March 2023 Bar Bulletin
By Michael Louden
The family law motions calendar is a grind. Every day, the commissioner faces a huge stack of reading — thousands of pages of declarations, proposed orders, financial statements, and occasionally even some legal briefing. Prior to the pandemic, there could be a dozen cases on the morning calendar, and then a series of afternoon hearings, every day. The pandemic introduced Zoom hearings that capped the number of cases, but the grind persists.
The vast majority of cases have little to distinguish them, aside from the details of each family’s own trauma and unhappiness. “All happy families are alike; each unhappy family is unhappy in its own way.”1 In resolving family law disputes, “[t]he court should require something more than unsupported conclusions and the unfortunate petty sniping that sometimes goes on between warring parties to a dissolution action.”2 Now Pro Tem Judge Leonid “Les” Ponomarchuk3 describes his job, “In family court, we deal with the three things people care about most: their children, their money, and their safety.” He could also have added other things people care deeply about: their guns, drugs, freedom, and most of all, their power. When families break up, everyone typically suffers a loss — less time with their children, less money, and more uncertainty. A common refrain is that “a fair result is one in which everyone is equally disappointed.”
I work as a full-time mediator and arbitrator of family law cases. Most days, I work with two experienced family law attorneys. I know the reputation of King County judges and commissioners, particularly those who have served on the bench for a while. I have not run across a single attorney who does not trust Judge Ponomarchuk to have read every declaration, reviewed the full record, and carefully considered every decision. Even when they disagree with the outcome, they have to concede that the result was within his discretion and carefully (and sometimes colorfully) explained on the record.
When Judge Ponomarchuk leaves the bench this month, King County will lose its third most senior judicial officer, and a quarter century of family law judicial experience. The court will lose his wisdom, insight, and vast knowledge of family law. The bench will also lose a distinctive personality.
“That was Les one-point-oh,” he said, when I mentioned a few of the stories practitioners had told me. “I used to say, ‘what the hell are you doing this for?’ when someone would bring a ridiculous motion. Not anymore.”
Most practitioners viewed his rulings as completely appropriate and instructive. In response to a long diatribe from a parent about the other parent’s extramarital affair with a younger woman, Commissioner Ponomarchuk took a deep sigh and then explained that we all would like to be younger, or dating someone who is, but that wasn’t relevant to the issues before him. On another occasion, an attorney argued for temporary spousal maintenance for her client (age 55) who was not currently working and should not be required to go out and get a job. The attorney was very adamant that it would be unfair for the client to have to work, given her age. Commissioner Ponomarchuk listened patiently before indicating, “I’m turning 55, TODAY, and I’m working.” The attorney meekly said, “Well, Happy Birthday, your Honor.” One attorney told me about a short lecture she received from the judge about the proper way to refer to Ukraine (not “the” Ukraine). “Well, I was right about that,” he said. Another attorney recalled an argument over whether a certain vacation would happen, and the commissioner’s ruling was, “Everyone gets to go to Disneyland.”
Judge Ponomarchuk explained that he had toned down his personality over the years. There was less and less “Les” when on the bench. As a judge, he said, “I’m basically a cadaver up there. But it’s more appropriate to a trial to the case more attention and more care. You have more time.”
Judge Ponomarchuk’s love of Husky football would sometimes escape in a professional context. In resolving a case for allocating college expenses, he may have asked, “Oh, is Washington State accredited now?”
I asked Judge Ponomarchuk how attorneys can improve their presentation. He jumped to “the over-ask,” which destroys your credibility. “I’m not just going to split the difference.” He said he’s much more likely to follow the direction of attorneys who present a fair resolution versus attorneys who ask for the moon. “Going for broke doesn’t help the process.” Combativeness and unnecessary vitriol demonstrate weak arguments, but many attorneys resort to emotion to mask deficiencies. Taking on the client’s mantle does not help. “You don’t want your oncologist crying or emotional”; you want your attorney to be objective, too.
Judge Ponomarchuk agreed with my concern about a lack of young family law attorneys in King County. He has volunteered to mentor a number of younger attorneys. What else might help alleviate the problem? “The practice of family law is a noble profession. We’re not just attorneys — we’re therapists, forensic accountants, business advisers, parenting coaches, tax advisors, and personal counselors. The family law bar helps people preserve their relationship with their kids, and helps them preserve their assets. That’s a laudable goal and it’s a laudable profession.”
Commissioner Ponomarchuk took pride in always being prepared. “Never once did I go out on the bench not having read the materials,” he said (unless the materials hadn’t been properly presented). He was known for knowing the details in the case. He would never complain, regardless of the length of the reading, if the parties settled their case. A well-prepared and well-presented case is often easier to settle, too. He was occasionally frustrated by feeling like he knew the case better than the attorneys who were arguing before him. “You should at least know the names and ages of the children.”
The King County Family Bar Association Family Law Section asks commissioners to provide a “tip-of-the-month.” Commissioner Ponomarchuk has regularly chimed in with valuable hints. “The most rewarding part of being a commissioner is applying the law to the facts of the case,” he told me. Family law often boils down to issues of discretion, and figuring out the truth in a sea of conflicting allegations. Occasionally, though, a question of law will arise. “I LOVE an argument about a point of law.”
I solicited comments from the listserv of the Domestic Relations Attorneys of Washington (DRAW). Multiple practitioners jumped at the opportunity to repeat stories about “what happened in court that one time.” Sadly, the best stories fall flat in print; you had to be there. But the stories usually ended with, “and that was exactly what that family needed to hear at that moment.”
Judge Ponomarchuk had a reputation for passionate engagement with the attorneys, but he was also patient. I litigated a restraining order before him years ago. There were no kids, no financial issues, and no violence. As usual, both sides had a lot to say. Page limits were pushed, if not exceeded. For the parties, though, it was a question of Justice. One of the issues was whether my client’s shirt had been stolen. His declaration pointed out that it was no simple shirt, it was a mountaineering shirt. (I’m a lifelong hiker, and I don’t know what a mountaineering shirt is, but I went with it.) In the nervousness of my argument, I inadvertently referred to my client’s “t-shirt.” Commissioner Ponomarchuk — listening intently as ever — interrupted, “Mr. Louden, I just want to clarify, you’re talking about the mountaineering shirt, right? . . . Okay, thank you, please continue.” My client was noticeably relieved by the correction.4
There’s an underground railroad aspect to being a family law commissioner. The court shepherds thousands of families through a dangerous period to a new life. Everyone involved experiences loss, trauma, and fear. Judge Ponomarchuk cared about the people involved, cared about correctly applying the law, and cared about finding a result that protected the children, and the parties’ safety, and their money (and even their gun rights). He may not decide whether Albertsons would pay a dividend in a multibillion-dollar transaction, but he does decide whether a mom will get an extra $200/month in life-sustaining child support, or whether a parent is sober enough to be trusted with their kids, or whether a domestic violence protection order should be issued. Judge Ponomarchuk pushed that Sisyphean rock uphill for 25 years with dignity and nobility.
Commissioner Ponomarchuk will be starting “Ponomarchuk Arbitration and Mediation” after leaving the bench. While his presence on the bench will be missed, his monumental presence in the family law community fortunately remains.
1 Tolstoy, Anna Karenina.
2 In re Parentage of Jannot, 110 Wn. App. 16, 25, 37 P.3d 1265 (2002), aff’d, 149 Wn.2d 123 (2003).
3 Judge Ponomarchuk was elevated to his judicial position when funding was secured in the pandemic. He has been hearing family law trials for the past two years.
4 This is an example of the many stories told to me, most of which are too long to relay here. But it’s my own story, so I get to include it.