnote 11: I gave Petitioner the option to have these loans assigned to her or accept the $50,000 in installment payments ordered as part of the division. She chose not to take the loans and thus all the money loaned to Ms. Gorman is available to him.)

Conclusion II - Maintenance

I ordered Responded to pay $500 per month in permanent spousal maintenance. He asks that I limit his $500 monthly obligation to just six (6) months. This I cannot do because subdivision 3 of section 518.552 states that, “Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for future modification.” (emphasis added) No credible evidence was adduced at trial upon which I could find with certainty that Petitioner’s need for maintenance will disappear after six months and thus Conclusion I will not be amended as Respondent requests.

Conclusion IV

Respondent asks that I amend conclusion IV by striking the award to Petitioner of his US Bank accounts ending in numbers 3536 and 2032 and the award to Petitioner of the parties’ Qwest/Century Link stock. After further consideration, I will grant the request regarding these two US Bank accounts in his name and which contain nominal funds.

Debts

Respondent objects to the fact that I have ordered him to pay the bulk of the parties’ debts, which he argues exceed $350,000. In making this argument Respondent ignores a number of key points. First, he ignores the fact that the total amount of debt includes $84,017.50 in debt secured by his non-marital property at 17xx Glenwood. Because the 17xx Glenwood property is worth $160,000 and will be retained by Respondent, this part of the court’s debt apportionment/property award represents a net gain. Second, he ignores the fact that $173,000 of the total debts represents a debt consolidation loan that he chose to impose on the lone Glenwood property that is marital in nature - 1715 Glenwood. No accounting was introduced by Respondent to explain how much of this consolidated debt was marital in nature versus non-marital debt that was imposed against a marital asset via the consolidation loan. It is also important to understand that Respondent is also being awarded the 1715 Glenwood property valued at $110,000. Third, Respondent has at least $580,000 of unencumbered non-marital real estate and case law explains that the trial court may exercise its discretion to assign debts to the party with greater ability to pay. I am awarding wife a small portion of the debts, but even though the portion is small, the amount of debts I am assigning to her exceeds the total liquid assets in her possession. Fourth, Respondent’s argument ignores the fact that the parties’ debts would be much lower today had he not allowed his former spouse to live in rental property without paying rent, not given her significant gifts, not allowed her to use his credit cards, and not loaned her significant amounts of money for which no legitimate attempt has been made to collect on the loans. The manner in which I exercised my discretion to apportion the debt comports with the case law. See the unreported case of Quance v. Quance, 1999 WL 1216649 (Minn. App. 1999), which contains a good summary of the reported cases on the topic of debt distribution:

A district court may apportion to one party a substantial amount of marital debt or the debt in its entirety. See Lynch v. Lynch, 411 NW. 2d 263, 266 (Minn. App. 1987) (affirming requirement that husband pay all marital debts); Jones v. Jones, 402 N.W. 2d 146, 149 (Minn. App. 1987) (district court’s apportionment of debt upheld where husband voluntarily incurred exorbitant debts and filed to show any reason why wife should be forced to pay half); Maher v. Maher, 393 N.W. 2d 190, 194 (Minn. App. 1986) (apportionment of debt upheld where district court considered husband more able to pay the parties’ debts given his steady source of income); Justis, 384 N.W. 2d at 889 (apportioning appellant entire marital debt was not erroneous where respondent had limited financial resources and custody of parties’ children). Additionally, where husband has incurred most of the marital debts without consulting his wife, this court has upheld apportionment of entire marital debt to the husband. Dahlberg, 358 N.W. 2d at 80.

Although I will not make significant changes to the debt allocation, the Amended Decree makes some adjustments and apportions additional debts to Petitioner. I have made it clear that she is responsible, to the exclusion of Respondent, for all tax liability incident to the sale of her condominium in China; I ordered that she be responsible for all but $3,000 of her medical Bills; and I made her responsible for the smaller of the two US Bank unsecured credit lines.

SWJ

 

_________________________________________________________________

STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
FAMILY COURT DIVISION
Case Type: Dissolution Without Children

In Re the Marriage of: Court File No. 27-FA-11-XXXX

Lian Yang McGaughey

Petitioner

v.

William Howard Taft McGaughey

Respondent

AMENDED FINDINGS OF FACT, and CONCLUSIONS OF LAW
ORDER FOR JUDGMENT, AND JUDGMENT AND DECREE

__ ______________________________________________________________

The above entitled matter came on for trial before the Honorable James T. Swenson at the Hennepin County Family Justice Center, Minneapolis, Minnesota, on May 7th and May 8th, 2012, and later came before the court on Respondent’s motion for amended findings. Petitioner appeared in person and was represented by Wing-Sze Wong Sun, Esq. Respondent appeared in person and was self-represented. Based upon all of the evidence presented, the exhibits, the specific portions of the record mentioned herein, and the Memorandum attached hereto, and the Memorandum in response to the motions for amended findings, the court issues the following:

FINDINGS OF FACT

1. The parties’ names, addresses, birth dates and ages are as follows:

Petitioner:
Name: Lian Yang McGaughey
Previous Name(s): Lian Ying McGaughey, Ying Min
Address: 17xx Glenwood Avenue, Minneapolis, 55405
Birth date: April 5, 1956

Respondent:
Name: William Howard Taft McGaughey, Junior
Also known as: Chet McGaughey, William H. McGaughey
Previous Name(s): None
Address: 17xx Glenwood Avenue, Minneapolis, 55405
Birth date: February 21, 1941

Petitioner is also referred to as Wife and Respondent is also referred to as Husband in this decree. The Social Security numbers of the parties have been filed as confidential information.

2. Petitioner is represented in these proceedings by:

Wing-Sze Wong Sun, Esq.
Wing Sun Law Firm
8XXX Wayzata Boulevard, Suite 320,
Golden Valley, MN 55426

3. Respondent is currently self-represented, but had counsel at the beginning of these proceedings.

4. Petitioner resided in Minnesota 180 days prior to commencement of this proceeding, and was a resident of Hennepin County at the time of commencement of this proceeding.

5. The parties were married on January 28, 2000 in the City of Beijing, Country of China, ever since have been and still are married.

6. There has been an irretrievable breakdown of the marriage relationship between the parties. The parties have been separated since February 18, 2011.

7. No separate proceeding for dissolution or legal separation is pending in any court in this state or elsewhere.

8. Neither party has been a member of the armed forces of the United States.

9. There are no children born of this marriage. Petitioner has a non-joint daughter, Celia McGaughey, who has reached the age of majority.

10. Petitioner is not now pregnant.

11. The parties are not currently subject to a Domestic Abuse No Contact Order but in the past they were involved in a no contact order in Hennepin County Court File 27-CR-11-XXXX.

12. Respondent owns a non-marital four-plex at 17xx Glenwood Avenue, Minneapolis, MN 55405, Hennepin County, State of Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to
Minneapolis, Minnesota.

There is an encumbrance in the approximate amount of $84,017.51. It has been appraised at $160,000 (Ex. 20) and I find that number to be reasonable.

13. The Respondent owns a non-marital nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

There is no encumbrance against that property,. The parties agreed that the value of 1708 Glenwood Avenue is $280,000. (Exhibit 300)

14. The parties own a marital duplex at 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

There is an encumbrance against the property. The parties stipulated as part of Exhibit 300 that the debt balance was $173,000. If not for the stipulation, Exhibit 208 would have supported the somewhat higher debt figure of $175,147.90. The value of 1715 Glenwood and 1719 Glenwood together is $110,000.

15 The parties own two marital parcels at 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, except the East 2.0 thereof; and The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, Minnesota.

16. Respondent owns non-marital property at 100 Sawkill Avenue, Milford, Pennsylvania. The legal description of this property was not introduced into evidence. The parties agreed that value of the Milford, Pennsylvania improvements and parking area is $280,000, which does not include the large adjacent acreage lot. (Exhibit 300) Petitioner is not making a marital claim to the large acreage from Respondent’s father’s estate that lies adjacent to the land on which the Sawkill house is located. This land has not yet been distributed.

17. Respondent owns non-marital property located in Orienta Township, City of Bayfield, near Port Wing Wisconsin. There is a dispute between the parties as to whether this land consists of 20 or 40 acres. A log cabin is also located on this property. Respondent’s interrogatory answers averred that this property had an estimated worth of $20,000. (Exhibit 24) The only legal description presented to the court is as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

There was no evidence that this property is encumbered.

18. Petitioner owns a non-marital condominium in Beijing, China at Hualong Residence Community, Tongzhou District, Building 48, Apt 552. No legal description was provided to the Court.

19. Respondent’s post-trial motion makes frequent reference to a second apartment owned by Petitioner in China, but there was no evidence of this property introduced at trial.

20. These properties provide varying degrees of net rental income.

21. Respondent’s Milford, Pennsylvania has been a drain on other resources/income. Exhibit 377 is the lease that allows Linda Davis to occupy part of the Milford property in return for which she pays $350 per month and does some maintenance work. Schedule E from the parties’ 2006-2010 tax returns shows that the Milford property produces less than $5,000 per year in rent. (Exs. 14-18) The combined taxes and utility costs exceed that rent by 100+%, without even factoring in other ownership expenses. (Id.)

22. The appraisal for Respondent’s 4-plex at 17xx Glenwood Ave. in Minneapolis suggests that the property enjoys a rental income stream of $32,640 per year, but that rosy figure has not been borne out by the actual rents generated between 2006 and 2010. 2006 appears to have been a particularly poor year, rent-wise, so I will exclude it from my analysis. During 2007 through 2010, the 4-plex averaged about $17,000 per year in rental income. The 2010 rental income was $16,545. Core expenses including taxes, insurance, utilities, and mortgage payments ate up over $14,000, and 2010 represented a year during which husband paid only approximately half of his normal mortgage costs. Adding other costs of ownership during 2010 produced a loss of over $2,000, even after backing out depreciation. The 4-plex produced useable net income only once in those five years and it was paltry - approximately $2,600. It should be noted that because one of the units has functioned as the parties’ homestead, the building might be profitable if that unit were rented out, but then Respondent would have to spend money on other housing.

23. The appraisal for Petitioner’s 9-unit apartment building at 1708 Glenwood suggests that it produces $57,000 per year in rental income, but the actual average yearly rent was $42,000 between 2006 and 2010. With no mortgage encumbering the apartment building, the complex produces, on average, over $9,000 per year in net income. With depreciation added back, the number rises to almost $13,000.

24. The parties’ duplex at 1715 Glenwood alternates between losing years and profitable years, but over a 5-year continuum, the duplex loses money. The rental picture would improve if the parties sold the duplex, but then a whopping deficiency judgment would be added to the mix. On balance, the four real estate holdings yield little combined yearly income to insert in the maintenance equation.

25. In addition to rental income, a question exists regarding the extent to which Respondent receives yearly dividends sufficient to fund maintenance. He owned shares of Gannett on the marriage date which paid dividends in excess of $300 per year between 2006 and 2008, but declined thereafter to $51 in 2010. (Exs. 14-18)

26. Respondent’s pre-marital Well Fargo shares paid a $208 dividend in 2010, which was the highest amount since he acquired the stock.

27. Respondent’s pre-marital shares in Arbitron pay a nominal dividend each year and his pre-marital shares in US Bank ceased paying dividends after 2009. (Id.)

28. Although Respondent’s pre-marital shares of PG&E paid an average of $500 per year, the stock was sold in May 2011.

29. Respondent’s Target shares paid a dividend of less than $200 per year, but that ceased after a significant portion was sold in May 2011.

30. Respondent’s pre-marital Germany Fund, which today may be called the Euro Equity Fund, paid small dividends through 2010.

31. The only security owned by Respondent that paid significant dividends was Wachovia Bank. It paid an average of $5,000 per year in 2006 and 2007, but the amount dropped precipitously to $145 in 2009. It appears that the Wachovia stock may have been sold, or rolled into Wells Fargo, a stock that Respondent owned prior to the marriage. No sale receipt was introduced at trial, but the acquisition of Wachovia by Wells Fargo may account for the increase in Wells Fargo dividends between 2010 and 2011, but still paltry in comparison to what Wachovia once paid.

32. Bottom line: Respondent’s dividends are now a fraction of what they were in the past, many of his stocks have been sold, and his dividend income will have little impact on his ability to pay maintenance because maintenance is paid out of future income and there is little evidence that Respondent will be enjoying significant dividend income.

33. The parties have an interest in Petitioner’s 401k, account (number unknown) valued at $5,000 as of May 8, 2012.

34. The petition alluded to the fact that Respondent has a pension interest, but Petitioner made no attempt to introduce evidence suggesting that any portion of this pension is marital. Respondent’s pre-hearing statement disclosed the following: “MSRS Pension. Earned before the Marriage.”

35. The status of the parties’ current equity holdings could have been better presented at trial. Neither party introduced into evidence current account statements for each equity position to document current value or the value on the valuation date (other than Wells Fargo for which more evidence was provided). I had to spend a considerable amount of time reviewing the documentation to determine the status on my own. Respondent’s Exhibit 302 as well as his prehearing statement attached the following values to following stocks:

Exhibit 302 Prehearing statement

Gannett - $4,721.20 a. $4,785
Arbitron - $2,916 b. $2,880
US Bank - $1,866.96 c. nothing
Target - $10,048 d. nothing
Europ, Equity - $645 e. nothing
PG&E - $13,548 f. nothing
Xcel - $24,120 g. $23,000
Wells Fargo - $12,942 ¹ h. $10,400
nothing i. $1,400

Footnote ¹ The figure $7,705.18 is used elsewhere herein.

Respondent’s interrogatory answers averred that the only stocks retained by the time of discovery included Wells Fargo, Gannett, Arbitron, and US Bank with a combined value “between $15,00 and $20,000. (Exhibit) Referee Cochrane’s March 28, 2012, Order required the parties to “account for all [property] transfers between January 1, 2010 and the date of her order”. Respondent did not provide this required accounting.

36. These stocks are in addition to the marital Qwest stock discussed in Finding 98.

37. A 1995 Mercury is titled in Respondent’s name. The fair market value is unknown, but nominal for purposes of an equitable property division.

38. The parties have various bank accounts with nominal value.

39. Petitioner’s Wells Fargo checking had a $100 balance as of April 15, 2011.

40. Petitioner’s Chinese Bank Accounts had a $400 balance as of April 15, 2011.

41. Respondent’s Wells Fargo checking had a $1,000 balance as of June 7, 2011.

42. Respondent’s US Bank checking account ending in 3556 had a balance of $1,249.23 as of April 18, 2011 (Ex. 391) and his US Bank checking account ending in 2032 had a balance of $500 as of April 29, 2011 and $6.94 as of May 4, 2012 (Exhibit 384).

43. Respondent’s US Bank checking account ending in 7969 had a balance of $721.28 as of May 4, 2011 (Exhibit 384) and his US Bank checking account ending in 5106 had a balance of of $453.99 as of May 4, 2012. (Exhibit 384)

44. The parties own miscellaneous personal property, household goods and furnishings, furniture, and appRoseces of nominal value that are not at issue herein.

45. The parties have numerous debts. At one point their Advanta debt was $3,737.66, but the parties agreed to use $2,630.50 (the difference between these two numbers would not affect my debt allocation and the balance was of 4/10/12 was $2,578.51 as shown in exhibit 388.)

46. Although the Citybank Business card debt was a little less than $4,000 in spring 2001, it grew to $12,001.85 during April 2012 (Petitioner’s Exhibit 25 and Respondent’s Exhibit 116) and I exercised my discretion to use the higher figure because it more closely approximates what must be paid.

47. The debt on the parties’ Menard’s credit card ending in account # ending in 5093 is $1,893.52. (Exhibit 133).

48. Although the amount is disputed, Respondent agreed to be responsible for the Citybank Business card, account # ending in 5466.

49. Petitioner has a Citi credit line ending in 2637 (Exhibit 360).

50. There was no agreement regarding the responsibility for the First National Bank of Omaha visa (Exhibit 200) with a balance of $8,356.40.

51. The credit card balance with Chase (Exhibit 387) was $3,278. ²

[Footnote: Respondent’s pre-hearing statement stated that the Chase debt was $4,339.]

52. The Menard’s credit card debt in account #5093 was $1,893.52.

53. The two unsecured lines of credit balances at US Bank were $39,628.01 and $5,976.67.

54. In 2007, Respondent borrowed $180,000 from Nation Star Mortgage in order to consolidate debts. He chose not to encumber any of his non-marital properties with this loan consolidation, but chose to encumber the parties’ lone marital real estate (1715 Glenwood) with the entire consolidated debt. (See interrogatory answers - Exhibit 24.)

55. Prior to trial the parties stipulated that Respondent would be awarded the Wunderlix Celluloid Prints, the Port Wing, WI, improvements and land, the Mercury Tracer, 17xx Glenwood Avenue (4-plex), and 1708 Glenwood Avenue (nine-unit). They also agreed that he would pay all encumbrances on the 17xx and 1708 Glenwood properties; and that the Petitioner would be awarded the condo located in Beijing, China. (Exhibit 300) The parties agree that the Petitioner’s 401k should be valued at $5,000, and that Wife’s medical Bills totaling $6,000 as of May 1, 2012 constitute a joint marital debt.

56. Petitioner has health insurance available to her through the People’s Republic of China, Respondent receives Medicare. Neither party carries separate health or dental insurance plans.

57. Neither party receives any form of public assistance as defined by Minn. Stat. section 256.741.

58. Neither party is seeking a name change.

59. Petitioner seeks spousal maintenance, while Respondent makes no such request. Spousal maintenance is paid out of future income and earnings. There is no statute or case law of which I am aware that requires one party to sell assets in order to pay maintenance.

60. Petitioner is a 56 year-old immigrant from China who has not mastered the English language, even to a moderate degree. This is based on my observations during the trial. Often the litigant for whom the interpreter is needed demonstrates a keen understanding of English by answering questions before the interpreter even completes the translation. That did not occur here. Instead, instances occurred when the translation was cumbersome and Petitioner demonstrated confusion. Respondent’s post-trial submissions argue that she has a significant understanding of the English language and speaks it sufficiently well, but he did not adduce credible evidence regarding this during the trial. Petitioner worked at Target for a short time until a work injury ended that job. She suffers from serious health issues including recurrent cancer for which she has undergone long bouts of debilitating chemotherapy. She also requires regular insulin injections (the cause of which was not explained during the trial). Lacking medical insurance in the US, Petitioner frequently travels back to China for medical treatment. She is currently unemployed and receives at most $300 in retirement income from China. From a need-based perspective, Petitioner is a strong candidate for permanent spousal maintenance.

62. Petitioner contends that she needs $2,000 per month upon which to live. At no point in her testimony did she testify that this “need” number comports with the standard of living established during the marriage. There was plenty of testimony that the parties lived a frugal existence, but the record does not reflect whether the amount Petitioner claims she “needs” today reflects that frugality.

63. At the present time Petitioner resides with her daughter in Herndon, Virginia, when she is not in China. The down payment for her daughter’s townhouse, plus considerable additional funds for improvements and furniture came from the proceeds generated when wife sold the smaller of her two apartments in China. Petitioner’s answer to interrogatory number 9 states that her daughter was a joint owner of that smaller apartment. (Ex. 118) Petitioner has a bedroom in the Herndon townhouse for which she pays no rent - although she contends that her daughter is merely “loaning” her the money and that she must repay her daughter for the rent free living. Petitioner’s $2,000 “needs” budget includes $1,000 per month for rent, up from the earlier $800 figure in her trial exhibit. (Ex. 5) It should be noted that when Respondent tried to inquire into this rent-free living arrangement, Petitioner refused to answer the interrogatory, claiming that Respondent sought irrelevant information. (Ex. 118, #26)

64. Unless unusual circumstances exist, the standard of living established during the marriage is a mutual standard, which appears to be the case here. Although Respondent did not offer any trial evidence regarding his monthly budget or “needs”, Petitioner introduced into evidence his interrogatory answers which revealed a $2,070 monthly “needs” budget. (Ex. 24A, answer to #13)

65. Respondent is a 71 year-old retired person with less than $2,000 per month in combined pension and social security income plus steadily mounting debts. He clearly lacks sufficient retirement and social security income to meet his needs and still contribute to Petitioner’s needs in a significant amount. See the discussion above regarding his limited dividend income and limited net rental income.

66. I have already explained that wife is a strong candidate for maintenance from a need perspective, but husband does not generate enough current income to meet his needs and pay a significant amount of maintenance. This means that Petitioner will walk away from this dissolution without any maintenance unless I exercise my discretion to make the parties share the economic hardship of their dissolution. ³ Both parties suggest that they require approximately $2,000 per month to meet their needs, but as explained above, $1,000 of wife’s budget represents “rent” that she does not pay when she resides with her daughter.

67. There was some suggestion that the China property was not available to single people and thus wife put her daughter’s name on the title so that wife could acquire the property. If that is the case, the approximate $100,000 in sale proceeds given to wife’s daughter to purchase, improve, and furnish the Herndon townhouse may amount to adequate consideration for wife’s rent free living arrangement. The record is not at all clear in this regard, but the paltry record presents more of problem for wife than husband because it was wife’s burden to prove her actual costs necessary to duplicate the marital standard of living and, perhaps more important, wife bore the practical burden of persuading me to exercise my discretion and apply the sharing of the hardship doctrine.

(Footnote 3: In Seidl v. Seidl, 1998 WL 8480, (Minn. App. 1998), the Court of Appeals explained that, “A maintenance award is not an abuse of the trial court’s discretion simply because the obligor lacks sufficient income to pay the award and his reasonable expenses. Cf. Justis v. Justis, 384 N.W.2d 885, 891-92 (Minn. App. 1986).” Valenta v. Valenta, 1998 WL 346684, (Minn. App. 1998) added that, “this principle that changes in living standards resulting from dissolution should be equalized is supported by Supreme Court precedent station that a spouse requesting maintenance is entitled to support that is ‘not simply that which will supply her with the bare necessities of life, but such a sum as will keep her in the situation and condition in which [the other spouse’s] means entitle her to live.’ Arundel v. Arundel, 281 N.W.2d 663, 666-67 (Minn. 1979)” In Parker v. Parker, 1997 WL 658938, *4 (Minn. App. 1997), the trial court determined that the obligee suffered a $2,468 shortfall between income and reasonable and necessary expenses, while the obligor enjoYed a $408 surplus. In addition to awarding the surplus, the trial court divided the shortfall and made the parties share the pain on an equal basis, stating that “given the length of the marriage, it would be unfair to allow [appellant] to meet all of his own needs and let [respondent] experience such a significant shortfall.” The court of Appeals held that this was not an abuse of discretion. See also Ganyo v. Engen, 446 N.W.2d 683 (Minn, App. 1989), Shaw v. Supalo, 1996 WL 438807 (Minn. App. 1996), Martins v. Barnes, 2002 WL 31369512 (Minn. App. 2002), Austin v. Austin, 2004 WL 422566 (Minn. App. 2004) and Viola v. Viola, 2006 WL 44349 (Minn. App. 2006).)

68. If I require husband to pay $500 per month in maintenance, husband will not be able to meet his full needs out of current income. On the other hand, he has been diverting income generated during the marriage to pay the losses incurred to carry his family home in Pennsylvania. Husband always remains free to divest himself of the Milford property, cut his losses, and free up some real estate related, positive cash flow to lessen the burden of any maintenance obligation. (See Finding 23.) With $500 per month in maintenance wife will be alike amount short in meeting her non-rent needs. I fully understand that wife will be disappointed with this amount, but she needs to understand that had I not exercised my discretion to force the parties to share the economic hardship incident of their dissolution, she would have received far less in maintenance or perhaps none.

69. Respondent’s post trial submission asks that I limit the $500 maintenance award to just six months. Subdivision 3 of section 518.552 states that, “Where here is some uncertainty as to the necessity of a permanent [maintenance] award, the court shall order a permanent ward leaving its order open for future modification.” (emphasis added) No credible evidence was adduced at trial upon which I could find with certainty that Petitioner’s need for maintenance would disappear after six months. I will not limit the maintenance award to a temporary one as Respondent requests.

70. Respondent contends that parties’ debts must be split 50/50. In making this argument Respondent ignores a number of key points. First, he ignores the fact that the total amount of the debts at issue includes $84,017.50 in debt secured by his non-marital property at 17xx Glenwood. Because the 17xx Glenwood property is worth $160,000 and will be retained by Respondent, requiring him to service the debt on this property still represents a net gain (e.g. nearly $80,000 in positive net worth).

71. Second Respondent ignores the fact that $173,000 of the total debts at issue represents a debt consolidation loan that he chose to impose on the lone Glenwood property that is marital in nature - 1715 Glenwood. No accounting was introduced by Respondent to explain how much of this consolidation was marital in nature versus his non-marital debt that he chose to impose against a marital asset via the consolidation loan.

72. It is also important to remember that Respondent is also being awarded the 1715 Glenwood property which is valued at $110,000.

73. Respondent has at least $580,000 of unencumbered non-marital real estate and case law explains that the trial court may exercise its discretion to assign marital debts to the party with the greater ability to pay. I am awarding wife a small portion of the debts, but even though the portion is small, the amount of debts I am assigning to her exceeds the total liquid assets in her possession.

74. Respondent’s demand for a 50/50 split also ignores the fact that the parties’ debts would be much lower today had he not allowed his former spouse to live in rental property without paying rent, not given her significant gifts, not allowed her to use his credit cards, and not loaned her significant amounts of money for which no legitimate attempt has been made to collect on the loans.

75. The manner in which I exercised my discretion to apportion the debt as set forth in the order portion below comports with case law. See the unreported case of Quance v. Quance, 1999 WL 1216649 (Minn. App. 1999) which contains a good summary of the reported cases on the topic of debt distribution:

A district court may apportion to one party a substantial amount of marital debt or the debt in its entirety. See Lynch v. Lynch, 411 NW. 2d 263, 266 (Minn. App. 1987) (affirming requirement that husband pay all marital debts); Jones v. Jones, 402 N.W. 2d 146, 149 (Minn. App. 1987) (district court’s apportionment of debt upheld where husband voluntarily incurred exorbitant debts and filed to show any reason why wife should be forced to pay half); Maher v. Maher, 393 N.W. 2d 190, 194 (Minn. App. 1986) (apportionment of debt upheld where district court considered husband more able to pay the parties’ debts given his steady source of income); Justis, 384 N.W. 2d at 889 (apportioning appellant entire marital debt was not erroneous where respondent had limited financial resources and custody of parties’ children). Additionally, where husband has incurred most of the marital debts without consulting his wife, this court has upheld apportionment of entire marital debt to the husband. Dahlberg, 358 N.W. 2d at 80.

76. Petitioner asserted a “dissipation” claim. “Dissipation” is a common law term of art that has been codified in Minnesota. See section 518.58, subd. 1a Today the question is whether the accused spouse “transferred, encumbered, concealed, or disposed of marital assets except in the usual course of business or for the necessities of life.” The party advancing the dissipation claim bears the burden of proof. Minn. State 518.58 subd. 1a. It should be noted here how Responding admitted during the trial that he “dissipated” marital assets. Even though Respondent now argues that his actions did not constitute “dissipation” as defined by the statute, he chose the word “dissipation” to describe his improvident actions in letting Ms. Gorman walk away with so much money. For example, toward the end of the trial Respondent stated the following regarding the parties’ marital estate: “some of it was dissipated by me foolishly making loans [to Ms. Gorman].”

77. Petitioner’s dissipation claim was grand in scope and theory, but short on detail. There was no testimony that husband gambled away marital assets or spent marital money on drugs - the usual fare of dissipation claims. Instead, wife’s main theory segues from her attempt to interject fault into the equation: she contends that husband spent copious amounts of money on his mistress/ex-spouse (or mistresses). The record does not contain a credible summary of the amount of money allegedly spent in this manner. However, as I explained above, between 2006 and 2010, Respondent’s rental properties were never fully occupied by tenants paying full market rent year around.

78. The record credibly demonstrated that Respondent allowed his friend and ex-spouse, Ms. Gorman, to reside in rental property at below market rent (or for no rent at all.) As just one example, Respondent testified that he allowed Ms. Gorman to live in the Glenwood duplex starting in November 2010 and she stayed there until July 2011. Respondent testified that she paid only paid “a couple hundred dollars” in rent even though the unit rents for $916 per month. That represents at least $5,600 in rent for which Ms. Gorman paid “a couple hundred dollars.” This means that the marital estate was deprived of this rental income, thus depreciating the overall marital estate. The same holds true regarding cash given to Ms. Gorman from time to time, along with her permitted use of Respondent’s credit cards, regardless of whether such actions constituted gifts or loans for which there has been no legitimate attempt to collect. By taking such action, Respondent failed to preserve the marital estate in amount equal to all the unpaid or underpaid rent, plus the cash payments and credit card usage. Stated differently, but still using statutory language, by taking such action Respondent depreciated the marital estate. The unreported case of Luomo v. Luomo, C3-01-704 (September 18, 2001), 2001 WL 1085094 (Minn. App. 2001) explained this nuance when it held that without finding a “dissipation” in so many words, the trial court “may still consider the parties’ respective efforts in preserving marital property and there is no presumption that they both contributed equally to the preservation.”

79. Husband’s conduct during this litigation, particularly his less than complete cooperation regarding discovery would allow me to infer dissipation. See Hovelson v. Hovelson, C6-99-1893 (Finance & Commerce 6/5/00), 2000 WL 687782 (Minn. App. 2000) wherein the trial court made a “reasonable” decision, per the Court of Appeals, that Husband had dissipated assets during the dissolution because “Husband continually refused to turn over the [requested] documents, and only turned over partial, inaccurate and disorganized records when the court ordered compliance with the discovery when the court ordered compliance with the discovery requests. See Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W..2d 434, 436-437 (Minn. 1990) (noting that failure to produce evidence permits inference that evidence, if produced, would have been unfavorable); Baker v. Citizens State Bank of St. Louis Park, 349 N.W. 2d 552, 558 (Minn. 1984) (the district court may draw inference from circumstantial evidence). The difficulty lies in translating the dissipation inference into a supportable number. Also, as explained above, wife failed to cooperate with discovery as well as by refusing to answer patently relevant inquiries.

80. Respondent argues in his post-trial motion for amended findings that Petitioner failed to carry her burden of proving a dissipation claim because she did not prove that the transfers to Ms. Gorman(or the rent relief) were done in anticipation of filing for divorce. (p.23, para. 22) Even if Respondent is correct in this regard, it does not detract from the fact that the marital estate was reduced in value equal to such transfers, credit card usage, and/or rent relief. It was consistent with my statutory discretion (and direction I might add) to consider such activity when fashioning a just and equitable award.

81. Respondent attempts to moderate the impact of his actions which decreased the marital estate by argument that he “gave his wife and daughter Celia more than $100,000 during the marriage over and above what was needed for household expense including money for Celia’s college tuition.” (p. 19, parag. 10) Respondent apparently does not understand, or refuses to accept, the reality that if this money came from employment during the marriage or from income earned on properties that he actively managed during the marriage, the money was marital property, not his property, and he was in no position to ‘give’ it to his wife: it was equally hers the moment he earned it. Money coming into Respondent’s pockets during the marriage is presumed to be marital. Minn. Stat. 518.003, subd. 3b. It was Respondent’s burden to overcome that presumption and he did not offer any evidence that the money came from pre-marital sources in existence before the parties married or from another post-wedding infusion of non-marital capital. Instead, he argues that, ‘It is also an error to assume that the money allegedly dissipated to Ms. Gorman came from marital funds.’ (p. 23, parag. 23) It was not my ‘assumption,’ it is a statutory presumption.

82. The record also reflects that Respondent made no seeming legitimate effort to recover the money loaned to Ms. Gorman and others. To put it bluntly - his actions did not pass the smell test. I understand philanthropy, charity, and a helping hand, but husband offered no credible evidence that explained such benevolence when, as a married man, he and his wife were experiencing an ever increasing debt load and he was liquidating assets left and right. The problem I am having here is that Petitioner did not offer credible evidence to support a specific number that I could insert in my marital asset division formula, Petitioner is also making inconsistent claims. On the one hand, she contents that Respondent dissipated marital assets by making these “loans”, but, on the other hand, wife treats these loans as legitimate assets in crafting her proposed property balance sheet. Respondent is also being inconsistent. He argues that there was no dissipation regarding the $86,000 that he identified as flowing to Ms. Gorman (p. 23, parag. 20), but ignores the fact that if these were legitimate loans and are awarded to Respondent in the Decree, he can use them to pay the debts assigned to him or fund the installment property award to Petitioner. His net worth necessarily will increase by an amount equal to the money loaned to Ms. Gorman and her associates.

83. Instead of adding back such expenditures/ loans to the marital balance sheet (for which I have not been provided a usable accounting), I am exercising my discretion to award wife a larger portion of the remaining marital property than I otherwise would have awarded, plus awarding her $50,000 to be paid by Respondent in installments. This number is justified from a- depreciation of the marital estate perspective independent of the dissipation claim. Petitioner’s dissipation claim, to the extent legitimate, only strengthens the manner in which I have exercised my discretion.

84. The $50,000 installment award to Petitioner is also justified as a section 518.58 subdivision 2 decision to award a percentage of Respondent’s non-marital property award to Petitioner, without considering the extent to which husband depreciated the marital estate and/or dissipated marital assets. Petitioner is entitled to such treatment because she needs it and because it is reasonable to find/conclude that the marital pie would have been significantly larger today sans the money frittered away by Respondent for non-marital purposes as discussed above. Awarding Petitioner this amount is also supportable based on the realization that husband chose to retain his inherited family home in Milford, Pennsylvania even though it did not produce positive cash flow, and spent other resources to keep the property afloat. The most-consistent source of such funds was the $9,000 plus yearly net income from the 9 unit apartment building. Although there is certainly a major non-marital component to this property, husband devoted considerable efforts to manage, maintain, and improve this property during the marriage such that a significant portion of the positive cash flow reasonably could be treated as a marital asset that was never used in a marital manner.

85. Petitioner seeks both need based and conduct based attorney’s fees. I will address her need based request first. It is clear that Petitioner, who is currently unemployed and dealing with recurrent cancer symptoms, does not have the ability to pay her attorney with her current income. She receives $280 to $300 per month in retirement from China. (Exhibit 118, #29)

86. It is equally clear that Respondent does not have the ability to contribute to Petitioner’s attorney’s fees using current income (especially considering the hardship sharing maintenance award). Although he enjoyed legal representation at the beginning of these proceedings, he was reduced to self-representation during the bulk of the litigation.

87. Both parties have little, if anything, in liquid assets. Their bank accounts are modest, Petitioner has a modest retirement account, and Respondent has sold most of his pre-marital securities. Knowing Respondent’s actual net worth is problematic. In a March 31, 201, application to proceed in forma pauperis he swore under oath that he had a net worth of $250,000 (Exhibit 28) while in an April 6, 2012, application to proceed in forma pauperis he swore under oath that he had a net worth of $255,000 (Exhibit 27). These numbers need to be compared, as a minimum, to the stipulation that his Pennsylvania property is unencumbered and is worth $280,000, not to mention his unencumbered Wisconsin real estate, the Wunderlix print, and the equity in some of his non-marital real estate on Glenwood. Despite the difficulty in fully understanding Respondent’s full net worth, there is no credible evidence that he enjoys copious liquid assets.

88. If Respondent were required to contribute to Petitioner’s attorney’s fees, he would need to sell non-marital assets to come up with the money. The bulk of those non-marital assets are real estate holdings in the depressed north side of Minneapolis. Wife has non-marital real estate in China, valued at approximately $200,000. (Ex. 118, #14) If non-marital property must be liquidated to pay counsel fees, wife is able to liquidate her own non-marital real estate to achieve that end.

89. I stepped in to preside over the parties’ dissolution trial because their assigned judicial officer was out on an extended medical leave. Because I had not presided over this case from the beginning, I did not have the opportunity to watch the case unfold and thus gradually develop an opinion regarding which party had been the most obstreperous and which party had been pursuing the most unreasonable agenda. However, I bring over eleven years of full-time Family Court experience to the table. Based on that cumulative experience, I came away from the trial with a very firm conviction that a number of positions advanced by Petitioner herein were about as weak and unjustified as I have encountered during my many years as a Family Court judge. In my opinion, her unjustified claims drove this litigation, blocked a reasonably prompt settlement, and unreasonably contributed to the cost and length of the proceeding.

90. For example, most of the real estate held in Respondent’s name was acquired prior to the marriage, but Petitioner contended that she acquired a marital interest in husband’s small apartment building and 4-plex on Glenwood Avenue in North Minneapolis, plus his parents’ former home in Milford, Pennsylvania. She argued that she acquired a marital interest in these properties because she spent a considerable amount of time and effort improving and maintaining them. Credible evidence adduced during the trial belied this claim and demonstrated that her efforts were nominal at best and vastly inflated in a self-serving manner for litigation purposes.

91. Petitioner also contended that the enhanced value of husband’s pre-marital securities portfolio became marital property because he “actively managed” his securities accounts to the point that any increase in value attributable to such efforts became marital. There was no credible evidence that Respondent actively managed his portfolio. Instead, credible evidence demonstrated that husband bought or sold sock on average once per year, with many of those transactions involving the liquidation of pre-marital securities in order to pay mounting debts.

92. One could spend a fortune of time reviewing each and every pleading and correspondence item herein and probably find that Respondent was dilatory on numerous occasions. That same exercise would likely reveal that Petitioner took positions, both procedurally and substantially, that also increased the length and cost of this litigation in small increments. For example, with counsel’s complicity, Petitioner objected on relevancy grounds to a number of Respondent’s interrogatories, or objected that the question was duplicative, when neither was the case - not even close. (See Ex. 118 numbers 3 and 10 for examples.) Such actions by both sides likely contributed to the length of this litigation, but such delays pale in comparison to the main litigation drivers that I explained above: Petitioner’s unreasonable and unjustified positions on big-ticket items that made settlement impossible and a trial inevitable.”

93. Before discussing the property division, it is important to revisit the key assets. The parties agree that the 9 unit apartment complex at 1708 Glenwood Avenue, Minneapolis, is worth $280,000. (Ex 300) Respondent owned this before the parties’ marriage and it is presently unencumbered. As I explained above, there was no credible evidence that Petitioner made a significant enough contribution to the management, maintenance, and improvement of the apartment building to warrant transforming the non-marital character of the property, let alone manufacturing the $100,000 marital component asserted by wife. The marital component is nominal at best. The parties stipulated that Respondent would receive the apartment complex. (Ex. 300)

94. The 4-plex at 17xx Glenwood was also acquired before the marriage and the parties have agreed that it should be awarded to Respondent in its entirety. (Ex. 300) He will be required to assume the debt against the property. It has been appraised at $160,000. (Ex. 20) Respondent attempted to opine that the 4-plex is worth just $103,000, but his opinion is based in large part on extrapolations from hearsay. Relaying on Respondent’s opinion is further problematic due to the fact that he was not forthcoming with the information sought by Petitioner during discovery, which was necessary for proper preparation of cross-examination. I will accept the appraised value. Petitioner takes the position that the entire net value of the 4-plex is marital, again based on vastly inflated claims of her efforts to manage, maintain, and improve the property. Any marital component is nominal.

95. The duplex located at 1715 Glenwood (and the adjacent property at 1719 Glenwood Ave.) which was purchased after the marriage, has no net value, although it has a stipulated market value of $110,000 (Ex. 300) and is encumbered by a $173,000 lien. (Id.) This property presents a debt division issue - not an asset division issue. Petitioner argued that the debt against the property includes pre-marital debt that was folded into a new loan, but credible evidence adduced at trial persuaded me that the property was debt free on the date of marriage. See Antone v. Antone, 645 N.W. 2d 96, 103 (Minn. 2002), “We hold as a matter of law that a portion of market-related appreciation during the marriage [where marital funds were used to reduce the encumbrance] is marital property.” Petitioner argued that Antone was at play in this case, but there was no credible evidence that marital funds were used to retire debts. There was credible evidence that non-marital assets (such as life insurance received by Respondent) were used to retire debts.

96. Even though I find that Petitioner failed to prove the extent to which the $173,000 encumbrance included pre-marital debt that was folded into the most recent loan, it is clear that husband favored his non-marital properties to the disservice on the parties’ one marital parcel by not spreading the lien among the multiple parcels. As explained above, significant amounts of cash had to be dumped into the Milford, Pennsylvania property every year. Husband’s pre-marital 4-plex also lost money more often than it made money and the sustaining cash flow likely came from the proceeds of the current $173,000 encumbrance against the duplex or prior loans that were rolled into the $173,000 jumbo debt that the parties face today. As I set forth above, I am exercising my discretion to craft an unequal division of the marital property and debts. Since total marital debt significantly exceeds the marital assets, I am exercising my discretion to achieve equity on the debt side and require husband to pay this debt and hold wife harmless.

97. Consistent with her claims regarding the Glenwood rental properties, Petitioner claims that her contributions to the duplex produced a marital component, but this time wife suggests a much more modest marital component ($30,000 versus $170,000 + for the other two). Even at wife’s more modest level, her claimed marital component remains vastly inflated. Once again, I find that the record only supports a nominal marital component at best.

98. Petitioner contends that the parties own marital securities valued in excess of $70,000. The record does not support such a rosy picture. The parties acquired two different positions in BMC, but that company went belly up. (Ex. 316) Their marital shares in Northwest Airlines were sold in 2007 at a loss. Their Metris interest was sold, yielding a significant gain, but the proceeds were not traced by either party and their Xcel Energy stock was similarly sold, as was what little was left of their Enron stock. Respondent had a number of other equity positions that were acquired before the marriage, most of which have been sold. No sale document was introduced regarding the parties’ Qwest stock and I can only assume that they still hold the position (now Century Link), but its value at acquisition was just $1,200. Bottom line, the parties have little if any marital securities. I am not ignoring Baker v. Baker, 753 N.W. 2d 644 (Minn. 2000) or Prahl v. Prahl, 627 N.W. 2d 698 (Minn. app, 2001). There just isn’t much , if anything left in the portfolio, against which to apply such cases.

99. Petitioner contends that Respondent has a $100,000 + AXA Life Insurance account and that $15,000 in interest on that account is marital. The evidence does not support her claim. Credible evidence reflects that husband received the proceeds from a large life insurance policy insuring his now deceased brother and deposited the funds in an AXA Equitable account that held $114,663.01 as of February 26, 2010. (Exhibit 300) By May 11, 2011, 2011, it was down to $1,337.01. Husband credibly testified that the insurance proceeds were used to retired a number of pre-existing loans and cover other “shortages”. These “shortages” are consistent with the ongoing negative cash flow generated by the Milford, Pennsylvania, and 4-plex properties.

100. Other than a few minor property items discussed in the numbered Findings of Fact, I have completed my analysis of the “major” assets and have found little in the way of major marital assets, but quite a bit in major marital debt, most of which I am assigning to husband along with the real estate itself.

101. The only possible significant marital assets would be the loans to Sheila Gorman and associates. I gave Petitioner the opportunity to have those loans awarded to her and undertake collection efforts. She declined.

102. In order to avoid unfair hardship to one spouse, Minnesota Statutes section 518.58, subdivision 2, allows the trial court to award up to 50% of the non-marital property owned by the other spouse. Numerous factors must be considered before doing so. First, the trial court must consider the length of the marriage, plus any prior marriage by either party. Although the parties’ marriage was not an exceedingly long one, just about eleven years, it came at a time in their lives when the prospects of a subsequent marriage seem dim. As explained above, wife is in her 50’s, husband is over 70. Neither party testified regarding prior marriages, if any. Next, the trial court must consider the age, health, station, occupation, amount and sources of income, vocational skills, and employability of each party. Wife is in poor health and suffers from recurrent cancer among other health problems; is Chinese with little command of the English language; has a limited work history and the record does not reflect job skills that would warrant employment at a significant salary should her health suddenly improve; and has only a modest retirement income from China. In short, her prospects of an improved economic status are extremely limited. That reality, coupled with husband’s inability to pay her significant maintenance, portend a near destitute existence, unable to meet her basic needs on her own, with no legitimate prospects of acquiring additional capital assets.

103. Respondent is 71 and not a likely candidate for significant future employment income. The record reflects that the parties lived a frugal existence, with Respondent not generating considerable income at his pre-retirement, accounting related job. He appeared in good health for his age and no evidence was introduced to the contrary. The Glenwood Avenue properties discussed above were acquired by husband based on his perceived need for retirement funds. The duplex has no net value, but the 9 unit apartment complex has significant value, as does the 4-plex. The family home and property that husband inherited in Pennsylvania is worth $280,000 per the parties’ stipulation in Exhibit 300 (and Respondent has additional adjacent unimproved land that is not included in the $280,000 total.) He also owns non-marital property in Port Wing, Wisconsin. The only value figure for the Wisconsin property is the $20,000 amount set forth in Exhibit 302. The value of Respondent’s over-all estate is already being reduced by $63,000 because I am exercising my discretion to assign to him a larger share of the marital debt, including the $173,000 mortgage against the Glenwood Avenue duplex valued at $110,000.

104. The record does not contain strong support for a finding that Respondent has substantial, liquid non-marital assets. Exhibit 302 suggests that his stocks were worth $77,717.53 in 2011, but neither party introduced evidence of their value at the time of trial. Any decision to award Petitioner a percentage of his non-marital estate necessarily must contemplate that he will be unable to pay such funds immediately when judgment is entered unless the stock total on Exhibit 302 is representative of the portfolio. In order to satisfy such an award, Respondent likely will need to sell a portion of his non-marital real estate or borrow money secured by that real estate. The Port Wing, Wisconsin property ($20,000), the Pennsylvania property ($280,000), and the 1708 Glenwood Avenue ($280,000), all unencumbered, have $580,000 in combined value. 17xx Glenwood Avenue has a net value of $75,982.50 ($160,000 - $84,017.50 = $75,982.50). Wife’s China real estate is worth approximately $200,000. The difference between the two is approximately $455,983. I would not find it fair or reasonable, nor would I exercise my discretion, to award wife anywhere close to 50% of this difference. Husband is 71, with little or no chance to build up new capital, and I am already causing him to share the hardship incident to the dissolution by ordering him to pay more maintenance than he can afford and still meet his own needs, plus a disproportionately large percentage of the marital debt. Other than the Pennsylvania and Wisconsin properties, his estate represents a lifetime of effort and it would not be fair or reasonable to divest husband of close to 50% of such efforts based on a relatively short marriage to wife.

105. Given the length of the marriage, the parties’ financial circumstances as set forth above, the unequal debt division, the hardship-sharing maintenance award, and the merits of wife’s claim that husband either dissipated marital assets or took actions that depreciated the marital estate, I am exercising my discretion to require husband to pay wife $50,000 in installments. (Petitioner elected not to be awarded the money owed by Ms. Gorman, Alan Morrison, and Lena Morrison.)

106. Since Petitioner and her daughter were on the title to the Chinese property already sold by wife, and Respondent claims no marital interests in the proceeds, he should be held harmless from any tax liability associated with the sale.

 

CONCLUSIONS OF LAW

I. DISSOLUTION OF MARRIAGE. The marriage existing between the parties is hereby dissolved.

II. SPOUSAL MAINTENANCE

Commencing August 1, 2012, as and for permanent spousal maintenance, Respondent shall pay to Petitioner the sum of $500.00 per month in two equal installments on the first and fifteen days of each month, until the earlier of the following events:

(a) Death of Petitioner

(b) Death of Respondent

(c) Remarriage of Petitioner

(d) Further order of the Court

It is intended that this maintenance payable to Petitioner shall be included in Petitioner’s
gross income, pursuant to Section 71 of the Internal Revenue Code, and shall be
deductible by Respondent, pursuant to Section 215 of the Internal Revenue Code. The
Court retains jurisdiction to enforce Respondent’s obligation to pay maintenance to
Petitioner.

III. MEDICAL, HOSPITALIZATION AND DENTAL INSURANCE. Neither party is obligated to provide medical, hospital or dental insurance for the other.

IV. MARITAL AND NONMARITAL PROPERTY AWARDED TO PETITIONER:

“1. The Beijing, China, condominium at Hualong Residence Community, Tongzhou
District, Building 48, Apt. 552.

2. All bank accounts, investment accounts, and retirement accounts in her name, including but not limited to her Wells Fargo and Chinese Bank Accounts;

3. The parties joint US Bank accounts ending in numbers 3536 and 2032 at the
values set forth above in Finding 16.

4. All personal items in her possession;

5. Her 401k;

6. The parties Qwest/Century Link stock;

7. $50,000 which shall be paid by Respondent in successive equal monthly installments
of $10,000 each (with no interest thereon) commencing October 1, 2012.

V. MARITAL AND NONMARITAL PROPERTY AWARDED TO RESPONDENT:

1. His non-marital Wunderlix Celluloid Prints;

2. The non-marital Port Wing, WI, improvements and land legally described as follows:

Government Lot 6, Section 29, Township 51 North, Range 6 West.

3. The Mercury Tracer;

4. All bank accounts, investment accounts, and retirement accounts in his name, including but not limited to his Wells Fargo checking, US Bank savings account ending in 7969, US Bank checking account ending in 5106, Wells Fargo stock referenced by account ending in 6846, ACA Equitable account ending in 9019, his US Bank checking account ending in number 3556, his US Bank account ending in number 2032, and any other accounts in his name only.

5. His non-marital four-plex at 17xx Glenwood Avenue, Minneapolis, MN 55405, Hennepin County, Minnesota, legally described as follows:

Lot 4 and 5, Block 16, Maben, White and Le Bron’s addition to Minneapolis, Minnesota;

6. His non-marital nine-unit apartment building at 1708 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

Block 16, Lots 6 and 7, Maben, White Lebron’s Addition to Minneapolis;

7. The improvements and land located at 100 Sawmill Avenue, Milford, Pennsylvania.

8. The marital property at 1715 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally described as follows:

The front of Northerly 145 feet of Lot 16, Auditor’s Subdivision No. 26, Hennepin County, MN including any part or portion of any street or alley adjacent to said premises vacated to be vacated;

9. 1719 Glenwood Avenue, Minneapolis, Hennepin County, State of Minnesota, legally
described as follows:

The North 138 feet of the East 42 ½ feed of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, except the East 2.0 thereof; and

The East 2.0 feet of the North 138 feet of the East 42.5 feet of that part of Lot 15 lying North of 3rd Avenue North, Auditor’s subdivision No. 26, Hennepin County, Minnesota.

10. The following stocks/ securities: Gannett, Wells Fargo/Wachovia, Arbitron, US Bank, Target, and Germany Fund/ Euro Equity Fund;

The following life insurance policy: AXA Life insurance account.

VI. DEBTS ASSIGNED TO RESPONDENT

Respondent shall pay and hold Petitioner harmless from: all encumbrances against the real estate awarded to him above; the Advanta debt; the debt on the Menard’s credit card account # ending in in 5093; the Citybank business card, account # ending in 5466; the debt to First Bank of Omaha; $3,000 of Petitioner’s existing medical Bills, and the unsecured line of credit at US Bank with a balance of $39,628.01.

VII. DEBTS ASSIGNED TO PETITIONER

Petitioner shall pay and hold Respondent harmless from all of her medical Bills other than $3,000 of the existing medical Bills, Citi credit line ending in 2637, the unsecured line of credit at US Bank with a balance of $5,976.67, and any tax liability incident to the sale of the condominium in China titled in her name and the name of her daughter.

VIII. ATTORNEYS’ FEES Each party is responsible for their own individual attorneys’ and experts fees and costs incurred in this proceeding.

IX. SERVICE OF A COPY OF JUDGMENT AND DECREE. Service of a copy of this Judgment and Decree may be made on the attorney for the other party, by United States mail and the same shall be in lieu of personal service upon a party.

X. DISCHARGE OF COUNSEL. Sixty-one (61) days after filing of this Judgment and Decree, all attorneys of record will be automatically discharged without further notice.

XI. DOCUMENTS OF CONVEYANCE. Each of the parties shall, upon demand, now or in the future, execute, acknowledge and/or deliver any and all documents necessary to carry out the terms and conditions of this agreement and Judgement and Decree. If a party is unable, unavailable or refuses to do so, a certified copy of this Judgment and Decree of dissolution may be recorded and/or utilized with the same force and effect as if a deed, conveyance, transfer, assignment or other document had been personally executed, acknowledged and delivered to that party. If a party refuses to cooperate, the other party shall be entitled to collect all reasonable attorney’s fees and other costs in connection with enforcement of this agreement and Judgment and Decree due to the failure of a party.

XII. APPENDIX A The attached Appendix A is incorporated and made a part of this Judgment and Decree.

XIII. ENTRY OF JUDGMENT AND DECREE. Entry of Judgment shall not be stayed pursuant to Rule 125 of General Rules of Practice for District Courts, but shall be entered immediately by the court administrator.

ORDER FOR JUDGMENT

NOTWITHSTANDING GEN. R. PRAC. 125,
LET JUDGMENT BE ENTERED IMMEDIATELY

BY THE COURT:

Dated: ______, 2012 James T. Swenson 12/28/12 _____________________________
James T. Swenson
Judge of District Court

I hereby certify that the above Conclusions of Law constitute the Judgment and Decree of the Court.

IT IS HEREBY ADJUDGED THAT JUDGMENT
IS ENTERED AS STATED ABOVE.


ATTEST: Family Court Administrator

Dated: ______________ , 2012 By: __________________________
Deputy

 

 

McGaughey, File No. 27 FA 11-2008

MEMORANDUM

Procedural background

This case was assigned to Referee Susan Cochrane, but she was out on an extended medical leave when the case came on for trial and I agreed to step in and handle the trial. (Footnote 4 Referee Cochrane recently announced that she will not be returning to the court and is resigning her position.) Referee Cochrane’s October 18, 2011, Trial Order set the case for a two-day trial. The Presiding Judge of Family Court, Jeannice Reding, met with the parties and attempted to settle the case. She helped the parties negotiate a partial settlement (Exhibit 300) and then reminded both parties that the trial would be limited to two days. This information was imparted to me before I agreed to pitch in and handle the trial in Referee Cochrane’s absence. As Chief Judge, I needed to know how much trial time would be expected of me in order to determine whether I could accept the assignment and still meet my obligations as Chief Judge.

My file review revealed that Referee Cochrane had imposed certain obligations on the parties that were designed to expedite the trial. Her decision to limit the trial to two days appears to have been based on the assumption that the parties would comply with those obligations. Neither did. Husband failed to pre-mark his exhibits starting with the number 101. Instead, he pre-marked his exhibits with the number 1 - using the numbers assigned to wife. He also failed to provide the court with an exhibit binder, failed to provide his proposed exhibits to wife in a timely manner, and failed to follow the required protocol for garnering exhibit admissibility stipulations. These shortcomings meant that a significant amount of trial time had to be used to re-mark all of his proposed exhibits, followed by arguments regarding admissibility Husband’s failure to provide the court with an exhibit index also meant that a significant amount of time was wasted frequently shuffling through loose piles of exhibits whenever particular exhibits became germane to the inquiry. I could have exercised my discretion to follow Referee Cochrane’s order to the letter and excluded husband’s exhibits due to his failure to comply with the trial order, but I declined to do so. Instead, I afforded self-represented husband a considerable amount of accommodation and helped him with his exhibit introductions and lines of inquiry when he struggled. (Footnote 5: [A] district court ‘has a judicial duty to ensure that a case is presented based on all applicable law’ and must be ‘especially aware’ of this duty when, as here, a party is pro se. Christenson v. Argonaut Ins. Cos., 380 N.W. 2d. 515, 519 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986)” Mignone v. Bouta, 2005 WL 3371082 (Minn. App. 2005). “A trial court has a duty to ensure fairness to a pro se litigant by allowing reasonable accommodations so long as there is no prejudice to the adverse party.” Kasson State Bank v. Haugen, 410 N.W. 2d 392, 395 (Minn. App. 1987).)

Wife also also failed to exchange her exhibits and file them with the court in a timely fashion. I accommodated her as well by not excluding her untimely exhibits. I also helped wife with the presentation a few times when neither wife nor the Mandarin interpreter understood her attorney’s questions. I might add that even in English I had trouble understanding some of counsel’s questions. In order to move the trial along I intervened on occasion and asked a question or two in a manner intended to aid the interpreter’s understanding.

In addition to the foregoing efforts, the record will reflect that on numerous occasions I advised husband that his cross examination was taking way too long and yielding little of substance. I urged him to reserve more of his allotted time for his own testimony. He ignored my attempts to help.

Wife also contributed to the difficult trial. On a number of occasions wife attempted to interject fault into the proceedings, charging husband with having an affair and fathering a child with another woman. This improper conduct started with her discovery responses. For example, in response to ‘request” number 8 (e.g. interrogatory #8), wife stated, “He (husband) received two large life insurance policies in 2010, but gave it all to Sheila Gorman, Alan Morrison, and Lena Morrison after William’s (husband’s) numerous affairs.” (Ex. 118) Wife’s response to number 13 suggested that husband “spent all of his money on mistress Sheila Gorman.” (Id.) Instead of reigning in her client, wife’s counsel signed the discovery responses that improperly interjected fault. When wife attempted to replicate her discovery responses and interject fault at trial, I made it clear that I would not entertain such testimony. Wife was not deterred and adduced Respondent’s alleged extra-marital affairs on more than one occasion. I mention this not just because the topic was improper, but because husband was unrepresented, obviously upset with the topic, became distracted, and it veered him off task. As far as I could glean, counsel did nothing to restrain her client from proceeding ahead in this manner. Wife also repeatedly failed to confine her answers to the matters raised by the questions. Time and time again she went far beyond the question, vented her anger at husband, and otherwise provided non-responsible information that riled husband and shifted his focus off task.

I made all these observations simply to support my view that the two days set aside for trial by Referee Cochrane, and reaffirmed by Presiding Judge Reding, were not overly optimistic. The case easily could have been tried in less than two days had the parties complied with the trial order and behaved in manners other than I described above.

SWJ


XI. ON TO THE MINNESOTA COURT OF APPEALS

48. Scorched by a fire, the judge’s accusations regarding “veracity”, and his denial of IFP

Again, I was in bed recovering from the flu when Judge Swenson’s decision arrived in the mail on January 5, 2013. Three days later, on January 8th, there was a fire in the downstairs unit of my house where Sheila Gorman was staying. Fire Department officials determined that the fire started with a faulty charger attached to a power screw driver which was sitting on a sofa in the living room. The sofa, next to an interior wall, caught on fire. Sheila was then in the kitchen. She rushed to the living room, pulled the burning sofa into the middle of the room, and tried to put out the fire with a fire extinguisher. But she did not know how to use it. When she called 911, they put her on hold for several minutes.

Sheila then rushed upstairs to tell me about the fire. I could see smoke coming up through the wall. I was able to report the fire to a 911 operator. With my dog on a leash, I then rushed outside with a fire extinguisher. I opened the front door and went in but the smoke was too thick for me to breathe and, without light, I could not see anything. So I went outside again and waited for the Fire Department people to arrive. They put out the fire in short order. Then Red Cross representatives arrived. They put up Sheila and me in a motel for three nights and gave us a food allowance. I spoke jokingly of being a “Red Cross refugee”.

Returning to the house, I scrubbed the walls of the upstairs unit and sealed holes in the plaster to keep the downstairs smoke out. Eventually things returned to normal. The bedroom which Lian had used across the hall was relatively untouched, so we slept there for several nights. I hired a public adjuster to deal with the insurance companies and waited. Now I was free to turn my attention to the judge’s response to my post-trial motions.

My immediate reaction to the judge’s order was one of dismay. I was struck by the judge’s remark in the opening paragraphs of his memorandum that he had “serious concerns regarding Respondent’s veracity”. In more judicious language, this statement repeated his accusation made at the October 9th hearing that I was a “liar”.

How had I lied? For one thing, he objected to my argument in the post-trial motions that the $114,000 insurance settlement in February 2010 might partly have covered the monies loaned to Sheila Gorman so that those funds did not necessarily come from marital sources. Judge Swenson referred to my alleged “contention that he spent all of the insurance policy proceeds on pre-existing marital debts.” I was quite sure I had made no such statement. Certainly I had not tied the insurance settlement to payment of “pre-existing marital debts.” Instead, the money from this settlement had been used, first, to pay down the two US Bank lines of credit to zero and then, after February, balances in those credit accounts from expenditures subsequently made. If some of those expenditures were loans to Sheila Gorman, then my argument that premarital funds had subsidized the loans would be correct.

[Exhibit 500, a check register showing disbursements from the AXA Equitable account, showed that the bulk of the money was used to pay off balances owing on credit line accounts with US Bank and other credit accounts in February 2010; and the rest of it was transferred to my checking account in the following year. By no means does this indicate that “ he spent all of the insurance policy proceeds on pre-existing marital debts.” No, the money was spent on whatever debts I had at the time, marital or otherwise. The judge was here stretching the truth. He quoted from my letter to referee Cochrane in October 2011: “ A year and a half ago, I used the proceeds of a life-insurance policy worth $113,000 to pay off debt owed at that time.” Note that I did not say that I paid off “all the debt owed at this time”, only an unspecified amount of debt. In fact, I also wrote, “ I have now run through the entire sum of money”, implying that there were further withdrawals after the initial period. Conveniently, the judge neglected to quote this. But he accused me of lying.]

In truth, there was little or no discussion at trial of how the insurance funds were used since I could never have imagined that the judge would have used the allegation that marital funds were dissipated to justify invading my non-marital property while also awarding me the bulk of marital debt. It was unreasonable to suggest that I should have preemptively addressed this matter.

The second way I had “veracity” problems, according to the judge, was that I complained that I had been shortchanged during the trial with respect to the time allowed for my testimony. He stated that I had rested my case when, in the mid afternoon, I no longer had control of my exhibits (strewn by Ms. Wing Sun across the table) and the judge was badgering me about having made too long a statement regarding attorneys fees and pressuring me to finish.

[The transcript record starting on page 400 shows how I “rested” my case according to the judge:

The Court: Okay. Anything else?

Mr. McGaughey: Are we going to do closing statements or is this it or what?

The Court: Well, you just did your closing statement on attorney’s fees. Do you have any more testimony?

Mr. McGaughey: I would - can I sum up, or I mean how much time do we have?

The Court: Do you have any more testimony?

Mr. McGaughey: I can’t think of any right now.

The Court: All right. We’re done with the testimony then. All right. I’ll give you each ten minutes --

Ms.Ming: Your honor, I wasn’t given an opportunity to cross the Respondent.

The Court: Oh, come on. Go ahead.”]

Ms. (Wong) Sun, the other party’s attorney, then spends the next 38 pages of transcript space (maybe 30 minutes of time) in her cross-examination. Judge Swenson rebukes me (on page 434 of the transcript) when I ask: “Could I have a chance to do some talking here? This has gone on and on and on.” The judge responds angrily: “You’ve totally dominated (time) today. You totally dominated yesterday afternoon when I tried to get you to move ahead and warned you that you were using up your time. That’s what happens when you don’t use your time productively. And she has the right to cross-examine you so you will answer her questions.” My final “ten minutes” of testimony is reported in six pages of transcript.

When I had asked the judge well into the morning “Will I get enough time to present my arguments?”, Judge Swenson replied: “You’ll get the time that Judge Reding said. You would have more than enough time if you weren’t laboring so hard on cross-examination and not getting anything out of it. I’ve warned you that multiple times. That counts against your time, OKAY?” (transcript, p. 278) The cross-examination of my wife, which the judge said had been excessive, started on page 125 of the first day’s transcript and continued for 28 pages - ten pages less than what the judge allowed Ms. Wing Sun here for cross-examination.

The judge now claimed, however, that my testimony had consumed “at least 50% of the trial time”. He also claimed to have kept track of this. I could not argue with that assertion since I did not know the judge’s definition of which time was considered mine. I did not ever see him look at his watch. All I know is that my testimony started around 11 a.m. on the second day of a two-day trial and ended in the mid afternoon of the same day, allowing more than an hour off for lunch.

Yes, the judge did give me something he called “ten minutes” to make arguments. However, he would not allow time for closing statements. My case depended on tying my arguments together. When I attempted to do that, the judge indeed cut me off and ended the trial. I was sure that the transcript would show that this description of events was not “pure fabrication”, as the judge alleged, but verifiable fact.

[ Here is what the transcript says, on page 445:

“Mr. McGaughey ... “I would also refer you to the US Bank statement and the other exhibits that show I’m practically out of credit and I’ve got a huge (debt) obligation. Some of that indebtedness should be shared. It was not all dissipated assets. I took it off the calculation, and I think we’ve got the, you know, non-dissipated assets. If you split it 50-50, it’s something like 130 (thousand dollars) apiece. I don’t think it’s --- I tried to enter something into evidence about ---

The Court: “We’re done, we’re done. You just refuse to do just facts. We’re not doing closing statements. We don’t have the time, okay?”]

Yet, Judge Swenson wrote in the memorandum accompanying his decision regarding the post-trial motions: “ It is pure fabrication to argue that I cut him off while he was attempting to offer testimony.” You be the judge who was telling the truth. Judge Swenson cut me off mid-sentence and ended the trial. Anyone who reads the transcript can see that.]

In his memorandum, Judge Swenson criticized the other side for falsely claiming a huge marital component in my non-marital real estate on the basis of Lian's having done maintenance work. He wrote: “I bring over eleven years of full-time Family Court experience to the table. Based on that cumulative experience, I came away from the trial with a very firm conviction that a number of positions advanced by Petitioner (Lian ) herein were about as weak and unjustified as I have encountered during my many years as a Family Court judge. In my opinion, her unjustified claims drove this litigation, blocked a reasonably prompt settlement, and unreasonably contributed to the cost and length of the proceeding.” However, he did not accuse her of lying as he did me. There was a disconnect between this set of factual observations and his conclusions of law which leaned heavily in Lian's favor in all three areas of property award.

What also struck me was that, while Judge Swenson was besmirching my character in an apparent attempt to poison the record sent to the Court of Appeals, he was also suggesting that he had tried his best to do me favors during the trial. Specifically, he had advised me that I was spending too much time cross-examining my wife and not enough time offering my own testimony. I, however, had rejected his good advice in continuing to ask questions in an attempt to discredit my wife’s testimony that she should receive much of my pre-marital real estate on the basis of having done work. Therefore, according to the judge, he was the “good guy”, exuding compassion, while I was an ingrate. In view of his orders that were overwhelmingly unfavorable towards me, this struck me as the posture of a sadist or, perhaps, someone with the duplicitous political skills to become chief judge of Hennepin County.

Personal observations aside, I noticed that the judge had not responded to my post-trial petition for a new trial and, therefore, he made no response to any of my arguments casting doubt on his own and his law clerk’s questionable conduct. I had to decide if this would be an issue in my appeal to the Court of Appeals. I decided to let this omission slide. The purpose of my appeal was not to chastise the court but to get a better property settlement. In truth, I did not want to retry the case.

With respect to the property settlement, Judge Swenson had made no major changes from what had been ordered on July 20, 2012. There was a minor concession in the division of marital property. The judge now ordered Lian to pay the smaller of the two US Bank lines of credit in the amount of $5,976.67. That left $323,755.48, or 98.2 percent of the total debt, as my responsibility. Also, the judge ordered my former wife to assume responsibility for the unpaid taxes on her sale of the Beijing condominium in 2010. This was a real benefit. It made up for the fact that the law clerk had gotten Judge Reding to remove the requirement from our agreement on May 1st. On the other hand, the judge’s new order kept me permanently obligated to pay $500 in monthly alimony and also to pay Lian $50,000 in cash which I did not have.

I also did not know the status of my request that the order to pay my wife $50,000 from non-marital real estate might be stayed by giving her a conditional mortgage on the apartment building at 1708 Glenwood Avenue. Azure Schermerhorn-Snyder, the judge’s clerk, had said that Judge Swenson would address this question in his written decision. I could find no reference to it in his order dated December 28, 2012. When I called Ms. Turner to ask the status of my request, she sent a letter to the effect that the judge had said the proper way to handle this was to request permission to file a motion for reconsideration. I did write such a letter. My request was eventually denied.

Judge Swenson was confused about a number of things. At times, he seemed to think that the duplex at 1715 Glenwood Avenue was non-marital. In paragraph 97, he states: “ Petitioner claims that her contributions to the duplex (at 1715 Glenwood) produced a marital component, but this time wife suggests a much more modest marital component ($30,000 versus $170,000 + for the other two). Even at wife’s more modest level, her claimed marital component remains vastly inflated.” Actually, the duplex was 100% marital. He also claimed in paragraph 70: “Because the 17xx Glenwood property is worth $160,000 and will be retained by Respondent, requiring him to service the debt on this property still represents a net gain (e.g. nearly $80,000 in positive net worth).” This was forgetting that he was mixing a non-marital asset (which I already owned) with a marital debt that I was acquiring. He thought we still owned the Qwest stock although I pointed out in the record that it had been sold.

It was clear that I had to take this case to the Minnesota Court of Appeals. The first step, I thought, would be to order a transcript of the two-day trial. The cost would be $3,100. I still had pauper status but it did not extend to ordering transcripts. I had previously inquired about this back in July and was turned down because the judge needed to see the Notice of Appeal to show it would be used for a non-frivolous appeal to the Court of Appeals. I filled out an IFP (in forma pauperis) application in the lobby of the Family Justice Center asking for the extension. Judge Swenson, the trial judge, needed to sign it to indicate approval.

This time the judge denied my application because he thought I did not qualify for pauper status. I owned too much nonmarital property.Azure Schermerhorn-Snyder told me that I could ask people at the self-help desk downstairs to help draft an appeal of the judge’s decision citing reasons why the decision should be reconsidered. I did this and was again rebuffed, for the same reasons as before.

 

49. I examine case law in preparation for an appeal

Although it would have been difficult for me then to come up with the $3,100 for the transcript, I decided to file the appeal. The filing fee would be $550. An additional $500 had to be deposited with the trial court as a bond. Presumably this money might to used to reimburse the other party if the appeals court found my case to be frivolous. My main concern, however, was to comply with the requirements of appealing cases to the Court of Appeals, which was said to be a stickler for proper form. This court could toss out my appeal if I made the slightest error.

Fortunately, my friend Bob Carney had already filed such a case when he appealed a St. Paul judge’s adverse decision to the Court of Appeals in July 2010. This was a month after he and I had filed for Governor and Lieutenant Governor respectively in the Republican primary. (We finished a distant second among four candidates.) Carney had filed suit against the Pawlenty administration for unallotting money appropriated for the Political Contribution refund. The trial judge, Kathleen Gearin, had ruled against Carney. Carney loaned me a copy of the “Appellant’s Reply Brief” bound with a gray cover and of the “Respondent’s Brief and Addendum” bound with a red cover. (The color of the brief cover is one of those requirements that courts take seriously.) The respondent in this case was the Minnesota Attorney General.

I could tell by looking at these documents that I was dealing with an entirely different set of concerns than those in preparing my case for trial. I was no longer dealing with issues raised in the divorce. The Court of Appeals would consider only arguments and evidence that were included in the trial record. Its task was to decide if the judge had made errors of law or misapplied evidence that had been produced at trial. Also, this court was much more concerned with legal precedent. Besides reviewing arguments related to the divorce, I needed to lace my brief with citations to cases that would set favorable precedents for what I wanted the court to decide.

I sat down with Bob Carney for an hour or so at Curran’s restaurant in south Minneapolis to discuss the case. He pressed upon me that my chances for mounting a successful appeal were slim. Appeals courts typically give the trial-court judge broad discretion in interpreting evidence submitted at trial and in reaching conclusions of law. Only about ten percent of the cases succeed in overturning a trial court’s decisions. As a self-represented person, my chances were even less. Furthermore, the trial-court judge, Swenson, had been the chief judge of Hennepin County at the time of the trial. (He was replaced in that position about a month later.) Politically, it would be difficult for the appeals court to rule against this man and in my favor. A likely outcome might be that the court would simply affirm the lower-court order without giving reasons.

Carney urged me to try to negotiate with the former wife to make the judge’s order more bearable. For instance, if I could not afford to pay her $50,000 immediately in cash, she might be willing to accept a mortgage on my apartment building with payments over a period of time. To succeed in the appeal, Carney thought I needed to find evidence of “reversible error.” I needed evidence that Judge Swenson had “abused his discretion” in certain rulings, and I needed to find case law where the court had overturned a trial-court’s order for such reasons. Also of interest, the judge’s order provided automatic dismissal of attorneys after 60 days. After this period had passed, Lian would either have to rehire her attorney or drop the case.

My weak point was the lack of case law to support my arguments. Therefore, between the middle of January and the middle of February, 2013, I visited the law library at the Hennepin County Government Center in downtown Minneapolis at least five times. The first time I arranged to use the library computer to search for cases. When I found relevant passages, I would write them down. However, the law library limits computer use to one hour per visit. Soon my time was up. I then adopted another strategy to gain the information.

The law library has three photocopying machines which charge a modest ten cents per page. Using the reduction feature, a person can copy two pages at a time, reducing the cost to five cents per page. All cases taken to the Minnesota Court of Appeals appear in bound volumes found on book shelves in the law library. The cases themselves are numbered in a way that identifies the number of the volume and the number of the page within the volume where the court’s decision begins. For example, the citation Justis v. Justis, 384 N.W.2d 885 (Minn. App. 1986) means that the divorce of Mr. and Mrs. Justis was decided by the Minnesota Court of Appeals. This case is reported in volume 384 of the collected court decisions, starting on page 885.

I started with the citations which the judge gave in his ruling and gradually found other cases dealing with one or another issue in my divorce. The three areas of interest were: (a) division of marital property, (b) award of spousal maintenance, and (c) invasion of non-marital property. Each court decision would reference certain cases in areas of similar interest. The law library also had a reference manual titled “Minnesota Family Law Practice Manual” that dealt with issues in a more systematic way. It also offered citations to cases in each area.

I was surprised to learn that the case pertaining to my first divorce was mentioned in a footnote under the category Division of Marital Property. Footnote 1 read: MINN.STAT. § 518.18, subd. 1. See McGaughey v. McGaughey, 363 N.W.2d 881 (Minn. Ct. App. 1985) This was the case settling the divorce from my first wife. The Minnesota court of appeals could not determine whether trial court’s distribution was just and equitable so the case was remanded to the trial-court judge for further findings. I remember it well.

In all I photocopied pages for sixty-five different cases during five visits to the law library. The librarians were helpful and the library itself, being on the twenty-fourth floor of the Government Center, offered a spectacular view of Minneapolis looking north toward the Mississippi river. I spent less than $25 on the photocopying. Then, I was able to review the cases at home in a leisurely fashion, marking up relevant passages and making notes. The court decisions were written in a way that made it easy to find issues of interest. First, there was a summary of the case. Then there was a statement of issues, facts, analysis, and finally the decision.

 

50. My wife has a new attorney

While I was engaged in this work, a letter arrived from a certain Caryn D. Ye , Attorney at Law, in Roseville, Minnesota. The letter, dated February 5, 2013, read:

“Dear Mr. McGaughey:

Please be advised that I now represent your ex-wife Lian in the above-referenced matter. Please direct all future communications and service of documents to my office.

As you know, the Court ruled on your post-trial motions on December 28, 2012. Enclosed and served upon you please find the Notice of Filing of the Court’s order on your post-trial motions as well as an amended judgment and decree.

As you know, the judgment and decree in this matter orders you to pay spousal maintenance in the amount of $500 per month. I have been advised by Lian that she did not receive the first installment of the February payment. I hope this was an oversight on your part and that you will remit the entire $500 by the fifteenth of this month pursuant to the Court’s order. Please let me know if you disagree with our understanding.

With regard to the award of the Qwest/Century Link stock to Lian , please provide me with documentation concerning this stock. At a minimum, please provide the contact information of the brokerage firm or administrator handling this account and a current statement showing the value of this account.

With regard to the award of $50,000 to Lian , it appears you have not made any of the five installment payments ordered by the Court, with the last installment due on February 1, 2013. You are also ordered to pay $3,000 of Lian's existing medical Bills. Please contact me to make payment arrangements for these amounts.

If I do not receive a response from you by February 15, 2013, I will assume you do not intend to make any of the payments awarded to Lian and will move to execute and enforce the judgments entered against you. Please bear in mind that the Court allows the enforcing party to collect attorney’s fees and costs related to the enforcement of the judgment and decree from the defaulting party.

If you wish to communicate by email, please email me at lynda@wonglawfirm.com. Thank you for your attention to this matter.

Sincerely,

Caryn D. Ye ”

On another sheet titled NOTICE OF FILING, I received this message:

“To: William Howard Taft McGaughey 17xx Glenwood Ave. Minneapolis, MN 55405

PLEASE TAKE NOTICE that an Order; and Amended Findings, Conclusions of Law, Order for Judgment and Judgment and Decree were entered on December 28, 2012, in the above-captioned matter.”

The allegation that Lian had not received the $250 due on the first of each month was of little concern. Those payments were made automatically from my account at US Bank. The bank sent checks in the mail. Evidently, this month’s check, while issued, had not yet arrived. The matter of the $50,000 to be paid in a lump sum was of more serious concern.

I responded to Ms. Ye in a letter dated February 6, 2013. It read:

“Dear Ms. Ye:

I have received your letter of February 5, 2013, informing me that you will be representing my former wife, Lian , in the divorce proceedings.

I am aware that the court has ordered me to pay Lian $500.00 per month in spousal maintenance in two payments of $250.00 each. I have arranged for those amounts to be paid automatically through US Bank. The first payment is set for the first of the month. It takes several days for a check sent from Minnesota to reach northern Virginia. Please let me know if Lian has not received her check in several days.

With respect to the Qwest stock, the 1,000 shares owned during the marriage were sold on March 19, 2003, through Recom Securities of Minneapolis. The net proceeds were $3,969.87. They were not part of the marital estate at the time of the trial.

With respect to the award of $50,000 from my non-marital assets, I petitioned the court for a stay of execution of this award until an appeal is resolved. Judge Swenson granted this request if I obtained a bond in the amount of $51,000. Because of my financial situation, I learned that I would need a bank line of credit in the same amount to obtain a bond. I tried four times to obtain the bank line of credit but was unsuccessful in all cases. I informed the judge of this in October asking if I could, instead, give Lian a mortgage on my apartment building at 1708 Glenwood Avenue in Minneapolis in the same amount, pending the appeal. I had no response. Most recently, the court clerk informed me that the appropriate step would be to write a letter of the judge giving me permission to file a motion for reconsideration. I have done this. (See enclosure.) Right now, I am waiting for a decision on that request.

If the judge grants my request, that would stay execution of the order to pay the $50,000 until the matter is resolved in the Minnesota Court of Appeals. I am planning to file an appeal but have not done so yet. Alternatively, Lian might indicate that she would accept a mortgage covering $51,000 on the apartment building. I could obtain one in the next several days. The fact is that I do not have nearly enough liquid assets to pay the $50,000 ordered by the court. If I cannot borrow against my real estate, I would have to sell property; and that could take a long time. I would ask if Lian would accept the mortgage as security.

You also refer to my obligation to pay $3,000 of her existing medical Bills - an obligation that I voluntarily assumed even though it was not in the original order. I would refer you to a new obligation that Lian has received from the court to pay the unsecured line of credit from US Bank that had a balance of $5,976.67. (See Conclusions of Law VII.) The two obligations are offsetting. I would propose that we leave collection of both in abeyance until we see what the Court of Appeals decides.

Sincerely,

William McGaughey

cc: Lian McGaughey”

The reason for copying Lian was that I wanted to make sure that Ms. Ye truly represented her. Lian would object if this were not the case. Then, on February 8th, I received a notice titled “Substitution of Counsel”, signed both by Wing-Sze W. Sun and Caryn D. Ye , which read: “The undersigned attorneys hereby notify the Court and Respondent that Caryn D. Ye . Esq. is substituted as the attorney for Petitioner, Lian McGaughey, in the above-referenced matter.” This made it official. Fortunately, Ms. Ye did not respond to my letter.

 

51. What is required for an appeal

I had work to do. Court rules required me to file an appeal within 60 days of Judge Swenson’s ruling on my post-trial motions or else forfeit that opportunity. The judge’s order was filed on December 28, 2012. By a strict count of days, I had until February 26, 2013, to file my appeal. This required filing both a “Notice of Appeal” and “Statement of the Case.” Both had to be in proper form, of course. Additionally, the Statement of the Case required that I organize the issues and arguments to be raised in the brief beforehand lest I omit something that I wished to include. Essentially, I would have to write my brief before filing the case with the Court of Appeals. A carelessly prepared summary would not do.

My first step was to read the judge’s order carefully and develop a strategy around errors found in it. Should I bite at the accusation of lying? No, that would be a trap. Mainly I wanted the Court of Appeals to overturn the order to pay Lian $50,000 immediately from sale of my non-marital real estate. My second priority was to eliminate or modify the order to pay spousal maintenance. I could live with a year or two of maintenance but not with a permanent award of $500 per month. Finally, it would be nice if the court asked the judge to make a more equitable distribution of the marital debt.

Taking the last issue first, Judge Swenson had sweetened the order somewhat in assigning Lian $5,976.67 of the marital debt. However, to assign over $300,000.00 of the debt to me was far from being a “fair and equitable” distribution. On the face of it, the judge’s order was inequitable. Another problem was that the judge failed to provide a total of the marital property - mainly debt - which had to be divided. In particular, he seemed to think that the debt represented by the two mortgages, together totaling $257,000, could simply be left out of marital debt yet be assigned to me.

As I understood the reasoning, this was because there were offsetting assets - the appraised value of the properties at 17xx and 1708 Glenwood Avenue - so that, in his eyes, the debts and assets were a package. This was specious reasoning because the debt had nothing to do with purchase of the asset; the latter was security for a general-purpose loan refinanced at a lower interest rate. Furthermore, the asset at 17xx Glenwood was my non-marital property, not to be mixed with the pool of marital property. Two different provisions of statute governed them. Did debt take on a different nature (of being marital or nonmarital) if secured by a different type of asset. The judge seemed to think so. I could find no statutory justification for such treatment.

A possible justification was that Judge Reding had made the same association at the May 1st settlement conference. In Point #3, she had written: “Husband is awarded the following real estate and shall pay all encumbrances: 17xx Glenwood Avenue, 1708 Glenwood Avenue.” I had signed this document, signifying consent. On the other hand, I remembered distinctly having said that I would assign this debt only in the context of an overall settlement (that was fair and equitable). I had not agreed to assume the $173,000 debt and the $110,000 asset at 1715 Glenwood Avenue and call it even. To her credit, Judge Reding had written “(t)he characterization of the debt is not determined” with respect all the properties. Therefore, Judge Swenson could not pretend that I had consented to the package of assets and debts that he had devised.

The second area of contention with respect to property was the judge’s permanent award of $500 per month for spousal maintenance. Such an award is governed by statute. The recipient of spousal maintenance must lack sufficient property to support herself (himself) or otherwise be unable to generate sufficient income for that purpose. Also, the award must take into consideration the other party’s ability to pay. In this case, Judge Swenson actually found that I would be unable to afford maintenance but then went ahead and awarded it to my wife anyhow. He did so under a “sharing the hardship” theory advanced in some case law.

The problem was that the judge used questionable numbers in determining my wife’s and my degree of hardship. First, he based Lian's hardship on her prehearing conference statement dated April 15, 2011 rather than upon the exhibit which she had presented at trial. Lian had claimed she needed $1,000 for housing each month and $1,000 for other expenses. The judge properly dismissed the housing allowance since Lian lived in her daughter’s condo rent free. However, he did not allow any income. Testimony presented at trial showed that she had $300 per month in income from Chinese retirement. A document presented to the court prior to the October 9th hearing reported $700 in monthly income. However, the judge ignored this. He found that Lian needed $1,000 per month to support herself but had no income. Therefore, she was short $1,000 per month.

In my case, the judge used an exhibit presented by the other party which showed that I had claimed $2,070 per month in expenses in my prehearing conference statement. I had also reported $2,000 per month in retirement income. Therefore, my monthly needs were fully covered by my income. However, I had testified at trial several times that my monthly interest expense exceeded my monthly retirement income; there was no provision for the full interest expense. Had the judge taken this into consideration, he might have made my wife pay $500 per month in alimony to me. However, he did not. This judge saw only what he wanted to see in the record. To split my wife’s $1,000 monthly shortage with my breaking even meant that I should pay her $500 per month.

The judge considered that my wife’s allegedly destitute condition made her “a strong candidate for permanent spousal maintenance.” He believed that, after eleven years of residence in the United States, she spoke almost no English and that she would never be able to work again because of her cancer operations and her limited work history. Lian had worked for three and a half years in a sales position at Target which the judge inaccurately described as “a short time” and she had been general manager at several hotels in China, supervising several hundred employees. Nevertheless, little of this information had been presented at trial. The judge read between the lines to find support for his conclusions.

Most egregiously, perhaps, Judge Swenson overlooked the fact that Lian had sold an apartment in China for $100,000 four months prior to filing for divorce and given the entire proceeds to her daughter with whom she now lived. If Lian had retained this property, the claim of destitution would have been ludicrous. It was ludicrous enough for the judge to declare her indigent when she still owned an apartment in Beijing worth $200,000 ($250,000 on the balance sheet presented to Judge Reding). The possibility that she transferred the property to her daughter in anticipation of divorce evidently never crossed the judge’s mind.

The third and final area of property award was the judge’s decision to invade my nonmarital real estate to the tune of $50,000. Knowing that this money would have to come from sale or mortgaging of real estate, Judge Swenson ordered me to start paying the money ten weeks after his order was signed. Real-estate transactions seldom move so fast except at “fire sales”.

Again, the award of nonmarital property is based on Minnesota statute. Statute 518.58, subd. 2, allows the trial-court judge to distribute up to 50 percent of a party’s nonmarital property if it finds that “either spouse’s resources or property ... are so inadequate as to work an unfair hardship.” With respect to hardship, the judge simply trotted out his previous arguments that Lian spoke almost no English and would be unable to work because of her cancer history and limited work experience. Never mind that I was 15 years older than she and had to assume a burden of interest-bearing marital debt exceeding $300,000 while her debt was minimal. Instead, the judge believed that statute gave him discretion to assign my nonmarital property any way he wanted, up to 50 percent, while Lian's nonmarital property in China remained untouched. His specific rationale for invading my nonmarital property did not even raise the issue of unfair hardship as statute required.

Two factors seemed to drive the judge’s decision. First, there was the allegation that I had dissipated $89,000 in loans to my former wife that had not yet been repaid. Second, I had non-marital property appraised at $655,983 against my wife’s non-marital property worth only $200,000. The judge sanctimoniously wrote that “I would not find it fair or reasonable, nor would I exercise my discretion, to award Petitioner anywhere close to 50 percent of this difference.” Still, he argued that his judicial discretion allowed him to invade the nonmarital property of that party with “greater ability to pay.” In this case, ability to pay would mean ability to sell nonmarital property. Case law, however, supports the idea that it means only the ability to generate future income from work, investments, and other such sources.

The final area of controversy involved the argument related to dissipation of marital assets. I had poked so many holes through it in my post-trial motions that Judge Swenson backed off the statutory claim. He seemed troubled by my suggestion that the money loaned to my former wife might have come from non-marital life-insurance proceeds, even going so far as to claim that, by statute, all monies received during the marriage were marital property. Had he gone a few sentences farther in the statute he would have discovered several statutory exceptions including the one covering this situation.

My challenge was to prepare a brief for the Minnesota Court of Appeals that would identify the various weaknesses in Judge Swenson’s reasoning so that the court might overturn his related decisions. Again, I thought it wise to start writing the brief before I filed the case so that all the issues would be included.

Therefore, I composed a lengthly set of arguments in each of the four areas of concern similar to what was presented above. Some arguments such as lack of balance in the awards, erroneous concept of “ability to pay”, and the grounds for making a hardship claim, related to several of the areas. Otherwise, my arguments were specific and straightforward. Additionally, I offered background information about the case and an accounting for the accumulation of marital debt.

Having completed this exercise, however, I realized that it did not follow the format for briefs prescribed in the Minnesota rules of Appellate Court Procedure, rule 128.02. My brief needed the following sections in this order: (1) a table of contents with numbered pages including a table of statutes, cases, and authorities, (2) a concise statement of the legal issues involved, (3) a statement of the case and the facts, (4) an argument, (5) a short conclusion stating the relief sought, and (6) an appendix. All this had to be presented in a brief no longer than 50 pages or, alternatively, 14,000 words. There were also precise requirements for presentation of the cover and the text.

I gradually dawned on me that citation of case law would be quite important in my appeal. The Court of Appeals wanted a statement of all legal issues and then a determination of the “standard of review” for each issue. This meant that I was raising the issue either because I thought the judge had made an incorrect interpretation of law or because he had reach factual conclusions that were not supported by evidence in the trial record. I had to state what type of argument I was making in each case. Also, I had to state what I wanted the court to do. It could remand an issue to the lower court to make a new ruling, or order a new trial, or instruct the lower court to do certain things. In any event, I had to rewrite my proposed brief, keeping an eye upon length.

Eventually, I narrowed down my argument to 18 separate issues which I wanted the appellate court to consider. Bob Carney considered this far too many. However, I felt that Judge Swenson had made a great number of errors and they all needed to be addressed. Fortunately, I had time to consider and reconsider what would be included in the brief. Many of my arguments were based on facts included in the trial transcript. However, I had not yet ordered the transcript. Once ordered, the court reporters would have up to 60 days to complete their work. Then I had a month to prepare the brief. The other side had fifteen days to respond. Then the court would take its time in deciding the case.

I also considered having Alan Morrison file an amicus curiae brief. He wanted to tell the court that he had observed one Chinese-language translator passing written notes to the other translator who reported Lian's answers to my questions, effectively coaching her on what to say. He also wanted to tell the Court of Appeals that, contrary to the judge’s assertion, he as a person sitting in the visitors’ section in the court room had heard Lian speaking English in the presence of Judge Swenson. However, this seemed to me to be presenting new evidence. I was not pushing my request for a new trial. Therefore, we abandoned the idea of Alan Morrison’s brief as amicus curiae.

 

52. The Notice of Appeal and Statement of the Case

The immediate task, however, was to file my case with the Court of Appeals. I had 60 days from December 28, 2012, to do this. The filing required that I submit two documents: the Notice of Appeal (form 103A) and Statement of the Case (form 133). The Statement of the Case was the more challenging because I needed to define the issues to be raised in the appeal. Presumably, what was not included here could not later be raised. The forms themselves could be downloaded from the court web site. Fortunately, Bob Carney sent me the forms he had filed for his case so that I had a model to follow. Both forms, after being completed, needed to be signed. However, the signatures did not have to be notarized. Besides the completed forms, I had to pay a filing fee of $550 to the Minnesota Court of Appeals and post a $500 with the trial court at the Family Justice Center. Both the trial court and the opposing counsel had to receive copies of the filed documents. Proof of service was required in both cases.

The Notice of Appeal, addressed to the Clerk of the Appellate Courts at the Minnesota Judicial Center in St. Paul, posed few problems. For the Statement of the Case, however, I had to know the statute or rule authorizing the appeal. It was Rule 103.03, titled “Appealable Judgments and Orders”, which said that “(a)n appeal may be taken to the Court of Appeals: (a) from a final judgment, or from a partial judgment entered pursuant to Minn. R. Civ. P. 54.02.”

The “authority filing time limit for filing notice of appeal” was Rule 104.01 of the Minnesota Rules of Civil Appellate Procedure, “Time for Filing and Service”, which stated: “ Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry, and from an appealable order within 60 days after service by any party of written notice of its filing.” What was the date of filing a motion that tolled the appeal time? (Tolled means: when did the clock start running for the appeal?) The answer: “A post-trial motion for amended findings of fact/conclusions of law or, alternatively, a new trial was filed on August 20, 2012. What was the date of the order that tolled the motion and date of service of notice of filing? The answer was: “Trial-court order pertaining to Appellant’s post-trial motion was entered on December 28, 2012. Also: “Notice of Appeal was filed on February 20, 2013.” Therefore, I had filed within the 60-day period.

There was then a question about Certiori appeal, which did not apply to this case. It is an appeal from an administrative decision. Regarding “finality of order or judgment”. the question was asked: “Does the judgment or order to be reviewed dispose of all claims by and against all parties, including attorney fees?” The answer, I thought, was “yes”. What was the type of litigation and what were the statutes at issue? The case type was: dissolution of marriage without children. The statutes at issue were: Minnesota statutes § 518.58 Subd. 1, 1a; 518.58 Subd. 2; 518.003, subd. 3 (a), (b); 518.552, subd, 1, subd. 2.

The most difficult part of the Statement was question #4: “Brief description of claims, defenses, issues litigated and result below.” Evidently, the Court of Appeals wanted litigants to state both their own and the opponent’s case. First I had to state the court ruling. Following Bob Carney’s model, I then divided my own arguments into groups related to each type of property award. Each group started with a “broad claim” followed by several specific claims and then by a statement of the trial court’s reasoning. (I had originally referred to the trial court’s “arguments”. However, Bob Carney pointed out that trial-court judges do not “argue”; they “reason”.)

It took me much of January and February to gather and study case law and read the rules. By February 20, 2013, I was ready to file the papers necessary for bringing a case to the Minnesota Court of Appeals.

The Notice of Appeal read:

FORM 103A NOTICE OF APPEAL

STATE OF MINNESOTA FAMILY COURT DIVISION DISTRICT COURT
COUNTY OF HENNEPIN HENNEPIN COUNTY COURT
FOURTH JUDICIAL DISTRICT

CASE TITLE

NOTICE OF APPEAL TO MINNESOTA
COURT OF APPEALS

Lian Yang McGaughey
Plaintiff

vs. TRIAL COURT CASE NUMBER 27-FA-11-XXXX

William Howard Taft McGaughey
Respondent DATE OF ORDER: December 28, 2012

To: Clerk of the Appellate Courts
Minnesota Judicial Center
Saint Paul, MN 55155

Please take notice that the above-named respondent appeals to the Court of Appeals of the State of Minnesota from an order of the trial court in Hennepin County Family Court entered on December 28, 2012 in response to Respondent’s post-trial motion for Amended Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment and Decree.

DATED: February 20, 2013

William Howard Taft McGaughey pro se (I am not an attorney.)
17xx Glenwood Avenue
Minneapolis, MN 55405
374-XXXX

Plaintiff’s attorney:
Caryn D. Ye , Attorney at Law
XXXX Snelling Ave. N., Suite C
St. Paul, MN 55113
tel: (651) 982-XXXX
Registration License #XXXXXXX

_____________________________________
SIGNATURE OF APPELLANT

Dated: February 20, 2013

The Statement of the Case read:

FORM 133. STATEMENT OF THE CASE

STATE OF MINNESOTA

IN COURT OF APPEALS

CASE TITLE:

William Howard Taft McGaughey
Appellant,

vs.

STATEMENT OF THE CASE OF APPELLANT
TRIAL COURT CASE NUMBER: 27-FA-11-XXXX


Lian Yang McGaughey
Respondent.

APPELLATE COURT CASE NUMBER:

 

Court or agency of case origination and name of presiding judge or hearing officer.

Fourth judicial district, Hennepin County Family Court, Hon. Stephen F. Swenson, chief judge

2. Jurisdictional statement

(A) Appeal from district court.

Statute, rule or other authority authorizing appeal:

Per Minnesota Rules of Civil Appellate Procedure:

Rule 103.03 Appealable Judgments and Orders

An appeal may be taken to the Court of Appeals:
(a) from a final judgment, or from a partial judgment entered pursuant to Minn. R. Civ. P. 54.02

Date of entry of judgment or date of service of notice of filing of order from which appeal is taken: December 28, 2012

Authority fixing time limit for filing notice of appeal (specify applicable rule or statute):

Per Minnesota Rules of Civil Appellate Procedure:

104.01 Time for Filing and Service

Subdivision 1. Time for Appeal. Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry, and from an appealable order within 60 days after service by any party of written notice of its filing.

Regarding Subdivision 1: The time limit for filing notice of appeal is 60 days.

Date of filing any motion that tolls appeal time:

A post-trial motion for amended findings of fact/conclusions of law or, alternatively, a new trial was filed on August 20, 2012.

Date of filing of order deciding tolling motion and date of service of notice of filing:

Trial-court order pertaining to Appellant’s post-trial motion was entered on December 28, 2012.

Notice of Appeal was filed on February 20, 2013.

(B) Certiorari appeal.

Statute, rule or other authority authorizing certiorari appeal:

This case is not being sent to the court of appeals for certiorari review.

Authority fixing time limit for obtaining certiorari review (cite statutory section and date of event triggering appeal time, e.g., mailing of decision, receipt of decision, or receipt of other notice):

This situation does not apply.

(C) Other appellate proceedings.

Statute, rule or other authority authorizing appellate proceeding:

This situation does not apply.

Authority fixing time limit for appellate review (cite statutory section and date of event triggering appeal time, e.g., mailing of decision, receipt of decision, or receipt of other notice):

This situation does not apply.

(D) Finality of order or judgment.

Does the judgment or order to be reviewed dispose of all claims by and against all parties, including attorney fees? Yes ( x) No ( )

If no:

Did the district court order entry of a final partial judgment for immediate appeal pursuant to MINN. R. CIV. APP. P. 104.01? Yes ( ) No ( ) or

If Yes, provide date of order:

If no, is the order or judgment appealed from reviewable under any exception to the finality rule? Yes ( ) No ( )

If Yes, cite rule, statute, or other authority authorizing appeal:

(E) Criminal only:

Has a sentence been imposed or imposition of sentence stayed? Yes ( ) No ( )

If no, cite statute or rule authorizing interlocutory appeal:

State type of litigation and designate any statutes at issue.

Case type: Dissolution of marriage without children

Statutes at issue: Minnesota statutes § 518.58 Subd. 1, 1a; 518.58 Subd. 2; 518.003, subd. 3 (a), (b); 518.552, subd, 1, subd. 2

Brief description of claims, defenses, issues litigated and result below. For criminal cases, specify whether conviction was for a misdemeanor, gross misdemeanor, or felony offense.

a. Court ruling: The trial court ordered the Appellant to pay marital debts totaling $319,736 and the Respondent to pay marital debts of $5,977. It awarded Appellant marital assets of $110,500 and the Respondent marital assets of $5,000.

Broad Claim: The trial court did not divide marital property, including debt, in a just and equitable manner as required by Minnesota statute § 518.58 Subd. 1.

i. Claim: The unbalanced distribution of the marital debt is patently inequitable.

ii. Claim: The court failed to state a total of marital property to be divided.

iii. Claim: The marital or non-marital character of a debt does not change based upon the type of asset used to secure it.

iv. Claim: The practical difficulties in apportioning a part of the marital debt to the Respondent do not justify an inequitable division.

v. Claim: Since the parties did not own Qwest stock at the time of the trial, it should not have been awarded to the Respondent.

The trial court’s reasoning: In distributing most of the marital debts to the Appellant, the judge first combined the $84,017 marital debt with the $160,000 non-marital asset at 17xx Glenwood Avenue, Minneapolis, and the $173,000 marital debt with the $110,000 marital assets at 1715 Glenwood Avenue, Minneapolis, assigned both to the Appellant, and removed these items from the further distribution of marital property (mostly debts). No explicit justification was given for linking assets with debts in these two instances. As for the rest of the debt, the judge held that case law gave him discretion to distribute the property to the party with the greater ability to pay. His decision also reflected his attempt “to craft an overall fair award”. The judge took into consideration that the Appellant dissipated marital assets in unrecovered loans or gifts to Sheila Gorman, that he failed to evict her as a tenant despite several months of unpaid rent, and that he has chosen to keep a house in Milford, Pennsylvania, for which the received rent does not cover expenses. As a practical matter, assignment of significant amounts of the marital debt to the Respondent would be impractical since the the Appellant’s name is on all of these debts.

b. Court ruling: The trial court ordered the Appellant to pay $500 per month in permanent spousal maintenance.

Broad Claim: The spousal-maintenance award is unjustified because the findings are not adequately supported by evidence in the record and the calculation of need ignores pertinent evidence given at trial.

Claim: The calculation by which the trial court “equalized the hardship” between the parties was based on faulty or incomplete information.

Claim: The findings used to justify the spousal-maintenance award are not adequately supported by evidence contained in the record.

Claim: The permanent spousal-maintenance award of $500 per month violates the statutory guideline that the other party should have the ability to pay the award out of current income.

Claim: Continued ownership of valuable real estate in China belies the claim that the Respondent “lacks sufficient property ... to provide for (her) reasonable needs” as required under Minnesota Statute § 518.552, Subd. 1(a).

The trial court’s reasoning: In ordering Appellant to pay Respondent $500 per month in permanent spousal maintenance, the judge noted first that the Respondent sought spousal maintenance while the Appellant did not. The judge found that that the Respondent was “a strong candidate for permanent spousal maintenance” based on the facts that (a) she “has not mastered the English language, even to a moderate degree”, (b) she has “serious health issues”, (c) she has limited work history, and (d) she is unemployed and has few liquid assets. The assumption was that the Respondent will be permanently unable to work. The judge’s award was based on the “sharing-the-hardship” concept by which both parties would each be left $500 per month short in the financial needs relative to income if the Appellant paid permanent spousal maintenance of $500 per month. Statute requires that maintenance be permanently awarded if there is any doubt on this question.

c. Court ruling: The trial court ordered the Appellant to pay $50,000 from his non-marital assets in five equal installments of $10,000 beginning October 1, 2012.

Broad Claim: The trial court has invaded Appellant’s non-marital property in violation of statute.

i. Claim: The trial court failed to present a finding of unfair hardship as required by Minnesota Statute § 518.58 Subd. 2.

ii. Claim: The trial court improperly interprets “ability to pay” in terms of possessing non-marital property that might be sold rather than having prospects for gaining income.

iii. Claim: The short time allowed for mortgaging or selling real estate to raise cash for an award of non-marital property on short notice creates a hardship for the Appellant.

The trial court’s reasoning: In ordering Appellant to pay $50,000 from his nonmarital property, the judge found that the Appellant’s dissipation of marital assets and retention of the nonmarital house in Milford, Pennsylvania, justified the award. Repeating arguments used to award spousal maintenance, the judge concluded that the Respondent would experience “a near destitute existence” if she did not receive this award invading non-marital property, based on her limited English-language ability, health problems, and current unemployment. His specific reasons for invading the Appellant’s non-marital property were given in ¶ 105: “the parties financial circumstances as set forth above, the unequal debt division, the hardship-sharing award, and the merits of the wife’s claim that husband either dissipated marital assets or took actions that depreciated the marital estate.”

d. Court ruling: The trial court found that the Appellant had dissipated marital assets.

Broad Claim: There was no dissipation of marital assets.

i. Claim: The allegedly “dissipated” assets were not distributed in anticipation of divorce.

ii. Claim: The judge ignored the fact that theft was behind some of the “dissipation” and the Appellant’s intent was actually to conserve assets.

iii. Claim: The “dissipation” may have been funded from non-marital assets.

iv. Claim: Not all property received during a marriage is marital; there are exceptions.

v. Claim: There is no evidence that the Appellant was uncooperative during discovery.

vi. Claim: If marital assets were dissipated, the trial court ignores the statutory remedy for restoring equity.

The trial court’s reasoning: In finding claims that the Appellant had dissipated marital assets to be meritorious, the judge stated that the Appellant admitted “dissipating” assets, that he did not cooperate fully during discovery, that he admitted in an email to the other party’s attorney that around $89,000 had been charged to his credit-card or checking accounts to Sheila Gorman’s benefit, that the record does not reflect efforts to have the loans be repaid, that he did not promptly evict Ms. Gorman for not paying rent, that the argument that the “dissipated” funds might have come from non-marital assets ought to be rejected for statutory reasons, and the transactions involving Sheila Gorman did not pass the “smell test” because of her previous relationship with Appellant.

5. List specific issues proposed to be raised on appeal.

I. Did the trial-court judge have discretion to assign marital debts of $319,736 and mar