The Hulkster, Maitenance and Other Thoughts

“Men aren’t attracted to me by my mind. They’re attracted to me by what I don’t mind.” Rose Louise Hovick aka Gypsy Rose Lee (1911-1970)

“We're a collection of caring, bright do-gooders who want everyone to love us. But we're also voyeurs and mischievous thieves who take advantage of the unsuspecting and make money because our clients are angry, hurt, and greedy." Norman Sheresky, J.D.

"The first thing they get is a net-worth statement. Then they make sure they get your total net worth." Ronald Lindner, divorced plastic surgeon

The doldrums of the Third Department descend upon us each August, with the trickle of decisions having nothing to do with the glories of matrimonial practice. The true horse latitudes of matrimonial practice, spiced this week by two thrilling negligence cases in favor of plaintiffs with stinging dissents by two justices and nary a whiff of marital discord to be resolved by the Genii of the Fifth Floor. For that matter, the Fourth Department has virtually given up, taking off the entire month of August like some German autoworker migrating to the Amalfi Coast for a few weeks of epidermis broiling and Il Baccala’ in Casseruola con Patate. Schade as they say im Burgenland. So, to quote the late great Hunter Thompson, “When the going gets weird, the weird turn pro.” So here it goes.
When we last left the gay former Governor and current seminarian James McGreevey, his wife was seeking about $30,000 in yearly maintenance from his $48,000 yearly salary. She also wanted a piece of the $1,400,000 her expert valued as the ex-Gov’s “Celebrity Goodwill”. During the trial Mrs. McGreevey testified that she can no longer afford to shop at Nordstrom and Nieman Marcus, and now had to stoop to clothing herself at the Gap and T.J. Maxx. You’re breaking my heart, honey. So, the court gave her nothing for alimony and a mere $110,000 in equitable distribution. How much did that cost her? Legal fees alone totaled $525,468 for the former First Lady of the Garden State. Shucks, I could have gotten her that kind of an award for less than $400,000. Seems like a deal to me. Not so fortunate, at least not yet, was the Hulkster, aka Terrence Gene Bollea who was ordered to pay $40,000 per month in temporary alimony to the lovely Linda Bollea. Seems like only yesterday but it was January 23, 2003 that we were at the Pepsi Arena watching Mr. Hogan knock out Vince McMahon with a single punch to the delight of thousands at the WWE Smackdown! Remember? Hopefully Ms. Hulkster’s legal fees will be a tad shy of a half a million. Of course all this demonstrates that the amount and duration of maintenance is in the eye of the beholder, i.e. the judge, and there are really no guidelines that one can safely cite to a client to determine the true outcome after trial. Like they say, the weird turn pro.
So, what little baubles does the Second Departments give us this summer? Well how about our old friend the Child Support Standards Act. As the Third Department told us last month, if there is not an adequate recitation of what the CSSA standards would be for child support and the reason for any deviation, then an agreement is null and void[i], or not null and void[ii]. Got it? Well, in Cimons v. Cimons[iii] everyone agreed that the opting out provisions did not comply with the statute and needed to be set aside, but what about the agreement to pay for college education? Does that get thrown out with the baby’s bath water too? Apparently not, as it is discretionary to award educational expenses and such awards are not pro rated like the other “add ons” of uninsured health and child care.[iv] Since educational obligations are not connected to basic child support, they are enforceable even if the other provisions are not.
Speaking of the Child Support Standards Act, the Second Department in Uriarte v. Ippolito[v], joined the Third Department for a change in holding that a parent need not use in-service providers when seeking reimbursement for uninsured health related expenses. Of course, no tip of the hat to the Third Department’s Wetherby[vi] case of a few months prior, as though they thought it up all by themselves.
The Second Department also answered the burning question of whether payments of maintenance to a mother by a father should be included in her income when determining the amount of child support she has to pay the custodial father. I thought it was quite novel of the mother to suggest that she had no income for the support of the bambino even though she was receiving $100,000 per year in maintenance. You see, the child moved in with dad after the divorce, but of course that had no effect on his maintenance obligation to her. Income is income saith the Second Department so her maintenance money was fair game for the child support percentages. Krukenkamp v. Krukenkamp.[vii] Here’s where the math gets a little squirrely however, as the Second Department tells us it was inappropriate to apply the percentage of 17% above the statutory $80,000 cap because (a) dad earns a lot more than she does and (b) she has to support other family members. Putting aside for a moment whether these are valid reasons to cap the support obligation, the Second Department set the support at $338 per week without explanation how they came up with that peculiar amount. By my calculations that is $17,565 per year or the support obligation of a person earning about $106,000! I’ve known for years that the bean counters downstate are different from the bean counters up here, but I thought mathematics was a more objective standard. I’m dying to see how they came up with that sum, but being the Second Department they don’t tell us. It’s just one of life’s mysteries, I guess, like the Eleusian Mysteries. Don’t ask, don’t tell.
Happy New Zealand Fathers Day, all you Kiwis.

[i] Usenza v. Swift, 52 A.D.3rd 876 (3rd Dept., 2008)
[ii] Groesbeck v. Groesbeck, 52 A.D.3rd 903 (3rd dept., 2008)
[iii] __ A.D.3rd __ (2nd Dept., June 17, 2008)
[iv] Domestic Relations Law Section 240(1-b)(c)(4) and (5)
[v] __ A.D.3rd __ (2nd Dept., August 12, 2008)
[vi] 50 A.D.3rd 1226 (2008)
[vii] __ A.D.3rd __ (2nd Dept., August 5, 2008).