2.Linda Bailey — Direct/Cross/Redirect

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.

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. I read her prior testimony in one of the other trials. I think it was Charlie Adelson's trial. I reviewed some exhibits, but they weren't very helpful to me. They were -- one of the officers had done some sort of a PowerPoint presentation with faces and arrows and timestamps for communication, and I don't even know why those were provided. I didn't take anything from those. I reviewed --

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 have handled, how many experts you have done direct exam with, cross-exam with, et cetera.

Then once you provide your application, they -- the group -- the bar does a peer review, and that includes sending very detailed questionnaires out to opposing counsels and judges in front of whom you've 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.

LINDA BAILEY: It's a 40-hour course. 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.

They have the same recertification period, not as enhanced as a board certification, but you do have to take enhanced continuing education. It might be a little bit different than you do for either your bar license or your board certification.

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. I was provided, but didn't review thoroughly, text messages between Wendi Adelson and friends and other miscellaneous texts.

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 between -- that I was provided between wendi Adelson and Donna Adelson from maybe 2011 up through about 2017. I don't know if they were comprehensive because they were provided to me.

LINDA BAILEY: She asked for a plan that would provide 51 percent of the time to her and 49 percent 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 is a presumption of 50/50.

But back in 2011, '12 time period, she had initially filed for a majority of time-sharing, which was ordinary. But then actually in her motion for temporary parenting, she asked for a 59/41, which is pretty -- excuse me, 51/49, which is essentially 50/50.

LINDA BAILEY: From my review of the pleadings, one partial hearing occurred, and that was the June 21st, 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, and then the relocation.

All within one hearing, the Court adjudicated the first two issues. His motion to dismiss was denied. 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. And then --

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 time-sharing. He wanted to have a great deal of contact. He wanted video contact, things like that. 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.

None of those were enforceable because they had never been ordered by a Court or even put into any sort of formal document. So that was denied.

LINDA BAILEY: In that particular motion, I could look at my notes, but I don't remember exactly the details. 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, 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 know, you can have them on Tuesday, and then Tuesday, you change your mind. There's no court order to enforce you. They just changed their mind.

So he was trying to enforce conversations that he ~=had had with wendi that had no court-ordered basis.

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 will agree to the denial of my relocation. And what's consequential about that is if -- they could have continued the hearing, finished the 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.

LINDA BAILEY: A parenting coordinator is a professional, generally a lawyer, but it can be a therapist, who is trained -- I think they do a 40-hour course, too, but I'm not certain. And they have a certification. And what they're trying to do basically is teach people how to communicate, teach people how to be reasonable.

There is 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. Soa 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 parents’ life and household, so a parenting coordinator may help them reach agreement on what a reasonable communication might be. Maybe it's once a day at 7:00. Maybe it's every other day. Maybe it's two times by video and four times by telephone or something like that. So they help them work out the details and just keep the conflict low.

LINDA BAILEY: Yeah. For example, the parenting coordinator is 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. Kristin talked about that earlier. And you have to -- it is basically starting a case over.

It is very difficult to modify a marital settlement agreement. what you can go to the Court for that a parenting coordinator might be involved in is somebody is 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/her to stop? Can you get them to be more timely? Can we find a new meeting location? Something like that.

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 and 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.

LINDA BAILEY: Yeah. So, for example, if you believe that a party has an asset that you're -- that they are not disclosing, 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 have you to wait ten 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 oftentimes -- not oftentimes -- sometimes we'l] 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.

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. 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 has 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.

LINDA BAILEY: No. No. I mean, Jibbers 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 refer to -- in multiple situations, he was seeking enforcement of things that were not court ordered, even afterwards in the, you know, February 2014 timeframe.

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 his -- 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.

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. For example, you know, 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, you know, 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. 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 I know she's committing fraud.

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 dollars. I think there was some question whether he paid 50,000 or 51 or 52,000.

But, anyway, he was essentially just around $80,000 underpaid. He hadn't paid his obligation. So she filed a motion the end of October. Then there was no response, nothing. His lawyer withdrew. There was nothing in November. There was nothing in December.

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 give me a valid excuse for not paying her, essentially is what he said. And that is not legally -- I don't think it was a very strong legal position.

LINDA BAILEY: well, what I saw, from what I was provided -- and 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 had set in, the denial, and she was upset. So she was sending emails, going, like, how can we undo this? 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 between them.

LINDA BAILEY: If I know that they are very involved, I will ask to meet with them and bring them in because what I don't want is -- are 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 will ask the other side if I can bring the mother, 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 at a 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 reached an agreement, and then the litigant, the party, doesn't go home and have to explain what happened.

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 is going to help you. And they can -- we can have that dialogue.

And if they're really strong about it, then I will definitely ask to say, 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.

LINDA BAILEY: She did. The entire marital settlement agreement was very beneficial for her from -- all the way through. 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. And I think that got the youngest child to school maybe. So they did -- until the youngest child went to school, she had about 55 percent parenting time, child support, you know, the division of childcare, that sort of ~~ thing.

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. He also requested for more than 50 percent of the marital assets because he said he earned more and he created the assets more than she did, which is not a legal -- a valid, legal position. And she got what appeared to be equal value of assets.

LINDA BAILEY: She did. 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 would have just -- she is 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 have 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.

LINDA BAILEY: I see that all the time. I mean, I had a client pay $850,000 to somebody to get her to not relocate. I have seen $35,000 to get, you know, 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: 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 out the facts. He was required to do this; it was due by here; here is what he has done; here is what he owes; she's incurred attorney's fees. And then she says, attorney's fees pursuant to this agreement are a form of support. The former husband should be required to show cause why you 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 asks 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 martial 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 would be required to pay the attorney's fees to Kristin for having to file this motion, and he would 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.

LINDA BAILEY: I'm sorry. Mr. Markel's new lawyer in December. And then nothing happened. 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 these other financial violations. And then she referred to the Schwab account that you've heard about and a retirement account, I think.

And then two weeks later, I think it was February 14th, he filed a motion for contempt against Wendi. And in that February 14th -- it was kind of a companion document to the January 31st response. Again, he would do multiple filings on the same issues. He, again, just addressed, but a little more vehemently, the allegations of financial fraud. It was only a financially focused document.

LINDA BAILEY: My recollection is his defense was that she did not put on her financial affidavit a certain nonmarital asset, but he knew that asset existed but it was fraud. Again, it was kind of circular. And there was -- he said he didn't have an updated document at the time of the martial settlement agreement or something like that to know what the, then, value was. But those were 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 Kris, you know, all of those were dealt with in the martial 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 in my opinion.

LINDA BAILEY: There is. If you are 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 is a rule that Ms. Adamson referred to, it's called 12.540, and that's where you can move to set aside the martial settlement agreement based on fraud. So if you find out later that they had won the lottery and 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.

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 some 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.

LINDA BAILEY: No. No. No. He -- 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 towards the very end of March, March 26th, 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 -- 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, anda 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 wendi's parents would come to town that she would maybe go have dinner with friends and let them spend time with the kids. Or she would let them stay home from school so her parents could spend time with them, and they were little babies, and he didn't like that because he wanted to be able to go the childcare during her parenting time so he could see them every day. And I think the childcare person had asked him probably not to do that, but he wanted to do that.

And he wanted her to go to, like, 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.

LINDA BAILEY: 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.

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.

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. So he mentioned that. I think it was his eight or ten points in that motion.

LINDA BAILEY: The only thing he requested, and it kind of -- he had the first right of refusal, maybe point four or five, and then he kind of tied in this grandparent thing on point eight.

But what he was -- 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. 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 was there to watch them, which that's not the purpose of a first right of refusal.

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 if -- 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, you know, anything like that.

That's a normal part of a kid's upbringing. And so you don't want them to never be able to spend the night with Grandma, or 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.

LINDA BAILEY: No, not what I was provided. I saw early during the divorce period that wendi 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.

So I saw that there were some editing and some input on that petition. But after the divorce, 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.