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Imagine that you are getting a divorce after your spouse embarks on an extramarital relationship.

Imagine that this spouse’s new romantic partner is a judge. In fact, your divorce proceedings are in the very courthouse where that judge works.

After your attorney quits, you have a hard time finding a new one, in part because lawyers have cases before the judge who is now your ex’s girlfriend. You are unrepresented when your husband’s attorney sends a number of confusing and contradictory court documents to your post office box.

At the time, you’re moving out of the house you shared with your husband and two children for 23 years and working a second job cleaning commercial properties to make ends meet. In the confusion, you miss a court date that was supposed to be about a motion to compel you to provide documents.

Only later do you discover that in your absence, the whole divorce case — not the motion on discovery — was decided by a colleague of your ex’s girlfriend in a way you consider very much to your former husband’s advantage.

Welcome to the Maui court system. This is Dania Novack’s description in court records of her divorce case there.

She believed that she had been treated unfairly. It took six years, but eventually some other judges agreed with her — as it happens, the ones who sit on the Hawaii Supreme Court.

I wrote in December about a judicial conflict of interest on the Big Island. Parents in child welfare cases say they often feel that they are intruding on a cozy network of court personnel who determine their futures — judges, lawyers, state social workers and nonprofit contractors. The Big Island case, in which a judge was sitting on the board of a nonprofit with a contract to provide representation in child welfare cases, seemed to bear out that perception.

Novack’s case raises similar questions about judicial impartiality in a very insular community.

Now that the divorce has been remanded back to Family Court, all the judges in Maui have recused themselves because the case involves a colleague.

But why didn’t all the Maui judges recuse themselves six or seven years ago, when they handled the divorce the first time around? The judge who is involved with the husband, Michelle Drewyer, was a per diem judge at the time, filling in as needed, not a permanent appointment. But she had been doing that for years, presiding over many cases. It’s hard to see why it did not raise the same ethical red flags.

Gov. Josh Green to be a Circuit Court judge last year.

A Messy Divorce, With A Twist

Dania Novack declined to comment for this column, but the court record lays out the case in detail and the following is based on those documents.

Like many divorce cases, it was messy. And the public interest in this case is not who should have gotten what in a run-of-the-mill divorce settlement. It’s how the court handled a case involving one of its own.

As part of the initial proceedings in 2017, Joel Katz sent Novack a seven-page document request, including “each check and wire payment Wife received and made after their 1995 marriage.” Novack had a month to comply.

Around this time, Novack’s lawyer quit. One of the reasons she cited was Novack’s failure to comply with deadlines.

It seems clear that Novack at this time was not paying close attention to what was happening in the divorce case and not complying with discovery rules. She said she was having a hard time finding a lawyer. Some said they had already been contacted by Katz, and so were ethically unable to take her case. Others cited having cases before Judge Drewyer.

The court record is a little murky on this point. In one declaration, Novack named four attorneys she had contacted. Two she could not afford and another she decided against because of a different conflict.

During this hectic time, Katz’s attorney sent a number of court documents to Novack’s post office box rather than emailing them to her or delivering them personally.

One of these documents contained a sentence warning that Novack’s failure to appear at the next hearing to consider a motion to compel her to comply with discovery could result in the court adopting the husband’s proposed settlement.

In fact, Novack did miss that court hearing. Judge Lloyd Poelman found that she was in “default,” meaning the court could take action in her absence.

It’s certainly a serious matter to miss hearings and not comply with discovery. But what Poelman did next went too far, the Supreme Court later decided.

Katz, the husband, had proposed that he retain the growth in equity of the house they shared during the marriage in return for Novack keeping her business, a Maui food and drink publication.

Poelman asked Katz if those two interests were “reasonably close” in value, making it a fair exchange.

Katz replied, “I think it’s close. But I …”

“All right, I’m satisfied,” Poelman said.

A Series Of Appeals

Once Novack found out about the decree, she asked the Family Court to set aside the judgment. When that was denied, she filed a motion to reconsider, which was also rejected.

She went to the Intermediate Court of Appeals in 2018. Four years later, the ICA upheld the Maui Family Court decisions, saying Novack’s failure to provide documents or show up in court were not “excusable neglect” that could have shielded her from the default judgment. One justice dissented, pointing to Novack’s lack of counsel and her contention that the hearing notices had been confusing and conflicting.

So she went to the Supreme Court. And in August, she finally got a court to agree that she had not been treated justly.

The justices focused on what they saw as inadequate warning of the consequences for failing to show up at the 2017 hearing.

“Wife maintains she did not fully understand the meaning of one sentence buried in several documents sent to her P.O. Box,” the court’s opinion stated. “Wife didn’t get that she had to attend a status hearing regarding discovery and hand over discovery by then – or else …

“We conclude the family court inadequately warned Wife about the risk and consequences of neglect,” such as a judge telling her face-to-face what it would mean.

“Wife could not have anticipated, we believe, that the family court would approve Husband’s property division and spousal support wish-list without any supporting documents.”

Now the case is back in Family Court. But it looks like it will have to be moved to Oahu, because all nine Maui Circuit Court and District Court judges have recused themselves — Drewyer because of her connection to Katz and the rest because they are colleagues of Drewyer.

One of those judges is Judge Adrianne Heely, who ruled against Novack when she appealed the initial decree. (Poelman, who issued that decree, has retired from the bench.) Court minutes indicate that neither party objected to Heely presiding over the case. It’s possible that question came up because Heely pointed out that one of her colleagues was Drewyer, and the parties were OK with that, but the minutes do not say that.

And why, if Heely is taking it upon herself to recuse herself now, did she not do so the first time around?

I contacted Judge Poelman, now in private practice. He referred questions to the Judiciary, which he said he understood to be protocol for anything he did as a judge. The Judiciary declined to comment on any judge’s actions in the case because it is still active.

I cannot get inside the judges’ heads in this case. For all I know, they would have ruled exactly the same way if the case had involved parties with no connection to the bench. At the same time, bias can be a subtle thing — not so much, “I want to do my colleague a favor” as “My colleague is a decent person, so I should trust the boyfriend’s word on what’s fair.”

But again, I cannot know that, and it’s not the point. The point is that it looks bad and opens the court up to the perception of favoritism.

I would guess that from the inside, in the Maui court as in many institutions, people think, “We all know each other. We can trust each other to do the right thing.” But maybe they should pause to consider what it looks like to someone who’s not an insider, like Dania Novack.