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