Opposition Brief — Richter v. Richter

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Supreme Court of the United States

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No. 01-549

S: . SCRe arse ae

IN THE

KEVIN J. RICHTER,

Petitioner,

BARBARAA. RICHTER,

Respondent.

On PETITION FOR A WRiT OF CERTIORARI

TO THE MINNESOTA CouRT OF APPEALS

BRIEF IN OPPOSITION

MICHAEL L. GJESDAHL

GJESDAHL & ASSOCIATES

107 North Eighth Street

Fargo, ND 58102

(701 )-237-3009

Attorney for Respondent

Barbara Dreyer (nee Richter)

170111

cs

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

QUESTIONS PRESENTED FOR REVIEW

Is marriage a “contract” protected by the Contract Clause

of the United States Constitution?

If so, must statutes permitting divorce be construed to

require proof of a traditional contract defense before a

Court can dissolve a marriage?

Was Kevin Richter deprived his right to a hearing with

the assistance of counsel?

il

TABLE OF CONTENTS

Page

Questions Presented for Review ................ 1

Table of Contents ...........................- ll

Table of Cited Authorities ..................... lil

Statement of the Case ........................ ]

Reasons for Denying the Writ.................. 3

I. Marriage Is Not A Contract Protected By The

Contract Clause ....................... 3

II. “Irretrievable Breakdown” Does Not Require

Proof Of A Contract Defense ............ 1]

Ill. Kevin’s Right To Counsel And Hearing Was

i PE ek 14

CORCUOM cs. 2340454 a5 ee 15

ill

TABLE OF CITED AUTHORITIES

Page

Cases:

Adams v. Palmer, et al., 51 Me. 480 (Maine 1863)

Dartmouth College v. Woodward, 4 Wheaton 518

MRM RMON) cece cen cnrrscdscesseensereees 7,9

In re Marriage of Franks, 542 P.2d 845 (Colo. 1975)

Maynard v. Hill, 125 U.S. 190 (1888) ..----+++°° 7,8,9

McCree v. McCree, 464 A.2d 922 (D.C. App. 1983)

icc eraectennancrher es esnseee* 10

Valladres v. Valladres, 80 A.D.2d 244 (N.Y. 1981)

Wade v. Kalbfleisch, 58 N.Y. 282 (New York 1874)

iv

Cited Authorities

age

Statutes:

setae thts TELE TE ETO CE Te ae 4

Ms BOWE 66 shi vhxn eend Oo etdaducceee.. 13

sapien i, ig ono GET TEER COPECO ESE, 14

es GUO aia. ss dens bekewdd dees. 13

Other Authority: |

No Fault Divorce and the Divorce Conundrum, 1991

A Se "ay, Sane lia eeE. 13

1

STATEMENT OF THE CASE

This matter was first scheduled for trial on March 24,

2000 before a Minnesota District Court. Upon the parties’

agreement, and with the Court’s consent, the parties instead

used that date for an informal pretrial conference, devoted

to settlement negotiations. Until such date, both Barbara

Richter (“Barbara”) and Kevin Richter (“Kevin”) were

represented by counsel.

On March 24, 2000, Kevin became dissatisfied with the

efforts of his attorney. He, thus, requested his attorney's

discharge. During a brief hearing, Kevin consented to the

discharge and advised that “I’m willing to represent myself

in this matter ...”.

And so, the first trial date passed.

By Order of April 5, 2000, the District Court gave notice

the matter would be tried on May 8, 2000. Kevin made no

effort to request a continuance of such final hearing until

providing the Court a letter request on May 5, 2000. He made

no showing that, until the absolute last moment, he’d used

the intervening period to obtain new counsel.

Earlier, on or about April 26, 2000, Kevin filed an

untimely “Motion to Dismiss” claiming, among other things,

that Minnesota’s dissolution statutes ran afoul of the Contract

Clause of the United States Constitution. He purported to

schedule a hearing on his motion to take place at the time

and date of trial. The same day Kevin filed his motion, the

District Court dismissed it, sua sponte, as “without merit”.

2

On the morning of trial, Kevin appeared, pro se, again

requesting a continuance. His request was denied. The Court

noted: (1) Kevin consented to the withdrawal of his attorney;

(2) Kevin’s request for continuance was not timely made;

and (3) Kevin’s request was made, not in good faith, but for

purpose of delay. Whereupon, Kevin chose to participate no

further and left the Courthouse. The trial took place without

him.

During the trial, Barbara testified that her marriage was

irretrievably broken, beyond repair or salvation. To explain,

she testified that her marriage was loveless and without

intimacy. She and Kevin had longstanding disagreements on

morals and values. They had been physically separated for

over six months. Kevin was controlling and she was unhappy.

Having been re-exposed to the outside world by taking

‘employment, Barbara decided “this isn’t the way life is

Suppose to be”. Her life with Kevin had been one of slights,

subjugation, and submission. During the marriage, Kevin had

been physically abusive to her on two occasions and, on other

occasions, would “tense up and turn red”. Barbara suggested

marital counseling to Kevin, “but he said he was happy the

way things were, that he wo hange, that everything

was my problem.” ndvdalgscling motivated Barbara

to ask Kevin whether he love her. He declined to answer.

Most poignantly, Barbara added that her desire to

dissolve the marriage was also motivated by a desire to spare

her children, as much as possible, the same control and

negativism she had long experienced at Kevin’s hands. Kevin

never recognized an opportunity to praise and encourage the

children, or missed a chance to criticize and second guess

them. Tragically, tellingly, the children, too, distanced

themselves from Kevin.

3

Lastly, Barbara explained that she and Kevin experienced

differences in their faith lives. She is Lutheran. Kevin was a

work in progress, evolving from Catholic to Lutheran, from

Lutheran to amorphous fundamentalism. Barbara cast no

aspersion on Kevin’s belief system, but merely described it as

different from her own.

The Court issued its Findings of Fact, Conclusions of Law

and Judgment on May 22, 2000. On May 26, 2000, it entered

Amended Findings of Fact, Conclusions of Law and Judgment,

to correct a clerical mistake. Kevin timely appealed to the

Minnesota Court of Appeals, asserting his “Contract Clause”

argument. His argument was rejected and the judgment affirmed.

Kevin then unsuccessfully petitioned for discretionary review

by the Minnesota Supreme Court.

REASONS FOR DENYING THE WRIT

I.

MARRIAGE IS NOTA CONTRACT PROTECTED BY

THE CONTRACT CLAUSE ~

Kevin’s argument is premised upon his assertion that

marriage is a contract for all purposes. Kevin's assertion has

never been adopted by any Court in this land. To the contrary, it

has been rejected time and again, once by the United States

Supreme Court.

It is a longstanding legal bromide that “marriage is a

contract”. However, case upon case makes clear that it is a

contract only in the formation. In Minnesota, this principal is

codified:

Marriage, so far as its validity is concerned, is

a civil contract between a man and a woman, to

4

which the consent of the parties, capable of

contracting, is essential.

MS., § 517.01 (emphasis supplied).

Down the corridors of time, whenever a litigant has

claimed marriage to be a contract for all purposes, the

involved Court has disagreed, explaining that the only real

similarity between the two is that some minimum capacity

is required to enter each relationship.

For example, in 1846, by an Act of the Maine Legislature,

Franklin Adams, was divorced from his wife, Mary, and later

took a new wife. Mary contested the validity of Franklin’s

second marriage and, by extension, the validity of the

legislative divorce. Mary argued that “marriage is a contract

like other contracts, that its obligations cannot be impaired

without violating the clause in the constitution of the United

States prohibiting the passage of any law impairing the

obligation of contracts.” Adams y. Palmer, et al., 51 Me. 480

(Maine 1863). The Supreme Court of Maine roundly, and at

length, rejected Mary’s position:

. it will be found that there are grave and

important differences between marriage and other

contracts.

The contract to marry is like other contracts

and subject to the same law. It is a contract to

enter into a given relation — a peculiar status.

But, when once the contract to marry has been

performed, the original contract, antecedent to

such marriage, is at an end. The parties, having

complied with its terms, they cease to have rights

wee ee

ee

5

under or by virtue of it. A new relation has been

entered into, and the mere assent of the parties to

enter into such relation does not thereby make such

relation a contract.

When the contracting parties have entered into

the married state, they have not so much entered into

a contract as into a new relation, the rights, duties

and obligations of which rest, not upon their

agreement, but upon the general law of the State,

statutory or common, which defines and prescribes

those rights, duties and obligations. They are of law,

not contract. It was of contract that the relation

should be established, but, being established, the

power of the parties, as to their extent or duration, is

at an end. Their rights under it are determined by

the will of the sovereign as evidenced by law. They

can neither be modified nor changed by any

agreement of the parties. It is a relation for life; and

the parties cannot terminate it at any shorter period

by virtue of any contract they may make. The

reciprocal rights arising from this relation, as long

as it continues, are such as the law determines from

time to time, and none other.

Adams, id., at 482-483.

The Adams Court, thus, concluded that divorces were not

invalid as impairing the obligation of contracts. Adams, id., at

486.

In Wade v. Kalbfleisch, 58 N.Y. 282 (New York 1874), the

question at hand was whether the breach of a promise to marry

could be asserted against the executor of one of the parties.

The New York Code then maintained that “all other actions upon

6

contract” could be maintained against executors. The

question thus framed — is marriage a contract? — was

resolved decisively, in the negative, by the New York Court

of Appeals:

The general statute, “that marriage, so far as

its validity in law is concerned, shall continue in

this State a civil contract, to which the consent of

the parties, capable in law of contracting, shall be

essential”, is not decisive of the question. (citation

omitted). This statute declares it a civil contract,

as distinguished from a religious sacrament, and

makes the element of consent necessary to its

legal validity, but its nature, attributes and

distinguishing features it does not interfere with,

or attempt to define ... The relation is always

regulated by government. It is more than a contract

... It partakes more of the character of an

- institution regulated and controlled by public

authority, upon principies of public policy ...

It has been held not to be a contract within the

provision of the United States Constitution,

prohibiting States from passing laws impairing the

obligations of contract. (5 Barb., 480; 6 Conn.,

540; 7 Dana, 181; 4 R.I. 87.) ... The marriage

relation is essentially personal. Neither the rights,

duties or obligations flowing from it can be

transferred, and the action scarcely resembles in

its main features, an action upon contract. In short,

no court would be justified in holding that it is -

an action upon contract, within the meaning of

the statute referred to.

Wade, id., at 284-285 (emphasis supplied).

7

Kevin, in this case, makes much of the United States

Supreme Court case of Dartmouth College v. Woodward, 4

Wheaton 518 (U.S. 1819). That case directly provides that

the Contract Clause of the United States Constitution

“has never been understood to restrict the general right

of the legislature to legislate on the subject of divorces”.

Nevertheless, Kevin asserts that, by implication or

suggestion, the true holding of Dartmouth College is directly

contrary to its express language. AS the Minnesota Court of

Appeals noted, Kevin’s position is founded upon his errant

interpretation of the following sentence.

When astate legislature shall pass an act annulling

all marriages, OT allowing either party to annul

it without the consent of the other, it will be

time enough to inquire whether such an act be

constitutional.

Dartmouth College V. Woodward, 4 Wheaton at 629.

Kevin evidences his continued misconception by

claiming here that, by the foregoing words, “Chief Justice

Marshall did not deny, but affirmed that marriage is after all

a contract entitled to constitutional protection”. In this

respect, as the Minnesota Court of Appeals correctly noted,

Kevin “misreads the Supreme Court’s statements on the

subject of whether marriage is a contract.”

To the extent there is any confusion regarding the opinion

of the United States Supreme Court on the question at hand,

such confusion was resolved in Maynard v. Hill, 125 US.

190 (1888). David and Lydia Maynard were married in 1828.

In 1850, David left for the riches of California, leaving Lydia

behind. He eventually landed in Oregon Territory, later

8

reconstituted as Washington Territory. In 1852, without notice

of any kind to Lydia, David obtained a divorce from her by

act of the Territorial legislature. Years later, the validity of

that divorce was central to a property dispute.

Justice Field began the Court’s opinion in Maynard by

affirming, conclusively, that legislatures are empowered to

act upon matters of divorce, except to the extent their powers

are constitutionally limited:

When this country was settled, the power to

grant a divorce from the bonds of matrimony was

exercised by the parliament of England. The — |

ecclesiastical courts of that country were limited |

to granting of divorces from bed and board.

Naturally, the legislative assemblies of the

colonies followed the example of parliament and

treated the subject as one within their province.

And, until a recent period, legislative divorces

have been granted, with few exceptions, in all the

states. Says Bishop, in his Treatise on Marriage

and Divorce: “The fact that at the time of the

settlement of this country legislative divorces

were common, competent, and valid in England,

whence our jurisprudence was derived, makes

them conclusively so here, except where an

invalidity is directly or indirectly created by a

written constitution binding the legislative

power.

Maynard, id., at 206 (emphasis supplied).

And, thus, the question became this: Was the Washington

Territorial legislature’s authority to grant Maynard’s divorce

9

limited by any applicable constitutional provision? Justice

Field then framed the issue which makes Maynard

germane to this case. He said the legislature’s authority was

“undoubted, unless the marriage was 4 contract within the

prohibitions of the federal constitution against its impairment

by legislature” ... and that “[t]he only inconsistency

suggested is that it [the Maynard divorce] impairs the

obligation of the contract of marriage.” Maynard, id., at 210.

With the question so framed, Justice Field stood firmly

upon Chief Justice Marshall’s conclusion in Dartmouth

College that the Contract Clause “has never been understood

to restrict the general right of the legislature to legislate on

the subject of divorces”. He then stated, “we are clear that

marriage is not 4 contract within the meaning of the

prohibition”. Maynard, id., at 210. By way of further

explanation, Justice Field larded the Court’s decision with

lengthy quotations, approvingly including those set forth

above from the Adams and Wade cases.

And so, the United States Supreme Court made itself

quite clear: Marriage is nota contract like any other. Nor is a

legislature’s power to regulate it restricted in any respect by

the Contract Clause of the United States Constitution.

In more recent times, one Maurice Franks — an attorney

— also [unsuccessfully] argued that Colorado’s no-fault

divorce scheme constituted an impairment of the obligation

of all marriage contracts. In re Marriage of F ranks, 542 P.2d

845.' In response, the Franks Court held:

——

1. Perhaps detracting from his credibility, Mr. Franks also argued

that by requiring him to work to pay his wife’s attorney’s fees, the

trial court had acted contrary to constitutional prohibitions against

slavery.

10

It has been stated on numerous occasions that

a marriage is a contract between the parties. While

this may be so, it is undeniably distinguishable

from the ordinary civil contract. The institution

of marriage has always been peculiarly a creature

of the state, and subject to regulation by its

legislature. In this aspect, marriage is the subject

of a more immediate interest to the state than is

the ordinary contract. These differences have

resulted in the determination that marriage is not

a “contract” within the meaning of the contract

clause of the constitution. Goldberg v. Musim, 162

Colo. 461, 427 P.2d. 698; Maynard v. Hill, 125

U.S. 190, 8 S. Ct. 723, 31 L. Ed. 651; Ryan v.

Ryan, 277 So. 2d 266 (Fla. 1973); In re marriage

of Walton, 28 Cal. App. 3d 108, 104 Cal. Rptr.

472; Adams v. Palmer, 51 Me. 480.

Franks, id., at 850.?

In short, decade after decade, century after century, Court

after Court has roundly rejected the argument Kevin puts

forth here. The law is clear. Marriage is not a contract like

any other. Legislatures are empowered to regulate the

institution and are not constrained by state or federal

constitutional Contract Clause. A litigant who factually meets

a Statutory standard to obtain a divorce is entitled to it.

2. A string of similar cases holds that “equitable distribution”

divorce statutes do not offend constitutional Contract Clauses.

McCree v. McCree, 464 A.2d 922 (D.C. App. 1983); Valladres v.

Valladres, 80 A.D.2d 244 (N.Y. 1981); Rothman v. Rothman, 65 N.J.

219, 320 A.2d 496 (N.J. 1974).

11

Il.

“]RRETRIEVABLE BREAKDOWN” DOES NOT

REQUIRE PROOF OF A CONTRACT DEFENSE

Kevin conditionally argues that if, and only if, marriage

is a contract protected by the Contract Clause, to maintain

its constitutionality the Minnesota’s statutory standard for

granting dissolutions — i.e., there has been an “irretrievable

breakdown” of the marital relation — requires proof of a

traditional contract defense. He variously asserts that

“irretrievable breakdown” must be interpreted to require

proof of “material breach” of the marital contract, “actual

impossibility” of performance, or facts justifying “avoidance

or rescission of a contract”.

The Minnesota Court of Appeals nicely provided three

reasons why Kevin’s argument fails. First and foremost, of

course, it agreed with the foregoing sentiments: Marriage is

not a contract protected by the Contract Clause of United

States Constitution.

Second, it explained that, even if marriage is a contract,

Kevin “failed to introduce any evidence of the terms of his

contract.” In his Petition here, however, Kevin explains that

“the marriage contract has always assumed customary

obligations and mutual expectations of fidelity, protection,

succor, sexual union, and care of children.” By extended

reasoning then, he can only be proposing that, before granting

divorces, courts devote themselves to a detailed examination

of questions such as these: Has party A provided party B

contractually sufficient succor? Has each party fulfilled the

other’s sexual expectations? What evidence is there of

unfaithfulness? In other words, Kevin largely urges a return

12

to the old fault days. For the following reasons, however,

those days have been left behind:

i.

No-fault grounds, it was hoped, would reduce parties’

hostility for one another. The old fault grounds, with

their antiquated defenses, were thought to breed costly,

bitter, litigation, which impeded the likelihood of

reconciliation and wrought destruction extending

beyond the parties themselves, but to children and

extended families, too. In addition, the old fault grounds

left the parties no alternative but to make their most

intimate facts — which were often embarrassing or

humiliating — matters of public knowledge.

No-fault grounds were necessary to protect the integrity

of the legal system. To prove fault grounds, parties

mutually desiring a divorce would perjure themselves.

Sympathetic Judges found “cruelty” in thin air.

Attorneys and clients arranged phony out-of-state

residences to access more lenient laws. The system

winked at lies and, consequently, shared in the deceit.

No-fault grounds bridged the gap between the law-as-

written and the law-as-applied. The inability of the law

to enforce the ancient fault ground goals had become

obvious. Courts were granting no-fault divorces, but

simply weren’t saying so. The law was simply unable

to force an unhappy spouse to continue on with a

despised partner.

No-fault grounds more accurately reflected modern

notions of marriage and divorce. Blameworthiness was

regarded as less important and, also, more complex than

the former belief that, in all instances, one party bore

13

all fault for the marital demise, the other none. This more

modern belief accepted the notion that the state had little

interest in unduly preserving as fiction marriages

considered, by one or both spouses, irretrievably broken.

No Fault Divorce and the Divorce Conundrum, 1991

B.Y.U. L. Rev. 79

For the foregoing reasons, among others, in 1969,

California became the first jurisdiction in America (and the

Western World) to adopt a modern, purely “no fault” divorce

scheme, when it passed the Family Law Act of 1969. Since

then, every State in the Union, save Arkansas, allows some

type of “no fault” divorce. No good reason exists to accept

Kevin’s invitation to jettison the virtually unanimous wisdom

of the day.

Third and finally, the Minnesota Court of Appeals

dismissed the assumption implicit in Kevin’s argument,

namely, that Minnesota’s statutes allow divorce too easily

or, as he characterized, “on demand”. Those statutes most

definitely do not.

In Minnesota, all grounds for, and defenses to, a divorce

action were abolished by statutory amendments in 1974 and

1978. M.S., § 518.06. The sole ground for dissolution of a

marriage is an irretrievable breakdown of the marriage

relationship. Id. The term “dissolution of marriage” means

the same thing as “divorce”. M.S., § 518.002.

If one party, as in this case, denies under oath or

affirmation that the marriage is irretrievably broken, the

Court must consider all relevant factors, including the

circumstances giving rise to the action and the prospect of

reconciliation, and shall make a finding whether the marriage

14

is, indeed, irretrievably broken. M.S., § 518.13, subd. 2.

A finding of “irretrievable breakdown” is a determination

that there is no reasonable prospect of reconciliation. /d.

The finding must be supported by evidence that:

1. the parties have lived separate and apart for a period

of not less than 180 days immediately preceding

commencement of the proceeding; or

2. there is serious marital discord adversely affecting

the attitude of one or both of the parties toward

marriage. Id., emphasis supplied.

The above-described statutory scheme, by its own terms,

refutes Kevin’s claim that Minnesota’s statutes permit cavalier

dissolution or sanction “divorce on demand”. The State District

Court in this case heard ample evidence of “serious marital

discord” and made appropriate findings.

Il.

KEVIN’S RIGHT TO COUNSEL AND HEARING

WAS HONORED

Kevin asserts that he was denied his 14th Amendment

right to counsel and hearing. He was not. He had an attorney,

but urged, then consented to, that attorney’s discharge six

weeks before trial. He was given over a month’s notice of

the trial date. He appeared at the time, date and place of trial,

but of his own volition refused to participate. Kevin was not

denied the right to counsel or hearing. He simply chose not

to avail himself of those rights. He now asks this Court to

spare him the consequences of his own free choices.

15

CONCLUSION

This case possesses none of the features which favor

review by the United States Supreme Court. It involves no

conflict between Courts of different States or federal Circuits.

It involves no unsettled, unresolved issue.

Respondent respectfully prays that this Honorable Court

deny the petition.

Respectfully submitted,

MICHAEL L. GJESDAHL

GJESDAHL & ASSOCIATES

107 North Eighth Street

Fargo, ND 58102

(701)-237-3009

Attorney for Respondent

Barbara Dreyer (nee Richter)