Gay Marriages and Modern Art

“I think that everyone should get married at least once, so you can see what a silly, outdated institution it is.” Madonna Louise Ciccone Ritchie aka Madonna
“Eighty percent of married men cheat in America. The rest cheat in Europe.” Yacov Moshe Maza aka Jackie Mason
"It's not true that I had nothing on. I had the radio on." Norma Jeane Mortenson, baptized Norma Jeane Baker aka Marilyn Monroe
Greetings from the Golden State, where they will vote in a few days to determine whether the state constitution should be amended to ban same sex marriages. All of this is on the heels of the 4-3 California Supreme Court decision last May sanctioning gay divorces on equal protection grounds, finding that there is a fundamental right to marry. [1] Latest Vegas odds favor upholding gay marriages. Then last month the Connecticut Supreme Court decided the same way for similar reasons, again in a 4-3 decision. Compared to the 172 page California decision, this was a pithy 85 pages with 84 footnotes.[2] Of course, our Court of Appeals said “no way” to gay marriages in 2006 in Hernandez v. Robles, a 4-2 decision.[3] All of this begs a few questions. How can something be fundamental right in one state but not another? Are some gays more equal than others, as in Equally Protected? Why does it take judges so much verbiage to express their thoughts, and why do such great minds disagree in each of these decisions? It does seem to be trend at least on the Left and Right Coasts to support gay marriages, and such an issue seems to stir up emotions and money for and against. The California Proposition 8 lobbying has raised over $60 million from both sides. Of course, gay marriage means gay divorce, and that is grist for our mills and we will be looking for the first divorces in New York for people legally married in other states.
Other grist for our mill news? Some Dutch researcher has published an article proving that Turtle Doves commit adultery.[4] Thanks Dr. den Hartog for that one. The financial crisis on Wall Street has caused a threefold increase in sex addiction for financiers, and presumably increased divorces.[5]
The Third Department has returned from their summer slumbers, affirming a whole slew of custody cases and curiously modifying the dispositional phase of a family offense proceeding in Gil v. Gil.[6] It seems Mr. Gil beat his five year old daughter with a belt causing raised welts. That was enough to uphold the finding of harassment and menacing. However, the Order of Protection requiring a full stay away from the home of the mother, the child, and the mother’s workplace were eliminated as it was not proven that he is likely to pose an “immediate and ongoing” danger to a member of the family. “Honey, I’m home!”
Did you ever experience the Father of the Year Syndrome? You know, the dad who ceded the child rearing to the mother while he worked, played golf, went bowling or pursued other women during the marriage. Now, with the beak-up of the marriage, he is suddenly working 35 hours per week, coming home at 5:00 p.m., showing up for his son’s soccer practices and Meet the Teacher nights, all for the first time. He seeks shared or sole custody, as the Epiphany of Fatherhood descends on him immediately after a visit to his local matrimonial attorney for a discussion of the joys of the Child Support Standards Act. It frustrates many litigants as the past is not necessarily prologue, in spite of the decisions made while the marriage was intact. Courts struggle with these issues as there is a desire to encourage parental participation, even if it is newly discovered. Well, the First Department grappled with just such a dad in Tonisha J. v. Paul P.[7] The Referee who decided the matter at trial awarded the father sole custody in spite of the primary responsibility of child rearing by the mother while the parties lived together. Apparently the mother had misbehaved towards the father and his fiancée when she discovered his affair, but she had never misbehaved towards the child and was the “primary custodial parent” in the early years. Although Family Court adopted the Referee’s findings, the First Department reversed, in spite of the recommendations of a forensic social worker. Seizing on the important but often overlooked issue of the roles of the parents while the parties were living together, the court reversed and awarded custody to the mother. It is nice to see recognition of this important standard in a reversal of a trial court when trying to determine the future best interests of children.
You do have to admire the billing efforts of our downstate brethren. I often comment on the inadequacy of fee awards or the charges billed in the Third Department, as for the most part I believe we undervalue our services. The First Department has no such recalcitrance as it recently awarded nearly $30,000 in legal fees just to enforce two money judgments of about $250,000. Schiffer v. Schiffer[8] and, no, it is not THAT Schiffer, unfortunately. Nice work if you can get it. The trial court had denied Mrs. Schiffer’s application as she had received enough in maintenance, equitable distribution and her own earnings. However, what good is that if you have to spend mucho dinero just to get what the court awarded you? In reversing the trial court, the First Department accepted the attorney’s fee application and awarded all such fees for the enforcement, including negotiations, miscellaneous legal fees, and fees for making the fee application. Yeah!
Speaking of legal fees, my favorite modern artist cum divorce litigant, Jeffrey Koons recently lost custody of his child to his former porn star wife “La Cicciolina” aka Ilona Staller in the European Court of Human Rights in Strasbourg, France, of all places. That’s my next court of choice in custodial disputes, you betcha. You may remember her as the only one to volunteer to have sex with Saddam Hussein in 2002 in exchange for world peace saying, “I would do it holding my nose and closing my eyes. I would do it for peace." If only he had taken her up on that offer. I remember Mr. Koons as the guy who had to pay Paul, Weiss, Rifkind, Wharton & Garrison over $3.3 million in fees related to his divorce because he never challenged the bills.[9] Doggone it, for that alone he deserves a “shout out” from yours truly. Can I call you Jeff?
Don’t forget to vote.
[1] In re Marriage Cases, six consolidated appeals, decided May 15, 2008. You can find the whole 172 page decision here. It took about three pages just to list the Respondents’ attorneys!
http://www.latimes.com/media/acrobat/2008-05/38894545.PDF
[2] Carrigan et. al. v. Commisssioner, decided October 10, 2008. Here it is:
http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR289/289CR152.pdf

[3] 7 NY3rd 338(2006)
[4] Netherlands Organization for Scientific Research (2008, October 15). Turtle Doves Commit Adultery. Science Daily. October 18, 2008. You can read the article here in Dutch together with “cooing” noises proving her hypotheses:
http://www.nwo.nl/nwohome.nsf/pages/NWOA_7kdept
[5] London’s Daily Telegraph, October 19, 2008.
[6] __ A.D.3rd __ (3rd Dept., October 16, 2008)
[7] __ A.D. 3rd __ (1st Dept., October 16, 2008)
[8] __ A.D.3rd __ (1st Dept., October 14, 2008)
[9] Paul, Weiss, Rifkind, Wharton & Garrison v. Koons, 4 Misc.3rd 447 (N.Y.Co.Sup.Ct., 2004)