Opposition Brief — Seal v. Seal

(y) ogrema Court, UE

FILED

No. 94-137

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

.

PERRY F. SEAL, JR.,

PETITIONER,

vs.

KATHLEEN F. SEAL,

RESPONDENT.

+

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

+

BRIEF FOR THE RESPONDENT

KATHLEEN F. SEAL

COUNSEL FOR RESPONDENT

STEPHEN F. WHITMORE

State Bar 112196

BLEY AND BLEY

353 Sacramento Street

Suite 1300

San Francisco, CA 94111

(415) 982-7311

'BEST AVAILABLE COPY P= :

J

:

* 2

\

é F

i

Sy

C

4

ee

oY

Pr

?

a

44h

g 2

<}F

/

«

;

'

‘

°

i

: }

te

\

y

4

‘

i

1

one

€=>

. t

ssa

aR 4

— ~~

Py

r

%

©

~s?

a a

i

QUESTION PRESENTED

Do Petitioner's claims that in a

marital dissolution proceeding, the

California Superior Court, the California

Appellate Court, and the California

Supreme Court did not properly divide

marital assets, award attorneys' fees and

costs, and resolve custody/visitation

issues, establish a jurisdictional basis

for this Court to grant a writ of

certiorari?

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES .. .

OPINIONS BELOW ..... «

JURISDICTION ....4.46s

CONSTITUTIONAL AND

PROVISIONS INVOLVED .

REASONS FOR DENYING THE WRIT

CONCLUSION .. .

STATUTORY

iii

19

nae MME

iii

TABLE OF AUTHORITIES

Page

CASES

Ankenbrandt v. Richards (1992) 112 S.Ct.

2206 Teer eee ££ £2 og Ue 5

am RG BUrrisé, 136 U.8. $66 .. «ss... 8

STATUTES AND RULES

28 U.8:C. §1297(3) «. . ss... 2 1, 3

28 U.S.C. §1257(a) io oe et oe ae ae fo Be 3

CALIFORNIA CODES

ee ee

ee eee, oar

OTHER

Public Law 100-352 a a? a a ae oe ae ee 3

No. 94-137

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

e

PERRY F. SEAL, JR.,

PETITIONER,

vs.

KATHLEEN F. SEAL,

RESPONDENT.

‘

RESPONDENT'S BRIEY IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA SUPREME COURT

+

OPINIONS BELOW

Appear in Appendix A to Petitioner's

Petition for Writ of Certiorari, and in

Appendix B to this brief.

4

JURISDICTION

As explained herein, this Court has

1

2

no jurisdiction to review this matter

under 28 U.S.C. §1257(3).

*

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Petitioner Perry Seal claims herein

that the decision of a California trial

court in a marital dissolution

proceeding, which was affirmed by the

California Appellate and Supreme Courts,

regarding the characterization and

division of marital assets, the award of

attorneys' fees and costs against

Petitioner, and custody/visitation

issues, rises to the level of federal

jurisdiction under the 28 U.S.C. 1257(3).

Pursuant to California Family Code

§2010, and predecessor statutes, the

authority of California state courts to

make factual and legal decisions

regarding a marital dissolution of

3

California residents has long been upheld

to be a valid and constitutional exercise

of judicial authority.

In this matter, the division of the

parties' marital assets, the award of

attorneys' fees and costs’ against

Petitioner, and the custody/visitation

rulings, which are the basis’ for

Petitioner's request for relief by this

Court, were all affirmed by:

1. the decision of the California

Supreme Court following a trial at which

Petitioner appeared, testified and

presented the testimony of witnesses;

es the California Superior Court,

on Petitioner's motion for a new trial;

3 the California Court of Appeal,

by a decision attached as pages 32-69 of

his Petition for Writ of Certiorari;

4. the California Court of

Appeal, by decision denying Petitioner's

4

motion for reconsideration (attached

hereto as Appendix B); and

5. the California Supreme Court,

by decision attached as page 31 of

Petitioner's Petition for Writ of

Certiorari, which denied Petitioner's

Petition for Review.

+

REASONS FOR DENYING THE WRIT

Petitioner erroneously claims that

his Petition for Writ of Certiorari

should be granted pursuant to 28 U.S.C.

§1257(3). Firstly, section 1257(3) does

not exist, as it was amended and stricken

by Public Law 100-352, effective June 27,

1988.

Secondly, to the extent that

Petitioner is presumably claiming

jurisdiction under 28 U.S.C. §1257(a),

the actions of the Superior, Appellate

and Supreme Courts of California, in

5

dividing the parties' marital assets,

awarding attorneys' fees and costs, and

ruling on custody/visitation issues, were

neither (a) repugnant to the United

States Constitution, or (b) violative of

Petitioner's due process and equal

protection rights.

California's grant of jurisdiction

to its Superior Courts to review and

determine all proceedings for marital

dissolution, support, division of

property, and child custody/visitation is

established by California Family Code

§2010, a statute derived from former

Civil Code §4351, which was originally

enacted in 1970. Nothing therein is

repugnant to the United States

Constitution. To the contrary, such a

statute is consistent with the well-

established principle that "the whole

subject of domestic relations of husband

6

and wife, parent and child, belongs to

the laws of the States and not to the

laws of the United States." (In Re

Burris, 136 U.S. 586, 593-594, 10 S.Ct.

850, 34 L.Ed 500 (1890); see, also,

Ankenbrandt v. Richards (1992) 112 S.Ct.

2206, 2214-2215, 119 L.Ed.2d 468, 482-

483.)

Petitioner's contentions that he was

denied his due process and equal

protection rights are equally erroneous.

Petitioner was afforded a full and fair

opportunity to be heard at the Superior

Court trial proceedings, at which he was

present and represented by counsel, and

at four separate requests for review, all

filed by Petitioner's attorney, which

have been rejected by the California

Superior, Appellate and Supreme Courts.

In addition, the fact that the

California Trial Court found that

7

Petitioner did not satisfy his burden to

establish evidence to support his

positions in no way constitutes a

constitutional denial of due process or

equal protection rights. Rather, as this

matter manifests, Petitioner's basis for

his Petition for Writ of Certiorari is

premised on nothing more than the fact

that he is a disgruntled individual who

refuses to accept the decisions of every

California Court that has ruled against

him.

Beneath the facade of Petitioner's

attempt to argue that this matter

involves a cognizable federal question is

the basic fact that the issues presented

by Petitioner involve simply factual

questions regarding the actions and state

of mind of the two parties herein. As

Petitioner concedes, the thrust of his

Petition for Writ of Certiorari is that

8

he disagrees with the trial court's

finding, and the affirmance by both the

California Appellate Court and the

California Supreme Court, that Respondent

(hereafter "Mrs. Seal") did not knowingly

and voluntarily execute a quitclaim deed

in 1978.

This issue has absolutely no

relevance to any federal question or

other basis for invoking this Court's

jurisdiction. Rather, the issue is

simply one of what factually transpired

between these two adult spouses in a

personal matter, and the credibility of

the testimony of each of the parties on

this matter. For this reason alone, the

Petition for Writ of Certiorari should be

denied.

If, however, for some reason, this

Court were to look inte the facts of this

case, the following evidence introduced

EE —E——

9

at the Superior Court trial amply

supports the ruling of the trial court,

as affirmed by the California Appellate

Court and California Supreme Court, that

Mrs. Seal did not knowingly and

voluntarily execute a quitclaim deed

relinquishing her community property

interest in the Hayward, California

property:

1. Throughout the marriage,

Petitioner would routinely ask Mrs. Seal

to sign either blank documents or

documents that she did not understand;

2. When Mrs. Seal asked Petitioner

about the meaning of documents that he

asked her to sign, Petitioner would

refuse to explain them, by telling Mrs.

Seal that because she only had a junior

college education, and he was a Harvard

MBA, she was not intelligent enough to

understand the document;

10

3. After Mrs. Seal signed

documents, she never saw them again and

did not know what information’ was

contained therein;

4. The only time Mrs. Seal could

recall ever signing a document before a

notary was when the parties opened an

equity line of credit;

5. Mrs. Seal's understanding was

that all property acquired during the

marriage was community property;

6. At no time during the marriage

did Mrs. Seal knowingly and voluntarily

waive any claim that she had to a

community interest in the Hayward

property;

7 Petitioner never discussed the

contents or meaning of the quitclaim deed

with Mrs. Seal at the time that she

executed the document;

8. The date of Mrs. Seal's

11

execution of the quitclaim deed differs

from the date her signature was

notarized;

9. The notary could not explain

the discrepancy in these dates; and

10. The combination of Petitioner's

history of insisting that Mrs. Seal sign

documents in blank without explaining

their contents, Petitioner's humiliation

of Mrs. Seal when she would inquire about

the contents and meaning of documents,

Petitioner's total control oof all

financial matters, and Mrs. Seal's intent

never to knowingly waive any community

property, were sufficient to overcome any

rebuttable presumption of title created

solely by Mrs. Seal's signature on the

document.

Furthermore, and of utmost

importance, is the fact that since there

was conflicting testimony regarding the

12

facts surrounding the quitclaim deed, the

trial and appellate courts necessarily

had to determine the credibility of each

party in order to make its ruling on this

issue.'

As the Court of Appeals’ stated:

"The trial court had the parties before

it and was able to assess’ their

credibility."

On the issue of Petitioner's

credibility, there was substantial and

overwhelming evidence of his lack of

veracity and credibility, both during the

marriage, and in his trial testimony,

based on the following:

' For example, Petitioner

testified that he "absolutely" discussed

with Mrs. Seal the separate property

nature of the purchase of the Hayward

property. Mrs. Seal, on the other hand,

denied that Petitioner ever discussed the

quitclaim deed with her, that she was

aware of its contents, or that she ever

waived any community claim to the Hayward

property.

13

i. Petitioner, a MBA from Harvard

and a member of the California Bar,

failed to file any business tax returns

and financial statements with the IRS for

1982, 1983, 1984, 1985, 1986, 1987, 1988,

and 1989. Petitioner never informed Mrs.

Seal of this fact.

2. Petitioner claimed that tax

returns and financial statements were

prepared for 1982, 1983, 1984, and

possibly 1985, but mysteriously, and for

no plausible reason, they were never

filed.

3. Petitioner's own accountant/

expert completely contradicted

Petitioner's testimony, because in

reviewing all of Petitioner's financial

records, Petitioner's accountant/expert

could not find a single one of these

"prepared but unfiled" tax returns for

1982-1985.

14

4. Petitioner completely

contradicted himself by testifying that

he provided these non-existent’ tax

returns to Mrs. Seal during discovery.

5. Petitioner's explanation of why

no tax returns and financial statements

were prepared for 1986, 1987, 1988, and

1989 was equally implausible and

unbelievable. According to Petitioner,

he didn't prepare these tax returns and

financial statements because his

bookkeeper was in an automobile accident.

Although this bookkeeper was still able

to function "intermittently," Petitioner

kept waiting for four years for her to

return to full capacity because "it was

better to wait" than to take other

appropriate action to file these tax

returns on a timely basis.

6. On the parties' personal tax

returns for 1985, 1986, and 1987,

et MELO EO BA ELLER

15

Petitioner knowingly failed to report

approximately $100,000 in rental income

he received from the corporation.

Petitioner never informed Mrs. Seal of

this fact. aa. though this information

was available from the corporation's

financial records, Petitioner claimed

that he didn't include this income on the

parties' tax returns because "he had no

easy way of determining the amount of

rent" paid to him. Petitioner's conduct

triggered an audit which resulted in his

hiring accountants and a tax attorney to

prepare eight years of tax returns, and

to advise him regarding his potential

criminal liability.

qs As part of Petitioner's total

management and control of his

corporation, he routinely charged

personal family expenses for the parties

and their children to the corporation and

16

declared them for tax purposes as

"business expenses." These expenses,

including travel, first class lodging,

dining, clothing, car, and recreation,

were consistently funded through the

corporation.

8. As part of his manipulation of

the parties’ financial affairs,

Petitioner routinely engaged in the

illegal practice of "kiting," whereby he

would issue a check to the corporation

from the parties' personal community

account, knowing that there were

insufficient funds to cover the check.

Simultaneously, Petitioner would write a

check from the corporation and deposit it

into the community personal account.

Petitioner justified this practice on the

basis that it was a way to “handle a

short term cash flow problem in the

corporation." In fact, this "short term"

17

kiting continued throughout the marriage.

9. Petitioner attempted to

introduce evidence of three promissory

notes which he claimed showed money he

owed to his parents, which he scated was

used for business purposes. However,

Petitioner's own expert/accountant

admitted that the figures for these for

these notes were not supported by any

financial records of the corporation.

10. In February of 1990, the trial

court ordered Petitioner to pay to Mrs.

Seal one-half of the monthly rent he

received from his corporation.

Petitioner never paid this money to Mrs.

Seal, claiming that after eight or nine

years of receiving this rent from the

corporation, the corporation could

suddenly no longer afford to pay it.

Petitioner's arbitrary decision to stop

collecting rent was contemporaneous with

18

the separation of the parties and the

filing of this dissolvtion proceeding in

January of 1990. Petitioner denied that

the timing of his decision not tea comply

with the trial court's order was anything

other than coincidental.

11. As part of the same interim

order which required Petitioner to pay

Mrs. Seal one-half of the rent payments,

Petitioner was also required to provide

Mrs. Seal with monthly accountings of the

corporate finances. Petitioner has

refused to “o*oly with this order, even

though as President and Chief Executive

Officer of the corporation, he clearly

had the ability to do so.

12. Throughout the trial,

Petitioner made numerous claims that

various assets were his separate

property. As the California Superior

Court found, Petitioner did not produce

19

any documentary evidence in the form of

contemporaneous bank statements,

receipts, cancelled checks, or

correspondence to support these claims.

Moreover, this was not a case where such

documentation was unavailable to

Petitioner. To the contrary, since

Petitioner personally and solely managed,

controlled, and dictated all of the

corporation's financial affairs, as well

as the personal financial affairs of the

parties, he was the one person who had

access to whatever information he claims

existed to support his separate property

claims.

13. The trial court found that

"there is considerable evidence before

the court that H (Petitioner herein) has,

by stalling and failing to cooperate with

respect to the property issues in this

case, and by his negligent handling and

20

intermixing of the community's funds with

those of his own, substantially increased

W's (Respondent herein) attorneys' fees

and accountant's fees....H clearly

emerges as the primary ‘frustrator'" of

settlement. (Material in parentheses

added. )

4

CONCLUSION

Based on the foregoing, and contrary

to Petitioner's position, the decisions

of the California Superior, Appellate and

Supreme Courts did not violate his Fifth

and Fourteenth Amendment’ rights’ by

dividing the parties' marital assets in

accordance with California law, awarding

Mrs. Seal attorney's fees and costs

against Petitioner based on his

intransigent, obstructionist and _ bad

faith conduct, or ruling on the

custody/visitation issues. Similarly,

21

these courts did not base their decisions

on a standard of who was the "greatest

perceived victim," or deny Petitioner his

legal rights by perpetrating some

cognizable wrong “against our social and

economic institutions."

Equally important, none of these

issues, which ali involve factual

determinations by a California trial

court relating to the parties’ marriage,

rise to the level of any federal question

upon which the jurisdiction of this Court

may be invoked by Petitioner.

The Petition for Writ of Certiorari

should be denied.

Dated: August 20, 1994

Respectfully submitted,

STEPHEN F. WHITMORE

Attorney for Respondent

KATHLEEN F. SEAL

APPENDIX B

COURT OF APPEAL OF THE STATE OF CALIFORNIA

IN AND FOR THE

FIRST APPELLATE DISTRICT

DIVISION FOUR

FILED

MAR 2 1994

LOutt Of Appea! - Fist

KATHLEEN SEAL REN D BARS6 Clan

vs. Sh

PERRY SEAL, JR. vere

IN RE THE MARRIAGE OF SEAL

A058507

SAN MATEO CO. NO. 347633

BY THE COURT:

By letter appellant, Perry Seal, has made what we construe

to be a motion for reconsideration of our denial of his petition for

rehearing. That motion is Yenied as is his accompanying request for

judicial notice.

Dated: HAR 2 ‘ 1394

Pod.