October Divorce Stuff

“If variety is the spice of life, marriage is the big can of leftover Spam” Johnny Carson, American TV Host, 1925-2005 "Just another of our many disagreements. He wants a no-fault divorce, whereas I would prefer to have the bastard crucified." J.B. Handlesman, illustrator.
“My mother always said don't marry for money, divorce for money.” Wendy Liebman
Ah, fall, when the leaves and matrimonial decisions start falling from the skies and the Third Department website, respectively. At last the doldrums of summer are over, and we can learn what is happening on the fifth floor of the new and improved Justice Building.
What’s this? Another fault decision? Why not. In a really long term marriage (33 years) the App Div (as the cognoscenti call them) upheld the granting of a divorce to a wife who moved from the marital residence in 2000. Now we all know that a “high degree of proof” is necessary in such cases, otherwise known as the Shackles of Brady[1] and Hessen[2], which is somewhere between the kidnapping of Cerberus and the scattering of the Stymphalian birds among the Labors of Hercules. What was the offending conduct here? Lack of communication, isolation, name calling, controlling behavior, failure to end a relationship with an alleged paramour[3], and refusal to attend marriage counseling. This constituted a “systematic pattern of emotional neglect” to give a divorce to Mrs. Freas[4]. In short, not much. It all goes to show you that one judge’s dead marriage is another judge’s cruelty, so you just never know. All this was too much for Justices Crew and Mugglin who dissented[5], leaving the delicious prospect of going to the Court of Appeals as of right. This case does seem make it easier to prove fault. Unlike the late great Justice Edward Conway who once said that he never found fault in a contested divorce, but never failed to find it in an uncontested one. Amen. Freas is also an interesting maintenance case, because the husband came down with a bad case of RAIDS (Recently Acquired Income Deficiency Syndrome) when the summons was served. His income went from $57,000 to $39,000 because of a “voluntary change in his work shift”. The wife earned $17,000 per year and the Third Department upheld her award of $450 per month until she attains an age of 62, a rather modest sum.
By the way, kudos to Presiding Justice Anthony Cardona for making custodial decisions understandable by referring to the litigants as mother and father rather than Appellant, Respondent, Petitioner, Appellant-Respondent, Respondent-Appellant, etc[6]. I had to read a recent custodial decision three times to figure out who won, and even then I had to call one of the attorneys to be sure I read it right. The case is Williams v. Boger[7], where the Petitioner at the trial level was the Respondent on appeal (but referred to as the Petitioner in the decision) and the Respondent at the trial was the Appellant on appeal, but referred to as Respondent in the decision. You try to figure it out. In any event, this case uniquely struck language from the decision giving the primary custodial parent final say on major issues because that is “antithetical to the concept of joint legal custody”. Huh? If no one can make a decision without a joint agreement, it is but another boon to matrimonial lawyers with children in college, but an expensive proposition for those who enter into joint custodial agreements with a parent who is difficult. For the most part, the primary parent makes the decision, but not anymore in the Third Department. I guess we’ll be going to court to see where Johnny goes to daycare, whether he joins the cub scouts or takes tuba lessons. God help us.
If all this seems a little silly, consider our Legislature, which couldn’t pass a no fault bill but did amend the Order of Protection statutes to allow a court to impose a provision “to refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household”[8]. It must have been a slow day in the Capitol when they debated that baby. By the way, there is at least one decision that holds that goldfish (Carassius Auratus) of all things are “companion animals”[9]. I kid you not.
Finally did you see the World Health Organization did a comprehensive study of violence against women, interviewing over 25,000 women in ten countries? In concluding that violence against women crossed rural and urban areas as well as developed and developing nations. The safest place for women? Yokohama, Japan with a partner violence rate of ONLY 15%. The highest was rural Ethiopia with 71%. Our statistics put us at about 25%. With numbers like this, one hopes that the Legislature does more than add goldfish to those protected by our domestic violence statutes.
[1] 64 N.Y.2nd 339 (1985)
[2] 33 N.Y.2nd 406 (1974)
[3] The alleged trollop testified at the trial that she wanted to have sex with Mr. Freas, but they never really did it.
[4] Freas v. Freas, __A.D.3rd __ (Case 97400 decided October 19, 2006).
[5] Peters wrote the opinion in which Cardona and Spain concurred.
[6] Eck v. Eck, __ A.D.3rd __ (Case 98388 decided October 19, 2006).
[7] __ A.D.3rd __ (Case 98832, October 19, 2006)
[8] Family Court Act §842, among others.
[9] People v. Garcia, 29 A.D.2nd 255 (1st Dept., 2006). The normally taciturn First Department, who usually say NOTHING in their decisions, traces here the history of goldfish as domesticated pets in the Tang Dynasty in China through the Ming Dynasty and the first aquarium in London in 1853. They then cite an 1854 poem by Cecil Alexander titled “All Creatures Great and Small”. I’ll spare you the maudlin schmaltz, but our Third Department should never take any guff from those guys when it comes decision writing.