"This marriage is forever. We have a foundation of love and honesty and respect, and we're a real team. Peter is the greatest father, so involved. He's our Rock of Gibraltar." Christie Brinkley, Good Housekeeping, July, 2004.
“Once we got together, we knew it was meant to be." Peter Cook, People Weekly, January 9, 1995.
“Easy is an adjective used to describe a woman who has the sexual morals of a man.” Nancy Linn-Desmond
“If you’re only going to have ten rules, I don’t know if adultery should be one of them.” Ted Turner
It’s been a tough month. What with the loss of U. Utah Phillips, the Golden Voice of the Great Southwest and the beloved clown of my childhood. No not Jesse Helms. Bozo, of course. But the real loss was the death of Tom Brown, the former president of the Albany County Bar Association, state assemblyman, and the former Fordham Flash as a top distance runner for CBA and Fordham University. All this was before I met Mr. Brown when I was toiling as a young insurance defense lawyer in downtown Albany. For the next thirty years I knew him as a capable trial attorney, a man of his word, a friend to all and a true gentleman. I often rail about the lack of civility among lawyers and sometimes members of the judiciary. I just wish everyone could have spent time with a Tom Brown to see how a real lawyer is supposed to act. He was always interested in me and a slew of other young lawyers, and he couldn’t pass you in the hall or even a running race without some word of encouragement. I wish we had more of the Tom Browns of the world in our courthouses. The practice of law was a lot sweeter with him around.
Did you catch the latest issue of the Journal of Human Resources? In case you missed it, there’s a nifty article called The Effect of Marital Breakup on the Income Distribution of Women with Children by Elizabeth Ananat and Guy Michaels. Their conclusion? “Having a female firstborn child significantly increases the probability that a woman’s first marriage breaks up.” So the next time someone asks you the cause of divorce, lay that one on them. They also conclude that divorce has little mean effect on women’s mean household income. Some win, and some lose, but inequality and poverty often result. This is clearly contrary to the studies of a few decades ago showing decreased economic circumstances in women of divorce. .Similar results were found by Kelly Bedard and Olivier Deschenes in the same journal in their study Sex Preferences, Marital Dissolution, and the Economic Status of Women. Overall they found that women who divorce have greater household income than women who never divorce. Makes you wonder about the impact of the CSSA and similar state laws on the economics of divorce.
I was pondering all this when I read about the fate of David Bean in his trip to the Appellate Division, Third Department. In a case decided on July 3[1], our beloved App Div decided once and for all the burning question of the day: At what point should a court stop applying the CSSA percentages to high income taxpayers? After all, above the $80,000 “cap” it becomes a game of needs versus income and at some point Little Johnny doesn’t need any more money for child support, does he? Eventually it becomes Asset Reallocation, Blood Money, Bimbo Ransom, Freedom Juice, or what have you. It certainly has nothing to do with needs of children. Just how high is this number? After all, the Court of Appeals told us in Cassano[2] that “The stated basis for an exercise of discretion to apply the formula to income over $80,000 should, in sum and substance, reflect both that the court has carefully considered the parties' circumstances and that it has found no reason why there should be a departure from the prescribed percentage.” Ok, I understand. But “careful consideration of the parties’ circumstances” is in the eye of the beholder, and Mr. Bean’s bean muscles must have tightened a little when the trial justice in Albany County held that 17% of his entire $1,000,000 income is an appropriate support amount after due consideration of the aforesaid circumstances. Re-considering the circumstances of the case My Favorite Appellate Division reduced Beanie’s child support nut to a mere $7,083.33 per month or a mere 17% of $500,000 of daddy’s income. I bet that was a relief! You’ve got to hand it to the Third Department, they sure do have a sense of humor. So, the next time a court suggests that the cap should phase out at some ethereal point such as the legislative suggestion of $130,000, slide the Bean case under the Support Magistrate’s nose as an example of true grit by the Oracles of the Fifth Floor. Don’t be a piker here. Go for the gold. Did I mention the maintenance award, by the way? Forget deducting it from income before applying the percentages. No siree. How about reducing the trial court’s award to a mere $20,000 per month until the equitable distribution is paid and then just $15,000 per month until death or remarriage, i.e. for life. Hardly enough to keep body and soul together, when coupled with the equitable distribution award of God knows how much. As they say in Germany, Arbeit macht das Leben süß, or “keep paying Mr. Bean, because your son and former wife need to be among those whose household incomes just might have increased post divorce.” I daresay the Bean award will offset several hundred thousand awards of $25 per month in poverty households to keep that mean income of divorced women really, really, high. Take that Ms. Anant and Mr. Michaels!
Finally, what is so rare as a day in June[3], other than a matrimonial decision from our beloved Court of Appeals. It must have given the plaintiff husband the Heebie Jeebies when the Court of Appeals granted leave in spite of the Second Department’s unanimous decision in Mesholam v. Mesholam.[4] After all, the Court of Appeals had already given its pro-husband decision of the century in Spencer, and this was decades before the next one is scheduled. At issue here was the valuation date for equitable distribution. The parties were married in 1969 and in 1994 the wife sued but ultimately discontinued her divorce action against the husband. However, the parties never reconciled. In 1999 the husband sued for divorce, and asserted that the “equitable” thing to do would be to use the 1994 date for valuation of his pension. Domestic Relations Law Section 236B(4)(b) states that “The valuation date or dates may be anytime from the date of commencement of the action to the date of trial.” The Court of Appeals held that the prior discontinued action cannot be the date of commencement and threw the additional five years of Mr. Mesholam’s pension into the marital estate. They did remand however, so perhaps the court can fashion an “equitable” award that uses the later valuation date and provides the wife with something less than 50% of the assets. After all, equitable does not necessarily mean equal, does it?
Fröhliche Schweizer Bundesfeier for all my Swiss friends, or for you Romansch fans, Happy Fiasta Naziunala Svizra.
[1]__ A.D.3d __ (3rd Dept., 2008)
[2] 85 N.Y.2d 649 (1995)
[3] With apologies to Robert Russell Lowell, for all you American Romantic Poetry fans, like me.
[4] __ N.Y.3rd __ (June 26, 2008) reversing 25 A.D.2nd 670 (2nd Dept., 2006)
Saturday, July 19, 2008
Sunday, July 13, 2008
Anger Management and Client Pandering
"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)
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