Richard Hartzell's new case with woman who wants divorce

Legal Human Rights
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Re: Richard Hartzell’s new case with woman who wants divorce: Vicky Hsia-Jones

Story and photo was in all three English papers today, including Mr Hartzell as a representative. Is he a lawyer and what is his legal brief? The China Times also had a story in Chinese but no photo of Mr H, just the woman and her little boy. The boy suffers from autism.

Question: Mr H is arguing in court, or in the papers at least, that since the US man involved in the custody dispute lives on a military base in California, the case is not subject to no fault divorce laws of said state, but of the fed govt in DC. So Mr H is walking a tightrope of legal savvy if he is right, but if he wrong, the woman loses bigtime. Who is advising Mr H? Is he a practicing lawyer? OR just a human rights activist helping needy people?

The woman in the case is the same woman who last week said no white lawyers in California would take her case and that they all wanted to charge her US$200 per MINUTE, read the CNA story.

So what is going on here? WIll she win? Will she lose? She “claims” to have breast cancer? Is this true or just a claim for medical purposes, or legal purposes?

I hope the little boy gets justice. The mother and father seem to deserve each other! Seven year itch indeed!

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NEWS STORY:

Activist aids woman in U.S.-Taiwan trial dispute

2002-12-11

Taiwan News, Staff Reporter

By Tai-jing Wu

Vicky Hsia. a Taiwanese woman who claimed that she was abandoned by her American husband, yesterday sued her ex-husband Travis Jones with the help of Richard Hartzell, a well-known human rights activist in the international community in Taiwan.

Hsia claimed that Sergeant Travis Jones, a U.S. Marines officer based at the Miramar Air Station in San Diego, California, abandoned her because he was having an affair with another woman. And at that time, she was diagnosed with cancer, she said. She also said that since California is a “no-fault state,” she had to accept every legal action Jones took against her.

But according to Hartzell, “because the military base is a domain of the federal government, we do not even recognize the jurisdiction of the California court over this case. The Taiwan Relations Act says very clearly, Taiwan has exclusive jurisdiction. Vicky Hsia should be fighting under Taiwanese law, not U.S. law.”

Hartzell added, "This is to completely ignore the Taiwan Relations Act. We can even claim exclusive territorial jurisdiction over this matter. We can deny the jurisdiction of the California court over this issue."According to Hsia, Jones applied for divorce five months after she had returned to Taiwan to seek treatment for her disease, therefore, there are full reasons to refuse to acknowledge the California court’s jurisdiction.

Hartzell told the Taiwan News that Hsia had not yet received any official documents from the Californian State court to confirm that the divorce had been completed. “There is no official notification to prove that,” he said.

When asked how he would proceed in his effort to protect Hsia’s rights, Hartzell said that, “Since that we took legal action here in Taiwan, according to the TRA’s Title 22, Chapter 48, Sections 3301-3316, a court in Taiwan should have the authority in this case. Under Taiwanese laws, we can fight for “malicious abandonment.” But in California, we cannot do that because the case was filed as a “no fault divorce.” That’s why, if we challenge the Californian court’s jurisdiction over this case, we can protect Vicky Hsia’s rights under Taiwanese laws. That is what we are trying to do, according to the TRA.”

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While, I do not doubt that Mr. Hartzell has done much for the rights of foreigners in Taiwan, Mr. Hartzell is not a lawyer in Taiwan (he has not taken the ROC bar exam), did not attend a law school here or in the states and has not (as far as I can tell) been sworn into the California Bar (or any US State Bar).

AND as far as my limited knowledge of Calfornia law is concerned (I am a lawyer registered in the State of Oregon) I have never heard of a divorce claim being brought under Federal Law. State Laws control. I think Ms. Hsia will be throwing more $ out the window on this case. If, as I believe is the case, Mr. Hartzell is not a licensed attorney in California, Ms. Hsia will either have to file a petition pro se or she will have to hire a California Lawyer.

IMHO, if she files pro se, her chances of recovery, due to the unusual claim, are very small. She would be much better served to find a new and honest lawyer (and there are a lot of them even in California) and try to adjust the support she receives from her husband.

California licensed lawyers out there care to comment?

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That’s my understanding as well. I am a Pennsylvania attorney, not a California attorney, but the only special treatment US military personnel receive from the US Congress in regard to divorce cases is an entitlement to have proceedings stayed while on active duty and federal protections including jurisdictional issues (the proper state for the divorce proceeding to be held) and protections concerning militrary retirement and disability benefits.

Nothing about federal jurisdiction.

Plus, I don’t see how the TRA helps this woman in this case.

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Thanks, Sharky and Tigerman for your posts, informative. From what you both said, Mr H is maybe getting in over his head, and that is what I was worried about. Does he know Calif law that well, or even US law, and what will happen if in fact he fails to win this case for this woman? His reputation will suffer for going out on a limb for a woman who earlier claimed that no white lawyer in the USA would help her because she was an Oriential. She actually claimed that, and of course, it is not true.

So since Mr H is on this forum, can you clue us in on what is happening and why you took on this important yet tricky lawsuit?

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How does Taiwan law handle this case differently and why is it that Taiwan law should be applied in this case?

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The way I see it is Hartzell is the only one doing anything to help her instead of talking about it.

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HH-

I don’t doubt that, but my comment is I am not sure he can really help her. Divorce is a state law issue. Richard is not a California Lawyer and therefore can not legally represent her before any tribunal in the state. At this point he is drafting complaints and helping her file them, I guess . . . . (I must admit that I have no knowledge of court procedure in Taiwan . . . . )

This is really even proved more true by trying to file a divorce claim in Federal Court. This is a matter for the State Courts in California…

And, frankly, her story about the fact that no lawyer would help her is a load of crap. I have a number of friends who practice law in California, some speak Chinese, some work for low-cost public service law firms, there are plenty of lawyers who will work. And 200 bucks a minute… maybe 200NT a minute! But, even so, there are plenty of small lawyers who will work for a lot less than a high powered super star lawyer like Johnnie Cochran.

Like I said, she probably needs to retain a CALIFORNIA LAWYER and claim that she needs support, and her child should be entitled to Child support under California Law.

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I noticed a number of inconsistencies in the various reports.

In the first reports, Ms. Hsia is claimed to be a 37 year old married to a US Marine officer. In yesterday’s papers, he’s reported to be a Sergent and then he’s an Officer. Well, which is it? There a BIG difference. I can see her being married to an officer but not a Sergent as the average age of a Sergent is only 23-24 years old.

Second, it’s further stated that “Hartzell told the Taiwan News that Hsia had not recieved an official documentation from the California State court to confirm that the divorce had been completed.” How could she? According to the original reports, they won’t be divorced until March, next year.
Anyway, I just have to wonder what’s really going on because most of the reports don’t make too much sense.

To my mind, the most serious problem (which NO ONE has mentioned) is the Hague Convention on International Child Abduction. This could cause some problems Big Time.

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I wonder if Hartzell has explained to this woman that this case ties into his own research into international law and the TRA, although his is a voice in the wilderness . . . . . . .

When his “case” gets laughed out of court and this woman ends up worse off than she was before, what then?

I’m hoping Hartzell at least has the decency to warn her in no uncertain terms that despite his layman’s belief that the case is Federal, she would probably be better served retaining a California lawyer.

I agree that it sounds as if Hartzell is getting in way over his head. (Although it may be true that by making this comment I am getting in way over my head.)

Quite apart from anything else, this woman’s story has more holes in it than a chunk of Emmental. I particularly liked the part where the husband (according to the woman) got Navy SEALS to threaten her in order to get her out of the house (Chinese newspaper story).

I’d also be most interested to know why the San Diego judge ruled her medical reports that she is supposedly suffering from cancer inadmissable (according to her, he threw them back in her face, the cad!).

I was especially irked by the way she (and the local reporters) saw fit to tar the entire US judicial system as racist and discriminatory toward the Taiwanese as a result of her side of the story. But I guess she is quite frustrated . . . . .

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sandman: exactly! you said it well.

Question: can Mr H, or Lao Hartzell as Sandman puts it, clue us in. What the H is going on Mr H?

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I, too, was rather surprised to read about the esteemed Mr. Hartzell’s involvement in this case. And like the others, I would like to know more, so come on Hartzy, give us the dope from Learned Counsel’s own mouth.

But my goodness, this forum is swimming with lawyers! Talk about shark-infested seas! I used to be one myself, dressing up in my wig and gown to disport myself at the Old Bailey. But I sought help, put it all behind me, and am now almost completely cured.

P.S. Is there anyone posting on this forum who is not a real, lapsed, or wannabe lawyer?

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The case has lots of problems. The above is incorrect. If California is a “no-fault” state, it means merely that either partner can sue for divorce and obtain the same by asserting that the marriage is irreconcilably damaged. It does not however, mean that the defendant has no rights in the case. She is free to contest any divorce settlement or child custody agreement that is offered by her husband, and she is free to offer her own suggestions in this regard.

Section 3303 (b) (4) of the TRA stipulates that whenever the application of the laws of the United States depends upon the law that is or was applicable on Taiwan or compliance therewith, the law applied by the people on Taiwan shall be considered the applicable law for that purpose.

California law, AFAIK, not Taiwan law, applies to the present case.

I don’t see how exclusive jurisdiction can be claimed for Taiwan under the TRA.

Again, I don’t see any basis in the TRA for denying California’s jurisdiction in this matter.

Moreover, I don’t see any advantage for the woman to sue for divorce in Taiwan. Taiwan does not have “no-fault” divorce, but rather has consentual divorce and statutory divorce. If one’s spouse will not consent to a divorce, the party seeking the divorce must seek a statutory divorce under Taiwan’s Civil Code Article 1052 and must prove that the other spouse committed one of the following grounds for statutory divorce:

  1. Bigamy.
  2. Adultery.
  3. One spouse ill-treats the other so as to render living together intolerable .
  4. One spouse humuliates the linear ascendants of the other spouse such that living together becomes intolerable.
  5. One spouse deserts the other spouse in bad faith.
  6. One spouse has a loathsome incurable disease.
  7. One spouse has an incurable serious mental disease.
  8. One spouse has made an attempt to end the life of the other.
  9. Where one spouse is uncertain for a period in excess of 3 years as to whether the other spouse is alive or dead.
  10. Where one spouse has been sentenced to imprisonment for not less than 3 years.

It is VERY difficult to prove many of the above grounds, especially adultery. Moreover, the husband in this case could claim that the wife abandoned him when she left him to seek medical care in Taiwan, rather than seek the same in the US. She will probably have fewer legal rights in Taiwan than she has in the US.

First, TRA does not give Taiwan’s legislature jurisdiction over this (or any other) matter, absent cases where US law stipulates that Taiwan law should apply, and then, Taiwan’s judiciary would have jurisdiction, not the legislature. In any event, state law does apply to US military personnel.

Second, it was the wife who abandoned her husband, unless I am mistaken.

Whoa! I don’t think so.

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I think Lewis Carrol said it best in in Alice in Wonderland

“Curiouser and curiouser!”

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Is Ms. Hsia an American citizen (the US military frowns upon it’s members being married to foreign nationals) and were she and her husband married in the US?

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Doesn’t matter whether she is a citizen of the US or not. In fact, it doesn’t matter whether the husband is an US citizen. All that is necessary is that one of the parties be a resident of the county where the divorce petition is filed.

Thus, the wife, even if she is living in Taiwan, could file for divorce in the county where her husband was a resident.

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The divorce has already been filed in the US. My question really concerns the child’s custody. According to the China Post story (28 Nov):

“The Ministry of Interior representative at the meeting recommended that Timothy acquire Taiwan nationality to better qualify for legal assistance.”

Did Hsia give up her ROC nationality when she became a US citizen or is she a dual national? If she gave it up, can the ROC confer citizenship on Timothy (the child)? Was the child born in Taiwan or the US?

I can see this turning into a real mess like what’s going on between the US and Saudi Arabia concerning Saudi fathers who kidnapped their children and returned to SA.

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Her advocates made such a big deal to the press how she couldn’t find a “white” or Chinese lawyer – I just thank my lucky stars she found somebody that was white to help her. God forbid she try to get a black, hispanic, or Native American lawyer.

This whole case stinks and I, like the person before, don’t appreciate the sweeping accusations her buddies have made against the US judiciary system either.

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I’d have a field day with this, BTW, but you know how the libel laws are.

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[quote=“blueface666”]The divorce has already been filed in the US. My question really concerns the child’s custody. According to the China Post story (28 Nov):

“The Ministry of Interior representative at the meeting recommended that Timothy acquire Taiwan nationality to better qualify for legal assistance.”

Did Hsia give up her ROC nationality when she became a US citizen or is she a dual national?[/quote]

There would be no reason that I am aware of for her to have relinquished her ROC citizenship.

That is a very good question. It should be noted that Taiwan recognizes final judgments rendered by US courts so long as (1) the Taiwan citizen defendant was properly served the summons necessary to begin the proceedings, (2) the judgment does not violate the “good morals” of Taiwan, and (3) the US court had proper jurisdiction over the matter.

AFAIK, the defendant responded to the complaint for divorce, and thus she was most likely properly served the summons and the US court most likely has proper jurisdiction in the matter. The only issue I can see, based on what little I know of this matter, is whether or not any judgment regarding custody of the child will violate the “good morals” of Taiwan.

AFAIK, the US court has ordered the defendant wife to return to the US so that the husband could have daily visitation rights with the child pending the outcome of the divorce proceedings.

Yes.