October 2013 - Dividing Bleak House

by Richard W. Millar, Jr.

Over a century and a half ago, Charles Dickens published Bleak House which, at its core, dealt with the fictional case of Jarndyce v. Jarndyce which consumed enormous amounts of money over endless years in the British court system. Over the years it became the “poster child,” if a book could be so described, of the deadly inefficiency of the legal system.

If there could be an American reality version of this fictional story, who better to bring it to us than two law professors. Specifically Christo Lassiter and Sharlene Lassiter who were, but no longer are, husband and wife.

The Lassiters (she no longer uses that surname) were married ten years. Their divorce, on the other hand, has been ongoing for seventeen years. So far.

More hearings are planned.

Working backwards, it seems like the divorce was probably filed in 1996. At some point, probably around late 1999 or early 2000, a divorce decree was entered, ending the marriage, dividing the property, and ordering Mr. Lassiter to pay child support. Unhappy with the results, or at least the economics of the results, Mr. Lassiter appealed.

The Ohio Court of Appeals wasted only one sentence before announcing its take on the situation:

This court has not seen many domestic relations cases more contentious and acrimonious or more consumption of judicial time and resources than this case. The parties, who are law professors and who ought to know better, engaged in thoroughly inappropriate behavior that was detrimental to the resolution of their case and to the welfare of their children, for which both claim to be primarily concerned. Their actions caused this case to drag on for five years. This court takes a dim view of such tactics.

If the Court of Appeals felt that it was putting an end to litigation which had dragged on for five years as of 2002, it was engaging in unbridled optimism.

Mr. Lassiter asserted eight “assignments of error” in his appeal which the Court of Appeals disposed of in fewer than that number of pages.

I am guessing that Mr. Lassiter did not teach appellate law because a number of his claims of error did not reflect a keen understanding of either substantial evidence or abuse of discretion. For example, the trial court had sanctioned him for misconduct in connection with the sale of the marital residence, and he claimed that the finding was against “the manifest weight of the evidence.” The Ohio Court of Appeals found “to the contrary, the record contains substantial evidence that Christo deliberately delayed the sale of the property for his own purposes and caused additional expenses and costs to accrue,” and that the trial court had discretion to “compensate one spouse for the financial misconduct of the other.”

This illustrates what I call Millar’s corollary to the rule that if you’re going to shoot the king, you had better kill him. If you’re going to ask a court of appeal to review findings of your own misconduct, you had better be right or things will get a whole lot worse very quickly.

Professor Lassiter also was really unhappy with how the house was divided, claiming that his ex-wife had released the claims of misconduct and that the trial court had violated the “doctrines of full faith and credit, res judicata, and comity in disregarding prior judicial rulings”—a law professor’s tool bag of concepts.

The “release” argument came about thusly: he and the former Mrs. Lassiter had entered into a contract to sell the residence to some third party and, when the sale fell through, the Lassiters entered into a settlement agreement with the would-be buyers releasing both sides from all obligations under the sales contract. Mr. Lassiter claimed, in what might politely be called a stretch, that the release insofar as it was signed by Mrs. Lassiter was somehow also a release against him for whatever shenanigans resulted in the misconduct finding. It should come as no surprise to learn that neither the trial court nor the court of appeal extracted any such intent from the buyers’ versus the sellers’ release.

Mr. Lassiter’s conflicts of laws arguments arose from the fact that the marital house, aside from being not quite sold, had been the subject of two other pieces of litigation. It seems that Mr. Lassiter’s parents had loaned the couple the money to buy the house and, sensing presciently that they were in danger of being sucked into the whirlpool of the divorce, sued in New Mexico. They ended up with a judgment that found both Lassiters jointly and severally liable to repay the loaned monies.

There was another ruling in a case in Washington, D.C., regarding how the proceeds from the sale of the house would be distributed. At this point, it seems that there was a case in New Mexico, a case in Washington, D.C., a divorce in Ohio, and an appeal in Ohio. In any event, the Ohio appellate court observed that the question of whether or not the parents had a valid debt, or how the proceeds of sale should be distributed, were different issues from the allocations between the parties that would be made in the divorce court.

Mr. Lassiter also complained about the trial court’s allocations of their respective student loans, and its failure to award him interest for a marital debt he had paid off with a credit union loan obtained at 14% interest, which the trial court characterized as his “dragging [his] wife into what might arguably be a bad bargain, in essence, by default.”

A year later, in 2003, the Ohio Court of Appeals was presented with yet another appeal from Mr. Lassiter on rulings related to post decree motions concerning parenting issues and referring to their prior opinion noted that “unfortunately for all concerned, the acrimony has continued.” Following that theme, the court stated that while “we are aware of [Mr. Lassiter’s] need for control, his attempts at manipulation of the facts, and his voluminous filings[,] ... perhaps some of his frustration, if not his behavior, may have been justified” as she had exhibited “unrelenting hostility” towards him and used “her status as residential parent as a weapon,” that she was inflexible, and had “flatly refused to obey court orders.” Because the court reluctantly found that there had been an abuse of discretion since underlying transcripts had not been reviewed, it reversed the judgment and remanded it.

Not content to stay within the Ohio system, Mr. Lassiter brought an action in federal district court in Kentucky, claiming that the former Mrs. Lassiter’s autobiographical book defamed him. He lost at trial and, not surprisingly given his predilections, appealed. That resulted in a memorandum opinion in 2008 which would be about a half a page if you took away the caption, stating that the district court was not clearly erroneous in its credibility based findings regarding the truth of the claims, and adopting the reasoning of the district court.

As I said in the beginning, the case is apparently still ongoing with another motion set for about the time this column goes to press based on another of Mr. Lassiter’s claims that his former wife owes him money for something or other. Indeed, according to a recent article in the Cincinnati Enquirer, as of August of this year, the dueling professors have been involved in at least twenty-eight other cases against each other, no doubt setting a record greater than anything Mr. Dickens had envisioned.

I just hope neither is teaching family law.

Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.



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