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VOL. 126 | NO. 73 | Thursday, April 14, 2011

Six-Year Divorce Case Picture of Legal Wrangling

By Bill Dries

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Shem and Danielle Malmquist arrived at the Tennessee Court of Appeals in Jackson this past October without attorneys. They each represented themselves in an appeal of a Shelby County divorce case that has lasted six years over a marriage that lasted less than five months.

“This is not a complicated divorce case,” Tennessee Appeals Court Judge David R. Farmer wrote last month at about the middle point of the 39-page ruling. “It concerns a short-term marriage, two children and one marital asset.”

It also involved at least 10 attorneys – one for him and nine for her.

The Malmquists met in California and had one child before moving to Memphis and getting married the same day Shem Malmquist got a divorce from his second wife. They had a second child together about a month before a fight at their Germantown home that prompted Shem Malmquist to file for divorce in March 2005.

The case went to trial in April 2007 before Circuit Court Judge Jerry Stokes, the second judge to be assigned the case.

By July 2007 Stokes entered a divorce decree that awarded Shem Malmquist primary custody of the children, his ex-wife supervised visitation, part of his 401(k) and four months of transitional alimony.

It has been contested ever since and wound up before the state appeals court.

Stokes described the history of the case as the “mark of the failure of the legal system to effectively deal with and minimize the emotional and financial conflicts inherent in ending … marriage.”

The appeals court ruling says the case became “unnecessarily protracted litigation.”

“The parties inundated the trial court with filings over a two-year period, many of which contained alarming but ultimately unproven accusations.”

Most divorce proceedings fit into a court file. This one is in a banker’s box.

The trial record is 35 volumes including a disputed verbatim transcript of the trial, which has live testimony from 30 witnesses and 122 exhibits.

Danielle Malmquist’s attempt to enter into the record a transcript that she personally transcribed from tapes she sued a court reporter to get access to was rejected. She refused to pay for a transcript from the court reporter and then claimed the court record was incomplete.

“Wife must now reap what she has sowed,” the appeals court ruling concluded in rejecting her claim, partly because there was no transcript.

“Divorce cases can be emotional, difficult affairs,” the conclusion to the ruling begins. “This divorce has been especially contentious,” it continues noting the trial judge’s ban on either Malmquist from contacting the other for any reason except an emergency.

“As we have seen in similar divorce cases, the entry of a final decree is often seen as nothing but an invitation to move for its modification.”

Dr. John Hutson, one of the four psychologists who examined the Malmquists, didn’t testify at the trial. But in his letter to the guardian ad litem for the couple’s two children, Hutson wrote:

“Given their level of education, intelligence and age, one has to wonder how two children came to be born in such a brief period of time into a relationship with virtually no stability. Both parents are seen as rather emotionally needy, self-centered and socially shallow.”

Danielle Malmquist contends the divorce decree isn’t final because there’s been no final judgment on the two contempt petitions she filed in 2006. The appeals court also found three more contempt petitions from 2005 that haven’t been resolved.

That is usually a problem for Tennessee appeals courts taking jurisdiction. But in the Malmquist case, the appeals court decided to use an exception to the rule requiring those issues be resolved.

The exception empowers courts “to relieve litigants of the consequences of noncompliance with the rules” when appropriate.

“The parties in this hotly contested divorce case equally deserve closure,” Farmer wrote in the Malmquist appeal. “It is clear the issues pending before this court will remain highly disputed until final resolution of this case. It is also evident these parties will litigate any and all potential sources of dispute arising in this or related cases so long as this case is pending.”

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