“I didn’t know what real happiness was until I got married. Then it was too late.” Barry S. Wilson
“I know nothing about sex because I was always married.” Zsa Zsa Gabor
“A girl must marry for love, and keep on marrying until she finds it.” Zsa Zsa Gabor
The Powers That Be in the New York legal system are experiencing omnishambles. That’s my story and I’m sticking to it. Omnishambles is the top new word of the year according to the Brits at Oxford University Press and it is defined as “a situation that has been comprehensively mismanaged, characterized by a string of blunders and miscalculations." Case in point: The Committee on Professional Standards has recently chastised a few of our brethren for some truly innocuous behavior, and in bringing down the hammer of justice they have gone off the rails and punished people for the smallest of offenses. Why? Beats me. Stephen Rockmacher (Rock Maker?) was censured by the Third Department for, among other things, failing to provide an itemized bill to a matrimonial client. While this is in 22 NYCRR 1210.1 (Statement of Client’s Rights), that is not generally a censorable offense. What is next? Admonition for failing to bill every 60 days or censorship for discourteous conduct? That discourteous language resulted in the censorship of Terence Kindlon after an unblemished 38 year career for viewing, handling and photographing a document on opposing counsel’s table. The offending document was an e-mail that had no effect on the presentation of proof by opposing counsel, but what the heck. No harm, but a foul nonetheless. Just after that, the Third Department suspended an attorney for a year because she was disorganized. To this, I must confess, I am guilty. But where is that in the Rules of Professional Conduct? The Third Department hangs its hat on Rule 8.4(d) of the Rules which merely says that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. No one says the offending attorney hurt a client, failed to appear or try a case, served anything late or otherwise did anything that reflected on her competence as a lawyer. As they said in the decision, “The record indicates that the instant misconduct is the result of continuing disorganization in respondent's practice of law, which has resulted in three prior admonitions by petitioner for failing to cooperate.” Yeah? Well, the suspension is stayed if counsel completes some CLE programs in law office management, but nothing is ever going to give counsel her reputation back.
On the lighter side of things, the Court of Appeals has finally published their rules requiring new attorneys (at least after January 1, 2014) to perform 50 hours of pro bono service before being admitted to practice. Here is the good news: Such services are defined as, among other things, assisting in the provision of legal services to “persons of limited means.” Now, to me every human is a person of limited means. I’ve never heard of a person without limits, even the reigning champ, Carlos Slim Helu of Mexico. That brings me to the second part of the good news: You can perform these services in any state or territory of the United States, Washington D.C. or any foreign country. So if Prince Alwaleed Bin Talal Alsaud is in need of some legal work for free in Riyadh, then hop on the next Emirates flight out of JFK. Just don’t perform those services in Antarctica.
This is where things really get weird. The Omnishambles Kings, the Office of Court Administration, published a slick flyer and put up a “Voters Guide” online to help us with our choices for various judgeships in the recent elections. Very nice of them. Unfortunately, the Third Judicial District had five people seeking the Supreme Court nod and only the two incumbents had links to their accomplishments until late in the game when two others were added. Stephen Schick, one of the eventual winners, never had a link to tout his reasons to seek the judgeship. This was not limited to the Third District as the Second District had links to the two sitting judges but not the other three candidates. So, just when and how do the boys at OCA decide who gets to inform the hoi polloi in the official “Voter Guide”? It is easy for incumbents as OCA just publishes a link to the Unified Court System Judicial Directory Guide, thereby giving the Official OCA Imprimatur of Authenticity to incumbents. See, he’s one of us! But what’s a little grandstanding for our friends and fellow members of the judiciary? After all, discourtesy, not following the rules and disorganization are only censorable offenses to practicing lawyers, not the OCA juggernaut.
So, our highest court finally issued a cruel, insensitive and job destroying decision to tax lap dances in New York. It did however contain the following personal note from Judge Smith’s brilliant dissent, which did bring a smile to my face: “I find this particular form of dance unedifying — indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker.” So, just to edify us in the world of evidence, the Court of Appeals has given us Grucci v. Grucci, a decision that I cannot explain. In a malicious prosecution civil lawsuit, Mr. Grucci sued his former wife for falsely accusing him of violating an Order of Protection. Mr. Grucci’s brother recorded a telephone conversation wherein Ms. Grucci supposedly stated she was never afraid of her hubby. The brother testified that the tape was fair and accurate, and yes, contained Ms. Grucci’s voice. An admission against interest if I ever heard one. Well, ignoring the fairly clear language of Richardson on Evidence, McCormack on Evidence and the New York Evidence Handbook, the Court of Appeals decided that more was required to show that the tapes were unaltered and genuine such as who recorded the conversation, how it was recorded and the chain of custody of the recording. So, now we have at least a new level of attack to keep from judicial earshot those nasty things our clients say to their spouses in recorded conversations. One wonders if this higher standard now applies to e-mails, and I see no reason why it shouldn’t.
Not that we really have to follow the Court of Appeals anyway, do we? Remember Johnson v. Chapin and Mahoney-Buntzman v. Buntzman? Those were the Court of Appeals cases that decided you do not get a credit for paying your premarital debts during the marriage, such as child support, equitable distribution or maintenance to the ex, holding, “As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the nontitled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected.” Well, the Second Department seems to ignore this language in two recent cases, Nidositko and Iarocci, in the latter allowing a $12,000 credit for paying a premarital separate debt. Nary a nod to Chapin or Buntzman in the decisions. So wait, maybe I can still get that recording into evidence if I can just find a Second Department case that ignores the Court of Appeals. Yes, that’s the ticket.
Happy holidays to all and to all a good night!
Matter of Rockmacher, __ A.D.3rd __ (3rd Dept., November 15, 2012), and the section on such a Rule was never cited by the Third Department.
Matter of Kindlon, 98 A.D.3rd 1227 (3rd Dept., 2012)
Matter of Moss, __ A.D.3rd __ (3rd Dept., October 11, 2012)
22 NYCRR §520.16
The Albany County guide can still be found here: http://www.nycourts.gov/vote/2012/county/albany.shtml
Matter of 677 New Loudon Corporation dba Nite Moves v. State of New York Tax Appeals Tribunal et. al., __ N.Y.3rd __ (October 23, 2012).
__ N.Y.3rd __ (November 20, 2012)
12 N.Y.3rd 461 and 12 N.Y.3rd 415 (2009)
92 A.D.3rd 653 (2nd Dept., 2012)
93 A.D.3rd 999 (2nd Dept., 2012)
Monday, December 03, 2012
Friday, October 05, 2012
License Plates and Pipes and Drums Bands
“Paying alimony is like feeding hay to a dead horse.” Groucho Marx
“Getting married is like trading in the adoration of many for the sarcasm of one.” Mae West
“When a man makes a woman his wife, it's the highest compliment he can pay her, and it's usually the last.” Helen Rowland
It must be something in the water. There is no other explanation for the deranged behavior of the Commission on Judicial Conduct, fresh from censoring a District Court Judge for playing poker with a few friends at an Eagles meeting four years ago and removing a Family Court Judge for something that happened 13 years before he became a judge. A creature of the New York State Constitution, the Commission is charged to “receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system, in the manner provided by law.” It can then determine that a judge can by admonished, censured or removed from office. There is nothing about making policy, issuing reports, soliciting comments from bar associations or other silly behaviors not part of the prime directive of the Constitution. So I was astounded to learn that the Commission has paused in its daily work to issue a report on “whether or not the Rules on Judicial Conduct may be violated by the use of judicial license plates…” I know, your reaction is, “You’re kidding me right?” Nope. And to top it off they have solicited comments from “various judicial, bar and civic associations.” Well, just what stop on the train of bureaucracy gives these jackanapes the right to waste our money on a futile quest to answer to the burning question of, as they put it, “what is the purpose of judicial license plates?” I have no clue, but they seem to justify this because a footnote in one of their own decisions (Matter of Schilling) stated that the Commission has “decided to issue a public report” on this issue. Well, golly gee, if they told themselves to do it in a footnote that certainly meets constitutional muster. Sure it does.
Just who are these guys? They are led by Robert H. Tembeckjian. In 2005 he wrote in the New York Times, “Judges are among the most powerful of public servants.” But not so powerful that they can have their own license plates like professional engineers, podiatrists and visiting nurses. After all, the DMV says that, “We are delighted to offer these professionals another way to be recognized for their accomplishments and express pride in their education, training and service to the public." Not so our judicial public servants I guess. All of this is even more galling because there is not one reported decision from the Commission that found that the use of a judicial license plate had anything to do with improper judicial behavior. But who’s counting?
Of course, this is not without a cost, but then again how does the Commission justify its yearly budget of just shy of $5.4 million of taxpayer largesse? As Mr. Tembeckjian told the New York State Senate this year, “In a microcosmic way the story of this small agency from 2007 to the present is an example of government at its best.” I beg to differ Mr. T. In the same report he lamented the “continued sacrifice in the coming year” by having to make do with a staff of only 50, one less car and the suspension of valuable training programs, presumably on license plate etiquette and the like. All this is for the privilege of disciplining an average of 20 judges a year. If this is the kind of nonsense our judges have to face on a regular basis, then maybe our profession is truly on its way down the sinkhole of dystopia. See you at the bottom.
On a cheerier note, a few days ago we finally got a gander on the new rules requiring 50 hours of pro bono legal service prior to becoming a lawyer. They are contained in 22 NYCRR §520.16 but of course they not yet on the websites of the Court of Appeals or the New York Board of Bar Examiners. They include a provision that such services must be under the supervision of an attorney, a judge employed by the court system or a law school faculty. Thankfully you can complete the service anywhere in the world, but not by participating in “partisan political activities” whatever that means. So, these poor shemozzles must “assist in the provision of legal services” for 50 hours for bupkis before they can practice law. Just to state the exact opposite of reality, the Chief Judge told the public, “On every level it makes sense, for new lawyers, for the profession as a whole, for the legal services providers, for the judges. So I am really upbeat about it." So, rejoice ye law school grads. While 45% of you may never find a job practicing law, at least you can be upbeat about spending 50 hours of your spare time provided you can find a lawyer or law school professor who will certify your efforts to “assist in providing legal services” to the great unwashed.
OK, OK, enough of this Sturm und Drang about the stupid machinations of our court bureaucracy. Isn’t there some substantive gem over the past few months that can aid us in the practice of matrimonial law? Not much, at least until the Court of Appeals decides whether lap dances are subject to sales taxes sometime later this year. However, the Fourth Department did tell us that you need to plead what you want in those Family Court petitions, because if you haven’t asked, then you do not receive. Such was the dilemma of Gregory Kairis who was awarded sole custody by the Family Court only to have everything undone because he asked for “50/50 custody” in his petition, which the Fourth Department interpreted somehow to mean “a request for joint legal and physical custody.” As they used to say in ancient Rome, “praemonitus, praemunitus.” The same day, the Fourth Department held that a mother can receive support for a child who works full time and filed individual income tax returns. Why? Because she pays for his food, gas and cell phone demonstrating “that the child was not economically independent and self-supporting.” Poor baby.
Well as Porky Pig says, “That’s all folks.” But one more thing. Did you know our financially strapped court system has its own Pipes and Drums Band? They’re pretty good too.
“Getting married is like trading in the adoration of many for the sarcasm of one.” Mae West
“When a man makes a woman his wife, it's the highest compliment he can pay her, and it's usually the last.” Helen Rowland
It must be something in the water. There is no other explanation for the deranged behavior of the Commission on Judicial Conduct, fresh from censoring a District Court Judge for playing poker with a few friends at an Eagles meeting four years ago and removing a Family Court Judge for something that happened 13 years before he became a judge. A creature of the New York State Constitution, the Commission is charged to “receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system, in the manner provided by law.” It can then determine that a judge can by admonished, censured or removed from office. There is nothing about making policy, issuing reports, soliciting comments from bar associations or other silly behaviors not part of the prime directive of the Constitution. So I was astounded to learn that the Commission has paused in its daily work to issue a report on “whether or not the Rules on Judicial Conduct may be violated by the use of judicial license plates…” I know, your reaction is, “You’re kidding me right?” Nope. And to top it off they have solicited comments from “various judicial, bar and civic associations.” Well, just what stop on the train of bureaucracy gives these jackanapes the right to waste our money on a futile quest to answer to the burning question of, as they put it, “what is the purpose of judicial license plates?” I have no clue, but they seem to justify this because a footnote in one of their own decisions (Matter of Schilling) stated that the Commission has “decided to issue a public report” on this issue. Well, golly gee, if they told themselves to do it in a footnote that certainly meets constitutional muster. Sure it does.
Just who are these guys? They are led by Robert H. Tembeckjian. In 2005 he wrote in the New York Times, “Judges are among the most powerful of public servants.” But not so powerful that they can have their own license plates like professional engineers, podiatrists and visiting nurses. After all, the DMV says that, “We are delighted to offer these professionals another way to be recognized for their accomplishments and express pride in their education, training and service to the public." Not so our judicial public servants I guess. All of this is even more galling because there is not one reported decision from the Commission that found that the use of a judicial license plate had anything to do with improper judicial behavior. But who’s counting?
Of course, this is not without a cost, but then again how does the Commission justify its yearly budget of just shy of $5.4 million of taxpayer largesse? As Mr. Tembeckjian told the New York State Senate this year, “In a microcosmic way the story of this small agency from 2007 to the present is an example of government at its best.” I beg to differ Mr. T. In the same report he lamented the “continued sacrifice in the coming year” by having to make do with a staff of only 50, one less car and the suspension of valuable training programs, presumably on license plate etiquette and the like. All this is for the privilege of disciplining an average of 20 judges a year. If this is the kind of nonsense our judges have to face on a regular basis, then maybe our profession is truly on its way down the sinkhole of dystopia. See you at the bottom.
On a cheerier note, a few days ago we finally got a gander on the new rules requiring 50 hours of pro bono legal service prior to becoming a lawyer. They are contained in 22 NYCRR §520.16 but of course they not yet on the websites of the Court of Appeals or the New York Board of Bar Examiners. They include a provision that such services must be under the supervision of an attorney, a judge employed by the court system or a law school faculty. Thankfully you can complete the service anywhere in the world, but not by participating in “partisan political activities” whatever that means. So, these poor shemozzles must “assist in the provision of legal services” for 50 hours for bupkis before they can practice law. Just to state the exact opposite of reality, the Chief Judge told the public, “On every level it makes sense, for new lawyers, for the profession as a whole, for the legal services providers, for the judges. So I am really upbeat about it." So, rejoice ye law school grads. While 45% of you may never find a job practicing law, at least you can be upbeat about spending 50 hours of your spare time provided you can find a lawyer or law school professor who will certify your efforts to “assist in providing legal services” to the great unwashed.
OK, OK, enough of this Sturm und Drang about the stupid machinations of our court bureaucracy. Isn’t there some substantive gem over the past few months that can aid us in the practice of matrimonial law? Not much, at least until the Court of Appeals decides whether lap dances are subject to sales taxes sometime later this year. However, the Fourth Department did tell us that you need to plead what you want in those Family Court petitions, because if you haven’t asked, then you do not receive. Such was the dilemma of Gregory Kairis who was awarded sole custody by the Family Court only to have everything undone because he asked for “50/50 custody” in his petition, which the Fourth Department interpreted somehow to mean “a request for joint legal and physical custody.” As they used to say in ancient Rome, “praemonitus, praemunitus.” The same day, the Fourth Department held that a mother can receive support for a child who works full time and filed individual income tax returns. Why? Because she pays for his food, gas and cell phone demonstrating “that the child was not economically independent and self-supporting.” Poor baby.
Well as Porky Pig says, “That’s all folks.” But one more thing. Did you know our financially strapped court system has its own Pipes and Drums Band? They’re pretty good too.
Monday, July 30, 2012
Jackanapes and Ear Licking
“I married beneath me, all women do.” Nancy Astor
“The secret of a happy marriage remains a secret.” Henny Youngman
“How many husbands have I had? You mean apart from my own?” Gábor Sári, now known as Zsa Zsa Gabor (1917- )
Things have gotten a little out of hand for our beloved profession lately, but that is not news. It is the bend of the branches to the winds of regulation in our profession that keeps me amazed and amused. Case in point: The Commission on Judicial Conduct recently found it appropriate to censure a judge for playing poker with his friends at the Fraternal Order of Eagles in 2008. Of course there is nothing wrong with that, but that didn’t stop the sanctimonious ninnies from bringing the hammer down on the Honorable Paul Hensley, a District Court Judge in Suffolk County. It seems that the operator of the poker game kept a small portion of the pot (ante) and that is illegal. For some reason unknown to me, the members of the Commission found that Judge Hensley’s lawful participation in the poker game “reflects adversely on the judiciary as a whole.” It does? Of course this was supposedly compounded when the game was investigated by the police by Judge Hensley telling them truthfully that he was a judge. They surmise this implied he was seeking special treatment, but for what? He didn’t do anything illegal. To add insult to injury the Commission published a “Press Release” on July 6, 2012 concerning Judge Hensley’s censure and entitled it “District Judge Censured for Participating in Illegal Poker Games.” Does that sound like he did something illegal? Of course it does, but these guys have no shame. Like most lawyers, I am asked from time to time if I would like to be a judge. Reading this stuff convinces me that I could never do it, and I sympathize with all the members of New York’s Judiciary who put their careers (and personal lives) in the hands of these jackanapes.
Case Number Two: Lawrence McCreery, a 64 year old attorney in Kauai, which I am guessing is in Hawaii. Attorney McCreery was found guilty of harassment for licking the back of his client’s ear while discussing her child custody case. Now, I have scoured the Unified Court System’s Domestic Relations Statement of Clients Rights and Responsibilities and I find nothing in there about licking a client’s ear from the front or the back. Maybe things are different in the Aloha State, but if we can’t lick a client’s ear every now and then, why bother going to work?
Case Number Three: Perhaps Counselor McCreery could have benefited from one of the CLE offerings from an organization that is called “The Likeable Lawyer.” It seems that someone in Texas thought it was a good idea to give seminars through the web, CD, DVD or live lectures on such topics as Lessons from Aristotle or From Headaches to Handshakes. The former, along with a host of other such offerings, were accredited by our friends at OCA for CLE credit in New York. It all reminded me of candidate Barack Obama telling candidate Hillary Clinton that she was likeable enough in 2011. Every matrimonial lawyer who has practiced for more than a year has been retained by some client because an opposing spouse considered the lawyer exactly the opposite of likeable. How this constitutes Continuing Legal Education is beyond me as I cannot fathom why likeability has anything to do with the practice of law. I am guessing I could just as easily give advice on how to succeed by being unlikeable, but why bother. If the Office of Confused Adults considers this a valuable trait for the New York practitioner, who am I to argue?
While all this is going on, not one word of caution or admonition to Super Lawyer James Winkler, who graduated Albany Law School with me. Since he probably went to class, our paths never crossed. In New York, in case the OCA folks forgot, we have Standards of Civility. I know because it is right there on the Unified Court System website. One of them is, “Whether orally or in writing, lawyers should avoid vulgar language, disparaging personal remarks or acrimony toward other counsel, parties or witnesses.” So I read with dismay Mr. Super Lawyer’s remarks about Christie Brinkley when she amicably resolved her differences with Winkler’s client, Peter Cook. Winkler told everyone who would listen (and who wouldn’t) before the settlement of Ms. Brinkley’s claims, “This is the work of a second-rate celebrity starved for attention." Really James? Then with the settlement, Winkler the Celebrity Critic said that Mr. Cook received “financial compensation for having to address Ms. Brinkley's frivolous lawsuit against him." To top it off, he said, “The settlement we reached proves Ms. Brinkley’s claims were baseless and that a hearing would have only proved to be a further embarrassment for her." Really? While I am sure some people consider this zealous advocacy, to me it qualifies for uncivil, inappropriate commentary that should not be tolerated by the Powers that Be. Of course, they are too busy censuring a guy for legally playing poker with his friends.
Let me step off my soapbox here to give you the latest news from my favorite Appellate Division. It is rare, but every now and then the Third Department writes an “opinion” as opposed to a memorandum decision. When it involves a matrimonial matter, we should pay attention. On July 12, 2012 they came down with Rinzler v. Rinzler, which held that one can bring a no fault divorce during the pendency of one’s fault divorce as the second action does not constitute the same cause of action. Here, the Plaintiff had unsuccessfully sought consent to discontinue the first action, but for some reason his wife declined. The Third Department came to the correct result, and one wonders what the wife was trying to accomplish by the dismissal of the second action and the litigation of the first action. Except for a large legal bill (which is of course no reason at all), there did not seem to be any reason to delay the inevitable.
Let me ask you something. If you get married and at the wedding party, flush with love and other such nonsense, you put your hubby’s name on your million dollar home, what happens when he sues you for divorce the next day? Does he get (a) half the house or (b) nada or as the Ashkenazim say, bupkus. The Third Department opts for (a) for no good reason, reversing a slew of Court of Appeals and appellate authority to the contrary. Faster than you can say “separate property credit,” all was lost to the wife who inherited the family farm from her father during the marriage. As executrix of the estate, she foolishly conveyed the property to herself and her beloved husband. He left six years later and held his hand out for whatever the trial court would give him. The answer: half. In upholding this travesty of justice, the Third Department said that since she put his name on the deed, she transmuted the separate property into marital property. OK, I buy that but what about her credit for the value of the separate property she contributed to the marital pot? “Nonsense” saith the Sages of State Street. Since there was no “acquisition” of the separate (now marital) farm, as if she had sold a premarital house to buy a marital house, then there is no separate property credit. Her only way to stop such a result is to prove to the court that she did not “intend” her husband to have an interest in the farm, which of course was not true. This twisted result takes the Equitable out of the Equitable Distribution Law. As for the wife’s deceased father, to quote the great philosopher Ralph Kiner, “If Casey Stengel were alive today, he’d be spinning in his grave.” Keep spinning, dad.
Hasta la vista, baby.
“The secret of a happy marriage remains a secret.” Henny Youngman
“How many husbands have I had? You mean apart from my own?” Gábor Sári, now known as Zsa Zsa Gabor (1917- )
Things have gotten a little out of hand for our beloved profession lately, but that is not news. It is the bend of the branches to the winds of regulation in our profession that keeps me amazed and amused. Case in point: The Commission on Judicial Conduct recently found it appropriate to censure a judge for playing poker with his friends at the Fraternal Order of Eagles in 2008. Of course there is nothing wrong with that, but that didn’t stop the sanctimonious ninnies from bringing the hammer down on the Honorable Paul Hensley, a District Court Judge in Suffolk County. It seems that the operator of the poker game kept a small portion of the pot (ante) and that is illegal. For some reason unknown to me, the members of the Commission found that Judge Hensley’s lawful participation in the poker game “reflects adversely on the judiciary as a whole.” It does? Of course this was supposedly compounded when the game was investigated by the police by Judge Hensley telling them truthfully that he was a judge. They surmise this implied he was seeking special treatment, but for what? He didn’t do anything illegal. To add insult to injury the Commission published a “Press Release” on July 6, 2012 concerning Judge Hensley’s censure and entitled it “District Judge Censured for Participating in Illegal Poker Games.” Does that sound like he did something illegal? Of course it does, but these guys have no shame. Like most lawyers, I am asked from time to time if I would like to be a judge. Reading this stuff convinces me that I could never do it, and I sympathize with all the members of New York’s Judiciary who put their careers (and personal lives) in the hands of these jackanapes.
Case Number Two: Lawrence McCreery, a 64 year old attorney in Kauai, which I am guessing is in Hawaii. Attorney McCreery was found guilty of harassment for licking the back of his client’s ear while discussing her child custody case. Now, I have scoured the Unified Court System’s Domestic Relations Statement of Clients Rights and Responsibilities and I find nothing in there about licking a client’s ear from the front or the back. Maybe things are different in the Aloha State, but if we can’t lick a client’s ear every now and then, why bother going to work?
Case Number Three: Perhaps Counselor McCreery could have benefited from one of the CLE offerings from an organization that is called “The Likeable Lawyer.” It seems that someone in Texas thought it was a good idea to give seminars through the web, CD, DVD or live lectures on such topics as Lessons from Aristotle or From Headaches to Handshakes. The former, along with a host of other such offerings, were accredited by our friends at OCA for CLE credit in New York. It all reminded me of candidate Barack Obama telling candidate Hillary Clinton that she was likeable enough in 2011. Every matrimonial lawyer who has practiced for more than a year has been retained by some client because an opposing spouse considered the lawyer exactly the opposite of likeable. How this constitutes Continuing Legal Education is beyond me as I cannot fathom why likeability has anything to do with the practice of law. I am guessing I could just as easily give advice on how to succeed by being unlikeable, but why bother. If the Office of Confused Adults considers this a valuable trait for the New York practitioner, who am I to argue?
While all this is going on, not one word of caution or admonition to Super Lawyer James Winkler, who graduated Albany Law School with me. Since he probably went to class, our paths never crossed. In New York, in case the OCA folks forgot, we have Standards of Civility. I know because it is right there on the Unified Court System website. One of them is, “Whether orally or in writing, lawyers should avoid vulgar language, disparaging personal remarks or acrimony toward other counsel, parties or witnesses.” So I read with dismay Mr. Super Lawyer’s remarks about Christie Brinkley when she amicably resolved her differences with Winkler’s client, Peter Cook. Winkler told everyone who would listen (and who wouldn’t) before the settlement of Ms. Brinkley’s claims, “This is the work of a second-rate celebrity starved for attention." Really James? Then with the settlement, Winkler the Celebrity Critic said that Mr. Cook received “financial compensation for having to address Ms. Brinkley's frivolous lawsuit against him." To top it off, he said, “The settlement we reached proves Ms. Brinkley’s claims were baseless and that a hearing would have only proved to be a further embarrassment for her." Really? While I am sure some people consider this zealous advocacy, to me it qualifies for uncivil, inappropriate commentary that should not be tolerated by the Powers that Be. Of course, they are too busy censuring a guy for legally playing poker with his friends.
Let me step off my soapbox here to give you the latest news from my favorite Appellate Division. It is rare, but every now and then the Third Department writes an “opinion” as opposed to a memorandum decision. When it involves a matrimonial matter, we should pay attention. On July 12, 2012 they came down with Rinzler v. Rinzler, which held that one can bring a no fault divorce during the pendency of one’s fault divorce as the second action does not constitute the same cause of action. Here, the Plaintiff had unsuccessfully sought consent to discontinue the first action, but for some reason his wife declined. The Third Department came to the correct result, and one wonders what the wife was trying to accomplish by the dismissal of the second action and the litigation of the first action. Except for a large legal bill (which is of course no reason at all), there did not seem to be any reason to delay the inevitable.
Let me ask you something. If you get married and at the wedding party, flush with love and other such nonsense, you put your hubby’s name on your million dollar home, what happens when he sues you for divorce the next day? Does he get (a) half the house or (b) nada or as the Ashkenazim say, bupkus. The Third Department opts for (a) for no good reason, reversing a slew of Court of Appeals and appellate authority to the contrary. Faster than you can say “separate property credit,” all was lost to the wife who inherited the family farm from her father during the marriage. As executrix of the estate, she foolishly conveyed the property to herself and her beloved husband. He left six years later and held his hand out for whatever the trial court would give him. The answer: half. In upholding this travesty of justice, the Third Department said that since she put his name on the deed, she transmuted the separate property into marital property. OK, I buy that but what about her credit for the value of the separate property she contributed to the marital pot? “Nonsense” saith the Sages of State Street. Since there was no “acquisition” of the separate (now marital) farm, as if she had sold a premarital house to buy a marital house, then there is no separate property credit. Her only way to stop such a result is to prove to the court that she did not “intend” her husband to have an interest in the farm, which of course was not true. This twisted result takes the Equitable out of the Equitable Distribution Law. As for the wife’s deceased father, to quote the great philosopher Ralph Kiner, “If Casey Stengel were alive today, he’d be spinning in his grave.” Keep spinning, dad.
Hasta la vista, baby.
Wednesday, July 18, 2012
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.
On the Shoulders of Giants
“If I have seen further it is by standing on ye sholders of Giants.” Sir Isaac Newton
“Agents of law in the civil area must avoid being personally involved in anything that might imply cooperation with divorce… In exercising a liberal profession, lawyers can always decline to use their profession for an end that is contrary to justice, such as divorce." Pope John Paul II’s Address to the Roman Rota, January 28, 2002
“In particular a Catholic judge cannot pronounce, except of reasons of great weight, a sentence of civil divorce – where this is in force – for a marriage valid before God and the Church.” Pope Pius XII, November 7, 1949, addressing the Union of Catholic Jurists
Long before there was an Equitable Distribution Law, a Child Support Standards Act, a Family Court Act, a Unified Court System, an Office of Court Administration, cruelty divorces, NYCRR, maintenance guidelines, Statements of Clients Rights, Rules of Civility, compliance conferences or the myriad of useless Byzantine reforms that now govern the practice of matrimonial law, there were Sanford “Sandy” Soffer and Robert “Bob” Kahn. Both graduated law school under the Truman Administration, both practiced well into their ninth decades and both died this year. They defined the practice of matrimonial law in Albany by their kindness, wit, generosity and love of law and lawyers. We will not see their like again. Frankly, I do not even know if they were friends, but they had much in common and meant so much to so many lawyers. I hope this gives you a glimpse into two remarkable careers. When they first toiled in the matrimonial fields, such practices were disdained by the general practitioners and other specialists. It was considered invidious, and among Catholic lawyers it was discouraged. Divorce was not common, adultery being the only ground and the leaving of one’s spouse bering socially unacceptable except among the Hollywood elite.
Sandy was not strictly a matrimonial lawyer. He was a general trial practitioner but he was known in later years as the Dean of Matrimonial Lawyers in Albany. For many years, he was the partner of a true gentleman, Abe Dorsman. Sandy’s first appearance before the Appellate Division was to successfully defend summary judgment for the princely legal fee of $965 for representation in a divorce. This was 35 years after he became a lawyer! 1 Unlike yours truly, Sandy’s career is marked by the dearth of trial and appellate reported cases. He understood the necessity to resolve and settle matters for their true value, and he was a master at convincing you, your client, his client and the court of the definition of “true value.”
Like Bob, Sandy loved the law and even more his fellow lawyers. Any conversation began with a joke or an inquiry about your life, your family, your health or your practice. Thereafter, the business of the day was discussed. The strengths and weaknesses of their clients were revealed with frankness and utility. The goal of all such work was the ultimate resolution of the case, and the protection of the attorney’s confidences. Their word was their bond. There was never a need to confirm anything in writing or reduce anything to an Order. If they said it, you could bank on it. In court, you were treated with deference and respect, as was your client. They had a way of shepherding their clients to the ultimate fair result with a confidence that the litigants had done the right thing for themselves and their children. Nothing was tried just to earn a fee, and the spouse who was weaker by finance, education or habit was protected to the fullest. For a few years, I had the pleasure of being Sandy’s neighbor. We shared an interest in canoeing, and later in life he bought a Ferrari of canoes for his beloved wife Miriam so they could hoist the feather light thing onto the car. It was of course much too tippy, and Sandy reveled in lending me the thing so I could walk it to my house a few blocks away through the streets of Albany. Like Bob, he regularly called me and left messages of his enjoyment of the monthly articles I wrote for the Albany County Bar Association Newsletter. That meant the world to me.
Sandy and Bob were the models for the generations of matrimonial lawyers who came after them. Anthony Cardona, long before he was a judge, and the great Stan Rosen, now both deceased, carried on the legacy of the civil resolution of matrimonial disputes through negotiation, fellowship, knowledge and hard work. Bob was a mentor and then ultimately a longstanding partner with Florence Richardson, who has been for many years an excellent, well respected matrimonial lawyer in the Capital District. It was Bob who once successfully implored an opposing wife to grant a divorce to his client so hubby could make someone else’s life equally miserable. Sandy once told an opposing husband in Albany Family Court that he could never have had (nor wanted to have had) sex with as many clients as accused, like this dumb schlemiel was wont to impugn. How could you not love those guys?
One of Bob’s many cases was representing Mr. Lischynsky against his wife Ola who changed her mind after a settlement and then successfully set the whole thing aside because she didn’t sign anything.2 To this day we give homage to Ola with a Lischynsky Form recognized only in the Third Department. Bob always enjoyed a good joke, the gossip which is the honey of our practice, and the settlement of a case. In the vernacular of our specialty, he had amazing control of his clients. His reputation granted him the ability to suggest a resolution that brought a client where he or she should be, even if it was against the client’s natural instincts. That is truly the art of matrimonial practice. Bob was a matrimonial specialist, one of the first members of the American Academy of Matrimonial Practitioners, serving on its Board of Governors. Both Bob and Sandy were active in the Albany County Bar Association, with Sandy being a former President. Bob was a published author with his brother Larry, now in Senior Status as the Judge of the United States District Court of the Northern District of New York. Their Divorce Lawyers Casebook was published by St. Martins Press in 1972. They argued that most marriages might be saved, but that many truly broken marriages needed a swift resolution. Here, Bob argued for no fault divorce 38 years before the legislature came around to his wisdom.
I am proud to say both Sandy Soffer and Bob Kahn were my friends. I will miss them dearly, and our profession is less today because they are not among us. I know there is a tendency to say that the practice of law was more fun in the past, and that things today are too hectic, ruthless, and churlish. I must tell you, because of Bob and Sandy, things really were a lot more fun when they were around.
1 Soffer v. Elmendorf, 108 A.D.2nd 954 (3rd Dept., 1985).
2 Lischynsky v. Lischynsky, 95 A.D.2nd 111 (3rd Dept., 1983). It was a 3-2 decision with future Court of Appeals Justice Levine writing the dissent.
Wednesday, May 16, 2012
Our New Albany County Courthouse
“But above all, the courthouse: the center, the focus, the hub; sitting looming in the center of the county's circumference like a single cloud in its ring of horizon, laying its vast shadow to the uttermost rim of horizon; musing, brooding, symbolic and ponderable, tall as a cloud, solid as a rock, dominating all: protector of the weak, judicate and curb of the passions and lusts, repository and guardian of the aspirations and hopes ..." William Faulkner, Requiem for a Nun
“Mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process.” Thurgood Marshall
Originally dedicated in 1916, we can all welcome the restoration of this magnificent edifice. After a six year hiatus, the Albany County Courthouse is again the hub of legal activity for our county. Six years and $53 million after it was closed for renovations, we can now enjoy the splendor of our huge neo-Classic limestone monument, thanks to our friends at BBL Construction Services who held the costs to just under $18 million over the original budget. You know, the people who brought you that bungalow of judicial economy: The Albany County Family Court on Clinton Avenue. On the hill, but on the level, as they say.
This building is truly magnificent, but its greatest asset is not structural. Finally, the civil judiciary and courtrooms of Albany County are under the same roof. For the first time in six years, the judges who preside over our clients’ disputes can convene and learn and dare I say schmooze over the daily business of moving lawsuits through the system. In the past, all Supreme Court Judges comprised a fraternity of sorts, there being no women on the bench thank you very much. Republican or Democrat, Acting, Visiting or Retired, they all met for lunch at The Ambassador on Elk Street to review the news of the day, the foibles of the poor lawyers, the evidentiary and legal issues, and of course the gossip. The younger judges learned at the foot of the masters, and the collective knowledge of the judiciary was passed down bringing certainty and consistency to the practice of law. It was great. Young lawyers were welcomed to the practice with enthusiasm, and older counsel were complemented, lampooned and chastised with good humor and a feeling of camaraderie.
One can only hope that a small part of that feeling resumes with the concentration of our judges and lawyers under one roof. It is an opportunity without parallel. Lawyers used to go to the courthouse to file papers or argue motions, but we would never leave without seeing what was going on in each courtroom. One learned the jury selection and cross examination techniques of the best, and now that opportunity has returned. Just sit in the lovely GAR coffee shop and one is likely to see Judge Graffeo of the Court of Appeals, Justices Malone, Stein, Egan and McCarthy of the Appellate Davison, or any one of the myriad Supreme Court and Acting Supreme Court judges for a chat on the day’s happenings. As always, the clerks, court reporters and attendants are the true source of the real happenings of trials in the courtrooms.
After all, this is the place where Daniel Prior made his reputation as the greatest trial attorney of his time. Long before he represented Legs Diamond across the Hudson, his unsuccessful defense of Anna Antonio was one of the great works of legal advocacy in the 20th Century in Albany. One still hears of his defense of Manny Strewell in the O’Connell kidnapping case in the 1930’s. As for me, I remember the best of them in the 1980’s and 1990’s. Who could forget Armand Riccio proclaiming to the media after a conviction of his client, “Today I am ashamed to be a white man.” It was Armand who brought a compact mirror to Judge Clyne’s court because, “Judge, the prosecutor faces the jury and sees the effect of the testimony of any witness; on the other hand I, your honor, can only look at you.” Judge Clyne had Mr. Riccio bring the mirror to the bench. It was smashed by Judge Clyne’s gavel, whereupon Mr. Riccio said, “Your honor, not only is that seven years bad luck, it is reversible error.” How can you not love that?
This was the home of the Appellate Division, Third Department from 1916 until 1972. It was also the site of the famous Amadou Diallo trial, where four New York City police officers were tried in 2000 and the New York City press learned of the Hon. Joseph C. Teresi, who received excellent grades from defense and prosecution alike in his efficient handling of this difficult and contentious trial. During the first day of that trial, I remember freezing outside the courthouse waiting to conference a case before Judge Bernard Malone in some matrimonial matter. When I finally reached the three or four Albany police officers in front of the magnetometer or whatever it was, I was asked what my business as in the courthouse that day. I said, “No justice, no peace” which got me a thorough patting down from a few of Albany’s Finest, but a free pass the next day when my frozen body presented itself at the doors of justice.
This is also the place where the great Justice Edward Conway went down to the cells with a litigant who refused to sign a deed in a divorce matter leading to his civil incarceration. Judge Conway had never sentenced anyone to jail. No, not ever. Judge Conway felt so bad he rode the elevator to the Sheriff’s cells and ultimately said, “Don’t do it for your wife, do it for me. I have never sentenced anyone to jail, and I do not want you to be the first.” The guy signed, of course.
There is so much more to tell: Judge Conway’s jury who awarded the plaintiff, “All of it.” The jury who asked if they could award more than the plaintiff asked for, only to deliver a no cause. When collared by the plaintiff’s attorney, the foreman said, “Counsel, we were never going to give your client any money. We just didn’t know the answer to the question.” The great Bruce Sullivan, who never had a verdict against him for over $100,000, drinking the supposed tainted Coca Cola bottle with a rat in it during summation. The great William Kunstler (with our own Lewis Oliver) defending two men accused of possessing illegal firearms during the famous Apartheid Rugby Tour, otherwise known as the match between the great South African Springboks against the American Eagles at Bleeker Stadium. The jury acquitted the men. Kunstler spent every morning and break reading the Wall Street Journal.
This new building is not without its flaws. What can you expect for $53 million? Perfection? The two main elevators are not coordinated, so one must press both buttons and hope for the best. Why coordinate them after all? In ancient times the one elevator was used just for criminals and sheriffs, and so what if there are no criminals in the building anymore? The fourth floor courtroom is timed to have the lights go out if there is no movement every five minutes or so. Energy saving and all that. It is just rather uncomfortable for a judge to have the lights go out during a trial if some slothful lawyer or litigant has not moved sufficiently vigorously for the sensors to keep the lights on. And what is meant by the term “Men’s” which is the only lettering on the room containing the blokes’ loo. Now, I’m not one to slavishly stick to the dictates of Messieurs Strunk and White, but I do believe a possessive pronoun needs a noun following it somewhere. Men’s what? You don’t want my answer to that question, so please, just complete the thought, will you guys?
So, it is time to revel in our good fortune. If you have a slow day at the office, just stop by for a cup of coffee, some snappy repartee and don’t forget to see what is going on in the various courtrooms before you double punch those elevator buttons on the way to the Men's. See you there.
Pro (and Amateur) bono
“If you want to sacrifice the admiration of many men for the criticism of one, go ahead, get married.” Katherine Hepburn
“I think men who have a pierced ear are better prepared for marriage. They've experienced pain and bought jewelry.” Rita Rudner
“Assisting in meeting the urgent need for legal services is a necessary and essential qualification to becoming a lawyer.” Jonathan Lippman, Law Day 2012
Did you catch the little ditty on the front page of the Wall Street Journal the other day about high priced lawyers? Nary a matrimonial guy there, but it seems quite a few lawyers are now charging in excess of $1,000 an hour. According to legal consultants Hildebrandt Baker Robbins the average partner in a law firm now bills at $575 an hour. Since we matrimonial guys are tied to the hourly rate, and we specialize in the increasingly arcane world of complex equitable distribution and support rules, one wonders when we will start charging such fees in upstate New York. As bankruptcy attorney Harvey Miller said, “The underlying principle is if you can get it, get it.” Amen to that Brother Harvey.
The News of the Weird this month comes courtesy of the United States Tax Court who slammed one of the fine citizens of the Fourth Judicial District for over $300,000 in back taxes for improperly deducting as alimony money he turned over to his now ex-wife in a postnuptial agreement. It all started with the Child Support Standards Act, which of course is not an act at all but a law. There is a little known provision regarding the definition of income which allows one to deduct the following from one’s taxable income: “Alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement.” So, you have a couple of children and your marriage has gone sour. You are in love with someone else and you have a boatload of income coming as a result of being a professional baseball player. Rather than see all that income fly into the coffers of your former spouse, why not give it to wife #2 in the form of a postnuptial agreement? Presto chango, I’m a poor minor league baseball manager and gee, I can multiply 25% of that kind of impecunity just fine, thank you very much.
Remember Dave La Point? He is currently the manager of the great Rockland Boulders professional baseball team who toil in lovely Pomona, New York. Formerly he was the pride of the Glens Falls High School Indians and he had a fine career as a major league pitcher for, among others, the Center of Evil in the Universe aka the New York Yankees. In 1989 he divorced his first wife, by whom he had two children. In 1990 he had a daughter by another woman, and in the subsequent child support proceeding he claimed that the strict application of the CSSA required him to pay $25 per month in spite of the fact that in the preceding year he earned $900,000 pitching for the Center of Evil. In 1994, wife number one sought child support and she was awarded the magnificent sum of $100 per week based on his income of $40,000 as a General Manager of the Adirondack Lumberjacks. He immediately sought a downward modification of support since his only income was $24,000 at that time as manager of Dave La Point’s Pitchers, a sports bar owned by the future wife number two. That didn’t work.
Wasn’t it the great Gore Vidal who quipped, “Oh what a tangled web is woven when divorcees conceive?” In any event, with all these children and women filing things, can you blame the guy for coming up with some kind of scheme to limit his CSSA income? Well, here is what he did: prior to marrying wife number two, the aforesaid owner of Pitchers sports bar, Mr. La Point knew that he would probably receive mucho dinero as a result of the resolution of a collusion lawsuit involving major league baseball. So, if I just sign a postnuptial giving all that income to wife number two, then it cannot be considered for child support of my kiddies by wife number one and that other Gold Digger, right? Isn’t that what DRL §240(1-b)(b)(5)(vii)(B) says? Sure it does, Dave.
So, he marries wife number two and signs a postnuptial agreement giving wife number two all of the money from the collusion lawsuit. At this point Mr. La Point was at the end of his major league career, pitching just two games in the majors after signing the agreement, and then ultimately retiring as a minor league player a few years later. Here is where the worm turned, and not for the better. In 2002, wife number two filed for divorce. Oops. Mr. La Point tried to set aside the postnuptial as inherently unfair, which it was, but again that didn’t work. Mr. La Point filed separately for 2002 and 2004 and declared income of $284,000 in 2002 and $384,000 in 2004 from the collusion settlement, all of which went to wife number two under his postnuptial agreement. However, since it was payment to a wife under an agreement, he deducted all of the money as alimony on his income tax returns. Unfortunately, the agreement provided that wife number two was to receive the money even if she died, and that is a no-no to the Internal Revenue Service since all alimony (maintenance) must end on the death of a payee spouse or it is not deductible. Did you know that? In any event, seizing on this provision of the postnuptial, Mr. La Point was assessed over $300,000 in taxes and interest. So let’s see, wife number two received all the money, and he had to declare and pay income taxes on all of it. Is this a great country or what?
As always, the Law Day festivities in the Friedman household included a stiff margarita and watching the webcast of the remarks of the Chief Judge of the Empire State. This year was a doozy. Chief Judge Jonathan Lippman announced that beginning in 2013, before anyone can be admitted to the bar to practice in New York State he or she must complete 50 hours of participation in “law-related and uncompensated pro bono service.” The New York Times immediately weighed in on the subject, calling it “a worthy step in the right direction.” In any event, Judiciary Law Section 53 invests the Court of Appeals with the power to create the conditions for admission to the bar. Although we are still waiting for the Court of Appeals to publish the exact language of this rule, the New York State Bar Association has solicited our comments, as though it was not already a fait accompli having received the Good Housekeeping Seal of Approval from the four Presiding Justices of the Appellate Divisions and certainly the members of the court. Certainly I was not asked. Were you? So, here is my humble response to the state bar, just for yucks:
Can you imagine spending $180,000 at Albany Law School (their numbers, not mine), studying for and passing the bar and being told that you need to do 50 hours of work in law related and uncompensated pro bono service? So, you are not even licensed to practice, you cannot give legal advice or appear in a courtroom, and you have to FIND some law related program that will put up with you for 50 hours for free. Where are you going to find that, and just what OCA bureaucrat is going to certify this program as appropriate? I’ll bet that guy is not “uncompensated.” This is stupid, like most of the great reforms of our system in the past 15 years. Many of these poor law students cannot even get a job, let alone repay their student loans, and now we are going to delay them from reaping the benefits of the fruits of their labors to work in some program for nothing for 50 hours. Why? If the licensed attorney in New York only has to “aspire” to do pro bono work, why impose such a burden on those who can least afford it? Here is my theory: because they can. The New York Constitution gives the Court of Appeals the right to set the terms and conditions of admission to the bar, and so what if the term and condition has NOTHING to do with the ability to practice law? Hell, why not just make them wash our cars for a while? It is bad enough that they pass on one’s “good moral character and requisite fitness for an attorney” whatever that means. It was enough to keep a guy from practicing in the Third Department because he didn’t pay his school loans on time, even though no lawyer has been disbarred for discharging all of one’s debts in bankruptcy. So, don’t pay your student loans, you are not FIT to practice law. But before you can get to those babies, find some place that will let you hang around for 50 hours of law related uncompensated service in the name of the Court of Appeals. I am just glad I am not applying to practice law in New York. I would have given up long ago.
I am sure the state bar is glad they asked. Later
Monday, April 02, 2012
No Justice, No Piece (of the Pie)
“Don't marry a man to reform him. That's what reform schools are for.” Mae West
“A successful man is one who makes more money than his wife can spend. A successful woman is one who can find such a man.” Lana Turner
“Bigamy is having one wife too many. Monogamy is the same.” Oscar Wilde
Discovery. Can’t live with it, and can’t live without it. I always say that the only thing worse than not getting discovery is getting discovery. Who wants to read all this stuff? Well I’m changing my mind thanks to Allen “The King of Bling” Ezial Iverson. You remember this guy, one of the greatest shooting guards in history. Well, he had a wife and 5 children and although she claimed that things were not about the other women (are they ever?), she filed a famous request in Georgia in their divorce asking Herr Bling to “give the name and telephone number of every person other than your spouse whom you have had sexual relations and/or intimate physical contact from the date of the marriage to the date of trial.” Man, now there’s a request we’d all like to see. From now on I am putting this in my “usual” Notices for Discovery and Inspection, somewhere between the witness request and the CPLR 3101(i) surveillance stuff.
Did you see that the leading month for divorces in the United States is March? Why? Who knows. They call January the decision month and February the planning month, so of course Jettison the Old Ball and Chain month is March. The most expensive city for divorce lawyers? The City of Angels of course, weighing in at an average of $350 per hour just outpointing New York by a mere $8 per hour. You want to save legal fees? Try the city that Schlitz made famous: Milwaukee at an average of $205 per hour.
I know what you’re thinking. Enough of this piffle. We read the SCBA Law Notes for the substantive New York law, not the stats and celebrity stuff. So, what’s new in the App Divs? Bling and celebrity of course. In 1995 Nancy Lago married Harold Lewis Andrion, an “international tax lawyer in New York” according to the New York Times wedding pages. They wrote that Ms. Lago “who is keeping her name” (How could you improve on Nancy, after all?) was an architect whose dad was a specialist for the CIA. In any event, things went sour eleven years later and a divorce ensued. In 2010 a trial decision came down requiring the equal payment of the marital debt including a $468,000 tax liability for the last two years of the marriage. The trial court presciently included a provision that "should the Defendant lose his law license by suspension, revocation, or otherwise, and be unable to sustain his current level of income, such event shall constitute a sufficient change of circumstances warranting application for downward modification’ of child support.” Both of these issues came before the Second Department and Counselor Andrion rolled over and played dead on the downward modification issue and so that provision was swept aside. As for the tax liability, the Second Department shifted the whole thing to poor Mr. Andrion as “the defendant acknowledged that he handled all tax matters for the parties during the marriage, and attributes his inability to pay his taxes from his current income to the fact that his expenses were too high, in part because he had to maintain a rented home for his family while the parties' house in Pawling was being renovated. However, the evidence adduced at trial indicated that it was his decision to move the parties' full-time residence to the house in Pawling, despite the fact that the house was in ‘bad shape.’ Further, under the circumstances of this case, it cannot be said that the plaintiff derived a benefit from the defendant's failure to pay the taxes.” What, she didn’t live there? The kiddies didn’t like beautiful downtown Pawling? A family decision to live in a badly shaped house means only hubby pays the tax bill. Just what did this guy earn? $475,000. The architect wife still named Nancy? She earned nothing. After all, we’re not talking Betty Jo Bealowaski here.
Now for the rest of the story. In between the trial court and the Second Department decision, the First Department decided Matter of Andrion. Now, I don’t know about you, but every now and then I wake up in the middle of the night with sweat pouring down my forehead dreaming about reading Matter of Friedman in the advance sheets. It seems Counselor Andrion, international tax lawyer to the stars, expert witness to the National Commission on Economic Growth and Tax Reform, forged his wife’s name on a Power of Attorney (who hasn’t?) so he could borrow $100,000 for the aforesaid Pawling home that cost him nearly half a mil in tax liabilities. Ouch. A few years later he forged a co-worker’s notary stamp to get an additional $167,000 from Charter One Bank in his wife’s name. So, what’s the appropriate penalty here? For my money, disbarment or at least house arrest in that decrepit Pawling manse. But to the First Department this merits a three year suspension, a Haley Barbouresque reprieve if I’ve ever seen one.
In 1958 President Dwight David Eisenhower declared May 1 to be Law Day. Why? He was sick of all the jingoistic, godless May Day festivities in Moscow and elsewhere for International Workers’ Day. Well, with middling success, Law Day has survived the collapse of the Soviet Union and we look forward to the festivities each May 1. This year the American Bar Association has dedicated Law Day to “Heed the Call: No Courts No Justice No Freedom.” Saying that New York is at the forefront of the struggle for court funding, the ABA has established a net portal, spiffy videos and lobbying quality propaganda for the struggle for cash also known as the Taskforce on the Preservation of the Justice System. Who couldn’t get behind that? Me for one. After all the presiding Chief has weighed in with his own video regaling us with the decaying fabric of our judicial system wrought by those misers in the other branches of government who cut $170 million from the $2.4 Billion dollar request to keep body and judicial robes together. After all, isn’t that why we close our courts every day at 4:30 p.m.? As ABA President Bill Robinson, III wrote, “The $170 million budget reduction to the New York State Unified Court System in fiscal year 2011 has resulted in shorter operating hours, crowded court dockets, excessive delays, limited access to court resources for self represented litigants, and higher costs for those who seek assistance from lawyers or expert witnesses.” Not exactly. Putting aside that OCA has overseen the largest expansion of costs in the history of American jurisprudence, and that our court system costs more than any other state by far because of the excesses of the spending, anyone who spends $23 million of taxpayer cash on a place to sleep for a few weeks a year should NOT be allowed to claim that the legislature is depriving citizens of anything by cutting $170 million from OCA’s bloated multibillion dollar budget. Something about casting the first stone I believe. It is just like Albany County blaming OCA for the astounding excessive cost of the Family Court building. This lovely structure has cost us $13.5 million in rent for a Columbia Development project that cost about $11 million for the owners to build. Now we can purchase the whole thing from them for upwards of $23.6 million. For that money one might be able to buy all of Clinton Avenue, but when asked why they paid so much for so little the County Executive response was that the Office of Court Administration pressured us into doing it. So, Mr. Iverson, just who is the real King of Bling here?
Enough of that. On a lighter note did you catch the nice article in the New York Times about the Hon. Ann Pfau? Justice Pfau served as the Deputy Chief Administrative Judge for seven years until she ascended to the job of Chief Administrative Judge from 2007 to 2011. She is still the Statewide Coordinating Judge for the Unified Court System Medical Malpractice Matters. She made the rules for all the judges of the Unified Court System for many years, otherwise known as the Rules of the Chief Administrative Judge, 22 NYCRR 100 et. alia. These rules govern everything from Part 128 “Rules for the Jury System” to my favorite, Part 155, “Caseload Activity Reporting.” It seems that in December of 2011 Judge Pfau tried her first jury trial and this was so wondrous that the New York Times published an article on her personal rules for jury trials. In the article entitled “At 64, a Longtime Judge Receives a Crash Course On the Ways of the Bench” she finally experienced the application of all those beautiful rules she promulgated for our 1,200 trial judges toiling in the trenches. Her personal rules? Something about the marshaling of proof, the ways to address the juries with pattern instructions or the control of the courtroom? Nah. Here they are: Sit up straight. Don’t let them see you sweat. There really is a book called New York Objections. If you have trouble, take a recess.
You just cannot make this up. Finally, here is my favorite quote from the article, “I took a look at the courtroom, and it looked so looming to me. I thought, ‘Man, I’m really going to do this?’ ” Of course you’re not judge, of course you’re not.
Happy Law Day.
“A successful man is one who makes more money than his wife can spend. A successful woman is one who can find such a man.” Lana Turner
“Bigamy is having one wife too many. Monogamy is the same.” Oscar Wilde
Discovery. Can’t live with it, and can’t live without it. I always say that the only thing worse than not getting discovery is getting discovery. Who wants to read all this stuff? Well I’m changing my mind thanks to Allen “The King of Bling” Ezial Iverson. You remember this guy, one of the greatest shooting guards in history. Well, he had a wife and 5 children and although she claimed that things were not about the other women (are they ever?), she filed a famous request in Georgia in their divorce asking Herr Bling to “give the name and telephone number of every person other than your spouse whom you have had sexual relations and/or intimate physical contact from the date of the marriage to the date of trial.” Man, now there’s a request we’d all like to see. From now on I am putting this in my “usual” Notices for Discovery and Inspection, somewhere between the witness request and the CPLR 3101(i) surveillance stuff.
Did you see that the leading month for divorces in the United States is March? Why? Who knows. They call January the decision month and February the planning month, so of course Jettison the Old Ball and Chain month is March. The most expensive city for divorce lawyers? The City of Angels of course, weighing in at an average of $350 per hour just outpointing New York by a mere $8 per hour. You want to save legal fees? Try the city that Schlitz made famous: Milwaukee at an average of $205 per hour.
I know what you’re thinking. Enough of this piffle. We read the SCBA Law Notes for the substantive New York law, not the stats and celebrity stuff. So, what’s new in the App Divs? Bling and celebrity of course. In 1995 Nancy Lago married Harold Lewis Andrion, an “international tax lawyer in New York” according to the New York Times wedding pages. They wrote that Ms. Lago “who is keeping her name” (How could you improve on Nancy, after all?) was an architect whose dad was a specialist for the CIA. In any event, things went sour eleven years later and a divorce ensued. In 2010 a trial decision came down requiring the equal payment of the marital debt including a $468,000 tax liability for the last two years of the marriage. The trial court presciently included a provision that "should the Defendant lose his law license by suspension, revocation, or otherwise, and be unable to sustain his current level of income, such event shall constitute a sufficient change of circumstances warranting application for downward modification’ of child support.” Both of these issues came before the Second Department and Counselor Andrion rolled over and played dead on the downward modification issue and so that provision was swept aside. As for the tax liability, the Second Department shifted the whole thing to poor Mr. Andrion as “the defendant acknowledged that he handled all tax matters for the parties during the marriage, and attributes his inability to pay his taxes from his current income to the fact that his expenses were too high, in part because he had to maintain a rented home for his family while the parties' house in Pawling was being renovated. However, the evidence adduced at trial indicated that it was his decision to move the parties' full-time residence to the house in Pawling, despite the fact that the house was in ‘bad shape.’ Further, under the circumstances of this case, it cannot be said that the plaintiff derived a benefit from the defendant's failure to pay the taxes.” What, she didn’t live there? The kiddies didn’t like beautiful downtown Pawling? A family decision to live in a badly shaped house means only hubby pays the tax bill. Just what did this guy earn? $475,000. The architect wife still named Nancy? She earned nothing. After all, we’re not talking Betty Jo Bealowaski here.
Now for the rest of the story. In between the trial court and the Second Department decision, the First Department decided Matter of Andrion. Now, I don’t know about you, but every now and then I wake up in the middle of the night with sweat pouring down my forehead dreaming about reading Matter of Friedman in the advance sheets. It seems Counselor Andrion, international tax lawyer to the stars, expert witness to the National Commission on Economic Growth and Tax Reform, forged his wife’s name on a Power of Attorney (who hasn’t?) so he could borrow $100,000 for the aforesaid Pawling home that cost him nearly half a mil in tax liabilities. Ouch. A few years later he forged a co-worker’s notary stamp to get an additional $167,000 from Charter One Bank in his wife’s name. So, what’s the appropriate penalty here? For my money, disbarment or at least house arrest in that decrepit Pawling manse. But to the First Department this merits a three year suspension, a Haley Barbouresque reprieve if I’ve ever seen one.
In 1958 President Dwight David Eisenhower declared May 1 to be Law Day. Why? He was sick of all the jingoistic, godless May Day festivities in Moscow and elsewhere for International Workers’ Day. Well, with middling success, Law Day has survived the collapse of the Soviet Union and we look forward to the festivities each May 1. This year the American Bar Association has dedicated Law Day to “Heed the Call: No Courts No Justice No Freedom.” Saying that New York is at the forefront of the struggle for court funding, the ABA has established a net portal, spiffy videos and lobbying quality propaganda for the struggle for cash also known as the Taskforce on the Preservation of the Justice System. Who couldn’t get behind that? Me for one. After all the presiding Chief has weighed in with his own video regaling us with the decaying fabric of our judicial system wrought by those misers in the other branches of government who cut $170 million from the $2.4 Billion dollar request to keep body and judicial robes together. After all, isn’t that why we close our courts every day at 4:30 p.m.? As ABA President Bill Robinson, III wrote, “The $170 million budget reduction to the New York State Unified Court System in fiscal year 2011 has resulted in shorter operating hours, crowded court dockets, excessive delays, limited access to court resources for self represented litigants, and higher costs for those who seek assistance from lawyers or expert witnesses.” Not exactly. Putting aside that OCA has overseen the largest expansion of costs in the history of American jurisprudence, and that our court system costs more than any other state by far because of the excesses of the spending, anyone who spends $23 million of taxpayer cash on a place to sleep for a few weeks a year should NOT be allowed to claim that the legislature is depriving citizens of anything by cutting $170 million from OCA’s bloated multibillion dollar budget. Something about casting the first stone I believe. It is just like Albany County blaming OCA for the astounding excessive cost of the Family Court building. This lovely structure has cost us $13.5 million in rent for a Columbia Development project that cost about $11 million for the owners to build. Now we can purchase the whole thing from them for upwards of $23.6 million. For that money one might be able to buy all of Clinton Avenue, but when asked why they paid so much for so little the County Executive response was that the Office of Court Administration pressured us into doing it. So, Mr. Iverson, just who is the real King of Bling here?
Enough of that. On a lighter note did you catch the nice article in the New York Times about the Hon. Ann Pfau? Justice Pfau served as the Deputy Chief Administrative Judge for seven years until she ascended to the job of Chief Administrative Judge from 2007 to 2011. She is still the Statewide Coordinating Judge for the Unified Court System Medical Malpractice Matters. She made the rules for all the judges of the Unified Court System for many years, otherwise known as the Rules of the Chief Administrative Judge, 22 NYCRR 100 et. alia. These rules govern everything from Part 128 “Rules for the Jury System” to my favorite, Part 155, “Caseload Activity Reporting.” It seems that in December of 2011 Judge Pfau tried her first jury trial and this was so wondrous that the New York Times published an article on her personal rules for jury trials. In the article entitled “At 64, a Longtime Judge Receives a Crash Course On the Ways of the Bench” she finally experienced the application of all those beautiful rules she promulgated for our 1,200 trial judges toiling in the trenches. Her personal rules? Something about the marshaling of proof, the ways to address the juries with pattern instructions or the control of the courtroom? Nah. Here they are: Sit up straight. Don’t let them see you sweat. There really is a book called New York Objections. If you have trouble, take a recess.
You just cannot make this up. Finally, here is my favorite quote from the article, “I took a look at the courtroom, and it looked so looming to me. I thought, ‘Man, I’m really going to do this?’ ” Of course you’re not judge, of course you’re not.
Happy Law Day.
Wednesday, February 01, 2012
The Sad End of Appellate Logic and Stare Decisis
“I want a man who's kind and understanding. Is that too much to ask of a millionaire?” Zsa Zsa Gabor
“Why do men chase women they have no intention of marrying? The same urge that makes dogs chase cars they have no intention of driving.” Anonymous
“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
Again, you knew I would have it all wrong. After all, the irretrievable breakdown of the marriage is in the eye of the beholder, isn’t it? I always thought that if one party declares the marriage irretrievable, well, what could make it be retrieved? Doesn’t it take two to tango, or at least four including the divorce lawyers? I am therefore of the opinion that no trial can be had of the issue of irretrievability. In spite of the fact that Justice Robert Muller in Essex County has opined to the contrary, I remained skeptical that any lawyer would really try to put an opposing spouse to the proof, in essence arguing that the sworn statement required by the statue of irretrievability was untrue and deep down in your pretty little heart you know that we can work it out. It reminds me of the classic scene in Dumb and Dumber where Lloyd Christmas asks Mary Swanson his chances of going out with her. When she says one in a million he replies, “So you’re telling me there is a chance. Yeah.” Such was the case of Sebastian Sorrentino who tried to stop his 79 year old wife Gloria from obtaining the fruits of Equitable Distribution in a 55 year marriage. Acting Suffolk County Supreme Court Judge James F. Quinn apparently thought that this was a justiciable issue and held a three day trial solely on grounds. Finding that the possible resurrection of the marriage was an issue of fact and indeed an affirmative defense under CPLR §3018(b), Justice Quinn ultimately granted Ms. Sorrentino the divorce, but only after the parties and their children testified to the sorry state of the Sorrentino household. On the way out of this mess, just for giggles Justice Quinn declared that the particularity provisions of CPLR Rule 3016(c) apply to irretrievable breakdown divorces, even though that rule states the circumstances of a party’s misconduct shall be specified in the complaint. So, let’s see. No misconduct is required for an irretrievable breakdown divorce, but it must be specified anyway. Got that?
For those of you who are new to this game, in 1966 the legislature passed a divorce reform bill that added grounds for divorce such as cruelty and abandonment since the only recognized ground until then was adultery. In order to get this past the New York State Catholic Welfare Conference, among others, the bill required people to apply to a Conciliation Bureau to see if the marriage was beyond all hope of reconciliation. This farce was an unnecessary exercise in futility and was eventually eliminated in 1973, perhaps the last time that the court system removed a layer of bureaucracy. Oh to be a member of the Conciliation Bureau in those halcyon days. I guess Justices Quinn and Muller and heaven knows who else still think we need to legally test the resolve of the spouse who has had enough.
Hey, why even follow logic or precedent when the Appellate Divisions are not constrained by such plebian notions of stare decision or settled law? Case in point: Remember the old saw about the appreciation of separate property due to market forces still being separate? That shows you how little you know pal, just because the Court of Appeals said so in Price in 1986 and a few times since: “As a general rule, however, where the appreciation is not due, in any part, to the efforts of the titled spouse but to the efforts of others or to unrelated factors including inflation or other market forces, as in the case of a mutual fund, an investment in unimproved land, or in a work of art, the appreciation remains separate property, and the nontitled spouse has no claim to a share of the appreciation.” So along comes Ed Scher, marries the love of his life, moves her into his home, and then divorces her. His home went up in value $340,000 during the marriage but $300,000 was due to those same market forces and $40,000 was due to active appreciation also known as improvements made during the marriage. So the trial court gives her $10,000 which by my calculations was one quarter of the active increase. The Second Department however gives her $170,000 or one half of the combined active and passive appreciation! Now that is some jive legal gymnastics if ever I saw them. Citing Price, which of course holds just the opposite, they astonishingly say, “In light of the plaintiff's contributions, the Supreme Court should have awarded the parties equal shares in the increase in the value of the marital residence.” So, fix a window or something and all that passive appreciation comes your way. Amazing.
That is why I have to get out of this business. It makes no sense whatsoever, and when a client asks you what are the rules, these days I just want to run for the hills. Nor is the Third Department immune from such flights of fantasy. Case in point: You have a child. You separate. The child grows up, moves away from her mother’s home and gets a full time job. Do you still have to pay child support to the mother? Of course you do. Just ask the Sages of State Street. The daughter turned 18, moved in with her grandmother and obtained full time employment. Sounds like emancipation to me, and also to the Support Magistrate and the Family Court Judge. Not so fast there. Here is the Third Department’s rather bizarre view of reality: “The fact that a child may work full time is not determinative, as a child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support. This remains true even where, as here, the child in question no longer resides with one of the parties, so long as the child is still dependent on one of [them] for a significant portion of his or her support." As for the agreement defining emancipation as residing away from the custodial parent, well you just can’t contract away a child’s right to support now, can you? So keep those cards and checks coming Mom, because you can extract your child support from Daddy even if your precious fully grown, fully employed daughter is not there when you wake up in the morning. Ever. What a wonderful world.
As the rules of law and logic are not too much in favor these days among the higher courts, why not just bend the rules of time travel too? In my favorite space-time Euclidean three dimensional decision of 2012, the Third Department retroactively suspended a lawyer for one year starting August 30, 2007! Get a load of this: “For the period of suspension, respondent is commanded to desist and refrain from the practice of law in any form … and respondent is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to another an opinion as to the law or its application, or any advice in relation thereto.” So, what kind of ex post facto gobbledygook gives our learned jurists the power to retroactively ask a lawyer to stop practicing law for a year commencing five years ago? Who’s going to enforce the breach of that directive? Albert Einstein? Doctor Who? Marty McFly? And just how do I get out of this rabbit hole, Miss Alice? See y’all next time I hope.
"It takes at least two to tango for conspiracy purposes." -- US v. Villasanor, 894 F.2d 1422 (1990)
Stack v. Stack, 31 Misc.3rd 258 (Essex Co., 2011)
Domestic Relations Law Section 170(7)
New Line Cinema, 1994.
You can find the lovely tome here, including Justice Quinn’s note of the decline in domestic violence in no fault states:
http://www.nylj.com/nylawyer/adgifs/decisions/012612quinn.pdf
Price v. Price, 69 N.Y.2nd 8 (1986) as reaffirmed in Hartog V. Hartog, 85 N.Y.2nd 36 (1995) and Fields v. Fields, 15 N.Y.3rd 158 (2010).
Scher v. Scher, __ A.D.3rd __ (Second Department, January 12, 2012).
Matter of Drumm v. Drumm, 88 A.D.3rd 1110 (Third Department, 2011).
Matter of Shele, __ A.D.3rd __ (Third Department, January 19, 2012)
“Why do men chase women they have no intention of marrying? The same urge that makes dogs chase cars they have no intention of driving.” Anonymous
“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
Again, you knew I would have it all wrong. After all, the irretrievable breakdown of the marriage is in the eye of the beholder, isn’t it? I always thought that if one party declares the marriage irretrievable, well, what could make it be retrieved? Doesn’t it take two to tango, or at least four including the divorce lawyers? I am therefore of the opinion that no trial can be had of the issue of irretrievability. In spite of the fact that Justice Robert Muller in Essex County has opined to the contrary, I remained skeptical that any lawyer would really try to put an opposing spouse to the proof, in essence arguing that the sworn statement required by the statue of irretrievability was untrue and deep down in your pretty little heart you know that we can work it out. It reminds me of the classic scene in Dumb and Dumber where Lloyd Christmas asks Mary Swanson his chances of going out with her. When she says one in a million he replies, “So you’re telling me there is a chance. Yeah.” Such was the case of Sebastian Sorrentino who tried to stop his 79 year old wife Gloria from obtaining the fruits of Equitable Distribution in a 55 year marriage. Acting Suffolk County Supreme Court Judge James F. Quinn apparently thought that this was a justiciable issue and held a three day trial solely on grounds. Finding that the possible resurrection of the marriage was an issue of fact and indeed an affirmative defense under CPLR §3018(b), Justice Quinn ultimately granted Ms. Sorrentino the divorce, but only after the parties and their children testified to the sorry state of the Sorrentino household. On the way out of this mess, just for giggles Justice Quinn declared that the particularity provisions of CPLR Rule 3016(c) apply to irretrievable breakdown divorces, even though that rule states the circumstances of a party’s misconduct shall be specified in the complaint. So, let’s see. No misconduct is required for an irretrievable breakdown divorce, but it must be specified anyway. Got that?
For those of you who are new to this game, in 1966 the legislature passed a divorce reform bill that added grounds for divorce such as cruelty and abandonment since the only recognized ground until then was adultery. In order to get this past the New York State Catholic Welfare Conference, among others, the bill required people to apply to a Conciliation Bureau to see if the marriage was beyond all hope of reconciliation. This farce was an unnecessary exercise in futility and was eventually eliminated in 1973, perhaps the last time that the court system removed a layer of bureaucracy. Oh to be a member of the Conciliation Bureau in those halcyon days. I guess Justices Quinn and Muller and heaven knows who else still think we need to legally test the resolve of the spouse who has had enough.
Hey, why even follow logic or precedent when the Appellate Divisions are not constrained by such plebian notions of stare decision or settled law? Case in point: Remember the old saw about the appreciation of separate property due to market forces still being separate? That shows you how little you know pal, just because the Court of Appeals said so in Price in 1986 and a few times since: “As a general rule, however, where the appreciation is not due, in any part, to the efforts of the titled spouse but to the efforts of others or to unrelated factors including inflation or other market forces, as in the case of a mutual fund, an investment in unimproved land, or in a work of art, the appreciation remains separate property, and the nontitled spouse has no claim to a share of the appreciation.” So along comes Ed Scher, marries the love of his life, moves her into his home, and then divorces her. His home went up in value $340,000 during the marriage but $300,000 was due to those same market forces and $40,000 was due to active appreciation also known as improvements made during the marriage. So the trial court gives her $10,000 which by my calculations was one quarter of the active increase. The Second Department however gives her $170,000 or one half of the combined active and passive appreciation! Now that is some jive legal gymnastics if ever I saw them. Citing Price, which of course holds just the opposite, they astonishingly say, “In light of the plaintiff's contributions, the Supreme Court should have awarded the parties equal shares in the increase in the value of the marital residence.” So, fix a window or something and all that passive appreciation comes your way. Amazing.
That is why I have to get out of this business. It makes no sense whatsoever, and when a client asks you what are the rules, these days I just want to run for the hills. Nor is the Third Department immune from such flights of fantasy. Case in point: You have a child. You separate. The child grows up, moves away from her mother’s home and gets a full time job. Do you still have to pay child support to the mother? Of course you do. Just ask the Sages of State Street. The daughter turned 18, moved in with her grandmother and obtained full time employment. Sounds like emancipation to me, and also to the Support Magistrate and the Family Court Judge. Not so fast there. Here is the Third Department’s rather bizarre view of reality: “The fact that a child may work full time is not determinative, as a child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support. This remains true even where, as here, the child in question no longer resides with one of the parties, so long as the child is still dependent on one of [them] for a significant portion of his or her support." As for the agreement defining emancipation as residing away from the custodial parent, well you just can’t contract away a child’s right to support now, can you? So keep those cards and checks coming Mom, because you can extract your child support from Daddy even if your precious fully grown, fully employed daughter is not there when you wake up in the morning. Ever. What a wonderful world.
As the rules of law and logic are not too much in favor these days among the higher courts, why not just bend the rules of time travel too? In my favorite space-time Euclidean three dimensional decision of 2012, the Third Department retroactively suspended a lawyer for one year starting August 30, 2007! Get a load of this: “For the period of suspension, respondent is commanded to desist and refrain from the practice of law in any form … and respondent is hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give to another an opinion as to the law or its application, or any advice in relation thereto.” So, what kind of ex post facto gobbledygook gives our learned jurists the power to retroactively ask a lawyer to stop practicing law for a year commencing five years ago? Who’s going to enforce the breach of that directive? Albert Einstein? Doctor Who? Marty McFly? And just how do I get out of this rabbit hole, Miss Alice? See y’all next time I hope.
"It takes at least two to tango for conspiracy purposes." -- US v. Villasanor, 894 F.2d 1422 (1990)
Stack v. Stack, 31 Misc.3rd 258 (Essex Co., 2011)
Domestic Relations Law Section 170(7)
New Line Cinema, 1994.
You can find the lovely tome here, including Justice Quinn’s note of the decline in domestic violence in no fault states:
http://www.nylj.com/nylawyer/adgifs/decisions/012612quinn.pdf
Price v. Price, 69 N.Y.2nd 8 (1986) as reaffirmed in Hartog V. Hartog, 85 N.Y.2nd 36 (1995) and Fields v. Fields, 15 N.Y.3rd 158 (2010).
Scher v. Scher, __ A.D.3rd __ (Second Department, January 12, 2012).
Matter of Drumm v. Drumm, 88 A.D.3rd 1110 (Third Department, 2011).
Matter of Shele, __ A.D.3rd __ (Third Department, January 19, 2012)
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