by Susan Rieger
The last years of our marriage were awful, just awful. After I broke with Jacques, I became terribly depressed and gained 30 pounds. I began to hate Danny. I’d have fantasies when the phone rang late at night and he wasn’t home that it was the police calling to say they’d found him in his car wrapped around a telephone pole. I wanted him so much to change, to be what I needed, but there was no way that would happen. He grew to hate me too, I think. He hated living with a depressed woman. If only he could have said to me how much he appreciated what I had done for him, moving to New Salem and putting his life and career first, maybe I could have rallied. But he didn’t. And I didn’t.
I’m getting scared now that he may decide to go for custody. We had a set- to last night; we ran into each other in the kitchen. I was eating ice cream out of the container and weeping to myself. He looked at me with such disgust. “This isn’t good,” he said. “Pull yourself together. Stop feeling sorry for yourself. Do you ever think that your self-pity has no effect on Jane? No child should have to grow up under that kind of baleful influence.” Baleful! God, he can be so devastatingly mean. Could he win custody? I couldn’t bear it.
You’ve got to help me. I’ve made a mess of things, but I love Jane more than I can say, and I’m the parent who’s raised her. What if he knows about the affair? Could that hurt me in court? I’ll give up anything, everything to get custody. Am I being hysterical (it’s 2 a.m. and I’m never at my most rational after midnight)? I’ll probably feel saner in the morning if I can manage to get some sleep, but at the moment, I’m feeling desperate and so, so scared.
I couldn’t have written this to Fiona. Thank you for taking my case.
Yours,
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: David Greaves
To: Sophie Diehl
RE: Mrs. Maria Durkheim: Letter with New Information
Date: April 6, 1999
Attachments:
You said exactly the right things to Mrs. Durkheim. Custody turns on the best interests of the child, which has been interpreted by the Narragansett Supreme Court to mean that in a custody dispute, custody goes to the child’s primary caretaker, absent a judicial finding of unfitness. It’s an excellent rule; it not only insures continuity of care, it prevents one parent, typically the father, from threatening a custody fight as a means of applying leverage in the settlement negotiations. Most women are willing, as is Mrs. Durkheim, to give up “anything, everything” to secure custody.
There are no grounds for a finding of unfitness here. If weeping and late-night binging were considered adequate grounds for a finding of unfitness, the Primary Caretaker Rule would have no effect at all. Everyone getting a divorce feels sorry for himself, unless he feels self-righteous. I’ve come to believe that self-righteousness is simply a protective mechanism against self-pity (usually male) and the terrible sense of vulnerability that accompanies it. As for her omission, you shouldn’t have been surprised. All clients, even well-dressed, well-spoken ones, lie to their lawyers. They want you to like them, to take their side. There may be more surprises, but if she’s still holding anything back, it’s more likely she’s suffering from memory lapse or thinking the information unimportant rather than intentionally hiding something.
Dr. Durkheim probably believes what he said about his wife’s “baleful influence,” but I don’t think he really wants physical custody, and he certainly doesn’t want a long, drawn-out battle, which a formal custody hearing would entail. We could tie him up for at least two years. I know how to do that and I’ll teach you if it becomes necessary. This being said, it doesn’t mean that Dr. Durkheim won’t sue for custody or, more likely, threaten to sue as a means of applying leverage, rule or no rule. He knows his wife is vulnerable on this point. This divorce could get very ugly. If anyone other than Ray Kahn were Dr. Durkheim’s lawyer, I’d call him up and express our intentions to be reasonable. Kahn thinks if you make that kind of overture, you’re weak.
You might follow up with a note to Mrs. Durkheim enclosing a copy of the Narragansett case Paynter v. Paynter, setting out the Primary Caretaker Rule. I don’t have the cite, but it’s about 10 years old. It should reassure her, as should the Narragansett child custody statute, which provides in relevant part: “The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.” That goes for adultery and baleful behavior both.
An Apology and an Invitation
* * *
From: Sophie Diehl
To: David Greaves
Date: Tue, 6 Apr 1999 10:14:58
Subject: An Apology and an Invitation 4/6/99 10:14 AM
Dear David:
Thanks for getting back to me on Mrs. D’s letter. I’ll write her a note and send her the Paynter case.
I am very sorry about my rambling memo; I’ve fallen into bad habits riding shotgun with the gang on the second floor. It won’t happen again. I’ll save memos like that for Joe.
I’d like to make it up to you. Would you like to have lunch on Friday with me and my mother, Elisabeth Dreyfus, a.k.a. Elisabeth Diehl? I’m betting you two would like each other. She’s funny and smart and beautiful, too. She went to law school (after getting a Ph.D. in English) but never practiced. She’s a mystery writer, pretty famous and admired. She wrote her first novel when she was pregnant with my brother Remy and put on bed rest. You may know it: A Gun in the First Act. After that, there was The Scottish Play (she—and I—wouldn’t want you to think the Ph.D. didn’t come in handy). I was thinking of going to Porter’s. I have a friend who’s a member, and he’ll let me use his charge. I don’t think she’s ever been there—like me, she’s unclubbable. There’s no point taking her to one of the local chichi places. New Salem can’t compete with the food she’s used to eating in New York, so I say we go for the Dink Stover atmosphere. And those double lamb chops are pretty impressive.
I’m free-associating again. (It’s a side effect of email correspondence, which unfortunately leaks into other modes of writing. Just wait.) Sorry.
Sophie
* * *
Re: An Apology and an Invitation
From: David Greaves
To: Sophie Diehl
Date: Tue, 6 Apr 1999 12:45:09
Subject: Re: An Apology and an Invitation
4/6/99 12:45 PM
Dear Sophie—
Apology accepted.
Is your mother the Elisabeth Diehl; I never made the connection. But of course, it makes sense. I remember you saying you were raised up in the criminal courts. I assumed your father was the lawyer; a law professor lawyer. Serves me right. I’m a fan. I par-ticularly liked A Murder of Crows, and of course, A Gun in the First Act.
I’d like very much to have lunch with you and your mother on Friday. You called her Elisabeth Dreyfus. What name does she go by?
I am a member of Porter’s. If you’d allow me, I’d like you two to be my guests.
You should have a meeting with Mrs. D before she takes off for Hawaii. There’s the addendum to the retainer to talk about, and you need to start thinking about an offer. You could also reassure her once again on custody.
David
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: David Greaves
To: Fiona McGregor
RE: Matter of Durkheim
Date: April 6, 1999
Attachments:
Your letter to Maria Durkheim was out of line. It challenges my authority as Managing Partner, it undermines the values and the reputation of the firm, and it puts at risk important business relationships. Mrs. Durkheim sent a copy of your letter
to me. I will keep this matter between us, and not bring it up at the Management Meeting next week, but I’d like assurances from you that this kind of behavior will not be repeated.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: Sophie Diehl
To: David Greaves
RE: Matter of Durkheim
Date: April 6, 1999
Attachments: Letter to Ray Kahn, Esq.
I’ve written a very rough draft of a letter to Ray Kahn in response to his letter of March 30, 1999, to Mrs. Durkheim. I’ve incorporated all of your suggestions, with two exceptions. (1) I said outright that Dr. Durkheim violated the Automatic Orders by closing the joint checking account and that we would not put up with that kind of behavior again. (2) Instead of asking Kahn to ask Dr. Durkheim how he intends to pay the bills, I would like to have Mrs. Durkheim transfer the $80,000 currently sitting in their joint savings account to an individual checking account in her name at a different bank. My letter would then inform Kahn, after the fact, that the transfer had been made and threaten a contempt motion if Dr. Durkheim took any further steps to “indicat[e] a separation of property.” Anything less subtle is wasted on Kahn. Please let me know what you think of these modifications and also what other changes you would suggest. The letter should go out today. We are 30 days past the Return Date, and the financials are due tomorrow. We, of course, won’t get ours in, and I don’t think theirs will be ready either, but I’d like to get them something soon, so if we do have to go to court, Kahn can’t claim they had no choice because we were carrying on a delaying action.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: David Greaves
To: Sophie Diehl
RE: Matter of Durkheim
Date: April 6, 1999
Attachments: Letter to Ray Kahn, Esq.
I agree that Mrs. Durkheim should remove the money from the savings account. They’re playing hardball; we’ll play too. You should call her immediately and have her do it today. I’ve never advised a client to do something like this so early in the game, but you’re right to act decisively now. It will surprise them and also disconcert them. Good work.
Don’t worry about all those deadlines Kahn has set. No one gets a divorce in this state that fast. We’re moving at a fair clip; no judge will find us dilatory. The thing to remember is that they want to settle as soon as they can. If this case goes to court, Dr. Durkheim won’t get his final decree (or his house) until August 2000 at the earliest.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: Sophie Diehl
To: David Greaves
RE: Matter of Durkheim
Date: April 6, 1999
Attachments: Letter to Ray Kahn, Esq.
Draft Letter to Financial Institutions
Following up on your memo, I spoke with Mia Durkheim this afternoon and advised her to transfer the funds in the joint savings account to an individual checking account in her name at a different bank. I also advised her to put the treasury bills into a safe deposit account in her name. She agreed to do both. She called me back an hour later to say that she’d taken out $64,000 and put it in her new account. She decided to leave $16,000, the amount of Dr. Durkheim’s legacy from his parents, in the account for him. She also stashed the treasury bills. She thanked me for recommending this step. She said it made her feel better, less helpless, to do something provocative. (She uses words very well, even in her 2 a.m. confessionals. My mother would like her style.)
I’m attaching here the letter to Kahn. If I do say so myself, it’s very divorce-lawyerly. I could almost pass for the real thing, no? I have also drafted a letter to the various institutions holding the rest of their money (TIAA-CREF, Federated Central, etc.), letting them know that a divorce is under way and that none of the accounts should be modified, closed, or invaded. Let me know what you think of it.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
ATTORNEYS AT LAW
April 6, 1999
Ray Kahn
Kahn & Boyle
46 Broadway
New Salem, NA 06555
Dear Mr. Kahn:
I write on behalf of Mrs. Maria Meiklejohn Durkheim, who has retained the services of Traynor, Hand, Wyzanski to represent her in the divorce proceedings instituted by her husband, Dr. Daniel E. Durkheim. David Greaves and I shall act for Mrs. Durkheim. In the future, please direct all correspondence to one of us, not to our client. I enclose with this letter copies of the Acceptance of Service, the Notice of Appearance, the Answer to the Complaint, and the Certificate of Service, all of which have been duly filed with the Court Clerk.
As you know, the Automatic Orders went into effect for Dr. Durkheim on the day he filed his Complaint. By closing their joint checking account on April 1, without his wife’s consent, Dr. Durkheim violated those Orders. Until the Durkheims have concluded their separation agreement, we must insist that the financial arrangements they maintained during their marriage continue in place. This includes all bank, charge, and credit card accounts. If Dr. Durkheim takes another step to “indicat[e] a separation of property,” we will be compelled to file a motion for contempt. In the meantime, we have instructed Mrs. Durkheim to withdraw $64,000 from their joint savings account at Federated Central Bank so that she will have sufficient funds on hand to cover her customary and usual household expenses during the period of negotiation. On our advice, Mrs. Durkheim has also placed $90,000 of treasury bills in a safe deposit box to be redeemed only in the event negotiations break down and the case goes to trial. I am sure you will understand that these steps were taken reluctantly, and only in response to Dr. Durkheim’s act. We hope we will not have to resort to the courts to reestablish the status quo ante. Interim motions have the effect of delaying the proceedings.
The timetable you laid out for concluding the separation agreement seems overly optimistic. We will make every effort to cooperate with good-faith efforts to negotiate, and we will respond promptly to any reasonable offer that provides for adequate alimony, a fair and equitable division of marital property (including savings and pension funds), and a custody and visitation order acceptable to our client. In addition, such an offer should acknowledge the length of the marriage, the contributions Mrs. Durkheim made to her husband’s career, and the income and employment opportunities Mrs. Durkheim lost when she moved with her husband to New Salem.
Mrs. Durkheim is in the process of preparing her financial statement. We shall forward it as soon as it is completed. We shall also forward the Certificate of Attendance for the Parent Education Class, which Mrs. Durkheim plans to take within the month. We would appreciate receiving both of these documents from Dr. Durkheim before beginning negotiations.
Sincerely,
Anne Sophie Diehl, Esq.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: David Greaves
To: Sophie Diehl
RE: Matter of Durkheim: Draft Letter to Financial Institutions
Date: April 6, 1999
Attachments:
Your draft letter to the various financial institutions is a good idea and a good letter. Send it out to the various institutions today, with cc’s to Kahn.
As for your letter to Kahn, I liked the bit at the end about the Parent Edu
cation Class. Although it is legally mandated, the parties in negotiated cases usually sign a stipulation waiving the requirement. I’ve never before seen it used as a weapon this way, a nibbling-to-death-by-ducks type tactic. I imagine that your jaundiced criminal eye will spot many other opportunities to aggravate Kahn—and I must say I’m learning things from you about terrorist ways to negotiate a divorce—but don’t get too carried away. Remember, in a divorce, it’s the Big Picture that counts, and protracted negotiations are almost invariably less satisfactory in every way than expedited ones, especially in cases where there are children. The Durkheims must continue to have some kind of relationship after they’re divorced, and to the extent we can keep to a minimum the opportunities for doing and saying things that can only increase the ill will between them, the better they will be able to function as Jane’s parents.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: Sophie Diehl
To: Files
RE: Matter of Durkheim: Letter to Financial Institutions
Date: April 6, 1999
Attachments: Letter to Financial Institutions Re: Notice of Automatic Orders
Attached to this memo is a copy of a letter sent today to various financial institutions which hold accounts in the name of either or both of the Durkheims, giving notice to them of the Automatic Orders and informing them that Mrs. Durkheim will take prompt legal action in the event there is any violation. Letters, with cc’s to Ray Kahn, were sent to the following institutions:
Alan M. Jaspers, Esq.
Senior Vice President for Legal Affairs
Federated Central Bank
110 Church Street