Valentine's Musings

“Valentine's Day is when a lot of married men are reminded what a poor shot Cupid really is.” Anonymous

“I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.” J. Edgar Hoover

"If you're given a choice between money and sex appeal, take the money. As you get older, the money will become your sex appeal." Katherine Hepburn

Here’s some food for thought. About 20 percent of divorces in Australia are commenced in January.[1] In Britain, the divorce lawyers call January 1 “D (as in Divorce) Day.” Similar statistics are found in South Africa where January is called “Divorce Month.” By the way, the top reasons for divorce in Great Britain are (a) adultery, (b) abuse, (c) boredom and (d) lack of sex, in that order. Makes me wonder why we don’t make boredom a new cause of action in DRL 170, somewhere between abandonment and imprisonment. Oh, well. And a recent Gfk Roper[2] poll found that women divorce over abuse and men divorce over sex, or the lack thereof. In America boredom is a distant fifth among the reasons to divorce, at a paltry 12% compared to those ennui driven Brits at 29%.
That being said, let’s see what little treasures our Appellate Courts have given us for the New Year. Fault continues to be at the top of everyone’s resolution list, and the Third Department continues to be somewhat more liberal in granting divorces than their downstate brethren. Case in point: James Dunne who was asked to leave his home because of the misuse of medicines and alcohol.[3] His wife moved him into an apartment, and refused to allow him to come home for over one year. Although he stopped drinking and controlled his medications, she told him he could come home only if he was drug free. This was enough for a constructive abandonment divorce because his wife had placed an “unreasonable condition as a term of their relationship.” Who hasn’t? Compare that with Tricia Justin,[4] whose cruelty divorce was tossed by the Second Department for lack of proof, in spite of the trial court’s findings. Why? Who the hell knows? We’re talking Second Department here, so after stating a few platitudes about long term marriage, high degrees of proof and repeating the statute, they said, “Accordingly Supreme Court improperly granted the divorce.” Thanks guys.
Just in time for the New Year the Third Department gave us their own little version of Catch 22. Sometimes you just can’t win, as in the rule of support recoupment. If you get banged by a high temporary order and pay it, you cannot get the money back even though the final order is retroactive to the date of commencement of an action.[5] You cannot even get a credit against equitable distribution for overpayments.[6] So what do you do? If you pay under the order, you cannot get the money back or a credit. If you do not pay, you are in violation of a court order. It makes lawyering a little tricky as we can never advise any client to ignore a court order. This was the dilemma of Norman Rosenberg. When faced with a motion for temporary maintenance, he claimed to have taken a vow of poverty and to have no assets. Nice try, but the judge hit him for $2,500 per month temporary maintenance in November of 2004. Being poor of course, he paid nothing on the order. In 2006, Norm’s wife Eileen aka Leeny, became the beneficiary of a trust upon her father’s death paying her, ironically, about $2,500 per month. Norm promptly moved for modification and the court eliminated his maintenance obligation in August of 2006. “Wait a minute here” said poor Norm. “Final orders are to be retroactive to the date of commencement, so I shouldn’t be banged for the $55,000 in arrears that accumulated between November 2004 and August of 2006.” Sorry, Norm, but the Third Department saw things differently.[7] Since he made no payments on the temporary order, he gets no reduction since he “willfully flouted” the order, vow of poverty or no vow of poverty. Of course this begs the question, “Just how much bling would Norm have to pay to insure he gets the retroactive reduction without falling into the no recoupment trap of those who pay it all and get no credit?” Beats me.
How about another Christmas gift from the Third Department. I have often said that if you give ten judges the incomes of the parties and ask them to calculate what the CSSA “would have been,” you would get ten different answers. But that is exactly what is required by the statute if you are going to deviate from the “basic support obligation.”[8] The failure to include such provisions renders the agreement void. So, what if you screw up, and miscalculate the amount of basic support? All is not fatal, as the Third Department held in Sullivan v. Sullivan.[9] Here the deviation mistake was only $48 per month and resulted from the failure to deduct maintenance from income prior to applying the CSSA percentages and the Third Department let that one slide. I am sure that brought a sigh of relief to the payor spouse as well as the malpractice insurance carrier of the drafting attorney.
On the same sex marriage front, we are all anxiously awaiting the first New York divorce case based on a marriage or civil union of another state. Will comity prevail and allow our courts to divorce and equitably distribute property of married gay and lesbian couples, or will public policy or some other rationale close the courthouse door to such couples? Rhode Island has already weighed in on the issue, refusing to grant a divorce to a Rhode Island lesbian couple who were legally married in Massachusetts.[10] So a glimpse of the future came from the Third Department in a Workers Comp case of all things. In a full opinion in Langan v. State Farm Fire and Casualty,[11] the court dismissed the comity and Equal Protection claims of a “committed domestic partner” who sought death benefits following the death of his spouse, Neal Conrad Spicehandler. The parties had entered into a civil union in Vermont in 2000, and Vermont law gave them the right to obtain comp benefits as though married. The claim was dismissed as the comp judge found no standing in the domestic partner and the Appellate Division affirmed. Justice Rose dissented, and I hope this finds its way to the Court of Appeals.
Speaking of which, remember the Farkas[12] case? There, the First Department threw out a $750,000 judgment against a spouse for failure to file within the 60 day time limitations of 22 NYCRR 202.48. Thanks to a two judge dissent, the Court of Appeals has now granted leave so stay tuned.
Finally, welcome home Justices Kavanaugh and Malone, who have returned from exile in the First Department to finally serve those who voted for them in the first place.
Happy Valentine’s Day, and for all of my Canadian fans, Happy National Lactose Intolerance Awareness Month.
[1] Sydney Morning News January 12, 2008
[2] Gfk Roper is really a consumer research organization, which really makes me wonder why they are interested in the reasons for divorce. Must be a buck to be made somewhere.
[3] Dunne v. Dunne, __ A.D.3rd __ (January 10, 2008).
[4] Justin v. Justin, __ A.D.2nd __ (January 8, 2008)
[5] Fox v. Fox, 306 A.D.2nd 583 (3rd Dept., 2003), appeal dismissed 1 N.Y.3rd 622.
[6] Redgrave v. Redgrave, 25 A.D.3rd 973 (3rd Dept., 2006).
[7] Rosenberg v. Sacks, __ A.D.3rd December 27, 2007.
[8] Domestic Relations Law Section 240(1-b)(h)
[9] __ A.D.3rd __ (3rd Dept., December 20, 2007)
[10] Chambers v. Ormiston, Decision 06-340, December 7, 2007, a day which shall live in infamy.
[11] __ A.D.3rd __ (3rd Dept., December 27, 2007).
[12] 40 A.D.3rd 207 (1st Dept., 2007).