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)