Court rules that spouses aren't entitled to public divorce lawyers

With custody of her three children hanging in the balance, Brenda King, a housewife with a ninth-grade education and no money, was forced to act as her own attorney during a five-day divorce trial in Snohomish County last year.

King gave speeches when she was supposed to ask questions. She didn't subpoena any witnesses. And she didn't know how to present evidence against her then-husband, including Child Protective Services reports about him.

Not surprisingly, her husband, who had an attorney, won. After spending 10 years as a stay-at-home mom, King gets to see her kids every other weekend.

On Thursday, in a precedent-setting case, the state Supreme Court denied King's request for a new trial, this time with a divorce lawyer at public expense.

The seven-justice majority ruled that the constitutional right to an attorney in criminal and child-welfare cases does not extend to divorce cases when someone can't afford to hire a lawyer. But Justice Charles W. Johnson, writing for the majority, suggested that the Legislature may want to do so as a matter of "wise public policy."

Bradley Crosta, attorney for King's ex-husband, Michael King, said the stakes in divorce cases, unlike child-welfare cases, don't rise "to the level of constitutional magnitude that requires an expense of public funds. It's a decision that is left to the Legislature to decide."

But Justice Barbara Madsen, in dissent, said Brenda King faced a stacked deck that was fundamentally unfair. "The majority's decision does not begin to address the obstacles an indigent parent encounters when she is unrepresented by counsel, nor does it realistically assess the loss she faces," Madsen wrote.

Although she once lacked for legal help, King now is represented pro bono by a downtown Seattle law firm, and eight separate groups filed briefs supporting her, including a group of 16 retired judges, the state Bar Association and a collection of international law scholars.

The state attorney general and the state association of counties weighed in on Michael King's behalf, arguing the public expense could be huge if Brenda King had won.

Last year, more than 13,300 divorce cases involving children were filed statewide; about 7 percent of divorces involved a "pro se" — or unrepresented — party, according to court figures.

The Kings had been married 10 years and had three elementary-school-age children when Michael King, who owns a landscaping company, filed for divorce in 2004. The couple were essentially broke at the time; Michael King's legal bills were paid by another party that his attorney, Crosta, declined to disclose.

Brenda King tried to find pro bono help, but was turned down by state and county legal-aid offices. She briefly hired a lawyer with her rent money, but that money ran out and the lawyer quit, leaving King on her own.

When the case went trial in 2006, a guardian ad litem supported Michael King's bid for custody, and his lawyer presented evidence that the King children sometimes showed up at school hungry.

Brenda King didn't know how to cross-examine witnesses, or how to present evidence that showed she was a good mother, said Kathleen O'Sullivan, an attorney who took her appeal case pro bono.

Brenda King, who declined to be interviewed, has custody of her children every other weekend, four weeks in the summer, and spring break every other year. She also was ordered by the Snohomish County judge to pay her ex-husband's $7,500 legal bill.

She can ask for the custody plan to be modified, but doing so would be tough, said O'Sullivan. The Supreme Court, O'Sullivan said, did not try to address the issue of fairness for Brenda King and other people without lawyers.

Jonathan Martin: 206-464-2605

or jmartin@seattletimes.com