November Divorce stuff

“We had different needs. I needed him to treat me decently and get a job, and he needed to empty my bank account and leave." Helen Slater (1963-) U.S. actress
"In our family, we don't divorce our men - we bury them."
Ruth Gordon (1896-1985) U.S. actress
"Nine o'clock and Mr. Excitement here is in bed, and I'm watching Desperate Housewives with Lynne Cheney. Ladies and gentlemen, I am a desperate housewife." Laura Bush (1946-) librarian

These are truly the halcyon days for matrimonial lawyers. We are all over the news with the latest tidbits on the divorces of Britney/Federline, Chris Evert, Chris Rock, Sir Paul, Reese Witherspoon, Kate Hudson, Whitney Houston, Zellweger/Chesney, etc. You can’t watch CNN or Fox News for more than 60 minutes without Raoul Felder[1] or some other divorce wank spouting off on the 60 page prenup buyout of KFed aka FedEx and his threat to take custody to squeeze a few more shekels out of America’s Sweetheart. Even Forbes Magazine last month had a front page article on “Divorce Dirty Tricks (How Hiding Assets is No Longer a Tycoon’s Game)”, describing of course the way tycoons hide assets. It featured a really scary picture of a bald scowling lawyer who looked like a mad dog named Joel (Mad Dog) Weissman. Is there any better time to be a divorce lawyer with the cocktail party season upon us? I think not.
But before we let all this fame and adulation go to our heads, let’s get a dose of reality from the Appellate Divisions. The first comes in the form of a non matrimonial case. I venture out of the field when something comes up that is important to us as practitioners, and certain cautionary tales can be found in some pretty obscure places. In this case that place is the Court of Claims. As we all know, sometimes we can get frustrated with opposing counsel. However, one should never lose sight of the goal, i.e. the attainment of your client’s objectives within the bounds of the law. Otherwise, we all look bad, and then everyone loses faith in the ability of the system to function. Once the client is exposed to the squabble, then all is lost. Such was the case in Dworkin v. State of New York[2] where an Assistant Attorney General saw fit to write in an affidavit opposing a discovery motion that, “The general tone of his motion papers seems to suggest a level of instability and paranoia on his part.” I beg your pardon? Did you really write that? The claimant’s attorney unsuccessfully moved for sanctions in the Court of Claims. Not being satisfied, he sued the State of New York for defamation. The Court of Claims dismissed the case as the statements of counsel were absolutely privileged, and the Third Department affirmed, but not before calling the comments intemperate. Me? I’d call them stupid and unprofessional. This is just a sad chapter in an otherwise legitimate dispute that needed to be resolved civilly in a court of law.
As long as I’m on my soapbox, is there something wrong with the Second Department? Have they lost interest in things, or are they just too tired to write on some matters? While I may disagree with the Third Department from time to time, at least they tell us the issues, the facts and why they are deciding a certain way. No such restraint limits the Second Department, where they made the following two matrimonial decisions recently, and I’m quoting the full text of both decisions for your reading pleasure: “Under the particular circumstances of this case, the Supreme Court properly dismissed the plaintiff’s cause of action for a divorce on the ground of constructive abandonment.”[3] “In view of the defendant’s appropriate concession, he is not entitled to a credit against child support for college tuition. The parties’ remaining contentions do not require further modification of the judgment.”[4] Look guys. The purpose of an appellate division is to tell us grunts in the trenches how to advise our clients on legal issues so we can get matters resolved. If all you wanted to do was to tell who won or lost, you should not publish your decisions in the Law Journal or anywhere else. Just send a letter to counsel. I know it’s a lot to expect for $136,700, but try to let us know what’s going on, if not for us, for our clients.
OK, enough of that. How about a little substance? Under Article 8 of the Family Court Act, a court can award attorneys fees to be paid as part of an Order of Protection. We also know that an attorney is supposed to have and file a written retainer agreement and to send an itemized bill at least every 60 days. The failure to comply results in the inability to recover fees[5]. So, if a lawyer does not comply, can the offending spouse raise the failure in a family offense proceeding? Nope. You see the obligation to comply with the filing of retainers and other provisions are in 22 NYCRR §1400.2 and §1400.3 and apply to actions described in 22 NYCRR §1400.1. Surprise, surprise, but a Family Offense proceeding is not such a lawsuit and therefore the court can award the fee even if there is no compliance with the rules. Thank you, Second Department, for explaining that one at least.[6]
Finally, did you happen to catch the election results from North Dakota? No? It seems the good folks in the Flickertail State defeated a statewide initiative to mandate joint custody and equal time sharing in custodial disputes unless there was clear and convincing evidence of parental unfitness. It also held that child support will not be greater than the actual cost of providing for the basic needs of the child. While it is notable that the initiative was defeated, at least there was a referendum on the issue, whereas the New York State Legislature can’t even find a way to get such a bill out of committee.
Happy Kwanzaa everyone, and to all a good night.
[1] Author of one of the most useless books on matrimonial practice, Encyclopedia of Matrimonial Practice, but hey, what do you expect from a divorce lawyer who wrote Guide to New York and Los Angeles Restaurants with Jackie Mason?
[2] __ A.D.3rd __ (3rd Dept., November 16, 2006), case 500479
[3] Greenspan v. Greenspan, __ A.D.3rd __ (2nd Dept., Halloween, 2006)
[4] Keating v. Keating, __ A.D.3rd __ (2nd Dept., October 24, 2006)
[5] Wagman v. Wagman, 8 A.D.3rd 263 (2nd Dept., 2004)
[6] Grald v. Grald, __ A.D.3rd __ (2nd Dept., October 24, 2006)