Bill Upton
What is the surest sign that Private Judge Gary Pate conducted a monumental cheat job in the Upton v. Upton divorce case? It might be that Pate's Final Order of Divorce does not even mention perhaps the central issue in the case.Plaintiff Bill Upton, the multimillionaire president of Vulcan Steel Products, admitted in court documents to carrying on an extramarital affair with Gincie Walker, a young woman he and his wife had raised as their daughter, Court records indicate the affair was the driving event behind the breakup of Bill's marriage of more than 30 years to Linda Upton. Alabama law holds that a court may make an allowance to the spouse who was the victim of marital misconduct.
But Pate's Final Judgment of Divorce reads as if Bill Upton never admitted to having sex with a young woman who was essentially his daughter--and it apparently happened, for the most part, at the marital residence. (See Final Judgment of Divorce at the end of this post.)
On top of that, Linda Upton's attorney, MaryLee Abele, filed a Motion to Alter or Amend that states "The Husband openly admits his infidelity with a mental patient/former sibling to the minor children." (The term "mental patient" is a reference to Gincie Walker, who has been diagnosed with multiple-personality disorder. She reportedly has been found to have roughly 30 distinct personalities.) (See Motion to Alter or Amend at the end of this post.)
Did George R. Fernambucq, Bill Upton's attorney, address the infidelity issue in his response to the motion to amend? No, he did not. Like Pate, Fernambucq acted as if the Bill Upton/Gincie Walker affair never happened--even though information about it came directly from Bill Upton's deposition. (See Upton's response to Motion to Alter or Amend at the end of this post.)
Fernambucq also tried to ignore the fact that Linda Upton received nothing approaching an equitable share of the marital assets, to which she is entitled under the law. Consider this sleight of hand from Fernambucq's response to the motion to amend:
That the allegations in Paragraph six (6) suggesting that the Court only awarded the Defendant her inherited property and "most of the marital property to the Husband" is absolutely incorrect. This allegation overlooks the fact that the Defendant was awarded substantial marital property, some of which included a note payable to the Defendant from the Plaintiff's business with a value of approximately $1.4 million, a beach house that has no debt and a value of approximately $3.6 million, a one-half interest in the residence in Birmingham which has a value of $3.6 million, and an I.R.A. which was funded entirely by the Plaintiff for the Defendant's benefit with a value of approximately $120,000.
Fernambucq, of course, conveniently confuses the issue: the issue is not whether Linda Upton received "substantial marital property," in his opinion. It's whether she received an "equitable share" of the property, based on the record and Bill Upton's admitted misconduct. The record strongly suggests that she did not--and it isn't even a close call.
Gincie Walker Upton
Code of Alabama 30-2-52 shows that Private Judge Pate butchered the Upton divorce, and a case styled Shirley v. Shirley, 600 So. 2d 284 (1992) drives that point home. From the Shirley ruling:Section 30-2-52 permits a trial court, upon a finding of misconduct by one spouse, to make an allowance to the other spouse out of the estate of the offending spouse, as the circumstances may justify, provided "that any property acquired prior to the marriage of the parties or by inheritance or gift may not be considered in determining the amount."
Was misconduct present in Shirley? The trial court determined the answer was yes, and the Alabama Supreme Court agreed:
The record reveals that the parties' marriage was beset with extreme unpleasantness. In the pleadings and at trial, each party placed blame for the breakup of the marriage on the other. The husband claimed that the wife was verbally abusive, argumentative, and vindictive and that she interfered with the operation of his business both during the marriage and after the parties' separation. The wife claimed that the husband had a violent temper, had been physically abusive during the marriage, had been dishonest in his handling of the parties' finances, and had engaged in numerous extramarital affairs. At trial she specifically alleged that the husband had, without her consent, misapplied a number of her real estate commission checks for his personal use and had attempted to misappropriate certain life insurance proceeds of which she was the sole intended beneficiary. The husband denies that he has ever been dishonest in handling the wife's money or that he has engaged in adultery, although he admits to having engaged in sexual activity with a woman not his wife on three occasions.
The trial court made no specific finding of adultery, granting the divorce on . . . grounds of incompatibility of temperament and irretrievable breakdown. However, in the judgment of divorce the court recognized the husband's sexual infidelities and made specific findings of his marital misconduct and financial dishonesty toward the wife and other parties. We have thoroughly reviewed the record and conclude that there is ample evidence to support the trial court's finding of marital misconduct by the husband. . . .
What impact should such misconduct have on the outcome of a divorce case? From Shirley:
Where one spouse is guilty of misconduct toward the other spouse, the trial court's award may be as liberal as the estate of the offending spouse will permit under the circumstances of the case. Isom v. Isom, 273 Ala. 599, 143 So. 2d 455 (1962).
In other words, Bill Upton could have, and should have, taken a major financial hit for engaging in misconduct that a reasonable person might decide was way worse than that present in Shirley. But Upton's attorney did his best to cover up the issue, and the judge made no mention of it.
Did Linda Upton get the due process and equal protection of the law guaranteed her under the 14th Amendment to the U.S. Constitution? Not even close.
(To be continued)
Upton Divorce--Final Judgment of Divorce by Roger Shuler
Upton Divorce--Motion to Alter by Roger Shuler
Upton Divorce--Response to Motion to Alter by Roger Shuler
