November 2007 Divorce Stuff

"Marriage is one of the few institutions that allows a man to do as his wife pleases." Milton Berle
"Do not marry a man to reform him. That is what reform schools are for." Mae West
“It's a marriage. If I had to choose between my wife and my putter, well, I'd miss her.” Gary Player
As we all now know, childrens do learn.[1] However do lawyers learn? Of course we do, since we have the appellate courts to tell us what is right and wrong. For example, the Fourth Department recently told us that a Family Court Judge cannot order a woman NOT to become pregnant. Wow. In Matter of Bobbijean P.[2] Monroe County Family Court Judge Marilyn O’Connor handled a neglect proceeding of a child whose parents were cocaine addicts, and therefore the child was addicted at birth. After initially appearing, the mother failed to appear and the court entered an order of neglect followed by the following part of the Dispositional Plan: “The respondent shall not get pregnant again until and unless she has actually obtained custody and care of Bobbijean P. and every other child of hers who is in foster care and has not been adopted or institutionalized.” She had three such children. A similar order bound the father. Although there has been a great expansion of the powers of Family Court in the past decade, this was too much for the Fourth Department and the order was reversed. Although the Family Court Act allows a court to design reasonable terms and conditions, you cannot direct a woman not to become pregnant. Not now, not ever. The law guardian weighed in on behalf of the lower court decision, arguing that the direction concerning pregnancy was encompassed within “medical treatment” authority of the court rules, but I hardly think sexual intercourse can be termed a medical treatment except among the most jaundiced of scalawags. However, you cannot blame Judge O’Connor. After all, the Office of Court Administration has openly encouraged the courts to go beyond the bounds of thier limited jurisdiction, from proposing social workers to mandating parental education as a means of teaching the hoi polloi how to behave. By the way, Judge O’Connor is the mother of academy award winner Philip Seymour Hoffman, who brilliantly portrayed Truman Capote in Capote and of course Brandt in The Big Lebowski. You see? Celebrities are everywhere.
Speaking of which, under the “What Were You Thinking” file comes the matter of poor Irwin Selinger. It seems he had a prenuptial agreement that provided what’s mine is mine and what’s your is yours, “including gifts of land to the other as long as the gift was either evidenced in writing or such records or the title of the donated property must have been changed into the name of the donee party." As we know, gifts between spouses are still marital, but a prenuptial trumps this definition. So Irwin sold his home in his own name which was clearly premarital and separate property, and bought a home in Long Island in the name of his darling wife Alicia Zizzo Selenger. In upholding Alicia’s motion for summary judgment that she gets to keep the cool $3.4 million realized from the eventual sale of the home, the First Department in Selinger v. Selinger[3] rejected Irwin’s myriad of arguments to get the money back. Although there was no writing saying it was a gift, and Irwin certainly testified he never, ever, ever intended to make a gift of the property to his wife, she kept the bling because “neither the parties' valid prenuptial agreement nor New York law requires that a gift of land from a husband to a wife be evidenced by a writing explicitly stating the husband's intent.” So, what was he thinking? Of course, the First Department doesn’t tell you the “Rest of the Story”, as Paul Harvey calls it, but I will. Irwin was the Chief Executive Officer of Graham-Field Health Products, a Long Island firm employing over 2000 people in the mid-1990’s. The company distributed wheelchairs, blood pressure machines and the like, but ran into fiscal problems. Just prior to filing bankruptcy, Irwin cooked the books in an attempt to sell the company and he was convicted of securities fraud and sentenced to 18 months in prison. Ergo the transfer to his wife. No, he may not have intended to make a gift. He may have intended to get the asset out of his name until things could cool down, but lady luck and the Domestic Relations Law interfered to enrich the former Mrs. Selinger to the tune of millions of dollars. As Sir Walter Scott said, “Oh what a tangled web we weave when first we practice to deceive.”
Remember last month I wrote about the sad case of a litigant who was awarded $250,000 in legal fees only to have the First Department yank it away? Of course you do[4]. Well not to be outdone, the Second Department has decided to strip an award of $159,000 in expert and attorneys fees in Griggs v. Griggs[5]. The reasons? The wife received a ton of money in equitable distribution including 35% of Dr. Griggs’ medical practice, even double counted the income in maintenance because of the Court of Appeals unique view of the world last year in Keane[6], and because she misrepresented her income to enhance her support claims. So there.
Finally, the latest census statistics show that first marriages last about 8 years and parties separate after 7 years, giving credence to the famous itch. But if the falling divorce rates here give you pause, you can always move to Belgium, home of great beer and a 71% divorce rate.
Until next time, Tot ziens.

[1] Called by the White House a grammatical error, but of course using the plural form by saying a word that does not exist is hardly a grammatical error.
[2] __ A.D.3rd __ (4th Dept., September 28, 2007)
[3] __ A.D.3rd __ (1st Dept., October 4, 2007)
[4] Warner v. Houghton, 43 A.D.3rd 376 (1st Dept., 2007)
[5] __ A.D.3rd __ (2nd Dept., October 9, 2007)
[6] Keane v. Keane, 8 N.Y.3rd 115(2006) finding it permissible to award the same money twice if you are distributing a practice even if the value is a capitalization of earnings, as opposed to enhanced earning capacity.