New Year New York Divorce

"There is nothing safe about sex. There never will be." Norman Mailer
“Women might be able to fake orgasms. But men can fake whole relationships.” Sharon Stone
"Sex at the age of eighty-four is a wonderful experience. Especially the one in the winter.” Milton Berle

Sometimes life is tough. Take German jewelers for example. There is a major downturn in the wedding band business because divorce and cohabitation are so prevalent. Things could be worse however. You could be Mahmud Hamisu from Nigeria who was sentenced to a year in jail and 100 strokes of the cane for adultery.[1] That seems a lot worse than having to cough up a few bucks doesn’t it? Maybe not. Case in point: Jerry Fitch, Sr. It seems Mr. Fitch was smitten by his comely employee, one Sandy Valentine, a plumber’s wife. One thing led to another and Mrs. Valentine became pregnant. A bouncing baby boy was born, and the aforesaid plumber, Johnny Valentine, became suspicious. DNA confirmed that no plumbing genes were carried by the child, and Johnny and Sandy separated and ultimately divorced. Jerry then married Sandy. Did I mention this took place in Mississippi? Well it did, and Johnny sued Jerry for alienating his wife’s affections, a cause of action long since outlawed in New York and 41 other states.[2] A jury saw it Johnny’s way and awarded $642,000 in actual damages and $112,000 in punitive damages. Ouch. The case was affirmed all the way to the Mississippi Supreme Court, and Antonin Scalia is now considering whether leave should be granted by the United States Supreme Court on constitutional grounds, based on the anti-sodomy case of Lawrence v. Texas.[3]
All this brings me to the bad karma visited on poor Norman Wechsler, the victim of a First Department decision[4] so diabolical it would make Joseph Heller smile. Like Jerry Fitch, he was smitten with an employee and eventually married her. You might remember Norm as the guy who could not get a stay of $450,000 in legal fees awarded to his wife while his appeal was pending because of the “discretion” of the trial judge.[5] Norm owns Wechsler & Company, Inc., an investment firm. Its assets consisted of securities worth $80.7 million. If sold, they would generate $51.1 million after taxes. However, the trial judge found this figure ridiculous since the company paid an average of only 11% in capital gains taxes as it could write off gains against loses. Ignoring that a marital distributive award was hardly the kind of business sale that could be easily written off, the trial justice found the business was worth a hefty $71+ million and awarded her half after first crediting Norm with $5 million as his separate property contribution. This makes me wonder why the trial judge pounded Norm for $430,000 in legal fees since the wife could easily pay that from the $35+ million she was receiving in the business award plus an additional $27.3 million of “other assets”. Of course the whole thing could have been avoided had the trial judge awarded Mrs. Wechsler her share of the stocks outright since such transfers are capital gains tax free to Mr. Wechsler[6] and the wife could decide when and where to sell and pay the capital gains. Maybe that was too simple so Mrs. Wechsler received some assets and securities and a distributive award of over $22 million payable in 60 easy payments of $379,510.50 per quarter. Oh yeah, since that won’t be enough for Mrs. Wechsler to maintain her lifestyle, he also has to pay monthly maintenance of $46,666 until he transferred certain assets. Enough to hold body and sole together. All this was too much for Norm so he left town on the next flight to Colorado and was ultimately held in contempt for failing to pony up. When he finally got his appeal before the Second Department to address the travesty of this mess, the Second Department threw him out faster than you can say Milo Minderbinder. Why? Fugitive disentitlement. You remember that nice principle from our Third Department Skiff-Murray[7] decision where an appeal was dismissed because Mr. Murray skipped town and failed to comply with the judgment. It is the ultimate Catch-22 because if a decision is manifestly unfair, you cannot get your appeal decided unless you comply with the decision. Makes sense to me. Applying these principles to poor Norm, his appeal was tossed unless he posted an undertaking of $9,151,920.57. Don’t forget the 57¢ Norm.
Here’s a new idea, fresh from the Second Department. In figuring out how much child support and maintenance a spouse has to pay, you should consider the reasonable living expenses and debts of the payor spouse. Really? Where did that come from? In Silver v. Silver[8], the Appellate Division actually lowered a pendente lite maintenance award from $1,700 per month to $650 per month and child support from $2,500 per month to $950 per month.[9] They also slashed the counsel fees from $10,000 to $3,762 because of the “equities of the case and the financial circumstances of the parties.” What a novel idea! The Second Department also gets the Mike Friedman’s 2007 Sentence of the Year Award, narrowly bumping off the eloquence of the First Department with this little ditty in the Silver case: “As a general rule, we do not consider an issue raised on a subsequent appeal that was raised on a prior appeal or could have been raised on a prior appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do.” If that’s the general rule, I’d like to see the exception!
As if that wasn’t bad enough, the Second Department gave us a chilling little Christmas present called In re Bruno[10] where an attorney was suspended for two years for improperly responding to disclosure in a matrimonial case. It seems that Counselor Bruno received Interrogatories and responded by saying that his client’s business “went under” and the records were in the possession of the wife. It was subsequently discovered that the husband/client’s business received $105,000 in checks payable to Mr. Bruno as attorney for the business. Oops. Although sanctions against Mr. Bruno were denied by the trial court, the Second Department lifted his ticket for two years. While this might be a proper decision given Mr. Bruno’s extensive past disciplinary history, it does seem to open a panoply of problems for matrimonial lawyers in disclosure issues that are clearly privileged and often ambiguous. Hopefully this will not start a trend of disciplinary claims of what we know and when we knew it.[11]
Finally, kudos to the Third Department for affirming a $325,000 personal injury award to a father who was falsely accused of sexual abuse of his child by his mother-in-law. In Brefka v. Dobies[12] a jury found that the resulting supervised visitation, emotional strain and being forced to resign as a physician and relocate was worth $225,000. Dr. Dobies was also awarded special damages of $50,000 in legal fees and $30,500 in punitive damages. All sums were upheld on appeal. You might leave this decision on the dinner table the next time your mother-in-law mouths off about your failings as the husband of her perfect child or the father of her perfect grandchild.
Happy New Year to all, and to all a good night.
[1] However, the adulteress was set free because of her “mental state”.
[2] New York passed an alienation of affection law in 1864, but abolished it as a cause of action in 1935 by passage of 80-a of the Civil Rights Law.
[3] 539 U.S. 558 (2003). The entire sad stay application can be found here:
http://www.scotusblog.com/wp/wp-content/uploads/2007/10/10-18-07-motion-for-stay-ussc.pdf

[4] Wechsler v. Wechsler, __ A.D.3rd __ (November 27, 2007)
[5] Wechsler v. Wechsler, 8 Misc.3rd 329 (Sup.Ct. New York County, 2005)
[6] If you don’t believe me, take a gander at Section 1041 of the Internal Revenue Code.
[7] Matter of Skiff Murray v. Murray, 305 A.D.2nd 751 (3rd Dept., 2003)
[8] __ A.D.3rd __ (2nd Dept., December 11, 2007)
[9] The court did continue the obligation of the husband to pay the carrying charges on the home, generally not awarded in addition to child support in final orders.
[10] __ A.D.3rd __ (2nd Dept., December 4, 2007)
[11] For those of you old enough to remember this phrase, it comes from Tennessee senator Howard Baker in the famous Watergate Hearings. You could look it up.
[12] __ A.D.3rd __ (November 8, 2007). You might remember the Brefka v. Dobies trials and tribulations in numerous appellate cases in 273 A.D.2nd 776 (3rd Dept., 2000) leave dismissed 95 N.Y. 931 (2000) and 271 A.D.2nd 876 (3rd Dept., 1999) leave dismissed 95 N.Y.2nd 931 (2000) and 271 A.D.2nd 876 (3rd Dept., 2000).