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Breaking Up Is Hard to Do: Divorcing a Judge, Local Lawyer Has Trouble in Mind

New York Lawyer - December 17, 2007
By Thomas B. Seffey - The Connecticut Law Tribune

A lawyer seeking a divorce from a state judge has expressed concern that he will have trouble getting a fair shake because other judges will likely side with one of their own.

The unusual case, which has already involved the state Supreme Court, centers on prominent Hartford criminal defense attorney Hubert J. Santos and Superior Court Judge Thelma A. Santos, a Rockville juvenile judge.

Hubert Santos is represented by another formidable defense lawyer, Hugh F. Keefe of New Haven. In court documents, Keefe argued that because Thelma Santos was a Hartford family court judge in the 1990s, Hubert Santos would face an "unconscious bias" that exists "when a judge has to decide a case involving one of his or her own."

Keefe argued that all applicable case law and the Code of Judicial Conduct requires a transfer, and proposed either Waterbury, Litchfield, New Haven or Bridgeport, to assure a fair trial and the appearance of propriety.

Hartford Superior Court Judge Jorge Simón utterly disagreed. He penned his one-sentence ruling directly on Keefe's Oct. 30 motion: "There is no basis in law or equity" to send the case out of Hartford.

The following day, Keefe took the extraordinary step of petitioning the Supreme Court to immediately overturn Simón's decision under C.G.S. § 52-265a, the emergency interim appeal remedy for matters of great public importance. In a brief, he cited 1954 New York case, Arkwright v. Steinbugler, for the premise that judges have an "unconscious bias" in favor of their local colleagues.

Need For Openness

"The fact that Judge Santos has so vigorously opposed the transfer of this case only highlights the advantage she feels and the inequality that will result if this case proceeds in Hartford," Keefe wrote.

Gerald Roisman, of Hartford's Roisman & McClure, who is representing Thelma Santos, produced a U.S. Supreme Court precedent to buttress his arguments that the divorce should not be moved out of Hartford. He cited the 1947 case of Gulf Oil v. Gilbert, in which the justices wrote about the importance of having local controversies decided in view of the interested public.

He also argued that this divorce needed to be handled in a normal manner "for public policy reasons, namely the public criticism of a judiciary which permitted sealed files, etc., and the expressed dedication on the part of the judiciary to openness in the court system." Roisman noted the public outcry that arose after it was revealed some cases, including divorce cases involving lawyers, had been "super-sealed."

Justice Joette Katz, acting on behalf of the chief justice, rejected the Hubert Santos emergency appeal bid.

On Nov. 13, Santos and Keefe moved to seal the entire divorce file, a request Simón also denied. Instead, he unsealed the parties' financial affidavits, because their contents had become part of the case in dispute.

On Nov. 16, Simón ordered Hubert Santos to pay $35,000 in attorney fees by Nov. 30. Roisman's law partner, Edith McClure, said in a Dec. 12 interview that the firm has still not been paid. "It's always been our view that this case should be settled," she said, adding: "All of the hoopla surrounding this case has not been of our making."

Unlevel Field

The Santos divorce file reveals a classic family court scenario of a wife with fewer assets up against a wealthy husband backed by impressive legal firepower.

In their 2006 federal income tax filings, which are part of the record, Hubert Santos listed his adjusted gross income from his law practice and an antiques business he runs as $868,923. His wife declared earnings of $138,614.

According to his affidavit, Hubert Santos's weekly net income of $4,293 is exceeded by his weekly expenses of $5,380, of which $2,000 was for antique business purchases. The judge noted that Santos's "claimed social security deduction [of $496 per week] was substantially more than allowed." The maximum, accountants say, is about $285 per week.

The break-up began in early June when Thelma Santos moved out of the family home in West Hartford, which is valued at $630,000, according to Hubert Santos's financial affidavit. Thelma Santos paid a $25,000 down payment to move into a Litchfield condominium with the couple's 23-year-old son, who has mentally disabilities.

On July 17, she filed for divorce in Hartford on grounds the marriage had broken down "irretrievably." Thelma Santos, citing the costs of her son's education, has sought alimony and attorneys fees to pay Roisman.

On Sept. 18, Hubert Santos objected to fronting the fees. Because McClure is a "close personal friend" of Thelma Santos, Hubert Santos suggested that McClure's and Roisman's firm "will no doubt agree to this arrangement" and not seek legal fees now.

Roisman did not agree, and kept filing for pendente lite fees.

During September and October, Hubert Santos advanced a range of arguments why his wife should pay her own legal fees. When she left the West Hartford home in June and put down $25,000 on her Enfield condominium, "some of that could have been used to pay her lawyers," he contended.

She could also use some of the $103,507 in the retirement account from her time in private practice, he contended. Furthermore, before she left the family home, she sometimes had checking account balances in excess of $10,000, Hubert Santos argued.

Thelma Santos countered that, to meet the costs of her son's education, she had to borrow from her brothers, listing $3,800 in loans from them.

Six days after he failed to move the trial from Hartford, Hubert Santos filed a Nov. 6 motion seeking immediate payments of expenses at the family home his wife had left in June. On the basis of her one-half interest in the house, he sought $900 for her portion of the gas, water and electrical bills, and $600 for maintenance. He demanded the repayment of a $10,000 loan he had made to her a month before, plus a $3,250 contribution to their son's college. He also sought $3,000 for real estate taxes on the West Harford home, for a total of $40,550.

Judge Simón declined to award Thelma Santos alimony pendente lite, but he also didn't require her to pay the interim expenses on the West Hartford house, deferring that reckoning until later.

Simón ordered Hubert Santos to pay the $1,042 per week for expenses for his son, and ruled that neither his wife's retirement account nor the son's mutual fund account are to be invaded to make those payments.

Hubert Santos skipped a scheduled Dec. 3 deposition, according to court documents. On Dec. 5, he requested details from his wife's bank accounts, listing the account numbers in their entirety. Keefe, when reached for comment, said he had not included the full bank account numbers as a tactic to make a better case for sealing the file.

Keefe also relayed Hubert Santos's request that the Law Tribune not report on the divorce case. Hubert Santos is currently appealing Judge Simón's order for pendente lite attorney fees to the Appellate Court.

Keefe conceded that it is difficult to argue that a divorce case is an entirely private matter when public arguments are being made to the state's highest appeals courts.