DanvilleSanRamon.com

Newsfront - August 17, 2007

State Supreme Court overrules in Danville divorce case

Judgment regarding the right to give oral testimony will change family legal proceedings in Contra Costa County

by Jordan M. Doronila

A Danville resident emerged victorious after winning a civil lawsuit, which forces Contra Costa County Superior Court to change its family legal proceedings.

The California Supreme Court ruled last week on Monday, Aug. 6, that the Superior Court broke state law by not giving Jeffrey Elkins of Danville his right to give oral testimony and to submit evidence in his divorce suit two years ago against his wife Marilyn.

"I never got to speak at my trial," said Elkins.

In September 2005, the Superior Court only looked at two out of 36 pieces of evidence in Martinez when he and his wife were first involved in divorce procedures because he didn't submit them by the required date, which was set to make court proceedings expedient. And Elkins could only give written - not oral - testimonies, according to court requirements.

Jon Eisenberg, the attorney representing the Superior Court, said family court judges made these legal requirements to deal with their increasing caseload and to create an efficient process.

"The Contra Costa Superior Court has a large number of cases these days," Eisenberg said. "The parties don't have lawyers, and it's a challenge for the court to handle these cases when the parties don't know the procedural rules."

"The court, over the past few years, had to deal with self-represented litigation," he added.

However, Supreme Court Justices said even though the family court is submerged in heavy caseloads, it must provide fair opportunities for all people involved.

"Trial courts certainly require resources adequate to enable them to perform their function," wrote Justice C.J. George in his court opinion. "If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting procedures that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."

As a result of the Supreme Court's decision last week, judgment on Jeffrey and Marilyn Elkins in 2005 has been nullified and the Superior Court must rewrite family legal procedures to be equitable.

Marilyn and Jeffrey Elkins married on April 20, 1980. They had one child, who was born in 1991. Jeffrey had been living in Danville since 1990. He worked at MCI and is now a consultant.

The couple filed for divorce Sept. 2, 2001. At stake in the suit were their family home; Jeffrey's right to reimbursement for home improvements after separation; the multimillion dollar litigation settlement awarded to his business; his assets; parts of Marilyn's retirement account; contents of a joint safe deposit box; and Marilyn's attorney fees.

The issue of child support was not part of the stakes, and the couple waived spousal support.

Jeffrey Elkins did not submit his evidence until one court day prior to the date set for trial. This was beyond the date the court had set. When the couple went to trial, the court only accepted two of the 36 "exhibits" he made. He lost the case, and he said afterward that court procedures violated his due process.

"My concern is that I came into the trial with the intent of presenting my position, and I'm being cut out of that completely with only reliance on two exhibits which are - no way can defend my position," he told the judge two years ago, according to the court records. "So I might as well give up my position and leave it to the best well-being of my family."

"Your Honor, if you take a spreadsheet and you add up and deduct everything that (counsel for Marilyn) is asking for, I am left with nothing," he added. "Zero dollars. Zero house. Zero car. Nothing."

He took the case to the state Appellate Court, which rejected it. Eventually, it went to the state Supreme Court, which argued in favor of Jeffrey Elkins.

"The Supreme Court is telling the Superior Court that you're going to have to rewrite your local rules accordingly," Eisenberg said.

Moreover, the Supreme Court Justices said people in family court must be given their right to share their oral testimonies.

"We are most disturbed by the possible effect the rule and order have had in diminishing litigants' respect for and trust in the legal system," wrote the justices. "The Contra Costa survey confirmed that litigants believed the rule and order deprived them of the essential opportunity to 'tell their story' and 'have their day in court,' and felt the rule and order caused the lawyers who drafted the declarations to be the persons testifying, not themselves."

The Elkins divorce case will now go back to family court. Retrial has not been set yet, said Elkins.

"Any divorce is gut-wrenching," Elkin said this week. "You're talking about lives and families being ripped apart and (trying to be) least offensive."

Contact Jordan M. Doronila at jdoronila@DanvilleWeekly.com

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