Of failings and filings
By Richard Halicks
Many divorces have all the drama of returning a shirt to Target. The combatants simply exchange one contract for another, the first for love, the second for money.
Occasionally, when a divorce is contested, the file reads like a Greek tragedy with a case number.
In either instance, the files are almost always open for public inspection. That is not the case, however, in the matter of Susan Richardson v. Glenn Richardson.
When it comes to the divorce of the state speaker of the House, “the general public shall not have access to the following documents,” said a Feb. 6 order entered by Paulding County Superior Court Judge James Osborne. He then listed “the complaint for divorce with attached verification; acknowledgment of service; consent to trial; agreement; child support worksheets.”
Atlanta divorce attorneys, judges and court clerks said last week that it’s unusual for a court to seal a divorce case.
“A couple of people who had been divorced who I know personally have called and said, ‘I’m mad now. I wanted to get my case sealed, and I couldn’t. And I wanted to pick my own judge, and I couldn’t,’ ” said Debra DeBerry, chief deputy in the DeKalb County Superior Court Clerk’s office.
“I spoke with a judge yesterday about sealing divorce cases,” she said, “and he couldn’t remember if he ever sealed any. I can’t think of any off the top of my head.”
Other Atlanta-area court clerks said similar things; it’s not known how many cases lie under seal in metro Atlanta courts, but it’s clear that closed files are the exception, not the rule.
“We seal maybe two records a year,” said Gwinnett Clerk of Courts Tom Lawler. “I can’t remember —- I’ve been clerk for 12 years —- a sealed divorce in a very long time. That doesn’t mean they wouldn’t seal one. It’s just a very unusual occurrence in our county.”
Treva Shelton, the clerk of courts in Paulding County, where Richardson’s divorce was filed, said that “we get a few. It’s not a normal thing, but we get them.” Shelton, now the custodian of the Richardson file, says the case is sealed with tape and locked in a cabinet with other sealed matters.
Rule 21 of the Uniform Rules of Superior Court states: “An order limiting access shall not be granted except upon a finding that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.” This is the rule Judge Osborne invoked in closing Richardson’s file.
DeKalb County Superior Court Judge Clarence Seeliger explained there are extraordinary circumstances that might prompt a judge to close a file.
“Where sealing might take place —- suppose there were an allegation of child abuse,” Seeliger said. “It’s not substantiated, but the allegations were made. Or allegations of domestic violence. Or one of the children is a special-education child, and they don’t want that publicized.”
Even so, Seeliger said he can’t recall ever sealing a divorce case.
‘What’s in there?’
Beyond the procedural questions the Richardson case has provoked, sealing a file can set off some very natural reactions, one Atlanta divorce lawyer observed.
“It’s like putting a file on the desk that says ‘top secret’ on it,” said Randall M. Kessler, a longtime practitioner who has handled several divorce cases involving professional athletes.
“When you seal the record, everybody’s going to wonder what’s in there. And imagination is always worse than reality.”
Kessler also makes note of the circumstances surrounding the Richardson divorce.
Osborne was not the judge who would have been assigned the case under Paulding County’s normal rotation, but he wound up handling it, and sealing it, nonetheless. Richardson is his former law partner —- Osborne told the Associated Press that he and Richardson hadn’t been partners since 1994 —- and Osborne’s daughter works in Richardson’s law firm.
“Lawyers and judges are always encouraged to avoid even the appearance of impropriety,” Kessler said. “I’m sure there’s a very good reason for it. But it doesn’t sound the way I’d want it to sound if it were me.”
A wayward boyfriend
Jay C. Stephenson, long-serving clerk of the Superior Court in Cobb County, remembers an occasion when having open files may have saved a woman from an apparently faithless lover.
“We got a call one afternoon from a lady in Nashville who had been handed some papers by her boyfriend from Cobb County,” Stephenson said. “He was married, and he kept telling her, ‘I’m getting a divorce, I’m getting a divorce.’ So finally she just said, ‘Show me the papers.’ ”
Later, papers in hand, the woman went to the Cobb clerk’s Web site and ran a search for her boyfriend. He wasn’t there, Stephenson said. And the case number on the file he supplied belonged to another case altogether.
“It turned out the guy had faked the paperwork. For that lady, it was real beneficial to get access to our records,” Stephenson said.
One court clerk observed that a savvy homebuyer, having learned that the sellers have divorced, will check the divorce filing to see what it says about the house and what the couple will accept as a sale price.
The downside
Divorce files may contain detailed financial information, including credit card, Social Security and bank account numbers, all of which become part of the public record.
Under Richardson’s tenure as speaker, the state House passed legislation on child support that required divorcing parents to file income statements. That information becomes part of the public record, although not in Richardson’s case.
“I see people filing less financial information because of concerns about identity theft and because of concerns about not wanting the public rummaging through their files,” said John Mayoue, who has handled celebrity divorces in Atlanta for decades.
“If someone wants to know how much his boss makes, or to find out what his neighbor’s net worth might be, he can just go to the courthouse and pick it up.”
Don’t file it?
Several attorneys noted that the best way to shield clients’ most sensitive information is not to make it part of the record in the first place.
“I don’t file the financial information,” Mayoue said. “If something has to be filed with the court, I try to make it as pure vanilla, or as disguised, as I possibly can make it, so I’m not putting my client’s personal information out there for the public to examine.”
Kessler, who is a board member of the Family Law Section of the American Bar Association, said that in such cases he seeks to negotiate a financial agreement outside the court; all that’s in the public file is a reference to a private document to which both parties agree.
The agreement becomes public only if one party fails to live up to it, and the aggrieved party must return to court and seek enforcement of the agreement.
The down side, said Kessler, is that a client may need high-priced legal talent to pursue such arrangements.
“Most people don’t have enough money to hire lawyers who are creative enough to think of ways around this,” Kessler said.
The most sensitive information in a divorce file often is neither financial nor sexual in nature. If he could seal the portions that deal with children, Kessler said, he would.
“I would be in favor of closing custody agreements. Things involving children are first on the list,” Kessler said. “And I don’t want anybody to know that I’ve got a 28-year-old single mother who’s meeting her ex at a Burger King at 9 o’clock at night” to drop off or pick up kids.
Sealed files
George Stern, who has practiced family law for more than 40 years in Atlanta, agrees that getting a case sealed is exceedingly difficult.
“Most of the judges in the metropolitan area and northern Georgia will not seal anything,” Stern said. “They all get up and say, ‘Why should we do it for you? Then everybody else wants us to do it.’ And 98 percent of the time they’re not going to seal anything.”
But Stern has no problem with that.
“If everything else is a public record, I don’t see why a divorce record has to be closed,” he said. “These are public records, and they ought to stay public records. If you don’t want to disclose something, don’t file it.”