Custody Battle Turns Ugly When Wife “Tricks” Husband into Drunk Driving

BY AARON KASE

A California woman allegedly tricked her estranged husband into a DUI, providing a prime example of how not to behave when engaged in a custody battle.

• Man sues wife for using private investigator and police to entrap him in DUI
• DUI supposedly to be used as evidence against man in custody case
• Could ultimately cost wife custody instead, along with other penalties

 

Judgement Clouded with Wine

How far is too far when trying to make a spouse look bad during divorce proceedings? Apparently, manufacturing a DUI charge against your husband to gain the upper hand in a child custody case crosses the line, and then some.

According to plaintiff Mitchell Katz, his soon to be ex-wife Alicia Spenger hired a private investigator totrick him into driving drunk. In a civil rights suit against Spenger and others, Katz claims that investigator Christopher Butler got him to drink too much under the guise of discussing a T.V. reality show based on Katz's wine business.

Butler's employee Carl Marino met Katz at a Danville, Ca. wine bar and plied him with women and drinks, according to the suit. Then, when Katz left the bar, he was followed by Contra Costa County Sheriff's Deputy Stephen Tanabe, who soon pulled him over for not using his turn signal and subsequently arrested him for failing a field sobriety test. Deputy Tanabe allegedly told his partner that the stop was a "dirty DUI" and a "set-up."

To continue the ruse, Marino went so far as to tour Katz's Pleasanton winery even after the DUI arrest.  Later, his conscience apparently got the better of him and he apologized, writing in an email supplied to the court by Katz:

"'The first thing I want to do is apologize to you for my part of the set up. As you can see, I never wanted to be involved in Butler's shady activities and that is why I put an end to them and also let the DOJ [United States Department of Justice] know what was done to you and others. I hope you can forgive me and understand that ultimately I was the good guy in this.' …"

Katz is seeking damages for a host of civil rights violations from his wife and other parties involved, including the town of Danville and Contra Costa County.

 

Dirty Tricks Don't Impress the Court

The set-up, if true, could come back to haunt Spenger during the divorce proceedings. "That is completely unethical," says family law attorney Terry Szucsko, a partner at San Francisco firm Lvovich, Volchegursky & Szucsko LLP. While parties normally look into each other's assets and behavior in divorce and custody cases, they can't break the law to gain an advantage over each other.

Some of the factors a judge might look at when deciding custody, according to Szucsko:

• "A recent DUI would be a factor. If one parent doesn't have a license, how can that parent transport the children?"
• "Domestic violence. Then there's a presumption that it is not in the best interest of the child to be with that parent."
• "Willingness of one party to enable frequent and continued contact with the other party."

"The number one factor is what is in best interest of the children," Szucsko says. And while Spenger allegedly tried to portray Katz as a DUI perp, she may have unwittingly given the judge cause to distrust her own parenting. "If one person is advocating all these allegations to keep the child away from the other party, that would be a factor right there," the attorney says.

 

Can't We All Just Get Along?

There could be more consequences for Spenger as well. "If you could prove that the allegations were made up, or the allegations were only meant in this one-upmanship, or trying to gain an unfair advantage, that is a sanctionable event," Szucsko says—she could be forced to pay monetary damages. "If an attorney was involved, that would be an ethical violation and you could get disbarred."

The lawyer urges feuding parents to put aside their differences and try to come to a custody agreement without resorting to a judge, let alone underhanded tactics and tricks. "What the parents quickly forget is that there's a child involved," he says. "The judge's decision, most of the time neither one of the parties are going to like it. It's far better for them to come to a mutual agreement and work it out. They've got 18 years to go through this and they should try to get along."

Both marriages and divorces have been on the decline since 2000, according to the Center for Disease Control and Prevention. Roughly 49 percent of marriages end in divorce. With examples like this California couple, it's no wonder.

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