June 19, 2019

Archives for August 12, 2011

Baldwin: Collaboration, Speed, Control of the Courtroom Key to Reforming Divorce

A divorce is like a funeral, and just as the dead should be treated with respect and mourned, so too should the death of a relationship, actor Alec Baldwin told 150 people, largely family law attorneys, at the Kickoff to the Family Law Institute on Thursday night.

“What has to start happening in divorce court is you have to have the same ethics that you have at a funeral,” Baldwin said. “It’s the death of something, and the death of something profound and meaningful and very significant in the lives of these people and we have to give it a proper burial.”

Gathered in a ballroom in the Denver Marriott City Center, the star recounted personal details about his own divorce and custody battle as the start to a larger conversation about the future of family law and how to prevent parties from feeling worse off than when they began.

Denver attorney Brenda Storey, who organized the kickoff and the 2011 Annual Family Law Institute, a two-day conference presented by the CBA Family Law Section in Breckenridge, found herself representing a man who was going through similar issues as Baldwin, but her client attempted suicide. At the same time, she was reading Balwin’s book, “A Promise to Ourselves: A Journey Through Fatherhood and Divorce” about his odyssey through the family court system.

Brenda and Alec sit together on stage during the discussion

What he said struck a chord with her: “When someone is sick, our society usually offers some means of care,” he writes. “When illness afflicts a marriage however, the professionals who arrive on the scene often are there to prolong the bleeding, not stop it.”

In her time as a family law attorney, Storey had seen the ugliness of the proceedings. “We who are in this system have no idea what it’s like to be in the shoes of those parties,” she said Thursday. “We do in fact leave a lot of the parties that come into this system already broken; we leave some of them worse than when we found them.”

But, the evening was not about dwelling on the bad. As lyrics to the Beatles’ “Revolution” flashed across the projector screen on the stage and filled the room’s speakers, the goal of the kickoff and the institute is to entertain, educate and challenge family law attorneys to think about change.

Storey said she wants to change it, but acknowledged, “it’s going to take a revolutionary change.”

The kickoff with Baldwin is part of the discussion of that change. When he came to the stage, he shared his story of divorce and an event during it that caught the attention of the nation.

It was 2007, and Baldwin got word that a tape of a voicemail — in which he released a tirade on his then-11-year-old daughter, Ireland, and called her a little pig — the evening that he was to serve as an honoree at the Goodman Theatre School of DePaul University.

When he returned home and saw the news, he was blind-sided by what he called a booby trap, which happened at a time when he was utterly frustrated because although he had been prevailing in court the orders in court were being ignored.

“This became this kind of insanity-inducing experience where there was no enforcement of the court’s orders,” Baldwin said.

He felt the tape had portrayed him as the exact opposite of what he was — a caring parent. Meanwhile, the story swirled in the media and there were calls for him to lose all custody of his daughter. The ordeal made him suicidal, but soon he decided to stop with those feelings and take a different tack.

From there, he began working on his book. For Baldwin, it was a way to go on the record about his experience and to think about change, he said.

For Baldwin, that change means a few things:

  • First, it means to work on collaborative divorce clinics. Many in the crowd applauded when he brought up collaborative divorce. “I think people are really, really tired of this system and the way it exists now,” he said.
  • Second, it means speeding up the entire process. “You want to get everybody set and give them this kind of chiropractic adjustment quickly so that you’re all set and ready to go so you can move on with your lives,” he said.
  • Last, it means for family court judges to have more control of their courtrooms. His experience in California courts was that it felt that the attorney were more in control, and he did not see any enforcement of orders of the court. “You must punish people who violate orders of the court,” he said. “I think judges have to really understand that they are in charge of the courtroom.”

In his closing remarks, Baldwin said divorce is one of the most shattering experiences a person can have. “I felt like a failure. … It’s this extraordinarily painful thing,” he said.

But, if the professionals involved in divorce can bring more emotional engagement, and act as a “wise friend,” and work to make the process fast, Baldwin said, then the parties involved will be able to move on with their lives.

“Once they start living inside that new paradigm, everybody heals.”

Photos by Matt Meier, Law Week.

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Matthew Spengler: An Exercise in Judicial Restraint

Last week, the Colorado Court of Appeals held that the Colorado Open Meeting Law (“COML”) does not preclude a home rule city from conducting business using secret ballots.  In Henderson v. City of Ft. Morgan, Case No. 10CA1409, the Court of Appeals affirmed a District Court decision that the Ft. Morgan City Council’s use of secret ballots to fill two vacancies on the City Council and a vacant magistrate judge position did not violate COML, C.R.S. sec. 24-6-401 to -402.

Prior to voting, the City Council conducted two public meetings where the Council heard presentations from the city council applicants, allotted time for the public to speak about the applicants, and conducted interviews with the magistrate judge applicants.  After these presentations, the City Council voted by written ballot.  Copies of the ballots were retained by the City and obtained by Plaintiff through a CORA request.

Reviewing the plain text of COML, the panel concludes that the statute simply does not impose a particular voting procedure on local government agencies, let alone a procedure that prohibits the use of anonymous ballots for the appointment of government officials. Because the Court holds that the statute is not ambiguous on this point, it does not look beyond the text of the statute to consider legislative intent.

In reaching this holding, the Court contrasts Colorado’s statute with similar laws in other states which expressly forbid the use of anonymous ballots.  “Had the legislature intended to prescribe a voting procedure, and for that matter a procedure prohibiting anonymous voting, it could have said so plainly.”  Moreover, the Court notes that in a separate statute the General Assembly has prescribed a particular voting procedure for municipal bodies when voting on particular subjects.  See C.R.S. sec. 31-16-108 (“On the adoption of an ordinance, resolution, or order for the appropriation of money or the entering of a contract by the governing body of any city or town, the yeas and nays shall be called and recorded, and the concurrence of a majority of the governing body shall be required.”).

Last week, the Denver Post published an editorial describing this ruling as a “cloud” on COML.  The editorial goes on to argue that the Court’s ruling is in direct contradiction with the General Assembly’s intent in enacting COML to ensure that “the formation of public policy is public business and may not be conducted in secret.”

Unfortunately, the editorial does not engage in the substance of the decision in any meaningful way, instead it declares that the decision “boggles the mind.”  In particular, the editorial makes no effort to address the Court’s distinction between conducting business in open meetings — which is clearly required by the COML — and the use of particular voting procedures to decide an issue — a subject not addressed by the COML.

If the Denver Post is correct, and the General Assembly obviously intended to forbid the use of secret ballots when it enacted COML, there is a simple solution: the General Assembly should promptly amend the law to clarify this point.  Absent such an amendment, it is not the job of the courts to rewrite statutes to add a provision endorsed by the Post.

Matthew Spengler is an associate at Hale Westfall who focuses his practice on real estate and eminent domain litigation, as well as general commercial litigation. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on August 11, 2011.

Tenth Circuit: ERISA Does Not Require Notification of Wear-Away Periods During Pension Transition So Long As Employees are Informed of Plan Changes

The Tenth Circuit Court of Appeals issued its opinion in Tomlinson vs. El Paso Corp. on Wednesday, August 10, 2011.

The Tenth Circuit affirmed the district court’s decision. The case is a putative class action in which Petitioners appeal the dismissal of their claims against Respondent and the El Paso Pension Plan brought under the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA). Petitioners’ claims concern “wear-away periods” that occurred during Respondent’s transition to a new pension plan; they contend that the wear-away periods violate the ADEA’s prohibition on age discrimination and the anti-backloading and notice provisions of ERISA.

However, the Court disagreed and found that Respondent’s transition favored, rather than discriminated against, older employees. Also, the plan was frontloaded, rather than backloaded. The Court held that ERISA does not require notification of wear-away periods so long as employees are informed and forewarned of plan changes. Because Respondent provided sufficient notice and warning to Petitioners, the district court’s decision was upheld.

Tenth Circuit: Unpublished Opinions, 8/11/11

On Thursday, August 11, 2011, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Unpublished

McGregor v. Thurlow

Kinslow v. Wands

Chitwood v. Davis

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Alec Baldwin Kicks Off the Family Law Revolution in Denver

Mr. Baldwin signed copies of his book, A Promise to Ourselves.

Last night, Alec Baldwin spoke to a packed room of legal professionals in downtown Denver. The topic of discussion wasn’t the usual press engagement concerning his job at NBC’s 30 Rock, hosting Saturday Night Live, or his political aspirations. Instead, Mr. Baldwin delved into a personal and sensitive topic that has a profound effect on a great many in our society: divorce.

Mr. Baldwin’s journey through fatherhood and divorce is chronicled in his book, A Promise to Ourselves. But his discussion last night was not simply a retelling of his own, highly publicized experience (which at one point led him to consider suicide). Mr. Baldwin brought the audience deeper, pointing to some of the root problems he saw and continues to see in the family law system itself. He spoke about the need for judicial accountability, sanctions against non-compliant parties, and selecting an appropriate attorney for your family law dispute. Mr. Baldwin was also an advocate for parental rights, including rights of the father, speeding up the long and drawn-out process of finalizing a divorce, and for ultimately reshaping the practice of family law into a less destructive force for families.

Mr. Baldwin with Lisa Cordova, CBA-CLE Program Coordinator

Mr. Baldwin acknowledged that divorce itself is something inherently destructive, whether it is accomplished through the courts or mediation. But, much of the alienation and pain that grips the parties during a divorce, and lingers long after, can be alleviated if we change the way we engage in the process and with each other. He suggests that we treat the situation as we would a funeral – a showing of respect for something special and sacred that has died: the family unit. But through the struggle, it can be a time to come together, setting aside differences out of respect for what once was, and moving forward with a new life and outlook. It may not be perfect, but the faster families can get to that point, the better off all involved will be.

Mr. Baldwin’s speech was engaging and insightful, humorous and sobering. He told it like it is, from his own experience – exactly what he was asked to do. Whether those in attendance agreed with all he had to say or not, he provided a legal-outsider’s perspective on the process, of which many judges and attorneys may not always be cognizant.

Me with Mr. Baldwin before dinner and his family law presentation

For myself, I found it quite enjoyable. Thanks to Brenda Storey, Chair of the Family Law Institute, for arranging this unique evening and to Mr. Baldwin for taking the time from his busy schedule to make the evening such a success for everyone involved and for the Legal Aid Foundation (it was Mr. Baldwin’s idea to make the event a fundraiser). We’ll have more for you on the event and the Institute (which starts today in Breckenridge!) in the coming weeks.

What were your thoughts on Mr. Baldwin’s family law presentation?