Conversations of a Married Couple, the Best Solace of Human Existence

By Matthew H. Thomas.  

In the spirit of Valentine’s Day, my colleagues on the editorial board suggested that I write about the federal marital communications privilege.

The U.S. Supreme Court has described conversations between a married couple as the “‘best solace of human existence.'”[1] The law on privilege has evolved over time. Today, marital conversations are no longer absolutely privileged.

Federal Rule of Evidence 501

In Federal Rule of Evidence 501, Congress gave the courts the flexibility to develop rules of privilege, to include marital communications privilege. Rule 501 provides in part: “The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise . . . the United States Constitution . . . a federal statute. . . or . . . rules prescribed by the Supreme Court.” But, in a civil case, Rule 501 provides that “state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”[2]

Common Law

Federal common law recognizes two separate marital privileges: (1) the so-called “adverse spousal testimony” or “anti-marital facts” privilege, which permits a witness to refuse to testify against his or her spouse; and (2) the “marital communications” privilege, which allows either spouse to prevent testimony concerning statements privately communicated between them.[3]

However, as discussed below, the privilege is not absolute in the case where one spouse wishes to testify about the other spouse’s criminal acts. In addition, the privilege does not apply in cases in which the testifying spouse is the victim.

The common law that we inherited favored absolute privilege. In 1628, Lord Coke of England observed that “‘it hath beene resolved by the Justices that a wife cannot be produced against or for her husband.'”[4]   In Trammel v. United States, the United States Supreme Court rejected the absolute privilege referenced by Lord Coke: “Nowhere in the common-law world—indeed in any modern society—is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being.”[5]

Exceptions to Absolute Privilege

The U.S. Supreme Court has interpreted Federal Rule of Evidence 501 to protect privileged marital communication but not to prevent a spouse who wishes to testify, from testifying about criminal acts that the testifying spouse observed and communications made in the presence of third persons.[6]

In Trammel, the defendant, indicted for importing heroin into the United States, moved to prevent his wife from testifying against him.[7] The District Court held that the defendant’s wife could testify to any act she observed during the marriage and any communication made in the presence of a third person, but the court held that communications between the defendant and his wife were privileged and inadmissible.[8]

The Supreme Court in upholding Trammel’s conviction wrote, “[w]hen one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace . . . the privilege can have the untoward effect of permitting one spouse to escape justice at the expense of the other. It hardly seems conducive to the preservation of the marital relation to place a wife in jeopardy solely by virtue of her husband’s control over her testimony.”[9]

No Privilege Exists if the Testifying Spouse is the Victim

No privilege exists if the testifying spouse is the victim of the defendant-spouse’s crime. In United States v. Seminole, the defendant’s wife, whom the defendant was charged with strangling and assaulting, refused to testify at trial.[10] At the government’s request, the District Court compelled the wife to testify.[11] During her testimony, the wife changed her story and claimed that she was the instigator of the attack.[12] However, the prosecutor impeached the wife’s testimony using her prior statements and the jury convicted.[13]

The Court of Appeals for the Ninth Circuit found that the District Court in Seminole had not erred, noting that it was a “well-established exception to the well- established privilege– if the spouse is the victim of the defendant’s crime, the privilege does not apply . . . [14]

Perhaps, the Best Solace of Human Existence, But Not Absolutely Privileged

In conclusion, under Rule 501, though conversations of married couples are perhaps the best solace of human existence, they are not absolutely privileged. Confidential conversations are protected.   However, a witness-spouse may testify against their defendant-spouse concerning acts the witness spouse observed or statements the witness-spouse heard in the presence of third persons.   Further, marital privilege does not apply to the testimony of a witness-spouse who is the alleged victim of a criminal act. In a civil case, state law applies.

Matthew H. Thomas is an Assistant United States Attorney (AUSA) in the Western District of Washington, Tacoma branch, and is a past president of the Tacoma-Pierce County Bar Association.

[1] Trammel v. United States, 445 U.S. 40, 51 (1980).
[2] Fed. R. Evid. 501.
[3] USA v. Seminole, 864 F.3d 1150, 1152 (9th Cir. 2017).
[4] Id. Trammel, 445 U.S. at 44.
[5] Id. at 52.
[6] Id. at 51.
[7] Id. at 42.
[8] Id. at 43.
[9] Id. at 52-53.
[10] USA v. Seminole, 864 F.3d 1150, 1151 (9th Cir. 2017).
[11] Id.
[12] Id
[13] Id
[14] Id. at 1152.

Valentine’s Day: What is It, Why Do We Celebrate It, and Who is It Really For?

By Shannon Hadeed.  

There are three theories regarding the history of Valentine’s Day; 1) Roman/Pagan festival 2) two Christian martyrs named Valentine and 3) Hallmark, an American Corporation.

The Pagan/Roman Theory

For those who believe in the Roman/Pagan festival theory of origin, there was a festival called Lupercalia, held in mid-February, which celebrated the coming of spring with fertility rites. No one knows the exact origin of Lupercalia, but it has been traced back as far as the 6th century B.C. According to Roman legend, the festival honored the fertility god Lupercus and a she-wolf who saved two baby princes who were ordered killed by an evil King.[1] It included animal sacrifices, namely goats and a dog that embodied Lupercalia’s red and white symbols. Red represented blood and sacrifice. White, the goat milk used to wipe the blood clean which represented new life and procreation.[2] There was also feasting and drinking, and the strange custom of running through the streets mostly naked, whipping women with goat thongs from the newly sacrificed animals to give fertility “consecration.” There was also a lottery, where people were paired off to have sex in the hopes of conceiving a child. Some believe the person’s name was pinned on their sleeve after the lottery, forming the basis for “wearing your heart on your sleeve.”[3]

A Tale of Two Christian Martyrs Named Valentine

The Catholic Church recognizes at least two different saints named Valentine or Valentinus, both of whom were martyred in approximately 270 A.D. (It is very possible they were the same man.) Saint Valentine was a clergyman – either a priest or a bishop – in the Roman Empire who ministered to persecuted Christians. [4] He was martyred and his body buried at a Christian cemetery on the Via Flaminia close to the Ponte Milvio to the north of Rome, on February 14, which has been observed as the Feast of Saint Valentine (Saint Valentine’s Day) since 496 AD.[5] One legend contends that Valentine was a priest who served during the third century in Rome. After Emperor Claudius II outlawed marriage for young men to encourage participation in his military campaigns, Valentine defied Claudius and continued to perform marriages for young lovers in secret. When Valentine’s actions were discovered, Claudius ordered that he be put to death. Others believe it was Saint Valentine of Terni, a bishop, who was the true namesake of the holiday. He, too, was beheaded by Claudius II outside Rome. Despite the ambiguity surrounding Valentine and his life, the Catholic Church declared him a saint and listed him in Roman Martyrology as being martyred on February 14.[6] But, there was enough confusion about the truth of his life and death that the Catholic Church discontinued liturgical veneration of him in 1969; yet his name still remains among the lists of the saints.

Hallmark, an American Corporation

Lupercalia survived the initial rise of Christianity but was outlawed—as it was deemed “un-Christian.” At the end of the 5th century, Pope Gelasius declared February 14th St. Valentine’s Day. It was not until a thousand years later that the day became definitively associated with love. During the Middle Ages it was commonly believed in France and England that February 14 was the beginning of birds’ mating season, which added to the idea that Valentine’s Day should be a day for romance. The English poet Geoffrey Chaucer was the first to record St. Valentine’s Day as a day of romantic celebration in his 1375 poem “Parliament of Foules,” writing, “”For this was sent on Seynt Valentyne’s day / Whan every foul cometh ther to choose his mate.” Shakespeare mentions Saint Valentine’s Day in A Midsummer Night’s Dream and in Hamlet, where he alludes to the superstition that if two single people meet on the morning of Saint Valentine’s Day they will likely get married:

To-morrow is Saint Valentine’s day,
All in the morning betime,
And I a maid at your window,
To be your Valentine.

Handmade paper cards became the tokens-du-jour in the Middle Ages. Eventually the tradition made its way to the New World (that’s us folks).[7] By the middle of the 18th it was common for friends and lovers of all social classes to exchange small tokens of affection or handwritten notes, and by 1900 printed cards began to replace written letters due to improvements in printing technology. Ready-made cards were an easy way for people to express their emotions during a time when direct expression of one’s feelings was discouraged. Cheaper postage rates also contributed to an increase in the popularity of sending Valentine’s Day greetings. In 1849, a woman by the name of Esther Howland in Massachusetts, began producing high volumes of Valentines with a work force of women.[8] The industrial revolution ushered in factory-made cards in the 19th century. Then in 1913 Hallmark Cards of Kansas City, Mo., began mass producing valentines.[9] Valentine’s day has never been the same.

The Institutionalization of Valentine’s Day at School

Valentine’s Day marketing is as focused on exchanges between adults as it is between children who are classmates. It’s understandable that the traditions we celebrate would trickle into our classrooms over time, but Valentine’s Day depends on school in ways that other holidays don’t. There is no real religious underpinning for the holiday and no historical or nationalistic traditions (such as a turkey for Thanksgiving) with the exception of the exchanging of cards at school.

When school celebrations first began, they were seen by some as the holiday’s ticket into the future. In a 1930 New York Times article, writer Henrietta S. Ripperger met the questionable endurance of Valentine’s Day with two frank assurances of its survival.[10]

“Will the valentine survive? The usages of Mayday, a festival of about the same relative value in the calendar, have almost died out. But St. Valentine’s Day customs are kept alive here by at least two influences… Incorporating the valentine into the work of the school assures a certain permanence to the utterly useless and engaging bit of nonsense [of making valentines.] And its position as a money-maker makes its position even more secure. Its future is in the hands of people who know not only how to meet a demand, but how to create it!”

As early as the 1900s, valentines were made by children and distributed at school.[11] In 1930, Hallmark starting selling multipacks of paper valentines, which is when they started incorporating them into the classroom.[12] By the 1950s, Valentine’s Day’s popularity with children was helped along by candy manufacturers eager to market to working class youth with disposable income, according to candy and sugar historian Susan Benjamin. “Valentine’s Day as we know it today is about industrialization and the role of machinery which kind of blended together with marketing to create candies,” said Benjamin.[13]

Starting as early as pre-school, it’s our children’s responsibility to go to the store, buy a pack of paper valentines and candy for all the kids in the class, and spend the night before filling out the obligatory cards, so that each child receives the same Superhero valentine regardless of whether they are the class clown or bully. For that one day every year, our children skip class to play post office and eat candy.

Today, debates over Valentine’s Day’s place in schools rage in online parenting circles. Some argue that the practice of each kid giving each other kid a valentine cheapens the holiday, and unhealthily coddles children. Others ask why we celebrate Valentine’s Day in elementary schools, anyway, considering they’re a needless cost for parents, and not to mention flagrantly wasteful. And there are still those others who insist Valentine’s Day is just a fun kids tradition that preserves the experience of getting a physical note or teaches tolerance.

As an adult, Valentine’s day is the least important celebration of the year, ranking far below Christmas, Thanksgiving, birthdays and anniversaries. I want to show my significant other I love them, but the success of our relationship doesn’t depend on the extravagance of this day. And in the past, if I didn’t have a significant other, I would opt out of the holiday or celebrate with friends. Once it passes there’s no lingering feeling of “What now?” like many people experience after Christmas or Thanksgiving. In the grand scheme of holidays, Valentine’s Day is as low-key as the gift-giving holidays get.

Now that I have children, I realize it’s really a holiday for them. After all, a holiday that originated with the goal of having a child to love, should rightfully be dedicated to them. Romantic love can be fleeting and messy, your love for your child will never fade. You can’t divorce them, they can’t divorce you, and they will always appreciate a day dedicated to spending time with them. We rarely see Valentine’s day included in a parenting plan- and I am not advocating for its inclusion as yet another holiday to fight over. However, a good co-parenting activity is helping your children make a Valentine’s day card for the other parent.

Valentine’s Day is a fun day for kids. It gives them the excuse to show people they love just how much they mean to them with sweet gestures, treats and notes. It is also an opportunity for learning. What kinds of love are there? What is an appropriate way to show it? What do you do if someone you like doesn’t like you back? How does it make you feel? How can you be kind to someone who likes you, when you don’t like them back? How would you feel if you couldn’t marry someone you love? As your children age, you can use the holiday as a vehicle for more complicated discussions or historical education regarding how our cultural and legal system as changed as our concepts and acceptance of different types of love has evolved.

It’s a great time of the year to snuggle indoors and make cards for family members and friends. As your children get older, they may be more interested in celebrating “Galentine’s day” (going out with their girlfriends on 2/13, look it up, it’s a thing) or my newly coined “Palentine’s Day” a more inclusive version for both boys and girls to celebrate with friends. It’s an un-holiday, so create your own family tradition.

Here are some ideas:

  1. Bake or make the same dish/snack with your children (Etsy has lots of suggestions)
  2. Have a Valentine’s movie night every year
  3. Do crafts
  4. Make up and read poems
  5. Embrace the history, read a book to them about Pagans, Romans, or Christians
  6. Take them out on a “date”
  7. Dance

Don’t pass up the chance to tell and show your children how much you love them, and how they will forever be your Valentine. After that, you can drink, feast on chocolate, and engage in pagan rituals.

Shannon Hadeed is an attorney at Robinson & Hadeed, P.S., based out of Gig Harbor. Her focus is on Family Law and Divorce, representing clients in Pierce and Kitsap County. She returned to Washington after practicing in Virginia for 14 years.

[1] The babies were Romulos and Remus, the twin founders of Rome. https://www.britannica.com/topic/Lupercalia and https://www.history.com/topics/ancient-rome/lupercalia
[2] https://encyclopedia2.thefreedictionary.com/Lupercalia
[3] http://holidayinsights.com/holiday-fun/valentines-day-trivia.htm
[4] https://www1.cbn.com/st-valentine-real-story
[5] https://www.vaticannews.va/en/saints/02/14/st–valentin–martyr-on-the–via-flaminia.html
[6] https://www.vaticannews.va/en/saints/02/14/st–valentin–martyr-on-the–via-flaminia.html
[7] http://archive.kuow.org/post/dark-origins-valentines-day
[8] https://www.washingtonpost.com/news/soloish/wp/2016/02/09/long-before-hallmark-esther-howland-created-the-modern-valentine/,https://americacomesalive.com/2014/02/13/esther-howland-1828-1904-first-america-mass-produce-valentines/ and https://www.businessnewsdaily.com/3951-first-valentine-cards.html
[9] https://www.npr.org/2011/02/14/133693152/the-dark-origins-of-valentines-day
[10] https://www.nytimes.com/1930/02/09/archives/old-saint-valentine-although-the-world-has-changed-materially-the.html#
[11] https://www.nationalgeographic.com/news/2010/2/100210-valentines-day-gifts-cards-history-facts/
[12] https://www.jacksonsun.com/story/news/2016/02/13/vintage-valentines-bring-smile/80351256/
[13] https://www.citylab.com/life/2019/02/candy-hearts-sweethearts-necco-wafers-boston-history/582226/

Parenting Plan Ideas: A Short Version

By Judge Brian Tollefson, ret.  

Parenting Plan negotiations during dissolution and relocation proceedings can be some of the most stressful times for parents. However, not all cases involving children have issues with the parenting plan. Parents who understand how important it is to a child’s well-being that they co-operate and effectively communicate about their child’s or children’s needs generally create an agreed parenting plan and continue to work together for the remainder of the child’s minority, (i.e. a parenting plan’s life) with little or no court intervention.[1]   Yet, even the most cooperative parents may be anxious and for good reason. If the parties cannot agree, then a judge will decide their parenting plan for them.[2]

To help generally co-operative parents think about the parenting plan (which may be in addition to information the parents will receive during a mandatory parenting class that most counties require) I have put together a list of possible resources that might help lawyers and their parent-clients develop ideas for a parenting plan and avoid the trauma of court. Most of the resources mentioned here are from other jurisdictions and may capture all of the Washington statutory factors[3] in a slightly different manner. However these are just suggestions and everyone who uses these resources must remember to conform the suggestions to the requirements of Washington law.

Many of these resources are in formatted in Adobe “PDF” form, that way you can  study part of a resource while working through different parenting plan schemes.[4]

Here is the list:

Of all these resources, I like the Arizona guidebook the best. Read the resources for yourself and choose the one or ones that might help you as the lawyer work with your client to establish a workable and long-term parenting plan.

Notwithstanding, in many dissolution cases with children the biggest issue is the parents’ unwillingness to work together and form a parenting plan that is in the best interest of the children. For a variety of reasons[5] parents can’t or will not work co-operatively with each other to resolve their parenting differences without resort to expensive litigation in the courts. These cases are referred to as involving “conflicted” or “high-conflict” parents, and generally transpire regardless of the fact that the parents have attended the mandatory parenting seminar required by most county superior court rules.[6]

Some professionals involved in parenting plan issues during high conflict dissolutions suggest developing a parenting plan that involves the concept of “parallel parenting.”  Parallel parenting is often defined as “an arrangement in which divorced parents are able to co-parent by means of disengaging from each other, and having limited direct contact, in situations where they have demonstrated that they are unable to communicate with each other in a respectful manner.”[7]

The standard and required parenting plan order developed by Washington’s Administrative Office of the Courts is very adaptable to the concept of parallel parenting. In addition, here are some key features that you should consider including in a parallel parenting plan:[8]

  1. No mid-week parenting time
  2. No make-up parenting time
  3. No opportunities for additional parenting time due to the level of contact this would require between the parents.
  4. Prohibit each parent from scheduling activities for the child during the other parent’s time with the child without prior documented agreement of the “on-duty” parent.
  5. Consider including in the body of the parenting plan order  a list of unacceptable excuses for one parent denying parenting time to the other such as: (a) the child unjustifiably hesitates or refuses to go; (b) the child has a minor illness; (b) the child has to go somewhere else; (c) the child is not home; the noncustodial parent is behind in support; (d) the custodial parent does not want the child to go; (e) the weather is bad; (f) the child has no clothes to wear.
  6. Additionally, the parallel parenting plan uses some sort of non-emergency communication protocol, such as OurFamilyWizard to communicate regarding the child’s activities (e.g. education, health care, and school activities) and should help limit the need for contact between the parties via direct email or text except in case of emergency.

Additional ideas to incorporate in a parallel parenting plan can be found at a number of court websites.[9]

Brian Tollefson is the WSBA Board of Governor for the 6th District and Liaison to the TPCBA Board of Trustees.

[1] See Stahl, Philip M, Parenting After Divorce, Ch. 2 (2nd ed. (2008 Impact Publisher)
[2] Former Chief   Justice Warren Burger once cautioned the   legal profession to be mindful:  “The entire legal profession, lawyers, judges, law school teachers, has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we should be healers of conflict. For many claims, trial by adversarial contest must in time go the way of ancient trial by battle and blood. Our system is too costly, too painful, too destructive for a truly civilized people.”   Chief Justice Warren Burger, “1984 State of the Judiciary Address”
[3] These factors, found in RCW 26.09.187(3), are as follows:
(i)The relative strength, nature, and stability of the child’s relationship with each parent;
(ii)The agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parent’s past and potential for future performance of parenting functions, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent’s employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.”
The over-all goals of the parenting plan are found in RCW 26.09.184(1):
“(a) Provide for the child’s physical care;
(b)   Maintain the child’s emotional stability;
(c) Provide for the child’s changing needs as the child grows and matures, in a  way that minimizes the need for future modifications to the permanent  parenting plan;
(d) Set forth the authority and responsibilities of each parent with respect to the  child, consistent with the criteria in RCW 26.09.187 and 26.09.191;
(e) Minimize the child’s exposure to harmful parental conflict;
(f) Encourage the parents, where appropriate under RCW 26.09.187 and  26.09.191, to meet their responsibilities to their minor children through  agreements in the permanent parenting plan, rather than by relying on judicial  intervention; and
(g)To otherwise protect the best interests of the child consistent with RCW  26.09.002.”
The restrictions imposed on parenting plans contained in RCW 26.09.191 are beyond the scope of this very brief article.
[4] Other than Washington Law Help and Yakima County Superior Court, my research has not found many helpful resources from courts or court connected entities (except law firms)   based here in Washington.
[5] Here are some of the reasons:

    • continuation of hostility that began during the marriage
    • differing perceptions of pre-separation child-rearing roles
    • differing perceptions of post-separation child-rearing roles
    • differing perceptions of how to parent
    • concern about the adequacy of the other parent’s parenting ability
    • an unwillingness of one or both parents to accept the end of the relationship
    • jealousy about a new partner in the other parent’s life
    • contested child custody issues
    • personality factors in one or both parents that stimulate conflict.

See Stahl, fn. 2 supra,
[6] See e.g. Pierce County Local Rule for Special Proceedings 94.05
[7] Kruk, Edward;   Parallel Parenting After Divorce, https://www.psychologytoday.com/us/blog/co-parenting-after-divorce/201309/parallel-parenting-after-divorce (last viewed December 9, 2019)
[8] See footnote 2 above. See also: Dr. Stahl’s suggestions at his own website: https://parentingafterdivorce.com/wp-content/uploads/2016/05/ParallelParentingForHighConflictFamilies1.pdf
Some of these suggestions are adapted from the Indiana State Courts’ sample parallel parenting order:  https://www.in.gov/judiciary/rules/parenting/#_Toc470861004
[9] E.g. (1) Florida:    https://circuit8.org/parallel_parenting   (2)  Missouri: http://www.circuit7.net/documents/familycourt/b_parallel_parenting.pdf