A Valentine's Gift from the Court of Appeals

“I want a man who's kind and understanding. Is that too much to ask of a millionaire?” Zsa Zsa Gabor
“Why do men chase women they have no intention of marrying? The same urge that makes dogs chase cars they have no intention of driving.” Anonymous
“Men are like a fine wine. They start out like grapes, and it's our job to stomp on them and keep them in the dark until they mature into something you'd like to have dinner with.” Anonymous

Ah, Valentine’s Day. That silliest of holidays, full of chocolate, roses and one billion valentine cards[1] mailed to our prospective clients by our prospective clients. What could be better? Hard to believe that it has been a mere five years since the Court of Appeals eviscerated our ability to put child support in an agreement and sent us scurrying to our malpractice carriers on St. Valentine’s Eve in that lovely little love poem, Tompkins County SCU v. Chamberlin.[2] And who could forget Hartog,[3] the Valentine’s Day gift of 1995, finding that merely showing up for a Board meeting or two pulls your brother’s company into the marital pot. Or how about Brady,[4] the Valentine’s Day gift of 1985, where Sol Wachler tied the marital knot around Ed Brady’s neck by requiring a high degree of proof in long term divorces. Say what you will about the Court of Appeals, they sure do have a sense of humor when it comes to men and Valentine’s Day. But wait. What is this? An apparition worthy of Marley’s ghost or King Hamlet or even Casper. Can it be true? A sight rarer than Haley’s Comet which comes every 76 years but last appeared in 1986, a full nine years after a living man[5] last won a case in the Court of Appeals in a matrimonial matter.[6] Wait no longer. Thanks to our own Bruce J. Wagner of Kew Gardens, New York an XY chromosome biped has carried the day in the Court of Appeals on Valentine’s Day, 2008. Remember James Spencer? This poor schnook had three lovely children in Connecticut with his bride Susan, and when the marriage went bad he settled matters by an agreement that provided support for his cherubs until age 18, the last day of child support obligation under Connecticut law. By the way, that’s the law in the majority of states of the union. However, that wily Susan took her kids to Albany County in search of a more favorable support statute. Why else move to the Empire State? The weather? As we all know, New York requires child support until age 21, so she sued for support on the 18th birthday of the oldest child. “Wait a New York minute,” said James. The Full Faith and Credit stuff of the Full Faith and Credit for Child Support Orders Act (FFCCSOA)[7] prohibits New York from changing the amount or duration of another state’s child support awards. Ergo, no subject matter jurisdiction. Not so fast, Jimmy boy. The Support Magistrate held that since your eldest son turned 18, there was NO support order for him so she was free to bang you for whatever she wished since it was a de novo application. After all, duration doesn’t really mean duration does it? Presto chango, your support went from $250 per week to $350 per week plus 75% of junior’s college education expenses (over $8,000 yearly from dad) plus $12,000 just for yucks as an undertaking in case you don’t pay. Boy, did that Tuts Weh, as they say in the Burgenland, but the Family Court Judge and the Third Department unanimously affirmed.[8] Thankfully the Court of Appeals granted leave and reversed in a thoughtful unanimous opinion by Chief Judge Judith Kaye. Finding that the language of the statute prohibits changing the duration or amount of another state’s order, she held that duration includes extending expired orders. The court was also persuaded by other states’ similar interpretations of expired orders. While hoping that a parent will step up to the plate to support a child over 18, the court found that New York is without jurisdiction to compel Mr. Spencer to so support his 18 year old son. It remitted the matter of recoupment, and one only hopes that Mr. Spencer is not squeezed by the “no recoupment of arrears” rule so favored by the Third Department. At least the bleeding has stopped.
We are all governed by rules of civility, requiring us to “maintain a respectful attitude towards the court.”[9] Unlike us, judges also have to be courteous, dignified and patient in their judicial capacity.[10] Therefore when one judge or Appellate Division disagrees with another, it is traditionally couched in terms of deference to one’s “learned brethren”, “fellow colleagues” or some such courteous nod to the dissenting or opposing judges. New York is not unique in this regard, and judges throughout the world recognize the need to maintain a sense of respect for the process of resolving disputes.[11] One New York judge in 1834 even apologized for disagreeing with his fellow judges writing, “In passing upon these appeals I am so unfortunate as to differ from my learned brethren of the supreme court.”[12] Therefore I was quite surprised to see the First Department take a swipe at my beloved Third Department late last year in Judith S. v. Howard S.[13] Great minds can disagree, but you need not chastise your fellow and equal members of the judiciary. The issue here was the ability to file objections to a Support Magistrate’s child support order within the 35 day period of Family Court Act §439(e). The Third Department has strictly construed the statute to bounce untimely Objections.[14] In their view, the time cannot even be extended by the general provisions of CPLR 2004, which allows for extension for good cause. The failure to file is jurisdictional. The First Department saw things differently, but rather than respectfully noting their difference of opinion, they said, “The Third Department seemingly misconstrued the emphasized words and ignored the clear breadth of the section [CPLR 2004], denying its application to time limits set forth in any statutes or regulations ‘other than those contained in the CPLR.’” Say what? Look guys, if you disagree, fine. But don’t tell our judges that they misconstrued or ignored anything, because they didn’t. Just politely state the difference and move on. Your collective wisdom is no better than any other Appellate Division, and if we start taking snipes at one another we are all lost. I know the judges in the Third Department cannot respond in kind, and they probably wouldn’t if they could. But I am not so limited, so let me just say that I do not appreciate any judge criticizing any other judge in a published decision. There is a better way to express your disagreement than this, and you make us all seem a little smaller by such discourse. So stop it.
Well, time to step off my soap box for another month. Erin Go Bragh, and of course happy National Frozen Food Month.

[1] The U.S. Greeting Card Association, God Bless them, estimates one billion valentines are sent to lovers everywhere, making it the second largest card sending day of the year, behind Christmas, of course.
[2] 99 N.Y.2nd 328 (2003).
[3] Hartog v. Hartog, 85 N.Y.3rd 36 (1995)
[4] Brady v. Brady, 64 N.Y.2nd 229 (1985).
[5] Of course we have to discount Mr. O’Connell who was allowed to cheat his wife out of any portion of the marital estate post mortem in Matter of O’Connell v. Corcoran, 1 N.Y.3rd 179 (2003).
[6] Christian v. Christian, 42 N.Y.2nd 63 (1977).
[7] 28 U.S.C. §1738B
[8] 35 A.D.3rd 980 (3rd Dept., 2006)
[9] 4 N.Y.Ct.Rules Pt. 1200, Appendix A.
[10] Code of Judicial Conduct, 22 NYCRR 100.3
[11] See for example, Throwing Stones: A cost/benefit analysis of judges being offensive to each other by Justice Keith Mason of New South Wales, Australia in 2007
http://www.courtwise.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_mason061007
or Judge Paul Friedman’s lecture on Civility and Judicial Independence in Federal Courts Law Review, 2002, Volume 4
[12] Hawley v. James, 16 Wend. 61, Court for the Correction of Errors of New York, 1826.
[13] 46 A.D.3rd 318 (1st Dept., 2007).
[14] Monahan v. Hartka, 17 A.D.3rd 758 (3rd Dept., 2005).

McCarney, The First Department and other things

“The old theory was marry an older man, because they're more mature. But the new theory is: Men don't mature. Marry a younger one." Rita Rudner

“The trouble with my wife is that she is a whore in the kitchen and a cook in bed”
Geoffrey Gorer (1905-1985), Anthropologist

“A lot of guys think the larger a woman's breasts are, the less intelligent she is. I think the larger a woman's breasts are, the less intelligent the men become.” Anita Wise


And I think to myself, what a wonderful world.[i] Really. After all, where can you claim that one cannot possibly make ends meet for child support and maintenance on a tad over $7,485,000 per year? Why jolly old London of course. Next time you are filling out that silly Statement of Net Worth form so favored by the wonks at OCA, think of dear Heather Mills, the Gold Standard of needs and wants. After all, I often say that no one costs more to feed than the clients of one of our favorite downtown Albany law firms, but even they are pikers compared to the modest and demure Ms. Mills. Just how do you get there? Let’s start with the niggardly sum of $69,000 per year for helicopters for vacations. Or how about the seven full time housekeepers ($128,000) or my personal favorite: just shy of a quarter mil per annum for clothes. Like I say, it’s a wonderful world. Unfortunately, Mr. Justice Bennett wasn’t buying it and awarded her only a fraction of that to keep body and soul together, saying, “If, as she has done, a litigant flagrantly overeggs the pudding and thus deprives the court of any sensible assistance, then he or she is likely to find that the court takes a robust view and drastically prunes the proposed budget." Man would I like to see the Third Department write something like that some day. Overegg the pudding?
Into this surrealism wandered Allan Chapin the other day, and the First Department gave us a doozie just in time for Easter.[ii] Do you know him? He’s a former partner in Sullivan and Cromwell, one of the largest law firms in the world, founded in the 19th Century. Of course, he gave up that lucrative gig when his marriage Numero Duo went sour. Who wouldn’t? It seems Mr. Chapin and Ms. Janet Johnson married in the Episcopal Church of Heavenly Rest[iii] in NYC and nine months and one hour later had a bouncing baby boy. Within three years Janet quit her job as a lawyer for the Walt Disney Company (of course) and Allan kept earning about $2.1 million yearly at S&C and after that the investment bankers Lazard Freres & Company. He also had a tidy income from being on a bunch of corporate boards and was an adviser to my beloved Toronto Blue Jays. So, what does such a Captain of Industry do in his spare time? What they all do: renovate a country home in Claverack, New York, a dippy little town in Columbia County best known as the home of Ollie North.[iv] Mr. Chapin owned the farm before he married Ms. Johnson, but sank $1.9 million into the property to increase its value a little less than $1.6 million. What a financial genius. In any event the trial court gave her half the increase which was reduced by the First Department to 25% because of passive appreciation I guess. They do not really explain that rationale, but she did after all order pizza and coffee for the renovation workers. Here’s where things got really squirrelly. It seems that Allan owed his first wife some money pursuant to his divorce judgment, namely $584,000 in maintenance and $690,000 in equitable distribution for a nice total of $1,274,000. Being the good spouse, he paid it all during the marriage to the former Mrs. Chapin. So when it came time for Equitable Distribution, the current Mrs. Chapin aka Janet Johnson made the rather silly argument: “Wait a minute. If he hadn’t paid the $1.2 million to the first Mrs. Chapin, then we would have had an extra $1.2 million in our marital estate. Yeah, I knew about this obligation when I married him, but so what? Give it back to me, or at least half. Please. Pretty please.” Well, Dammit Janet, there’s a fire in their heart and you’ve fanned it. So they reduced Allan’s separate property credits by half or over $600,000 and slid that over to Janet’s half of the equation. Wow!
Remember last week when I asked the First Department to lay off my beloved Third Department when writing a decision that not so respectfully disagreed with their Northerly brethren? Well, maybe they took the article to heart but the venom spilled over their black robes into this decision in the form of the majority opinion and the dissent by Mr. Justice James McGuire, a Pataki gift from Queens to the First Department in 2006. He was joined by Mr. Justice David Friedman, no relation to my learned brother of the same name. Putting aside the snide remarks the majority foisted on the dissenters, the heavily footnoted dissent sent shivers through my spine in its excoriation of the majority, however wrong they may be. Here is a sample: “I respectfully disagree with virtually everything the majority has to say… The majority's assertion that Ms. Costello ‘gave testimony which supported [the wife's] position’ is breathtakingly wrong… Not surprisingly, the majority offers nothing by way of an attempt to respond to any of the points I make regarding its erroneous reliance on the CFO's testimony… The majority does not and cannot dispute this critical fact. Indeed, the majority ignores it.” Boy, I would have loved to be in the room when this baby was argued by the Court. Given the two judge dissent, one can only wonder what magic the Court of Appeals will work with these facts. Did I mention that Allan had to pay $800,000 of Janet’s legal fees? Just slipped my mind I guess. Not bad for a 14 day trial. I really must be doing something wrong.
In any event, aside from the juicy stuff about child support and maintenance, the really novel idea here is to get a credit for half of a spouse’s premarital debt paid during the marriage. How ‘bout them student loans? Pay them during the marriage, and get them back at the end. Dammit, Janet, it really is a wonderful world.
I know the Office of Confused Adults has little money for judicial pay raises and the like, but who came up with the idea to put little numbered labels on everything in the courthouse? Have you noticed that every chair, flag stand, telephone and bauble has a new label with the words “Office of Court Administration, ___ Judicial District, No.___” pasted on the personalty. I wonder if the robes and shoes of the judges have numbered labels. Isn’t there something better these guys can do?
By the way, is the Third Department becoming a wholly owned subsidiary of the Third Judicial District? We now have four new judges and three are from the Third District giving us 2/3 of the App Div and further depleting our trial bench with the loss of Justice Stein. Can’t the other two districts chip in a judge or two to balance things out?
Happy Conch Republic Independence Day, the only place where this all makes sense.

[i] Of course, with a tip of the hat to Bob Thiele aka George Douglas and George David Weiss. Did you know Clear Channel made the song persona non grata just after 9/11?
[ii] Johnson v. Chapman, __ A.D.3rd __ (1st Dept., March 13, 2008)
[iii] For those of you who accuse me of making this stuff up, see The New York Times, January 13, 1991. I’ll lend you my copy.
[iv] The most famous graduate of Ockawamick High School.