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).