Our Fiscally Responsible Court System

“We have finite resources.” Jonathan Lippman, October 14, 2009

You’ve got to have quite a sense of humor to be a New York State Supreme Court Judge these days, be you an Acting, Elected or Appellate one. Once upon a time, you were quite revered. You had authority, autonomy and respect. Your jokes were funnier than other people’s jokes, or at least enjoyed with more gusto by the members of the bar. You handled your own calendars, motion terms and trials. Then came the all powerful, all seeing Office of Court Administration, OCA to its friends. Now the bean counters have reduced our judiciary to an enormous bureaucracy, with the judges as mere cogs in a giant wheel, wasting their time filling out forms and accounting for caseloads, motions and trials. Their website now lists 28 “initiatives and programs” that accomplish virtually nothing for lawyers and litigants seeking resolution of disputes. If that isn’t bad enough, the judges haven’t had a raise since the Clinton Administration. In December OCA published the April Fool’s Day 2010 to March 31, 2011 Budget, a 557 page tome with all kinds of goodies while touting the “stringent spending controls” implemented during the year.[i] Remember this organization did not exist a few years ago, and to most of us things ran just fine. The “request” in this year’s budget is a mere $2,709,301,640. That’s $2.7 billion smackeroos for our bankrupt state. Here’s where the sense of humor comes in. The court system wants $6.3 million for a Judicial Supplemental Support System. OCA spokesman David Bookstaver said last October this would cost about $6 million, but what’s an extra $300,000 here and there. This is a payment of $10,000 to each of the 1300 state judges. Why? According to Judge Lippman, this is not a raise but an allowance for judges to clean their robes, “commuting costs, Internet service, home security systems, life insurance and health care, marriage counseling and other expenses.” Come again? We’re denying our judges a raise, but giving them money for marriage counseling? Really? How about our Third Department judges who aren’t even married? What do they do with all the extra jing?

Way, way down at the very bottom of this thing, on page 557, is a small paragraph on the renovation of the Centennial Hall in the City of Albany, formerly known as the Albany County Family Court on the corner of Lodge and Pine Streets. In case you haven’t noticed the spiffy new copper roof and cupola, this thing is for, among other things, “secure residential space for the Court of Appeals Judges while in Albany.” Yep, a nice place to sleep for $23 million. Actually the $23 million is just to renovate. The building itself was sold for $3 million, making this a $900 per square foot project. Just to put that in perspective, The Waldorf Astoria renovated the great Fairmont Hotel in New Orleans after Katrina for a $100 per square foot, and that was thought to be outrageous. All this for a place to sleep for 5 out of the 7 Court of Appeals judges who live out of town? Last year, Court of Appeals “spokesman” Gary Spencer said this is “a security issue for us.” Really? I guess the Albany Crown Plaza or the Marriott cannot be made secure enough for $26 million. Does Al Qaida or anyone really care about these guys? If you’ve been following the renovations in the Albany County courthouse for the past 8 years, you’ll note that this Taj Mahal is going up faster than track housing in Levittown, and there’s nary a sign telling anyone what it is. I wonder if the state can dispense with the judicial limo and bodyguard service since the walk to the Court of Appeals is about 100 feet portal to portal. Hopefully, because the report blames the increased costs of the court system on our jailed former bar member Andrew Capoccia on page 504, a guy who hasn’t practiced law since 2000! Tough to make ends meet when you have to compensate someone.

As if all this wasn’t big enough, in a December 15, 2009 Op-Ed piece in the New York Times, Judge Lippman lamented the poor state of our state’s handling of juvenile justice. His solution? Drum roll please. “This requires a relatively simple but bold step: making the juvenile probation system an arm of the courts, rather than of the executive branch, as it is now.” Why not? Just look how well they do things now, and inexpensively too!

How about this? $1.5 million for the Candidate Fitness Program. No this isn’t physical exercise, boys and girls, but a program “to ensure that only individuals of the appropriate ethical character will be licensed to practice law within New York State.” In my opinion, you can scrap that whole program. Here’s why. Last April the Third Department denied admission to Mr. Anonymous.[ii] This guy went to law school, passed the bar and except for his enormous student loans would be practicing law. And just what kind of unfit behavior denied him the pleasure of practicing law? Not making substantial payments on the loans, and not being “flexible in his discussions with the loan servers.” Actually he’s not anonymous at all. His name is Robert Bowman, and after nearly losing his leg as a child, he put himself through community college, and eventually law school through hard work and student loans. He had to take the bar exam four times to pass. For all we know, he could be another Oliver Wendell Holmes, but he will not be given the chance since he can’t pay his student loans. His application for reargument was just denied by the Third Department in November.[iii] We have lawyers file for bankruptcy every year, and not one has ever lost the privilege of practicing law for that reason. But Mr. Bowman cannot practice because he can’t pay the loans that can not be discharged in bankruptcy. He’s not “morally fit to practice,” after all his efforts to educate himself because what the Third Department calls the “neglect of financial responsibilities with respect to the student loans.” In 2008 the First Department declined to disbar a lawyer who had solicited minors and was convicted of misdemeanor attempted Criminal Sex Act in the Second Degree.[iv] Between Anonymous I and Anonymous II supra, the Third Department reinstated a lawyer who was merely suspended for six months even though she had deceived the Broome County Supreme Court, failed to appear in court, failed to communicate with clients and tried to deceive the Committee on Professional Responsibility.[v] How about a prosecutor who is charged with cocaine possession and possession of drug paraphernalia? That warrants only a three month suspension according to the Third Department in 2008.[vi] Nice. So, if you want to pass the scrutiny of the Character and Fitness Committee, be sure you are flexible with those pesky loan collectors. After all, fiscal responsibility is a hallmark of fitness to practice. Just ask the Office of Court Administration.

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[i] The full thing can be found at http://www.courts.state.ny.us/admin/financialops/Bgt10-11/final.pdf just in case you don’t need a doorstop right now.

[ii] Matter of Anonymous, 61 A.D. 3^rd 1214 (3^rd Dept., 2009)

[iii] In re Anonymous, 67 A.D.3^rd 1248 (3^rd Dept., 2009)

[iv] In re Lever, 60 A.D.3^rd 37 (1^st Dept., 2008)

[v] In re Arnold, 53 A.D.3^rd 1448 (3^rd Dept., 2008) and 63 A.D.3^rd 1275 (3^rd Dept., 2009)

[vi] In re Matey, 57 A.D.3^rd 1084 (3^rd Dept., 2008)

Our Wild and Crazy Legislature and the Lawyer of Love

"Then I realized adultery’s wrong. So I told a tabloid.” Nicole Forrester, ecdysiast, friend of Josh Duhamel, husband of Fergie
“A lot of people ask me how short I am. Since my last divorce, I’m about $100,000 short.” Mickey Rooney
“Here's all you have to know about men and women: women are crazy, men are stupid. And the main reason women are crazy is that men are stupid.” George Carlin

Ron Woods’ wife just divorced him for adultery? No way. And poor Italian Prime Minister Silvio Berlusconi’s wife claims he is engaging in “shamelessly trashy” behavior encouraging attractive showgirls to run for Parliament. Of course, that wasn’t an issue when he first met his wife by seeing her topless in a play called “The Magnificent Cuckold” in Milan. No Siree.
And another thing. These geniuses at the State Capitol think that they are doing something really important by amending Section 812 of the Family Court Act to apply to more and more persons, animals and criminal statutes. It wasn’t bad enough that §842 of the Family Court Act was amended to include “companion animals” as protected by Orders of Protection. That prompted the Powers that Be at the New York State Office for the Prevention of Domestic Violence and OCA (Office of Confused Adults) to feverishly work on amending the forms for a Family Offense Petition to include the names of all animals in the home, guppies included, even if there is no such allegation of abuse. “Sorry, ma’am, but we cannot get you before the judge until you remember the name of your fifth Goldfish.” Then last year they expanded the list of potential respondents to include those in an “intimate relationship” even if not sexual in nature, but not a “casual relationship nor ordinary fraternization”, whatever that means. At least one court has held that you can use this statute to get an Order of Protection in 2008 even if the “intimate relationship” ended in 2006 since the statute does not have any time limits. Another has held that a wife having sex with a man other than her husband cannot claim she had an “intimate relationship” for an Order of Protection because “the State maintains an abiding interest in the sanctity of the marital relationship.” Since when?
Now we have new claims that can form the basis of a Family Offense, each defined in the Penal Law: Forcible Touching, Sexual Misconduct, Sexual Abuse in the Second and Third Degree. These crimes are usually more easily proven within the context of Harassment or Disorderly Conduct, which already exist in the law. Of course, my favorite part of this whole exercise in futility is Section 130.20(3) of the Penal Law (Sexual Misconduct) which prohibits a person from engaging sexual conduct with a dead human body. I’m just trying to figure out how that constitutes a Family Offense against a person related by affinity, consanguinity or an “intimate relationship”. Let me know if you figure it out. Oh, yeah, this law also now requires Attorneys for Children, nee Law Guardians, to undergo training in domestic violence, which MUST include the dynamics of domestic violence on child support. Of course, there is no statistical evidence that such training exists, works or is effective, but what the hell. Where do I sign up?
Mark you calendars. January 31, 2010. That’s the day when the CSSA $80,000 cap becomes $130,000 much to the relief of calculator salesmen and custodial parents. Using the nifty title of “The Child Support Modernization Act”, the “cap” of $80,000 has been increased to $130,000 and increasing that amount every two years thereafter by some Cost of Living Adjustment. As we all know, the cap is not really a cap at all. Just ask David Bean, who successfully convinced the Third Department that 17% of his $1,000,000 yearly imputed income was excessive so they lowered his “cap” to $500,000, pounding him for over $7,000 in monthly child support for one child plus maintenance and educational costs. Or how about David Quinn who had to pay over $8,000 a month for two children (plus maintenance) calculated as 25% of the combined income up to $80,000 and 8% of his entire income above that. Problem was, his income was $1.1 million. Even sportscaster Jim Nantz had to only pay $1,000 per month child support in Connecticut, even though he got dinged for $864,000 in yearly lifetime maintenance. The CSSA just requires a court to enumerate the reasons for utilizing the child support percentages in excess of the cap, which is really the combined parental income up to $130,000. And by the way, the court can go below the cap if it is found to be “unjust and inappropriate”. But absent some creativity by Support Magistrates, get ready to readjust your calculators for the new, improved $130,000 cap for at least the next few years. One wonders if anyone is going to skate on the $80,000 cap on January 30, 2010. Not likely.
Finally, a word about my favorite Illinois matrimonial lawyer: Corri Fetman, the Lawyer of Love. This buxom 42 year old has taken out a series of billboard ads with her body and that of her personal trainer in full salacious view with the words, “Life’s short. Get a divorce.” followed by her office phone number and website address. This was followed by a similar ad that proclaimed, “Take control. Get a divorce.” Sounds good to me. If you go to her website, you will find the following: “Corri Fetman bares all for Playboy. Corri Fetman will appear in the February 2008 issue of Playboy magazine and playboy.com on January 11, 2008.” Of course this was before she sued Playboy for the sexual harassment by one if its executives and they sued her for utilizing their copyrighted phrase “Lawyer of Love”. Stay tuned. And by the way, thanks for asking, but no you won’t see my pectorals on any billboards on I-90 or I-787 anytime soon.
Feliz Navidad, y’all.
[1] Technically “companion animal” is defined in §350 Agriculture and Markets Law as any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. “Pet” or “companion animal” shall not include a “farm animal” as defined in this section. Near the household?
[1] KD v. SH, Bronx Family Court October 27, 2009, unreported as of yet.
[1] Jessica D. v. Jeremy H., 24 Misc. 3rd 6634 (Fam. Ct. Madison Co., 2009)
[1] Bean v. Bean, 53 A.D.3rd 718 (3rd Dept., 2008)
[1] Quinn v. Quinn, 61 A.D.3rd 1067 (3rd Dept., 2009)[1] Fgalawfirm.com

Hey, New York, Why Don't You Leave Us Alone

“I've had bad luck with both my wives. The first one left me and the second one didn't. Patrick Murray
“A girl must marry for love, and keep on marrying until she finds it.” Zsa Zsa Gabor
“I don't care if she doesn't know how to cook - so long as she doesn't know a good lawyer.” Errol Flynn, on the Ideal Wife
Honestly, just what are they thinking? Has anyone in the New York State legislature ever practiced matrimonial law or ever been divorced? Is it too hard to figure out why our state is broke so they have to torture those who seek a simple way out of a bad marriage? I really have no idea where they come up with this stuff, but sometimes they seem to make the Somali government seem like the voice of reason.
Per Esempio Numero Uno: It seems to me the whole system of divorce litigation is getting way out of hand. Just to sue someone, now you need to let hubby know a whole slew of things that for the most part mean nothing. How is this done? Put it in the Summons and give it to him (or her) of course. Some genius in the legislature last year thought it was a good idea to let people know that if they are divorced then they are no longer married, as in you are no longer the member of a “family” for health insurance purposes. Duh. Hell, why stop at health insurance? How about letting them know that they can have sex with other (nonmarried) people without committing a Class B misdemeanor, or that they can now file as a single taxpayer, or that they need not worry about that damned right of election should he or she drop dead before the divorce judgment gets filed? Forget that. Let’s just screw up everything with a worthless notice that no one cares about. However, judges will be schooled in the art of denying people divorces because the spouse was not advised of the loss of health insurance. Is anything more asinine? When you find it let me know. So the legislature and our Gov’nor decided to “correct” the ills conceived by Domestic Relations Law Section 177 which made you acknowledge the loss of health insurance in a “divorce agreement” whatever that is. No such “divorce agreement” animal is defined in the Domestic Relations Law or the Family Court Act, but what the hell. So, this stupid piece of legislation required us to hunt down recalcitrant spouses to try to get him to sign insurance acknowledgment agreements or to drag them in to court to let them know that they are no longer a member of hubby’s family. How did that work out for us? Not good. So hundreds of divorces were denied because the opposing spouse won’t sign ANYTHING proffered by that whore mongering abusive slug who now wants a divorce after I gave him THE BEST YEARS OF MY LIFE! Good job guys. That was a really good idea. So to correct things they screwed it up even more by repealing Section 177, or as the great Gilda “Emily Litella” Radner used to say, “Never mind.” So they created Domestic Relations Law Section 255 which requires a court to ensure that both parties have been notified, “at such time and by such means as the court determines”, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. Say what? Just what is “at such time and by such means”? How about courier pigeon in five years? Not to mix my metaphors, but what is a good time and means to one goose is not necessarily a good time and means to another gander. So just what do we tell our clients? Gee, let’s put this up the old DRL 255 flagpole and hope we can get you a divorce. Let’s say for example, that things are not going too well in the divorce litigation and the litigant declines to sign anything or acknowledge anything just to prevent the impending doom of equitable distribution. Well at least now we can put into the summons the following notice: “Once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan.” That will do, but of course not for signed agreements, which must state either: (a) We hereby provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party's health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available.” Got that? So just what does THAT mean? Let’s say you are providing for the future coverage of your soon to be ex-spouse for one day, or one minute. Does that suffice? Or must it be forever, even following the remarriage of the other spouse. Beats me. But why complicate things and provide the (b) notice above? Well sometimes things slip through the cracks, and here these provisions cannot be waived by either spouse, so if it isn’t there, you ain't getting divorced. Got that Jacko? Which says to me that the legislature thinks that the notice provisions about health insurance are more important than people having the fundamental right to divorce? Wonder who was the genius who came up with THAT idea? I’d like to shake his or her hand, as the whole result of all this nonsense is to drive out the poor practitioner who wishes to dabble in divorce law in favor of us high priced specialists who charge large fees for our expertise. In other words, the poor consumer of litigation services gets screwed for no good reason than to put a bunch of useless words in some summons or agreement because some legislator thinks it is a good idea.
Per Esempio Numero Duo: Last I heard, an Order was something a judge signs. If you don’t believe me, take a gander at Section 400 of the Code of Civil Procedure which has been around in some form in New York since about 1850 which stated “every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.” Of course this is now CPLR Rule 2219 which speaks of an order which “shall be signed with the judge's signature or initials by the judge who made it.” You see, Orders are important as they can deprive someone of money, liberty or a whole bunch of other things. So they have to be signed by a judge, and done right. Got that? Not to the New York State legislature, however. Now we have something known as “Automatic Orders”, denominated a “term of art” in some anonymous OCA memo flowing through the New York Judicial Institute somewhere in White Plains. So now we have “automatic orders” which are signed by no one but supposedly govern the behavior of divorce litigants merely by the filing of a summons in the county clerk’s office. Just what are these things? The “new” Domestic Relations Law Section 236B(2)(b) provides as follows (drum roll please):
(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.
(3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
Of course, these terms are to be in all Divorce Summons and are in effect on the plaintiff immediately on filing and on the defendant upon service. I can’t wait for the first poor schnook who faces jail for violating an order signed by no one by buying his new sweetie a Valentine’s Day card after the service of the summons. I really do feel sorry for the judges who have to interpret this stuff or possibly impose sanctions that are not authorized in the New York or United States constitutions. Can you imagine some guy sitting in the Albany County hoosegow trying to explain he is there because he took his grandfather’s cufflinks out of the home because he just couldn’t stand to have them for another minute? If this were really that important to the legislature, why not allow the Part 1 judge in each county to sign the Summons in advance of filing so at least there will be some semblance of due process, albeit ex parte. Nah, that’s too easy. Aaaargh. By my count, the normal Summons for Divorce in New York is about three pages long and growing, for no good reason. How about this guys? The new Mike Friedman Simplified Divorce Summons: “Honey Bunchkins. I no longer want to be married to you. I hope you’ll agree that our marriage sucks and so you’ll ignore this thing and let me be done with you. If you don’t I will get a divorce and most of your worldly possessions, the kids and lots of your income so if you want, let the court know you care within 20 days. Till death do us part my eye. Your ever loving Sweetie Pie.” That’s good enough for me.
Sorry to be so long winded here, but this stuff really boils my blood and if I don’t get this off my chest my head is going to explode. Good luck with this flotsam. Next month: The “New” CSSA cap or How I Learned to Stop Worrying and Love the New Rules of Professional Conduct or Just What is the Intimate Part of a Lawyer. And remind me, just how do you spell violence? Ciao baby.

Civility

In re civility

“A judge is not supposed to know anything about the facts of life until they have been presented in evidence and explained to him at least three times.” Lord Chief Justice Parker (1900–1972), British judge.

“Judge—A law student who marks his own examination-papers.” H.L. Mencken (1880–1956).

Did it rankle you when they passed standards of civility for lawyers? It upset me, as though I was a child in need of a life lesson in courtesy. They might as well have legislated rules on breathing, for discourtesy was anathema in my family and one did not need to be reminded to treat others with kindness. Such behavior just wasn’t allowed, and my early professional life reinforced the principles of civility. The charm of practicing law was the graciousness of fellow counsel.
So what happened? A few years ago, a lawyer was disciplined in Connecticut for writing a letter to a probate judge that he had “prostituted the integrity of his office”. The lawyer’s defense? Free speech of course, and that he had written the letter as a private citizen. I don’t think so, and neither did the Connecticut Superior Court. At the same time, the Commission on Judicial Conduct censured a New York Supreme Court Justice for some rather discourteous behavior. Justice Lewis V. Dye thought it necessary to ask if an attorney was Jewish, and when counsel asked the Honorable Justice Dye to explain he said that he grew up in North Carolina where he had never seen a Jew or a West Indian and “the only Chinese people I saw were in the laundry.” Nice.
In a 1986 tenant eviction proceeding in New York City, an attorney called a woman companion of an adverse party “sleazy” resulting in a physical confrontation in the courthouse. He also called opposing counsel a “f------ liar” and that he was “going to kick his ass at trial”. The defense? He did it too. Nah, Nah, Nah.
These cases are sad, because the misbehavior of one attorney reflects badly on us all. For reasons unknown to me, the older I get the more I feel the necessity to defend the civility of the profession. And I do not buy the idea that incivility is just a “downstate phenomenon”. Remember Morgan Bloodgood? He was the Malta Town Justice who decided to write to a defendant, David Rosenblum, who had not paid a traffic ticket. After sarcastically admonishing the defendant on Town Justice letterhead, he signed off, “So long Kikie.” The Commission on Judicial Conduct rightfully removed Mr. Bloodgood in 1981 finding “When a judge demonstrates prejudice by deliberately using the term ‘kikie’, public confidence in the integrity of the courts is diminished, and the administration of justice is seriously compromised.”
Within the past few years I have had the pleasure of having a sitting judge ask me in open court when and where I was admitted to the practice of law after I made several overruled evidentiary objections. I know I can sometimes get under a judge’s skin, but I thought that was a little much. In any event, my skin is pretty thick and it didn’t offend me so much as make me feel compunctious for the litigants. Their respect for the process designed for the resolution of their dispute undoubtedly disintegrated at that point. Courts exist for people to resolve disputes in a civilized manner. If the lawyers and judges can’t act with courtesy towards each other, how can we expect citizens to do the same?
For the most part, these are isolated incidents, but they do happen. How do we resolve the problem? Simple. Remember that it takes two to Tango, and the invitation to incivility when met with courtesy dies on the vine. As my deceased fellow matrimonial practitioner and friend Stanley Rosen used to say, “I kill them with kindness.” You are not a better lawyer if you are perceived as tough, difficult or intransigent. You are not a good practitioner if you write to a judge or opposing counsel suggesting that the opposing litigant is a lying scoundrel. While that may make your client feel good, it does not promote the resolution of anything and constitutes pandering to your client. Let me tell you what I mean.
Several years ago a client of mine was waiting to get her hair and God knows what else done in a beauty salon. Another woman was railing on and on about the bastard Shyster who represented her husband. She wasn’t getting any support because she was humiliated on the stand by this slimy creep who insinuated that she was seeking support when she was fully capable of gainful employment. When asked the name of the troglodytic pettifogger, she replied, “Michael Friedman”. Immediately three women getting their hair dyed, dried or deep-fried pulled paper and pencil out of their pocketbooks and wrote my name down. Do I want to represent these women? No thank you.
When I meet clients for the first time, I usually say, “What can I do for you?” The answer seems to ferret out the crazies, but not always. Several times a year, I hear, “Mr. Friedman I want to hire you because I understand you are a son of a bitch.” Of course, I politely suggest that the potential client take his business elsewhere. I am not interested in representing those who seek retribution or bloodletting from their counsel, and if you take on such a client you will undoubtedly have a very unhappy camper in a few months. You see, they were unhappy to begin with, and you cannot and should not become the legal hammer for their dissatisfaction with life. They feel they have been dealt a bad hand, and eventually you will become just one more bad card. You are not the sword of their incivility.
By and large the judges and counsel I meet are a pleasure. We understand that our function is to guide our clients through the maze of the justice system to achieve a resolution. While our clients may struggle with each other, there is no need for uncivil behavior from counsel. If nothing else, we should be guided by the Jim Conboy standard. For those of you who have never met Mr. Conboy, he is a senior partner in Carter and Conboy. If you seek “civility” & “lawyer” on your favorite search engine, a picture of Mr. Conboy should come up. He has defined a very successful career by courteous courtroom behavior. A few years ago, the Albany County Bar Association nominated Mr. Conboy for the Attorney Professionalism Award of the New York State Bar Association. The accolades for Mr. Conboy from the judiciary, counsel, physicians and clients were astounding. In spite of some lobbying to the contrary, he receid the award. Whenever I and many others wonder how to behave in our firms and local courtrooms, we think of what Mr. Conboy would do and try to emulate him. If you do, you will be much happier and a better lawyer.

22 NYCRR 1200
Grunberg v. Feller, 132 Misc.2nd 738

Our Chief Judge's Security and Fiscal Responsiobility

“I speak two languages, Body and English.” Mae West

“It is not the state’s place to define marriage in a way that excludes a segment of the population from the legal benefits associated with marriage, and that’s why I’m here today.” Patterson April 16, 2009

“We bishops aren’t into politics, we’re into principles.” Archbishop Timothy Dolan, April 15, 2009

All righty then. Did you see our friend in Kabul Hamid Karzai waded into the divorce debate by the passage of The Shia Personal Status Law affecting the minority Shiite population in Afghanistan? This law requires women to submit to sex even if forced, and requires wives to get permission to leave the home except in an emergency. Wives must wear makeup upon request of the husband, and they can only divorce if the husband cannot feed her or disappears for a really long time. On the other hand, the man can divorce for virtually any reason. As for children, only the father and the grandfather can be awarded custody of a child over the age of seven. I wonder what the child support standards are in Afghanistan for two children. And we thought the New York legislature’s view of domestic relations was backward.
Speaking of Grand Poobahs, I see our former Family Court is getting a nice facelift courtesy of the Office of Court Administration. Twenty years ago the Albany Family Court left its Romanesque digs at Lodge and Pine streets “temporarily” because the building was condemned as unsafe. Lots of fond memories there like the bullet hole they never fixed when Sam Crutchfield shot and killed his wife in the waiting room in 1977. Now our bankrupt state is spending $26 million to buy and renovate one building. Why? So our Chief Judge as well as other out of town judges can stay there instead of patronizing our local hotels. Court of Appeals “spokesman” Gary Spencer says this is “a security issue for us.” Say what? A security issue? Since when do we have to spend over $900 a square foot to build a place for our judges to place their pretty heads while in Albany? An exorbitant cost of such space would be $100 per square foot. The Waldorf Astoria renovated the great Fairmont Hotel New Orleans for $68 per square foot. Besides, is there really a “security issue” for our judges? Is Osama Bin Laden sitting in a Pakistani cave plotting injury to Jonathan Lippman and out of town jurists? I wonder if the Chief Judge’s bodyguard will get to stay there, or his limo driver. Maybe we can dispense with the limo driver since the Family Court building is only 100 feet from the Court of Appeals building. Maybe there is a better use of the $27 million, like judicial pay raises or perhaps replacing the duct tape that graces the rug in the courtroom on the 4th floor of the Albany County Courthouse. I guess not.
So, with a deficit of $16 billion, we can spend $26 million for a few luxury bedrooms for our out of town judges. But what if you want to practice law and don’t pay your student loans? For that, you do not have the requisite character and fitness to practice law. So saith the Third Department, in denying admission to Mr. Anonymous. This guy went to law school, passed the bar and except for his enormous student loans would be practicing law. And just what kind of unfit behavior denied him the pleasure of practicing law? Among other things, not making substantial payments on the loans, and not being “flexible in his discussions with the loan servers.” So, if you want to pass the scrutiny of the Character and Fitness Committee, be sure you are flexible with those pesky loan collectors. After all, fiscal responsibility is a hallmark of fitness to practice.
Here’s a question for you. What is the perfect storm just waiting to swallow up all your money and assets for the rest of your life? Number one, get married. Number two, get your bachelor’s degree, go to medical school, become licensed to practice medicine, get board certified and start a private practice in ophthalmology. Number three, move to New York. Number four, have seven children. Number five, get divorced. Now that guy has “a security issue” if you ask me. Such was the plight of Dr. Michael Mairs when he placed his financial future in the capable hands of the Third Department. The trial court’s award of 15% of the license, degree, and practice was increased from 15% to 25%, reversing the trend downward as shown by the Third Department late last year in Evans (0%) and the Second Department this year in Guha (5%) because of the lack of “meaningful contributions” towards the degree. For good measure, the practice value was increased $86,000 because a loan that had not been repaid in many years was disallowed as a debt. The total net award for the degrees, licenses and practice was approximately $384,000 payable in sixty easy monthly payments of about $6,600 when you add a few years of interest at 4.5% since this case was tried in 2005. The maintenance was increased from $400 per week for seven years to $500 per week for seven years, since the good doctor earned $300,000 and the wife $50,000. As for child support, the trial court’s decision to limit the CSSA percentages above the elusive $80,000 cap was swept aside in favor of the Full Monty of 35% of gross income less FICA less maintenance, for a hefty $71,000 per year. Did I mention that Dr. Mairs was required to pay half the loan taken out by his wife for the eldest child’s college education, plus a $500,000 life insurance policy? So, with his $300k yearly salary, he must pay about $79,000 tax free per year in equitable distribution, $71,000 tax free child support, $26,000 tax deductible maintenance, half of a college loan and life insurance. And by the way, the wife received the home and the right to seek more for college education. So after paying maybe $80,000 in taxes, Dr. Maris can enjoy the remaining $40,000 for his own lifestyle and paying for the remaining kiddies’ college. What’s up, Doc? In his defense, he did get married four years before O’Brien reared its ugly head at the doctors of New York State.
Well, that is about as much fun as one can have for one month. Happy Law Day and Requiscat in Pace Marilyn “99.44% pure” Chambers, Mark The Bird, and Jack Wrangler. We’ll miss you all.

The Child Support Champ and the Lawyers' Wage Gap

“Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else's cash.” P.G. Wodehouse aka Sir Pelham Grenville
“You never know how short a month is until you pay alimony.” John Barrymore
“There are much easier things in life than finding a good man. Nailing Jell-O to a tree, for instance.” Anonymous

Ah, Spring. When a young man’s fancy certainly does not turn towards thoughts of child support, although it should. Case in point, Travis Henry, winner of the CSSA Flying Fickle Finger of Fate Award for 2009. If you’ve never heard of this guy, join the club. However, he is a very good football player, being an all pro NFL running back and signing a $25 million contract in 2007. He celebrated his exoneration on a failed marijuana drug test by smoking marijuana and getting suspended again, so you know he has a sense of humor. Although only thirty years old, he has fathered nine children by nine different women and he is obligated to pay over $170,000 per year in child support for his offspring. Recently he was jailed in Florida for failing to pay over $16,000 for one of these cherubs, and apparently Mr. Henry is now broke. He did tell the New York Times shortly before he was jailed, “I love all my kids.” Amen. He now has Shawn Kemp (seven children by six women) and Derrick Thomas (seven by five) beat by a landslide. Nice job, big guy. But compare Mr. Henry with David Bean who was made to pay lifetime maintenance of at least $150,000 and child support for one child of $85,000 per year on $1 million in yearly income, considerably less than Mr. Henry’s yearly take as a running back. That’s just fine in the Third Department. Bean v. Bean, setting the Gold Standard for the CSSA cap at $500,000 of combined income. One wonders what kind of numbers Mr. Henry would put up in the Third Department had one of the moms wandered into the jurisdiction.
By the way, did you get your latest issue of the Journal of the American Psychosomatic Society? No? There’s a nifty study there by a psychologist named Nancy Henry (no relation to Travis) and some others at the University of Utah that concludes that women are far more likely than men to have damage to their health in strained marriages. The study included people who had been married twenty years and found that both men and women claimed to be depressed in bad marriages, but only women showed negative physiological signs. One of the leading researchers concluded, “It's a little premature to say they would lower their risk of heart disease if they improved the tone and quality of their marriages - or dumped their husbands.” Geez, I could have told them that, but this is Reason Number 12,394 for the Empire State to pass no fault divorce if you ask me. But no one is asking.
And speaking of divorce reform, did you get the news of the two imbeciles in the West Virginia Legislature named John Ellum and Robert Schadler? They want to make it impossible to get maintenance (alimony) if you commit adultery. As Mr. Ellum said, “It has always bothered me that you can almost be rewarded in a way for cheating on your spouse.” You and you alone, John Bob, or is it Bob John?
Before we get to the latest from My Favorite Appellate Division, there was an interesting study of the “wage gap” between men and women based on the Census Bureau’s Current Population Survey for 2007. Suffice it to say men earn more than women for the same job, but we all know that. However, the “wage gap” is 22% among lawyers, with women earning about $71,500 and men earning about $91,600 per year. So, ladies, not only do we earn more than you, but apparently we make you sick in bad marriages. Time to rethink things here?
So, we all know that an attorney is supposed to sign a pleading, and this goes for Family Court Petitions. If you don’t believe me, take a gander at 22 NYCRR 130-1.1. So if the attorney doesn’t sign, is the petition to be dismissed? Of course not, but the Third Department had to reverse a Family Court judge who did just that in Green v. Tierney. Finally, a victory for resolution on the merits over technicality.
Are you entitled to paralegal fees in Family or Supreme Court? Of course not as the statues only refer to “counsel fee” applications. Sure, §8602(b) of the CPLR allows the recovery for paralegal fees in actions against the state, but Family Court Act §438, §536, §842(f) and Domestic Relations Law §237 make no mention of paralegal or other such fees. Therefore, one might conclude that since the legislature allowed such fees in one kind of action, but not in domestic relations matters, they never intended a recovery for paralegal fees in Family Court or Matrimonial Actions. Makes sense to me, but not to the Second Department, who recently held that a court can award paralegal fees in Family Court in the court’s discretion, although denied in this instance. Hubbard v. Clay. Makes you wonder.
Speaking of wondering, the Second Department gave us a doozy at the end of February in deciding that the standard for finding a violation of an Order of Protection under Article 8 of the Family Court Act is beyond a reasonable doubt! Rubackin v. Rubackin. They frankly acknowledged that this is contrary to their own prior decisions as well as the decisions of the other Appellate Divisions including our Favorite App Div. The language of this decision seems to imply that this might also be the standard in support violation matters as potential incarceration is the lynchpin for the standard, citing the 1911 Supreme Court case of the great labor activist Samuel Gompers v. Buck’s Stove and Range Co. Sounds like the Second Department is dying to grant leave to the Court of Appeals on this one. We’ll see.
Finally a few words on the Appellate Division, Third. I know that we have about a 30% chance of a reversal or modification in matrimonial appeals and obviously significantly less in criminal and prisoner appeals. But ladies and gentlemen, a day with 29 affirmances and one measly reversal, which occurred on March 5, 2009? Man, the stars must have been aligned on that day.
The Gov’nor finally appointed three new appellate justices last month, but many newspaper articles only commented on the skin color or sexual orientation of the jurists. Whatever happened to the judicial qualifications? Doesn’t that mean anything anymore to the hoi polloi? Is skin color or sexual orientation the only relevant issues anymore when it comes to judicial selection? Makes me wonder if I were ever appointed to anything, the headlines the next day would probably be, “Delusional, Demented, Narcissistic Blue Jay Fan wing nut appointed by the Gov.” Guilty as charged.

Mystery and God Bless the Third Department

“In some of the poorer areas of the world it is sadly true that sex is the only luxury available to the ordinary man. Whether the ordinary woman also considers it a luxury is open to question.” Hugh Llewellan Keenleyside (1898-1992), Canadian Ambassador to Mexico

“The difference between the recession and divorce is that in the recession you lose half your assets and you still have your wife.” Anonymous, of course

"Just another of our many disagreements. He wants a no-fault divorce, whereas I would prefer to have the bastard crucified." J.B. Handelsman

You know, there are certain mysteries to the practice of law that can never be explained. I’m not talking about the Eleusian Mysteries here, just things that baffle me every time I think about them. As I have said, there is no reason why the Rensselaer County Courthouse has seven elevator buttons for a three story building. A hop, skip and a jump from said elevator is a picture of the Rensselaer County Bar Association for the year 2000. There among the smiling barristers in the center are the significant judges of the county bar, including the Watervliet City Court Judge. Last I looked, Watervliet was in Albany County. Go figure. Down the river at the lovely Albany County Courthouse on the third floor in the “Eagle Street Courtroom” is a fine array of the former Supreme Court Justices from Albany. The Albany County Bar Association provides these wonderful portraits so we don’t forget the fine state justices who taught us how to practice and serve our clients. There in the upper right is the Hon. Lawrence J. Kahn who served us well from 1980 to 1996. If you look really close, you will see his portrait is in front of the symbol of the United States District Court for the Northern District of New York. Why? Beats me. This makes about as much sense as the lovely spittoons that grace the feet of every judge in the Court of Appeals during oral argument. Somehow, I don’t think Victoria Graffeo is a Chattanooga Chew or a Southern Pride fan. I could be wrong. Then there’s the Unified Court System Website that had running news of the judges’ lawsuit for a pay raise, but recently switched to Governor Patterson’s remarks praising our new Chief Judge Jonathan Lippman. If that is old news to you, try the Russian small claims tutorial. Nothing in German or Portuguese (Brazilian) of course, but those Russkies can figure it out without speaking English. You can also see pictures of the swearing in ceremony of Court of Appeals Associate Judge Read in 2003, including a nice one with Judge Lippman. The subsequent swearings in of Judges Jones, Smith, Pigott and Lippman didn’t make it. Not to be outdone, the Third Department website still has Justice Carpinello hearing cases. Then there’s those courtroom flags. Didn’t anyone tell the OCA wonks that the American Flag is suppose to be higher than the New York State Flag and if on the same level never to the right of the American Flag? I guess not, at least in Schenectady and the new Justice Building in Albany. Then there’s the limousines and body guards for our judges. It seems a select few Supreme Court jurists, mostly deputy administrative judges, have a car, driver and sometimes a body guard courtesy of our bankrupt state. Best me why they rate such an expense, but what the hell are you going to go with $2 billion a year anyway? Give someone a raise? C’mon. If any of you can figure these mysteries out, send me a note. As for me, it’s more likely that I will solve the Inverse Galois Problem in my spare time.
If all this makes no sense to you, consider our beloved legislature who decided to torture us with a new little ditty known as Domestic Relations Law 240(1-a). Now, just for yucks, the court must conduct a review of the statewide registry of Orders of Protection and sex offenders before signing custody orders. Nice. And faster than you can say Jiminy Cricket OCA developed a form for just such matters, called gf (for Godforsaken)-40a. Can they make this process any more complicated? Of course it begs the question of what a court is supposed to do when finding such an Order of Protection after the parties place a stipulation on the record of the court. Punt? Of course, I wonder if any of the geniuses who passed this bill ever spent more than an hour in any Family Court. Stay tuned.
The Second Department recently gave us a strange decision on issues of res judicata and collateral estoppel, whatever they are. I seem to remember that if you could have asserted a claim but didn’t, and a matter goes to trial, you cannot later assert such a claim. You get but one bite of the apple, so to speak. Such was the decision in O’Connell v. Corcoran, where the Court of Appeals denied 35 years of the acquisition of marital assets just because the wife “could have” litigated equitable distribution in Vermont but did not do so since the Vermont court deferred to New York. The aforesaid Second Department used such a principle to deny a constructive trust lawsuit which “could have” been litigated at the time of the divorce action but wasn’t. So it seemed pretty strange that in Mohan v. Sharma they allowed a second shot at the grounds for divorce. In an August 17, 2006 divorce complaint, Mr. Mohan pleaded cruelty and constructive abandonment. When he was defeated on fault grounds, he sued again on an actual abandonment that allegedly occurred from June 1, 2005 for more than one year. Clearly this “could have” been pleaded in the earlier action, but nonetheless the Second Department holds this is NOT collateral estoppel or res judicata. So, if at first you don’t succeed, try, try again, even if the grounds occurred before the prior complaint. All’s fair in love and the Second Department.
Every once in a while, I am really proud of the Third Department. Such a moment came on January 22, 2009 in the form of an opinion on gay marriages in Lewis v. New York State Department of Civil Service. We have been waiting for some time to see if a gay or lesbian marriage sanctioned by another state or country will be recognized in New York or whether such marriages violate our public policy. With a whole slew of amicus briefs, you knew this was going to be a significant case. The Department of Civil Service announced it would recognize same sex marriages for purpose of benefits under the family health insurance provided by the State of New York as a benefit to its employees. That brought a lawsuit by Kenneth Lewis and other taxpayers to declare this policy “illegal, unconstitutional and an unlawful disbursement of taxpayer funds.” As for me, I rather my taxpayer funds were use for this rather than a limo, driver and bodyguard for some deputy judge in New York City. In any event, Judge McNamara in Albany County granted summary judgment to the Department of Civil Service and the Third Department affirmed. Currently Connecticut, Massachusetts and if, Jerry Brown has his way, California recognize such marriages, as opposed to civil unions as in Vermont. Clearly holding that public policy is not offended by such marriages, the majority held, “New York’s public policy, however, cannot be said to abhor same-sex marriages.” Two judges concurred for different more narrow reasons without reaching the public policy issue. Of course, the conclusion here is that same sex marriage means same sex divorce if there are no public policy impediments. Welcome to the Domestic Relations Law my gay and lesbian friends!
Happy Pi Day.

Overzealous advocacy and Kidney Distributions

“Love is an exploding cigar we willingly smoke.” Lynda Barry (1953- )

“American husbands are the best in the world; no other husbands are so generous to their wives, or can be so easily divorced.” Elinor Glyn (1864-1943)

“The husband who wants a happy marriage should learn to keep his mouth shut and his checkbook open.” Groucho Marx (1890-1977)

And they say American entrepreneurship is dead. If you read this in time, you can get yourself to the Hilton Garden Inn in Austin Texas for the next Texas Divorce Bootcamp. United Airlines can get you there in about 6½ hours. A full day of learning for men only to teach you how to “plan, how to survive the initial assault of the Temporary Order hearings, how to devise a divorce strategy and how to win.” For a mere $250 including lunch, you can spend four hours learning about the wiles and tricks of those nefarious members of The Second Sex. So, if your practice seems to be lagging a little with the economy in the dumpster and all, and if the Legislature doesn’t seem to be progressing with gay marriage and it’s progeny, gay divorce, rent a room at the local Garden Inn and see who shows up for your own unique boot camp.
If you think that is crazy, how about a Divorce Party Planner? If you trundle on down to RevengeLady.com, you can get a copy of The Divorce Party Planner by Christine Gallagher, as well as lots of helpful advice, including the Top 10 Revenge Stories and a link to buy your very own “Don’t Get Mad, Get Even” license plate holder. Just in time for Valentine’s Day.
If all that man v. woman stuff is too much, how about a Divorce Expo, an egalitarian gathering of vendors and consumers for the recently and soon to be divorced. Sound crazy? One was held in Vienna in 2007, and several have been held in Brighton, England and Holland in 2008. One is being held at the Harbor Links Golf Course in Port Washington, New York on March 24 with hundreds of vendors of male enhancement pills, therapists, plastic surgeons and God knows what else. The possibilities are endless, so you may yet recover from Bernie Madoff’s defalcation of your Profit Sharing Plan.
Of course, that is just News of the Weird and really has no connection to the serious nature of matrimonial practice, as we all know. So what is new? How about the brand new, improved Rules of Professional Conduct, replacing the New York Code of Professional Responsibility and bringing New York in line with the ABA Model Rules of Professional Conduct. This hilarious tome goes into effect on April Fools Day, and defines “sexual relations”, among other things, as “touching the intimate part of the lawyer.” That’s a new one on me, and it sure is nice to know that someone thinks we have intimate parts. Of course, “intimate part” is not defined, but the new code clearly states that your law partner can have all the sex he or she wants with your client, intimate parts and all, and you cannot be disciplined if said partner does not participate in representing the client. What a relief!
Enough of that stuff. Time for a cold shower and a dose of reality, courtesy of the Perspicacious Prophets of the Empire State Plaza. Is there anything more execrable than someone trying to discharge your hard earned fees in bankruptcy? How about an opposing spouse who tries to skate on his obligation to pay your fees awarded in a custody proceeding in Family Court? Mom said it could not be discharged as a “domestic support obligation” defined in the Bankruptcy Law, whatever that is. Dad argued that legal fees are not support and therefore dischargeable like any Joe the Plumber’s bill. Giving a broad interpretation to the term “in the nature of support”, the Third Department thankfully held that legal fees cannot be discharged. Ross v. Sperow decided, appropriately enough on Christmas Eve. A tip of the hat to Justice Malone for that nice Christmas present to us all.
Until now, courts have been pretty strict with the filing requirements for Objections to an Order of a hearing examiner, dismissing such appeals for late filing or for failure to file the affidavit of service with the objections. The Third Department said just that in Monahan v. Hartka, 17 A.D.3rd 728 (3rd Dept., 2005) holding that you cannot even move for permission to extend the time limit requirements of Family Court Act §439(e). Now comes some wiggle room courtesy of Latimer v. Hartkin where the dismissal of Objections filed one day late was found to be an abuse of discretion. If the affidavit of service is not timely filed with the Objections, the Third Department will also excuse that defect. Rossiter v. Rossiter, 56 A.D.3rd 1011 (3rd Dept., 2008), which is contrary to a line of cases from those strict constructionists in the Second Department.
Sometimes, one can find gems in the footnotes, those little bits of dicta that sometimes explain the court’s thought process, even if not part of the ultimate determination. Such was the case in McGovern v. McGovern, a custody modification case involving a fourteen year old boy. In footnote 2, Justice Spain writing for the unanimous majority, lamented the denial of the Law Guardian’s request to permit the child to testify in camera in a Lincoln hearing without the parents being present. Such a procedure would have “limited the harm” of a child confronting his parents in open court. While there is some conflict among Family Court judges as to the propriety of resolving factual disputes on the basis of testimony not subject to cross examination, the Third Department seems to be begging for some limited inquiry into the child’s preferences to avoid open court testimony. Smart trial judges try to get consent to this process, as any parent who insists on his or her child’s testimony is only demonstrating parental deficits. It was good of the Third Department to point this out, although not directly asked to do so. We tea leaf readers of the appellate courts always enjoy the thought.
A comment on the fate of Barry L. Goldstein, a fellow practitioner who seems to have lost his way and ultimately his license to practice for five years for the overzealous representation of his client in a child custody matter. Matter of Goldstein decided in the waning hours of 2008 by the Second Department. Counselor Goldstein represented Yevgenia Shockome in a child custody matter that was contested in Dutchess Family Court before Judge Damien Amodeo and then in the Second Department and then in the United States District Court for the Southern District of New York in Matter of Shockome v. County of Dutchess. When she was held in contempt of court and imprisoned for custody visitation interference, he posted an article on the Battered Mothers Custody Conference website that is in part still available on the internet. Calling Judge Amodeo a Bad Judge, giving out his e-mail and phone number and calling his decision bizarre, giving the children to an abuser, and attacking and berating the mother. He then submitted an affidavit in an Order to Show Cause with such useful allegations as, “Clearly something is wrong with the system in Dutchess...there is no reason that Dutchess County has to remain on the side of the abuser.” There were other allegations of financial misconduct, but one wonders where the line is to be drawn between free speech, opinion and overzealous representation. In many ways, bad cases make bad law, and the sanctioning of Counselor Goldstein may be used to seek restrictions on other zealous advocates. For his part, Mr. Goldstein is unrepentant, writing in a blog following his suspension, “In their desire to retaliate against me for exposing an abusive judge they have placed the lives of battered women in danger.” I think we have not heard the last of this controversy.
Finally, because you asked, a thought about Dr. Richard Batista, a vascular surgeon who donated his kidney to his wife, only to have her be the recipient of the donations of her physical therapist. Dr. B is seeking the return of the kidney, which would kill her, or its value ($1.5 million) in equitable distribution. Hell, if you can get the value of an opera singer’s career, or a congressional career, why not give it a try? Stranger ideas have stuck like boiled pasta to the wall of matrimonial judicial excess. Reminds me of a case I had a few years ago involving breast implants that led to the filing of an adultery complaint shortly after implantation. Not to be misunderestimated, I requested the equitable distribution of one of the two, and I was promptly rebuked by opposing counsel. I then requested a “Physical Examination” under CPLR Rule 3121. Counsel politely declined, so I suggested temporary visitation under Domestic Relations Law §240(1) (a). The phone call was terminated. No sense of humor, that guy.
Happy Lupercalia and Canadian Flag Day