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)