As Bad As It Gets

“I first met my wife in the Tunnel of Love. She was digging it.” Len Dawson
“A judge is a law student who marks his own examination papers.” H.L. Menken
“Our courthouse doors are always open until 5 p.m.” A. Gail Prudenti, Chief Administrative Judge, New York State Court System, Letter to the Editor, Times Union, July 9, 2013
Really, Judge Prudenti?
OK, here’s how bad things are. A father tries to push his wife down the stairs. He pushes her up against a wall and twists her arm causing pain. So, mom seeks an Order of Protection in Family Court so hubby stays away from her. After a hearing, Family Court finds that the husband had engaged in disorderly conduct and issues a two-year Order of Protection. Sounds good to me, but not to the Second Department who held this is not disorderly conduct as a matter of law! Say what? How about assault or harassment, as in striking, shoving or subjecting someone to physical contact? No? Really? In a cruel and incomprehensible decision, the petition was dismissed and the Order of Protection thrown out. Why? It seems that the definition of disorderly conduct requires activities with “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” So, unless you are intending to cause public inconvenience, annoyance or alarm, feel free to shove, push, twist and hurt your wife, at least in the Second Department. I know what you’re thinking. The Family Court Act says that disorderly conduct in a family offense proceeding “includes disorderly conduct not in a public place.” According to the Second Department that provision applies only to where the act occurs, not the intent. So long as the neighbors don’t hear you smack your wife around, all is well, or as they put it “under circumstances where the public may reasonably expected to see or hear the altercation.” They point out that since the wife never said the husband was screaming, all was perfectly fine in the home. As for the clear violation of the assault and harassment statutes, in the words of Emily Litella, “never mind.” Now I am not much for any more laws to clutter the Family Court Act, but if this level of judicial truculence is their interpretation of the Family Court Act, a simple sentence in Article 8 might correct this unbelievable injustice. Just a thought.
So, just for a little common sense, let’s return to the Third Judicial Department, the brainchild of Nobel Peace Prize winner Elihu Root some 120 years ago. No, I don’t think he won the Nobel for the creation of the 3rd JD, but he should have. Like other appellate courts in New York, the Third Department slips into the Arms of Morpheus around mid-July, and except for an occasional election law decision we read nothing. Just to give us some cud to chew on for the summer, on June 27 they handed down twelve custody decisions. Yippee. Here’s my favorite. Did you know a child can live primarily with one parent and the other can have sole custody? Neither did I. Neither did the Albany County Family Court judge in Matter of Deyo v. Bagnato, but that’s just what the Third Department imposed in a modification of custody petition. While the children were with dad most of the time, he was hardly a good candidate to make choices. His idea of cooperative communication with the mother was to call her a "f***ing crack whore" in the child's presence. Also, in this decision the Sages of State Street reversed an award of “Modified Joint Custody” which is still looking for its first Third Department Seal of Approval.
Eight days before the Deyo decision, the Second Department weighed in on their unique view of joint custody. In Matter of Jacobs v. Young, the Second Department upheld an award of sole custody to mom but directed that dad have sole decision making with regard to the child’s education. As they held, “it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent.” Of course, this is just the trend to have courts micromanage all aspects of parental authority when parents cannot decide. Hey, we now have trials on where children go to school, so why not see who can decide what? After all, we know some parents are willing to litigate most every aspect of the child’s life. It just seemed easier when the courts didn’t participate in that silly game.
Not to be outdone on the wacky side of custodial disputes, the Fourth Department weighed in on reversing a custodial award solely because of things that occurred after the trial! If you don’t believe me, take a gander at Kennedy v. Kennedy, which held, “Specifically, in deciding the custody issue in the mother's favor, the court relied on evidence that the mother had become self-supporting and was living in her own apartment. We have now been informed, however, that the mother has since lost her job and her apartment and has moved in with her own mother. We therefore reverse the order and remit the matter to Family Court for an expedited hearing on the issue whether the alleged change of circumstances affects the best interests of the children.” Are you kidding me? Can you imagine the Family Court Judge wondering what she could have done to prevent her ultimate reversal? Clairvoyance? And doesn’t the Fourth Department subscribe to the principle of dehors the record? That’s the crutch that appellate courts have used for over one hundred years to deny an appeal as appellate courts are not supposed to consider anything that was not before the lower court. After all, that would be unfair. However, to quote from the Fourth Department a mere seven days after the Kennedy decision, “Defendant's further contentions in his pro se supplemental brief that he was otherwise deprived of effective assistance of counsel and that he is entitled to a new trial in light of newly discovered exculpatory evidence are based on matters dehors the record and thus cannot be reviewed on direct appeal.” What is even more galling is that two of the four judges who decided Kennedy denied this appeal for just what they did a week before.
The most aggravating aspect of advising clients on the laws affecting his or her dispute is inconsistency in judicial guidance. Sure, we all dislike decisions we think are wrong, but we can deal with that and clients could care less about what we like. They just want to know what is going to happen. When the same appellate court tells us two completely different things in the same week, it’s time to crack open the Makers Mark and ponder a career in dentistry.
Finally, what would this world be without the entertainment of the websites of our beloved court system? If you are a regular visitor to the Third Department site (and who isn’t), you will learn that the Sages felt it necessary to pass a rule that you cannot receive or make a telephone call within the Third Department’s courtroom, even if the judges are not on the bench. Technically this is a Policy Statement, and I’m not sure of the difference between that and a Rule. Also, the use of electronic devices within the Court Facility is subject to the Presiding Justice’s ability to prohibit activity “that may otherwise be contrary to the administration of justice.” I’m still trying to figure that one out. The above quoted Chief Judge A. Gail Prudenti has lobbied recently for a constitutional amendment that would raise the age that Court of Appeals judges can sit from age 70 to age 80. Guess whose boss is the only person affected by that amendment? Speaking of which, the Chief Judge has created another new 20 member “Committee on Non-Lawyers and the Justice Gap.” Now, don’t get me going on the term “Justice Gap,” but in announcing the Committee in late May, Chief Judge Jonathan Lippman said, “You could have a non-lawyer who is an expert in a particular area who may be even more helpful to a person in need than a lawyer who isn't expert in that area.” I’m pretty sure he wasn’t talking about plumbers. In any event, that sure made me glad I went to law school and honed my skills for a few decades. Now, where is that Maker’s Mark?
Penal Law Section §240.20.
Family Court Act §812(1)
Cassie v. Cassie, __A.D.3rd __ (2nd Dept., 2013).
107 A.D.3rd 1317 (3rd Dept., 2013)
__ A.D.3rd __ (2nd Dept., July 19, 2013), and why the later Deyo case has an official citation but this one doesn’t is just one of life’s little mysteries. Maybe the Great God of Official Cites likes the Third Department better. So do I.
107 A.D.3d 1625 (4th Dept., 2013)
Literally “out of” or “foreign to” from the French deforis meaning from the outside, it has been used over 1700 times in reported decisions and has been cited by the Court of Appeals over 50 times dating to its third year of existence, 1850.
People v. Wilson, __ A.D. __ (4th Dept., July 5, 2013). And the dehors the record excuse is hardly limited to criminal matters. See the Fourth Department’s child custody decision in Fox v. Fox, 177 A.D.2nd 209 (4th Dept., 1992)
New York Law Journal, “Non-Lawyers May Be Given Role in Closing 'Justice Gap'” by Joel Stashenko, May 28, 2013.