by Susan Rieger
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.
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TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
ATTORNEYS AT LAW
ADDENDUM TO FEE AGREEMENT
I, Maria Mather Meiklejohn, a.k.a. Maria M. Durkheim, the “Client” of 404 St. Cloud Street, New Salem, NA, having retained the firm of Traynor, Hand, Wyzanski, the “Attorneys,” in connection with: divorce proceedings and such other work as may from time to time be performed by the Attorneys on the Client’s behalf, hereby agree to the following terms and conditions as an Addendum to the Fee Agreement originally entered into on 17 March 1999. In that I have asked Anne Sophie Diehl, a criminal lawyer with no prior experience in matrimonial law, to represent me, I agree to pay additional time charges at the hourly rate of: $150.00 for experienced matrimonial lawyers to the extent the Attorneys determine that they are necessary to assist her. In recognition of this modification, I shall pay to the Attorneys $12,000 as an initial retainer in this matter.
As an Addendum to the Fee Agreement of 17 March 1999, this agreement modifies it to the extent represented herein.
THIS IS A LEGALLY BINDING CONTRACT. OWING TO THE UNUSUAL TERMS AND CONDITIONS OF THIS CONTRACT, THE CLIENT IS URGED TO SEEK INDEPENDENT COUNSEL.
We, the Client and the Attorneys, have read the above Addendum to the Fee Agreement and understand and accept its terms. Both have signed it as their free act and deed, and the Client acknowledges receipt of a copy of the Addendum. Signed this 8th day of April 1999.
Traynor, Hand, Wyzanski
By:
Client Maria M. Durkheim
Attorney Anne Sophie Diehl
Maria Mather Meiklejohn and Daniel E. Durkheim
Income & Expenses 1998
Income Yearly Monthly Weekly
Husband’s Salary 370,000 30,833 7,115
Taxes, Soc Sec 100,000 8,333 1,923
NET 270,000 22,500 5,192
Wife’s Salary 14,000 1,167 269
Taxes, Soc Sec 4,000 333 77
NET 10,000 834 192
NET Income $280,0001 $23,333 $5,384
Expenses
House (404 St. Cloud)
Mortgage, Taxes 42,000 3,500 808
Utilities 4,800 400 92
Maintenance 3,600 300 69
Grounds 1,200 100 23
Housekeeper 26,000 2,167 500
Tuition (Jane) 13,000 1,083 250
Automobiles
Audi 9,600 800 185
Saab 7,200 600 138
Medical
Insurance 1,800 150 35
Office visits 1,200 100 23
Prescriptions 800 66 15
Eyeglasses 1,800 150 35
Psychoanalysis (wife) 13,000 1,083 250
Food 15,600 1,300 300
Clothing 12,000 1,000 231
Debt
Entertainment 12,000 1,000 231
Travel, Vacations 36,000 3,000 692
Pets 1,200 100 23
Spending Money 20,800 1,733 400
Savings
Investments 25,000 2,083 480
401(k) DED 30,000 2,500 577
TOTAL Expenses $278,600 $23,217 $5,357
1 Bruce Meiklejohn, Maria Meiklejohn’s father, has given Dr. Durkheim and Ms. Meiklejohn each $10,000 a year as a tax-free gift for 16 years, since their marriage in 1982. That money has gone directly into savings. It does not figure in this accounting, since it will no longer be forthcoming. The total contribution not including compounded interest equals $320,000. We will hire a tax accountant to compute the current value of the amount at the generally acceptable rate of return.
Maria Mather Meiklejohn and Daniel E. Durkheim
Marital Assets & Liabilities
April 1999
Joint Assets & Liabilities
Joint Assets
Equity in Family Residence Jointly Owned $240,0001
Daniel Durkheim’s TIAA-CREF Retirement Accounts 600,0002
Daniel Durkheim’s 401(k) Plan 300,000
Stock Market Investments Jointly Owned 700,000
Treasury Bills Jointly Owned 90,000
Joint Saving Accounts 80,000
Total Value of Assets Acquired After Marriage $2,010,000
Jointly Owned Personal Property
Household Furnishings, Objects, Artwork 100,000
TOTAL VALUE OF ASSETS $2,110,000
Joint Liabilities
30-Year Mortgage of Family Residence $250,000
TOTAL VALUE OF LIABILITIES $250,000
Daniel Durkheim’s Separate Assets
Inheritance from Parents, Distribution October 1998
Cash $16,000
1989 Honda
Maria Meiklejohn’s Separate Assets
Martha’s Vineyard Home, March 1979 $90,0003
1 The family residence at 404 St. Cloud cost, with the land, $375,000 to build. Dr. Durkheim and Ms. Meiklejohn put down $125,000 and took out a 30-year 8% mortgage for the remainder of $250,000. Virtually none of the principal has been paid yet. Since they built the house, land values in New Salem have increased greatly and the current value of the home is now $525,000. If the
home were sold this year and the mortgage paid off, the Durkheim-Meiklejohns would recover their $125,000 down payment and realize a profit of $115,000 ($150,000 less the Realtor’s fee of $31,500, calculated at 6% of the price, and closing costs of approximately $3,500), giving them $240,000 cash in hand.
2 Dr. Durkheim joined TIAA-CREF on July 1, 1983, when he became a Resident at Presbyterian Hospital.
3 Ms. Meiklejohn and her father, Bruce Meiklejohn, inherited the house on Martha’s Vineyard from Ms. Meiklejohn’s mother on her death in 1979, before Ms. Meiklejohn and Dr. Durkheim married. They are tenants in the entirety under a trust, which means neither can sell his or her share and the survivor inherits all. At the time of Mrs. Meiklejohn’s death, the property was valued at $90,000. The current rough estimated value of the house and land, the land being far more valuable than the house, which is a ramshackle place, is in the neighborhood of $3,000,000–$4,000,000.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: Fiona McGregor
To: David Greaves
RE: Matter of Durkheim: Representation
Date: April 9, 1999
Attachments:
I think your memo to me was unjust. I may not have followed the company line, but I did nothing that would injure the firm or its reputation and nothing contrary to the rules of governance. To the contrary, I maintain I acted properly and appropriately. Sophie Diehl is not fit to act in this case. I am, you are, Felix is. You will see that Mrs. Durkheim is not exposed, but the firm will wind up losing money. As Bruce Meiklejohn’s lawyer, you of course make the final decision here, but as a member of the firm, I have a stake in the firm’s reputation and the firm’s profits. At the very least, I and the other lawyers in the practice should have been consulted.
I want to make clear that I am not operating with any personal animus against Sophie. My motivation was and remains purely professional.
Please take my letter to the Management Committee. The partners all know about our difference of opinion on this matter; they were cc’ed on the memos, and I’m cc’ing them on this. I don’t think I did anything wrong. I felt a responsibility to Mrs. Durkheim and to the firm. And I still do.
cc: Jason Bell
William Frost
Proctor Hand
Virginia Ladder
Felix Landau
Frank O’Keefe
Joseph Salerno
Katherine Sales
John Wynch
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: Representation
Date: April 9, 1999
Attachments:
The letter will go before the Committee at next Thursday’s meeting. You’re invited. Hannah will let you know the time.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: Fiona McGregor
To: David Greaves
RE: Matter of Durkheim: Representation
Date: April 9, 1999
Attachments:
I’m looking forward to the meeting, as I persist in thinking I’m right. I’ll see you next Thursday. Just let me know the time in the next day or two, so I can work out next week’s appointment calendar.
Thank You
* * *
From: David Greaves
To: Sophie Diehl
Date: Fri, 9 Apr 1999 16:55:12
Subject: Thank You 4/9/99 4:55 PM
Dear Sophie:
Thank you for a wonderful lunch. I am now indebted to you on two counts. I haven’t had such a good time at lunch since I argued the Loeb case. Your mother is terrific. But then you know that. I hope you had a good time. You were very quiet—or we were very talkative. Have a good weekend. And come in late Monday.
David
* * *
Weekend Wrap-Up
* * *
From: Sophie Diehl
To: Maggie Pfeiffer
Date: Sun, 11 Apr 1999 15:44:19
Subject: Weekend Wrap-Up 4/11/99 3:44 PM
Dearest Mags—
What a weekend. First things first: You were spectacular and so was the play. You are the Real Thing. You’re doing what you were meant to do. I’m sure you’ll hear directly from Maman, but she was astounded. She said to me, “You told me Maggie could act, but I didn’t take it in properly. She’s brilliant, like a young Vanessa Redgrave. When she’s onstage, you can’t take your eyes off her.” Verbatim, that’s what she said. Everyone was good—Harry was very happy—but you were sublime. We need a Kenneth Tynan to do your performance justice in print.
And now I backtrack. On Friday, I took Maman and DG to lunch at Porter’s. He had Dover sole (typically chaste); Maman and I, needless to say, went for the double lamb chops. Do you think men like women who like to eat? I think the good ones do. Anyway, if the situation weren’t so charged (as you said, the titans squaring off), I’d have to say that DG was smitten by the old girl. She wasn’t being exactly flirtatious, but she was awfully charming. She even ran her fingers through her hair a couple of times. They hardly paid me any attention, so I watched them like an anthropologist studying middle-aged mating behavior. The thing about my mother is the quality of her attention; nothing in the world is like it. She makes you feel special simply because she is listening to you. I wish I could do that. It must be a French female thing. He had read a lot of her books; she knew my stories about him. They were so pleased with each other and themselves. He said nice things about me and my work, which is a sure way to win Maman over. She is still an exceptionally doting mother, though being French, her dotingness is never gushing; I don’t know how she does it with all four of us, but she does.
She’s probably ruined my brothers for other women—and yet they’re both such good guys. By the way, Luc sends his love and congratulations. He called me this morning; Maman had already reported to him on the play.
I keep thinking about Jake and what he would think of their behavior. (Papa, of course, would have ignored it.) It’s often hard to tell when he’s angry or upset. I kept telling myself that they were just having a good time—and they’re allowed to. I can imagine being married and loving my husband and still liking to flirt with attractive men. You’re the expert on marriage. What do you think? DG’s been married for ages, and his wife, Mary, is the nicest, easiest-going woman I’ve ever met. Some women wouldn’t like their husband to be working so closely with a 30-year-old, but she doesn’t seem to mind at all. In fact, he has had me over for dinner with them and their friends, and she always makes me feel wanted and liked when she drops by the office. I wonder if she’d feel that way about Maman. She may know her man and (rightly?) not see me as any threat. And the truth is, I can’t see him messing around with someone young enough to be his daughter. Joe told me that Wynch, one of the real estate partners in the firm, left his wife for a woman 20 years younger than he (and a client no less; it was a major scandal but before my time); he said DG couldn’t understand it. “What does he want with that kid?” he said. “Who wants someone who can’t remember what she was doing when she heard that Kennedy had been shot?” I wonder if they realized what they were doing, how they were acting. Did they think my being there made it harmless? Did they go home and think about each other? This is making me uncomfortable. I will now try to stop thinking about it.
And that shouldn’t be too hard because I’ve got other things to think about. All the signs indicate I’m falling for Harry (thinking abou
t him too much and too often). Is that a terrible idea? I love that he’s good at what he does, that he likes to make things happen, that he’s articulate and funny and good-looking and sexy. On that last point, let’s just say he is, as you first described him, very talented. He wants to do Pinter next; he loves those Brits. But not, thank God, Betrayal. I can’t take any more adultery. I’m so glad I finished Anna Karenina and can now start War and Peace. Maman says there’s a real, solid (though, alas, a second) marriage in W&P. Levin is too irritating for me to take his marriage to Kitty as any kind of model.
Anyway, Harry’s been so wired the last two nights, nothing and I mean nothing could wind him down. And he was so happy. I like a man who can be happy. My father is capable of enthusiasm but not happiness. (I never seem to be able to get too far from my parents, the default templates of my life.) More to the point, Harry got up very early this morning and wrote me a poem, well, doggerel really. How can something be awful and heart-melting at the same time? Boy, does he have my number.
How are you doing? I know you’ve got six more performances in front of you. How are you holding up? Are you exhausted? I’m going to try to catch Tuesday’s performance.
Work has been overwhelming. I’m getting the hang of divorce (law is law in a lot of ways), but it’s so unnatural for me. I can’t keep focused on the Big Picture, as DG calls it. If I find a statute or a rule that applies, I’m like a terrier with a bone; I want to run with it, even if dropping it would be to everyone’s advantage, including mine. But I can’t go against Joe’s training. DG thinks this experience is good for me, opening me up to new ways of thinking. At least that’s what he said to my mother. Maman defended me—or rather defended crime. Do you think they will have an affair? I couldn’t bear it.
Next week the Management Committee is taking up the matter of Fiona McGregor’s vendetta against me. (That’s how I think of it, though as usual I exaggerate and put myself in the middle of a larger fight.) I can only lose. If she’s vindicated, she’ll rub my nose in it; if she’s reprimanded, she’ll rub my nose in it. I don’t know what I did to rouse her enmity. I keep thinking she’s jealous, but I can’t think of what. She’s great-looking, smart, successful (the youngest person ever made partner in the firm). She’s not married—but then neither am I. There are various theories. Judge Howard says it’s not so much Yale and the clerkship as the firm’s patriarchy which sets the women against each other. Maman says it’s not personal, Fiona’s jealousy, but familial and free-floating, attaching to people who remind her of a young sibling. It doesn’t matter who’s right; neither makes it any easier. I’d prefer it to be personal. Enemies should be earned.