Lap Dance Fees, and Thank God for the Second Department

“If all the girls who attended the Yale prom were laid end to end, I wouldn't be a bit surprised.” Dorothy Parker (1893-1967)

“I owe a lot to my parents, especially my mother and father.” Paul Hamm, Gymnast and linguist

“Don't accept rides from strange men, and remember that all men are strange.” Robin Morgan (1941-)


OK, call me jaundiced. How else do you explain the hundreds of marriage proposals for a police constable in the Rift Valley of Kenya? Just ask Olympic 800 meter gold medalist Pamela Jelimo when she returned home after winning $1,000,000 for six victories in elite track meets. To me, men are all just gold digging slugs looking for a free ride from a woman of accomplishment. But to quote the great Kanye West, “"If you ain't no punk, holla 'We want pre-nup!'"[i] Makes sense to me. So Brad Pitt ponies up $100,000 to support gay marriages in the upcoming California referendum and along comes the Church of Latter Day Saints aka The Mormons to urge their flock to contribute the other way.[ii] This prompts former gay Mormon Bruce Bastian to drop $1 mil on the gay marriage supporters. Match that, Beefcake Boy.
Maybe it’s just been a bad month, with A-Rod resolving his divorce without any splashy testimony and the Office of Confused Adults sponsoring a report to take control of all the justice courts and measurably increase the coffers of the Evil Empire.[iii] So here’s a quiz, which presidential candidate wrote the following, “"She was lovely, intelligent and charming, 17 years my junior. I persuaded her to join me for drinks at the Royal Hawaiian Hotel. By the evening's end, I was in love." Hint: It’s not Cynthia McKinnon or Bob Barr[iv]. Ah, love, stronger than marital fidelity again! At least we’ll always have the Third Department, whenever they wake up from their summer funk. Until then, as they say, love the one you’re with.[v] In this case she is the Second Department, the only true source of amusement until the Vernal Equinox.
For example, they sure mixed things up when they let Joey LaRocca[vi] free for not having the ability to pay his child support. As we know, failure to pay a support order is prima facie proof of a willful violation. I didn’t make that up. It’s in §454(3)(a) of the Family Court Act. So the App Div Second decides, “Wait a minute, here.” We know he didn’t pay. The Family Court Act be damned, let’s let the guy off because, “In the absence of proof of an ability to pay, an order of commitment for willful violation of a support order may not stand.” Thanks for clearing that up guys. Maybe I better see if the definition of prima facie has changed since the Fifteenth Century.[vii]
Then they decided it is just fine and dandy to apply the CSSA standards to all $212,000 of a person’s income, joining the Third Department’s $500,000 “cap” in Bean.[viii] They blasted through the ethereal $80,000 statutory cap, virtually without comment in Maharaj-Ellis v. La Roche.[ix] Here is their reasoning for all you tea leaf readers: “The court further providently exercised its discretion in applying the statutory child support percentage to the total sum of $272,550.38 in combined parental income.” What I mean is what I say, nothing more and nothing less. Try to explain that to your next client who comes in wondering what the court will do to his gross income when it comes for support of the kiddies. To add insult to injury they banged Dad for ice skating expenses of all things, “where the evidence demonstrated that she had a special aptitude for the sport.” Who doesn’t, Tanya? I guess that’s what the legislature meant when it awarded “as justice requires” “special, or enriched education for the child.”[x] Is there no end to this stuff?
Apparently not, as the Second Department again held that College Expenses are not to be modified especially if you have a separate paragraph called “College expenses” in an agreement with a paragraph called “Child Support.” Colucci v. Colucci.[xi] I had no idea paragraph headings were so important in the Southern counties, but I’m changing my behavior up here too, just in case.
Just to put more nails in the coffins of moneyed spouses, the Second Department came down with Kilkenny v. Kilkenny.[xii] Poor Mister Kilkenny came into his marriage with $147,000 in separate accounts. He spent $40,000 of this separate money during the marriage on the education of a daughter from a first marriage, reducing the accounts to $107,000. The accounts had $209,000 at commencement. So how much does the missus get? $51,000. Get that? If he had not spent the $40,000 on his child’s education, the increase would be $62,000 and she would get $31,000, but since he paid for his child’s education during the marriage, he gets to pay his wife half of that sum again. Like I say, arithmetic is sure different south of the Tappan Zee Bridge, or to quote John McCain, “I think they put some lipstick on a pig, but it's still a pig."[xiii] Of yeah, the Kilkenny lassie also gets half of the amount he reduced the principal on his premarital home mortgage during the marriage plus half of the appreciation in the home, even if it is due to market forces. And by the way, that loan for $32,000 for his other child from his first marriage? That’s not a marital debt either.
In a stirring victory for those in uniform, at least the slutty kind, the Second Department reversed an award of custody to the father and restored the child to the mother in a modification proceeding. The Family Court judge had given custody to the father, among other reasons, because the mom came to court in hospital clothing, “as if she were a nurse or other medical professional, but in fact works as a receptionist.” He also held it against her, but not the father, that she was married to another man during the entirety of the parties’ relationship with one another. Horrors! Peroglu v. Baez.[xiv]
Finally a tip of the hat to Scott Robert Irwin, a lawyer after my own heart. Mr. Erwin is the former chairman of the DeKalb County Bar Association pro bono committee, a position yours truly has occupied for the Albany County Bar Association. It seems Barrister Erwin had an arrangement with one of his clients to perform nude dances for him in his office (And at her place of employment: Heartbreakers. I kid you not.) in exchange for legal services for his ecdysiast client and members of her family. When he credited her with only $534 and demanded she pay a bill of $7,000 she blew the whistle on him, no pun intended. Although a grand jury let him off the hook on sexual assault, the Illinois Attorney Registration and Disciplinary Commission suspended him for 15 months. So just where in our regulations prohibiting sexual relations with our clients is there a proscription for a lap dance or two?[xv] If you find out, send me a wire.
Happy Guy Fawkes Day.
[i] “Gold Digger”, Kanye (Brion) and Foxx, copyright 2005 Roc-A-Fella Records, LLC used here without permission.
[ii] If you don’t believe me, check out ProtectMarriage.com
[iii] http://www.nycourtreform.org/
[iv] John Sidney McCain III in his aptly titled 2002 memoir, “Worth Fighting For”
[v] Stephen Stills, 1970, used again without permission. Sorry Mr. Isely.
[vi] Grasso v. LaRocca, __ A.D.3rd __ (2nd Dept., Mom’s Birthday, 2008)
[vii] Merriam Webster Dictionary, 2008.
[viii] 53 A.D.2nd 718 (3rd Dept., 2008).
[ix] __ A.D.3rd __ (2nd Dept., 2008)
[x] §240(1-b(b)(7) of the Domestic Relations Law
[xi] __ A.D.2nd __ (2nd Dept., September 9, 2008)
[xii] __ A.D.3rd __ (2nd Dept., September 16, 2008)
[xiii] Des Moines Rotary Club Speech, October 11, 2008.
[xiv] __ A.D.3rd __ (2nd Dept., August 19, 2008)
[xv] Code of Professional Responsibility DR-511, 22 NYCRR 1200.29-a