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Lawyer Battles Legal System
Jonathan Alpert faces a criminal contempt charge for not making alimony payments. He says chronic disease has hindered his earning capabilities.
By David R. Corder
Associate Editor
Six years ago, Jonathan Alpertis litigation skills earned him a pretax income of nearly $1.3 million. In 1999, he earned about $442,000. Life was good, he says.
Now it looks like those years may have been the pinnacle of Alpertis legal career.
The next year he failed in an election bid to become the Hillsborough County state attorney. His wife, Jo Elizabeth iLizi Alpert, who lost three bids for public office, hired a divorce lawyer around that time. Several partners abandoned Alpertis firm. His earnings dropped to about $258,457 in 2000 and $204,803 in 2001.
Citing irreconcilable differences, Alpert, 59, sued for divorce in April 2001. The coupleis inability to agree on alimony turned bitter. Liz Alpert, a housewife for nearly 22 years, wanted almost $13,000 in monthly pretax alimony. He offered $3,000.
Their bickering was detailed in daily news articles. Each accused the other of emotional abuse; she admitted to an affair with a childhood friend during the eight months or so the couple tried to reconcile.
Meanwhile, Alpert disclosed in court a medical condition heid kept secret since the mid-1960s from most anyone but family and close friends. He suffers from multiple sclerosis o a chronic, unpredictable disease of the central nervous system. The disease, he says, grew progressively worse after he filed the divorce petition.
Thatis why Alpert claims his pretax earnings dropped to $105,929 in 2002 and to $41,538 last year. This year he claims only $475 in earnings from a single speaking engagement. He says the effects of the disease forced him to retire this year, though the Florida Bar still lists him as an active licensed member.
However, Alpertis pleas about his disease didnit pacify his ex-wife. Her attorney, David Maney, one of Tampais ablest divorce lawyers, acknowledged Alpertis infirmity in court testimony. But he argued Alpert suffered no debilitating effects so serious he couldnit practice law. They persuaded Hillsborough Circuit Judge Marva Crenshaw in January last year to award Liz Alpert monthly pretax alimony of $11,892.
Alpert and his counsel appealed Crenshawis judgment to the 2nd District Court of Appeal o one of several appeals he has filed in the case. Just recently the appellate court remanded the judgment for reconsideration of the retroactive alimony ordered during the 21 months from the time he filed the petition until Crenshaw issued her judgment.
Throughout it all, Alpertis resolve stiffened. He embarked on a risky legal strategy that cost him a night in jail in October last year on a civil contempt charge for failure to pay about $105,000 in accrued alimony. To counter recent court rulings, Alpert filed a petition last month to reorganize his personal debts under Chapter 13 of the U.S. Bankruptcy Code.
iI didnit go into bankruptcy for the fun of it,i he says. iI had no alternative.i
Alpertis effort to modify the divorce judgment and to reorganize his debts, and possibly lessen his alimony obligations, could backfire. Tampa attorney Stanford iSandyi Solomon, who has represented Liz Alpert since April in her efforts to force him to pay about $118,103 in accrued attorneysi fees and court costs, now wants to excise a pound of flesh.
Tired of Alpertis legal wrangling, Solomon recently asked Hillsborough Circuit Judge Charles iEdi Bergmann o the fourth judge assigned to the divorce case o to declare Alpert in criminal contempt of Crenshawis final judgment. That means Alpert faces another possible stay in the Hillsborough County jail.
iCriminal contempt is designed to achieve a purpose different and distinct from civil contempt,i Solomon says. iCivil contempt is an effort to obtain compliance with existing orders, and the party who fails to comply typically is afforded an opportunity to purge the contempt by making the payments or performing the acts required by the court. Criminal contempt is merely punitive in nature. There is no purge opportunity. Itis not something designed to obtain money.i
Since her ex-husband filed the divorce petition, Liz Alpert has filed 19 motions for contempt against him. The legal wrangling has produced 20 volumes of court files.
iSheis finished trying to get somebody who is a highly-trained and highly-qualified lawyer to comply with the orders of the court,i Solomon adds. iThatis all weive ever asked him to do: Comply with the orders of the court.i
To thwart Alpertis efforts in bankruptcy court, Solomon also has filed an adversary claim to stay and dismiss the petition.
iWe donit believe he can discharge his support obligations,i Solomon says. iThat would include both alimony and attorneysi fees. He will be able to discharge the remaining equitable distribution. The equitable distribution still owed to Liz Alpert under the final judgment was never paid.i
Worsening effects
These days Alpert works out of a converted garage in Tampais Seminole Heights neighborhood. The 150-square-feet of residential space he uses contrasts the Class A digs he once occupied in Tampais isilk-stockingi district, the downtown high-rise buildings that are home to the areais legal elite.
The home he lives in belongs to his new wife, Barbara R. Pankau, a widow and law partner in the Tampa office of Shumaker Loop & Kendrick LLP. The couple began dating after Alpert filed for divorce. They married in December.
Because of the worsening effects of MS, Alpert says he decided in July to retire. He no longer accepts clients. Most of his time now is spent closing down whatis left of the law practice o a vestige of his days at what now is Fowler White Boggs Banker and later as managing partner of what was Alpert Barker Rodems Ferrentino & Cook PA. On occasion, Alpert consults with Tampa attorney Joseph Registrato, the latest in a line of lawyers to represent him in his battles against his ex-wife.
Gone is the confident o some would say arrogant o swagger and sometimes virulent advocacy that infuriated Alpertis courtroom adversaries. His hand shakes when he writes. When he stands, his posture stoops. He walks slowly, deliberately.
Perhaps, Alpert acknowledges, he overcompensated throughout his legal career because of the disease. Even his ex-wife says he told her, while they were dating, that some morning he might wake up paralyzed.
iI had all my life kept (MS) to myself, because it was always the prospect of it getting worse as a I grew older,i he says. iThe type I had for years was called relapsing/remitting. One of the things about MS, you never know if youire going to wake up the next morning paralyzed. So thatis something you have to live with.
iI think that may be a contributing factor to my reputation as being fearless, what have you, because you have to deal with that fear and not let it run your life,i he adds.
Solomon presented contradictory testimony at an April 12 hearing on the motion for attorneysi fees and costs. Tampa lawyer John W. Campbell testified he and Alpert opposed each other as adversaries at 15 hearings in separate legal actions between December 2002 and March this year. He described Alpertis work at a March 3 hearing in a class-action complaint against USAA Worldwide Insurance.
iDuring that day, Mr. Alpert conducted all of the direct examination and handling, I would, I would have to guess, but Iid say probably eight to nine witnesses, including offering into evidence the exhibits for each of the witnesses, the handling of those exhibits,i Campbell testified. iHe did it all.i
But Campbell acknowledged he had intended to question Alpertis adequacy as counsel in one of the USAA actions because of information he learned about from the Alpertsi divorce action.
iThat has changed because of what I have seen in this file and in these proceedings, where it appears Mr. Alpert can practice law,i Campbell says. iAnd my strategy has changed to one that Iim not comfortable discussing because of work product issues, and I do not wish to reveal my current strategy. But no, that is, my current strategy is not to say that Mr. Alpert is not capable of practice law.i
That pits the word of a legal adversary against Alpertis physicians.
Because of the changes in his health, Alpert recently underwent testing at the Mayo Clinic. Physicians there think he now has secondary/progressive MS. Tests also revealed an exaggerated state of brain-cell loss for his age.
iI think he is developing some features of (Parkinsonis disease),i one Mayo Clinic physician wrote in a report Alpert showed GCBR.
iCatch-22i
Itis the skepticism others harbor about his disease that bothers Alpert the most. He has presented in court several medical witnesses who have testified about his degeneration.
iWhat happened in 2001, as you get older, the disease tends to get worse,i Alpert says. iIt changed from relapsing-remitting, which I had under control, to secondary-progressive. That is the diagnosis now. What that means: Itis steadily getting worse and worse.i
Thatis why he decided to close down his practice.
iCouple that with some spinal problems and visual problems I have, and a lawyer has an obligation at the point where he feels he cannot represent his clients,i he says.
His pleas appear to have fallen on deaf ears, however, at every step of the divorce proceedings.
When Crenshaw rotated out of the courtis family law division, Circuit Judge Monica Sierra took over the case. Alpert complained unsuccessfully to the state Judicial Qualifications Commission about Sierrais actions. Four times he asked Sierra to recuse herself.
Proceedings became so contentious Sierra jailed Alpert in October last year on contempt over his failure to pay the court-ordered back alimony. After a night in county jail, he quickly paid the arrears, he says through loans from family and friends.
Soon after, Sierra ceded the case to Circuit Judge Manuel A. Lopez. Lopez didnit last long. He has a standing disqualification order on any case involving Registrato. Then the court assigned the case to Bergmann.
Not only did Alpert try to get Bergmann disqualified from the divorce proceedings, Alpert sued the family law judge last month in the U.S. District Court, Tampa. Alpert alleges Bergmann violated his rights under the Americans with Disabilities Act (ADA).
The federal lawsuit challenges Bergmann on statements he made at hearings on the motion for attorneysi fees and costs. Following four days of hearings, Bergmann required Alpert to pay 70% or $118,103 of the $168,718 Solomon requested on Liz Alpertis behalf.
In a June 25 order, Bergmann made a statement that Alpert calls incredulous. i O the court observed nothing to suggest that his cognitive abilities were impaired; and, to the contrary, Mr. Alpert appeared to be a very competent attorney directing all aspects of his case,i Bergmann wrote. iIt may well be that an attorney with a lesser intellect might have more problems; however, the court concludes that Alpert continues to possess the ability to practice at close to the same level as that which he enjoyed in 2001.i
Alpert claims Bergmann ignored medical testimony presented earlier this year and relied too much on his perceptions about Alpertis medical malaise. Thatis a common problem for MS victims, Alpert says. Victims might appear normal, but they suffer a range of iinvisiblei symptoms: fatigue, pain, cognitive problems, such as memory loss or impaired problem-solving abilities, blurred vision, numbness and so on.
iBy so doing, defendant Bergmann discriminated against the plaintiff in a eCatch-22i: If the plaintiff were able to assist in his defense, he was not disabled and therefore would be ruled against; if, on the other hand, the plaintiff were not able to assist in his defense, he would present an inadequate defense and therefore be ruled against,i Alpert stated in an 18-page petition. iPlainly, if defendant Bergmannis eCatch-22i were the law, no disabled individual could ever defend or prosecute any case in any court.i
Bergmann referred all questions about the lawsuit to David Rowland, the Hillsborough court counsel. This is somewhat of an unusual legal action, Rowland acknowledges. Most dissatisfied litigants complain about a judgeis ruling through the appellate process.
iThere is still an underlying dissolution of marriage before (Bergmann),i Rowland says. iHe wouldnit be able to comment.i
Once Alpert serves the summons, Rowland says, Bergmann probably would request the state attorney generalis office to represent him. He expects the attorney assigned to Bergmannis defense to seek judicial immunity.
iJudiciary immunity is an absolute defense,i Rowland says. iItis hard to get around judicial immunity in any civil action against a judge.i
Although he filed as a pro se litigant, Alpert has requested help from the U.S. Department of Justice. The ADA authorizes the agency to assign counsel to ADA actions with a compelling public interest.
iPeople who are disabled canit be forced to crawl up the courthouse steps,i Alpert says. iSimilarly, disabled people cannot be forced to go from hearing after hearing where their disability is ignored.i
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