Part I:

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IN THE ALABAMA COURT OF CIVIL APPEALS

MAUREENE BASS DEES )

)

Appellant, )

)

-vs- ) CASE NO. CIV. 2114

)

MORRIS S. DEES, )

)

Appellee. )

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ON APPEAL FROM THE CIRCUIT COURT OF

MONTGOMERY COUNTY, ALABAMA

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BRIEF OF APPELLANT

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MAURY SMITH

JULIA S. WATERS

CHARLES M. CROOK

Attorneys for the Appellant

OF COUNSEL:

SMITH, BOWMAN, THAGARD,

CROOK & CULPEPPER

P.O. Box 78

Montgomery, Al 36101

Telephone: (205) 834-6500

ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS

PAGE

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STATEMENT OF THE CASE ........................................ 4

THE ISSUES ................................................... 4

STATEMENT OF THE FACTS ....................................... 5

A. Morris' Financial Condition ........................... 5

B. The Cause Of The Breakup; Vicki Booker McGaha ......... 6

C. The Reconciliation .................................... 6

D. Morris Can't Give Up His Mistress ..................... 7

E. Maureene Is Compelled To Seek Divorce ................. 8

F. Morris Sets A Trap .................................... 9

G. Morris' Trap Works: The Hotel Room Agreement .......... 11

H. Morris' Sexual Appetite ............................... 12

A. Dianne Hicks ...................................... 12

B. Cathy Bennett ..................................... 12

C. Judith Rogers ..................................... 13

D. Deborah Levy ...................................... 13

E. Pamela Horowitz ................................... 13

F. Charlie Springman ................................. 14

G. Morris' Step-Daughter ............................. 14

H. Morris' Future Daughter-in-law .................... 15

ARGUMENT ..................................................... 15

A. The Trial Judge Plainly And Palpably Abused

His Discretion ....................................... 15

1. The Conduct Of The Parties With Reference

To The Cause Of Divorce ........................... 18

(a) Even If The Parties Were Equally At

Fault, The Present Decree Is Indefensible ........ 20

2. The Source Of Their Property ...................... 20

3. The Parties' Standard Of Living During The

Marriage And Their Potential For Maintaining

Or Exceeding That Standard After Their

Divorce ........................................... 22

4. The Financial Circumstances Of The Parties ........ 23

5. The Parties' Future Prospect ...................... 23

6. The Length Of The Marriage ........................ 24

B. Morris Dees' Entire Estate Has Been Used Regularly

For The Common Benefit Of The Parties ................. 24

1. The Real Estate .................................... 26

2. Morris' Other Assets ............................... 27

1968 through 1975 ................................ 27

1975 ............................................. 29

1976 ............................................. 30

1977 ............................................. 30

1978 ............................................. 30

C. The Trial Court Erred In Prohibiting The Wife

From Calling The Husband As A Witness ................. 30

CONCLUSION ................................................... 31

CERTIFICATE OF SERVICE ........................................

At the time of the divorce, Morris' net worth, based upon his own

calculations, was $3,876,029 (R. 1252, et. seq; Def. Ex. 86-87; Stipulation,

R. 231). His annual income exceeds $230,000 (Def. Ex. 76-79), of which more

than $160,000 annually is derived from municipal bonds upon which Morris

pays no income tax (Def. Ex. 28).

B. The Cause Of The Break-up: Vicki Booker McGaha

Although Maureene was subjected to a number of degrading sexual episodes

by Morris during the marriage which will be discussed hereafter, neither

Morris nor Maureene ever wanted or sought a divorce until Morris established

his permanent relationship with Vicki Booker McGaha in August of 1977. It

was Morris' absolute refusal to give up his mistress, whom he was supporting

and whom he had made pregnant, that directly caused termination of

Maureene's marriage and forced her to institute these divorce proceedings.

In August, 1977, Morris tried the "Weisenhunt case" in

Birmingham, and

became acquainted with Vicki Booker McGaha, who was a member of that jury

(R. 1459). Thereafter, Morris and Vicki began a sexual affair which has

still not ended, and which was the cause of termination of two marriages.

Following their meeting in Birmingham during the Weisenhunt trial in

August, 1977, Morris had sexual relations with Vicki at Oak Mountain State

Park in Shelby County (R. 1461), the Prattville Holiday Inn, the Holiday Inn

East, the Governor's House Hotel, and the Howard Johnson Motel (R. 1462).

The first trip that he took with her was a four day trip to the "Cajun

Country" in Louisiana on a motorcycle in April, 1978 (R. 1464-1465). In

August, 1978, Vicki joined Morris in Columbus, Georgia, where she stayed

with him at the Holiday Inn (R. 1468).

Maureene first found out about Vicki when she was contacted by Vicki's

husband, who subsequently turned over to her letters that Morris had written

to Vicki and tape recordings of conversations that Morris had had with Vicki

(R. 361-362). Mr. McGaha divorced Vicki McGaha in May, 1978 (R. 1469).

Around this time, at Morris' request, Maureene met with Morris and Vicki

at the Sheraton Mountain Brook Inn to discuss the situation (R. 358). During

this conversation Morris told Maureene that he was in love with Vicki, that

they wanted to be together, and they didn't care if they had anything but a

shack with a dirt floor if they could be together (R. 358). Morris told

Maureene that he and Vicki were going to live together and they they hoped

she would understand. Maureene learned that the affair had been going on

since August of 1977 (R. 280-281, et seq). In later conversations Morris

cried and told Maureene that he loved them both, and that "Vicki has such

beautiful blue eyes and she can see right through you" (R. 360).

Following

this meeting, Maureene separated from Morris for the first time and filed

the first suit for divorce (R. 361).

C. The Reconciliation

After Maureene and Morris had been separated for about four to six weeks,

Morris telephoned her and said that he had made a mistake, that he did love

Maureene and wanted her back, and he swore never to see Vicki McGaha again

(R. 282). To assure her of this Morris arranged another meeting among the

three of them as Joe Levin's lake cabin on July 3, 1978 (R. 367, et seq).

This meeting was bizarre. In a three-way conversation Morris would first

ask Vicki to state how much she loved him, and he would then turn to

Maureene to ask her to state how much she loved him (R. 367). It was as if

he were staging a contest to see who loved him the most, or who would do

the most for him (R. 367). After a lengthy conversation, during which

Morris had taken his socks off, he announced, "Alright, I'll tell you

girls

my answer when I get my socks on." After taking an inordinate amount of

time putting his socks on, he got up, walked around behind them, put an arm

on each girl, and ceremoniously stated, "I tell you this day, July 3,

1978,

I, Morris Dees, can't live without either one of you." (R. 368). At

that

point, Maureene said, "I'll tell you what, Vicki, you can have

him."

(R. 368).

In response to these statements by Morris, Maureene made it clear once

again that Morris could not have them both, that he could not remain married

to her and live with Vicki, and that he must make up his mind one way or

another. At the conclusion of the meeting, Morris promised never to see

Vicki again (R. 282). He told Vicki that he and Maureene had reconciled,

and that he could not see her anymore (R. 1357). Morris himself testified

that in Maureene's presense he told Vicki that it was all over and that he

wouldn't see her anymore (R. 1357; 1522-1523).

D. Morris Can't Give Up His Mistress

Morris' promises did not last long. Although Maureene didn't know it at

the time, less than two weeks later he resumed his relationship with Vicki

(R. 1523). By his own admission, he found himself unable to terminate the

relationship with Vicki, in response to questions by his own attorney:

(At R. 366)

Q. (By Mr. Byrne) Now, give the Court some judgement about how many times

you attempted during 1978 and 1979 to break off your relationship with

Vicki Booker?

A. Oh, gosh, about every month I'd say. It was a continual off and on

relationship.

***

(At R. 1367)

A. (By Morris, describing Defendant's Exhibit 103, a letter from Morris

to Vicki) Well, its an undated letter. I think it was in January of

1979, and it basically described the continuing problem of we ought to

end this relationship. I'm telling her that I don't really think I've

got the strength to and I wish she would do it herself."

***

(At R. 1434)

Q. (By Mr. Smith) Let me ask you if you said this or this in substance

in response to a question by Mr. Byrne. 'I attempted every month to

break off my relationship with Vicki'.

A. I think that would be a pretty accurate statement before Maureene

left home."

Morris had been supporting Vicki since her divorce from her husband in

May, 1979, and he continued to do so as they continued their affair even

after promising Maureene in July, 1978 that the affair was over for good.

Morris admits to having provided the following support to Vicki during the

eleven-month period from may, 1978 through March, 1979 (R. 1504, et seq):

May 30, 1978 $1,500

June 6, 1978 500

June 22, 1978 1,500

July 6, 1978 1,000 (after "reconciling" with

July 30, 1978 1,500 Maureene July 3rd)

Aug. 26, 1978 1,500

Aug. 27, 1978 1,625

Sept. 20, 1978 1,500

Nov. 27, 1978 5,000

Jan. 25, 1979 5,000

March, 1979 2,000

Total $22,625

Morris stopped sending Vicki money only when the present divorce suit was

filed (R. 1506). In addition, Morris loaned Vicki $28,000, at 8% interest,

to enable her to purchase her former husband's interest in their home at the

time of her divorce (R. 1351).

E. Maureene Is Compelled To Seek Divorce

In November, 1978, Morris finally admitted to Maureene that,

notwithstanding the promises that he had made in July to abandon Vicki and

reconcile with Maureene, he had continued to see Vicki in Birmingham, that

she was then five months pregnant with his child, and that he would be going

to Birmingham in a few days to be with her while she had an abortion which

Morris was paying for (R. 364). Over the next sixty days, Maureene concluded

that he simply could not accept the situation any longer. It was apparent

to Maureene that Morris was not going to stop seeing Vicki, and Maureene

was not willing to live in a situation where she knew for a fact that her

husband really had, in effect, two wives (R. 412). Morris was supporting

Vicki and had been doing so for almost a year. He treated Vicki like a

wife, supplying all of her financial and emotional needs. He was there when

she needed him. He was spending almost half a week going back and forth

to Birmingham two or three times a week, attempting to divide his time

between them (R. 412). In January or February, 1979, Maureene told Morris

that she could simply no longer accept this situation, and that she was

going to leave (R. 385). Following this conversation, Morris started trying

to induce Maureene to execute certain agreements (which will be discussed

in detail hereafter) that would permit each of them to have sexual relations

with other parties (R. 385). Maureene refused to sign any of these

agreements (R. 387).

While trying to induce her to sign these agreements, Morris continued to

tell Maureene that he loved her and that he would stop seeing Vicki (R. 390).

However, he did not stop seeing her. During this period he took Vicki and

her children to the ballet in birmingham, and spent the night at Vicki's

house (R. 390). He met Vicki in New Orleans for the Sugar Bowl in January,

1979, where they spent two days together (R. 1473).

In March, 1979, Maureene left Morris for the last time, and she has lived

separate and apart from him ever since (R. 370). Morris and Vicki moved

into the family home in Mathews (R. 370). Maureene commenced the present

suit on March 8, 1979.

Following the final separation, Morris openly continued his relationship

with Vicki. Taking his daughter, Ellie, with him, Morris met Vicki in Los

Angeles on March 10, 1979 (R. 1473). He introduced Vicki to Ellie as

"Pat"

(R. 1475), and after leaving Los Angeles the three of them flew to Las Vegas

together (R. 1475). They had only one room for the three of them, but

Morris claimed that Vicki sat up all night in the hotel lobby (R. 1476).

Morris took Vicki to the White House signing of the Israel-Egypt Peace

Treaty on March 26, 1979 (R. 1518). On June 4, 1979, Morris took his

daughter Ellie, and Vicki and her family, to the Grand Hotel (R. 1479).

F. Morris Sets A Trap

In February, 1979, Morris Dees realized that he was in a precarious legal

position. He had been conducting an affair with Vicki McGaha for almost two

years; she had become pregnant by him and had received an abortion which he

had paid for; he was supporting her and spending most of his time with her

and planned to continue to do so; and Maureene, who was fully aware of all

of these facts, and stated that she could not tolerate the situation any

more and was leaving him to institute divorce proceedings. To protect

himself in the impending litigation, Morris had to find a way to neutralize

Maureene.

In February, 1979, after Maureene informed Morris that she was leaving him,

Morris wrote out an agreement, which he showed to her on a Sunday afternoon,

and asked her to stay and live by this agreement (R. 385). This agreement,

identified and introduced as Plaintiff's Exhibit 30, purported to permit the

parties to lead separate lives but stay married, and provided that they

would not hold anything against each other that had happened either before

or after the date of the agreement (R. 386). The first such purported

agreement (Pl. Ex. 30) provided in part as follows:

"Whereas they "Morris and Maureene) feel that they can

better work

toward a more complete and satisfying relationship in their marriage

if they have an open marriage, i.e., where each party, while still

living together as man and wife, be free to have relationships with

the opposite sex, which said relationships may consist of sexual

intercourse. . ."

During the time that he was discussing this agreement and urging her to

sign it, Morris continued to tell Maureene that he loved her and that he had

stopped seeing Vicki (R. 390), which was another lie. Plaintiff's Exhibit

31 is another agreement which Morris drafted because he did not like the

language of the first agreement, and contains this provision:

[PAGE 11 MISSING]

A. Prior to even drawing up these agreements, I agreed to it orally.

I have already said that . . .

Q. When did you first orally agree that your wife, your lawful wife,

could have sexual intercourse with other people?

A. About a day before this agreement was drawn up.

Q. This was some time in February?

A. Yes

Q. And it was one day preceeding the first agreement?

A. Approximately."

***

(At page 253)

"Q. You knew she (Maureene) knew about you and Vicki?

A. About the abortion, and she said, I am going to use that and I

said, Maureene, look if you have somebody you want to have sex with,

go ahead and have sex with them. We said that that night at the bar.

Q. That was clear and unmistakable?

A. Clear and unmistakable.

Q. You encouraged her to and if there was anybody --

A. If you call that encouragement --

G. Morris' Trap Works: The Hotel Room Agreement

On March 4, 1979, Maureene walked naively into the trap which Morris had

set. On that date, she flew to Washington, D.C., where she met Brian

O'Daugharty (R. 576). Maureene knew Mr. O'Daugherty in connection with her

work on the National Endowment, and he was the Director of the Media Arts

Program (R. 341). Morris had told her that she could see anyone she wanted,

as long as she was discreet (R. 578), and her flight to Washington was

booked under the name of Better Foster (R. 576). Maureene and O'Daugherty

had dinner together on the night of March 4th, and returned to her hotel

room (R. 578). When they were in bed together, Morris and a Montgomery

private detective, both of whom had been hiding in the bathroom, jumped out

and started taking photographs, Morris said word in substance as follows:

"Alright sister, you wanted a divorce. Now I want one, because I've

got you where I want you." (R. 586)

Morris was acting crazy, and Maureene thought he was going to kill

everybody in sight. He told her that he had five detectives with him (R.

592). He hit her and gave her a busted jaw. (R. 592). He then started

writing something on paper which he then gave her to sign (R. 422-423).

This document, entered unto evidence as Plaintiff's Exhibit 43, was a

separation agreement (R. 423). The agreement provided that Morris was

to have custody of Ellie, the parties' nine-year old daughter. Maureene was

to receive "25,000 alimony-in-gross upon the "execution"

(sic) of a divorce,

and that in addition she was to receive $1,500 per month as alimony for a

period of three years from the divorce. Under this agreement, Maureene

relinquished all claims to any real estate owned by Morris, and agreed to

return to him the diamond ring which he had given to her. The agreement

recites that, although it is execute on March 5th in Washington, D.C., it

will be notarized by an Alabama notary (the detective) and shall be

governed by the laws of Alabama. Maureene signed the agreement because

she was afraid not to (R. 423).

After returning to Montgomery, Morris asked attorney Paul Lawrey to

handle the divorce based upon the hotel room agreement (R. 412). Although

he knew that Maureene was already represented by Maury Smith, Morris

instructed her to go to Paul Lowery's office for this purpose (R. 427). She

declined to do this, and later Paul Lowery came to the house where Maureene

was staying, with papers for her to sign, but she refused to do so

(R. 428-429).

Apparently in a last effort to induce a settlement with Maureene, Morris

later told her that he was sorry he had the photograph taken in the hotel

room, that he should not have taken them, and that he wanted her to have

them (R. 426). He gave them to her with instructions to destroy them,

telling her that these were the only copies (R. 426). He also gave the

original signed copy of the hotel room agreement. She tore up both

envelopes without looking inside (R. 426). Morris' statement that these

were the only copies of the photographs was another lie, since he introduced

the photographs into evidence at the trial.