When you talk to matrimonial lawyers in other states, they marvel at our peculiar practices. Fault divorces, let alone jury trials for fault divorces, always raise an eyebrow or two. Then you explain about enhanced earnings,[1] child support to age 21 including college contributions,[2] no recoupment of child support overpayments,[3] double dipping of child support and enhanced earnings[4] and guideline recalculations every two years in spite of agreements to the contrary.[5] No one believes you. So, I was not surprised to learn that other states have more progressive rules about custodial access, known as visitation in the Domestic Relations Law.[6] After all, if there are Child Support Guidelines, why not Parental Access Guidelines?
Our child support guidelines are the product of national child support enforcement regulations, essentially mandating that state legislatures have some standards for the determination of support.[7] There is no such impetus from Congress or the New York Legislature for parental access guidelines. The Melonas Commission and the 2006 Matrimonial Commission[8] did not address this issue among the myriad of suggested reforms. However, other states and municipalities have addressed these issues in an effort to set minimum standards of access and to avoid protracted litigation over such trivial issues as times for pick up and drop off, and standards for telephone access and clothing exchanges. The Third Department determined custodial schedules a few years ago in overruling minimal alternating weekend access in favor of more expanded midweek and full weekend access.[9] However, such cases are few and far between and are often the product of specific circumstances.[10] There are no generally recognized standards for parental access in New York, leaving it to judges to fashion schedules based on their own proclivities, experiences and prejudices. Appellate Courts are loathe to overturn a parental schedule, leaving such awards to the “sound discretion of the trial judges.”[11] At best, visitation schedules are remanded to the trial court to fashion an appropriate schedule.[12] Experts can provide no help as there is little scientific evidence to suggest that trained professionals have the expertise or training to establish parenting schedules.[13]
For the most part, the custodial guidelines of other states grant minimal access to noncustodial parents. In excruciating detail they deal with access for very young children, holidays, telephone calls and clothing exchanges. The Arizona Model Parenting Guidelines[14] breaks it down into three to four year intervals of a child’s life, and all require that the parents live within 150 to 200 miles for significant access. However, most guidelines have an alternating weekend schedule from Friday evening to Sunday evening and a midweek dinner visit. Indiana,[15] Arizona, Oklahoma,[16] Utah,[17] South Dakota,[18] Delaware,[19] and some courts in Mississippi,[20] Ohio,[21] and Florida[22] follow such rules. We have come a long way since the Draconian conclusions of Beyond the Best Interests of the Child,[23] where Goldstein, Freud and Solnit recommended the identification of the psychological parent and the essential disappearance of the other parent. However, in a country of two working parent households, custodial schedules do not mirror the shared parental responsibilities when parents separate. “Traditional” families of working spouse/homemaker spouse are no longer the norm in America. In 1940, 60% of American families had this traditional structure,[24] but the Bureau of Labor Statistics reported that 62 percent of families with children now have two working parents.[25]
Much judicial energy is spent on litigating access schedules that often have little to do with a child’s best interests. Are there any statistics that show a child does significantly better if the drop off time is 6:00 p.m. Sunday versus Monday morning or if a child spends midweek overnight with the non primary parent? Of course not. Yet these issues are litigated with a vengeance as parents fight for every minute of parenting time in an effort to obtain favorable child support considerations[26] or just to deny access to the offending spouse. Is it not more sensible to have parenting guidelines that try to mirror the child’s contacts with both parents in the intact household, if for no other reason than to limit the needless litigation of these issues that are so important for parents and so insignificant for many children? I am guessing a semester or two of college education expenses are often spent to determine whether there should be a phone call every day at 7:00 p.m. or whether a parent should return a child at 10:00 a.m. or noon on Christmas Day. Any law guardian with more than two weeks experience will tell you that the child’s best interests are served by a settlement of custodial schedules as opposed to a particular date or time for pick up and drop off. I am therefore proposing the following guidelines in the hopes that someday, someway children of separating parents can be spared the needless stress associated with parental access litigation. Maybe then we can start eliminating the useless trials over sole versus joint custody, but I leave that for another day.
I realize that these can only be guidelines, and the actual schedule may have to altered based on working schedules, out of town parents or for very young children. However, I believe this or some semblance thereof should be the “default” schedule for most families in the throes of custodial litigation. This should be the “presumptive” schedule and a parent who wishes to deviate should have to show good cause in the best interests of the child.
Proposed New York Parental Access Guidelines
1. WEEKENDS: Each parent shall have access on alternate weekends from Friday after school or at 3:00 p.m. if there is no school until Monday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. If Monday is a school holiday, then access shall end Tuesday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. Monday school holidays have precedence over the weekday schedule.
2. WEEKDAY: If both parents worked full time prior to separation, the mother/father shall have access from Monday at 9:00 a.m. until Wednesday morning when the child shall be brought to school or to the father/mother 9:00 a.m. if there is no school. Then the father/mother shall have access from Wednesday at 9:00 a.m. until Friday morning when the child shall be brought to school or to the father/mother 3:00 p.m. if there is no school. If one parent worked part time or not at all prior to separation, then the full time working parent shall have access every Wednesday after school or 3:00 p.m. if there is no school until Thursday morning when the child shall be brought to school or 9:00 a.m. if there is no school.
3. HOLIDAYS: Holidays shall take precedence of over Weekend and Weekday access. The father shall have the holidays in Column1 n odd-numbered years and the holidays in Column 2 in the even-numbered years. The mother shall have the children on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
Column 1
Column 2
Fourth of July Spring BreakHalloweenChristmas Day
ThanksgivingWinter BreakChristmas Eve
The Fourth of July shall be from 9:00 a.m. on July 4 to 9:00 a.m. on July 5. Halloween shall be October 31 after school or noon if there is no school until November 1 to school or 9:00 a.m. if there is no school. Thanksgiving shall be from the Wednesday before after school or noon if there is no school until the Friday after Thanksgiving at 9:00 a.m. Christmas Eve shall be from noon on December 24 until noon on December 25. Christmas Day shall be from noon on December 25 until noon on December 26. Spring and Winter break shall commence when the child ends school immediately prior to the break until the child enters school following the break.
4. MOTHER'S/FATHER'S DAY: On Mother's Day and Father's Day, the children shall be with the appropriate parent from 9 a.m. until 6 p.m. This shall take precedence over weekend access.
5. SUMMER VACATION: Each parent shall have access for two weeks of summer access to be communicated to the other parent in writing on or before April 1 of each year. However, summer vacation shall not abut the regular access. Therefore the child shall not have more than 14 days without seeing the other parent.
6. TELEPHONE/MAIL: Neither parent shall interfere with telephone or mail contact between the children and the other parent.
[1] O’Brien v. O’Brien, 66 N.Y.2nd 576 (1985)
[2] Domestic Relations Law Section 240(1-b)(b)(2)
[3] Annette M.R. v. John W.R., __ A.D.3rd __, 845 N.Y.S.2nd 616 (4th Dept., 2007))
[4] Holterman v. Holterman, 3 N.Y.3rd 1 (2004)
[5] Tompkins County Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2nd 328 (2003)
[6] Domestic Relations Law Section 240
[7] Collectively known as the Child Support Enforcement Amendments of 1984 (CSEA), Pub. L. 98-378, 98 Stat. 1305, amending 42 U.S.C. §§ 657-662.
[8] The full report can be found at http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf
[9] Somerville v. Somerville, 307 A.D.2nd 481 (3rd Dept., 2003); Valentine v. Valentine, 3 A.D.3rd 646 (3rd Dept., 2003).
[10] See the recent case of Vincent v. Anna Tomaino, 848 N.Y.S.2nd 437 (3rd Dept., 2007), where the Third Department overturned a schedule of no overnight visitation as inappropriate.
[11] Thompson v. Yu-Thompson, 41 A.D.3rd 487 (2nd Dept., 2007).
[12] Hugh H. v. Fhara L., 44 A.D.3rd 192 (1st Dept., 2007)
[13] “Should the Mental Health Evaluator Decide child Custody?”, Family Court Review, May 2005 and "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance," Family Court Review of the Association of Family and Conciliation Courts by Professor Timothy Tippins and Jeffrey Wittmann, Ph.D.
[14] http://www.supreme.state.az.us/dr/Pdf/Parenting_Time_Plan_Final.pdf
[15] http://www.in.gov/judiciary/rules/parenting/
[16] http://www.oscn.net/forms/aoc_form/adobe/Form.76.pdf
[17] http://www.divorcenet.com/states/utah/ut_art01
[18] http://www.sdjudicial.com/index.asp?title=sharing_parental_guidelines&category=public_info&nav=91
[19] http://courts.state.de.us/How%20To/Custody%20and%20Visitation/?visitation.htm
[20] http://15thchancerydistrictms.org/images/visitation%20guidelines.pdf
[21] http://domestic.cuyahogacounty.us/Rules/Rule18.htm
[22] http://www.jud6.org/ContactInformation/familyLaw/non%20primary%20res%20parent%20visitation%20sched%202001.pdf
[23] The Free Press, 1972
[24] Economic Policy Foundation, "American Workplace: Labor Day 1997 Report; Bureau of Labor Statistics
[25] “Trends in Labor Force Participation of Married Mothers of Infants.” by the Bureau of Labor Statistics, February, 2007.
[26] Somerville v. Somerville, 5 A.D.3rd 878 (3rd Dept., 2004)
Sunday, June 22, 2008
Tuesday, June 17, 2008
Heather Mills: The Gold Standard of Need
“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.
“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.
The Governors' Wives and other thoughts
"If you ain't got no money, ain't nobody calls you honey.” The great Bo Diddley (1928-2008)
“Divorced men are more likely to meet their car payments than their child support obligations.” Susan Faludi
“Conrad Hilton was very generous to me in the divorce settlement. He gave me 5000 Gideon Bibles.” Sári E. Gábor aka Zsa Zsa Gabor
Sometimes you’re mad as hell, and you’re just not going to take it anymore.[1] Maybe it’s the tenth application to sanction you in the year, or the judge who denies your request for an adjournment, or the adversary who sends your answer back because it is served a few days late. Then an application comes in for some kind of relief and you spew forth a venomous ad hominem attack that best belongs in the recycle bin on your desktop computer. It’s not easy being a matrimonial lawyer, and sometimes you get justifiably a little frustrated with the whole thing. But resist you must, lest you demean the practice, your client or yourself. No such restraint affected Cal Dunlap of Reno, Nevada last month when the Governor of the Sagebrush State made an application for a no fault divorce and a sealed record so he and First Lady Teresa Dawn Snelling Gibbons could get on with more important issues like support, equitable distribution and who gets to occupy the Governor’s Mansion. You know, the usual stuff. When Governor Gibbons sued on the grounds of incompatibility, Barrister Dunlap asked for a Bill of Particulars! In response to the divorce application, Mr. Dunlop made public a 33 page motion with the following denoted “facts”:[2] “After more than twenty years of marriage, the Plaintiff has deserted, abandoned, and has shunned his wife without justification for that behavior…despite his disingenuous, shallow, and transparent protestations that his relationship with another man’s wife is a mere friendship, his infatuation and involvement with the other woman is the real, concealed and undisclosed reason for his voluntary departure from the marriage and from the Mansion where he occasionally resided…his castaway wife, by the actions of the Plaintiff, was not even given an opportunity to be heard, on the secrecy issue, while his handlers, spinmeisters and staff wittingly, or unwittingly, as his tools, mislead the Public in vain attempts to preserve the marginal favorable Public Opinion regarding him that might still exist.” You get the gist. After saying “lust is the real villain here”, he called the Plaintiff “one of the most if not the most scandal ridden Governor in the history of this State.” Then Cal called his client the “poster child” of why trials should be made public. Does anyone think this is effective advocacy, or is the sideshow more important than the merits, hoping against hope that the public excoriation of a litigant will engender a more favorable offer to resolve this mess? If the latter, then the attorney has stepped over the line, and the pandering to the client or the press in anything other than a cogent argument for specific relief should be met with some judicial or public rebuke. And just who is Mr. Dunlap? A former prosecutor who was named Trial Lawyer of the Year in 2007 by the Nevada Justice Association. Whoopee. He also once held a fundraiser featuring women in negligees and swimsuits. When asked if there was some legitimate criticism of his motion papers, he said, “I suspect some who are critical of me are politically aligned with Governor Gibbons.” Not me Cal, I never voted for him in my life. It did remind me of a matter I had involving a public figure a few decades ago, where the plaintiff’s lawyer requested and received a jury trial in spite of my withdrawal of any opposition to the fault ground on the record. That was also a pleasant experience for all involved, especially the two young children.
Oh well, on to more important things, like my friends at the Unified Court System. To make it much easier on us, they have developed an online database of quick and easy forms we can download for Family Court and Divorce matters.[3] Very nice of those chaps indeed. So the other day when I resolved a violation petition I checked in and tried to download Form 4-12b, aka Order of Disposition (Violation of Support Order). Try it yourselves if you like. The only thing that you get is a Petition form dating to 2007. Can’t say they don’t have a sense of humor.
Let’s see what our beloved Third Department has taught us theses days. They definitively determined whether someone can challenge the propriety of an unappealed support order years after it has been in place within the context of a violation proceeding. In Matter of Groesbeck v. Groesbeck,[4] they wrote, “Having failed to appeal from all prior orders setting forth his child support obligation, respondent’s attack on the propriety of those orders in the context of this proceeding is nor properly before us.” OK, I got it, thanks. That same day, the Third Department decided Matter of Usenza v. Swift,[5] where a father failed to appeal from his prior support order but attacked its propriety in a violation proceeding a year or so later. Surprise, surprise, a completely different determination holding, “the father’s failure to raise this defect by way of a timely objection to the July 2005 order is not fatal.” Even though a years old consent order was never appealed since it was by consent and there were no findings required, the old order was set aside since the “findings” did NOT say the parties were advised of “all of the relevant provisions of the CSSA” although the guidelines amount was stated on the record and there was no drivel that “the application of the statute would presumptively result in the correct amount of child support to be awarded.” I daresay most of the consent orders in New York do not have these provisions in findings of fact. Therefore the original order was declared unenforceable, allowing the father to skip on all his support obligations for years as there can be no enforcement or violation proceedings. They remanded it to determine his modification proceeding, but if I was him I’d withdraw that one before you can say, “res judicata.” Then he owes nothing until Mom gets herself to the courthouse, but by then he has skipped out on oodles of past due support. So if you are really clever, try to skirt the CSSA guidelines for opting out and have your client not pay for as long as possible because the order is unenforceable and of course hope that you get the right five judges on the Appellate Division when the thing comes up for review. Of the eleven different judges now on the court, the five who decided Groesbeck are different from the five who decided Usenza. Thanks for clarifying that for us.
Finally kudos to another former First Lady, Dina Matos McGreevey, who is having her own widely publicized divorce from the former Governor of the Garden State. She has just made an application for temporary support saying she needs a mere $51,000 per month to maintain the lifestyle enjoyed during the marriage. How does she get there? Well, a mere $8,000 per month for a guard and a secretary for starters, and $17k for household help of course. These figures came from her CPA expert Kalman Barson, who also said the governor’s celebrity goodwill status was worth $1.5 million. Countering this of course was a “celebrity goodwill” expert Sharyn Maggio who said it was worth bupkes. I now know what I want to be when I grow up: Celebrity Goodwill Expert.
Happy Bastille Day.
[1] Network, Howard Beale’s (Peter Finch) delicious rant of 1976.
[2] You can find the whole distasteful thing here:
http://graphics8.nytimes.com/images/2008/05/30/us/final_gibbons_motion.pdf
[3] http://www.courts.state.ny.us/forms/familycourt/childsupport.shtml
[4] __ A.D.3rd __ (3rd Dept., June 5, 2008)
[5] __ A.D.3rd __ (3rd Dept., June 5, 2008)
“Divorced men are more likely to meet their car payments than their child support obligations.” Susan Faludi
“Conrad Hilton was very generous to me in the divorce settlement. He gave me 5000 Gideon Bibles.” Sári E. Gábor aka Zsa Zsa Gabor
Sometimes you’re mad as hell, and you’re just not going to take it anymore.[1] Maybe it’s the tenth application to sanction you in the year, or the judge who denies your request for an adjournment, or the adversary who sends your answer back because it is served a few days late. Then an application comes in for some kind of relief and you spew forth a venomous ad hominem attack that best belongs in the recycle bin on your desktop computer. It’s not easy being a matrimonial lawyer, and sometimes you get justifiably a little frustrated with the whole thing. But resist you must, lest you demean the practice, your client or yourself. No such restraint affected Cal Dunlap of Reno, Nevada last month when the Governor of the Sagebrush State made an application for a no fault divorce and a sealed record so he and First Lady Teresa Dawn Snelling Gibbons could get on with more important issues like support, equitable distribution and who gets to occupy the Governor’s Mansion. You know, the usual stuff. When Governor Gibbons sued on the grounds of incompatibility, Barrister Dunlap asked for a Bill of Particulars! In response to the divorce application, Mr. Dunlop made public a 33 page motion with the following denoted “facts”:[2] “After more than twenty years of marriage, the Plaintiff has deserted, abandoned, and has shunned his wife without justification for that behavior…despite his disingenuous, shallow, and transparent protestations that his relationship with another man’s wife is a mere friendship, his infatuation and involvement with the other woman is the real, concealed and undisclosed reason for his voluntary departure from the marriage and from the Mansion where he occasionally resided…his castaway wife, by the actions of the Plaintiff, was not even given an opportunity to be heard, on the secrecy issue, while his handlers, spinmeisters and staff wittingly, or unwittingly, as his tools, mislead the Public in vain attempts to preserve the marginal favorable Public Opinion regarding him that might still exist.” You get the gist. After saying “lust is the real villain here”, he called the Plaintiff “one of the most if not the most scandal ridden Governor in the history of this State.” Then Cal called his client the “poster child” of why trials should be made public. Does anyone think this is effective advocacy, or is the sideshow more important than the merits, hoping against hope that the public excoriation of a litigant will engender a more favorable offer to resolve this mess? If the latter, then the attorney has stepped over the line, and the pandering to the client or the press in anything other than a cogent argument for specific relief should be met with some judicial or public rebuke. And just who is Mr. Dunlap? A former prosecutor who was named Trial Lawyer of the Year in 2007 by the Nevada Justice Association. Whoopee. He also once held a fundraiser featuring women in negligees and swimsuits. When asked if there was some legitimate criticism of his motion papers, he said, “I suspect some who are critical of me are politically aligned with Governor Gibbons.” Not me Cal, I never voted for him in my life. It did remind me of a matter I had involving a public figure a few decades ago, where the plaintiff’s lawyer requested and received a jury trial in spite of my withdrawal of any opposition to the fault ground on the record. That was also a pleasant experience for all involved, especially the two young children.
Oh well, on to more important things, like my friends at the Unified Court System. To make it much easier on us, they have developed an online database of quick and easy forms we can download for Family Court and Divorce matters.[3] Very nice of those chaps indeed. So the other day when I resolved a violation petition I checked in and tried to download Form 4-12b, aka Order of Disposition (Violation of Support Order). Try it yourselves if you like. The only thing that you get is a Petition form dating to 2007. Can’t say they don’t have a sense of humor.
Let’s see what our beloved Third Department has taught us theses days. They definitively determined whether someone can challenge the propriety of an unappealed support order years after it has been in place within the context of a violation proceeding. In Matter of Groesbeck v. Groesbeck,[4] they wrote, “Having failed to appeal from all prior orders setting forth his child support obligation, respondent’s attack on the propriety of those orders in the context of this proceeding is nor properly before us.” OK, I got it, thanks. That same day, the Third Department decided Matter of Usenza v. Swift,[5] where a father failed to appeal from his prior support order but attacked its propriety in a violation proceeding a year or so later. Surprise, surprise, a completely different determination holding, “the father’s failure to raise this defect by way of a timely objection to the July 2005 order is not fatal.” Even though a years old consent order was never appealed since it was by consent and there were no findings required, the old order was set aside since the “findings” did NOT say the parties were advised of “all of the relevant provisions of the CSSA” although the guidelines amount was stated on the record and there was no drivel that “the application of the statute would presumptively result in the correct amount of child support to be awarded.” I daresay most of the consent orders in New York do not have these provisions in findings of fact. Therefore the original order was declared unenforceable, allowing the father to skip on all his support obligations for years as there can be no enforcement or violation proceedings. They remanded it to determine his modification proceeding, but if I was him I’d withdraw that one before you can say, “res judicata.” Then he owes nothing until Mom gets herself to the courthouse, but by then he has skipped out on oodles of past due support. So if you are really clever, try to skirt the CSSA guidelines for opting out and have your client not pay for as long as possible because the order is unenforceable and of course hope that you get the right five judges on the Appellate Division when the thing comes up for review. Of the eleven different judges now on the court, the five who decided Groesbeck are different from the five who decided Usenza. Thanks for clarifying that for us.
Finally kudos to another former First Lady, Dina Matos McGreevey, who is having her own widely publicized divorce from the former Governor of the Garden State. She has just made an application for temporary support saying she needs a mere $51,000 per month to maintain the lifestyle enjoyed during the marriage. How does she get there? Well, a mere $8,000 per month for a guard and a secretary for starters, and $17k for household help of course. These figures came from her CPA expert Kalman Barson, who also said the governor’s celebrity goodwill status was worth $1.5 million. Countering this of course was a “celebrity goodwill” expert Sharyn Maggio who said it was worth bupkes. I now know what I want to be when I grow up: Celebrity Goodwill Expert.
Happy Bastille Day.
[1] Network, Howard Beale’s (Peter Finch) delicious rant of 1976.
[2] You can find the whole distasteful thing here:
http://graphics8.nytimes.com/images/2008/05/30/us/final_gibbons_motion.pdf
[3] http://www.courts.state.ny.us/forms/familycourt/childsupport.shtml
[4] __ A.D.3rd __ (3rd Dept., June 5, 2008)
[5] __ A.D.3rd __ (3rd Dept., June 5, 2008)
The Third Department and Foreign Relations
"I've married a few people I shouldn't have, but haven't we all?"
Nancy Astor (1879-1964) English politician
“Wedding rings: the world's smallest handcuffs.” Anonymous, of course
“Life in Lubbock, Texas, taught me two things: One is that God loves you and you're going to burn in hell. The other is that sex is the most awful, filthy thing on earth and you should save it for someone you love.” Butch Hancock, member of The Flatliners (1945 - )
Ah, Spring. When a young man’s fancy lightly turns to thoughts of love. For those whose fancies turn elsewhere, there is a new study showing that the cost of divorce and unwed childbearing to the American taxpayer is $112 billion annually. Don’t ask how they got there,[1] but look to some politicians to use the report to pass a slew of family strengthening programs that won’t work. And did you see The Pope weigh in on divorce in his sojourn to the US of A last month? Telling us that the “ethical judgment of the Church on divorce is clear,” he called it a “serious offence which violates human dignity, inflicts deep injustice on human relations and offends God himself.” Well, pardon me Your Eminence but the divorce rate for Catholics is 28%,[2] about the same statistically as atheists and agnostics.
In other news, the Republic of Korea had a stunning break with the Third Department[3] by declaring that sexual relations after the commencement of a divorce lawsuit do not constitute adultery. It seems that Korea and New York are two of the only places where adultery is a crime. A woman was convicted in Korea and was sentenced to ten months in prison. Her conviction was overturned by the Busan District Court holding, ``the questionable intercourse was made after filing for divorce. It apparently shows that the couple already reached a consensus to be separated. Therefore, this lawsuit is void.'' Of course, this does not bode well for Korean-Third Department relations.
Speaking of my favorite Appellate Division, they continue to lead the charge in requiring contributions for college expenses. But that’s not all. How many of us have written some glib language in a separation agreement that the parents will contribute towards the college education “as their then finances permit” or similar terms. Then, if the parties cannot agree, they can have a court resolve the issue. Did you ever think that this language could be used retroactively to form the basis of a violation petition? I didn’t. Most of us just figured if the parents couldn’t agree then they could go to court to adjust the existing order to provide prospective educational contributions. Not anymore. In Heinlein v. Kuzemka,[4] poor Mr. Kuzemka must have felt like the proverbial stranger in a strange land when he was hit with a violation petition while his son was completing his third year at Rensselaer Polytechnic Institute. In spite of the language requiring the father to approve of the educational institution, he was hit for arrears of $35,000 and the Third Department promptly affirmed. Ouch. And just why did the court hit him for this tidy sum plus child support on less than $50,000 in yearly income? Two reasons: Dad owns a luxury motorcycle and lives in his “paramour’s” home paying only $100 per week in rent. Are you kidding me? He pays for RPI because of his expensive motorcycle? Could he have avoided all this by driving some low budget rice burner? His paramour’s home? Just how does a divorced guy have a paramour in the first place? Besides, is the message of the Third Department to impoverish yourself with a nice fancy home but hold off on that nice new Harley if you want to skate on college obligations? Or maybe, if you are going to live in your girlfriend’s home, be sure you pay her a lot of rent. When you figure it out, call me.
In other bad news for the drafters of separation agreements, be careful how you word the uninsured health related expenses portion of the agreement. If you just copy the statute and provide for “reasonable health care expenses of the child not covered by insurance”[5] your client might be on the hook for such expenses caused by the custodial parent utilizing a doctor who does not participate in the health insurance plan. I kid you not. In Wetherby v. Wetherby,[6] the noncustodial parent had to pay his 100% of the contracted obligation because the agreement “does not oblige defendant to exclusively pursue providers associated with plaintiff's health insurance plan.” I daresay few agreements do, and I have never seen a support order with this language since the statute does not require it. But I sure am pushing for this now so my clients don’t end up like Mr. Wetherby.
Probably smarting from the affront by the Republic of Korea, the Third Department broke with the Italian Republic in punishing a father in a custody proceeding for engaging in a five year affair during his marriage. You see, Italy’s highest court just held that women can lie about extra-marital affairs “to protect their honor.” Of course this is the court that said a woman who wears tight jeans could not be raped since they could only be removed with her consent. Makes sense to me. Getting back to the My Favorite Appellate Division, in Benjamin v. Benjamin,[7] the court upheld a shift from joint custody to sole custody with mom because of (among other legitimate reasons) the father taking the children as exemptions on his income tax return without telling the mother. So what? If he had no right to do so, the IRS would straighten things out, but I guess all is fair in love, war and custody litigation.
Speaking of exemptions, the Fourth Department just held that income tax exemptions are not an element of support and thus not enforceable in Family Court.[8] If the right is in an agreement incorporated in a judgment, then you need a plenary action to enforce which of course costs more than the exemption is worth. I am also assuming that means Family Court does not have the power to award income tax exemptions in support orders, at least in the western part if the Excelsior State.
Well, that’s all the bad news for now. Happy Law Day everyone.
[1] This was a study at Georgia State University commissioned by, among others, The Institute for American Values, so the conclusions were somewhat of a self fulfilling prophecy. “The Taxpayer Costs of Divorce and Unwed Childbearing”
[2] The Barna Group, a Christian Research organization in California.
[3] Golub v. Ganz, 22 A.D.3rd 919 (Third Dept., 2005)
[4] __ A.D.3rd __ (Third Dept., March 13, 2008)
[5] Domestic relations Law Section 240(1-b)(c)(5)
[6] __ A.D.3rd __ (Third Dept., April 3, 2008)
[7] 48 A.D.3rd 912 (Third Dept., 2008)
[8] John M.S. v. Bonnie M.R., __ A.D.3rd __ (Fourth Dept., March 14, 2008)
Nancy Astor (1879-1964) English politician
“Wedding rings: the world's smallest handcuffs.” Anonymous, of course
“Life in Lubbock, Texas, taught me two things: One is that God loves you and you're going to burn in hell. The other is that sex is the most awful, filthy thing on earth and you should save it for someone you love.” Butch Hancock, member of The Flatliners (1945 - )
Ah, Spring. When a young man’s fancy lightly turns to thoughts of love. For those whose fancies turn elsewhere, there is a new study showing that the cost of divorce and unwed childbearing to the American taxpayer is $112 billion annually. Don’t ask how they got there,[1] but look to some politicians to use the report to pass a slew of family strengthening programs that won’t work. And did you see The Pope weigh in on divorce in his sojourn to the US of A last month? Telling us that the “ethical judgment of the Church on divorce is clear,” he called it a “serious offence which violates human dignity, inflicts deep injustice on human relations and offends God himself.” Well, pardon me Your Eminence but the divorce rate for Catholics is 28%,[2] about the same statistically as atheists and agnostics.
In other news, the Republic of Korea had a stunning break with the Third Department[3] by declaring that sexual relations after the commencement of a divorce lawsuit do not constitute adultery. It seems that Korea and New York are two of the only places where adultery is a crime. A woman was convicted in Korea and was sentenced to ten months in prison. Her conviction was overturned by the Busan District Court holding, ``the questionable intercourse was made after filing for divorce. It apparently shows that the couple already reached a consensus to be separated. Therefore, this lawsuit is void.'' Of course, this does not bode well for Korean-Third Department relations.
Speaking of my favorite Appellate Division, they continue to lead the charge in requiring contributions for college expenses. But that’s not all. How many of us have written some glib language in a separation agreement that the parents will contribute towards the college education “as their then finances permit” or similar terms. Then, if the parties cannot agree, they can have a court resolve the issue. Did you ever think that this language could be used retroactively to form the basis of a violation petition? I didn’t. Most of us just figured if the parents couldn’t agree then they could go to court to adjust the existing order to provide prospective educational contributions. Not anymore. In Heinlein v. Kuzemka,[4] poor Mr. Kuzemka must have felt like the proverbial stranger in a strange land when he was hit with a violation petition while his son was completing his third year at Rensselaer Polytechnic Institute. In spite of the language requiring the father to approve of the educational institution, he was hit for arrears of $35,000 and the Third Department promptly affirmed. Ouch. And just why did the court hit him for this tidy sum plus child support on less than $50,000 in yearly income? Two reasons: Dad owns a luxury motorcycle and lives in his “paramour’s” home paying only $100 per week in rent. Are you kidding me? He pays for RPI because of his expensive motorcycle? Could he have avoided all this by driving some low budget rice burner? His paramour’s home? Just how does a divorced guy have a paramour in the first place? Besides, is the message of the Third Department to impoverish yourself with a nice fancy home but hold off on that nice new Harley if you want to skate on college obligations? Or maybe, if you are going to live in your girlfriend’s home, be sure you pay her a lot of rent. When you figure it out, call me.
In other bad news for the drafters of separation agreements, be careful how you word the uninsured health related expenses portion of the agreement. If you just copy the statute and provide for “reasonable health care expenses of the child not covered by insurance”[5] your client might be on the hook for such expenses caused by the custodial parent utilizing a doctor who does not participate in the health insurance plan. I kid you not. In Wetherby v. Wetherby,[6] the noncustodial parent had to pay his 100% of the contracted obligation because the agreement “does not oblige defendant to exclusively pursue providers associated with plaintiff's health insurance plan.” I daresay few agreements do, and I have never seen a support order with this language since the statute does not require it. But I sure am pushing for this now so my clients don’t end up like Mr. Wetherby.
Probably smarting from the affront by the Republic of Korea, the Third Department broke with the Italian Republic in punishing a father in a custody proceeding for engaging in a five year affair during his marriage. You see, Italy’s highest court just held that women can lie about extra-marital affairs “to protect their honor.” Of course this is the court that said a woman who wears tight jeans could not be raped since they could only be removed with her consent. Makes sense to me. Getting back to the My Favorite Appellate Division, in Benjamin v. Benjamin,[7] the court upheld a shift from joint custody to sole custody with mom because of (among other legitimate reasons) the father taking the children as exemptions on his income tax return without telling the mother. So what? If he had no right to do so, the IRS would straighten things out, but I guess all is fair in love, war and custody litigation.
Speaking of exemptions, the Fourth Department just held that income tax exemptions are not an element of support and thus not enforceable in Family Court.[8] If the right is in an agreement incorporated in a judgment, then you need a plenary action to enforce which of course costs more than the exemption is worth. I am also assuming that means Family Court does not have the power to award income tax exemptions in support orders, at least in the western part if the Excelsior State.
Well, that’s all the bad news for now. Happy Law Day everyone.
[1] This was a study at Georgia State University commissioned by, among others, The Institute for American Values, so the conclusions were somewhat of a self fulfilling prophecy. “The Taxpayer Costs of Divorce and Unwed Childbearing”
[2] The Barna Group, a Christian Research organization in California.
[3] Golub v. Ganz, 22 A.D.3rd 919 (Third Dept., 2005)
[4] __ A.D.3rd __ (Third Dept., March 13, 2008)
[5] Domestic relations Law Section 240(1-b)(c)(5)
[6] __ A.D.3rd __ (Third Dept., April 3, 2008)
[7] 48 A.D.3rd 912 (Third Dept., 2008)
[8] John M.S. v. Bonnie M.R., __ A.D.3rd __ (Fourth Dept., March 14, 2008)
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