This is the sixth of a series of articles wherein I share a conversation I had with the executive producer and director of “Divorce Corp.” wherein we discussed the 58 reasons why I was unable to endorse the film. Since my last article covered points 21 through 25, I will start this article with my 26th point. In an effort to eliminate any possible confusion, the items in italics are my responses to Mr. Sorge. They are in italics because those responses were never sent to him.
Mark Baer:
“Twenty sixth, conflicts of interest exist everywhere and should be eliminated as much as possible. I don’t believe that judges should be elected – that would solve many problems with regard to their competency and conflicts of interest.”
Joe Sorge:
“If the government cannot operate with adequate checks and balances to eliminate conflicts of interest, then it needs to be reformed.”
I could not agree more!
Mark Baer:
“Twenty seventh, the issue from my perspective is not the contact that attorneys have with judges from being on committees and panels with them. Rather, the attorneys who can’t or won’t settle cases go to court far more often than other attorneys. Who do you think the judges get to know and become familiar with?”
Joe Sorge:
“Agreed. Again, these are good people operating in a bad system.”
I am not so sure that I agree with Mr. Sorge on that point because I am not so sure that attorneys who can’t or won’t settle cases are “good people.” However, I agree that the system is “bad.”
Mark Baer:
“Twenty eighth, jail time for non-payment of support. That happens if they are found in contempt of court AND it must be established that they had the means to pay the obligation and didn’t. Debtor prisons my *ss – Deadbeat prisons – that I agree with.”
Joe Sorge:
“No one could agree more that children should be cared for. No one could agree less that custodial parents be given more than what is needed to support their children, and also be allowed to spend it on anything they want. Take away the incentive to fight over custody time, and fix child support to the same dollar amount for every child in the state regardless of parental income and most of these problems will go away. Most parents are not deadbeats. The deadbeats are either drug addicts, alcoholics, or losers (who shouldn’t have custody at all) or parents who are protesting against what they believe to be an unfair system (and they are right).”
Interestingly enough, Marriage of Sorge was discussed in Attorney’s BriefCase’s “Ninth Annual Beyond the Basics – 2012 Year In Review – A Family Law Update” that I attended last year.
One of the points raised in Mr. Sorge’s appeal was whether or not California Family Code Section 2030 is a “need based” statute. Maryanne K. Sorge had approximately $14 million in assets, half of which were liquid, was receiving $12,000 per month in non-modifiable spousal support, and child support in the sum of $18,000 per month for their three children. The trial court had awarded Mrs. Sorge $200,000 incurred with regard to the child support motion.
The answer to whether or not someone is entitled to a fee award under California Family Code Section 2030 is “it depends upon the other party’s financial situation.” Mr. Sorge was worth in excess of $100 million, $64 million of which were liquid. If such fee awards were not permitted, one spouse could intentionally make a case an absolute nightmare in order to spend down the other spouse’s assets in an effort to get anything and everything they wanted.
The appellate court affirmed the trial court’s decision, finding that California Family Code Section 2030 is concerned with “relative” need. The appellate court found that since Mr. Sorge’s assets were far in excess of Mrs. Sorge’s, it was not an abuse of discretion to order him to pay her fees.
Another point raised in Mr. Sorge’s appeal involved business losses and child support. Mr. Sorge received $100 million for the sale of his company in 2006. He then invested some of that money in start-up companies, which had operating losses of $427,000 per month, but still had $64 million in liquid assets. Mr. Sorge’s liquid assets were generating an income of $225,000 per month. The issue was what his income was for purposes of child support.
Mr. and Mrs. Sorge retained Tony Yip as a joint expert to perform an analysis of their parties’ income and assets. Mr. Yip calculated Mr. Sorge’s income both including and excluding the business expenses. The losses were related to the start-up companies and comprised current operating expenses.
The trial court calculated the child support without taking into account the business losses. Mr. Sorge’s child support increased from $4,000 to $18,000 per month. Please note that the $4,000 per month child support figure was established before Mr. Sorge sold his business and when he was earning $800,000 per year. Remember that he sold his business for $100 million.
The question on appeal was whether or not the court could simply disregard those losses. The appellate court affirmed the trial court’s decision, finding that “the court may, in its discretion consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children…. [T]he court is not required to utilize a parent’s actual income in setting child support if it determines that the parent’s actual income does not reflect that parent’s earning capacity…. The trial court … was not required to use Mr. Sorge’s actual income in the guideline support formula…. Rather, it was within the court’s discretion to consider Mr. Sorge’s earning capacity in lieu of his actual income.” As Garrett C. Dailey, Esq., CFLS, AAML said, “Trial courts have great latitude when calculating child support to ensure that award is in the child’s best interests.” By the way, Garrett Dailey was Mr. Sorge’s appellate attorney.
As I said in The Hidden Agenda Behind the Making of Divorce Corp., “all things being equal, would children prefer to be with the parent who earns $250,000 per year or the one who earns $18,000 per year and there were no child or spousal support?” Does the answer change that much if the answer is to “fix child support to the same dollar amount for every child in the state regardless of parental income?” Wouldn’t that figure have to be such that it could be paid by a very low income earning parent? Does such a solution really sound as though Mr. Sorge is telling the truth when he says, “No one could agree more that children should be cared for?” However, he is certainly telling HIS truth when he says, “no one could agree less that custodial parents be given more than what is needed to support their children, and also be allowed to spend it on anything they want.” The problem is that child support is for housing, food, transportation, clothing, health care, child care, education, and miscellaneous expenses. How does Mr. Sorge suggest that we determine what is actually being spent on the child(ren)? What about the difference in rent between a one-bedroom, two-bedroom, or three-bedroom apartment, based upon the number of children involved? Is that money being spent “on the child(ren) from Mr. Sorge’s perspective? If one parent can only afford to live in a very low income area and the other parent can afford to live in an extremely affluent neighborhood, where do you think the child(ren) would rather spend their time? Mr. Sorge’s answer is the answer of an extremely wealthy parent who only cares to see things from his very elite perspective. In fact, Mr. Sorge claims that “most parents are not deadbeats. The deadbeats are either drug addicts, alcoholics, or losers (who shouldn’t have custody at all) or parents who are protesting against what they believe to be an unfair system (and they are right).”
Let me quote from the case In Re: the Marriage of Sorge, “On August 16, 2010, Maryanne filed a request for additional $60,000 in pendente lite attorney fees and $250 in costs to defend against Joseph’s appeal. According to Maryanne, because Joseph appealed the order of the trial court, he had not paid her any of the $18,030 in child support, $414,444 in child support arrears, $200,000 in attorneys fees, or $75,000 in sanctions that the trial court had ordered, but instead, posted a cash undertaking to stay the order for those amounts.” Guess what? Maryanne was awarded the $60,000 she requested in pendent lite attorney fees and that award was upheld on appeal. Which category of “justified” deadbeats does Mr. Sorge fit into? By the way, the more time a parent has with the child(ren), the more it costs them. In other words, they don’t really gain much, if anything, from a financial perspective by “fighting over custody time.” They may perceive otherwise or such fights are related to something completely different. Mr. Sorge’s “solution” is self-serving and shortsighted.
I would now like to quote Bruce E. Avery, Esq., who made the following comment: “One of the ironies is that Mr. Sorge is against ‘Best Interest of the Child.’ That was a father-friendly reform from the tender years doctrine. The child support guidelines were a reform from a system that was more specific to the individual family, but only for those who could afford to litigate it. Guidelines give us predictability and increase greatly the chance of settlement even though the outcomes do not align perfectly with each family’s financial reality and needs.
On one hand we went from a bright line rule to a consideration of this particular family (custody) and on the other we went from a detailed review of the family needs to math problems (child support)…. We have reduced the number of child support litigated cases with the implementation and maturation of the guidelines. So we have much less intrusion in child support and more in custody. It is all in the consequences of change.
The Scandinavian system described sounds civilized, but then, so do many of the other systems in place in Scandinavia, health care, government support for children, stronger “family leave act” rights for parents, old age pensions, etc. I don’t think you can adopt one system in a vacuum and expect it to work with our American systems.
If this movie stimulates a good reasoned discussion of the reforms needed and a consensus of what those reforms I will be grateful to Mr. Sorge.”
Mark Baer:
“Twenty ninth, mediation is supposed to be confidential and mediators should not be making recommendations to the court. This is not mediation. I know it happens and it is WRONG!”
Joe Sorge:
“Agreed.”
Mark Baer:
Thirtieth, as I said before, 85% of family law litigants are self-represented. The increase in court funding is not so that they can handle more work from law firms; rather, it is because they have a huge workload compared to other areas of law.”
Joe Sorge:
“This problem would go away if the laws were vastly simplified (and/or family court eliminated entirely).”
As I keep saying, the answer to this issue is to change the default process from litigation to mediation, as they have done in the Scandinavian countries and elsewhere.
To be continued…
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I went to see the film yesterday and I would begin by saying that I was extremely disappointed. The moment there is misrepresentation of facts and information the remainder is called into question. This is exactly the problem that Family Court Judges find themselves in. How do we know what facts and what information is correct when you know, for certainty, that some is absolutely misrepresented.
I do not think that the film is at all useful considering that, as a practicing Family Law attorney, I know that some of its content is misrepresentation of fact and information. It is a pity to take such an opportunity for an avenue of change and completely ruin its reliability.
For example: This film represents that Family Law attorneys require that parties fill out Income and Expense Declarations in order to determine how much money they have prior to taking the parties as clients and that they do this in order to see how much money they can spend. This an obvious misrepresentation since it is the Law, enforced by the Court, that requires parties to fill out and exchange Income and Expense Declarations as part of the mandatory financial disclosures and that typically the attorneys don’t draft the disclosures until after they are retained.
Further Example: Most attorneys do not file a FLARPL immediately and it isn’t all that easy to get a FLARPL against a client’s home. (FLARPL = Family Law Real Property Lien)
While I have heard Judges comment, upon reviewing the parties Income and Expense Declarations, that there are funds available to use; this is generally within a specific context. That context is usually when a case is high conflict, whether regarding property or custody, and the judge feels that the input of an expert in the field in question would assist. If there are funds available to pay for the cost of an expert to alleviate some of the fighting then it is money better spent than spending it on attorney fees. A Court can not order a Custody Evaluation or the appointment of a financial expert without the consent of the parties and certainly not if the parties can not afford it.
Watching the film I found a number of such blatant misrepresentations that I have to conclude that the film is biased and therefore not credible.
Certainly I agree that there are problems and I am not suggesting otherwise, but this film was a complete failure as a means to address those problems in my opinion.
Respectfully,
Rivka Israel, Esq.
The “obvious misrepresentation” you mention is not as obvious as it may seem.
First, most of the people who make the laws are attorneys and attorneys who are not legislators also influence the law. Second, even if the law requires something, that does not mean that someone cannot now use the law for their own benefit. It would be foolish to think that anyone wouldn’t be interested in whether a client had the wherewithal to pay their bills. So, there may not be a direct link (law created only for benefit of attorneys) but the indirect link can certainly provide opportunity for abuse.
The film may be biased in that they are using extreme cases to illustrate their points but if you look at it from the client’s point of view, I don’t know anyone who is happy with the family law system as it is currently structured. Perhaps presenting some of the more egregious examples will create the impetus for changes that we all agree are needed.
I completely agree with you, Jan.
If “everyone” is unhappy with it, why are so many people there, continuing– no matter the number of outcomes. costs, and people there are to indicate to them and advise them they are off course,–who continue to battle and fight and file “RFO” and contempt of court paperwork?
It is is not all the fault of “law.” There is way too much faulty thinking going on across the board. The problem is that in this area of law there are children who are “collateral damage”.