The sealing of an Omaha divorce case involving Hollywood filmmaker Alexander Payne has some court observers and the attorney for Payne’s estranged wife looking sideways.
Douglas County District Judge Thomas Otepka sealed the divorce case, at the request of Payne’s attorney, July 13 without providing an explanation — and apparently without hearing from the attorney representing Payne’s wife, Maria K. Payne. Otepka sealed the case the same day it was filed, and there is no indication of a hearing over the motion to seal.
The judge retired in September.
Civil and criminal cases are presumed to be carried out in public view in courts across the country, including Nebraska. The reason Alexander Payne’s attorney gave for sealing Payne’s divorce case was that the complaint “contains sensitive information which is personal to the parties and which ought to be shielded from public light.”
It was unclear what “sensitive information” was in the complaint — a copy of which was obtained by The World-Herald. It included no financial information or private personal information such as Social Security numbers, although it did contain the name of the couple’s child and the addresses of the couple’s four homes. Two of the homes are overseas, one is in California and one is in downtown Omaha. Such information is standard fare for every divorce filed.
The nuts and bolts of the divorce filing also are routine — it asks that the couple’s property, and parenting time, be equitably divided. But the case also has an international element: Two of the Paynes’ homes are in Greece, and court filings indicate Payne’s estranged wife is there with the couple’s 4-year-old daughter.
Less than a month after Payne filed for divorce in Nebraska, Maria K. Payne filed for divorce in California. The two married in September 2015.
Alexander Payne met Maria Payne while visiting an area of Greece where his ancestors lived. Alexander Payne, 60, is 27 years older than Maria Payne, who is a native of Greece and a philologist, an expert in language in literature.
Unlike in Nebraska, the California divorce case is not sealed. Records of the couple’s pending child custody case in Greece also are public. Nebraska apparently is the only place where the entire court docket is sealed.
Payne — an Omaha native and an award-winning director of several Hollywood films, including “Citizen Ruth,” “Election,” “About Schmidt,” “Sideways” and “Nebraska” — isn’t alone in trying to get cases sealed.
John Friend, clerk of the Douglas County District Court, said the sealing of cases in Douglas County happens “more often than (people) think.” A judge must order each case to be sealed, except for rare automatic sealings required by law, such as a dismissed felony case or the appeal of a mental-health commitment. Judges also are expected to hold hearings before they seal cases.
Judges have sealed certain cases when they involve “someone famous or infamous, or couples who have $25 million businesses together, things like that,” Friend said. “I think it happens quite a bit, especially when you’re talking about people arguing over millions of dollars (in a marital estate) or over business interests they want to protect.”
However, under state law, fear of publicity or notoriety is not a reason for an order to seal; nor is the fact that some people have more zeroes at the end of their net worths.
Nationally, in the early 2000s, a California billionaire investor and heir to a supermarket chain attempted to seal his divorce case — even leaning on California lawmakers to pass laws to allow him to do so. However, appellate courts struck down any privacy provisions and the California Supreme Court ruled that such cases must be open. One of the arguments presented: A less-prominent spouse can end up on the short end of the stick when divorces are barred from public view.
“You’ve got to have this stuff open so everybody can see what’s going on,” an attorney involved in the case told the Los Angeles Times then. “Usually the spouse with the least power may wind up not getting a fair shake.”
Warren Shiell, a Los Angeles attorney for Maria Payne, said cases are de facto public in California.
“We don’t have secret courts,” Shiell said.
Great Britain did away with secretive Star Chambers court proceedings in the 17th century — and U.S. founding fathers adopted open government and open court as the standard here. Ensuing case law has established that court business can be conducted behind closed doors only in extremely limited cases. Appeals of the civil commitments of the mentally ill are one; motions to shield the sexual history of a rape victim are another.
That hasn’t stopped some residents, and their attorneys, from trying to keep cases private.
In Omaha, a courthouse bailiff once got a judge to seal her divorce action against a former prosecutor, though it was a run-of-the-mill divorce involving no children. A criminal defense attorney asked for — and a judge granted — the sealing of his case because he had represented gang members and feared the divorce file would expose where his children were living. A prominent divorce attorney got his own divorce sealed.
Beyond those anecdotes, The World-Herald requested statistics of how many cases, and what type, have been sealed over the past five years. Nebraska court officials said they were having difficulty processing that request.
Omaha attorney Andrea McChesney said she has succeeded in getting a judge to seal cases in two of the dozens of divorce cases she has handled. Each sealing, she said, came after a hearing and after careful consideration by the judge.
“Do we have courts for lay people and courts for people of privilege? It’s a good question,” said McChesney, who clerked for judges for nearly two decades before she became an attorney 10 years ago. “It’s my experience that the expectation that courts be open is taken seriously. We have an above-reproach bench who does not take sealing records lightly.”
Attorneys sometimes try to keep court filings quiet while bemoaning that courthouses are the worst places to try to keep a secret. The irony of Payne’s efforts to seal: It is doubtful that Nebraska court observers would have noticed his divorce filing, even without the sealing. It was filed as “Constantine A. Payne vs. Maria K. Payne.” Payne goes by his middle name, Alexander.
The World-Herald was sent a copy of the filings in the case. It is not clear who originally leaked them.
As in most cases, the filings aren’t tawdry. Courts have long since turned to no-fault divorces, where it doesn’t matter who, if anyone, was in the wrong. Both Maria’s filing and Alexander’s filing give no reason for the divorce, other than the standard language of “irreconcilable differences” and the marriage “being irretrievably broken.”
Here’s where the divorce gets unusual:
Payne’s Omaha attorney, John Slowiaczek, wrote in court documents that he had been unable to serve notice of the divorce to Maria Payne because Maria Payne is in Greece with the couple’s child. COVID-19 travel restrictions have limited travel to and from Greece. Slowiaczek did not return phone calls or emails Friday.
In his initial filing, Slowiaczek wrote that Alexander Payne “does not expect this will be a contested matter.” However, Maria Payne filed her own divorce action after Alexander Payne did. And then Slowiaczek accused Maria Payne of “forum shopping” — trying to find a favorable court.
Divorce attorneys who reviewed the case said Alexander Payne may be seeking more affordable child support guidelines under Nebraska law. Maria Payne may be seeking more favorable property division under California’s community property laws.
Where the couple and their child spent the majority of their time could factor into which jurisdiction takes the case. Both sides either have filed, or are expected to file, motions requesting that either California or Nebraska — or perhaps even Greece — assert jurisdiction.
Filings indicate Alexander Payne received a phone call requesting him to appear in a Greek court on Aug. 3. If the case becomes international, the parties may have to turn to the international Hague convention.
Those jurisdictional issues could make for a long haul. In the mid-2000s, after Payne and his then-wife, actress Sandra Oh, agreed to divorce, it reportedly took two years to resolve the couple’s financial matters.
The reason for sealing the case in Nebraska: “sensitive information.” “Unfortunately,” Slowiaczek wrote, “it is not possible to exclude this information from the (divorce) complaint.” The same day as the motion, Otepka issued an order prepared by Slowiaczek. The order gave no reason for the sealing, statutory or otherwise. It did provide an avenue to unseal it.
“It is ... ordered that the (court) clerk shall flag this file as sealed in the (online) Justice system so that neither the docket nor images of the pleadings are visible to the public,” the order said. “It is further ordered that this file may be unsealed by either party for good cause shown.”
Maria Payne’s Nebraska attorney is expected to file a motion to unseal the case. Because the entire case is sealed, it is unclear who the new Nebraska judge is on the case, or when it might be heard.