Divorce, Alamo Style
From a small north-side apartment via tony Rob Roy, a Hays County ranch, and several sojourns in jail Janet Kennedy keeps fighting a battle featuring all the latest in family bitterness
It's one of the most contentious land battles in the Hill Country but for once, a controversial development isn't at the center of the storm. Instead, an acrimonious divorce case is driving Janet Kennedy's attempts to right the wrongs she believes she's been dealt since 1999, when the Kennedy v. Kennedy saga began.
The case has traveled a circuitous path from Travis County, where Janet's then husband Bobby Joe Kennedy, an Austin dermatologist, initiated the proceedings that would end the couple's 32-year marriage, one that had produced five children. He eventually pulled the case and refiled it several months later in Hays County where things got chaotic and nasty, and Janet ended up in jail. The case proceeded to the 3rd Court of Appeals (the first in what would become a long string of appeals), which determined that an associate judge erred in granting Bobby Joe a divorce as a sanction against Janet for refusing to endorse a check from the sale of the family home in Rob Roy.
Nevertheless, Janet's refusal earned her not only a divorce sanction but a contempt of court charge that landed her in the county jail. For a woman in her late 50s, the Hays County lockup is no picnic. Kennedy was assigned to the top of three bunks, but because of a shoulder injury was unable to climb up to it. She slept on the concrete floor for the first two nights and in the daytime, instructed her fellow inmates in Bible study. By the time she got out, 42 days later, Bobby Joe Kennedy had remarried.
In all, since 1999, when her husband initiated the first divorce proceedings, Janet has endured four separate stints in the Hays County jail:
July 6, 2000: Arrested for failing to appear for a divorce hearing two weeks earlier, she spent 24 hours in a holding tank.
July 7, 2000: When she was summoned from the holding tank to sign the note on the sale of the family's Rob Roy home, she refused, and Associate Judge Brenda Smith declared the divorce final and ordered Janet jailed for contempt of court.
April 2003: Arrested for remaining on one of the couple's Hays Co. ranches after the property was sold a month earlier, she spent 24 hours in a holding tank, before being released on a personal recognizance bond.
June 2004: Arrested a second time for trespassing on the same property, she spent 45 days in jail.
The first opinion from the appeals court agreed that the June 2000 contempt judgment against Janet Kennedy was justified, but faulted the lower court for granting the divorce without settling the community property dispute. Therefore, the appeals court reconfigured the date of the divorce judgment from July 2000 to August 2001, when the property settlement actually occurred, following a six-day jury trial. But Janet wasn't satisfied. While the jury had awarded her temporary spousal support of more than $3,000 a month, the trial court brushed that portion of the verdict aside. Instead, visiting District Court Judge Fred Moore noted that Janet holds a master's degree in health care administration and has practiced as a licensed pharmacist, and he told her to get a job. Again she turned to the 3rd Court but to no avail. The Texas Supreme Court came next, followed by the U.S. Supreme Court. The signature of Justice Antonin Scalia graces Janet's perfunctory rejection letter.
Had the divorce case remained in Travis County, it's possible that Janet Kennedy would not have ended up on a seemingly endless, pitfall-ridden journey for justice. Family law attorney Ted Terry represented Janet in the Travis Co. proceedings, but re-signed from the case once it moved to Hays County, because of a conflict with another divorce case; he was representing the wife of a Hays County official District Court Judge Charles Ramsay. Terry says Bobby Joe Kennedy pulled his divorce petition out of Travis Co. after a judge ordered him to pay his wife's attorney fees and spousal support. "I figured he'd be filing in Hays County it's a better county for him and lo and behold, that's what he did. Janet would have been protected a lot better in Travis County because the judiciary or a jury wouldn't just blow her off as an eccentric person. They put up with a lot more around here."
A small, conservative county like Hays isn't so forgiving, Terry said. "If you get cross-wise with a judge in a small county, you're toast," he said. "You should never thumb your nose at the judge that's suicidal," he said, "but there were some ways to get around that ruling other than putting her in jail. I really don't think she'd be where she is today if the case had stayed in Travis County."
Yet, Janet Kennedy remains undaunted, and at 61 shows no signs of slowing down. She's a devout Southern Baptist who follows a strict regimen of scripture reading, praying ... and writing legal briefs from her modest North Austin apartment, tastefully furnished with a couch, a few chairs, tables, and knick-knacks she picked up from Goodwill and Salvation Army stores. In a recent interview in her home, she greeted me with a plate of flan and a glass of ice tea. "Since my divorce," she said, ushering me to a small, perfectly set table with a blue tablecloth, "I don't have the opportunity to make things. And I do enjoy making things." She's estranged from her children, though she and her ex-husband dispute the reasons why. A few friends have stuck by her all these years. "I believe her cause is just and right," said Ann Capps, a longtime friend from an old Bible study group at Hyde Park Baptist Church. "And I believe she's been mistreated by the courts and by her husband."
Showdown at Alamo Ranch
As with most sticky divorce stories, Kennedy v. Kennedy has developed a running series of subplots. It is the kind of messy saga that occasionally garners a mention at family law seminars, commented one local lawyer. Houston attorney David Gray singled out the case in his December 2002 column "Gray's Interesting Cases" a regular newsletter feature of the Houston Bar Association's family law section. He referred to it as "a legally insignificant case that's so bad it has to be reported." Drawing on the first opinion of the 3rd Court of Appeals, Gray poked fun at the Hays Co. associate judge who initially granted the divorce as a punishment before tossing Janet in the slammer for contempt. "I should stop here and make you read the opinion," Gray wrote, "but if I do, somebody out there will think its OK to grant a 'final divorce' as a contempt or other sanction." The trial court's divorce sanction against Kennedy, Gray concluded, "makes you want to hang your head in shame."
It's been five years since the sanction, and though the appellate court found no reversible error, Janet Kennedy is still seeking redemption. A central argument in the multilayered case concerns her attempts to regain control of Alamo Ranch Inc., a wholly owned entity created in 1992 to maintain the couple's real estate holdings in Hays and Gillespie counties. According to the divorce trial record, Janet served as the sole officer of the corporation, mainly for liability reasons; the idea according to testimony was that Alamo Ranch would shield the family's 600 or so acres of ranch properties in the event Dr. Bobby Joe Kennedy, a dermatologist, was sued for malpractice. Janet also asserted that her husband acquired the property as his "gift" to her for the years she spent helping him with his practice.
As things turned out, the 2001 jury verdict in the divorce trial deemed the Alamo Ranch community property. But the judge gave control of Alamo Ranch's assets to Bobby Joe, directing him to sell the properties and divide the proceeds from the sale. To this day, Janet refuses to accept her estimated $500,000 share of the proceeds. To do so, she said, would be an admission of defeat, and the acceptance of what she believes to be a mere fraction of what she is entitled.
She argues, among other things, that her ex-husband had no legal authority to draw up documents declaring himself president of Alamo Ranch Inc. After raising five kids, setting up her husband's practice, and managing his office for a number of years, Janet says she decided to turn Alamo Ranch into a full-time gig of raising Navajo-Churro sheep, longhorn cattle, and other livestock. But Bobby Joe insists that he and his sons performed most of the work on the ranch, building fences and managing the growing menagerie of livestock that Janet regarded as her pets. "We had five breeds of sheep. We had donkeys, peacocks, a llama, and a buffalo," said Dr. Kennedy in an interview. "And she just wanted more. There was no end to it."
A sideline of the business branched out into the age-old craft of spinning wool sheared from the sheep, teaching spinning classes, and marketing the wool to suppliers. But Bobby Joe says the marketing side never took off. The wool languished in dozens of large bags, presumably waiting for shipment.
In any event, in the spring of 1997, the couple and their youngest son packed up their belongings and moved from their half-million-dollar home in the exclusive Rob Roy subdivision of far West Austin to a beautiful spread in northeast Hays County, south of Hamilton Pool Road. The site covers 19 acres of rugged, rolling green terrain, and boasts a small lake, a creek, and one of the highest points around, where the Kennedys would take in gorgeous sunsets and 360-degree views of the Hill County. The family initially set up housekeeping in a 1997 Teton RV and, according to Janet, began planning the home they would build. Meanwhile, they started prepping the Rob Roy home to put on the market.
For whatever reasons, the marriage collapsed before Janet realized her dreams. When her husband announced he was divorcing her, Janet says she was shocked, arguing that the Bible and their Baptist faith forbid it. Bobby Joe proceeded anyway. The more time passed, the uglier things got. Tempers flared, and things were said that came back to haunt them during the divorce proceedings. Janet became clinically depressed and began taking medication. She was angry, devastated, sad, suspicious, and terribly confused. At the divorce trial, the testimony of her grown children and her husband painted a picture of someone who ran an ultra-strict household and whose deep and ever-expanding religious convictions had become a source of family irritation. One of the Kennedy sons testified that his mother insisted that he always wear a white shirt to church. If he showed up in a blue shirt, he'd have hell to pay the rest of the day. The trial left Janet feeling all the more alienated. "I feel like a trauma victim," she told her attorney.
Jailing the Queen of Sheba
But Janet Kennedy has an uncanny knack for bouncing back, and within a few months she had gone from traumatized to defiant. Judges, of course, don't take kindly to those who defy court rulings, so in that respect Janet became her own worst enemy. Determined to hold onto the land that she loved so dearly, she filed a lis pendens a stipulation that warns prospective buyers that the land is in litigation on each of the properties and prepared for another round of battle. She filed her appeals, bought a portable cabin and moved it to the 19-acre Hays property, where she lived, rather primitively, while Bobby Joe tried to sell the properties. He found a buyer in January 2002, but when Janet learned of this she contacted Southwestern Title Co. (co-owned by the controversial former Dripping Springs city attorney Rex Baker) and blocked the sale. As a consequence, the title company decided to wait out the appeals process, and the prospective buyer, Richard Ryan, agreed to keep his option on the property. The 3rd Court of Appeals denied Janet's petition in December 2002 and rejected a motion for a rehearing the following February. So she did what she always does she appealed to a higher court.
But before she had moved the case to the state Supreme Court, Southwestern Title proceeded with the closing on the property in March 2003. Rex Baker, whose multiple positions of power in Hays County (he's also a justice of the peace) had been a source of controversy during his tenure as a city attorney, also wore several hats in the Kennedy land transaction. He drew up the necessary legal documents through his law firm of Baker & Associates, issued the title to the new owner under Southwestern Title, and notarized the documents wearing his notary public hat. Ryan bought the 19-acre property for $100,000 a relatively low price, considering the ongoing development boom in the Hamilton Pool Road area, but based in part on the findings of the divorce trial two years earlier. The jury placed a $700,000 value on the entire portfolio of land holdings of Alamo Ranch. Janet contends that because the property was sold in 2003, two years after the trial, the land could have fetched a much higher price.
The closing was not a run-of-the-mill land transaction, however. Because there was still a legal cloud over the property, Baker required Bobby Joe to sign what's known as an "indemnification and hold harmless agreement" which would require Dr. Kennedy to cover the costs of any legal claims that might crop up against the title company as a result of Janet's appeals.
State property laws allow for such agreements, according to the Texas Department of Insurance, which regulates title companies. Rob Carter, the agency's deputy commissioner over title insurance, said the law also provides some independent wiggle room for title insurers to assess their own risk factors. Generally speaking, he said, it is more common for title companies to require the legal dismissal of the lis pendens, or to have the seller put up bond money to insure the title company against a claim. An agreement such as the one signed by Bobby Joe Kennedy is less common, Carter said. "There's nothing on its face that's wrong about that," he added, but "it may be more common that the title company ask the seller to bond around it or ask that the lis pendens be released."
Baker said in an e-mail that "privacy reasons" prevent him from discussing the case with the Chronicle, and he did not respond to more general questions put to him in a follow-up e-mail.
It wasn't until Janet Kennedy began sorting through her reams of court filings that she stumbled across a document that jogged her memory of another incident involving Baker. Once, during her attempts to thwart the sale of one of the properties, her ex-husband had tried to obtain a court order to keep her off the property. She was summoned to appear before the justice of the peace Rex Baker. Janet showed up on the appointed date but never saw Baker. While she waited outside for the hearing, she learned from her attorney at the time that the matter had been dropped; Janet couldn't be charged with trespassing because the land had not yet been sold.
In the meantime, Janet continued living on the property, cannily dodging process servers who might be trying to notify her of the pending sale. Her defiance nearly cost her two years in state jail. Not long after the closing, she drove out from her cabin, only to find a lock on the front gate. Undaunted, she called the sheriff, whose deputy simply warned her she was trespassing. Another time, she came home to a locked gate; she broke the lock off, threw the remains in the back of her pickup, and drove onto what she still considered her property.
That was the last straw. The new owner found the lock broken, and this time, he called the sheriff. She was arrested in April 2003 and released the next day with a warning from the court: Stay off the property. She migrated to the Gillespie County property and stayed there for several months before returning to the Hays County site, where she was eventually arrested a second time and sentenced to 45 days in jail.
The case finally went to trial this year, on June 14. After a series of washouts in Hays Co. civil courts, her odds didn't seem terribly favorable in criminal court, where she was charged with trespassing and criminal mischief. But this is where Janet's luck turned. Her attorney, Hollis Burklund of Lockhart, hammered every piece of evidence and every witness who testified. The case never went to the jury. When the prosecution rested, Burklund asked the judge for a directed verdict on grounds that the DA failed to provide sufficient evidence to prove Kennedy guilty. The judge granted the motion, dismissed the case and sent the jury home. It all happened so fast, Janet wasn't sure if she was doomed or cleared.
"I walked out of there like the Queen of Sheba," she said.
Kennedy won an acquittal on the felony criminal mischief count and a dismissal of the trespassing charge. It was her first court victory in five years. For better or worse, the acquittal buoyed her determination to continue her legal fight, based on the testimony her court-appointed attorney was able to put on the record at trial. For one that she was never notified of the sale of the property and therefore was unaware that she was breaking the law. And two that the property was sold before she had exhausted her appeals of the divorce judgment.
"It was a crappy case," said Burklund. "We got the best verdict you could hope to get. Directed verdicts are very rare in Hays County. That case was a civil matter. It should never have gone to criminal court." Given Janet's frequent court appearances, Burklund said, his client already had quite a reputation around the courthouse. "Everyone said she was crazy," he said. "She's not crazy; she's just been wronged, and she's angry about it."
Janet Kennedy believes the Lord began grooming her for her ongoing battle about 15 years ago, when she set out to shut down an adolescent drug rehab operation with deep ties to wealthy and powerful Republicans. The controversial "faith-based" organization, Straight Inc., was founded by Florida shopping center magnate Mel Sembler, who served on first President Bush's National Finance Committee in 1988 and later as his ambassador to Australia. Straight operated centers in seven states, including Texas, where the organization's unorthodox methods were already drawing scrutiny from the press and state regulators. Kennedy was part of a group of parents and ex-clients who lobbied and raised hell to close the facilities, first in Texas and eventually in other states. "They operated like a cult," says Kennedy of Straight. "They would just brainwash these kids." The experience taught her a thing or two about her political party. "I used to be a conservative Republican," she says, "Now I just cringe when I see all of these church people voting for Bush."
Her introduction to the drug rehab outfit came by way of her daughter, who asked her to help locate a friend who worked alongside them at Dr. Kennedy's dermatology office. When the co-worker and family friend didn't show up for work one day, Kennedy's daughter feared that the young woman's family had made good on a threat to commit her to a Straight facility. She asked her mother to investigate. "She said, 'Mama, I need you to find her,'" Janet recalled. "She knew I'd be the one to drop everything and go find her friend. She knows that once I start a project, I don't stop until it's solved." Indeed, she ultimately located the friend and proceeded to jump through a number of bureaucratic hoops to spring the young woman from the facility.
At the Kennedys' divorce trial, even Bobby Joe spoke almost fondly of Janet's crusade to shut down the drug rehab centers, which ultimately led to the rescue of the family friend. "She decided that she would do her best to put them out of business because of their unscrupulous activity," he testified. "She didn't let up, and she accomplished it."
"I wonder what the Lord has planned for me next," Janet says, laughing. "There's no telling."
For now, though, she remains fixated on the land battle a battle that her ex-husband insists does not exist. "There is no land dispute," said Bobby Joe, who recently celebrated his fifth anniversary with his new wife, an English professor at Baylor University. "If there's a dispute, it's a figment of her imagination." Does he believe Janet will ever let go? "No," he said firmly.
Janet Kennedy acknowledges that her long-running feud has taken a toll on her health. She has high blood pressure, and the hot weather drains her of energy. Most of the monthly income she receives from disability (stemming from her depression growing out of the divorce) and a portion of her ex-husband's Naval pension go toward her court filings and to Kinko's, where she has paid for copies of thousands and thousands of pages of documents and transcripts.
Living hand-to-mouth on a limited income is a dramatically different lifestyle than the one she was accustomed to during her marriage. But she believes this is her calling. She continues to refuse her portion of the proceeds from the sale of properties and other assets. At her felony trial in June, a process server tracked her down at the courthouse and tried to present her with a $500,000 check. Few people would turn down a cool half million, but Janet Kennedy is no ordinary woman. The process server also had a stack of documents, which to Janet indicated that there were strings attached, such as the stipulation that she would drop the matter and get on with her life. "I don't care if he offers me $5 million, I'm not taking it," she said. "I want to reopen that divorce case and regain control of Alamo Ranch."
The long-running fight could well be her undoing. Her friend Ann Capps isn't so certain. Over the years she has witnessed Janet regain her footing after any number of horrendous ordeals. "Her spiritual foundation is solid," Capps says. "She trusts in the Lord to provide for her."
The other day, Janet Kennedy checked on her mail at a post office box that she maintains to ward off process servers showing up at her door bearing half-million dollar settlement checks. There she found a notice from the 3rd Court of Appeals that had arrived a few weeks earlier. She tore open the envelope and her heart sank. In an opinion written by Justice Jan Patterson of Austin, the appellate court rejected Kennedy's appeal of her fourth and last jail sentence in 2003. Just two weeks ago, Kennedy had filed a supplement to that appeal this time including the transcript of her recent felony trial. But she hadn't bothered checking her mail before making the trip Downtown to file the additional paperwork, she said, so she hadn't learned until afterward that her supplemental appeal had been rendered moot by the decision. "I'm just sick about this," she said over the phone, her voice cracking. She's contested so many aspects of the divorce case, it's hard to keep track of her appeals. But she had hoped that this particular filing would pan out in her favor. "Everyone tells me I can't win an appeal as long as I'm pro se," she said, referring to her own representation. "But no attorney is going to take this on for free."
The next day, Janet's spirits had lifted. There was still time to file for an extension, allowing her to appeal the latest opinion; she would ask the appellate court to consider the additional evidence the felony trial transcript anew. And, she said, her cousin from Albuquerque had just called from out of the blue. "She said, 'I'm putting a check in the mail for you,'" Kennedy recalled. "So I'm relieved about that. Now I can pay the court fee to file another appeal."