“He wants a no-fault divorce, whereas I would prefer to have the bastard crucified.” J.B. Handlesman
“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
“Every time that I have ever tried to help a woman out, I have been incarcerated." Jose “The Chemist” Canseco
So a group of people at the University of Arizona study 6.5 million people and conclude (drum roll please) that divorced people have a 23% greater chance of early death than married folks. Called “Divorce and Death A Meta-Analysis and Research Agenda for Clinical, Social, and Health Psychology”, they conclude that if you can get to age 65 before you divorce, then you have a better chance at beating these odds. But it ain’t worth it, is it? I’m just glad I’m not Kim Kardashian’s life insurance agent.
In other news of the strange, two lovebirds named Chuck and Chrissy became adulterers and then Chrissy jettisoned her hubby Ervin to marry Chuck. After 11 years, Chuck became the lover of Melissa and then divorced Chrissy on irreconcilable differences grounds. Got that? Well, then Chrissy sued Melissa for alienation of affection and the jury delivered a verdict of $87,500 plus $500 punitive damages. So, we now know the value of affections, at least in Mississippi, as the mid level Court of Appeals just affirmed in Simmons v. Strickland. And you thought no fault really meant no fault. However, don’t try this at home kiddies as New York eliminated causes of action for alienation of affection and seduction in 1935. Too bad.
Closer to home, our beloved Third Department took a rather strict constructionist view of Family Court pleadings when it upheld the summary dismissal of a violation petition for lack of specificity among other reasons. The parties had an order that, like many orders, codifies an agreement to micromanage the parenting of children. Here, the parties agreed that neither parent could smoke in the presence of the children, nor allow another to do so, and they agreed to properly supervise the children, whatever that means. Dad filed a violation petition alleging that Mom allowed one of the cherubs to smoke and be violent towards others. Join the club Dad. In any event, the petition was tossed by the Family Court before trial and the Third Department affirmed, saying that the petition lacked proper notice of dates and times and, by the way, you need to plead “how the mother's alleged failings ‘defeated, impaired, impeded or prejudiced’ his rights, as required to sustain a civil contempt finding.” So, be careful how you plead these things as the Third Department has little patience for conclusory pleadings, even in Family Court.
Speaking of micromanagement, in an evolving trend of making courts be all things to all people, the Second Department has just followed the Third Department in determining where a child goes to school. Way back when, the Court of Appeals wrote, “The court cannot regulate by its processes the internal affairs of the home. Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience, and self-restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children.” Well the difficulties are arising, as the court system shifts from dispensing justice to shepherding the unwashed of New York through virtually any issue. What did you expect after all with the “problem solving courts” and the unlimited scope of OCA’s 16 or so initiatives? In any event, the Third Department last April upheld a decision that only determined where a child was to go to school. In a four day trial, a Family Court in Suffolk County determined a child’s school district and the Second Department recently affirmed in Grant v. Grant. I can’t wait for the first appellate decision to determine whether a child eats Cheerios or Frosted Flakes for breakfast. We all know that parents who dislike one another will litigate virtually anything, but is that any reason for our courts to buy into that nonsense? I guess so, but for me the Court of Appeals had it right over seventy years ago.
In case you missed it, the Office of Court Administration published its budget request for 2012-2013. It has pared down its descriptions from last year’s 509 pages to a paltry 183 pages, and the cost for us is a mere $3.5 billion. This tome is a marvel of obfuscation. To save us all those ugly descriptions from last year, we get a request for “Judiciary Wide Maintenance Undistributed” for $12.5 million more than last year. Why not? An extra $6.4 million for Appellate Auxiliary Operations. Sure. Our state has plenty of jing, doesn’t it? Besides, they eliminated the $7 million (of the $16 million already spent) they were going to seek for the sleeping quarters for the five out of town Court of Appeals judges for a few days a year on Pine Street in Albany. Just to remind us, they listed only this item with a strikethrough, as though they thought of it at the last second. We’ll just have to make do, I guess. By way of example, the Texas Judicial Budget for 2012-2013 is a tad over $2 billion, and they service 4.5 million more people than we do. Florida with about 500,000 fewer people runs things on $437 million. Eleven years ago in 2000-2001, the budget request was only $1.28 billion. The most galling thing about this, of course, is the response of OCA. Rather than cut the burgeoning bureaucracy that creates forms, bungles initiatives, tortures judges’ staffs and compiles statistics that no one cares about, the only thing that makes sense to the bean counters is to close courthouses at 4:30 p.m. and to swamp our judges with reporting requirements when they have better things to do like moving litigants through the system to a resolution of disputes. The last I looked, that was the Prime Directive. The Rules of the Chief Administrative Judge promulgated in 1972 read, “The judicial duties of a judge take precedence over all the judge's other activities.” So there.
Finally, good news to all our lap dance friends. The Court of Appeals has granted leave to appeal that nefarious decision of the Third Department this year declaring lap dances subject to sales taxation. Keep those amicus briefs coming. ‘Tis the season. Feliz Navidad, y’all.
Sunday, December 11, 2011
Wednesday, October 05, 2011
Good and Evil
Did you ever get the impression that matrimonial disputes are a battle between good and evil? I don’t, but some lawyers do. I am always representing Dracula to their Van Helsing, and the struggle through the divorce process is a Crusade to vindicate the good, fair, pure, virtuous party [not my client] from the ravages of the diablerie maleficent [my client] for leaving the poor spouse and the kiddies for that bimbo waitress at the Colonie Diner or some such nefarious deed. You get the picture. In reality, there is usually a sharing of fault and goodness, and in any event it doesn’t matter to me since we are just talking about money here, and not pain and suffering type money, right? So the zealous representation of a client need not include the excoriation of the opposing spouse in letters, pleadings or briefs, OK? At least that’s what I hope. In any event, the Second Department issued a warning to the bar that such comments can be sanctionable to the attorney or the client under the accursed sanctions rule . In Wecker v. D’Ambrosio , the Second Department on its own motion ordered the parties and their counsel to show cause why sanctions should not awarded against a mother and/or her counsel. The sanctionable conduct? Prosecuting the appeal by impugning the father’s suitability as a custodial parent. Wow. Don’t we all do that? Not exactly. Here the mother’s brief described the father as a “misfit”, “miscreant” , “lazy lout” and a “psychopath”. For many lawyers, this is the grist for the custodial mill of affidavits and closing arguments. For the Second Department, it is sanctionable! Mom or her counsel crossed the line here, suggesting that the father was fencing stolen property for having a jewelry business, and stating that the father “paid the forensic psychologist for a biased report”. Then things got really dicey, as counsel asserted that “no judge in her right mind” would have given custody to the dad, and opined that the court’s “laughable”, “irrational” decision may have “resulted from corruption”. Boy, that’s telling them! So, the Second Department wants an affidavit of the good faith basis for these statements in the brief. I’d love to see that affidavit. “Well, er, you see, I know dad was a lazy miscreant because a birdie told me so on the way to the courthouse. And that remark about corrupt judge, well, I saw her taking a wad of cash from that psychopath psychologist just after his testimony.” Yeah, right.
Saturday, October 01, 2011
How Am I Doing, Mexican Divorces, Soooie and the Really Expensive Yacht
“Divorce is born of perverted morals and leads to vicious habits.” Pope Leo XIII (1878 to 1903)
“She cried, and the judge wiped her tears with my checkbook." Tommy Manville
“We were happily married for eight months. Unfortunately, we were married for four and a half years.” Nick Faldo, Golfer
Happy Pro Bono week folks. Get out there and help a poor person if you get a chance. The news for us matrimonial wonks is getting stranger and stranger, and I’m not just talking OCA here for a change. Did you see the fuss in Mexico City over temporary marriages? There is a proposal in the city assembly to make marriages a two year contract, renewable of course but if things don’t work out, adiós muchacho. It seems that half of Mexican marriages end in divorce, usually in the first two years, so why not?
And then there is the latest from our census bureau, finding that people in New York divorce at a slower rate than any state in the nation except New Jersey. For me, I’m headed to Alaska where the women divorce at the highest rate in the country. If you like representing men, try Arkansas. Woo pig sooie.
As our legislature struggles with a lack of money and leadership, our neighbors in Massachusetts have passed alimony standards for divorces, something our legislature is supposed to take up after a final report from the Law Revision Commission this year. It seems Bosox Nation divides alimony (maintenance to you DRL fans) into three categories: transitional, rehabilitative and reimbursement. The length of the alimony is generally no more than a percentage of the length of the marriage, running from 50% (5 years or less) to 80% (20 years or less). Cohabitation for 3 months ends things, whether one holds one out as a spouse. General alimony ends at the general retirement age, even if one does not retire. The amount? It shall not exceed the recipient’s actual need or 30% to 35% of the difference in the parties’ incomes. Just like our DRL, clear as mud. The early word is that this is a victory for the payor spouses, unlike New York’s recent temporary maintenance law aka the High Wage Earner Instant Depression Act of 2010.
The Third Department continues its post summer malaise without so much as a footnote on the matrimonial front, but the First Department gave us a cautionary tale in the form of a multimillion dollar yacht. This case is interesting in that it calls the husband and wife by their first names, Lucy and David, supposedly because their last name (Mimran) couldn’t be written without a chuckle. In any event, David and Lucy had a lovely yacht that they sold for a tad more than $9 million. Being in the throes of divorce litigation, they agreed to put the money in escrow even though their post nuptial provides Lucy with half the funds plus $2 million upon divorce. That wily David then defaulted on a loan for $11.8 million to Hallsville Capital, L.P. and they promptly tried to attach all of the yacht money in the escrow account. The Second Department in Hallsville v. Dobrish gave all of the money to the Hallsville partners because Lucy’s right to the money vested only on the parties’ divorce under the agreement. Avast, matey.
In honor of National Pro Bono Week (October 23 to October 29) I was asked to fashion the top ten reasons to do pro bono work. Here, in ascending order, are mine:
10. If you do not do it, no one else will. Rule 6.1 of the New York Rules of Professional Conduct calls pro bono participation "aspirational." You may aspire to play second base for the Red Sox, but you won't. If we only aspire, then we never accomplish anything.
9. It’s easy. The clients have very little at stake, but it means the world to them.
8. Judges appreciate that you perform free legal services for the poor, and they (a) remember and (b) talk among themselves. Hey, you never know when you'll need that adjournment or a few more days to respond to something.
7. They will write about you in the bar association newsletter and your mother will think you are really special.
6. No one is more grateful than the poor. They see very little of the milk of human kindness, and when they receive it you are everything to them. You will never receive such positive feedback among those who pay for your services.
5. Practicing law is a precious gift, and if you do not use it to give to others then you shouldn't be a lawyer. Try animal husbandry or stock brokerage.
4. You learn something. Where else do they divorce by reason of imprisonment for three consecutive years or skate on the rent because of the warranty of habitability, whatever that is?
3. If you do not know what you are doing, there are lots of nice people to help you. The best of the best in any specialty will help you through it for free. If they do not, they are not the best of the best.
2. It does not take much time. For the most part there is nothing to fight about, and most of the opposing litigants are just as happy to be (a) divorced, (b) rid of the tenant or (c) free of the debt that will never be collected.
1. It will make you better looking. Look what it did for me.
Finally, I could not let things go without a nod to my friends at the Office of Confused Adults (OCA). Not being content to make up rules and forms we do not need, they have solicited from us and others a Court User Survey Form to let them know how they are doing. Who could resist that? The form is attached with my humble comments. Feel free to weigh in with your own thoughts. Woo pig sooie.
“She cried, and the judge wiped her tears with my checkbook." Tommy Manville
“We were happily married for eight months. Unfortunately, we were married for four and a half years.” Nick Faldo, Golfer
Happy Pro Bono week folks. Get out there and help a poor person if you get a chance. The news for us matrimonial wonks is getting stranger and stranger, and I’m not just talking OCA here for a change. Did you see the fuss in Mexico City over temporary marriages? There is a proposal in the city assembly to make marriages a two year contract, renewable of course but if things don’t work out, adiós muchacho. It seems that half of Mexican marriages end in divorce, usually in the first two years, so why not?
And then there is the latest from our census bureau, finding that people in New York divorce at a slower rate than any state in the nation except New Jersey. For me, I’m headed to Alaska where the women divorce at the highest rate in the country. If you like representing men, try Arkansas. Woo pig sooie.
As our legislature struggles with a lack of money and leadership, our neighbors in Massachusetts have passed alimony standards for divorces, something our legislature is supposed to take up after a final report from the Law Revision Commission this year. It seems Bosox Nation divides alimony (maintenance to you DRL fans) into three categories: transitional, rehabilitative and reimbursement. The length of the alimony is generally no more than a percentage of the length of the marriage, running from 50% (5 years or less) to 80% (20 years or less). Cohabitation for 3 months ends things, whether one holds one out as a spouse. General alimony ends at the general retirement age, even if one does not retire. The amount? It shall not exceed the recipient’s actual need or 30% to 35% of the difference in the parties’ incomes. Just like our DRL, clear as mud. The early word is that this is a victory for the payor spouses, unlike New York’s recent temporary maintenance law aka the High Wage Earner Instant Depression Act of 2010.
The Third Department continues its post summer malaise without so much as a footnote on the matrimonial front, but the First Department gave us a cautionary tale in the form of a multimillion dollar yacht. This case is interesting in that it calls the husband and wife by their first names, Lucy and David, supposedly because their last name (Mimran) couldn’t be written without a chuckle. In any event, David and Lucy had a lovely yacht that they sold for a tad more than $9 million. Being in the throes of divorce litigation, they agreed to put the money in escrow even though their post nuptial provides Lucy with half the funds plus $2 million upon divorce. That wily David then defaulted on a loan for $11.8 million to Hallsville Capital, L.P. and they promptly tried to attach all of the yacht money in the escrow account. The Second Department in Hallsville v. Dobrish gave all of the money to the Hallsville partners because Lucy’s right to the money vested only on the parties’ divorce under the agreement. Avast, matey.
In honor of National Pro Bono Week (October 23 to October 29) I was asked to fashion the top ten reasons to do pro bono work. Here, in ascending order, are mine:
10. If you do not do it, no one else will. Rule 6.1 of the New York Rules of Professional Conduct calls pro bono participation "aspirational." You may aspire to play second base for the Red Sox, but you won't. If we only aspire, then we never accomplish anything.
9. It’s easy. The clients have very little at stake, but it means the world to them.
8. Judges appreciate that you perform free legal services for the poor, and they (a) remember and (b) talk among themselves. Hey, you never know when you'll need that adjournment or a few more days to respond to something.
7. They will write about you in the bar association newsletter and your mother will think you are really special.
6. No one is more grateful than the poor. They see very little of the milk of human kindness, and when they receive it you are everything to them. You will never receive such positive feedback among those who pay for your services.
5. Practicing law is a precious gift, and if you do not use it to give to others then you shouldn't be a lawyer. Try animal husbandry or stock brokerage.
4. You learn something. Where else do they divorce by reason of imprisonment for three consecutive years or skate on the rent because of the warranty of habitability, whatever that is?
3. If you do not know what you are doing, there are lots of nice people to help you. The best of the best in any specialty will help you through it for free. If they do not, they are not the best of the best.
2. It does not take much time. For the most part there is nothing to fight about, and most of the opposing litigants are just as happy to be (a) divorced, (b) rid of the tenant or (c) free of the debt that will never be collected.
1. It will make you better looking. Look what it did for me.
Finally, I could not let things go without a nod to my friends at the Office of Confused Adults (OCA). Not being content to make up rules and forms we do not need, they have solicited from us and others a Court User Survey Form to let them know how they are doing. Who could resist that? The form is attached with my humble comments. Feel free to weigh in with your own thoughts. Woo pig sooie.
10 Reasons to Do Pro Bono
In honor of National Pro Bono Week this October:
10. If you do not do it, no one else will. Rule 6.1 of the New York Rules of Professional Conduct calls pro bono participation "aspirational." You may aspire to play second base for the Red Sox, but you won't. If we only aspire, then we never accomplish anything.
9. It's easy. The clients have very little at stake, but it means the world to them.
8. Judges appreciate that you perform free legal services for the poor, and they (a) remember and (b) talk among themselves. Hey, you never know when you'll need that adjournment or a few more days to respond to something.
7. They will write about you in the bar association newsletter and your mother will think you are really special.
6. No one is more grateful than the poor. They see very little of the milk of human kindness, and when they receive it you are everything to them. You will never receive such positive feedback among those who pay for your services.
5. Practicing law is a precious gift, and if you do not use it to give to others then you shouldn't be a lawyer. Try animal husbandry or stock brokerage.
4. You learn something. Where else do they divorce by reason of imprisonment for three consecutive years or skate on the rent because of the warranty of habitability, whatever that is?
3. If you do not know what you are doing, there's lots of nice people to help you. The best of the best in any specialty will help you through it for free. If they do not, they are not the best of the best.
2. It does not take much time. For the most part there is nothing to fight about, and most of the opposing litigants are just as happy to be (a) divorced, (b) rid of the tenant or (c) free of the debt that will never be collected.
1. It will make you better looking. Look what it did for me.
10. If you do not do it, no one else will. Rule 6.1 of the New York Rules of Professional Conduct calls pro bono participation "aspirational." You may aspire to play second base for the Red Sox, but you won't. If we only aspire, then we never accomplish anything.
9. It's easy. The clients have very little at stake, but it means the world to them.
8. Judges appreciate that you perform free legal services for the poor, and they (a) remember and (b) talk among themselves. Hey, you never know when you'll need that adjournment or a few more days to respond to something.
7. They will write about you in the bar association newsletter and your mother will think you are really special.
6. No one is more grateful than the poor. They see very little of the milk of human kindness, and when they receive it you are everything to them. You will never receive such positive feedback among those who pay for your services.
5. Practicing law is a precious gift, and if you do not use it to give to others then you shouldn't be a lawyer. Try animal husbandry or stock brokerage.
4. You learn something. Where else do they divorce by reason of imprisonment for three consecutive years or skate on the rent because of the warranty of habitability, whatever that is?
3. If you do not know what you are doing, there's lots of nice people to help you. The best of the best in any specialty will help you through it for free. If they do not, they are not the best of the best.
2. It does not take much time. For the most part there is nothing to fight about, and most of the opposing litigants are just as happy to be (a) divorced, (b) rid of the tenant or (c) free of the debt that will never be collected.
1. It will make you better looking. Look what it did for me.
Saturday, July 16, 2011
Commodities Trading, Wife Beating Lawyers and the Forms Goddess
“I never expected to get rich as a judge, but I never expected to get poor either,” Robert A. Spolzino, Former Associate Justice Appellate Division Second Department, partner at Wilson Elser
“A lot of people have asked me how short I am. Since my last divorce, I think I'm about $100,000 short.” Mickey Rooney
For many years I have called The Appellate Division, Third Department my Favorite Appellate Division. The Sages of State Street never failed to explain the facts of each case and provide us with their reasoning, unlike the terse First and Second Departments with their myriad affirmances based on the unknown decisions of the court below. The Fourth is somewhat better although often cryptic and sententious. Well, they are my favorites no more, ever since they senselessly declared that lap dances are subject to sales tax on June 9, 2011, ignoring persuasive expert testimony that such endeavors constituted dramatic or musical arts. Shame on them. They did extract a little redemption from me by deciding one of the earliest cases involving the Temporary Maintenance Guidelines of the new Domestic Relations Law Section 236B(5-a). You know that one, otherwise known as the High Wage Earner Instant Despondency Act of 2010. Not being content to come up with some simplistic formula for support of a spouse based on needs or judicial discretion, our state based temporary maintenance on a definition of income that takes one’s breath away compared to every other state (Gross income less FICA) and pounds a litigant for usually 30% of that sum less 20% of the income of the poor “spouse with the lower income.” The Third Department in Ingersoll held that such temporary maintenance guidelines apply only to cases started after October 12, 2010 and therefore not applicable to Mr. Ingersoll. Much to his relief, they then reduced his temporary support obligation from $677.44 per month to $450 per month or about $227 per month. I am guessing that the filing, printing and legal fees for the appeal were a lot more than the support that was saved, but that is why I love matrimonial practice. Reminds me of the quip from George Sauders, “Irony is just honesty with the volume cranked up.”
Remember the guy who was denied the ability to practice in New York because of his failure to pay his student loans? He was denied twice by the Appellate Division, Third Department, finding that, “His recalcitrance in dealing with the lenders has been and continues to be incompatible with a lawyer's duties and responsibilities as a member of the bar.” Of course they have never disbarred a lawyer who walks out on his or her financial obligations by seeking bankruptcy protection after becoming a lawyer. Just hard times I guess. So what if you beat up your wife so badly that you have to plead guilty to assault and then three years later beat her up so badly that you plead to felony unlawful wounding and get sentenced to three years in jail of which you have to serve 12 months. Well, I guess that is not incompatible with a lawyer’s duties as a member of the bar, because this lawyer, one Peter H. Jacoby, was suspended for 36 months by the First Department and then he will be allowed to practice law again. Makes no sense to me. They affirmed a Hearing Panel’s findings of mitigation in that the wife started the fight and Mr. Jacoby suffering from “intermittent explosive syndrome” for which he is being treated. A lovely view of domestic violence perpetrated by one of our own.
So with the Dog Days of Summer upon us the App Divs have slowed the pace of matrimonial wisdom making us look for such love in all the wrong places. This led me to a commodity trading case in the Court of Appeals decided at the end of June. Although they were answering an inquiry from the United States Court of Appeals for the Second Circuit in a case entitled Commodities Futures Trading Commission v. Walsh, this case is chock full of matrimonial gems. I kid you not. You see Mr. Walsh made a boatload of money by allegedly misappropriating $550 million from various funds that he managed with a partner. In 2006 he divorced his wife and gave her over $31 million in real estate, cash and a distributive award to be paid over time. So the Commodities Futures Trading Commission wants the money back, claiming it is the proceeds of fraud. The ex-wife of Mr. Walsh of course knew nothing about the fraud and she wants to keep the money. So the Second Circuit asked the Court of Appeals to resolve two questions: (a) Are the proceeds of fraud subject to equitable distribution? (b) Does a spouse pay fair consideration in a divorce settlement agreement when she relinquishes a good faith claim to the marital estate where all or part thereof is the proceeds of fraud? The answers are (a) yes and (b) yes, which allows Mr. Walsh’s ex-wife to keep every dime of his allegedly ill begotten gains. As Judge Graffeo wrote, “Ex-spouses have a reasonable expectation that, once their marriage has been dissolved and their property divided, they will be free to move on with their lives.” The Court of Appeals even states that custody and visitation concessions could be considered fair consideration. You see, matrimonial law is everywhere, even in the Second Circuit Court of Appeals.
What else is new? Apparently believing that marital counseling works and dammit we can order it to work, the Third Department affirmed a custodial determination except to direct “that the parents choose a new
therapist and that both parents actively participate and fully cooperate in family counseling.” Good luck with that one. As thought that wasn’t enough, they directed the Family Court to “craft an order that includes provisions for said counseling, and parenting education and short-term monitoring by the court, where necessary, to insure the success of the counseling process.” Ah yes, 2011, the Year of No Therapist Left Behind. I often tell clients that no court can make the other parent be a good parent. Apparently the Third Department thinks otherwise.
Finally what would a new season be without another dumb form courtesy of the Forms Goddess? Not content to torture us by mandating that we compile statistics on our clients that have nothing to do with anything, we now have Administrative Order 471/11 which requires a new eight page Preliminary Conference Stipulation Order be completed and signed by the litigants, the attorneys and the judge at a preliminary conference. Why? Beats me. Experienced jurists and matrimonial counsel can shepherd our clients though the misery of divorce without this stuff, but I guess we are not be trusted so we now have to charge our clients to prepare a new lengthy form that asks if a translator is needed, the names of children even in childless marriages, and the “nature” of any agreements whatever that is. “Judge, the nature of the agreement is paper with ink on it.” The form has three separate questions on custody (custody, parenting time and decision making), as though they were separate issues. The Third Department says you cannot have joint custody without joint decision making, but I guess OCA thinks you can. The form requires parental education information even though the New York Parent Education & Awareness Program has been eliminated, and a specific acknowledgment of knowledge of alternative dispute resolution methods, maybe like the Jacoby Intermittent Explosive Syndrome Dispute Resolution Method, supra. It also prevents every litigant from deleting e-mails, EVEN ONES NOT RELATED TO THE DIVORCE, such as spam. There’s lots more, but you get the gist. This thing makes me sick, but the good news is that it has yet to hit the website of the Unified Court System and maybe we can just ignore it for the benefit of our clients and the sanity of our staffs. One can only hope.
Happy International Civility Month
“A lot of people have asked me how short I am. Since my last divorce, I think I'm about $100,000 short.” Mickey Rooney
For many years I have called The Appellate Division, Third Department my Favorite Appellate Division. The Sages of State Street never failed to explain the facts of each case and provide us with their reasoning, unlike the terse First and Second Departments with their myriad affirmances based on the unknown decisions of the court below. The Fourth is somewhat better although often cryptic and sententious. Well, they are my favorites no more, ever since they senselessly declared that lap dances are subject to sales tax on June 9, 2011, ignoring persuasive expert testimony that such endeavors constituted dramatic or musical arts. Shame on them. They did extract a little redemption from me by deciding one of the earliest cases involving the Temporary Maintenance Guidelines of the new Domestic Relations Law Section 236B(5-a). You know that one, otherwise known as the High Wage Earner Instant Despondency Act of 2010. Not being content to come up with some simplistic formula for support of a spouse based on needs or judicial discretion, our state based temporary maintenance on a definition of income that takes one’s breath away compared to every other state (Gross income less FICA) and pounds a litigant for usually 30% of that sum less 20% of the income of the poor “spouse with the lower income.” The Third Department in Ingersoll held that such temporary maintenance guidelines apply only to cases started after October 12, 2010 and therefore not applicable to Mr. Ingersoll. Much to his relief, they then reduced his temporary support obligation from $677.44 per month to $450 per month or about $227 per month. I am guessing that the filing, printing and legal fees for the appeal were a lot more than the support that was saved, but that is why I love matrimonial practice. Reminds me of the quip from George Sauders, “Irony is just honesty with the volume cranked up.”
Remember the guy who was denied the ability to practice in New York because of his failure to pay his student loans? He was denied twice by the Appellate Division, Third Department, finding that, “His recalcitrance in dealing with the lenders has been and continues to be incompatible with a lawyer's duties and responsibilities as a member of the bar.” Of course they have never disbarred a lawyer who walks out on his or her financial obligations by seeking bankruptcy protection after becoming a lawyer. Just hard times I guess. So what if you beat up your wife so badly that you have to plead guilty to assault and then three years later beat her up so badly that you plead to felony unlawful wounding and get sentenced to three years in jail of which you have to serve 12 months. Well, I guess that is not incompatible with a lawyer’s duties as a member of the bar, because this lawyer, one Peter H. Jacoby, was suspended for 36 months by the First Department and then he will be allowed to practice law again. Makes no sense to me. They affirmed a Hearing Panel’s findings of mitigation in that the wife started the fight and Mr. Jacoby suffering from “intermittent explosive syndrome” for which he is being treated. A lovely view of domestic violence perpetrated by one of our own.
So with the Dog Days of Summer upon us the App Divs have slowed the pace of matrimonial wisdom making us look for such love in all the wrong places. This led me to a commodity trading case in the Court of Appeals decided at the end of June. Although they were answering an inquiry from the United States Court of Appeals for the Second Circuit in a case entitled Commodities Futures Trading Commission v. Walsh, this case is chock full of matrimonial gems. I kid you not. You see Mr. Walsh made a boatload of money by allegedly misappropriating $550 million from various funds that he managed with a partner. In 2006 he divorced his wife and gave her over $31 million in real estate, cash and a distributive award to be paid over time. So the Commodities Futures Trading Commission wants the money back, claiming it is the proceeds of fraud. The ex-wife of Mr. Walsh of course knew nothing about the fraud and she wants to keep the money. So the Second Circuit asked the Court of Appeals to resolve two questions: (a) Are the proceeds of fraud subject to equitable distribution? (b) Does a spouse pay fair consideration in a divorce settlement agreement when she relinquishes a good faith claim to the marital estate where all or part thereof is the proceeds of fraud? The answers are (a) yes and (b) yes, which allows Mr. Walsh’s ex-wife to keep every dime of his allegedly ill begotten gains. As Judge Graffeo wrote, “Ex-spouses have a reasonable expectation that, once their marriage has been dissolved and their property divided, they will be free to move on with their lives.” The Court of Appeals even states that custody and visitation concessions could be considered fair consideration. You see, matrimonial law is everywhere, even in the Second Circuit Court of Appeals.
What else is new? Apparently believing that marital counseling works and dammit we can order it to work, the Third Department affirmed a custodial determination except to direct “that the parents choose a new
therapist and that both parents actively participate and fully cooperate in family counseling.” Good luck with that one. As thought that wasn’t enough, they directed the Family Court to “craft an order that includes provisions for said counseling, and parenting education and short-term monitoring by the court, where necessary, to insure the success of the counseling process.” Ah yes, 2011, the Year of No Therapist Left Behind. I often tell clients that no court can make the other parent be a good parent. Apparently the Third Department thinks otherwise.
Finally what would a new season be without another dumb form courtesy of the Forms Goddess? Not content to torture us by mandating that we compile statistics on our clients that have nothing to do with anything, we now have Administrative Order 471/11 which requires a new eight page Preliminary Conference Stipulation Order be completed and signed by the litigants, the attorneys and the judge at a preliminary conference. Why? Beats me. Experienced jurists and matrimonial counsel can shepherd our clients though the misery of divorce without this stuff, but I guess we are not be trusted so we now have to charge our clients to prepare a new lengthy form that asks if a translator is needed, the names of children even in childless marriages, and the “nature” of any agreements whatever that is. “Judge, the nature of the agreement is paper with ink on it.” The form has three separate questions on custody (custody, parenting time and decision making), as though they were separate issues. The Third Department says you cannot have joint custody without joint decision making, but I guess OCA thinks you can. The form requires parental education information even though the New York Parent Education & Awareness Program has been eliminated, and a specific acknowledgment of knowledge of alternative dispute resolution methods, maybe like the Jacoby Intermittent Explosive Syndrome Dispute Resolution Method, supra. It also prevents every litigant from deleting e-mails, EVEN ONES NOT RELATED TO THE DIVORCE, such as spam. There’s lots more, but you get the gist. This thing makes me sick, but the good news is that it has yet to hit the website of the Unified Court System and maybe we can just ignore it for the benefit of our clients and the sanity of our staffs. One can only hope.
Happy International Civility Month
Sunday, May 22, 2011
The Fine Art of Judge Shopping
“The old theory was marry an older man, because they're more mature. But the new theory is: Men don't mature. Marry a younger one." Rita Rudner
“You know, of course, that the Tasmanians, who never committed adultery, are now extinct.” William Somerset Maugham
You knew I would have it all wrong. With the advent of any legislative change to our little matrimonial world, the pundits come out of the woodwork because (a) no one really knows the answer and (b) it is fun to handicap the workings of the judicial mind. So, when no fault rolled around the day after Columbus Day, 2010, I had the pleasure of adding my two cents to the crystal ball folks. After all, it would be months before some trial court weighed in on the issues and about half a year before things trickled up to the Appellate Divisions. By then, no one would remember what I said, right? So I opined that you could not bring a no fault divorce if a fault divorce had been commenced before Columbus Day. Also, since one spouse can declare the marriage irretrievably broken, how could there be any issue of fault? So jury and nonjury fault trials would be a thing of the past. Well, we now have the first rumblings from the trial bench and it seems I was wrong on both counts. In Heintz v. Heintz, Mrs. Heintz commenced an action on October 1, 2010, presumably to avoid those nasty legal counsel fee and maintenance presumptions of the new laws. On November 24, 2010 Mr. Heintz filed for divorce under the no fault statute, and then he appeared in Mrs. Heintz’ action on December 1. Since you cannot have two lawsuits seeking the same relief, Mrs. Heintz moved to dismiss. Under my view of the world, the motion should be granted but Justice Daniel Palmieri held otherwise, citing the Court of Appeals case of Motler which held no such thing. Motler allowed someone to withdraw a counterclaim to get the benefit of the then new Equitable Distribution law, but it did not hold that the new action could proceed while the old action was pending.
Closer to home I went Oh for Two with a decision of the Fourth District’s Supreme Court Justice Robert Muller in Strack v. Strack. Here a no fault divorce was commenced and a motion to dismiss was made because (a) the complaint lacked particularity, (b) there was no statement under oath that the marriage was irretrievably broken for six or more months as required by Domestic Relations Law Section 170(7), and the statute of limitations! This last argument is beyond me, since irretrievable means irretrievable. It cannot be irretrievable 6 years ago but retrievable today, could it? I guess so as Justice Muller held that the five year statute of limitations applies. Brushing aside my view that you cannot have a serious trial on fault anymore, at least if California and other states are to be believed, Justice Muller states that there is not only a right to a trial of this issue, but a jury trial also if anyone is so foolish. “I don’t care what she says, I can retrieve this marriage, especially if I have to pay those damn maintenance guidelines.” He does wisely opine that the view of whether a marriage is irretrievable does not have to be shared by both parties and he sets the fault issue down for a trial before the other stuff gets sorted out.
Oh well. Until these issues get to the appellate courts, they are at least something to talk about in a Memo of Law or a cold brew on a Friday night at Sperry’s.
As we all know, the prime determiner of child support is the income of the noncustodial spouse. Sure we pay lip service to all other issues, but for the most part the biggest factor is income. When it comes to that pesky $130,000 cap that has been around since January of 2010, you do get into need so the more you need the more you are likely to blast through that cap. Although the Third Department has blasted through the cap to the extent of $500,000, don’t rely on that. I was thinking of all this when I read about the lovely Laura Govan, the wife of Gilbert Jay Arenas, Jr., a gifted basketball player currently toiling for the Orlando Magic. It seems Ms. Govan recently submitted a budget in her support claim for what she needs to hold body and soul together for herself and three cherubs. Clothes for the kiddies? $8,000 per month on the old American Express black card. Housekeepers (but no nanny)? $5,000 per month. Landscaping? $100,000. Train set? $100,000. Just a car wash costs $675. A trip to FAO Schwartz for some kid’s toys? $35,000. Heck, $5,000 a month just to feed the sharks in the backyard pool and grotto. When you consider that the oldest child is five, this is some kind of loot. If she needs a job, I’ll hire her to help my clients fill out that nasty Statement of Net Worth that the Office of Court Administration requires. As for Mr. Arenas’ attorney, a guy named David Cornwall, he says Ms. Govan’s claims contain “numerous inaccuracies and inflammatory statements by a disgruntled and vindictive woman.” Nice. I wonder what kind of California Civility Rules allows him to say something like that in public?
Finally I would like to thank our Chief Judge Jonathan Lippman for approving for Public Comment a new Rule 151 of the Chief Administrator of the Courts. This rule prohibits a judge from being assigned to a case if the lawyer has contributed $2,500 or more to that judge’s campaign for elective office within two years. Personally I am not much of a contributor to judicial campaigns, but I have few judges who have not seen eye to eye with me over the years who will be getting a nice bi-annual check even if he or she is not running for a decade or so. Even though a judge is prohibited from knowing the amount of any contribution, this is a nice way to reinstitute the ancient practice of judge shopping to our upstate lexicon. I daresay it only takes a few dozen lawyers to conflict out every elected Supreme Court and Family Court Judge in the Capital District so a nice industry could be fashioned to pick and choose via the use of “trial counsel” for any particular case. In fact, I am filing next week the Get Rid of Your Judge, LLC with the Secretary of State. Anyone want to become a member?
“You know, of course, that the Tasmanians, who never committed adultery, are now extinct.” William Somerset Maugham
You knew I would have it all wrong. With the advent of any legislative change to our little matrimonial world, the pundits come out of the woodwork because (a) no one really knows the answer and (b) it is fun to handicap the workings of the judicial mind. So, when no fault rolled around the day after Columbus Day, 2010, I had the pleasure of adding my two cents to the crystal ball folks. After all, it would be months before some trial court weighed in on the issues and about half a year before things trickled up to the Appellate Divisions. By then, no one would remember what I said, right? So I opined that you could not bring a no fault divorce if a fault divorce had been commenced before Columbus Day. Also, since one spouse can declare the marriage irretrievably broken, how could there be any issue of fault? So jury and nonjury fault trials would be a thing of the past. Well, we now have the first rumblings from the trial bench and it seems I was wrong on both counts. In Heintz v. Heintz, Mrs. Heintz commenced an action on October 1, 2010, presumably to avoid those nasty legal counsel fee and maintenance presumptions of the new laws. On November 24, 2010 Mr. Heintz filed for divorce under the no fault statute, and then he appeared in Mrs. Heintz’ action on December 1. Since you cannot have two lawsuits seeking the same relief, Mrs. Heintz moved to dismiss. Under my view of the world, the motion should be granted but Justice Daniel Palmieri held otherwise, citing the Court of Appeals case of Motler which held no such thing. Motler allowed someone to withdraw a counterclaim to get the benefit of the then new Equitable Distribution law, but it did not hold that the new action could proceed while the old action was pending.
Closer to home I went Oh for Two with a decision of the Fourth District’s Supreme Court Justice Robert Muller in Strack v. Strack. Here a no fault divorce was commenced and a motion to dismiss was made because (a) the complaint lacked particularity, (b) there was no statement under oath that the marriage was irretrievably broken for six or more months as required by Domestic Relations Law Section 170(7), and the statute of limitations! This last argument is beyond me, since irretrievable means irretrievable. It cannot be irretrievable 6 years ago but retrievable today, could it? I guess so as Justice Muller held that the five year statute of limitations applies. Brushing aside my view that you cannot have a serious trial on fault anymore, at least if California and other states are to be believed, Justice Muller states that there is not only a right to a trial of this issue, but a jury trial also if anyone is so foolish. “I don’t care what she says, I can retrieve this marriage, especially if I have to pay those damn maintenance guidelines.” He does wisely opine that the view of whether a marriage is irretrievable does not have to be shared by both parties and he sets the fault issue down for a trial before the other stuff gets sorted out.
Oh well. Until these issues get to the appellate courts, they are at least something to talk about in a Memo of Law or a cold brew on a Friday night at Sperry’s.
As we all know, the prime determiner of child support is the income of the noncustodial spouse. Sure we pay lip service to all other issues, but for the most part the biggest factor is income. When it comes to that pesky $130,000 cap that has been around since January of 2010, you do get into need so the more you need the more you are likely to blast through that cap. Although the Third Department has blasted through the cap to the extent of $500,000, don’t rely on that. I was thinking of all this when I read about the lovely Laura Govan, the wife of Gilbert Jay Arenas, Jr., a gifted basketball player currently toiling for the Orlando Magic. It seems Ms. Govan recently submitted a budget in her support claim for what she needs to hold body and soul together for herself and three cherubs. Clothes for the kiddies? $8,000 per month on the old American Express black card. Housekeepers (but no nanny)? $5,000 per month. Landscaping? $100,000. Train set? $100,000. Just a car wash costs $675. A trip to FAO Schwartz for some kid’s toys? $35,000. Heck, $5,000 a month just to feed the sharks in the backyard pool and grotto. When you consider that the oldest child is five, this is some kind of loot. If she needs a job, I’ll hire her to help my clients fill out that nasty Statement of Net Worth that the Office of Court Administration requires. As for Mr. Arenas’ attorney, a guy named David Cornwall, he says Ms. Govan’s claims contain “numerous inaccuracies and inflammatory statements by a disgruntled and vindictive woman.” Nice. I wonder what kind of California Civility Rules allows him to say something like that in public?
Finally I would like to thank our Chief Judge Jonathan Lippman for approving for Public Comment a new Rule 151 of the Chief Administrator of the Courts. This rule prohibits a judge from being assigned to a case if the lawyer has contributed $2,500 or more to that judge’s campaign for elective office within two years. Personally I am not much of a contributor to judicial campaigns, but I have few judges who have not seen eye to eye with me over the years who will be getting a nice bi-annual check even if he or she is not running for a decade or so. Even though a judge is prohibited from knowing the amount of any contribution, this is a nice way to reinstitute the ancient practice of judge shopping to our upstate lexicon. I daresay it only takes a few dozen lawyers to conflict out every elected Supreme Court and Family Court Judge in the Capital District so a nice industry could be fashioned to pick and choose via the use of “trial counsel” for any particular case. In fact, I am filing next week the Get Rid of Your Judge, LLC with the Secretary of State. Anyone want to become a member?
Forms Follow Functions
“Getting divorced because you don’t love a man is almost as silly as getting married just because you do.” Zsa Zsa Gabor
“I never hated a man enough to give him his diamonds back.” Zsa Zsa Gabor
You’re kidding me, right? Our friends at OCA (Office of Confused Adults) are celebrating the loss of $170 million from their $2.7 Billion budget request by requiring a slew of silly useless forms that are driving up the cost of divorces and everything else. Why? Beats me. Here’s my favorite. Sometime ago the Powers that Be thought it was a good idea to create a new form UCS 111 that one could fill out in a New York minute because it allowed for such things as NA (not applicable) and UK (I dunno). It asked for the percentage of distribution to each party, which to me is always unknown as I can never fathom the value of the little treasures left in the home. I am sure this went to some vault at 25 Beaver Street in NYC so some bean counters can compile statistics on the child support standards or the number of children in the average New York divorce or something. No big deal. Now because of the “authority vested in me” the Chief Administrative Judge has gone hog wild by requiring a new UCS 111A for use only in Albany and seven other counties outside of the Third and Fourth districts. This form is unique in that (a) it is the only form not available online at the handy Unified Court System website, (b) it requires a No. 2 pencil or blue or black ink and (c) it has a bunch of little circles that need to be filled in like the Iowa Tests of Basic Skills that are given to grade school kids all over the country. I tip my hat to anyone who can fill this thing out in black or blue ink as I had to erase stuff at least five times. It asks for nice things such as whether “the formula” was used in determining final maintenance even though THERE IS NO FORMULA FOR FINAL MATINENANCE. Duh. They want to know the health of each party, but only Ο Good, Ο Fair or Ο Poor. Good luck on filling that one Doc, and be sure you fill in the “O” completely now. They want to know the value of any “other financial obligations” aside from maintenance, child support and debt. I am still trying to figure that one out. Finally they want to know the gross value of any professional license divided, but not the amount distributed. What possible use is there for that information? Now this four page gem has to be mailed directly to OCA in New York City. It cannot be folded or stapled under penalty of death. It takes a good half an hour to an hour to complete unless you are a lot more dexterous than I am. Heaven help the pro se litigants who have to navigate this Byzantine tome. The form says it is for the Law Revision Commission’s study on maintenance guidelines which is curious since the preliminary report of the LRV was due May 13 and this form was only first required on April Fool’s Day. When I inquired of the minions at OCA if I could get this thing in Microsoft Word like all the other forms I was told, “Nope, get a number 2 pencil and see the Chief Clerk.” Who is that? St. Peter? No, you cannot get the UCS 111A on the OCA website, but you CAN get the hand written bail undertaking of Dominique Strauss-Kahn. I know that’s a popular item for my clients. You cannot make this stuff up.
As if that wasn’t bad enough we now have the nifty new Matrimonial Addendum to the Request for Judicial Intervention, known hereabouts as the RJI. Do you know what an RJI is? It is a little letter to the Supreme Court Clerk to assign a judge to a case for which we pay $95. Again, no big deal. Well that wasn’t good enough, so now it has a Matrimonial Addendum otherwise known as form UCS-840M (3/2011). Where is Franz Kafka when you really need him? This thing requires all the prior names ever used by any litigant. In my case that would be freckle face, duck walker, copper head, four eyes, Ashkenazi snout and about thirty other monikers I cannot write here. For no known reason, in order to get a judge assigned you now need to list all addresses for both litigants for the past three years and the litigants’ dates of birth.
Did you know we have a form that comes with its own warning? There is an eight page Stipulation/Order form for contested matrimonials that is thankfully ignored by most of our judges because it serves no purpose. Now it says on the Unified Court system website, “Warning: Prior to using this form, please contact your local Supreme Court Clerk’s Office to determine if they have additional requirements.” Gadzooks. Makes me wonder that kind of horrors befall you if you try to use this thing unsupervised.
And in case you missed it, the courts are now closed for business as of 4:30 p.m. unless the trial judge gets special dispensation from some Übermensch who spends his or her time waiting by the phone late in the day to see what jurist has the temerity to waste the precious resources of the court system in pursuit of someone’s justiciable dispute.
Of course, one needs to look at the big picture here. For example the Chief Judge has made his sacrifices. No, not in firing the pedants who create and compile the worthless forms, and not eliminating the civil servants who slave away at the new “problem-solving” courts. He has announced that after three years, work is going to stop on the $23 million sleeping quarters for the five out of town Court of Appeals judges for the 66 days they are in Albany. Court of Appeals spokesman Gary Spencer channeled Arnold Schwarzenegger’s conscience when he said, “In the context of the times, it did not look like the best thing to be doing." Too bad. Someone should tell that to Bunkoff General Contractors who must not have seen the memo.
In any event, we seem to have lost sight of the real purpose of the court system, which is to help people resolve their differences in a civil, timely manner. Everything that is happening now is contrary to that prime directive. As matrimonial lawyers, we are restricted to charging an hourly rate, and no one thinks of how all this red tape increases the cost of having people get on with their lives after the breakup of their marriages. Is it that important to compile statistics, or should we just eliminate everyone and everything that does not help people resolve their disputes? Let the judges have some autonomy to help us get people where they need to be without all this rigmarole. Isn’t that why we became lawyers and judges in the first place, or did I miss something along the way? I probably did.
“I never hated a man enough to give him his diamonds back.” Zsa Zsa Gabor
You’re kidding me, right? Our friends at OCA (Office of Confused Adults) are celebrating the loss of $170 million from their $2.7 Billion budget request by requiring a slew of silly useless forms that are driving up the cost of divorces and everything else. Why? Beats me. Here’s my favorite. Sometime ago the Powers that Be thought it was a good idea to create a new form UCS 111 that one could fill out in a New York minute because it allowed for such things as NA (not applicable) and UK (I dunno). It asked for the percentage of distribution to each party, which to me is always unknown as I can never fathom the value of the little treasures left in the home. I am sure this went to some vault at 25 Beaver Street in NYC so some bean counters can compile statistics on the child support standards or the number of children in the average New York divorce or something. No big deal. Now because of the “authority vested in me” the Chief Administrative Judge has gone hog wild by requiring a new UCS 111A for use only in Albany and seven other counties outside of the Third and Fourth districts. This form is unique in that (a) it is the only form not available online at the handy Unified Court System website, (b) it requires a No. 2 pencil or blue or black ink and (c) it has a bunch of little circles that need to be filled in like the Iowa Tests of Basic Skills that are given to grade school kids all over the country. I tip my hat to anyone who can fill this thing out in black or blue ink as I had to erase stuff at least five times. It asks for nice things such as whether “the formula” was used in determining final maintenance even though THERE IS NO FORMULA FOR FINAL MATINENANCE. Duh. They want to know the health of each party, but only Ο Good, Ο Fair or Ο Poor. Good luck on filling that one Doc, and be sure you fill in the “O” completely now. They want to know the value of any “other financial obligations” aside from maintenance, child support and debt. I am still trying to figure that one out. Finally they want to know the gross value of any professional license divided, but not the amount distributed. What possible use is there for that information? Now this four page gem has to be mailed directly to OCA in New York City. It cannot be folded or stapled under penalty of death. It takes a good half an hour to an hour to complete unless you are a lot more dexterous than I am. Heaven help the pro se litigants who have to navigate this Byzantine tome. The form says it is for the Law Revision Commission’s study on maintenance guidelines which is curious since the preliminary report of the LRV was due May 13 and this form was only first required on April Fool’s Day. When I inquired of the minions at OCA if I could get this thing in Microsoft Word like all the other forms I was told, “Nope, get a number 2 pencil and see the Chief Clerk.” Who is that? St. Peter? No, you cannot get the UCS 111A on the OCA website, but you CAN get the hand written bail undertaking of Dominique Strauss-Kahn. I know that’s a popular item for my clients. You cannot make this stuff up.
As if that wasn’t bad enough we now have the nifty new Matrimonial Addendum to the Request for Judicial Intervention, known hereabouts as the RJI. Do you know what an RJI is? It is a little letter to the Supreme Court Clerk to assign a judge to a case for which we pay $95. Again, no big deal. Well that wasn’t good enough, so now it has a Matrimonial Addendum otherwise known as form UCS-840M (3/2011). Where is Franz Kafka when you really need him? This thing requires all the prior names ever used by any litigant. In my case that would be freckle face, duck walker, copper head, four eyes, Ashkenazi snout and about thirty other monikers I cannot write here. For no known reason, in order to get a judge assigned you now need to list all addresses for both litigants for the past three years and the litigants’ dates of birth.
Did you know we have a form that comes with its own warning? There is an eight page Stipulation/Order form for contested matrimonials that is thankfully ignored by most of our judges because it serves no purpose. Now it says on the Unified Court system website, “Warning: Prior to using this form, please contact your local Supreme Court Clerk’s Office to determine if they have additional requirements.” Gadzooks. Makes me wonder that kind of horrors befall you if you try to use this thing unsupervised.
And in case you missed it, the courts are now closed for business as of 4:30 p.m. unless the trial judge gets special dispensation from some Übermensch who spends his or her time waiting by the phone late in the day to see what jurist has the temerity to waste the precious resources of the court system in pursuit of someone’s justiciable dispute.
Of course, one needs to look at the big picture here. For example the Chief Judge has made his sacrifices. No, not in firing the pedants who create and compile the worthless forms, and not eliminating the civil servants who slave away at the new “problem-solving” courts. He has announced that after three years, work is going to stop on the $23 million sleeping quarters for the five out of town Court of Appeals judges for the 66 days they are in Albany. Court of Appeals spokesman Gary Spencer channeled Arnold Schwarzenegger’s conscience when he said, “In the context of the times, it did not look like the best thing to be doing." Too bad. Someone should tell that to Bunkoff General Contractors who must not have seen the memo.
In any event, we seem to have lost sight of the real purpose of the court system, which is to help people resolve their differences in a civil, timely manner. Everything that is happening now is contrary to that prime directive. As matrimonial lawyers, we are restricted to charging an hourly rate, and no one thinks of how all this red tape increases the cost of having people get on with their lives after the breakup of their marriages. Is it that important to compile statistics, or should we just eliminate everyone and everything that does not help people resolve their disputes? Let the judges have some autonomy to help us get people where they need to be without all this rigmarole. Isn’t that why we became lawyers and judges in the first place, or did I miss something along the way? I probably did.
Sunday, January 16, 2011
A Sense of Humor
“Marriage is the triumph of imagination over intelligence.” Oscar Wilde
“We have finite resources.” Jonathan Lippman, October 14, 2009
If you are going to be a judge, it helps to have a sense of humor. If you preside over matrimonial cases, it is required. Case in point: the Honorable Joseph W. Quinn of the Ontario Superior Court of Justice. Writing a decision last November in Bruni v. Bruni he quipped, “Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder.” He then went on to note that the Mr. Bruni claimed that his beloved wife tried to run him over with her van, meriting a footnote that said, “This is always a telltale sign that a husband and wife are drifting apart.” As for the husband’s penchant for driving by the wife’s home to demonstrate what we in the United States call the “one finger salute,” the good judge writes, “A finger is worth a thousand words, and therefore is particularly useful if one should have a vocabulary of less than a thousand words.” You have to love this guy.
Such jocularity seems to have left the First Department shortly after that silly ball hit Times Square in a decision that cries out for humor. In Simkin v. Blank , the parties negotiated a fine separation agreement after a long term marriage. Under the agreement, Mr. Simkin handed over $6.25 million in consideration for keeping certain assets, including a tidy $5.4 million in a securities account. It turns out that the account was held by Bernard L. Madoff Investment Securities. Oops. When Mr. Simkin found out he had paid his wife several million dollars in consideration of keeping an account that had, well, nothing, he brought a lawsuit for reformation of the contract on the basis of mutual mistake of fact. The trial court granted Ms. Blank’s motion to dismiss and the First Department reversed. Here’s where things get dicey. You see, in some ancient decisions of our courts, fellow jurists were referred to as “my learned associate” or “my brethren.” Legal disagreements were thus gently defined with an air of cordiality. Here, the First Department must have had a bad hair day, or something, as the majority spent a good seven paragraphs describing why the two dissenting justices were wrong as rain. Just to prove the point, the majority write per curiam, i.e. as one so that the three judges refer to their reasoning as “we.” Of course, not to be outdone, Associate Justice Karla Moskowitz excoriates the majority in a lengthy dissent writing that, “the conclusion the majority reaches not only fails to follow precedent, but is truly ‘divorced’ from reality.” She writes that the majority ignores the plain language of the agreement, never addresses at least one issue, never explains one of its “conclusory” assertions, “fails to comprehend” plaintiff’s mutual mistake theory, and she opines that the majority’s decision prolonging the litigation is “particularly perverse.” So there. Presiding Justice Gonzalez joined the dissent so this will undoubtedly be resolved by the Court of Appeals, if not sooner settled. Did I mention that the Unified Court System biography of Justice Moskowitz mentions that she “is a frequent lecturer on topics including civility in the courtroom”?
The same day as the Simkin imbroglio hit the presses, five other justices in the First Department decided another divorce matter with common sentiments and conviviality. In Cohn v. Cohn , the wife made a creative argument for credits in what I believe is the first nominee for the Mike Friedman Chutzpah Award of 2011. It seems the Cohns were married while Mr. Cohn had a continuing obligation for maintenance, child support and some other payments to his prior wife. Also, Ms. Cohn was receiving maintenance at the time of her marriage, and those payments of course terminated once she said, “I do.” Once her marriage to Mr. Cohn went sour, she asked for all the money that he had paid to the other Ms. Cohn as well as all the maintenance she lost by marrying this guy. Well, the trial jurist bought this argument and credited her with over $128,000, and the First Department wisely reversed reasoning that such credits were improper. So, Mr. Cohn breathes a sigh of relief, but probably not as big as that of Mr. Simkin.
Did I mention that we now have no fault divorce in New York? More about that later. Late last year we did get the proposed Judiciary Budget for 2011-2012 from our Chief Judge. Now this is a work with a sense of humor. In 509 pages there is a request for a mere $2.1 Billion to keep body and soul together. The budget is a masterpiece of obfuscation, and it represents what the Chief Administrative Judge calls “a rigorous cost cutting program.” Here are some highlights: an extra $2.4 million over last year for security services and an extra $2.4 million for something called “prof services other.” Of course there is funding for a variety of things like the Collaborative Family Law Center to reduce the “trauma of divorce.” Right. This among other tidbits justifies an increase of $3 million for Family Courts. How about $10 million for, among other things, daycare for people who come to court. Nice. $9.8 million to lease property for OCA’s “administrative services.” How many of these bean counters are there? 68. Ever wonder what “public safety” costs our court system? How about $341 million, a line item that probably didn’t exist 20 years ago. Oh well. How about $17.9 million for “Maintenance Undistributed” which is euphemism for, among other things, “grants to support problem-solving courts and initiatives.” This includes a “nonprofit think tank” to improve public trust, but isn’t all of the Judiciary a nonprofit operation? And my personal favorite, $21 million for Trial Court Administration, which of course needs an increase of $188,000 this year. This includes 15 people just to insure the safety of the Court of Appeals. What’s this? $1.4 million to “ensure that only individuals who are of the appropriate ethical character will be licensed to practice law.” Why not. It goes on and on, but you get the idea. Lots of silly stuff here for a very bankrupt state. But could you really live without the $355k Ethics Commission, the $229k Commission of Minorities or $75k for hepatitis control? I know I couldn’t. And again, way down there at the very bottom on page 509 is the $23 million for the renovation of Centennial Hall, that lovely Romanesque Revival structure at Pine and Lodge Streets. It used to be the Albany Family Court, but soon it will house the bedrooms for the five out of town Court of Appeals justices when they come to our Capital City. We’ll leave the light on for you.
Happy Colorectal Cancer Awareness month.
“We have finite resources.” Jonathan Lippman, October 14, 2009
If you are going to be a judge, it helps to have a sense of humor. If you preside over matrimonial cases, it is required. Case in point: the Honorable Joseph W. Quinn of the Ontario Superior Court of Justice. Writing a decision last November in Bruni v. Bruni he quipped, “Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder.” He then went on to note that the Mr. Bruni claimed that his beloved wife tried to run him over with her van, meriting a footnote that said, “This is always a telltale sign that a husband and wife are drifting apart.” As for the husband’s penchant for driving by the wife’s home to demonstrate what we in the United States call the “one finger salute,” the good judge writes, “A finger is worth a thousand words, and therefore is particularly useful if one should have a vocabulary of less than a thousand words.” You have to love this guy.
Such jocularity seems to have left the First Department shortly after that silly ball hit Times Square in a decision that cries out for humor. In Simkin v. Blank , the parties negotiated a fine separation agreement after a long term marriage. Under the agreement, Mr. Simkin handed over $6.25 million in consideration for keeping certain assets, including a tidy $5.4 million in a securities account. It turns out that the account was held by Bernard L. Madoff Investment Securities. Oops. When Mr. Simkin found out he had paid his wife several million dollars in consideration of keeping an account that had, well, nothing, he brought a lawsuit for reformation of the contract on the basis of mutual mistake of fact. The trial court granted Ms. Blank’s motion to dismiss and the First Department reversed. Here’s where things get dicey. You see, in some ancient decisions of our courts, fellow jurists were referred to as “my learned associate” or “my brethren.” Legal disagreements were thus gently defined with an air of cordiality. Here, the First Department must have had a bad hair day, or something, as the majority spent a good seven paragraphs describing why the two dissenting justices were wrong as rain. Just to prove the point, the majority write per curiam, i.e. as one so that the three judges refer to their reasoning as “we.” Of course, not to be outdone, Associate Justice Karla Moskowitz excoriates the majority in a lengthy dissent writing that, “the conclusion the majority reaches not only fails to follow precedent, but is truly ‘divorced’ from reality.” She writes that the majority ignores the plain language of the agreement, never addresses at least one issue, never explains one of its “conclusory” assertions, “fails to comprehend” plaintiff’s mutual mistake theory, and she opines that the majority’s decision prolonging the litigation is “particularly perverse.” So there. Presiding Justice Gonzalez joined the dissent so this will undoubtedly be resolved by the Court of Appeals, if not sooner settled. Did I mention that the Unified Court System biography of Justice Moskowitz mentions that she “is a frequent lecturer on topics including civility in the courtroom”?
The same day as the Simkin imbroglio hit the presses, five other justices in the First Department decided another divorce matter with common sentiments and conviviality. In Cohn v. Cohn , the wife made a creative argument for credits in what I believe is the first nominee for the Mike Friedman Chutzpah Award of 2011. It seems the Cohns were married while Mr. Cohn had a continuing obligation for maintenance, child support and some other payments to his prior wife. Also, Ms. Cohn was receiving maintenance at the time of her marriage, and those payments of course terminated once she said, “I do.” Once her marriage to Mr. Cohn went sour, she asked for all the money that he had paid to the other Ms. Cohn as well as all the maintenance she lost by marrying this guy. Well, the trial jurist bought this argument and credited her with over $128,000, and the First Department wisely reversed reasoning that such credits were improper. So, Mr. Cohn breathes a sigh of relief, but probably not as big as that of Mr. Simkin.
Did I mention that we now have no fault divorce in New York? More about that later. Late last year we did get the proposed Judiciary Budget for 2011-2012 from our Chief Judge. Now this is a work with a sense of humor. In 509 pages there is a request for a mere $2.1 Billion to keep body and soul together. The budget is a masterpiece of obfuscation, and it represents what the Chief Administrative Judge calls “a rigorous cost cutting program.” Here are some highlights: an extra $2.4 million over last year for security services and an extra $2.4 million for something called “prof services other.” Of course there is funding for a variety of things like the Collaborative Family Law Center to reduce the “trauma of divorce.” Right. This among other tidbits justifies an increase of $3 million for Family Courts. How about $10 million for, among other things, daycare for people who come to court. Nice. $9.8 million to lease property for OCA’s “administrative services.” How many of these bean counters are there? 68. Ever wonder what “public safety” costs our court system? How about $341 million, a line item that probably didn’t exist 20 years ago. Oh well. How about $17.9 million for “Maintenance Undistributed” which is euphemism for, among other things, “grants to support problem-solving courts and initiatives.” This includes a “nonprofit think tank” to improve public trust, but isn’t all of the Judiciary a nonprofit operation? And my personal favorite, $21 million for Trial Court Administration, which of course needs an increase of $188,000 this year. This includes 15 people just to insure the safety of the Court of Appeals. What’s this? $1.4 million to “ensure that only individuals who are of the appropriate ethical character will be licensed to practice law.” Why not. It goes on and on, but you get the idea. Lots of silly stuff here for a very bankrupt state. But could you really live without the $355k Ethics Commission, the $229k Commission of Minorities or $75k for hepatitis control? I know I couldn’t. And again, way down there at the very bottom on page 509 is the $23 million for the renovation of Centennial Hall, that lovely Romanesque Revival structure at Pine and Lodge Streets. It used to be the Albany Family Court, but soon it will house the bedrooms for the five out of town Court of Appeals justices when they come to our Capital City. We’ll leave the light on for you.
Happy Colorectal Cancer Awareness month.
Subscribe to:
Posts (Atom)
