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.