Caps and Clowns

"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)