Is You Is or Is You Ain't My Baby

"If she says it's over, it's over, but like I've said before, she is the love of my life, and I expected to spend the rest of my life with her." Hugh Hefner, 2008. Yeah, right.

“I'd marry again if I found a man who had fifteen million dollars, would sign over half to me, and guarantee that he'd be dead within a year.” Bette Davis

“Woman inspires us to great things, and prevents us from achieving them.” Alexander Dumas

Drum roll please. Which state has the highest divorce rate in the country? Nevada of course, with 7.7 divorces per 1,000 people in 2005. Of course that may be a product of its relatively short residency requirement, ninety days, and of course the ease of no-fault grounds. After all, if you really can’t wait, why not spend a few months at the craps tables or pumping those one armed bandits full of quarters? So, who is number two? Arkansas of all places followed by Palinville aka Alasker, and we know that no one goes there for the local culture just to get divorced. After all, both places have mosquitoes as big as your head. Lori Holyfield, a professor in the Department of Sociology and Criminal Justice at the esteemed University of Arkansas speculates that the causes are “asset poverty”[1] and lack of education. However, that does not explain why education rich Massachusetts and Connecticut round out the top five. More likely is the prevalence of a high marriage rate, especially among younger people. However, even if business gets a little slow in our firm, you can bet that I will NOT be going to Arkansas to bolster my 401(k).
Speaking of young marriages, poor Peaches Geldof is getting divorced after only 96 days, saying, “It’s over. I just don’t fancy him anymore.” Duh. Which makes me wonder about the shortest divorces, with numero uno coming in the form of Friedman fave Zsa Zsa Gabor, who married Mexican lawyer turned actor Felipe de Alba in1952 for exactly one day. It seems Zsa Zsa was still married at the time to Michael O’Hara, but who’s counting. Tied at 24 hours are Robin Givens and Svetozar Marinkovic followed by Mother of the Year Britney Spears and Jason Alexander at two days. I love these people. They make Carmen Electra and Dennis Rodman seem like icons of marital stability.
Well enough of this trivial stuff. Did you see that South Korea’s Constitutional Court just upheld a 55 year old law criminalizing adultery? Actress Ok So-Ri has tried to get the law overturned since she admitted having an affair with a pop singer. She claims her marriage was empty and loveless. Can you believe those moronic, vacuous people still believe you can be prosecuted for having sex with another person while married? Oh wait.[2]
Remember Louis Jordan? In 1944, he wrote a great song, “Is You Is or Is You Ain’t My Baby?” That sums up the strange and delightful matter of Linda and Lawrence Graev, two former lovebirds who were divorced in 1997 and thereafter engaged in a roller coaster trip to determine whether the word “cohabitation” is or ain’t ambiguous. By a minority of the judges who addressed this issue, it was conclusively determined that it is ambiguous. How can you beat that? The Graevs settled their 24 year marriage by agreement for Lawrence to pay Linda $10,000 per month maintenance unless Linda “cohabited with an unrelated adult for a period of sixty (60) substantially consecutive days” or August 10, 2009, whichever comes first. With so much bling at issue, Lawrence hired a slew of gumshoes to determine if “maybe my baby found somebody new.” In the summer of 2004, they discovered that Linda was living in her summer home with MP, a man whose identity is kept secret in the decisions for obvious reasons, infra. It seems MP lived at Linda’s home for all 60 days but Linda said their relationship was platonic since MP, well, couldn’t perform anymore and anyway she had lost interest in sex.[3] In determining that the term cohabiting is not ambiguous, the trial court found that Linda had not “cohabited” with MP within the meaning of the agreement, especially since MP had his own home, paid none of Linda’s shelter expenses and the United States Postal Service felt that he lived elsewhere. The First Department agreed, but a two judge dissent argued that the unambiguous language required the cessation of maintenance.[4] A two judge dissent is music to my ears as it means an automatic appeal to the Court of Appeals.[5] Last month in a 4-3 decision, it was determined that the term is indeed ambiguous and the case was sent back for a new trial which would include proof of the parties’ intent at the signing of the agreement.[6] Justice Graffeo writing for the dissenters Smith and Pigott, would have let Mr. Graev off the hook because after all living a with a guy you love for 60 days is enough in anyone’s book, except of course for four Court of Appeals judges (Read, Kaye, Ciparek and Jones). So, let’s see. The trial judge and all five Appellate Division justices and three Court of appeals judges held that cohabitation is not an ambiguous term. That would be nine judges. And four judges on the Court of Appeals held that it is ambiguous. So what is the result? Ambiguous of course, and back we go for another trial. I must say, Mr. Graev came closer than most men to a victory in the Court of Appeals. So, “is my baby still my baby too”? Stay tuned.
Speaking of ambiguity, the First Department terminated a husband’s use of a vacation home in a settlement agreement because of his violation of the molestation clause. In Weiner v. Weiner,[7] they deviated from the long line of cases holding that this is a separate clause that does not vitiate the rights and obligations of the rest of an agreement. They did so “under the particular circumstances of this case” invoking equitable principles. And just what were those particular circumstances? Don’t ask, as this is the First Department and they do not explain anything for our benefit. One can tell they are already missing the reasoned counsel of their former colleagues Kavanaugh and Malone, and no, we’re not sending them back.
The Third Department gave us a nice enhanced earnings case justifying a zero award for an engineering degree in a long term marriage for two reasons. In Evans v. Evans,[8] the aforesaid Justice Kavanaugh writing for a unanimous court upheld that an expert determination that the degree did not enhance earnings because the engineer could have attained his job without the degree as “whatever promotions defendant obtained during his employment were likely the product of his professional competence and would have occurred even if defendant had not obtained the degree.” Damned if I know how any accountant could come to that opinion as it seems a factual matter for the trial court, but that opinion was credited by the trial court and affirmed. Second, the Third Department denied any distribution of the degree even if it had a value as the wife’s contributions “while significant, can be seen more as overall contributions to the marriage rather than an additional effort to support defendant in obtaining his license.” This was a nineteen year marriage with two children, one of whom has special needs. So, now we at least have some colorable argument for a minimal or no distribution in these infernal enhanced earnings cases thanks to the Savants of State Street. The maintenance award was set at $1,000 per month until social security eligibility on the husband’s income of $93,500 and the wife’s income of $17,000. This was about 15% of the difference.
Finally thanks to the Second Department for answering that burning question, “Can a court fine a father $250 a day as additional child support for each day of missed visitation?” No, especially if no one asks for it. Papandrea v. Pallan[9]
Happy Holidays and Prosit Neujahr, y’all.
Michael the Divorce Lawyer
[1] A condition where if you sold everything you own, you would still be in debt, apparently quite prevalent in The Natural State.
[2] Penal Law §255.17
[3] She did admit that she and MP had done the Humpty Dance from January to March of 2003, but since then it was just platonic.
[4] Graev v. Graev, 46 A.D.3rd445 (1st Dept., 2007)
[5] CPLR §5601(a)
[6] Graev v. Graev, __ Ny.Y.3rd __ (October 21, 2008).
[7] __ A.D.3rd __ (1st Dept., November 13, 2008).
[8] __ A.D.3rd __ (3rd dept., 2008).
[9] __ A.D.3rd __ (2nd Dept., November 13, 2008).