# Opposition Brief — Richter v. Richter

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2557%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1042

## Text

‘means en Si
} Sk te r)
| ert R

Supreme Court of the United States

| oct 1°
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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2557%3A2. Public record. Not legal advice.