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?