The Prenuptial Agreement

"Do you remember who proposed Section Six?"

"Yes. I did."

Michaels then offered another piece of paper from Jenny's former attorney to prove her comment. It was admitted as Exhibit 2.

"Mrs. Hinton, when did you begin to suspect that your husband might be having an affair?"

Jenny sharply looked down. When she raised her head, she spoke in only a loud whisper. "It was almost a year ago."

"Can you tell the Court why you began to suspect an affair?"

"Just over a year ago, Mike hired an investment advisor out of town and started to visit them every two weeks. I didn't think much of it. I never knew much about his business . . . affairs, about his money." She hesitated. "Then he became withdrawn and quiet. I still didn't suspect anything. Then almost a year ago, about one month after he started going there - maybe he'd made two or three trips - his mood changed. I was happy . . . at first . . . and I put it out of my head."

"You didn't say anything to your husband?"

"No. I wasn't sure anything bad was going on. It was just a suspicion."

"When did this suspicion become more concrete?"

"I remember that day very well. My friend Corinne called me and asked if we could have lunch. When we met, she told me she'd seen Mike with another woman. That was six weeks ago."

"Where did she see your husband?"

"She was visiting relatives there and saw them hugging on the sidewalk in front of the restaurant she was eating at."

Her lawyer took Jenny through the hard questions. How did she feel? Why didn't she confront me? Her answers were perfectly reasonable. She felt terrible. She wanted to find out the truth before making an issue out of what might have been an innocent hug. She hired a detective.

"Mrs. Hinton, once you felt your suspicions were confirmed, what were your feelings?"

"I felt that my husband, that Michael, had broken our marriage vows. It hurt me tremendously."

"Why did you decide to file for divorce? You could have sought counseling."

"It was the length of time this had been going on. When I learned he'd been seeing her for a year . . . that's half the length of our marriage. When I heard what he said to her, telling her that he loved her . . . I can't . . . I felt I couldn't live with a man who would lie to me like that. I just couldn't."

Jenny's testimony was direct and emotional without being overly dramatic. She was convincing. When her lawyer was finished, Jack asked her if I'd ever struck her. No, she said. Had I abused alcohol? No. Had I abused illegal drugs or indeed drugs of any kind? No. When he was done, Jack turned to me, raised his eyebrows and sighed. Jenny was excused. She'd been on the stand for almost 45 minutes and she looked worn from the experience.

Michael's then stated that he could call Jenny's friend to the stand, but to expedite matters, he'd prefer to offer her sworn statement. It was admitted as Exhibit 3.

Next called to the stand was the detective, Robert Kirshmann. Michaels took his time laying out the foundation of the man's credentials and his experience investigating marital problems. Then he led him through a description of

The detective followed me. He took pictures of me with Susan. He followed me to her house and for each visit noted the time when I went in and the time I went out. He explained the equipment used for eavesdropping, taking pictures and other surveillance.

Michaels showed that the house in question belonged to the woman in question, a certain Susan Turner whom he identified carefully in photos. Michaels then introduced as Exhibits 4 and 5, tax records that showed the house in question was owned by Susan. He then asked, "Mr. Kirshmann, were you able to overhear or eavesdrop on any of Mr. Hinton's conversations with this woman?"

"Using a directional microphone, we were able to capture some of their conversations while they stood on the steps of her house."

"Are you able to play back those conversations for the Court today?"

"Yes. I am. The audio quality is not pristine but we've enhanced the volume and reduced the background sounds so the conversation is audible."

"With the Court's permission," Michael's said, "I'd like Mr. Kirshmann to play these tapes for the Court." The Judge asked Jack if he had any objection. Jack rose briefly to say no. Michaels' assistant lifted a boom box style player out of a box under their desk. Michaels then carried it to the witness stand and placed it on a small table in the witness' reach.

"Mr. Kirshmann, I'll ask you to play the first excerpt. Please identify for the Court the time and date of the recording."

"This recording was made at eleven PM on Thursday, September 3rd of this year. The subjects were standing at Ms. Turner's front door. I was in a car across the street with a directional microphone."

He pressed play. The courtroom filled with a loud hissing noise, then a voice "This is Robert Kirshmann. The time is 11:02 PM on Thursday, September 3rd. I am sitting in front of 1862 Forest." The next voice on the tape was a woman's but it wasn't clear. Then you could hear my voice.

"I love you. I've always loved you."

Then her voice, "I love you too."

My voice, "I'll see in you in two weeks."

Michaels asked Kirshmann to stop the playback. "Mr. Kirshmann, you were in the car opposite the house. Who was the gentleman's voice on that recording?"

"It was Mr. Hinton. He is sitting at that table. I could see him clearly from my location."

"At any time, did Mr. Hinton attempt to conceal himself from view?"

"No. Never."

There were five excerpts in total. Michaels led with the best but finished strong with the last. It featured Susan's voice saying, "Sometimes, I need to hold you."

Michaels entered into evidence a number of photos of Susan and me. Hugging. Holding hands. A kiss on the cheek. A kiss on the lips. Me touching Susan's waist. Her head leaning on my shoulder. Susan resting her hand on my back.

"Mr. Kirshmann, in your experience, have you ever followed a husband or a wife and discovered evidence of this sort and yet find that no sexual affair was being conducted?"

"No. I have not. Of course I'm not familiar with the results of every case I've ever been involved with. Sometimes I don't know what happened or I'm never contacted again once I've delivered a final report. But I can say, with absolute certainty, that in every case where I do know what happened, there has always been an affair."

Jack's questions were quick and to the point. "Mr. Kirshmann, did you at any time see or photograph or record Mr. Hinton and Ms. Turner having sexual relations."

"No."

"We all heard the words on the tape - I love you, I missed you, I need to hold you. Did you ever hear or record or in any way note any discussion between Mr. Hinton and Ms. Turner of an openly sexual nature?"

"Beyond those comments, no."

"So you never heard or recorded or in any way witnessed any sexual activity between Mr. Hinton and Ms. Turner or any discussion of sexual activity by them? Isn't that correct."

"Yes."

"The photographs which have been entered into evidence show a series of kisses between Mr. Hinton and Ms. Turner. Every kiss but one is on the cheek. The other is a closed mouth kiss on the lips. Did you ever see or photograph Mr. Hinton and Ms. Turner engaging in an open mouth kiss?"

"No."

"How long would you estimate the kiss on the lips lasted?"

"I really couldn't say."

"Would you characterize it as brief?"

"Yes."

"So Mr. Kirshmann, your investigations, which were very thorough and commendable in their professionalism, have uncovered no direct evidence of a sexual affair between Mr. Hinton and Ms. Turner. Is that not correct?"

"I've already stated my professional opinion."

"I understand your opinion. I'm asking what you actually found. You actually found no direct sexual evidence. Isn't that correct?"

"Yes. But I stand by my conclusions." Michaels on redirect said, "Mr. Kirshmann, thank you for your time and patience this morning. A few more questions and we'll be done. You witnessed Mr. Hinton and Ms. Turner on, I believe, twelve separate days and in almost two dozen situations, ranging from the entrance to her house to public restaurants to a miniature golf course. Having observed them for this many times over a period of weeks, how would you describe their relationship?"

"They are obviously close and are definitely involved with each other."

"You state that as a professional investigator?"

"I do. And I certainly know when a man and a woman are physically comfortable with each other. When a man and a woman have not been intimate, they may flirt but they don't relax completely. They may touch each other but they don't take the other's body for granted. You don't have to be a detective to know that. Mr. Hinton and Ms. Turner touched each other with complete familiarity."

"Thank you, Mr. Kirshmann. You may step down." As the detective left the stand, Michaels was handed a file by his assistant. "Your honor, if it pleases the Court, we would like to introduce into evidence numerous records of phone calls made by Mr. Hinton to Ms. Turner from his cell phone. We can authenticate these records, if the Court requires."

"Mr. Cohen?"

"We've had the opportunity to review these records and have no objection to entering them into evidence."

"If it pleases the Court, to summarize Mr. Hinton's call records, he phoned Ms. Turner's numbers, both home and her cellphone, every day for the past eleven months, with only four exceptions. On some days, he was connected to these numbers for two or more hours. Much of the activity was concentrated in the first two months after Mr. Hinton first journeyed to Ms. Turner's city of residence. The total number of calls is almost 1,000.

Jack stood up. "I would like to point out to the Court that no calls from Ms. Turner to Mr. Hinton, at any number, show up in the records."

The Judge said, "You mean he called her but she never called him?" Michaels and Jack both said yes. The Judge raised his eyebrows and scratched at his cheek. "Mr. Michaels, you have used up nearly two hours. How much longer will you need?"

"I'm almost through, your honor."

"If you need more than a half hour, we can take a short recess."

"I only need five more minutes." The Judge waved him on.

"If it pleases the Court, we would also ask that the following printed out emails from Mr. Hinton to Ms. Turner be entered into evidence. These emails were recovered from the home computer shared by Mr. and Mrs. Hinton. They have been authenticated by opposing counsel."

Jack rose, "That is true, your honor. We would like to state for the record that these emails contain nothing of a directly sexual nature."

The Judge asked, "Mr. Michaels, do you intend to read these into the record?"

"No, your honor. It is sufficient for this time to enter them into evidence."

"Mr. Cohen, if you will review these, we can we mark these all as one exhibit." Jack leafed through the email pile and then handed it to Connie and the other lawyer at the table. They checked and re-checked it against their own folder. When the nodded, Jack handed the papers back to Michaels.

"We have no objection."

"Mark these as Exhibit - what number are we at?" The Clerk answered 43. "Mark these as Exhibit 43. What else Mr. Michaels?"

"That is it for now, your honor."

"Very well. Court will stand in recess until 1PM. Mr. Cohen, be prepared to present your case then." The Judge rapped his gavel and stood up. The Clerk told everyone to rise and we all stood until the Judge had left the room.

Jack thought it best to keep Susan and me apart so I had lunch with him, while Connie ate with Susan. I had no appetite and picked at a salad. Jack downed an entire portion of linguine with artichoke hearts and chicken in a white wine sauce. "That's why you're fat," I said, pointing at his nearly empty plate.

"Fighting the good fight makes me hungry." He patted his stomach. "Gotta feed the beast."

"You should take the beast to a treadmill."

"I've started working with a trainer. Private sessions."

"Cute."

"Guy. More your type. Ginny's been after me to get in better shape. My heart's fine. My cholesterol's only 210. Nothing to worry about."

"Except looking like a potato."

"I'm Jewish. You're thinking Irish."

"Except looking like a gefilte fish. That's what those things you served me were, right?"

"Mashed carp balls."

"Yum. I liked the horseradish though."

"Best part of the meal. That and the haroset. You know, the sweet nut thing."

"That was good."

"Okay, we've put this off as long as possible. You know what's going to happen or what's supposed to happen. I had a chance to talk to Michaels just before we started. They won't put up a fight about your being in the room while Susan is testifying." I nodded. "You ready champ?"

"No way."

"Well, the bell's ringing and someone's got to answer it."

I sat at the table with Jack and Connie. We all stood for the judge and he rapped his gavel and without any preliminaries asked Jack to begin. To my surprise, Connie stood up. "If it please the Court, I am Constance Kosinski and I also on record as representing Mr. Hinton. I would like to call Ms. Susan Turner to the stand. I put my hand on Jack's arm. He gave me a thumb's up sign behind the table where no else could see.

Susan was sworn in. She looked miserable: unhappy and nervous. Her voice broke once as she affirmed she would tell the truth. My heart went out to her.

Connie began. She first established Susan's name and address. "How long have you lived at that address?'

"It will be five years in November."

"Before that where did you live?"

"I lived in San Diego, California."

"For how long?" Connie's style was less formal, more like a conversation.

"Over ten years."

"All at the same address?"

"No, we moved I think three times."

"Have you ever had sexual relations with Mr. Hinton?"

"No. Never."

"Have you been seeing him for the past year?"

"Yes."

"But you've never had sexual relations?"

"Never."

"To be clear, I mean no genital or oral sexual relations."

"Never."

"Has Mr. Hinton ever asked you to have sexual relations of any kind?"

"No."

"Has he ever physically attempted to have any form of sexual relations with you?"

"No."

"Has he ever hinted?"

"Never."

"You weren't in the room this morning. Would it surprise you to know that a great deal of evidence has been presented to this Court that shows you and Mr. Hinton engaged in intimate contact?"

"It depends on the contact."

"Kissing, hugging, touching."

"We've done those things."

"Open-mouthed kissing, sexual touching."

"Never. We've kissed on the lips but never romantically."

"Or sexually?"

"Not sexually."

"How about touching?"

"There has never been any romantic or sexual touching."

"Ms. Turner, the evidence presented shows that you and Mr. Hinton began seeing each other approximately twelve months ago. Is that when you first met?"

"No."

"You knew Mr. Hinton before?"

"Yes."

"How long have you known Mr. Hinton?"

"I don't know how to answer that. Do you mean how many years have we been in touch?"

"Let me rephrase the question. When did you first meet Mr. Hinton?"

"Technically, I guess you'd say 27 years ago."

"You are aware that Mr. Hinton is only 26 years old?"

"Yes."

"How old are you?"

"I'm 26."

"How did you meet?"

"We were inside our mother's womb." You could hear a pin drop. "Michael is my twin."

"I'm sorry. Did you say Mr. Hinton is your twin?"

"Yes. He's my brother. I'm six minutes older." If I weren't concentrating so hard on what Susan was saying, I might have noticed the effect her words were having in the courtroom.

"Mr. Hinton is your twin brother." Connie then turned to the Judge. "Your honor, if it pleases the Court, we will present into evidence certified copies of the birth certificates of Susan and Michael Hinton. I would, however, like to avoid interrupting Ms. Turner's testimony." The Judge motioned for her to proceed. "Ms. Turner, are you married?"

"No."

"Have you ever been married?"

"No."

"Then why is your last name Turner and not Hinton?"

"I use that name." Susan's voice broke.

"Before you began seeing your brother a year ago, when was the last time you saw him?"

"About sixteen years ago."

"When you were ten?"

"Yes."

"You did not see your twin brother for sixteen years?"

"Yes."

"Do you need to take a break?" Susan shook her head.

"Why?"

"Pardon."

"The question in everyone's mind is why didn't you see your twin brother for sixteen years. Were you close growing up?"

"Yes. Very close."

"There was no argument between you?"

"We were ten. We fought like ten year old kids."

"Are your parents divorced?"

"Yes."

"And when did that happen?"

"When I was . . . when we were ten. When Mike and I were ten."

"And after the divorce, you had no contact with your brother until one year ago?"

"Yes, that's right."

"No contact at all."

"None."

"Ms. Turner, do you know why Mr. Hinton, your brother, did not tell his wife about you?"

"I asked him not to tell her."

"You asked your brother not to tell his wife that he was seeing his sister. Why?"

"I had my reasons."

"Ms. Turner, it is my unfortunate job to ask you to tell us what those reasons are."

Susan hung her head. She started to cry. Connie poured her a glass of water.

"What is your relationship with your mother?"

"She passed away five years ago."

"Is that when you left San Diego?"

"Yes."

"How would you describe your relationship with your mother?"

"It was great. She was a wonderful person. I loved her very much."

"How would you describe your brother's relationship with your mother?"

"He never saw her. Not after the divorce."

"Not once?"

"No."

"How would you describe your relationship with your father?"

"I have no relationship with my father."

"When was the last time you saw your father?"

"When I was ten."

Connie stopped. She leaned back against our table. She looked at the floor and then at her notes. She took a deep breath.

"Did your brother contact you or did you contact him?"

"He called me."

"How did you respond?"

"I told him to leave me alone."

"Did he?"

"No. He came up to me in the street and then came to my house."

"Why didn't you want to see your brother? No, strike that. Ms. Turner, you did agree at some point to meet with your brother, yes?"

"Yes."

"And those meetings became regular?"

"Yes."

"Did you impose any conditions on your brother?"

"Yes."

"You've already told this Court that you asked your brother not to tell his wife about you. Was this a request or a condition?"

"It was a condition. I wouldn't see Mike if he told anyone about me."

"That's a very unusual request. Do you dislike Mrs. Hinton?"

"No. I've never met her."

"Was this condition you imposed a personal whim or was there a specific reason for it?"

"I had a specific reason."

"Was that reason a specific person you didn't want to see?"

"Yes."

"Was that person your father?"

"Yes."

"Why?"

"My father abused me." Susan was white.

"Sexually?"

"Yes."

"Is that why your parents divorced?"

"Yes."

"I've asked far too much of you, Ms. Turner. Thank you." Susan left the stand and went to the back of the courtroom. I turned and watched her. She was shaking and crying. She sat in the last row. Marlene from Jack's firm sat with her.

"I would like to call Michael Hinton to the stand."

I stood up and went to the witness box. I raised my right hand and swore to tell the truth, the whole truth and nothing but the truth.

"Mr. Hinton, you heard the testimony of Ms. Turner. What is your relationship?"