JUDGES WHO HATED ME........HINDU MARRIAGE, PROFFERS, PRESERVATION OF THE RECORD FOR APPEAL 
Saturday, February 27, 2010, 09:30 AM
Posted by Administrator
By Bob Smith:

Frequent readers will have read my entry about Judge Tessel, one of the Judges who hated me. Thinking about Judge Tessel made me remember a small woman from India who I saw about 20 years ago. I don't remember her name....and, as it turns out, her old name isn't her name now.......so, I will call her "Idel".

Idel had been a bank teller in India. According to her...and I've got no reason to doubt it...bank tellering was a premier job for a woman, there. She had graduated college and applied and waited and, finally, the job was hers.

One day a man came to India from Florida and to the town outside Bombay (now Mumbai) where Idel lived. His parents were from there and he had come to find a wife. Through intermediaries, a marriage was arranged between the man...who I will call Veejay...and Idel. They married in India, she quit her bank teller job and they returned to Florida where Veejay was part owner of a convenience store.

But, as it turned out, the marriage didn't last long. Veejay was having an affair with his aunt and he wanted to run off with her and to be done with Idel. So, Veejay filed to divorce Idel and Idel hired me.

The divorce was a big problem for Idel for many reasons:
-She hadn't been married long enough to be qualified to become a permanent U.S. resident, so, she was going to land up back in India.
-Divorced women were vilified in India; seen as damaged goods; had no chance of re-marriage.
-She would never get her bank teller job back: there weren't many jobs for women to begin with; she had quit that one; and...after the divorce...she would be perceived as tainted.
-So, she would likely live in poverty in India until she died at a young age of depression and disease.

But, there was another problem: Hindus believe that they are married for seven lifetimes. So, really, she couldn't get a divorce that would count in Hindu because she had been married to Veejay six times previous or one previous with six to go...or some variation of this. Hindus, she told me, did not believe in divorce.

So, one the one hand, since she'd only been married for a few months before Veejay filed for divorce, Idel was entitled to nothing. And, on the other hand, since Veejay had, in those few months, ruined her entire life, cancelled her future and condemned her to hell on earth, she was entitled to everything. And, on top of that, he had been sleeping with his AUNT.

And, just to tie things together, Judge Tessel had the case.

There was a temporary hearing and the Judge gave her some temporary alimony but he said that he would give her no more. About the other issues: "Short term marriage..too bad, so sad", he said, in these words more or less.

It seemed to me that the first thing we needed was a Hindu Priest...a Brahmin, since in the Hindu caste system, the Brahmins were the priests. This was back in the day when Palm Beach County had industry....and one of the industries we had was Pratt and Whitney. And, as I asked around for a Brahmin Priest, it came as no surprise that one of the engineers at Pratt and Whitney was, in fact...on the side and in his spare time when he wasn't busy designing rocket engines... a Brahmin Priest.

Here was my strategy...I figured that I should:
1) Ignore that Judge Tessel said he wasn't going to give Idel any more alimony, (alimony...a monthly payment...was all she could get, Veejay didn't have any assets), and,
2) Have a Priest ready to testify that Idel would never be able to marry again and that Veejay had ruined her life.

We went to trial. Veejay's lawyer objected that the Priest's anticipated testimony wasn't relevent. The Judge sustained the objection and, probably, this was the right thing to do. Religious Jews can't remarry without a religious divorce, a "Get" (which the Rabbis who give Gets won't give to a woman if her ..ex... husband objects); Catholics can't remarry in the church because the church doesn't recognize divorce...and evidence about these Jewish and Catholic customs never comes in. If you don't like something about your religion...ignore it or convert to a religion you like better. (And then there is the whole separation of church and state thing.....but, I digress.)

After Judge Tessel sustained the other lawyer's objection that the Brahmin Priest's testimony was irrelevent, I told the Judge that I wanted to proffer the testimony. I had two choices:
1) Say...myself... what the Brahmin Priest would have said...and get the lawyer on the other side to agree that...more or less...what I said is what he would have said. The Court Reporter would take what we said down on her little stenograph machine and...in the event of an appeal...all of this would be in the "Record".
2) Have the Priest come in and sit in the witness stand and ask questions and get answers...just as if he were any other witness.

Here is the idea behind a "proffer"......you are going to get evidence on the record but the trier of fact isn't going to pay any attention to it because there has been a determination that, for one reason or another, it is not admissible evidence. (It could be irrelevent, hearsay, based on facts not in evidence, offered without a predicate, unfairly prejudicial, imporoper opinion, incompetent, etc.)

But, if you don't like the result of your trial, you can appeal and ask the appellate court to consider that the trier of fact should have been able to hear and consider the evidence you proffered. If you don't make the proffer, then the appellate court won't be able to consider what the proffer would have been or whether allowing it into evidence would have changed the result of your trial.

In a divorce case (except in Texas where juries hear divorces), the trier of fact is the Judge. If a jury is hearing a case (a civil suit, a criminal trial) and one of the lawyers wants to make a proffer, the Jury is sent off to a room in the back and the Judge sits and pretends to listen. But, if the Judge is the trier of fact, the Judge has two choices:
1) He/she could leave the room and let you make your proffer to the court reporter.
2) He/she could stay in the room.....confident that being a professional judge...he/she will simply ignore what you have the proffer.

Judge Tessel stayed.........and (as Judges always do when a proffer is made in front of them and they are the trier of fact), he did listen.

So, the Priest came in and sat on the witness stand and Judge Tessel was there listening and the testified as I expected him to. And, in the end, based upon what the Brahmin Priest said...that the Judge said he would ignore...he gave Idel a little more alimony. And, we all went home.

Except that the story did not end there for Idel because the Priest.....after testifying that Idel could not be married again because of the Hindu/7 lifetimes thing....decided that Idel's marriage to Veejay didn't count. And, coincidentally, the Priest knew an Indian engineer in Atlanta who was looking for a wife. So...the two of them got married...first marriage for each (I guess)...but, somewhere in the line up of the total of the 7 marriage to each other that they would experience in the course of their respective Hindu eternities.

Since Idel didn't know anyone in town except the Priest (and, I guess, Veejay and his aunt)..........my whole law firm got invited to the wedding. While, I was told, the usual Hindu wedding extended over a few days, Idel's marriage to the engineer lasted only a few hours.

Good food...but, something that I as an unwordly/uneducated/xenophobic American found strange: Idel's new husband got to choose a new first name for her. ....She got not just a new last name but a new first name, too.

A few years later, Idel called me. She was bored...stuck in Atlanta with the engineer. During my years as a lawyer in South Florida (and before I moved to Northern Wyoming, next to the Canadian Border), I met a lot of people who were very happy with their arranged marriages. But, for ?___________? (I don't remember "Idel's" new first name), arranged marriage didn't work out so well....either time that she tried it.
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