Linda Bailey — Direct/Cross/Redirect
662 linesJUDGE EVERETT: Please call your next witness.
MR. ZELMAN: Your Honor, the next witness is Linda Bailey. She could be quite lengthy. I don't know if Your Honor wants to take a brief break.
JUDGE EVERETT: Do any of you need to take a break or use the restroom? Please raise your hand.
JUDGE EVERETT: A very equivocal wave, but I'll take it. The bailiff will take you to the jury room.
JUDGE EVERETT: We'll resume at 10:05.
JUDGE EVERETT: You can be seated.
JUDGE EVERETT: Does the witness have anything that she needs to set up?
MR. ZELMAN: No, she's testifying based on her review of the file. She does have, um, some notes with her if she can't remember something.
JUDGE EVERETT: That's fine. All right, please stretch your legs or use the restroom if you need to and we'll try to start again at 10 o'clock. Thank you.
JUDGE EVERETT: Well, if — whoever's listening on digital, if you can go ahead and look through the sidebars for Thursday and Friday to determine when the topic of Linda Bailey as a witness was discussed.
JUDGE EVERETT: As I recall, I believe it was discussed that she would be permitted to be in the courtroom. Whether or not there were any other matters that were discussed along with that, I cannot completely recall at this moment, but we'll review.
JUDGE EVERETT: At a minimum, Ms. Cappleman, exclusion is always the most extreme of remedies, and that is disfavored by the Supreme Court and the appellate courts.
MS. CAPPLEMAN: I don't know what remedy I could pursue, Judge. That was the only one that comes to mind.
MS. CAPPLEMAN: If I'd like them to stop violating the rule of sequestration, that would be the remedy I would seek.
JUDGE EVERETT: As it related to the witness yesterday, I gave instruction concerning that. Concerning Ms. Bailey, will review the sidebar.
JUDGE EVERETT: At a minimum, you may question this witness concerning whether she has, in fact, tailored her testimony based on being in the courtroom.
MS. CAPPLEMAN: Judge, I'm familiar with this witness. I don't think she would do that, but as we know, the rules are in place for a reason.
JUDGE EVERETT: Oh, absolutely.
MS. CAPPLEMAN: Things can happen without us knowing they're happening consciously, so that's why we try to keep these witnesses isolated from each other.
JUDGE EVERETT: You can let the jurors know. I'm going to go to the court reporter's office to check the sidebar from there. We'll finish this matter and resume the testimony.
JUDGE EVERETT: Hot from the presses from our very capable court reporters. Has everyone reviewed the transcript at this point?
MR. ZELMAN: Yes, Your Honor.
MS. CAPPLEMAN: Yes, sir.
JUDGE EVERETT: Please make your arguments.
MS. CAPPLEMAN: Judge, I think it's clear from the totality of this that I am agreeing for their experts to review the testimony of other experts, and that in reference to lay witnesses, experts are not going to listen to the testimony of lay witnesses.
JUDGE EVERETT: Mr. Zelman.
MR. ZELMAN: Judge, on page 62, we specifically said Linda Bailey would like to be able to observe Kristen Adamson's testimony when she testifies, and then I addressed our forensic expert to share the transcript of Sergeant Corbitt's testimony.
MR. ZELMAN: Learning, certainly I see later where we're discussing as lay witnesses, page 63, starting lines 11 through 14, as to lay witnesses of non-experts — non, you know, other than Linda Bailey and Kelsey Guay to be able to observe witnesses, we were not asking for that.
JUDGE EVERETT: As to both the context and the discussion, this concerned an adverse expert listening or reviewing or listening to the testimony of the other expert.
JUDGE EVERETT: Ms. Adamson was called as a part of your case in chief, Ms. Bailey is being called in your case in chief, Ms. Adamson was not an expert.
JUDGE EVERETT: The state never agreed to what was being discussed.
JUDGE EVERETT: Why should this witness be permitted to testify, Mr Zelman?
MR. ZELMAN: Judge, the prior page specifically says that Linda Bailey would like to be able to observe Kristin Adamson's testimony when she testifies.
JUDGE EVERETT: You brought this up, yes, but the state made no agreement as to anything but an adverse expert as to observation of testimony that would otherwise go to the rule of sequestration.
MR. ZELMAN: Judge, with respect to the context and the statements, we were obviously asking that. It's in black and white.
JUDGE EVERETT: I know what you asked.
JUDGE EVERETT: What happened, though, is the opposite of that.
JUDGE EVERETT: As to that, what is your argument now?
MR. ZELMAN: Your Honor, exclusion of a witness is an extreme remedy, as you recognized previously.
MR. ZELMAN: We took the court's — this conversation — to authorize Ms. Bailey to be present during Kristin Adamson's testimony, and that is what we advised the witness when we spoke with her later in the week. But for this conversation, we would not have done that.
JUDGE EVERETT: This is the second time in this trial where a defense witness has been in the courtroom inappropriately in violation of the rules of sequestration. Judge, when this was addressed at sidebar, you brought up the topic, but the state only agreed as it related to your expert reviewing an adverse expert, their expert's testimony.
JUDGE EVERETT: That has not been the case today.
JUDGE EVERETT: Why have you not been more careful with this individual or even brought up this topic to make sure we did not end up in this point and place?
MR. ZELMAN: Judge, we thought we adequately addressed it last week when, during the sidebar.
JUDGE EVERETT: Ms. Cappleman, what are you asking for?
MS. CAPPLEMAN: I'm seeking exclusion, Your Honor.
JUDGE EVERETT: As to exclusion, what is your argument?
MS. CAPPLEMAN: That this is not the first time this has occurred, that this issue was addressed at sidebar. The ruling was clear that witnesses that are experts would be prevented to listen to, only in that circumstance and that particular exclusion which we're all familiar with in the rules — the other side's experts. So just a little myth that here we are. I didn't ask for any exclusion the first time this happened, or really any remedy, but I'm sorry to punish the defense to not let it happen again, and now it's happened again. So, you know, does the state get a fair trial too? Do we get a remedy when it's the second time that the rule has been violated? I think it's appropriate.
JUDGE EVERETT: As to your point of the state being a fair trial, Ms. Cappleman, the court is bound by the rulings of the Supreme Court and the appellate courts.
JUDGE EVERETT: I don't get to make it up on the fly.
JUDGE EVERETT: There, clearly, this has happened twice, but moving to exclusion, again, is the most extreme remedy.
MR. ZELMAN: Judge, if I may.
JUDGE EVERETT: Last word.
MR. ZELMAN: I'm reviewing Earhardt.
MR. ZELMAN: Exclusion of the witness — the court may exclude the witness only if it finds that the testimony of the challenged witness was substantially affected by the testimony to be heard, to the extent that his testimony differed from what it would have been had he not heard testimony in violation of this rule.
JUDGE EVERETT: This is why I believe you wanted Ms. Bailey to listen to Ms. Adamson's testimony in the first place.
MR. ZELMAN: I'm sorry?
JUDGE EVERETT: You wanted Ms. Bailey specifically to listen to Ms. Adamson's testimony for a reason.
MR. ZELMAN: Our expert requested it, yes.
JUDGE EVERETT: As it relates to what you just read in that passage, how would the witness's testimony somehow have changed or been affected?
MR. ZELMAN: I think the only way to determine that is to speak with Ms. Bailey concerning her testimony.
JUDGE EVERETT: Ms. Bailey, come to the witness stand so that the proffer can be taken on this matter. And after that, I will step down, personally review what I need, and make a ruling.
JUDGE EVERETT: Please raise your right hand.
JUDGE EVERETT: Do you swear or affirm the testimony you're about to give will be the truth?
LINDA BAILEY: I do.
JUDGE EVERETT: Please be seated.
JUDGE EVERETT: You may inquire for the purposes of the proffer.
MR. ZELMAN: Thank you, Your Honor.
MR. ZELMAN: Good morning, ma'am. Can you please introduce yourself to the courtroom?
LINDA BAILEY: Yes, my name is Linda Bailey.
MR. ZELMAN: Ms. Bailey, were you retained as an expert on behalf of the defendant, Donna Adelson, in this case?
LINDA BAILEY: I was.
MR. ZELMAN: Specifically in what area?
LINDA BAILEY: The scope of my requested testimony was to evaluate the divorce docket — pleadings, motions, orders, etc. — in the Adelson-Markel divorce, and to opine whether or not the divorce would be exceptionally contentious or unusual within the context of a family law case.
MR. ZELMAN: In the course of preparing for your testimony, can you briefly summarize what you reviewed?
LINDA BAILEY: Yes. The primary source that I reviewed was the family law pleadings, motions, notices, orders that were provided in a prior litigation in this matter. I think it was an exhibit from the state which detailed all of the pleadings in the family law folder. So that was my primary source.
LINDA BAILEY: Then other than that, I spoke to Ms. Adamson for about an hour a couple weeks ago just to confirm what I supposed were facts. And I have known Kristin for 40 years. We went to law school together. And I know how she practices. I practice against her often. So I had some ideas about the lack of strength of Mr. Markel's motions, and she agreed.
LINDA BAILEY: I read her prior testimony in one of the other trials — I think it was Charlie Adelson's trial.
LINDA BAILEY: I reviewed some exhibits, but they weren't very helpful to me. One of the officers had done some sort of a PowerPoint presentation with faces and arrows and time stamps for communication, and I don't even know why those were provided. I didn't take anything from those.
LINDA BAILEY: I reviewed —
MR. ZELMAN: Did you review some e-mails?
LINDA BAILEY: I reviewed texts, and I reviewed e-mails. So I reviewed e-mails between Donna Adelson and Wendi Adelson. There were a couple between Donna Adelson and Charlie Adelson that were much later, but they happened to be in the tranche of documents that I had. I reviewed text messages between Wendi Adelson and Dan Markel.
LINDA BAILEY: I read some text messages between Donna Adelson and Wendi as well.
MR. ZELMAN: Okay. And in preparing for trial in this case, did you request court authorization to sit in on the testimony of Kristin Adamson?
LINDA BAILEY: I did.
MR. ZELMAN: And why was that?
LINDA BAILEY: Just to confirm that I had the facts correct.
MR. ZELMAN: And you — sat this morning through Ms. Adamson's testimony?
LINDA BAILEY: I did.
MR. ZELMAN: To what extent, if any, was your — is your proposed testimony impacted or affected by the testimony you heard from Ms. Adamson?
LINDA BAILEY: It was very consistent with what I believe the facts to be, so it didn't change what my opinion is.
MR. ZELMAN: Nothing further for purposes of the proffer.
JUDGE EVERETT: Any examination for purposes of the proffer?
MS. CAPPLEMAN: Is there anything new that you learned from Ms. Adamson today that you had not learned previously in your preparations?
LINDA BAILEY: No, I don't think so.
JUDGE EVERETT: Please step down, Ms. Bailey.
JUDGE EVERETT: I'll return in a few minutes.
JUDGE EVERETT: Concerning this issue of the testimony of Linda Bailey, the court is going to find there has been a second violation of the rule of sequestration by the defendant. The matter that was discussed at sidebar brought up the issue of the witness sitting in court.
JUDGE EVERETT: However, the state made no agreement beyond an adverse expert listening to the testimony or reviewing the testimony of their expert.
JUDGE EVERETT: With no other ruling being made on the issue, Ms. Bailey should not have sat in the courtroom.
JUDGE EVERETT: The test for determining whether a court may properly exclude the testimony of a witness for violating the rule of sequestration is whether the testimony of the challenged witness was substantially affected by the testimony that the witness heard, to the extent the witness's testimony differed from what it would have been had the witness not heard the testimony.
JUDGE EVERETT: And this is citing to a Florida Supreme Court case, Steinhorst v. State, 412 Southern 2nd 332.
JUDGE EVERETT: The same test also applies to expert witnesses who violate the rule.
JUDGE EVERETT: Concerning the proffer, the witness has indicated that in preparation for her testimony she reviewed materials provided by the state, she reviewed testimony from the same witness from prior trials, and ultimately her opinions — whatever they may be to be offered — have not been affected. As a member of the bar, I am going to give credibility to what Ms. Bailey has stated concerning these matters, as I have no other evidence to the contrary. Although the state has asked for exclusion of this witness — being a second violation — it still remains an appropriate concern as to how the jury is to be instructed at the end of the trial as to this testimony specifically. If the state is asking for instruction for how the jury is to weigh the credibility of Ms. Bailey or the previous witness who is subject to the rule of sequestration, I believe they are entitled to it based on the circumstances of this matter. Does either party need to be heard further?
MR. ZELMAN: As long as the instruction that the court is going to give — the state is going to specifically be asking for — asks the jury to determine whether the witness's testimony was impacted by what they observed.
JUDGE EVERETT: We can wrangle over the language at a later point.
MR. ZELMAN: I have no objection, as long as we can agree on the language.
JUDGE EVERETT: Please bring in the jurors. Ms. Bailey, please come to the witness stand.
JUDGE EVERETT: If there are any additional matters that need to be clarified, this needs to occur so we don't have any more issues with witnesses or other problems.
JUDGE EVERETT: Everyone can be seated.
JUDGE EVERETT: Ms. Bailey, please rise to be sworn.
JUDGE EVERETT: Do you swear or affirm the testimony you're about to give will be the truth?
LINDA BAILEY: I do.
JUDGE EVERETT: You may take your seat.
JUDGE EVERETT: You may examine when you're ready.
MR. ZELMAN: Thank you, Your Honor.
MR. ZELMAN: Good morning. Can you please introduce yourself to the jury?
LINDA BAILEY: Yeah, my name is Linda Bailey, and I'm a family law attorney here in Tallahassee.
MR. ZELMAN: Tell us briefly about your educational background.
LINDA BAILEY: My post-high-school educational background is — I have a bachelor's in psychology from Florida State University in 1983.
LINDA BAILEY: I worked for a couple years and went back to law school in 1985 and graduated FSU Law in 1988 with honors.
LINDA BAILEY: So math isn't my strong suit, but that's 37 years.
MR. ZELMAN: 37 years.
LINDA BAILEY: I went to school with Ms. Adamson, so we've been practicing the same length of time.
MR. ZELMAN: What type of law did you initially practice when you graduated?
LINDA BAILEY: When I initially — during law school, and then after I graduated, I initially practiced criminal defense law. Then I brought in slowly a family law practice, and then in 1994, about six years into practice, I shifted my focus to solely family law and went on my own and opened my own practice.
MR. ZELMAN: So since 1994, have you exclusively practiced family law?
LINDA BAILEY: Yes.
MR. ZELMAN: Can you tell the jury approximately how many family law cases you've handled since then?
LINDA BAILEY: Oh, I tried to count those for this trial, and my best guess would be around 2,000.
MR. ZELMAN: Do you have any certifications?
LINDA BAILEY: Like Kristin, I am board certified in marital and family law. And what that requires is an application that's about three-quarters of an inch thick that details all of your trial practice, litigation practice, the type of cases you've handled, how many experts you've done direct exam with, cross-exam with, etc. Then once you provide your application, the bar does a peer review, and that includes sending very detailed questionnaires out to opposing counsels and judges in front of whom you practiced. And then based upon that peer review, they will invite you to take the exam. The exam is a six-hour exam done in Tampa, and I think the year I took it, 41 people sat for it, and I think nine passed. So it's a pretty rigorous process.
MR. ZELMAN: Okay, and before we continue, the clerk had asked me to have you spell your name. Can you spell your last name, please?
LINDA BAILEY: Yeah, B-A-I-L-E-Y.
MR. ZELMAN: Thank you.
MR. ZELMAN: How many board-certified family law attorneys are there in the state of Florida?
LINDA BAILEY: I believe there are about 274, according to the Florida Bar.
MR. ZELMAN: And do you know what percentage of lawyers in Florida are board certified in marital and family law?
LINDA BAILEY: I think less than 1%.
MR. ZELMAN: What do you have to do to maintain your certification?
LINDA BAILEY: Well, ordinarily, lawyers have to do 30 hours of continuing education every three years. To maintain your board certification, you have to recertify every five years, and you have to do 75 hours of continuing education every five years. So there's an enhanced legal education continuing education requirement, and then you also have to continue practicing in the area — there's a certain number of trials of a certain length of time that you also have to do within that five-year recertification period.
LINDA BAILEY: And they also send more peer reviews out every five years. So all of the other opposing counsels, other board-certified lawyers in your community get a questionnaire, and they get to fill that out about their impression of working with you, and that goes back for your recertification.
MR. ZELMAN: And judges also get that same peer review?
LINDA BAILEY: They do.
MR. ZELMAN: Do you have any other certifications?
LINDA BAILEY: I'm a Florida Supreme Court certified mediator. And that was probably the mid-aughts — 2006, 2008. I can't remember exactly when that was.
MR. ZELMAN: What's required to be a certified mediator?
LINDA BAILEY: It's a 40-hour course.
LINDA BAILEY: I went to Orlando Monday through Friday. And then after the course, you do co-mediations with other mediators. And then you have to do some supervised mediations. And then you're certified.
LINDA BAILEY: They have the same recertification period.
LINDA BAILEY: Not as enhanced as a board certification, but you do have to take enhanced continuing education that might be a little bit different than you do for either your bar license or your board certification.
MR. ZELMAN: Have you maintained your board certification since you were first certified in 2011?
LINDA BAILEY: Yes, I have.
MR. ZELMAN: Have you received any other recognitions during your career?
LINDA BAILEY: Well, U.S. News and World Report puts out a Best Lawyers in America publication annually, and I've been recognized in that publication for many years. I'm not sure how many.
LINDA BAILEY: They've also recognized my law firm as Best Law Firm in America and recognized me as a woman in the law to watch. I also have been recognized as a Super Lawyer, which means — U.S. News and World Report bases their recognitions on peer review, and the enhancement at the Super Lawyer is it does peer review; it also looks at your practice, your certifications, your outside legal interest, like have you provided presentations, have you taught, have you done certain community service or pro bono work, that sort of thing.
MR. ZELMAN: Have you taught?
LINDA BAILEY: I have.
LINDA BAILEY: I taught for several years. I'm going to estimate five years with the Legal Aid Thunderdome program.
LINDA BAILEY: And that's really an incredible program where family law attorneys — now it's grown to do other disciplines, but at the time I was doing it, it was strictly to teach other lawyers who don't do family law how to do family law well enough to provide pro bono services, free services for people who can't afford lawyers.
LINDA BAILEY: And my focus in that area of teaching was parenting plans, parenting schedules, relocation, those sorts of parenting-related issues.
MR. ZELMAN: Your Honor, we would tender the witness as an expert in family law proceedings.
JUDGE EVERETT: Does the State wish to voir dire the witness as to her training or experience?
JUDGE EVERETT: Any objection to her ability to provide an opinion in the fields of marital and family law?
MS. CAPPLEMAN: No, Your Honor.
JUDGE EVERETT: Members of the jury, the witness will be permitted to provide an opinion while she testifies in the areas of marital and family law.
MR. ZELMAN: Thank you, Your Honor.
MR. ZELMAN: In conjunction with your being retained as an expert in this case, can you tell the jury what materials you reviewed?
LINDA BAILEY: Yes. Yes, my primary source was the divorce file between Wendi Adelson and Dan Markel. So everything from the petition that was initiated in September of 2012 by Wendi Adelson to the last document filed, which was, I believe, a suggestion of death.
MR. ZELMAN: And did you review any other materials?
LINDA BAILEY: I reviewed text messages that were provided to me. I believe they came through the state between Wendi Adelson and Dan Markel in the 2014 timeframe.
LINDA BAILEY: I was provided, but didn't review thoroughly, text messages between Wendi Adelson and friends and other miscellaneous texts.
LINDA BAILEY: There were some text messages between, I believe, her and her mother, but most of their communication I think was by email. And I reviewed the emails that I was provided between Wendi Adelson and Donna Adelson from maybe 2011 up to about 2017. I don't know if they were comprehensive because they were provided to me.
MR. ZELMAN: Did you also speak with Ms. Adamson concerning her representation of Wendi Adelson?
LINDA BAILEY: I did. I spoke to her for about an hour a couple of weeks ago to kind of confirm my impression of some of the motions on file.
MR. ZELMAN: Now, you indicated that you reviewed the court file. When was the dissolution of marriage action begun?
LINDA BAILEY: It was begun with a petition filed actually by Wendi — I wish — she had a lawyer, Shannon Ovi, for a brief period of time, and then she switched to Kristen Adamson. So I reviewed that petition, and that was filed mid-September 2012.
MR. ZELMAN: Did Wendi Adelson in that process file a motion for the court to determine a temporary parenting schedule?
LINDA BAILEY: Yeah, just about a month after the initial petition, she filed a motion for the court to order a temporary parenting plan, which is normal so you don't have chaos pending a final resolution.
MR. ZELMAN: So the filing of that motion is a typical step in a dissolution of marriage that involves children?
LINDA BAILEY: Well, it's very routine, because what you don't want is both parents showing up to school picking up the kid on the same day and the kid doesn't know where they're going. And it creates a lot of stress for the children if they don't have a plan. So it's important for the parties to get together early on and figure out what they're going to do until the court can make a final ruling.
MR. ZELMAN: And what specifically was Wendi Adelson's request in that temporary parenting plan concerning timesharing?
LINDA BAILEY: She asked for a plan that would provide 51% of the time to her and 49% to Mr. Markel, which — at the time it was much more traditional, if you will, for there to be a primary parent and a secondary parent, and it was thought at that time that having a child more solidly in one household versus splitting the 50-50 was more advantageous for the child. That thinking has now changed, where there's a presumption of 50-50, but back in 2011-12 time period, she had initially filed for majority timesharing, which was ordinary, but then actually in her motion for temporary parenting, she asked for a 59-41 — pretty — excuse me, 51-49, which is essentially 50-50.
MR. ZELMAN: Why would one party ask for 51-49?
LINDA BAILEY: Really the only reason I can think of would be for an IRS tax advantage, so you'd be able to claim the children on taxes.
MR. ZELMAN: To claim them as dependent?
LINDA BAILEY: As dependents, yes.
MR. ZELMAN: Okay. Or head of household?
LINDA BAILEY: Yes.
MR. ZELMAN: Okay. Okay. Now, you indicated that a lot of times these issues, it's important to establish them early on.
MR. ZELMAN: Did Wendi Adelson and Mr. Markel have to go in front of the judge to get a temporary parenting plan put in place?
LINDA BAILEY: No, they worked that out themselves, by themselves or through counsel.
MR. ZELMAN: So they worked out an arrangement that was beneficial for the kids and allowed them to have timesharing?
LINDA BAILEY: Yes, my understanding is they worked out a 50-50 arrangement.
MR. ZELMAN: Now we're using the term timesharing. We also have, during the trial, heard the term custody.
MR. ZELMAN: Historically, has the term custody been used in family law proceedings?
LINDA BAILEY: Not for many years. Not for many years.
LINDA BAILEY: Gosh, it may have been a term back when I started practicing, but then it went to primary residence and secondary residence, and then it moved to simply timesharing.
LINDA BAILEY: So there's been a change in the way we refer to it linguistically, because you don't want a secondary parent. You want all the parents to feel like they're full parents.
MR. ZELMAN: And so the term custody is not something that is used in family law proceedings any longer?
LINDA BAILEY: Not between parents. There's some — the term custody still lingers in some grandparent cases, which are applicable here.
MR. ZELMAN: Okay. But when we're talking 2012 moving forward, the term custody was not used in family law proceedings for dissolution?
LINDA BAILEY: Correct. And the term at that time was timesharing and parenting time. I believe back then it had shifted to timesharing. It may have been primary and secondary residence, but I didn't see that in the petition; she just asked for majority timesharing, so that must have been when that law switched.
MR. ZELMAN: Around that time when Wendi Adelson initiated this dissolution, did the pleadings indicate that she was trying to prevent Mr. Markel from having substantial timesharing?
LINDA BAILEY: No, I didn't see anything throughout the whole file that she tried to prevent Mr. Markel from having substantial timesharing.
MR. ZELMAN: Can you tell the jury what is substantial timesharing?
LINDA BAILEY: Well, substantial timesharing — again, the definition has changed. It used to be, in this era, more than 40% timesharing. And now for the purposes of child support adjustments, it's kind of been reduced to 20% or more.
LINDA BAILEY: But I think when we're talking about timesharing versus how it impacts child support, substantial timesharing — I think everybody would accept — would be 40 or more timesharing.
MR. ZELMAN: So in other words, when Wendi initiated the dissolution against Mr. Markel, she was not trying to prevent him from having 40 or more of the overnights?
LINDA BAILEY: I never saw anything other than the 49-51.
MR. ZELMAN: In your review of the family law pleadings, can you tell the jury how many contested hearings took place prior to the final judgment being entered?
LINDA BAILEY: From my review of the pleadings, one partial hearing occurred, and that was the June 21, 2013 hearing on Mr. Markel's motion to dismiss the petition for relocation. And then he had filed a motion to enforce life as he would have liked to have seen it.
LINDA BAILEY: And then the relocation was all within one hearing. The court adjudicated the first two issues. His motion to dismiss was denied.
LINDA BAILEY: His motion for enforcement was denied because there was nothing to enforce. There was no court order that required the things he wanted to enforce.
MR. ZELMAN: And then, in other words, he was asking the court to enforce something that they had agreed on but hadn't been a court order?
LINDA BAILEY: Well, I don't even know that they had agreed on things. He had kind of a sense of the way he would like to see life, which had to do with being really intrusive at Wendi's home. He wanted to go over there often during her timesharing. He wanted to have a great deal of contact. He wanted video contact, things like that.
LINDA BAILEY: And so — and I think there was maybe a recommendation, I could be confusing this with a later motion, where the childcare owner had made a recommendation about something, and he wanted to enforce the recommendation from the owner of the childcare.
LINDA BAILEY: None of those were enforceable because they'd never been ordered by court or even put into any sort of formal document. So that was denied.
MR. ZELMAN: So let me understand correctly. He was asking for court authorization to be able to go over to Wendi's house?
LINDA BAILEY: In that particular motion, I can look at my notes, but I don't remember exactly the detail. Ordinarily, when you file a motion for enforcement, you have a court order that says the other side has to do A, B, and C.
LINDA BAILEY: And if you don't do A, B, and C, you file a motion to enforce. But you can't enforce an email communication back and forth where you said you can have them on Tuesday, and then Tuesday you change your mind. There's no court order to enforce. They just change their mind.
MR. ZELMAN: So he was trying to enforce conversations that he had had with Wendi that had no court-ordered basis.
MR. ZELMAN: Okay. Now, you mentioned the motion — Mr. Markel's motion to dismiss the petition for relocation, his motion for enforcement.
MR. ZELMAN: Was that also the same hearing where the relocation petition was heard?
LINDA BAILEY: The same hearing.
MR. ZELMAN: Okay. And based on your review of the file, what happened at that hearing?
LINDA BAILEY: Based on my review of the file, the court adjudicated his motion for enforcement and denied it, adjudicated the motion to dismiss and denied it. And he was basically saying that the petition for relocation was baseless and that the court should deny it. And the court said, no, it had merit, so we're not going to dismiss it. And then my understanding is, before the hearing finished, Wendi essentially capitulated and said, okay, I'll agree to the denial of my relocation. And what's consequential about that is, if they could have continued the hearing, finished their testimony, and appealed the order — so by her capitulating and stopping the hearing midway, she waived her right to appeal the denial of the relocation.
MR. ZELMAN: Subsequent to the June 21st, 2013 hearing, did Wendi Adelson and Mr. Markel resolve the other issues in their dissolution of marriage?
LINDA BAILEY: Yes. On July 31st, they signed a full marital settlement agreement that addressed all issues. So within five weeks of the denial of relocation, they resolved all their financial issues.
LINDA BAILEY: Wendi waived alimony, they adjudicated child support, they put into place a parenting plan, which is kind of also new lingo. A parenting plan is kind of the overarching rules on how you make decisions, how you communicate, who's able to go to events for the children, plus the timesharing schedule, plus communication provisions — how often you can speak to the children. Sometimes, like in this case, it was very general language.
LINDA BAILEY: Maybe what school the children go to. So they resolved everything five weeks later.
MR. ZELMAN: Now, the marital settlement agreement also put in place a parenting coordinator?
LINDA BAILEY: It did.
MR. ZELMAN: What is a parenting coordinator?
LINDA BAILEY: A parenting coordinator is a professional, generally a lawyer, but it can be a therapist, who is trained.
LINDA BAILEY: I think they do a 40-hour course too, but I'm not certain. And they have a certification. And what they're trained to do basically is teach people how to communicate, teach people how to be reasonable. There's no parenting plan that you can draft that deals with all contingencies. People are always going to come up with something, and we don't have a provision in the marital settlement agreement to deal with that. So a parenting coordinator helps people set, for example, communication guidelines — maybe one person is calling ten times a day and that's overbearing and it interferes with the other parent's life and households. So a parenting coordinator may help them reach agreement on what reasonable communication might be. Maybe it's once a day at seven o'clock. Maybe it's every other day. Maybe it's two times by video and four times by, you know, telephone or something like that. So they help them work out the details and just keep the conflict low.
MR. ZELMAN: Now, can a parenting coordinator put in place provisions in a parenting plan that are not already included in the marital settlement agreement?
LINDA BAILEY: No. The parenting coordinator's role is to help the parties have a civil discussion and come up with a reasonable resolution. But if there's no reasonable resolution that they accept from the parenting coordinator, then they can go to the court and ask for a remedy in certain circumstances.
MR. ZELMAN: In certain circumstances?
LINDA BAILEY: Yeah, for example, the parenting coordinator's not permitted to add provisions that are not in the marital settlement agreement. In that circumstance, you can't just go to the court and say, hey, I want this provision added. You have to file a supplemental petition that requires a material and substantial change in circumstances plus best interest — Kristen talked about that earlier — and it's basically starting a case over. It's very difficult to modify a marital settlement agreement. What you can go to the court for, that a parenting coordinator might be involved in, if somebody's not returning the child on time chronically or violating communication provisions that are already in the marital settlement agreement — you may go to the parenting coordinator first to try to avoid court, to say, hey, can you get him or her to stop? Can you get them to be more timely? Can we find a new meeting location, something like that?
LINDA BAILEY: And you can go to the court for those types of issues, violations. But going to the court for modifications isn't going to happen unless you've had a material substantial change, and the case law says that has to be an extraordinary change. So it's very difficult to get a modification or add terms.
MR. ZELMAN: Now, with respect to the Adelson-Markel case, other than that June 21st, 2013 hearing, did they litigate any other issues during the divorce?
LINDA BAILEY: Yes.
MR. ZELMAN: Up through July 31st?
LINDA BAILEY: Yes. No.
LINDA BAILEY: No, they resolved everything. Temporary parenting, permanent parenting, support, property.
MR. ZELMAN: How many months elapsed between when the initial petition for dissolution of marriage was filed and when the final judgment of dissolution was entered?
LINDA BAILEY: Ten months.
MR. ZELMAN: How does that compare with cases that have similar issues?
LINDA BAILEY: If you take the relocation issue out, it's probably average. If you add the relocation, it was brief — most relocation cases take two years or so to get to trial.
MR. ZELMAN: As of — the final judgment of dissolution on July 31st, 2013, would it be your opinion that this case was in any way unusual or highly contentious?
LINDA BAILEY: No. To the contrary, it was settled amicably and everybody was moving on with their lives, and quickly.
MR. ZELMAN: So there, in the underlying litigation, between September 2012 and July 31st of 2013, when the final judgment was entered, did either party file a motion to compel against the other?
LINDA BAILEY: No.
MR. ZELMAN: And what that is, is if you're upset with the other side because they're not providing either the required financial documents that Ms. Adamson spoke about earlier, or if you do a request to produce more documents and they don't comply, then you would file a motion for the court to compel them to provide those documents.
MR. ZELMAN: And that's what we call discovery.
LINDA BAILEY: Correct.
MR. ZELMAN: Were there discovery fights here?
LINDA BAILEY: No, there were no discovery fights.
LINDA BAILEY: There was afterwards, when Mr. Markel's lawyer was trying to depose Wendi about the money he had not paid. But prior to July 31st, there were no discovery fights at all. There were, I think, requests to produce, and there was no motion to compel or any complaint about the responses to those. I didn't see any third-party subpoenas to banks or holding companies or brokerage accounts.
MR. ZELMAN: Can you explain to the jury what a third-party subpoena is?
LINDA BAILEY: Yeah, so for example, if you believe that a party has an asset that they're not disclosing.
LINDA BAILEY: And if you know — in general, sometimes we do kind of blanket ones, but generally if you know where those documents might be held, whether it's Fidelity or Wells Fargo or Bank of America, then you can do a subpoena. You do a notice first and then you have to wait 10 days. And then you can issue the subpoena directly to the bank or the person holding those records and ask them to provide you the records directly, so you don't have to get them from the other party. So sometimes we'll have parties who just don't cooperate. They don't provide anything. We know they have retirement accounts. I have one right now, and he will not give us his retirement account because he does not want it split. So we are having to send third-party subpoenas out to all his prior employers to get his retirement records, because he's just not doing it. So it's an easier way to get those records than fighting him directly.
MR. ZELMAN: And so in that type of scenario, you'd have to first subpoena his records from prior employers in order to get the names of the retirement companies, correct?
LINDA BAILEY: If I need to do that, they could be company-held employment plans, depending on what kind of company, you know.
MR. ZELMAN: But potentially in that scenario, where you're having to issue third-party subpoenas, there are multiple layers that you might have to go through in order to get the information that the other party is not providing.
LINDA BAILEY: No, it's really more direct than that. I mean, once you file your notice of intent to subpoena a third party, you issue your subpoena to that party.
LINDA BAILEY: The difficulty comes if you don't know who the party is. Then you might have to take a deposition and find out where somebody's been working. Generally, your client knows where their spouse worked, so you have that information in that example. But there could be — like we have a case right now where there's like 140-something real estate properties all over the country. That makes it more difficult, obviously, so we're having to go into databases all over the country in different states to look for people and then find out who the management company is and then third-party subpoena the management company. But that's an outlier. Needless to say, you didn't have to do any of that, or none of that had to be done for Wendi Adelson's divorce.
MR. ZELMAN: What about non-party depositions?
LINDA BAILEY: What I saw was there was one non-party deposition from Dr. Phelps, who was the owner of Creative Preschool, where the children went. And essentially, I did review that deposition, and essentially said the kids were doing great. And then there was a deposition of someone who worked at the law school. And aside from those two, I believe — was Wendi deposed? I don't recall seeing that Wendi or Mr. Markel were deposed.
MR. ZELMAN: Now, you testified earlier that you reviewed emails between my client and her daughter?
LINDA BAILEY: I did.
MR. ZELMAN: Did you find anything unusual about my client Donna Adelson's involvement in her daughter's divorce?
LINDA BAILEY: No.
LINDA BAILEY: We have parental involvement, as Ms. Adamson had said, often. Sometimes it's employer involvement — maybe they're very attached to their employer and they want to nurture them. Or we'll get siblings who are lawyers involved. So family involvement, and especially moms, I see a lot — a lot of mothers, a lot of mothers worried about their babies no matter how old they are.
MR. ZELMAN: Now, in the emails that you reviewed, did you see my client's use of the nickname "Gibbers" to refer to Mr. Markel?
LINDA BAILEY: I did.
MR. ZELMAN: Did you find that especially provocative?
LINDA BAILEY: No. No. I mean, "gibberish" means someone who speaks gibberish, and if you look at Mr. Markel's motions and memorandums and responses he filed in this case, it was somewhat applicable. He was very verbose. If you looked at his writings, as a complete layperson, they may at first glance seem somewhat intimidating, but when you broke them down paragraph by paragraph, they were inconsistent, they didn't make sense, they referred to — in multiple situations, he was seeking enforcement of things that were not court-ordered, even afterwards in the February 2014 timeframe.
LINDA BAILEY: So he was very wordy. He would file a 16-page response, and then he'd file a 16-page memorandum that said the same thing, and then he'd file a motion related to that that said the same thing. So a lot of the things that he filed, papers that he filed, which were signed by his lawyer — but they were consistent throughout all the lawyers, so it appeared that he was drafting them — were very, very wordy and full of hyperbole.
MR. ZELMAN: In that same vein, the lawyers that represented him — have you litigated opposite them in the past? The pleadings that they signed on Mr. Markel's behalf, are those consistent with the pleadings that you've seen them author in the past?
LINDA BAILEY: No. It appeared to me that Mr. Markel was drafting these pleadings, because they just weren't drafted in a way you would draft them, and they didn't, again, make sense. They were internally inconsistent.
LINDA BAILEY: For example, moving up to the February timeframe, he was complaining about fraud by Wendi Adelson and not disclosing accounts as if that impacted the settlement. But then he said, very shortly — or in the same near paragraph — that he knew she had these accounts because he managed one of them, and he knew about the other account as well. So all he had to do was do third-party subpoenas to Schwab. He knew a Schwab account existed; that was easy. And so you can't say "fraud, I made a decision without knowing" and then in the next paragraph say "but I knew these accounts existed." That's why — no, she's committing fraud. So in reviewing those particular motions —
MR. ZELMAN: The one that he filed in February of 2014, what was your opinion about the strength of that being granted?
LINDA BAILEY: Well, Wendi filed a motion for enforcement at the end of October — October 31st, I believe, 2013 — which complained about the $80,000 or so. I think there was some question whether he paid $50,000 or $51,000 or $52,000. But anyway, he was essentially just around $80,000 — underpaid. He hadn't paid his obligation.
LINDA BAILEY: So she filed a motion at the end of October. Then there was no response, nothing. His lawyer withdrew.
LINDA BAILEY: There was nothing in November.
LINDA BAILEY: There was nothing in December.
LINDA BAILEY: Then January 31st — so three months later — he filed a response that basically said, he didn't deny not paying, but he said her bad behavior, her unclean hands, gives me a valid excuse for not paying her, essentially is what he said.
LINDA BAILEY: And that is not legally — I don't think it was a very strong legal decision.
MR. ZELMAN: Okay, we'll come back to that. I want to back up to the June 21st hearing when relocation was denied. Did my client in the emails reviewed appear to push back on Wendi and try to get her to do certain things?
LINDA BAILEY: Well, what I saw from what I was provided — in the hearing, I think, was on the 21st, and there was a couple of days, maybe the 23rd through 26th, something like that, where Donna Adelson — maybe the reality of the relocation denial had set in, and she was upset.
LINDA BAILEY: So she was sending emails going, like, "How can we undo this, or is it possible to undo this?" And then Wendi responded, I think, at the end of that, "Mom, I'm at peace, I'm good." And then they dropped off. There was no more communication that I saw. And then certainly after the July 31st final judgment, there wasn't anything else where relocation was attempted or discussed.
MR. ZELMAN: Now, when — you are representing clients, how do you handle the involvement of their parents or loved ones in your client's divorce?
LINDA BAILEY: If I know that they are very involved, I'll ask to meet with them and bring them in, because what I don't want is third parties interfering with my advice, frankly. So if they misunderstand the law, or they're giving advice to my client contrary to my advice, then I want to talk to them. I want to hear their point of view, and I want to give them my point of view. And I find it's easier for my client to have everybody around them on the same page. So I just want to educate them. If it's a mediation and I feel like they're involved, I'll ask the other side if I can bring the mother or the brother, whoever it is, into the mediation. Because if they're in the mediation process, then they see how it changes over the course of the day — because other facts might come in, other considerations might come in. Because mediation is not just an opportunity to reach a resolution. You learn a lot of information out of mediation. So it's always helpful to have — if there's a family member who's very involved, it's helpful to have them there, so they learn as you learn and they understand how you reach an agreement. And then the litigant, the party, doesn't go home and have to explain what happened.
MR. ZELMAN: Do you have situations where clients' family members or friends are offering advice and it's passed on to you?
LINDA BAILEY: Sure.
MR. ZELMAN: How do you address that?
LINDA BAILEY: I ask them to call me. You know, sometimes I say, you know, if you don't trust my advice, maybe you should get a second opinion. And generally they don't. And I say, this is why I don't think that advice is valid or it's going to help you, and we can have that dialogue. And if they're really strong about it, then I'll definitely ask — let me speak to your boss, your brother, your mother, so we can kind of talk through this, because I need them to understand my position, and maybe theirs will change.
MR. ZELMAN: Now, you were provided with a number of emails that Wendi was sent by her mother. Did you see evidence that Wendi shared those with Kristen Adamson?
LINDA BAILEY: I saw no evidence that Wendi shared them.
MR. ZELMAN: Did you speak with Ms. Adamson about that?
LINDA BAILEY: Yes.
MR. ZELMAN: Did she receive any of the input from Donna Adelson?
LINDA BAILEY: My understanding from Ms. Adamson is she really didn't understand that Donna Adelson was involved at all.
LINDA BAILEY: She was there at that one hearing, but that's very common.
MR. ZELMAN: Did Wendi Adelson get the parenting plan that she was requesting in her settlement agreement?
LINDA BAILEY: She did. The entire marital settlement agreement was very beneficial for her, all the way through.
LINDA BAILEY: She actually got a parenting plan that was more — I think it was more like 45-55, something like that. It was, instead of seven days out of every 14 days, he was getting six days out of every 14 days, with five days and then one day in the off week. So it was split up a little bit, which was a typical parenting plan for that time period. So she got more parenting than she had really asked for, and that was to last three years and then it went into 50-50 — I think that got the youngest child to school, maybe. So until the youngest child went to school, she had about 55% parenting time. Child support, you know, the division of child care, that sort of thing. And without going into too much detail, child support is a mathematical calculation. It's a formula, and it's based on a number of factors. Income —
MR. ZELMAN: Income, child care, health insurance, and parenting time.
LINDA BAILEY: Exactly, exactly. And then Mr. Markel had asked for sole decision-making, for example, because he was upset if the children didn't eat kosher or whatever his complaints were. So he wanted sole decision-making, which is extremely difficult to do. The only time a parent gets sole decision-making is if the other parent is just incapable of making decisions — like drug addicted or seriously mentally ill, something like that. So that was really also telling that he was drafting that, because I don't know that either of the lawyers that filed on his behalf would have asked for sole decision-making. That's just rarely granted. And so she got shared parental responsibility. He didn't get any superior decision-making that he requested.
LINDA BAILEY: He also requested more than 50% of the marital assets, because he said he earned more and he created the assets more than she did, which is not a valid legal position. And she got what appeared to be equal value of assets.
MR. ZELMAN: Of the marital estate.
LINDA BAILEY: Of the marital estate, which was part of that $120,000 he was supposed to pay her.
MR. ZELMAN: Did Mr. Markel get the 50-50 timesharing he was requesting?
LINDA BAILEY: Not immediately. He had to wait three years for that, by agreement.
MR. ZELMAN: And you mentioned keeping the boys kosher. Was Wendi Adelson required that the boys keep kosher?
LINDA BAILEY: That I don't know. I think there were some issues about that in the marriage.
MR. ZELMAN: In the settlement agreement, was that required?
LINDA BAILEY: No.
MR. ZELMAN: Was she required in the marriage settlement to allow Mr. Markel to come over to her home during her timesharing?
LINDA BAILEY: No, that would be extremely unusual.
MR. ZELMAN: In the marriage settlement, was she required to have the boys available for video calls?
LINDA BAILEY: No.
MR. ZELMAN: Was Wendi Adelson, throughout the litigation, requesting that the boys be available nightly for her to speak with them when they were with their father?
LINDA BAILEY: No.
MR. ZELMAN: Was Mr. Markel granted every Jewish holiday?
LINDA BAILEY: No. He, I think, had requested that, but he was not. They alternated the Jewish holidays.
MR. ZELMAN: Was Wendi Adelson required to continue counseling with Mr. Markel and follow the advice of those counselors?
LINDA BAILEY: No, and that would be an improper order. The court can't delegate decision-making to a third party like a therapist. The court can't say you need to go to your therapist and follow their advice.
MR. ZELMAN: Was Wendi Adelson required, pursuant to the settlement agreement, to equally split time on each of her children's birthdays with Mr. Markel?
LINDA BAILEY: No, there was a general provision that each parent would get some time on birthdays.
LINDA BAILEY: But there was no requirement that it be equal, and I really tried to dissuade my clients from putting birthdays into agreements, because kids don't want to see their parents fight every birthday.
MR. ZELMAN: Were either parties prevented from allowing the children to see anyone else unsupervised in the marriage settlement agreement?
LINDA BAILEY: No. I mean, the general premise was shared parental responsibility, which is what they have, meaning they have equal rights to get information, make decisions. The whole crux of that is you trust the other parent to make decisions that are healthy for your kids.
MR. ZELMAN: Now, pursuant to the marriage settlement agreement, was Mr. Markel ordered to pay both Wendi a lump sum and Kristen Adamson a lump sum?
LINDA BAILEY: Yes. He was ordered to pay $120,000 directly to Wendi Adelson and $10,000 towards attorney's fees to Kristen Adamson.
MR. ZELMAN: In what types of cases is one party ordered to pay or agree to pay part of the other party's attorney's fees?
LINDA BAILEY: Well, there's a disparity between assets and income, so it can be assets or income or assets and income. I think in this situation, Mr. Markel's income was twice or so Wendi's, and his assets, from what I understand — including the non-marital assets — were more substantial than Ms. Adelson's.
MR. ZELMAN: In your opinion, was the marriage settlement agreement that was incorporated into the final judgment favorable to Wendi Adelson?
LINDA BAILEY: Yeah, yes.
MR. ZELMAN: Now, later —
LINDA BAILEY: It was very fair, it was measured. I say "favorable" only because he was asking for things that would have made it unfavorable and that were unusual requests. And at the end of the day, he gave up on those and they got a very typical marital settlement. So from September of 2012 until the final judgment in July of 2013, as far as the litigation is concerned, it was not very contentious. Not at all.
MR. ZELMAN: Now, after July 31st of 2013, did either side file any enforcement actions?
LINDA BAILEY: Just three months later. The payments for Mr. Markel were due within 60 days, so that would have had them due at the end of September. And so, you know, taking Kristen Adamson at face value that she tried to work this out during the month of October — on October 31st, she filed a motion for enforcement of the $120,000, well, what's left of the $120,000 — $70,000-ish — plus the $10,000 for fees.
MR. ZELMAN: Okay, so Mr. Markel had 60 days to pay those amounts, and Ms. Adamson waited until 90 days after the agreement was entered — the judgment was rendered — and 30 days after the deadline she waited to file.
LINDA BAILEY: She did.
LINDA BAILEY: And even that was a pretty ordinary motion. It didn't ask for any drastic sanctions, it didn't ask for jail time, anything like that — which couldn't have been ordered. It would have just — she's looking for a judgment that she can execute on. So you have to get a formal civil judgment from the court, and then you can execute on that by attaching other assets or garnishing wages, that sort of thing. I've had the court open up and get retirement assets and kind of claw them back from the marital estate to make the person whole who doesn't get paid.
MR. ZELMAN: Now, in reviewing the emails between my client and her daughter after the relocation hearing, did you see any correspondence trying to encourage my client — I guess it was after July 31st — to encourage Wendi to do anything about relocation? From your — review of the emails and the pleadings, did it appear my client accepted that Wendi was going to be staying in Tallahassee?
LINDA BAILEY: Yes. It was done.
MR. ZELMAN: When you say "it was done," what do you mean?
LINDA BAILEY: I mean Wendi waived her right to appeal that by agreeing that the relocation would be dismissed.
MR. ZELMAN: So, now, prior to final judgment being entered, would Wendi have been able to attempt negotiating with Mr. Markel to try to get relocation, even though the judge denied it?
LINDA BAILEY: She could have.
MR. ZELMAN: Would there be anything improper with Wendi or her family, through Wendi, offering some sort of financial incentive to Dan Markel to convince him to agree for her to relocate?
LINDA BAILEY: I see that all the time.
LINDA BAILEY: I mean, I had a client pay $850,000 to somebody to get her to not relocate.
LINDA BAILEY: I've seen $35,000 to get whatever parenting plan you want, or to get less time. So depending on your financial circumstances, that number can be wide-ranging, but it's common. And in mediations, it's often common to see where the pain points are. If the pain point is money, then you use that pain point to get what you want on parenting. It's a negotiation, so that's routine.
LINDA BAILEY: Nothing unusual about that. Routine.
MR. ZELMAN: Now, you testified earlier that you were provided text messages between Wendi Adelson and Dan Markel after the divorce was finalized.
LINDA BAILEY: Yes.
MR. ZELMAN: Did — although they didn't agree on everything — did it seem to you that it was amicable?
LINDA BAILEY: Yeah. I was only provided, I think, what the state provided to you, which was between maybe April of 2014 through June of 2014. So it was a few-month period, even after these motions had been filed that kind of upped the temperature a little bit, and they were working well.
LINDA BAILEY: I saw some communications where Mr. Markel was inviting her to join him and the boys for ice cream. I know that there were many occasions where he was traveling and his travel plans adjusted, and she adjusted exchange times based on his travel. I think he did the same for her. They were swapping days.
LINDA BAILEY: It was actually much more amicable than many cases I see. They were very flexible with each other.
MR. ZELMAN: Now, you indicated earlier that October 31, 2013, Kristen Adamson filed a motion for enforcement.
LINDA BAILEY: Correct.
MR. ZELMAN: You mentioned a motion for enforcement and contempt. What is contempt?
LINDA BAILEY: Well, in this context, I think that's just the title of her motion, because in the body of the motion, she didn't ask the court — I don't believe — to find him in contempt of court. She was just looking for a judgment so she could execute on the judgment and collect her money.
MR. ZELMAN: So although the motion itself may have been entitled "enforcement and contempt," the prayer for relief didn't include any request that the court find him in contempt?
LINDA BAILEY: I don't recall seeing that at all. I think she asked the court to make him pay, you know — ask the court to make him pay. And what that means is, give me a judgment so I can enforce on that judgment, however that may be. It's just a collections issue.
MR. ZELMAN: You indicated that you don't think it was there.
LINDA BAILEY: It would be helpful to see the pleading itself.
MR. ZELMAN: Sure. May I approach the witness?
MR. ZELMAN: Specifically, page 338.
MR. ZELMAN: Is that the October 31st, 2013 motion that Ms. Adamson filed?
LINDA BAILEY: It is.
MR. ZELMAN: Okay. And the body of the motion — does it seek anything concerning contempt?
LINDA BAILEY: In — In the body, which does not control the ask of the court, which is called a wherefore clause — and under the wherefore clause is where you say what you want the court to do. Above the wherefore clause, it sets up the facts: he was required to do this, it was due by here, here's what he's done, here's what he owes, she's incurred attorney's fees. And then she says, attorney's fees pursuant to this agreement — or form of support — the former husband should be required to show cause why he should not be held in contempt for failing to pay a form of support. So that's accurate in the sense that the money owed to Wendi is not enforceable by contempt; the $10,000 fees can be enforceable by contempt. So she says that above the line, but then the wherefore — what she asked the court to do — is enforce the marital settlement agreement, require him to immediately transfer to the former wife the remaining amount due to her pursuant to the marital settlement agreement together with statutory interest on the same, order him to immediately pay the wife's attorney's fees of $10,000, and award her attorney's fees for this action. So all she's asking — she's not asking the court to hold him in contempt here; she's just asking the court to order him to pay it immediately. And the sanction for him would be he'd be required to pay the attorney's fees to Kristin for having to file this motion, and he'd be required to pay statutory interest on the unpaid amounts from the date it was due until the date it's paid. So that's his full exposure in the scheme of this dissolution and the circumstances of this case.
MR. ZELMAN: Was the — the amount of money that Ms. Adelson was seeking through this enforcement motion, an enormous amount?
LINDA BAILEY: I didn't view it that way. I viewed it as kind of an annoyance that she had to go through these hoops to get the money, because he had the money and he owed the money, but it wasn't going to put her out on the street.
MR. ZELMAN: Did you believe — is your opinion — that that motion for enforcement that was filed on October 31st, 2013 had merit?
LINDA BAILEY: Absolutely.
MR. ZELMAN: What were the possible repercussions to Mr. Markel?
LINDA BAILEY: He would have to pay more. He'd have to pay more in fees and more in statutory interest and more to his lawyer to fight it.
LINDA BAILEY: That was it.
MR. ZELMAN: And were you provided with a series of emails in mid-December of 2013 where Mr. Markel emailed the parenting coordinator and Wendi Adelson complaining about a host of issues?
LINDA BAILEY: I did.
MR. ZELMAN: Okay. Was one of those issues one where the boys allegedly said that Grandma referred to him as stupid?
LINDA BAILEY: Yes, he brought that complaint up to the parenting coordinator and to Wendi in the same email, in December 18th, maybe, of 2013.
MR. ZELMAN: From your review of that correspondence, what did he want to happen?
LINDA BAILEY: My recollection is he was asking Wendi to be mindful of that and to be alert and make sure it didn't happen.
MR. ZELMAN: Did he ask that my client not be around the children unsupervised — Donna Adelson?
LINDA BAILEY: No, he did not ask for that relief.
MR. ZELMAN: According to what you reviewed, when did those, quote, "stupid" events allegedly occur?
LINDA BAILEY: According to the email, he said there were two or three occasions in November where the kids said something like, "Grandma thinks you're stupid," or something like that.
MR. ZELMAN: Did Mr. Markel file any action, any motions or supplemental petitions in November or December of 2013?
LINDA BAILEY: Related to that allegation?
MR. ZELMAN: Yes.
LINDA BAILEY: No.
MR. ZELMAN: Now, the motion for enforcement filed October 31st — when was that set for hearing?
LINDA BAILEY: It was initially set for hearing in February, and I believe that was set in December. And it was the certificate of service — which is the bottom of the motion, you file a certificate that says where you have sent this document, to whom you've sent this document — and it went to Mr. Adelson's new lawyer in December.
MR. ZELMAN: Mr. Markel?
LINDA BAILEY: I'm sorry — Mr. Markel's new lawyer in December. And then nothing happened.
LINDA BAILEY: All of January went and nothing was filed. And then the end of January — which at this point is three months after the motion was filed — a response was filed. And then the response basically said, yes, I owe the money, but I don't have to pay it because Wendi had had these other financial violations. And then she referred to the Schwab account that you've heard about — a retirement account, I think.
LINDA BAILEY: And then two weeks later — I think it was February 14 — he filed a motion for contempt against Wendi.
LINDA BAILEY: And in that February 14, it was kind of a companion document to the January 31 response.
LINDA BAILEY: Again, he would do multiple filings on the same issues.
LINDA BAILEY: He again just addressed — but a little more vehemently — the allegations of financial fraud. It was only a financially focused document.
MR. ZELMAN: What defense did he claim to have to avoid paying Wendi Adelson as he had been ordered?
LINDA BAILEY: My recollection is his defense was that she did not put on her financial affidavit a certain non-marital asset, but he knew that an asset existed, but it was fraud. It was, again, it was kind of circular.
LINDA BAILEY: And there was — he said he didn't have an updated document at the time of the marital settlement agreement, or something like that, to know what the then-value was. But those are all pre-divorce issues. So he had ample opportunity during the divorce to do third-party subpoenas or motions to compel or other ways to get those documents. And then, according to Kristin, you know, all of those were dealt with in the marital settlement agreement anyway, and I don't have any reason to doubt that. But yeah, he was just trying to say one good breach deserves another, or something like that, and it wasn't legally supportable. That's not a valid defense.
MR. ZELMAN: Pardon?
LINDA BAILEY: That's not a valid defense. I wouldn't make that defense.
MR. ZELMAN: Now, if a party in an action believes that there has been fraud in the underlying — securing the underlying agreement — is there a way in which they can contest that?
LINDA BAILEY: There is. If you're alleging fraud, and if it's fraud in the financial affidavit, you don't even have to do it within the first year. But there's a rule that Ms. Adamson referred to. It's called 12.540.
LINDA BAILEY: And that's where you can move to set aside the marital settlement agreement based on fraud. So if you find out later that they had won the lottery before, you didn't disclose, or that they had some stash of gold bars somewhere or whatever, you can come back in and say they didn't disclose that. But it has to be material.
LINDA BAILEY: And so the case law is pretty clear that the fraud has to be an actual fraud that impacted the agreement. For example, I think there's one case that talks about maybe there was a minor three- to five-thousand-dollar tiny IRA or something like that that was never disclosed. They just had forgotten about it. It was very small in relation to the rest of the assets, and the court said that didn't really impact anything — that we're not going to set aside an agreement based upon that.
MR. ZELMAN: In other words, it's a high hurdle to overcome.
LINDA BAILEY: Sure, and it had to have impacted you. In this instance, it was clear from Mr. Markel's own motions he knew about these assets, so I think his fraud allegation was completely baseless.
MR. ZELMAN: Now, in some of his emails and filings, he was asking for 100% timesharing, more restrictions, more access to the kids. Did he ever present a proper pleading to the court to try to get those things?
LINDA BAILEY: No, no, no. What happened was: he did the January 31st response, and then he did the motion against Wendi on the financial issues February 14th, and then toward the very end of March — March 26 — after Kristin had filed a motion to dismiss his fraud motion as being a sham pleading, essentially, I guess he kind of ramped it up a little bit. So he filed a motion complaining about parenting, and it had maybe ten different points. It was very long — each point was maybe a page long of different paragraphs. And in that motion, almost all of the related violations were not violations at all. There were no court orders requiring her to do what he wanted her to do. So he talked about — he wanted a certain number of video calls and she didn't give him enough video calls. Well, video calls weren't required. He asked for a certain number of phone calls — and a number of phone calls wasn't required. He was asking for, oh gosh, there was some right of first refusal. He didn't like that when his parents would come to town that she would maybe go have dinner with friends and let them spend time with the kids.
LINDA BAILEY: Or she would let them stay home from school so her parents could spend time with them, and they were little babies.
LINDA BAILEY: And he didn't like that, because he wanted to be able to go to the childcare during her parenting time so he could see them every day.
LINDA BAILEY: And I think the childcare person had asked him probably not to do that, but he wanted to do that.
LINDA BAILEY: And he wanted her to go to a therapist and follow the therapist's advice on basically doing what he wanted her to do. So it was a lot of noise trying to enforce something that wasn't a provision to enforce — there was no underlying court order to enforce.
MR. ZELMAN: And is that the pleading that Ms. Adamson filed a motion to dismiss about?
LINDA BAILEY: That may have been. I was thinking she filed it against the February 14th, but I could look at my notes and clarify if you'd like me — if it would be helpful.
MR. ZELMAN: It would be helpful.
LINDA BAILEY: Yes — it looks like on April 11th. No, that's his response. Let's see. Yes.
LINDA BAILEY: It was before the — it was, my recollection was correct. She filed a motion to dismiss on March 10th, to dismiss the motion regarding the fraud that he alleged on February 14th. And then I think, as a response to that motion to dismiss, that he kind of amped it up with this motion to enforce that dealt with the parenting issues. And the motion to enforce that dealt with the parenting issues —
MR. ZELMAN: Is that the March 26, 2014 motion?
LINDA BAILEY: Correct. And then that was all set for hearing for May 15.
MR. ZELMAN: The complaints that he raised in the March 26, 2014 motion — you indicated there were things that he was asking for that hadn't been ordered. Are you referring back to the marital settlement agreement?
LINDA BAILEY: They were conditions that he wanted that weren't actually in there, right? He was trying to enforce his view of what this post-divorce parenting should look like, but there was no court order that required her to make the children available to him during her parenting time. I think one of the complaints was he wanted one-on-one time with the kids, and she should be ordered to let him take the kids during her parenting time one-on-one. There was a couple of different provisions about communication.
LINDA BAILEY: I think, like, the eighth point he made — well into this very long motion — was he brought up the "stupid" allegation from November, and this was the end of March.
LINDA BAILEY: So I didn't see anything in his allegations that had any recent problems with him being disparaged or, by anybody, calling him any names.
LINDA BAILEY: So he mentioned that — I think it was his eighth of ten points in that motion.
MR. ZELMAN: Was it in that pleading that he was asking for sole decision-making authority?
LINDA BAILEY: Yeah, I believe.
MR. ZELMAN: Would there have been a basis for the court to grant that?
LINDA BAILEY: No, no. He would have had to go through that supplemental petition that we talked about earlier, where he would have had to show a material substantial change in circumstances and that it was in the best interest. And there's no indication he would have been successful there. And he didn't plead it correctly anyway.
MR. ZELMAN: Now, with respect to the complaint about my client allegedly saying that she hated Dan Markel or she called him stupid — was that allegation a feature of his motion?
LINDA BAILEY: No, it was buried. Like I said, eight points down — eight, ten, twelve pages — just a few paragraphs of his motion. Yeah, three paragraphs.
MR. ZELMAN: Was there any indication that those claims were true?
LINDA BAILEY: No, and I don't think he could have proven that, because he's talking about what purportedly a four-year-old may have said to him. And I think even in this motion, he says, "I don't know if this is true or not, I don't know if Wendi was present or not, but I would like Wendi to make it stop if it's true."
MR. ZELMAN: Did the — this motion, the March 26, 2014 motion, that the state has called the "grandmother motion" — did that request that my client not be permitted time with the children?
LINDA BAILEY: No.
MR. ZELMAN: Did Mr. Markel request that my client's time with the children be restricted?
LINDA BAILEY: The only thing he requested — and it kind of — he had the first right of refusal, maybe point 4 or 5, and then he kind of tied in this grandparent thing on point 8. But what he appeared to be upset about mainly was when she came to visit and they kept the children home from school, that he couldn't go visit the children at school. So he didn't want her having unsupervised time as it related to the first right of refusal.
LINDA BAILEY: He wanted the kids to go to school and not be left alone with the grandmother because he wanted to see them. The same thing with the evenings — if she went out to dinner because her mom was in town and it gave her a chance to run out and see a friend or something, he wanted Wendi to have to call him so he could watch the kids even though Mom's there to watch them, which — that's not the purpose of a first right of refusal.
MR. ZELMAN: I was just about to ask that. What is the purpose of that?
LINDA BAILEY: Well, the purpose is, if a parent is unavailable and can't provide care for a child, then you offer the other parent the first right to take care of the child. It's not — my rule, or what I tell my clients, is: if you can't make it to the hospital, if you can't meet the ambulance at the hospital, it's a first right of refusal. You need to have a parent available who can take care of any emergency. It's not to prevent the kids from having sleepovers or spending nights with grandma or anything like that, that's a normal part of the kids' upbringing. And so you don't want them to never be able to spend the night with grandma and never be able to go to a friend's house because they happen to be in a divorced family. Those are just decisions each parent makes within their own household. So a first right of refusal typically is triggered when the other parent is unavailable, out of town, that sort of thing.
MR. ZELMAN: Okay. Now, have you ever seen a scenario where a court prohibited a grandparent from having unsupervised time with their grandchild?
LINDA BAILEY: Only in one occasion I can think of, and he was a convicted child molester.
MR. ZELMAN: What is your opinion about the persuasiveness of the March 26, 2014 motion that Mr. Markel filed?
LINDA BAILEY: I think it would have been similar to what Ms. Adamson described the judge saying in the middle of the relocation hearing, which is, "Don't file things like this."
LINDA BAILEY: I don't think it would have been well-taken by the judge at all, because it was a complete waste of everyone's time and money and emotion, because it was baseless. It didn't tie to anything.
MR. ZELMAN: Now, even if his allegations had been true, would the court have been permitted to modify the terms of the marital settlement agreement based on his filings?
LINDA BAILEY: No.
MR. ZELMAN: Why?
LINDA BAILEY: You have to do a supplemental petition if you want to modify terms of the marital settlement agreement. You can enforce terms, but you can't modify terms.
MR. ZELMAN: In reading the motion, does it appear to be intimidating?
LINDA BAILEY: No. I think when I was making notes, I put "insert vitriol here." You know, it was a lot of words in it, and he was obviously wanting life to look like what he wanted it to look like, but that wasn't reality.
LINDA BAILEY: So it was just a matter of breaking down each allegation and addressing them.
MR. ZELMAN: Should Wendi Adelson or my client Donna Adelson have felt threatened — or would they have felt threatened — based on that motion?
LINDA BAILEY: They shouldn't have. And that's one of the reasons I wanted to call Kristin — because, again, when I read that motion, I was kind of taken aback that a lawyer would have signed that and allowed that to be filed. And I thought it was kind of nonsense, and I wanted to get Kristin's take on that and see if she agreed. And she did. And she said that she had advised Wendi about — and that's what I would have expected from her.
MR. ZELMAN: In the emails or text messages that you reviewed, did you see any communication that indicated that my client Donna Adelson was aware of that March 26, 2014 motion?
LINDA BAILEY: No, not from what I was provided. I saw early during the divorce period that, when he had sent her mom a couple of documents — I know the petition for relocation — that Donna helped make suggestions to beef up the facts, which I thought were pretty helpful suggestions, because, like Ms. Adamson said, relocation is extremely difficult and you really have to have as many facts as you can to support yourself.
LINDA BAILEY: So I saw that there was some editing and some input on that petition, but after the divorce, of course, I didn't see any communication about sending pleadings. I don't even know that I saw any reaction from the financial motion — but certainly not from — I saw nothing either that she communicated the motion to her mother, or that her mother reacted to it in any way. I didn't see any responses.
MR. ZELMAN: Would Mr. Markel have been able to sustain his burden of proof for that motion?
LINDA BAILEY: I'm sorry. Say that again.
MR. ZELMAN: Would Mr. Markel have been able to sustain his burden of proof for that motion?
LINDA BAILEY: No, I don't think so at all.
LINDA BAILEY: If you're talking specifically about, like, point eight about calling him stupid — his only evidence is a four-year-old child. Otherwise it's hearsay, and I don't think a judge is going to talk to a four-year-old child about whether their grandma thinks their dad's stupid.
LINDA BAILEY: There's so much worse that goes on. That's not significant.
MR. ZELMAN: In your experience, what do judges typically do when this type of allegation is raised?
LINDA BAILEY: My experience is the judge tells everybody to behave themselves and sends them on their way.
MR. ZELMAN: So we've talked about this not being a hotly contested case or a high conflict case.
MR. ZELMAN: How many pages are in the court file?
LINDA BAILEY: I think there's roughly 570 — 570.
LINDA BAILEY: And again, a lot of — all of those pages are repetitive documents filed by Mr. Markel that might say the same thing. He'll do a motion, then he'll do a memorandum that says the same thing, then he may do a response that says the same thing in different orders. So 570, though.
MR. ZELMAN: Do you know how much in attorney's fees Wendi Adelson incurred — attorney's fees and costs — for the dissolution of marriage and the enforcement proceedings that began afterwards?
LINDA BAILEY: I only know what Ms. Adamson said, which is around $30,000.
MR. ZELMAN: Now, in your career, have you worked true high-conflict custody cases?
LINDA BAILEY: I have.
MR. ZELMAN: Okay. In particular, do any come to mind that involved an attempt to seek relocation?
LINDA BAILEY: Yes. I had a particularly conflictual relocation case that started in 2018 and went through 2021 — so about three years, yes, including an appeal.
MR. ZELMAN: Do you recognize —
LINDA BAILEY: — this file? Yes, I think I forwarded this to you.
MR. ZELMAN: Are these ten volumes an example of a hotly contested relocation case?
LINDA BAILEY: Well, I just count 500 pages per binder, so that looks to be about 5,000 pages. I think the actual pages were over 10,000, so this doesn't appear to be all of it.
MR. ZELMAN: Okay. And there were two volumes on the record on appeal, so perhaps only one of those volumes got printed. So the clerk's file in the case that we're referring to as the demonstrative is twice as big as what we have in front of you?
LINDA BAILEY: Yes, based on just assuming 500 pages per notebook.
MR. ZELMAN: Can — you tell the jury what the issues were in that case?
MS. CAPPLEMAN: Judge, may we approach?
MR. ZELMAN: Judge, we're entitled to make a record.
JUDGE EVERETT: I believe I have the members of the jury. The bailiff will take you to the jury.
MR. ZELMAN: The relocation issues within this case are certainly relevant as to a separate other case.
JUDGE EVERETT: What is the argument that you're seeking to make for the record?
MR. ZELMAN: Your Honor, the relevance of this proceeding is the witness has identified this as a hotly contested custody and relocation matter.
MR. ZELMAN: I think we're entitled to have her explain what the issues were, what was involved in litigating that, as well as the amount of her fees that were incurred and the expenses that were incurred, so that we can make the comparison to the case that involved Wendi Adelson and Mr. Dan Markel.
JUDGE EVERETT: Mr. Cappleman, any other argument on this issue?
MS. CAPPLEMAN: Just relevance, Your Honor.
JUDGE EVERETT: As to the point on relevance, the court's ruling remains the same as to issues of relevance.
JUDGE EVERETT: Again, the relocation that is disputed within this case as it relates to the divorce file certainly is an issue. As to any other case files, this witness may testify concerning her experience, but we're not going to go through this case file in its entirety. Please bring back in the jurors.
MR. ZELMAN: Your Honor, that was not my intent — to go through the case file in its entirety.
JUDGE EVERETT: Ms. Bailey, please step down. Step out of the courtroom doors.
JUDGE EVERETT: If you can radio Deputy Bonk to leave the jurors in the room — please approach.
JUDGE EVERETT: I'm going to remind you, do not make any gesturing. Do not make any comments. Do not make any expressions in front of the jury in any way that would be intended to inappropriately influence them.
JUDGE EVERETT: Are the jurors using the restroom?
COURT STAFF: They are.
JUDGE EVERETT: Please use the restroom or stretch your legs if you need to. We will continue with the witness after the examination.
MR. ZELMAN: Ms. — Bailey, how did the Adelson-Markel divorce compare across the variety of cases that you've handled?
LINDA BAILEY: Simply, it was routine. It was amicable.
LINDA BAILEY: I've done similar cases that have had anything from two-day to seven-day trials.
LINDA BAILEY: I've had them range from $200,000 to half a million dollars in fees and costs. I've had multiple financial experts, child development experts, vocational experts — all retained, deposed, testifying.
LINDA BAILEY: I've had cases with multiple, multiple, multiple discovery issues — discovery over psychological records, financial records, third-party subpoenas.
LINDA BAILEY: Two full days of deposition of just one party.
LINDA BAILEY: This was an easy case compared to many.
MR. ZELMAN: Did it look worse than it was because of the way in which Mr. Markel's pleadings were drafted?
LINDA BAILEY: Yeah, I mean, he drafted pleadings — motions, I think, and responses would be more appropriate than pleadings, but that's kind of technical.
LINDA BAILEY: He drafted them like he was drafting a law review article or something.
LINDA BAILEY: They weren't technically correct.
LINDA BAILEY: They were verbose. They were hyperbolic.
LINDA BAILEY: He used a lot of inflammatory language. But when you really looked closely at his requests of the court, there was no there there. There was no foundation for his asks.
MR. ZELMAN: Nothing further, Your Honor.
JUDGE EVERETT: Cross-exam.
MS. CAPPLEMAN: What is it you were asked to do in this case?
LINDA BAILEY: I was asked to review the documents I was given and to opine about whether this was truly a highly contentious custody case, essentially.
MS. CAPPLEMAN: And why would your opinion about whether it was a highly contentious custody case matter?
LINDA BAILEY: Well, that's for somebody else to decide. I mean, I've done 2,000 cases — or give or take 100 — on each side, and I think I have a pretty good judge of where this falls as far as contentiousness.
MS. CAPPLEMAN: Sure, but you're somebody that has vast experience with a ton of divorces, right?
LINDA BAILEY: Sure.
MS. CAPPLEMAN: The parties only have experience with one divorce, right?
LINDA BAILEY: I don't know how many they have experience with, but sure.
MS. CAPPLEMAN: So isn't the contentiousness in the eye of the beholder, in the sense that to you it might not seem like a big deal, but to the parties it might be the most important thing in the whole wide world? Do you agree with that? Do you agree with that?
JUDGE EVERETT: Do not speak over each other.
MS. CAPPLEMAN: Do you agree that a case as a lawyer might be routine, whereas to the parties it's the most important thing in the world?
LINDA BAILEY: To some degree. That's one reason I called Kristen — is Ms. — Adamson. In particular, of the lawyers in our community of the family law bar, she is extremely measured and calm. And I find that when I litigate against her, we reach resolutions — people stay measured and calm and we get things done. She's not one of the other lawyers in town who may stir cases up or play on those emotions. So our job as lawyers is to explain to our clients when we get a motion — if I get something, for example, that I've never had — something similar to what Mr. Markel would file — the immediate response is to call your client and go, "I know you're going to read this; at first glance it's going to seem messy, but there's no legal basis for this, so don't worry." And my understanding is that is what she communicated to Wendi.
MS. CAPPLEMAN: And when you communicate these things to your clients — "Hey, this is no big deal, this is no problem, this is a bunch of gibberish" — do they always accept that?
LINDA BAILEY: Well, that's not the way I would present it.
MS. CAPPLEMAN: But do they ever get upset about the gibberish in the pleadings, the offensive materials in the pleadings, regardless of whether or not it's going to impact their chance of success in court? It can be emotionally charged, can it?
LINDA BAILEY: Well, I would say annoying more than emotionally charged.
MS. CAPPLEMAN: You would not say that divorce and child custody issues are emotionally charged?
LINDA BAILEY: They can be, but in this case they weren't.
MS. CAPPLEMAN: They weren't? How do you know — from the pleadings?
LINDA BAILEY: Because I don't have 10,000 pages in front of me.
MS. CAPPLEMAN: You're not in the mind of the people whose lives are impacted by these pleadings. It's not just about pieces of paper and a binder, is it?
LINDA BAILEY: I don't think that's what I said.
MS. CAPPLEMAN: People's lives are impacted by the decisions that go on in court, which for you are routine. Would you agree?
LINDA BAILEY: In this instance, they reached agreement on all issues, so they had complete control of what was coming out of the court.
MS. CAPPLEMAN: Ma'am, could you please answer my question? Are people's lives impacted in drastic ways by routine matters that we see in court as lawyers?
LINDA BAILEY: People's lives change after divorce, certainly.
MS. CAPPLEMAN: So, like, I may think I've got a bag of stinky garbage, but the garbage man might not think it's stinky at all. Do you get the reference?
LINDA BAILEY: I don't.
MS. CAPPLEMAN: What is no big deal to us is a big deal to these litigants, right? You —
LINDA BAILEY: — can't agree with that.
MS. CAPPLEMAN: You can't agree with it. Strike the question. You were asked — let me ask you this. Let's go on to something else. Have — you ever had people get murdered or commit suicide based on the issues that are going on in your family law litigation?
LINDA BAILEY: I've never had anyone murdered. I had, in one instance, a Middle Eastern person commit suicide just because there was a divorce and that was shameful. So nothing was — it was literally the day after the petition was filed, and he had threatened, "If you file, I'm going to kill myself," and indeed he did.
MS. CAPPLEMAN: And to you, divorce is not shameful, is it?
LINDA BAILEY: To me, divorce is not shameful.
MS. CAPPLEMAN: Divorce is not a basis to commit suicide, is it?
LINDA BAILEY: Not according to me. But I didn't grow up in Iran or wherever this custom or feeling —
MS. CAPPLEMAN: Exactly. Ms. Bailey, to that person, it was a reason to commit suicide, right?
LINDA BAILEY: Apparently so.
MS. CAPPLEMAN: So these — issues raised in these pleadings — potential fuel to make people upset? Potential fuel to possibly make people upset?
LINDA BAILEY: Yes, ma'am.
MS. CAPPLEMAN: For example, you were asked about what we've called the grandma motion. You say, "Oh, it's no big deal, it wouldn't be granted, it was buried in there." But the allegation is, "Grandma is disparaging me to these kids and I won't tolerate it," right? Couldn't that be upsetting to grandma?
LINDA BAILEY: Exactly. It — shouldn't have been. There was no proof. It shouldn't have been — in your opinion. In my opinion.
MS. CAPPLEMAN: But in your opinion, divorce is no reason to commit suicide, right?
LINDA BAILEY: True. True.
MS. CAPPLEMAN: "Gibberish," according to the evidence in this case, means "Jew in boots." It's not a flattering term — by that definition, or by your definition of someone that speaks gibberish. Can we agree it's not a flattering term?
LINDA BAILEY: No, it's probably not flattering, but I've seen far, far worse.
MS. CAPPLEMAN: You've seen worse?
LINDA BAILEY: I have.
MS. CAPPLEMAN: If — Mr. Markel wasn't paying by the deadline, isn't that something that would be potentially upsetting to the parties or their family members? You don't know how upsetting $80,000 would be?
LINDA BAILEY: I don't know.
MS. CAPPLEMAN: $80,000 is a lot of money, isn't it, Ms. Bailey?
LINDA BAILEY: Depends on who you are.
MS. CAPPLEMAN: Exactly. So we'd have to ask the parties, right?
LINDA BAILEY: Right. Yeah.
LINDA BAILEY: I think on that issue he clearly had the assets, so at the end of the day he was gonna pay. It was just a matter of jumping through hoops to get the money.
MS. CAPPLEMAN: He was either gonna pay, or he was going to get sanctioned by the court, or he was gonna end up in jail, right?
LINDA BAILEY: I don't see any possibility he was gonna end up in jail.
MS. CAPPLEMAN: Well, you sat in the courtroom during Ms. Adamson's testimony, didn't you? And Ms. Adamson said that that was one alternative — an extreme alternative, obviously, but that's what contempt means, right?
LINDA BAILEY: Ultimately, wouldn't even come into play until the motion for enforcement. And then he didn't abide by that, and then the judge asked him to do something else, and then he didn't abide by that — but I think jail was pretty far-fetched. Well, as long as he pays —
MS. CAPPLEMAN: Ultimately, the teeth is you go to jail.
LINDA BAILEY: No, that's not true. It's not true.
MS. CAPPLEMAN: Um, so Ms. Adamson was incorrect on that point, I guess?
MS. CAPPLEMAN: I'll rephrase. It was — I said Ms. Adamson was incorrect on that point when she said jail was a potential option. Is that correct?
LINDA BAILEY: Well, I could break it down. There's two different matters in that financial motion on October 31st. One was the $70,000 still due to Wendi. Jail is not a possibility on that — but you don't send people to jail for failure to pay money.
LINDA BAILEY: We don't do that. The $10,000 in fees to Kristen was more debatable, because that could have been in the specter of support, and if you don't pay alimony or child support after repeated chances, I guess you could say jail might be an option — but there's always a purge to that. So if you — I've seen many times in child support, if you don't pay child support, then the judge says, "Bailiff, get, you know, Mr. So-and-so" or whatever, and then all of a sudden he comes up with money out of his pocket and he pays. He never goes to jail. So you always have the key to the jail when you owe a support obligation. So technically, if he wanted to go to jail rather than pay Kristen the ten thousand dollars, eventually there may have been a hearing where that happened.
LINDA BAILEY: I've just — I've seen one person in my career go to jail over child support.
MS. CAPPLEMAN: Right, because they pay — because they don't want to go to jail.
MS. CAPPLEMAN: If there was no jail and no consequences, they would never pay, right?
LINDA BAILEY: Some people wouldn't.
MS. CAPPLEMAN: And that's just support.
MS. CAPPLEMAN: If there was no jail and no consequences, they would never pay, right? Some people wouldn't. And that's just support.
MS. CAPPLEMAN: There's no jail consequence to the 70,000 to Wendi. It was only the $10,000 to Kristin that could have possibly remotely been a possibility.
MS. CAPPLEMAN: Did you see evidence in this case of Wendi taking her mother's suggestions, cutting and pasting them into an email as her own, and then forwarding those questions to Ms. Adamson?
LINDA BAILEY: No, I didn't see any.
MS. CAPPLEMAN: And did you see in your review of the evidence in this case Ms. Adamson responding to those questions, and Wendi then forwarding those answers to her mother?
LINDA BAILEY: I don't recall that. I don't recall saying that.
MS. CAPPLEMAN: Did you review the communications from Donna Adelson, both in the form of email and text messages, that suggest that she was in fact extremely disappointed and upset about the outcome of the relocation motion?
LINDA BAILEY: I did. In probably the five days after the relocation, which was, say, four weeks before the ultimate settlement in July, there were a flurry of emails where she was obviously upset.
MS. CAPPLEMAN: Did you review Mrs. Adelson's communications after July 31st that suggests she's consistently still upset about this?
LINDA BAILEY: I wasn't provided —
MS. CAPPLEMAN: So you were — I'm sorry, finish your answer. You weren't provided any?
LINDA BAILEY: I wasn't provided after the flurry, right after the relocation, before the final judgment was entered in July of 2013.
LINDA BAILEY: After July 2013, I don't recall seeing any emails from Ms. Adelson, Ms. Donna Adelson, about relocation.
MS. CAPPLEMAN: Did you see any emails from her at all post-settlement?
LINDA BAILEY: Not until maybe December. It was a while. October, maybe.
MS. CAPPLEMAN: Okay. Several months.
MS. CAPPLEMAN: If Dan Markel had agreed to the relocation post-denial, post-stipulation, post-post-post, it could still happen, right? I mean, if he agrees, it could happen.
LINDA BAILEY: Sure. If he agreed, she could have relocated.
MS. CAPPLEMAN: All right. And if he was murdered, it could happen, right?
LINDA BAILEY: Well, obviously.
MS. CAPPLEMAN: So you categorized Dan Markel's pleadings in a lot of different ways: baseless, untrue, unenforceable, gibberish, nonsense, suggestion of unethical filings on the part of his lawyer to sign off on them. Are you saying — I think what you're saying is that those things wouldn't amount to much in court because there's not really effective filings. Is that what you're saying?
LINDA BAILEY: What I'm saying is his motions post July 31st were not based in the law, and I don't think that allegations about accounts he knew of not being on an early filed financial affidavit would amount to fraud, and it certainly wouldn't excuse him not paying what he was supposed to pay under the terms of the court order.
LINDA BAILEY: And the motions related — the motion in March, March 26th, related to parenting — he was trying to enforce things that weren't in the marital settlement agreement. There was no court order to make her do the things he wanted her to do. So there's no basis for the court to have granted his motion.
MS. CAPPLEMAN: Right, so they weren't going to be successful. It's your opinion they weren't going to be successful.
LINDA BAILEY: Yes, that's my opinion.
MS. CAPPLEMAN: But would you agree that the things he was putting in there are inflammatory?
LINDA BAILEY: I would agree that they were inflammatory.
MS. CAPPLEMAN: And they potentially could make the parties or their relatives upset to read those pleadings and those inflammatory accusations.
LINDA BAILEY: Sure, nobody wants to read those allegations, true or not, about themselves in a public record.
MS. CAPPLEMAN: You were shown a bunch of binders on a case. That case has nothing to do with this case, right?
LINDA BAILEY: No, it was a relocation case.
MS. CAPPLEMAN: Right. And that case — was anybody murdered in that case?
LINDA BAILEY: No.
MS. CAPPLEMAN: Okay. So if somebody had been murdered in that case, there might have been a lot less paper, right?
MS. CAPPLEMAN: Case would have been shorter if somebody'd gotten murdered, wouldn't it, Ms. Bailey? If there wasn't a party, the case would have ended.
LINDA BAILEY: If that's —
MS. CAPPLEMAN: And in our case, if we hadn't had a murder, we might have a lot more paper in our case, wouldn't we?
LINDA BAILEY: No. No, because the divorce was over in July.
MS. CAPPLEMAN: Divorce was over in July, but they kept filing papers, didn't they?
LINDA BAILEY: Well, and the case was set for hearing March 15th. I mean, excuse me, May 15th, 2014.
MS. CAPPLEMAN: So the motion that Ms. Adamson filed in October, and the motion that Mr. Markel filed in February, and then the motion he filed in March, were all set for hearing May 15th. And then Mr. Markel amped it up again, and on May 5th he filed the motion that accused Kristin of fraud, so she had to withdraw, so they had to move that motion. So had that not been filed, they would have had a resolution on May 15th.
LINDA BAILEY: We don't know that.
MS. CAPPLEMAN: How do you know it was going to go on May 15th? Could have gotten continued for any zillion different reasons, couldn't it?
LINDA BAILEY: It was set for May 15th and it was noticed for May 15th.
MS. CAPPLEMAN: For May 15th. But at the time of Dan Markel's murder, litigation was still ongoing in this case.
LINDA BAILEY: Yes.
MS. CAPPLEMAN: Yes. And even after that was resolved, there would be nothing stopping them from having a bunch of other time-sharing issues or whatever come up, and they might have ended up with reams of paper, right?
LINDA BAILEY: This has provided an opinion. I guess my response to that would be — I think it would have been to Wendi's benefit to proceed with those hearings, because nothing makes someone stop filing nonsense pleadings and motions better than having them ordered to pay the other side's attorney's fees. So had they gone to the hearing on May 15th and had Wendi been successful, he would have very likely had to pay Wendi's attorney's fees.
LINDA BAILEY: I really encourage my clients in these situations to take it to hearing, so once the other side gets kind of slapped down, if you will, by the court and made to pay your fees, then they tend to back off.
MS. CAPPLEMAN: That hadn't happened yet. It had not happened yet. And we'll never know when that was going to happen, because we never got to that point, right?
LINDA BAILEY: Clearly. Because he was murdered. Clearly.
MS. CAPPLEMAN: May I have a moment to confer, Judge?
MS. CAPPLEMAN: Nothing further, Your Honor.
JUDGE EVERETT: Redirect examination.
MR. ZELMAN: Briefly, Your Honor.
MR. ZELMAN: Ms. Bailey, you sat through Kristin Adamson's testimony earlier today, correct?
LINDA BAILEY: I did.
MR. ZELMAN: Did that in any way influence your testimony here this morning?
LINDA BAILEY: No. There was no new information.
MR. ZELMAN: Nothing further.
JUDGE EVERETT: Will this witness be recalled at any point?
MR. ZELMAN: Potentially, Your Honor, but she's free to go to her business.
JUDGE EVERETT: She remains under your subpoena. Please do not discuss your testimony with any other witness in this matter.
JUDGE EVERETT: Have a good day.