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Former Supermodel's Divorce Trial to Stay Open
N.Y. judge rejects argument that blogs and other 'new age' media alter the grounds for closing proceedings
New York Law Journal
July 01, 2008
Allegations seeping out of the courtroom in the upcoming divorce trial of former supermodel Christie Brinkley and architect Peter Cook may well be embarrassing to the couple's children.
Brinkley filed for divorce after discovering that Cook cheated on her with an 18-year-old assistant. But despite the prospect of salacious testimony and extensive media interest, a Suffolk County, N.Y., judge rejected pleas to close parts of the trial.
His ruling underlined the strong presumption under the U.S. Constitution and New York state law that court proceedings -- including the most tawdry of divorces -- should be open to the public.
Brinkley, 54, and Cook, 47, married in 1996; they had a daughter, Sailor, 9, and Cook adopted Brinkley's son, Jack, 13, from one of her previous marriages. Brinkley filed for divorce in 2006. Grounds, custody and visitation and financial issues related to a prenuptial agreement will be determined during the trial scheduled to begin Wednesday and could last several weeks.
Theresa Mari of Huntingdon, the attorney for the children, and Cook contended that the best interest of the children would be served by closing the courtroom "to, in effect, isolate them from information." Brinkley opposed closing the courtroom.
According to the decision, Mari, backed by Cook, argued that the "new age" of media, and specifically the "bloggersphere" required the court to be "more attuned to the rapid dissemination of potentially damaging information." The case already has been the subject of thousands of items in newspapers, TV news reports, blogs and Internet celebrity Web sites.
"New age" or not, Acting Supreme Court Justice Mark D. Cohen opted to apply old law in keeping the trial open. State law does try to guard the privacy of divorce litigants. Domestic Relations Law §235(1) provides that documents in matrimonial actions should be kept confidential from all but the parties.
However, closing trials is a different matter. In that case, both U.S. Supreme Court decisions on the First Amendment and New York Judiciary Law §4 have taken the position that the truth is more likely to be established in open proceedings.
Subdivision 2 of §235 provides that a court, in its discretion, may close parts of a trial if it determines that "public interest" demands that course.
But Cohen noted that the Appellate Division, 1st Department "has strongly indicated that closing of the courtroom under this section is the rare exception." Anonymous v. Anonymous, 263 AD2d 341 (2000). The Appellate Division, in a matrimonial action between "well-known public figures of great wealth and prominence" who have each been "covered extensively by the media," ruled that the father of a 4-year-old girl had not presented "compelling" reasons to justify closure.
"The unsupported speculation by ... counsel as to the deleterious effect that media coverage might have on the child is simply inadequate to overcome the strong presumption that court proceedings be open to the public," the panel wrote in an unsigned opinion.
Further, as Justice Cohen noted, the Appellate Division observed that in the case of a high-profile matter that will attract public interest whether the proceedings are open or closed, "it is even more important that the trial be held in an open forum."
In the Brinkley-Cook divorce, Cohen concluded, the attorney for the children had not made a proper evidentiary showing to justify closure but had relied on the simple "conjecture of harm to the children."
"Notwithstanding the Attorney for the Children's conclusory allegations that her clients have already been 'harmed' by prior media reports in this case, there is nothing in the record to connect this alleged harm with such reports," the judge wrote in a footnote.
At the same time, he noted, divorce actions in general "may provide a basis for societal education." Moreover, they offer a guarantee to the litigants that all sides will be treated evenhandedly.
Cohen's ruling addressed a quickly emerging field of media law, said David A. Schulz, whose firm represented Newsday, which intervened in the case to argue that the trial should be kept open.
"One of the useful parts of the holding is the rejection of the argument that the Internet changes the legal standard -- you can't just dismiss the public's right to know simply because the information is going to be more widespread," Schulz, of Manhattan-based Levine, Sullivan, Koch & Schulz, said in an interview.
SHOWING OF HARM
Absent a direct showing of harm to the children, Schulz said, courtrooms cannot be closed.
"The only harm being alleged stems from the children's receipt of information about [themselves or their parents] as opposed to information that would be disclosed about the children that would be harmful to them," he said. "Where the children in essence will be re-victimized that's grounds to close the trial." Mari did not return calls seeking comment.
A widely cited 1st Department case illustrates the circumstances in which child custody matters may be closed to the public.
P.B. v. C.C.,223 A.D.2d 29 (1996), involved a custody dispute over several children, including then-child actor Macaulay Culkin. The 1st Department ordered the trial closed due to the "emotional and educational harm which has already occurred."
In the Culkin case, unlike the Brinkley divorce, both parents supported closure. The court also noted that the potential harm to the children from open testimony of drug and alcohol use and domestic violence, among other matters, had been well documented. The evidence included detailed affidavits from a school principal, a private tutor, a school psychological consultant, an independent psychologists and an attorney, all of whom had been involved with the children for a number of years.
"The best efforts of a well-intentioned Judge cannot adequately protect against devastating revelations or allegations which may be adduced in the course of rapidly unfolding examination and cross-examination in a hotly contested and acrimonious litigation," held the panel in a 4-1 decision by then-Presiding Justice Ernst H. Rosenberger. "It is to be remembered that we deal here not with the children's 'privacy', but with the protection and preservation of their health and welfare."
But the Culkin decision was the exception rather than the rule.
The danger to the children must be "real and demonstrable," said Warren Quaid, a Garden City, N.Y., solo practitioner who represented Dina Lohan, the mother of popular starlet Lindsay Lohan, in a visitation dispute involving her other children with her estranged husband, Michael.
Quaid said the courts are inclined to limit disclosure in matrimonial and family disputes.
"It's mostly to protect children," he said. "The law really doesn't like to see disclosure of family strife but a judge can't just close the courtroom without a strong showing [of harm] to the children."
TACTICAL CONSIDERATIONS
Either side in a divorce may leak allegations to the media to pressure the other side into settling the case rather than risk an embarrassing tell-all before a worldwide audience, said Quaid.
"Are there people who perhaps fear the embarrassment of disclosure? Sure -- it largely hinges on the nature of the case," he said.
In a high-profile case "where money is no object," each side will attempt to get any edge it can, including attempting to prejudice the judge by litigating in the court of public opinion, said lawyer Anthony A. Capetola, who represented Brinkley's second husband, rock icon Billy Joel.
"New York is the only state that requires fault grounds for divorce," Capetola said in an interview. "Allegations made in a public forum are a tool to try and get the recipient of the criticism to settle the case, to make them squeamish about airing that stuff in court."
Changing the law to eliminate fault grounds would cut down on potentially damaging testimony that could be harmful to children, said Patricia M. Latzman, a Port Washington, N.Y., attorney who often serves as a law guardian.
"Children's lives should not be spread all over the press so that 20 years from now they can pick up the newspaper and read an article about their parents' divorce," Latzman said. "All custody matters should be closed, not just Christie Brinkley's."
In her career spanning nearly 20 custody trials, Latzman said she had urged the court to close the courtroom once. That motion was refused, she said. Ultimately, the controversy over the issue of open courtrooms in custody battles is only generated by high-profile cases, which are the exceptions, not the norm, said Latzman.
"For the most part no one really cares -- in my custody trials there is no one sitting there," she said. "If it isn't the Lohans or the Brinkleys does anyone really care? Is the New York Post going to sit in the courtroom of [the divorce trial] of an average Joe?"
Latzman's observations were echoed by Garden City, N.Y., attorney Steven M. Del Vecchio.
"Usually nobody cares [if the trial is closed]," said Del Vecchio, adding that in his experience if both parties consent to close the courtroom the judge is much more likely to oblige.
Here, however, Brinkley had no objections to an open trial.
Brinkley issued a statement after Cohen's decision that she remained hopeful the case would be settled in private. But Robert S. Cohen, the Manhattan attorney who represents her, has repeatedly maintained that his client has nothing to hide and said an open trial would be an opportunity to set the record straight.
"It was clear in this case that there was so much misinformation that everybody is better off in having an open trial," said Cohen, of Cohen Lans.
Cook is represented by Norman Sheresky of Manhattan-based Sheresky, Aronson, Mayefsky & Sloan and James Winkler of Port Jefferson-based Winkler, Kurtz, Winkler & Kuhn.
Winkler said Monday that there have been "no overtures" to settling the matter.
After Cohen's decision, Sheresky was quoted in Newsday as saying that Brinkley is "interested in paying Peter back. That's what this is all about."
