The Divorce Papers: A Novel (15 page)

TRAYNOR, HAND, WYZANSKI

222 CHURCH STREET

NEW SALEM, NARRAGANSETT 06555

(393) 876-5678

ATTORNEYS AT LAW

April 6, 1999

Alan M. Jaspers, Esq.
Senior Vice President for Legal Affairs
Federated Central Bank
110 Church Street
New Salem, NA 06555

Dear Mr. Jaspers:

I write as attorney of record for Mrs. Maria Meiklejohn Durkheim, a.k.a. Maria Mather Meiklejohn, to inform you that Mrs. Durkheim and her husband, Dr. Daniel Edward Durkheim, are in the process of negotiating a legal separation, pursuant to a Complaint for Divorce filed by Dr. Durkheim against his wife on February 15, 1999. Under the laws of Narragansett, both parties are subject to Automatic Court Orders, effective the date of filing, forbidding them to “sell, transfer, encumber, conceal, assign, remove, or in any way dispose of any property individually or jointly held by the parties without the consent of the other party in writing or an order of the court, except in the usual course of business or for customary and usual household expenses or for reasonable attorney fees in connection with this action.” I enclose a copy of the Notice of Automatic Court Orders.

Please be advised that Mrs. Durkheim will take prompt legal action in the event of any violation of this Court Order.

A copy of this letter has been sent to Ray Kahn, 46 Broadway, New Salem, NA 06555, the attorney of record for Dr. Durkheim.

Thank you for your cooperation.

Yours,

Anne Sophie Diehl, Esq.

David—

My mother (Maman to us) now goes by Elisabeth Dreyfus, her maiden name. She and her parents were French Jews who came to America in 1947, after the war. She was a year old. (My grandparents’ war stories are out of Kosinski. French friends hid them during the war, only steps away from Drancy; French neighbors rounded up their relations and sent them to the death camps.) My mother took my father’s name when they were married, as was the custom of the day. (She’s 53 now; she was married at 22, and had four children before she was 30. Somewhere in there, she got the Ph.D.; later, she went to law school. I don’t know how she did it. Servants!) Although my parents have been divorced for years, she has kept his name professionally. She’d already written four books as a married woman under the name of Elisabeth Diehl, and her agent said she couldn’t change it. She’s never used my stepfather’s name, which is Levi, and nobody except some of the more ancient members of New York Psychoanalytic ever call her Mrs. Levi. At one point, right after college, I thought of taking Dreyfus as my name; I thought it was more romantic—“J’accuse” and all that. My mother told me to stick with one name. So I did. In tricky situations, my friend Maggie and I will ask each other: WWFWD (What Would French Women Do)? The answer is almost always right though never obvious and rarely straightforward.

We are not descended from Captain Dreyfus (alas) or related to the Louis-Dreyfus family (alas, alas). It turns out Dreyfus is a common enough name for French Jews, so common, in fact (you won’t believe this), the great French Jewish sociologist Emile Durkheim (
Suicide
) was married to a Louise Dreyfus, another person we’re not related to. My sister and brothers and I all have French names (Jean
Luc, Remy, and Francoise) and speak serviceable French. (In Paris, I’m sometimes taken for a Belgian, which is their typically mean-spirited way of saying you speak tolerable French but your accent is not Parisian. At least they don’t ask whether I’m Quebecois, the worst insult to a fluent speaker. For that I must thank my French grandmother, Grandmere, who only spoke French to us—dinner every Sunday, birthdays, holidays—and who always, in a kindly but firm way, corrected our betises.)

My father would have a stroke if he knew you—or anyone—thought he was a lawyer or a law professor. He’s a Modern British historian at Columbia. He is left-wing, politically and historically. His name is John Diehl. He writes frequently for the
New York Review of Books
. (He’s English, white, male—like everyone else who writes for them, but not Protestant. His family is Catholic.) The early Diehls owned a pottery, which was as famous in the 18th and 19th centuries as Wedgwood. They emigrated from Germany to England around 1730 (with, it is said, the secret recipe for soft-paste china, stolen from Meissen). They turned intellectual around 1870 and sold the company to Royal Crown Derby. My father has a complete set of Diehl Flora Munda porcelain dishes for 24 (over 300 pieces, each with a unique flower) from 1795 in mint condition. He says it’s worth at least a hundred thousand pounds. They’re the most beautiful plates I’ve ever seen, more beautiful than Flora Danica, but no one’s ever eaten off any of them. What is the point? He says it’s my dowry.

Thank you for the kind offer to take us to lunch at Porter’s, but I cannot accept. I do not invite a gentleman to lunch and then fob off the bill on him.

I called Mrs. Durkheim. She’s coming in tomorrow.

Don’t forget, I’m leaving after lunch on Friday and won’t be working all weekend. I’ll have the memo on the proposed settlement to you before I take off.

Sophie

TRAYNOR, HAND, WYZANSKI

222 CHURCH STREET

NEW SALEM, NARRAGANSETT 06555

(393) 876-5678

MEMORANDUM

Attorney Work Product

Maria Meiklejohn Durkheim came into the office today to read the Addendum to the Fee Agreement and to discuss the terms of a settlement agreement. I sent her home with the Addendum. I recommended she consult independent counsel before signing it. She said that she would look it over again but that she had no intention of getting an outside opinion on the Addendum. She said I’d made the paper trail; she’d been duly warned, forewarned, counseled, and cautioned, “everything but threatened,” she added with a laugh. She gave me a check for $12,000, twice the originally agreed-upon retainer, “to show that I expect to pay twice as much for the two lawyers I’ve hired for the price of two.” She added that in the event her husband gets stuck with her lawyers’ fees, we should bill him only for my services. The check was drawn on her new account.

Mrs. Durkheim has decided to resume her maiden name. I told her that we would officially incorporate the name change into the agreement but that in the meantime she could use it. As I understand the common-law rule, a person can use any name she wants to so long as it isn’t for purposes of fraud. She will notify the banks, credit card companies, her employer, her daughter’s school, etc. The case will continue under the name of
Durkheim v. Durkheim
; Mrs. Durkheim will henceforth be identified in all memoranda and correspondence as Maria Mather Meiklejohn.

Ms. Meiklejohn brought with her a statement on the family’s income and expenses broken down by year, month, and week, and a list of assets and liabilities. They are not so detailed as our Divorce Work Sheets, but they give an adequate picture for purposes of negotiations. In 1998, their joint income, after taxes, was $300,000—$280,000 if you take away the $20,000 a year they get from Bruce Meiklejohn, which obviously should not be included in future projected income figures. They banked $75,000 ($20,000 of which is the Meiklejohn gift) and spent the rest. The net assets (their mortgage is their only liability) are almost $2 million.

Before crafting an offer to present to K&B, we will wait to see what Dr. Durkheim has to say. Our starting position will be 50% of the net family income after taxes (in a combination of spousal and child support), 50% of the joint assets, and physical custody of Jane. (I gave her a copy of the
Paynter
case; as you anticipated, she was reassured.) The financials are negotiable but not physical custody. Given that Ms. Meiklejohn’s share will go for the support of two people, herself and her daughter, and Dr. Durkheim’s will go for his support only, it’s a tenable position. Ms. Meiklejohn and Jane are off to Hawaii for a week. It’s his move.

No. 90-43
Paynter v. Paynter
Supreme Court of Narragansett
278 Nar. 487 (1991)

Cole, Ch.J., delivered the opinion of the Court.

On April 14, 1990, Judge Phillips Creighton of the Family Court of Tyler County issued a divorce decree, dissolving the marriage of Adam and Louisa Paynter, and awarded custody of their children, Michael, 11, and Jessica, 8, to their father. On an appeal by the mother, the Court of Appeals reversed, ruling that the trial judge had applied the wrong standard in making the custody award. We affirm.

The Paynters’ divorce was in almost every way contentious and acrimonious. They could not reach agreement on spousal support, child support, ownership of the family residence, the distribution of personal property and effects, the education of their children, and, finally, the issue that brings us here today, child custody. Review of this voluminous record reveals that the only thing they could agree to, outside the walls of the Family Courthouse, was the custody of the family’s 17-year-old diabetic cat. Mrs. Paynter agreed that her husband should have the cat as he had been the one giving it its insulin injections. Between 1985, when Mr. Paynter filed for divorce, and 1990, when Judge Creighton entered his decree, the Paynters were in court 11 times, not a record for Family Court, but an also-ran.

Mr. Paynter was the more aggressive, vindictive, and hostile; but Mrs. Paynter, with fewer resources, used stalling tactics in a kind of rearguard action that until the last stages was effective in its own way. Mr. Paynter’s anger may be said to have understandable roots. In June 1985, Mr. Paynter discovered that Mrs. Paynter was having an affair with their neighbor Gregory Dexter, who was also his golfing buddy. Witnesses who came forward on both sides described a neighborhood straight out of John Updike’s novel
Couples
. There was a lot of partying, drinking, flirting, naked swimming, and adultery. Mr. Paynter, a churchgoing banker, was disapproving of the louche atmosphere of the neighborhood, the most expensive in West Salem, but “for business reasons,” he went to the parties. Mr. Paynter felt humiliated by the affair, thinking, not without reason, that everyone knew.

Mrs. Paynter immediately ended the affair and offered to move out of the neighborhood so as to spare her husband. They tried to make a go of the marriage, but his anger and her distress worked against it. Six months later, Mr. Paynter filed for divorce, citing his wife’s adultery. In July 1986, Mrs. Paynter and the children moved into an apartment in New Salem; she went back to work at her former office, a large accounting firm. Mr. Paynter provided temporary support of $100 a week in alimony and $200 a week in child support. Mrs. Paynter, a CPA, who had not worked since Michael’s birth, seven years earlier, held an entry-level accounting position, her skills and confidence having eroded over the years since she left the firm. Her salary was $28,000.

The children felt the effects of the divorce and its attendant hostilities. Michael’s schoolwork suffered and Jessica
became visibly withdrawn. Between work and the modest support she received, Mrs. Paynter was able to maintain herself and the children, but the circumstances of their new life may be described as straitened. The children’s new school was not as good or as safe as the old one, and neither child was prepared for the grittiness of urban life. Both were bullied in school; they made few friends. They did not participate in sports or after-school activities as they had in West Salem, the opportunities being fewer and their sense of alienation isolating them. At the same time, Mrs. Paynter’s original distress had turned to depression, and while she functioned at work and at home, the children could see the difference in her and were worried about her. They spent Saturdays with their father in their old home and neighborhood. It offered them a respite from the grimness of their daily life in New Salem.

In 1986, Mr. Paynter earned $84,000. The next year, he earned $88,000. Last year, he earned $98,000. His total payments to his wife over the course of this litigation have been $1,000 a month in child and spousal support, for an annual total of $12,000. He has occupied the family house and retained most of its possessions. Mr. Paynter’s sense of being wronged manifested itself in his unwillingness to provide his wife with support. He believed he owed her nothing; she had betrayed the marriage. To support her in any way, he thought, was to reward her treacherous behavior, and he even resisted paying child support, lest she benefit from it. He agreed to alimony only because the tax consequences for him were more favorable than if all the money went for child support. His hostility toward his wife, which never abated and no doubt continues, did not extend to his feelings for his children, whom he loved and treated with affection and kindness. As the new school year was beginning in 1987, gauging the toll that their life with their mother in New Salem had taken, he sued for custody.

Judge Creighton appointed a lawyer to represent the children and a social worker to make a custody assessment. Both recommended that the children remain with their mother. Although their life in New Salem had its problems, by the spring of 1988, when the case was heard, they all were doing better. The children had made friends in the neighborhood; they were both playing soccer. Michael’s schoolwork was improving, and he was taking drum lessons. Jessica had come out of her shell and was doing Suzuki violin at school. Mrs. Paynter was seeing a psychiatrist at the Clinic at Mather Hospital, and a combination of therapy and antidepressants had succeeded in lifting her depression. She had resumed her relationship with Gregory Dexter, who had been divorced in 1987. The children expressed love for their father and a continuing attachment to their former home, town, neighborhood, friends, and school, but wanted to remain with their mother. Michael was clear on this point. “Mom is doing a good job. We need her and she needs us.” They were neutral about Mr. Dexter. Their mother saw him on Saturdays, when they were with their father.

Where parents can agree, the preference is to award joint custody, absent a finding of detriment to the child. 33 Nar. Stat.
§§812–13. In a disputed case, the Court looks first to the parents’ fitness, §809, and then to the “best interests of the child.” §810. Factors that lead to a finding of unfitness include: serious drug or alcohol problems; physical, sexual, or emotional abuse of the child, the other spouse, or a current partner; behavior indicating a
pattern
of neglect or danger; or an incapacitating mental or physical impairment. Here, the mother’s adultery and depression are not disqualifying factors; nor is the father’s unwillingness to pay spousal support. The parents are fit under the statutes. As §810 provides: “The Court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.” The Paynters may be commended for maintaining loving and supportive relationships with their children even as they went after each other tooth and claw.

There was a time, and not so long ago, when a mother’s (though not a father’s) infidelity would have justified a finding that she was unfit to have custody. This is no longer true. In 1978, Narragansett rewrote its divorce law, instituting “no fault” and narrowing the list of disqualifying factors in custody disputes to conduct that is essentially illegal as opposed to immoral. A wife’s adultery remains grounds for divorce but not for a finding of parental unfitness. As for depression, it has never been an indicator of unfitness in divorce, only unhappiness.

The factors that determine the “best interests of the child” under the Narragansett statute are defined as: (a) the wishes of the child’s parents as to his custody; (b) the reasonable preference of the child, if the Court deems the child old enough to express a preference; (c) the interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interests; (d) the child’s adjustment to his home, school, and community; (e) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity of care; (f) the permanence, as a family unit, of the existing or proposed custodial home; (g) the mental and physical health of all individuals involved; and (h) a parent’s capacity to give the child love, affection, and guidance, and to support and facilitate the child’s relationship with the other parent.

In applying these criteria to this case, the trial judge found that as to (a), (c), (f), and (h), both parents were equally, or unequally, suitable; as to (e), the mother better met the standard, and as to (d) and (g), the father. Judge Creighton discounted Michael’s preference (b), finding he was too young. Weighing these factors, he concluded that custody should go to the father.

On review, our task is limited. We may disagree with the lower court’s findings, but we will not overturn its decision unless it failed to apply the correct rule or made findings unsupported by the evidence.
Leithaus v. Leithaus
, 264 Nar. 377 (1983). In this case, the trial judge did not apply the correct rule.

Three years ago, in
O’Malley v. O’Malley
, 272 Nar. 391 (1987), we suggested that the “best interests” standard was in most cases best served by applying a Primary
Caretaker Rule, first espoused in
Garska
v. McCoy
, 278 S.E.2d 357 (W.Va. 1981) by the West Virginia Supreme Court. Drawing on the soundest teachings of child psychology, the Primary Caretaker Rule recognizes that stability and continuity of care are the factors most crucial to a child’s security, happiness, and growth. Disrupting the intimacy of a child’s relationship with his primary caretaker by awarding custody to the non-primary caretaker is traumatic for a young child and jeopardizes his mental, emotional, and physical health. See, e.g.,
Before the Best Interests of the Child
(1979).

The Primary Caretaker Rule serves a second purpose. It imposes an objective standard in cases that may be bitterly contested. The rule recognizes “the inherent difficulty of principled decision making” in custody cases, which too often reflect “ad hoc judgments by courts on the beliefs [and] lifestyles … of the proposed custodian.”
Pikula v. Pikula
, 374 N.W.2d 705 (Minn. 1985).

A third factor is no less important: The rule discourages the strategic use of custody fights in negotiations over child support, spousal support, and property division. It has been widely recognized that “the primary caretaker parent…[is] willing to sacrifice everything in order to avoid the terrible prospect of losing the child in the unpredictable process of litigation.”
Garska v. McCoy
, at 360. The Primary Caretaker Rule prevents the use of a threatened custody battle as an abusive litigation tactic, especially in cases where the parties have unequal resources and one of them is better able to financially pursue extended litigation. In this case, the father withheld resources, making life difficult for mother and children; he then argued that she was not providing the children with the education, housing, medical care, and other resources they should have. This is the catch-22 of divorce.

In determining the best interests of the child, we adopt
Garska
’s Primary Caretaker Rule. The case is remanded to the trial court (1) for a determination of which parent was the primary caretaker at the time Mr. Paynter sued for custody; and (2) for a reassessment of child and spousal support. After years of litigation, “to avoid the terrible prospect of losing the child[ren],” Mrs. Paynter accepted an exceptionally meager settlement. Until a final determination is made, the children will live with their mother as the parent with whom they were residing at the time the case was brought.

Fisher, J., Dunbar, J., Fimbel, J., Inui, J., and Solomon, J., join this opinion.

* * *