When you talk to matrimonial lawyers in other states, they marvel at our peculiar practices. Fault divorces, let alone jury trials for fault divorces, always raise an eyebrow or two. Then you explain about enhanced earnings,[1] child support to age 21 including college contributions,[2] no recoupment of child support overpayments,[3] double dipping of child support and enhanced earnings[4] and guideline recalculations every two years in spite of agreements to the contrary.[5] No one believes you. So, I was not surprised to learn that other states have more progressive rules about custodial access, known as visitation in the Domestic Relations Law.[6] After all, if there are Child Support Guidelines, why not Parental Access Guidelines?
Our child support guidelines are the product of national child support enforcement regulations, essentially mandating that state legislatures have some standards for the determination of support.[7] There is no such impetus from Congress or the New York Legislature for parental access guidelines. The Melonas Commission and the 2006 Matrimonial Commission[8] did not address this issue among the myriad of suggested reforms. However, other states and municipalities have addressed these issues in an effort to set minimum standards of access and to avoid protracted litigation over such trivial issues as times for pick up and drop off, and standards for telephone access and clothing exchanges. The Third Department determined custodial schedules a few years ago in overruling minimal alternating weekend access in favor of more expanded midweek and full weekend access.[9] However, such cases are few and far between and are often the product of specific circumstances.[10] There are no generally recognized standards for parental access in New York, leaving it to judges to fashion schedules based on their own proclivities, experiences and prejudices. Appellate Courts are loathe to overturn a parental schedule, leaving such awards to the “sound discretion of the trial judges.”[11] At best, visitation schedules are remanded to the trial court to fashion an appropriate schedule.[12] Experts can provide no help as there is little scientific evidence to suggest that trained professionals have the expertise or training to establish parenting schedules.[13]
For the most part, the custodial guidelines of other states grant minimal access to noncustodial parents. In excruciating detail they deal with access for very young children, holidays, telephone calls and clothing exchanges. The Arizona Model Parenting Guidelines[14] breaks it down into three to four year intervals of a child’s life, and all require that the parents live within 150 to 200 miles for significant access. However, most guidelines have an alternating weekend schedule from Friday evening to Sunday evening and a midweek dinner visit. Indiana,[15] Arizona, Oklahoma,[16] Utah,[17] South Dakota,[18] Delaware,[19] and some courts in Mississippi,[20] Ohio,[21] and Florida[22] follow such rules. We have come a long way since the Draconian conclusions of Beyond the Best Interests of the Child,[23] where Goldstein, Freud and Solnit recommended the identification of the psychological parent and the essential disappearance of the other parent. However, in a country of two working parent households, custodial schedules do not mirror the shared parental responsibilities when parents separate. “Traditional” families of working spouse/homemaker spouse are no longer the norm in America. In 1940, 60% of American families had this traditional structure,[24] but the Bureau of Labor Statistics reported that 62 percent of families with children now have two working parents.[25]
Much judicial energy is spent on litigating access schedules that often have little to do with a child’s best interests. Are there any statistics that show a child does significantly better if the drop off time is 6:00 p.m. Sunday versus Monday morning or if a child spends midweek overnight with the non primary parent? Of course not. Yet these issues are litigated with a vengeance as parents fight for every minute of parenting time in an effort to obtain favorable child support considerations[26] or just to deny access to the offending spouse. Is it not more sensible to have parenting guidelines that try to mirror the child’s contacts with both parents in the intact household, if for no other reason than to limit the needless litigation of these issues that are so important for parents and so insignificant for many children? I am guessing a semester or two of college education expenses are often spent to determine whether there should be a phone call every day at 7:00 p.m. or whether a parent should return a child at 10:00 a.m. or noon on Christmas Day. Any law guardian with more than two weeks experience will tell you that the child’s best interests are served by a settlement of custodial schedules as opposed to a particular date or time for pick up and drop off. I am therefore proposing the following guidelines in the hopes that someday, someway children of separating parents can be spared the needless stress associated with parental access litigation. Maybe then we can start eliminating the useless trials over sole versus joint custody, but I leave that for another day.
I realize that these can only be guidelines, and the actual schedule may have to altered based on working schedules, out of town parents or for very young children. However, I believe this or some semblance thereof should be the “default” schedule for most families in the throes of custodial litigation. This should be the “presumptive” schedule and a parent who wishes to deviate should have to show good cause in the best interests of the child.
Proposed New York Parental Access Guidelines
1. WEEKENDS: Each parent shall have access on alternate weekends from Friday after school or at 3:00 p.m. if there is no school until Monday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. If Monday is a school holiday, then access shall end Tuesday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. Monday school holidays have precedence over the weekday schedule.
2. WEEKDAY: If both parents worked full time prior to separation, the mother/father shall have access from Monday at 9:00 a.m. until Wednesday morning when the child shall be brought to school or to the father/mother 9:00 a.m. if there is no school. Then the father/mother shall have access from Wednesday at 9:00 a.m. until Friday morning when the child shall be brought to school or to the father/mother 3:00 p.m. if there is no school. If one parent worked part time or not at all prior to separation, then the full time working parent shall have access every Wednesday after school or 3:00 p.m. if there is no school until Thursday morning when the child shall be brought to school or 9:00 a.m. if there is no school.
3. HOLIDAYS: Holidays shall take precedence of over Weekend and Weekday access. The father shall have the holidays in Column1 n odd-numbered years and the holidays in Column 2 in the even-numbered years. The mother shall have the children on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
Column 1
Column 2
Fourth of July Spring BreakHalloweenChristmas Day
ThanksgivingWinter BreakChristmas Eve
The Fourth of July shall be from 9:00 a.m. on July 4 to 9:00 a.m. on July 5. Halloween shall be October 31 after school or noon if there is no school until November 1 to school or 9:00 a.m. if there is no school. Thanksgiving shall be from the Wednesday before after school or noon if there is no school until the Friday after Thanksgiving at 9:00 a.m. Christmas Eve shall be from noon on December 24 until noon on December 25. Christmas Day shall be from noon on December 25 until noon on December 26. Spring and Winter break shall commence when the child ends school immediately prior to the break until the child enters school following the break.
4. MOTHER'S/FATHER'S DAY: On Mother's Day and Father's Day, the children shall be with the appropriate parent from 9 a.m. until 6 p.m. This shall take precedence over weekend access.
5. SUMMER VACATION: Each parent shall have access for two weeks of summer access to be communicated to the other parent in writing on or before April 1 of each year. However, summer vacation shall not abut the regular access. Therefore the child shall not have more than 14 days without seeing the other parent.
6. TELEPHONE/MAIL: Neither parent shall interfere with telephone or mail contact between the children and the other parent.
[1] O’Brien v. O’Brien, 66 N.Y.2nd 576 (1985)
[2] Domestic Relations Law Section 240(1-b)(b)(2)
[3] Annette M.R. v. John W.R., __ A.D.3rd __, 845 N.Y.S.2nd 616 (4th Dept., 2007))
[4] Holterman v. Holterman, 3 N.Y.3rd 1 (2004)
[5] Tompkins County Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2nd 328 (2003)
[6] Domestic Relations Law Section 240
[7] Collectively known as the Child Support Enforcement Amendments of 1984 (CSEA), Pub. L. 98-378, 98 Stat. 1305, amending 42 U.S.C. §§ 657-662.
[8] The full report can be found at http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf
[9] Somerville v. Somerville, 307 A.D.2nd 481 (3rd Dept., 2003); Valentine v. Valentine, 3 A.D.3rd 646 (3rd Dept., 2003).
[10] See the recent case of Vincent v. Anna Tomaino, 848 N.Y.S.2nd 437 (3rd Dept., 2007), where the Third Department overturned a schedule of no overnight visitation as inappropriate.
[11] Thompson v. Yu-Thompson, 41 A.D.3rd 487 (2nd Dept., 2007).
[12] Hugh H. v. Fhara L., 44 A.D.3rd 192 (1st Dept., 2007)
[13] “Should the Mental Health Evaluator Decide child Custody?”, Family Court Review, May 2005 and "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance," Family Court Review of the Association of Family and Conciliation Courts by Professor Timothy Tippins and Jeffrey Wittmann, Ph.D.
[14] http://www.supreme.state.az.us/dr/Pdf/Parenting_Time_Plan_Final.pdf
[15] http://www.in.gov/judiciary/rules/parenting/
[16] http://www.oscn.net/forms/aoc_form/adobe/Form.76.pdf
[17] http://www.divorcenet.com/states/utah/ut_art01
[18] http://www.sdjudicial.com/index.asp?title=sharing_parental_guidelines&category=public_info&nav=91
[19] http://courts.state.de.us/How%20To/Custody%20and%20Visitation/?visitation.htm
[20] http://15thchancerydistrictms.org/images/visitation%20guidelines.pdf
[21] http://domestic.cuyahogacounty.us/Rules/Rule18.htm
[22] http://www.jud6.org/ContactInformation/familyLaw/non%20primary%20res%20parent%20visitation%20sched%202001.pdf
[23] The Free Press, 1972
[24] Economic Policy Foundation, "American Workplace: Labor Day 1997 Report; Bureau of Labor Statistics
[25] “Trends in Labor Force Participation of Married Mothers of Infants.” by the Bureau of Labor Statistics, February, 2007.
[26] Somerville v. Somerville, 5 A.D.3rd 878 (3rd Dept., 2004)
Sunday, June 22, 2008
Tuesday, June 17, 2008
Heather Mills: The Gold Standard of Need
“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
“The trouble with my wife is that she is a whore in the kitchen and a cook in bed”
Geoffrey Gorer (1905-1985), Anthropologist
“A lot of guys think the larger a woman's breasts are, the less intelligent she is. I think the larger a woman's breasts are, the less intelligent the men become.” Anita Wise
And I think to myself, what a wonderful world.[i] Really. After all, where can you claim that one cannot possibly make ends meet for child support and maintenance on a tad over $7,485,000 per year? Why jolly old London of course. Next time you are filling out that silly Statement of Net Worth form so favored by the wonks at OCA, think of dear Heather Mills, the Gold Standard of needs and wants. After all, I often say that no one costs more to feed than the clients of one of our favorite downtown Albany law firms, but even they are pikers compared to the modest and demure Ms. Mills. Just how do you get there? Let’s start with the niggardly sum of $69,000 per year for helicopters for vacations. Or how about the seven full time housekeepers ($128,000) or my personal favorite: just shy of a quarter mil per annum for clothes. Like I say, it’s a wonderful world. Unfortunately, Mr. Justice Bennett wasn’t buying it and awarded her only a fraction of that to keep body and soul together, saying, “If, as she has done, a litigant flagrantly overeggs the pudding and thus deprives the court of any sensible assistance, then he or she is likely to find that the court takes a robust view and drastically prunes the proposed budget." Man would I like to see the Third Department write something like that some day. Overegg the pudding?
Into this surrealism wandered Allan Chapin the other day, and the First Department gave us a doozie just in time for Easter.[ii] Do you know him? He’s a former partner in Sullivan and Cromwell, one of the largest law firms in the world, founded in the 19th Century. Of course, he gave up that lucrative gig when his marriage Numero Duo went sour. Who wouldn’t? It seems Mr. Chapin and Ms. Janet Johnson married in the Episcopal Church of Heavenly Rest[iii] in NYC and nine months and one hour later had a bouncing baby boy. Within three years Janet quit her job as a lawyer for the Walt Disney Company (of course) and Allan kept earning about $2.1 million yearly at S&C and after that the investment bankers Lazard Freres & Company. He also had a tidy income from being on a bunch of corporate boards and was an adviser to my beloved Toronto Blue Jays. So, what does such a Captain of Industry do in his spare time? What they all do: renovate a country home in Claverack, New York, a dippy little town in Columbia County best known as the home of Ollie North.[iv] Mr. Chapin owned the farm before he married Ms. Johnson, but sank $1.9 million into the property to increase its value a little less than $1.6 million. What a financial genius. In any event the trial court gave her half the increase which was reduced by the First Department to 25% because of passive appreciation I guess. They do not really explain that rationale, but she did after all order pizza and coffee for the renovation workers. Here’s where things got really squirrelly. It seems that Allan owed his first wife some money pursuant to his divorce judgment, namely $584,000 in maintenance and $690,000 in equitable distribution for a nice total of $1,274,000. Being the good spouse, he paid it all during the marriage to the former Mrs. Chapin. So when it came time for Equitable Distribution, the current Mrs. Chapin aka Janet Johnson made the rather silly argument: “Wait a minute. If he hadn’t paid the $1.2 million to the first Mrs. Chapin, then we would have had an extra $1.2 million in our marital estate. Yeah, I knew about this obligation when I married him, but so what? Give it back to me, or at least half. Please. Pretty please.” Well, Dammit Janet, there’s a fire in their heart and you’ve fanned it. So they reduced Allan’s separate property credits by half or over $600,000 and slid that over to Janet’s half of the equation. Wow!
Remember last week when I asked the First Department to lay off my beloved Third Department when writing a decision that not so respectfully disagreed with their Northerly brethren? Well, maybe they took the article to heart but the venom spilled over their black robes into this decision in the form of the majority opinion and the dissent by Mr. Justice James McGuire, a Pataki gift from Queens to the First Department in 2006. He was joined by Mr. Justice David Friedman, no relation to my learned brother of the same name. Putting aside the snide remarks the majority foisted on the dissenters, the heavily footnoted dissent sent shivers through my spine in its excoriation of the majority, however wrong they may be. Here is a sample: “I respectfully disagree with virtually everything the majority has to say… The majority's assertion that Ms. Costello ‘gave testimony which supported [the wife's] position’ is breathtakingly wrong… Not surprisingly, the majority offers nothing by way of an attempt to respond to any of the points I make regarding its erroneous reliance on the CFO's testimony… The majority does not and cannot dispute this critical fact. Indeed, the majority ignores it.” Boy, I would have loved to be in the room when this baby was argued by the Court. Given the two judge dissent, one can only wonder what magic the Court of Appeals will work with these facts. Did I mention that Allan had to pay $800,000 of Janet’s legal fees? Just slipped my mind I guess. Not bad for a 14 day trial. I really must be doing something wrong.
In any event, aside from the juicy stuff about child support and maintenance, the really novel idea here is to get a credit for half of a spouse’s premarital debt paid during the marriage. How ‘bout them student loans? Pay them during the marriage, and get them back at the end. Dammit, Janet, it really is a wonderful world.
I know the Office of Confused Adults has little money for judicial pay raises and the like, but who came up with the idea to put little numbered labels on everything in the courthouse? Have you noticed that every chair, flag stand, telephone and bauble has a new label with the words “Office of Court Administration, ___ Judicial District, No.___” pasted on the personalty. I wonder if the robes and shoes of the judges have numbered labels. Isn’t there something better these guys can do?
By the way, is the Third Department becoming a wholly owned subsidiary of the Third Judicial District? We now have four new judges and three are from the Third District giving us 2/3 of the App Div and further depleting our trial bench with the loss of Justice Stein. Can’t the other two districts chip in a judge or two to balance things out? Happy Conch Republic Independence Day, the only place where this all makes sense.
[i] Of course, with a tip of the hat to Bob Thiele aka George Douglas and George David Weiss. Did you know Clear Channel made the song persona non grata just after 9/11?
[ii] Johnson v. Chapman, __ A.D.3rd __ (1st Dept., March 13, 2008)
[iii] For those of you who accuse me of making this stuff up, see The New York Times, January 13, 1991. I’ll lend you my copy.
[iv] The most famous graduate of Ockawamick High School.
“The trouble with my wife is that she is a whore in the kitchen and a cook in bed”
Geoffrey Gorer (1905-1985), Anthropologist
“A lot of guys think the larger a woman's breasts are, the less intelligent she is. I think the larger a woman's breasts are, the less intelligent the men become.” Anita Wise
And I think to myself, what a wonderful world.[i] Really. After all, where can you claim that one cannot possibly make ends meet for child support and maintenance on a tad over $7,485,000 per year? Why jolly old London of course. Next time you are filling out that silly Statement of Net Worth form so favored by the wonks at OCA, think of dear Heather Mills, the Gold Standard of needs and wants. After all, I often say that no one costs more to feed than the clients of one of our favorite downtown Albany law firms, but even they are pikers compared to the modest and demure Ms. Mills. Just how do you get there? Let’s start with the niggardly sum of $69,000 per year for helicopters for vacations. Or how about the seven full time housekeepers ($128,000) or my personal favorite: just shy of a quarter mil per annum for clothes. Like I say, it’s a wonderful world. Unfortunately, Mr. Justice Bennett wasn’t buying it and awarded her only a fraction of that to keep body and soul together, saying, “If, as she has done, a litigant flagrantly overeggs the pudding and thus deprives the court of any sensible assistance, then he or she is likely to find that the court takes a robust view and drastically prunes the proposed budget." Man would I like to see the Third Department write something like that some day. Overegg the pudding?
Into this surrealism wandered Allan Chapin the other day, and the First Department gave us a doozie just in time for Easter.[ii] Do you know him? He’s a former partner in Sullivan and Cromwell, one of the largest law firms in the world, founded in the 19th Century. Of course, he gave up that lucrative gig when his marriage Numero Duo went sour. Who wouldn’t? It seems Mr. Chapin and Ms. Janet Johnson married in the Episcopal Church of Heavenly Rest[iii] in NYC and nine months and one hour later had a bouncing baby boy. Within three years Janet quit her job as a lawyer for the Walt Disney Company (of course) and Allan kept earning about $2.1 million yearly at S&C and after that the investment bankers Lazard Freres & Company. He also had a tidy income from being on a bunch of corporate boards and was an adviser to my beloved Toronto Blue Jays. So, what does such a Captain of Industry do in his spare time? What they all do: renovate a country home in Claverack, New York, a dippy little town in Columbia County best known as the home of Ollie North.[iv] Mr. Chapin owned the farm before he married Ms. Johnson, but sank $1.9 million into the property to increase its value a little less than $1.6 million. What a financial genius. In any event the trial court gave her half the increase which was reduced by the First Department to 25% because of passive appreciation I guess. They do not really explain that rationale, but she did after all order pizza and coffee for the renovation workers. Here’s where things got really squirrelly. It seems that Allan owed his first wife some money pursuant to his divorce judgment, namely $584,000 in maintenance and $690,000 in equitable distribution for a nice total of $1,274,000. Being the good spouse, he paid it all during the marriage to the former Mrs. Chapin. So when it came time for Equitable Distribution, the current Mrs. Chapin aka Janet Johnson made the rather silly argument: “Wait a minute. If he hadn’t paid the $1.2 million to the first Mrs. Chapin, then we would have had an extra $1.2 million in our marital estate. Yeah, I knew about this obligation when I married him, but so what? Give it back to me, or at least half. Please. Pretty please.” Well, Dammit Janet, there’s a fire in their heart and you’ve fanned it. So they reduced Allan’s separate property credits by half or over $600,000 and slid that over to Janet’s half of the equation. Wow!
Remember last week when I asked the First Department to lay off my beloved Third Department when writing a decision that not so respectfully disagreed with their Northerly brethren? Well, maybe they took the article to heart but the venom spilled over their black robes into this decision in the form of the majority opinion and the dissent by Mr. Justice James McGuire, a Pataki gift from Queens to the First Department in 2006. He was joined by Mr. Justice David Friedman, no relation to my learned brother of the same name. Putting aside the snide remarks the majority foisted on the dissenters, the heavily footnoted dissent sent shivers through my spine in its excoriation of the majority, however wrong they may be. Here is a sample: “I respectfully disagree with virtually everything the majority has to say… The majority's assertion that Ms. Costello ‘gave testimony which supported [the wife's] position’ is breathtakingly wrong… Not surprisingly, the majority offers nothing by way of an attempt to respond to any of the points I make regarding its erroneous reliance on the CFO's testimony… The majority does not and cannot dispute this critical fact. Indeed, the majority ignores it.” Boy, I would have loved to be in the room when this baby was argued by the Court. Given the two judge dissent, one can only wonder what magic the Court of Appeals will work with these facts. Did I mention that Allan had to pay $800,000 of Janet’s legal fees? Just slipped my mind I guess. Not bad for a 14 day trial. I really must be doing something wrong.
In any event, aside from the juicy stuff about child support and maintenance, the really novel idea here is to get a credit for half of a spouse’s premarital debt paid during the marriage. How ‘bout them student loans? Pay them during the marriage, and get them back at the end. Dammit, Janet, it really is a wonderful world.
I know the Office of Confused Adults has little money for judicial pay raises and the like, but who came up with the idea to put little numbered labels on everything in the courthouse? Have you noticed that every chair, flag stand, telephone and bauble has a new label with the words “Office of Court Administration, ___ Judicial District, No.___” pasted on the personalty. I wonder if the robes and shoes of the judges have numbered labels. Isn’t there something better these guys can do?
By the way, is the Third Department becoming a wholly owned subsidiary of the Third Judicial District? We now have four new judges and three are from the Third District giving us 2/3 of the App Div and further depleting our trial bench with the loss of Justice Stein. Can’t the other two districts chip in a judge or two to balance things out? Happy Conch Republic Independence Day, the only place where this all makes sense.
[i] Of course, with a tip of the hat to Bob Thiele aka George Douglas and George David Weiss. Did you know Clear Channel made the song persona non grata just after 9/11?
[ii] Johnson v. Chapman, __ A.D.3rd __ (1st Dept., March 13, 2008)
[iii] For those of you who accuse me of making this stuff up, see The New York Times, January 13, 1991. I’ll lend you my copy.
[iv] The most famous graduate of Ockawamick High School.
The Governors' Wives and other thoughts
"If you ain't got no money, ain't nobody calls you honey.” The great Bo Diddley (1928-2008)
“Divorced men are more likely to meet their car payments than their child support obligations.” Susan Faludi
“Conrad Hilton was very generous to me in the divorce settlement. He gave me 5000 Gideon Bibles.” Sári E. Gábor aka Zsa Zsa Gabor
Sometimes you’re mad as hell, and you’re just not going to take it anymore.[1] Maybe it’s the tenth application to sanction you in the year, or the judge who denies your request for an adjournment, or the adversary who sends your answer back because it is served a few days late. Then an application comes in for some kind of relief and you spew forth a venomous ad hominem attack that best belongs in the recycle bin on your desktop computer. It’s not easy being a matrimonial lawyer, and sometimes you get justifiably a little frustrated with the whole thing. But resist you must, lest you demean the practice, your client or yourself. No such restraint affected Cal Dunlap of Reno, Nevada last month when the Governor of the Sagebrush State made an application for a no fault divorce and a sealed record so he and First Lady Teresa Dawn Snelling Gibbons could get on with more important issues like support, equitable distribution and who gets to occupy the Governor’s Mansion. You know, the usual stuff. When Governor Gibbons sued on the grounds of incompatibility, Barrister Dunlap asked for a Bill of Particulars! In response to the divorce application, Mr. Dunlop made public a 33 page motion with the following denoted “facts”:[2] “After more than twenty years of marriage, the Plaintiff has deserted, abandoned, and has shunned his wife without justification for that behavior…despite his disingenuous, shallow, and transparent protestations that his relationship with another man’s wife is a mere friendship, his infatuation and involvement with the other woman is the real, concealed and undisclosed reason for his voluntary departure from the marriage and from the Mansion where he occasionally resided…his castaway wife, by the actions of the Plaintiff, was not even given an opportunity to be heard, on the secrecy issue, while his handlers, spinmeisters and staff wittingly, or unwittingly, as his tools, mislead the Public in vain attempts to preserve the marginal favorable Public Opinion regarding him that might still exist.” You get the gist. After saying “lust is the real villain here”, he called the Plaintiff “one of the most if not the most scandal ridden Governor in the history of this State.” Then Cal called his client the “poster child” of why trials should be made public. Does anyone think this is effective advocacy, or is the sideshow more important than the merits, hoping against hope that the public excoriation of a litigant will engender a more favorable offer to resolve this mess? If the latter, then the attorney has stepped over the line, and the pandering to the client or the press in anything other than a cogent argument for specific relief should be met with some judicial or public rebuke. And just who is Mr. Dunlap? A former prosecutor who was named Trial Lawyer of the Year in 2007 by the Nevada Justice Association. Whoopee. He also once held a fundraiser featuring women in negligees and swimsuits. When asked if there was some legitimate criticism of his motion papers, he said, “I suspect some who are critical of me are politically aligned with Governor Gibbons.” Not me Cal, I never voted for him in my life. It did remind me of a matter I had involving a public figure a few decades ago, where the plaintiff’s lawyer requested and received a jury trial in spite of my withdrawal of any opposition to the fault ground on the record. That was also a pleasant experience for all involved, especially the two young children.
Oh well, on to more important things, like my friends at the Unified Court System. To make it much easier on us, they have developed an online database of quick and easy forms we can download for Family Court and Divorce matters.[3] Very nice of those chaps indeed. So the other day when I resolved a violation petition I checked in and tried to download Form 4-12b, aka Order of Disposition (Violation of Support Order). Try it yourselves if you like. The only thing that you get is a Petition form dating to 2007. Can’t say they don’t have a sense of humor.
Let’s see what our beloved Third Department has taught us theses days. They definitively determined whether someone can challenge the propriety of an unappealed support order years after it has been in place within the context of a violation proceeding. In Matter of Groesbeck v. Groesbeck,[4] they wrote, “Having failed to appeal from all prior orders setting forth his child support obligation, respondent’s attack on the propriety of those orders in the context of this proceeding is nor properly before us.” OK, I got it, thanks. That same day, the Third Department decided Matter of Usenza v. Swift,[5] where a father failed to appeal from his prior support order but attacked its propriety in a violation proceeding a year or so later. Surprise, surprise, a completely different determination holding, “the father’s failure to raise this defect by way of a timely objection to the July 2005 order is not fatal.” Even though a years old consent order was never appealed since it was by consent and there were no findings required, the old order was set aside since the “findings” did NOT say the parties were advised of “all of the relevant provisions of the CSSA” although the guidelines amount was stated on the record and there was no drivel that “the application of the statute would presumptively result in the correct amount of child support to be awarded.” I daresay most of the consent orders in New York do not have these provisions in findings of fact. Therefore the original order was declared unenforceable, allowing the father to skip on all his support obligations for years as there can be no enforcement or violation proceedings. They remanded it to determine his modification proceeding, but if I was him I’d withdraw that one before you can say, “res judicata.” Then he owes nothing until Mom gets herself to the courthouse, but by then he has skipped out on oodles of past due support. So if you are really clever, try to skirt the CSSA guidelines for opting out and have your client not pay for as long as possible because the order is unenforceable and of course hope that you get the right five judges on the Appellate Division when the thing comes up for review. Of the eleven different judges now on the court, the five who decided Groesbeck are different from the five who decided Usenza. Thanks for clarifying that for us.
Finally kudos to another former First Lady, Dina Matos McGreevey, who is having her own widely publicized divorce from the former Governor of the Garden State. She has just made an application for temporary support saying she needs a mere $51,000 per month to maintain the lifestyle enjoyed during the marriage. How does she get there? Well, a mere $8,000 per month for a guard and a secretary for starters, and $17k for household help of course. These figures came from her CPA expert Kalman Barson, who also said the governor’s celebrity goodwill status was worth $1.5 million. Countering this of course was a “celebrity goodwill” expert Sharyn Maggio who said it was worth bupkes. I now know what I want to be when I grow up: Celebrity Goodwill Expert.
Happy Bastille Day.
[1] Network, Howard Beale’s (Peter Finch) delicious rant of 1976.
[2] You can find the whole distasteful thing here:
http://graphics8.nytimes.com/images/2008/05/30/us/final_gibbons_motion.pdf
[3] http://www.courts.state.ny.us/forms/familycourt/childsupport.shtml
[4] __ A.D.3rd __ (3rd Dept., June 5, 2008)
[5] __ A.D.3rd __ (3rd Dept., June 5, 2008)
“Divorced men are more likely to meet their car payments than their child support obligations.” Susan Faludi
“Conrad Hilton was very generous to me in the divorce settlement. He gave me 5000 Gideon Bibles.” Sári E. Gábor aka Zsa Zsa Gabor
Sometimes you’re mad as hell, and you’re just not going to take it anymore.[1] Maybe it’s the tenth application to sanction you in the year, or the judge who denies your request for an adjournment, or the adversary who sends your answer back because it is served a few days late. Then an application comes in for some kind of relief and you spew forth a venomous ad hominem attack that best belongs in the recycle bin on your desktop computer. It’s not easy being a matrimonial lawyer, and sometimes you get justifiably a little frustrated with the whole thing. But resist you must, lest you demean the practice, your client or yourself. No such restraint affected Cal Dunlap of Reno, Nevada last month when the Governor of the Sagebrush State made an application for a no fault divorce and a sealed record so he and First Lady Teresa Dawn Snelling Gibbons could get on with more important issues like support, equitable distribution and who gets to occupy the Governor’s Mansion. You know, the usual stuff. When Governor Gibbons sued on the grounds of incompatibility, Barrister Dunlap asked for a Bill of Particulars! In response to the divorce application, Mr. Dunlop made public a 33 page motion with the following denoted “facts”:[2] “After more than twenty years of marriage, the Plaintiff has deserted, abandoned, and has shunned his wife without justification for that behavior…despite his disingenuous, shallow, and transparent protestations that his relationship with another man’s wife is a mere friendship, his infatuation and involvement with the other woman is the real, concealed and undisclosed reason for his voluntary departure from the marriage and from the Mansion where he occasionally resided…his castaway wife, by the actions of the Plaintiff, was not even given an opportunity to be heard, on the secrecy issue, while his handlers, spinmeisters and staff wittingly, or unwittingly, as his tools, mislead the Public in vain attempts to preserve the marginal favorable Public Opinion regarding him that might still exist.” You get the gist. After saying “lust is the real villain here”, he called the Plaintiff “one of the most if not the most scandal ridden Governor in the history of this State.” Then Cal called his client the “poster child” of why trials should be made public. Does anyone think this is effective advocacy, or is the sideshow more important than the merits, hoping against hope that the public excoriation of a litigant will engender a more favorable offer to resolve this mess? If the latter, then the attorney has stepped over the line, and the pandering to the client or the press in anything other than a cogent argument for specific relief should be met with some judicial or public rebuke. And just who is Mr. Dunlap? A former prosecutor who was named Trial Lawyer of the Year in 2007 by the Nevada Justice Association. Whoopee. He also once held a fundraiser featuring women in negligees and swimsuits. When asked if there was some legitimate criticism of his motion papers, he said, “I suspect some who are critical of me are politically aligned with Governor Gibbons.” Not me Cal, I never voted for him in my life. It did remind me of a matter I had involving a public figure a few decades ago, where the plaintiff’s lawyer requested and received a jury trial in spite of my withdrawal of any opposition to the fault ground on the record. That was also a pleasant experience for all involved, especially the two young children.
Oh well, on to more important things, like my friends at the Unified Court System. To make it much easier on us, they have developed an online database of quick and easy forms we can download for Family Court and Divorce matters.[3] Very nice of those chaps indeed. So the other day when I resolved a violation petition I checked in and tried to download Form 4-12b, aka Order of Disposition (Violation of Support Order). Try it yourselves if you like. The only thing that you get is a Petition form dating to 2007. Can’t say they don’t have a sense of humor.
Let’s see what our beloved Third Department has taught us theses days. They definitively determined whether someone can challenge the propriety of an unappealed support order years after it has been in place within the context of a violation proceeding. In Matter of Groesbeck v. Groesbeck,[4] they wrote, “Having failed to appeal from all prior orders setting forth his child support obligation, respondent’s attack on the propriety of those orders in the context of this proceeding is nor properly before us.” OK, I got it, thanks. That same day, the Third Department decided Matter of Usenza v. Swift,[5] where a father failed to appeal from his prior support order but attacked its propriety in a violation proceeding a year or so later. Surprise, surprise, a completely different determination holding, “the father’s failure to raise this defect by way of a timely objection to the July 2005 order is not fatal.” Even though a years old consent order was never appealed since it was by consent and there were no findings required, the old order was set aside since the “findings” did NOT say the parties were advised of “all of the relevant provisions of the CSSA” although the guidelines amount was stated on the record and there was no drivel that “the application of the statute would presumptively result in the correct amount of child support to be awarded.” I daresay most of the consent orders in New York do not have these provisions in findings of fact. Therefore the original order was declared unenforceable, allowing the father to skip on all his support obligations for years as there can be no enforcement or violation proceedings. They remanded it to determine his modification proceeding, but if I was him I’d withdraw that one before you can say, “res judicata.” Then he owes nothing until Mom gets herself to the courthouse, but by then he has skipped out on oodles of past due support. So if you are really clever, try to skirt the CSSA guidelines for opting out and have your client not pay for as long as possible because the order is unenforceable and of course hope that you get the right five judges on the Appellate Division when the thing comes up for review. Of the eleven different judges now on the court, the five who decided Groesbeck are different from the five who decided Usenza. Thanks for clarifying that for us.
Finally kudos to another former First Lady, Dina Matos McGreevey, who is having her own widely publicized divorce from the former Governor of the Garden State. She has just made an application for temporary support saying she needs a mere $51,000 per month to maintain the lifestyle enjoyed during the marriage. How does she get there? Well, a mere $8,000 per month for a guard and a secretary for starters, and $17k for household help of course. These figures came from her CPA expert Kalman Barson, who also said the governor’s celebrity goodwill status was worth $1.5 million. Countering this of course was a “celebrity goodwill” expert Sharyn Maggio who said it was worth bupkes. I now know what I want to be when I grow up: Celebrity Goodwill Expert.
Happy Bastille Day.
[1] Network, Howard Beale’s (Peter Finch) delicious rant of 1976.
[2] You can find the whole distasteful thing here:
http://graphics8.nytimes.com/images/2008/05/30/us/final_gibbons_motion.pdf
[3] http://www.courts.state.ny.us/forms/familycourt/childsupport.shtml
[4] __ A.D.3rd __ (3rd Dept., June 5, 2008)
[5] __ A.D.3rd __ (3rd Dept., June 5, 2008)
The Third Department and Foreign Relations
"I've married a few people I shouldn't have, but haven't we all?"
Nancy Astor (1879-1964) English politician
“Wedding rings: the world's smallest handcuffs.” Anonymous, of course
“Life in Lubbock, Texas, taught me two things: One is that God loves you and you're going to burn in hell. The other is that sex is the most awful, filthy thing on earth and you should save it for someone you love.” Butch Hancock, member of The Flatliners (1945 - )
Ah, Spring. When a young man’s fancy lightly turns to thoughts of love. For those whose fancies turn elsewhere, there is a new study showing that the cost of divorce and unwed childbearing to the American taxpayer is $112 billion annually. Don’t ask how they got there,[1] but look to some politicians to use the report to pass a slew of family strengthening programs that won’t work. And did you see The Pope weigh in on divorce in his sojourn to the US of A last month? Telling us that the “ethical judgment of the Church on divorce is clear,” he called it a “serious offence which violates human dignity, inflicts deep injustice on human relations and offends God himself.” Well, pardon me Your Eminence but the divorce rate for Catholics is 28%,[2] about the same statistically as atheists and agnostics.
In other news, the Republic of Korea had a stunning break with the Third Department[3] by declaring that sexual relations after the commencement of a divorce lawsuit do not constitute adultery. It seems that Korea and New York are two of the only places where adultery is a crime. A woman was convicted in Korea and was sentenced to ten months in prison. Her conviction was overturned by the Busan District Court holding, ``the questionable intercourse was made after filing for divorce. It apparently shows that the couple already reached a consensus to be separated. Therefore, this lawsuit is void.'' Of course, this does not bode well for Korean-Third Department relations.
Speaking of my favorite Appellate Division, they continue to lead the charge in requiring contributions for college expenses. But that’s not all. How many of us have written some glib language in a separation agreement that the parents will contribute towards the college education “as their then finances permit” or similar terms. Then, if the parties cannot agree, they can have a court resolve the issue. Did you ever think that this language could be used retroactively to form the basis of a violation petition? I didn’t. Most of us just figured if the parents couldn’t agree then they could go to court to adjust the existing order to provide prospective educational contributions. Not anymore. In Heinlein v. Kuzemka,[4] poor Mr. Kuzemka must have felt like the proverbial stranger in a strange land when he was hit with a violation petition while his son was completing his third year at Rensselaer Polytechnic Institute. In spite of the language requiring the father to approve of the educational institution, he was hit for arrears of $35,000 and the Third Department promptly affirmed. Ouch. And just why did the court hit him for this tidy sum plus child support on less than $50,000 in yearly income? Two reasons: Dad owns a luxury motorcycle and lives in his “paramour’s” home paying only $100 per week in rent. Are you kidding me? He pays for RPI because of his expensive motorcycle? Could he have avoided all this by driving some low budget rice burner? His paramour’s home? Just how does a divorced guy have a paramour in the first place? Besides, is the message of the Third Department to impoverish yourself with a nice fancy home but hold off on that nice new Harley if you want to skate on college obligations? Or maybe, if you are going to live in your girlfriend’s home, be sure you pay her a lot of rent. When you figure it out, call me.
In other bad news for the drafters of separation agreements, be careful how you word the uninsured health related expenses portion of the agreement. If you just copy the statute and provide for “reasonable health care expenses of the child not covered by insurance”[5] your client might be on the hook for such expenses caused by the custodial parent utilizing a doctor who does not participate in the health insurance plan. I kid you not. In Wetherby v. Wetherby,[6] the noncustodial parent had to pay his 100% of the contracted obligation because the agreement “does not oblige defendant to exclusively pursue providers associated with plaintiff's health insurance plan.” I daresay few agreements do, and I have never seen a support order with this language since the statute does not require it. But I sure am pushing for this now so my clients don’t end up like Mr. Wetherby.
Probably smarting from the affront by the Republic of Korea, the Third Department broke with the Italian Republic in punishing a father in a custody proceeding for engaging in a five year affair during his marriage. You see, Italy’s highest court just held that women can lie about extra-marital affairs “to protect their honor.” Of course this is the court that said a woman who wears tight jeans could not be raped since they could only be removed with her consent. Makes sense to me. Getting back to the My Favorite Appellate Division, in Benjamin v. Benjamin,[7] the court upheld a shift from joint custody to sole custody with mom because of (among other legitimate reasons) the father taking the children as exemptions on his income tax return without telling the mother. So what? If he had no right to do so, the IRS would straighten things out, but I guess all is fair in love, war and custody litigation.
Speaking of exemptions, the Fourth Department just held that income tax exemptions are not an element of support and thus not enforceable in Family Court.[8] If the right is in an agreement incorporated in a judgment, then you need a plenary action to enforce which of course costs more than the exemption is worth. I am also assuming that means Family Court does not have the power to award income tax exemptions in support orders, at least in the western part if the Excelsior State.
Well, that’s all the bad news for now. Happy Law Day everyone.
[1] This was a study at Georgia State University commissioned by, among others, The Institute for American Values, so the conclusions were somewhat of a self fulfilling prophecy. “The Taxpayer Costs of Divorce and Unwed Childbearing”
[2] The Barna Group, a Christian Research organization in California.
[3] Golub v. Ganz, 22 A.D.3rd 919 (Third Dept., 2005)
[4] __ A.D.3rd __ (Third Dept., March 13, 2008)
[5] Domestic relations Law Section 240(1-b)(c)(5)
[6] __ A.D.3rd __ (Third Dept., April 3, 2008)
[7] 48 A.D.3rd 912 (Third Dept., 2008)
[8] John M.S. v. Bonnie M.R., __ A.D.3rd __ (Fourth Dept., March 14, 2008)
Nancy Astor (1879-1964) English politician
“Wedding rings: the world's smallest handcuffs.” Anonymous, of course
“Life in Lubbock, Texas, taught me two things: One is that God loves you and you're going to burn in hell. The other is that sex is the most awful, filthy thing on earth and you should save it for someone you love.” Butch Hancock, member of The Flatliners (1945 - )
Ah, Spring. When a young man’s fancy lightly turns to thoughts of love. For those whose fancies turn elsewhere, there is a new study showing that the cost of divorce and unwed childbearing to the American taxpayer is $112 billion annually. Don’t ask how they got there,[1] but look to some politicians to use the report to pass a slew of family strengthening programs that won’t work. And did you see The Pope weigh in on divorce in his sojourn to the US of A last month? Telling us that the “ethical judgment of the Church on divorce is clear,” he called it a “serious offence which violates human dignity, inflicts deep injustice on human relations and offends God himself.” Well, pardon me Your Eminence but the divorce rate for Catholics is 28%,[2] about the same statistically as atheists and agnostics.
In other news, the Republic of Korea had a stunning break with the Third Department[3] by declaring that sexual relations after the commencement of a divorce lawsuit do not constitute adultery. It seems that Korea and New York are two of the only places where adultery is a crime. A woman was convicted in Korea and was sentenced to ten months in prison. Her conviction was overturned by the Busan District Court holding, ``the questionable intercourse was made after filing for divorce. It apparently shows that the couple already reached a consensus to be separated. Therefore, this lawsuit is void.'' Of course, this does not bode well for Korean-Third Department relations.
Speaking of my favorite Appellate Division, they continue to lead the charge in requiring contributions for college expenses. But that’s not all. How many of us have written some glib language in a separation agreement that the parents will contribute towards the college education “as their then finances permit” or similar terms. Then, if the parties cannot agree, they can have a court resolve the issue. Did you ever think that this language could be used retroactively to form the basis of a violation petition? I didn’t. Most of us just figured if the parents couldn’t agree then they could go to court to adjust the existing order to provide prospective educational contributions. Not anymore. In Heinlein v. Kuzemka,[4] poor Mr. Kuzemka must have felt like the proverbial stranger in a strange land when he was hit with a violation petition while his son was completing his third year at Rensselaer Polytechnic Institute. In spite of the language requiring the father to approve of the educational institution, he was hit for arrears of $35,000 and the Third Department promptly affirmed. Ouch. And just why did the court hit him for this tidy sum plus child support on less than $50,000 in yearly income? Two reasons: Dad owns a luxury motorcycle and lives in his “paramour’s” home paying only $100 per week in rent. Are you kidding me? He pays for RPI because of his expensive motorcycle? Could he have avoided all this by driving some low budget rice burner? His paramour’s home? Just how does a divorced guy have a paramour in the first place? Besides, is the message of the Third Department to impoverish yourself with a nice fancy home but hold off on that nice new Harley if you want to skate on college obligations? Or maybe, if you are going to live in your girlfriend’s home, be sure you pay her a lot of rent. When you figure it out, call me.
In other bad news for the drafters of separation agreements, be careful how you word the uninsured health related expenses portion of the agreement. If you just copy the statute and provide for “reasonable health care expenses of the child not covered by insurance”[5] your client might be on the hook for such expenses caused by the custodial parent utilizing a doctor who does not participate in the health insurance plan. I kid you not. In Wetherby v. Wetherby,[6] the noncustodial parent had to pay his 100% of the contracted obligation because the agreement “does not oblige defendant to exclusively pursue providers associated with plaintiff's health insurance plan.” I daresay few agreements do, and I have never seen a support order with this language since the statute does not require it. But I sure am pushing for this now so my clients don’t end up like Mr. Wetherby.
Probably smarting from the affront by the Republic of Korea, the Third Department broke with the Italian Republic in punishing a father in a custody proceeding for engaging in a five year affair during his marriage. You see, Italy’s highest court just held that women can lie about extra-marital affairs “to protect their honor.” Of course this is the court that said a woman who wears tight jeans could not be raped since they could only be removed with her consent. Makes sense to me. Getting back to the My Favorite Appellate Division, in Benjamin v. Benjamin,[7] the court upheld a shift from joint custody to sole custody with mom because of (among other legitimate reasons) the father taking the children as exemptions on his income tax return without telling the mother. So what? If he had no right to do so, the IRS would straighten things out, but I guess all is fair in love, war and custody litigation.
Speaking of exemptions, the Fourth Department just held that income tax exemptions are not an element of support and thus not enforceable in Family Court.[8] If the right is in an agreement incorporated in a judgment, then you need a plenary action to enforce which of course costs more than the exemption is worth. I am also assuming that means Family Court does not have the power to award income tax exemptions in support orders, at least in the western part if the Excelsior State.
Well, that’s all the bad news for now. Happy Law Day everyone.
[1] This was a study at Georgia State University commissioned by, among others, The Institute for American Values, so the conclusions were somewhat of a self fulfilling prophecy. “The Taxpayer Costs of Divorce and Unwed Childbearing”
[2] The Barna Group, a Christian Research organization in California.
[3] Golub v. Ganz, 22 A.D.3rd 919 (Third Dept., 2005)
[4] __ A.D.3rd __ (Third Dept., March 13, 2008)
[5] Domestic relations Law Section 240(1-b)(c)(5)
[6] __ A.D.3rd __ (Third Dept., April 3, 2008)
[7] 48 A.D.3rd 912 (Third Dept., 2008)
[8] John M.S. v. Bonnie M.R., __ A.D.3rd __ (Fourth Dept., March 14, 2008)
Monday, March 24, 2008
A Valentine's Gift from the Court of Appeals
“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
“Men are like a fine wine. They start out like grapes, and it's our job to stomp on them and keep them in the dark until they mature into something you'd like to have dinner with.” Anonymous
Ah, Valentine’s Day. That silliest of holidays, full of chocolate, roses and one billion valentine cards[1] mailed to our prospective clients by our prospective clients. What could be better? Hard to believe that it has been a mere five years since the Court of Appeals eviscerated our ability to put child support in an agreement and sent us scurrying to our malpractice carriers on St. Valentine’s Eve in that lovely little love poem, Tompkins County SCU v. Chamberlin.[2] And who could forget Hartog,[3] the Valentine’s Day gift of 1995, finding that merely showing up for a Board meeting or two pulls your brother’s company into the marital pot. Or how about Brady,[4] the Valentine’s Day gift of 1985, where Sol Wachler tied the marital knot around Ed Brady’s neck by requiring a high degree of proof in long term divorces. Say what you will about the Court of Appeals, they sure do have a sense of humor when it comes to men and Valentine’s Day. But wait. What is this? An apparition worthy of Marley’s ghost or King Hamlet or even Casper. Can it be true? A sight rarer than Haley’s Comet which comes every 76 years but last appeared in 1986, a full nine years after a living man[5] last won a case in the Court of Appeals in a matrimonial matter.[6] Wait no longer. Thanks to our own Bruce J. Wagner of Kew Gardens, New York an XY chromosome biped has carried the day in the Court of Appeals on Valentine’s Day, 2008. Remember James Spencer? This poor schnook had three lovely children in Connecticut with his bride Susan, and when the marriage went bad he settled matters by an agreement that provided support for his cherubs until age 18, the last day of child support obligation under Connecticut law. By the way, that’s the law in the majority of states of the union. However, that wily Susan took her kids to Albany County in search of a more favorable support statute. Why else move to the Empire State? The weather? As we all know, New York requires child support until age 21, so she sued for support on the 18th birthday of the oldest child. “Wait a New York minute,” said James. The Full Faith and Credit stuff of the Full Faith and Credit for Child Support Orders Act (FFCCSOA)[7] prohibits New York from changing the amount or duration of another state’s child support awards. Ergo, no subject matter jurisdiction. Not so fast, Jimmy boy. The Support Magistrate held that since your eldest son turned 18, there was NO support order for him so she was free to bang you for whatever she wished since it was a de novo application. After all, duration doesn’t really mean duration does it? Presto chango, your support went from $250 per week to $350 per week plus 75% of junior’s college education expenses (over $8,000 yearly from dad) plus $12,000 just for yucks as an undertaking in case you don’t pay. Boy, did that Tuts Weh, as they say in the Burgenland, but the Family Court Judge and the Third Department unanimously affirmed.[8] Thankfully the Court of Appeals granted leave and reversed in a thoughtful unanimous opinion by Chief Judge Judith Kaye. Finding that the language of the statute prohibits changing the duration or amount of another state’s order, she held that duration includes extending expired orders. The court was also persuaded by other states’ similar interpretations of expired orders. While hoping that a parent will step up to the plate to support a child over 18, the court found that New York is without jurisdiction to compel Mr. Spencer to so support his 18 year old son. It remitted the matter of recoupment, and one only hopes that Mr. Spencer is not squeezed by the “no recoupment of arrears” rule so favored by the Third Department. At least the bleeding has stopped.
We are all governed by rules of civility, requiring us to “maintain a respectful attitude towards the court.”[9] Unlike us, judges also have to be courteous, dignified and patient in their judicial capacity.[10] Therefore when one judge or Appellate Division disagrees with another, it is traditionally couched in terms of deference to one’s “learned brethren”, “fellow colleagues” or some such courteous nod to the dissenting or opposing judges. New York is not unique in this regard, and judges throughout the world recognize the need to maintain a sense of respect for the process of resolving disputes.[11] One New York judge in 1834 even apologized for disagreeing with his fellow judges writing, “In passing upon these appeals I am so unfortunate as to differ from my learned brethren of the supreme court.”[12] Therefore I was quite surprised to see the First Department take a swipe at my beloved Third Department late last year in Judith S. v. Howard S.[13] Great minds can disagree, but you need not chastise your fellow and equal members of the judiciary. The issue here was the ability to file objections to a Support Magistrate’s child support order within the 35 day period of Family Court Act §439(e). The Third Department has strictly construed the statute to bounce untimely Objections.[14] In their view, the time cannot even be extended by the general provisions of CPLR 2004, which allows for extension for good cause. The failure to file is jurisdictional. The First Department saw things differently, but rather than respectfully noting their difference of opinion, they said, “The Third Department seemingly misconstrued the emphasized words and ignored the clear breadth of the section [CPLR 2004], denying its application to time limits set forth in any statutes or regulations ‘other than those contained in the CPLR.’” Say what? Look guys, if you disagree, fine. But don’t tell our judges that they misconstrued or ignored anything, because they didn’t. Just politely state the difference and move on. Your collective wisdom is no better than any other Appellate Division, and if we start taking snipes at one another we are all lost. I know the judges in the Third Department cannot respond in kind, and they probably wouldn’t if they could. But I am not so limited, so let me just say that I do not appreciate any judge criticizing any other judge in a published decision. There is a better way to express your disagreement than this, and you make us all seem a little smaller by such discourse. So stop it.
Well, time to step off my soap box for another month. Erin Go Bragh, and of course happy National Frozen Food Month.
[1] The U.S. Greeting Card Association, God Bless them, estimates one billion valentines are sent to lovers everywhere, making it the second largest card sending day of the year, behind Christmas, of course.
[2] 99 N.Y.2nd 328 (2003).
[3] Hartog v. Hartog, 85 N.Y.3rd 36 (1995)
[4] Brady v. Brady, 64 N.Y.2nd 229 (1985).
[5] Of course we have to discount Mr. O’Connell who was allowed to cheat his wife out of any portion of the marital estate post mortem in Matter of O’Connell v. Corcoran, 1 N.Y.3rd 179 (2003).
[6] Christian v. Christian, 42 N.Y.2nd 63 (1977).
[7] 28 U.S.C. §1738B
[8] 35 A.D.3rd 980 (3rd Dept., 2006)
[9] 4 N.Y.Ct.Rules Pt. 1200, Appendix A.
[10] Code of Judicial Conduct, 22 NYCRR 100.3
[11] See for example, Throwing Stones: A cost/benefit analysis of judges being offensive to each other by Justice Keith Mason of New South Wales, Australia in 2007
http://www.courtwise.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_mason061007
or Judge Paul Friedman’s lecture on Civility and Judicial Independence in Federal Courts Law Review, 2002, Volume 4
[12] Hawley v. James, 16 Wend. 61, Court for the Correction of Errors of New York, 1826.
[13] 46 A.D.3rd 318 (1st Dept., 2007).
[14] Monahan v. Hartka, 17 A.D.3rd 758 (3rd Dept., 2005).
“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
“Men are like a fine wine. They start out like grapes, and it's our job to stomp on them and keep them in the dark until they mature into something you'd like to have dinner with.” Anonymous
Ah, Valentine’s Day. That silliest of holidays, full of chocolate, roses and one billion valentine cards[1] mailed to our prospective clients by our prospective clients. What could be better? Hard to believe that it has been a mere five years since the Court of Appeals eviscerated our ability to put child support in an agreement and sent us scurrying to our malpractice carriers on St. Valentine’s Eve in that lovely little love poem, Tompkins County SCU v. Chamberlin.[2] And who could forget Hartog,[3] the Valentine’s Day gift of 1995, finding that merely showing up for a Board meeting or two pulls your brother’s company into the marital pot. Or how about Brady,[4] the Valentine’s Day gift of 1985, where Sol Wachler tied the marital knot around Ed Brady’s neck by requiring a high degree of proof in long term divorces. Say what you will about the Court of Appeals, they sure do have a sense of humor when it comes to men and Valentine’s Day. But wait. What is this? An apparition worthy of Marley’s ghost or King Hamlet or even Casper. Can it be true? A sight rarer than Haley’s Comet which comes every 76 years but last appeared in 1986, a full nine years after a living man[5] last won a case in the Court of Appeals in a matrimonial matter.[6] Wait no longer. Thanks to our own Bruce J. Wagner of Kew Gardens, New York an XY chromosome biped has carried the day in the Court of Appeals on Valentine’s Day, 2008. Remember James Spencer? This poor schnook had three lovely children in Connecticut with his bride Susan, and when the marriage went bad he settled matters by an agreement that provided support for his cherubs until age 18, the last day of child support obligation under Connecticut law. By the way, that’s the law in the majority of states of the union. However, that wily Susan took her kids to Albany County in search of a more favorable support statute. Why else move to the Empire State? The weather? As we all know, New York requires child support until age 21, so she sued for support on the 18th birthday of the oldest child. “Wait a New York minute,” said James. The Full Faith and Credit stuff of the Full Faith and Credit for Child Support Orders Act (FFCCSOA)[7] prohibits New York from changing the amount or duration of another state’s child support awards. Ergo, no subject matter jurisdiction. Not so fast, Jimmy boy. The Support Magistrate held that since your eldest son turned 18, there was NO support order for him so she was free to bang you for whatever she wished since it was a de novo application. After all, duration doesn’t really mean duration does it? Presto chango, your support went from $250 per week to $350 per week plus 75% of junior’s college education expenses (over $8,000 yearly from dad) plus $12,000 just for yucks as an undertaking in case you don’t pay. Boy, did that Tuts Weh, as they say in the Burgenland, but the Family Court Judge and the Third Department unanimously affirmed.[8] Thankfully the Court of Appeals granted leave and reversed in a thoughtful unanimous opinion by Chief Judge Judith Kaye. Finding that the language of the statute prohibits changing the duration or amount of another state’s order, she held that duration includes extending expired orders. The court was also persuaded by other states’ similar interpretations of expired orders. While hoping that a parent will step up to the plate to support a child over 18, the court found that New York is without jurisdiction to compel Mr. Spencer to so support his 18 year old son. It remitted the matter of recoupment, and one only hopes that Mr. Spencer is not squeezed by the “no recoupment of arrears” rule so favored by the Third Department. At least the bleeding has stopped.
We are all governed by rules of civility, requiring us to “maintain a respectful attitude towards the court.”[9] Unlike us, judges also have to be courteous, dignified and patient in their judicial capacity.[10] Therefore when one judge or Appellate Division disagrees with another, it is traditionally couched in terms of deference to one’s “learned brethren”, “fellow colleagues” or some such courteous nod to the dissenting or opposing judges. New York is not unique in this regard, and judges throughout the world recognize the need to maintain a sense of respect for the process of resolving disputes.[11] One New York judge in 1834 even apologized for disagreeing with his fellow judges writing, “In passing upon these appeals I am so unfortunate as to differ from my learned brethren of the supreme court.”[12] Therefore I was quite surprised to see the First Department take a swipe at my beloved Third Department late last year in Judith S. v. Howard S.[13] Great minds can disagree, but you need not chastise your fellow and equal members of the judiciary. The issue here was the ability to file objections to a Support Magistrate’s child support order within the 35 day period of Family Court Act §439(e). The Third Department has strictly construed the statute to bounce untimely Objections.[14] In their view, the time cannot even be extended by the general provisions of CPLR 2004, which allows for extension for good cause. The failure to file is jurisdictional. The First Department saw things differently, but rather than respectfully noting their difference of opinion, they said, “The Third Department seemingly misconstrued the emphasized words and ignored the clear breadth of the section [CPLR 2004], denying its application to time limits set forth in any statutes or regulations ‘other than those contained in the CPLR.’” Say what? Look guys, if you disagree, fine. But don’t tell our judges that they misconstrued or ignored anything, because they didn’t. Just politely state the difference and move on. Your collective wisdom is no better than any other Appellate Division, and if we start taking snipes at one another we are all lost. I know the judges in the Third Department cannot respond in kind, and they probably wouldn’t if they could. But I am not so limited, so let me just say that I do not appreciate any judge criticizing any other judge in a published decision. There is a better way to express your disagreement than this, and you make us all seem a little smaller by such discourse. So stop it.
Well, time to step off my soap box for another month. Erin Go Bragh, and of course happy National Frozen Food Month.
[1] The U.S. Greeting Card Association, God Bless them, estimates one billion valentines are sent to lovers everywhere, making it the second largest card sending day of the year, behind Christmas, of course.
[2] 99 N.Y.2nd 328 (2003).
[3] Hartog v. Hartog, 85 N.Y.3rd 36 (1995)
[4] Brady v. Brady, 64 N.Y.2nd 229 (1985).
[5] Of course we have to discount Mr. O’Connell who was allowed to cheat his wife out of any portion of the marital estate post mortem in Matter of O’Connell v. Corcoran, 1 N.Y.3rd 179 (2003).
[6] Christian v. Christian, 42 N.Y.2nd 63 (1977).
[7] 28 U.S.C. §1738B
[8] 35 A.D.3rd 980 (3rd Dept., 2006)
[9] 4 N.Y.Ct.Rules Pt. 1200, Appendix A.
[10] Code of Judicial Conduct, 22 NYCRR 100.3
[11] See for example, Throwing Stones: A cost/benefit analysis of judges being offensive to each other by Justice Keith Mason of New South Wales, Australia in 2007
http://www.courtwise.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_mason061007
or Judge Paul Friedman’s lecture on Civility and Judicial Independence in Federal Courts Law Review, 2002, Volume 4
[12] Hawley v. James, 16 Wend. 61, Court for the Correction of Errors of New York, 1826.
[13] 46 A.D.3rd 318 (1st Dept., 2007).
[14] Monahan v. Hartka, 17 A.D.3rd 758 (3rd Dept., 2005).
McCarney, The First Department and other things
“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
“The trouble with my wife is that she is a whore in the kitchen and a cook in bed”
Geoffrey Gorer (1905-1985), Anthropologist
“A lot of guys think the larger a woman's breasts are, the less intelligent she is. I think the larger a woman's breasts are, the less intelligent the men become.” Anita Wise
And I think to myself, what a wonderful world.[i] Really. After all, where can you claim that one cannot possibly make ends meet for child support and maintenance on a tad over $7,485,000 per year? Why jolly old London of course. Next time you are filling out that silly Statement of Net Worth form so favored by the wonks at OCA, think of dear Heather Mills, the Gold Standard of needs and wants. After all, I often say that no one costs more to feed than the clients of one of our favorite downtown Albany law firms, but even they are pikers compared to the modest and demure Ms. Mills. Just how do you get there? Let’s start with the niggardly sum of $69,000 per year for helicopters for vacations. Or how about the seven full time housekeepers ($128,000) or my personal favorite: just shy of a quarter mil per annum for clothes. Like I say, it’s a wonderful world. Unfortunately, Mr. Justice Bennett wasn’t buying it and awarded her only a fraction of that to keep body and soul together, saying, “If, as she has done, a litigant flagrantly overeggs the pudding and thus deprives the court of any sensible assistance, then he or she is likely to find that the court takes a robust view and drastically prunes the proposed budget." Man would I like to see the Third Department write something like that some day. Overegg the pudding?
Into this surrealism wandered Allan Chapin the other day, and the First Department gave us a doozie just in time for Easter.[ii] Do you know him? He’s a former partner in Sullivan and Cromwell, one of the largest law firms in the world, founded in the 19th Century. Of course, he gave up that lucrative gig when his marriage Numero Duo went sour. Who wouldn’t? It seems Mr. Chapin and Ms. Janet Johnson married in the Episcopal Church of Heavenly Rest[iii] in NYC and nine months and one hour later had a bouncing baby boy. Within three years Janet quit her job as a lawyer for the Walt Disney Company (of course) and Allan kept earning about $2.1 million yearly at S&C and after that the investment bankers Lazard Freres & Company. He also had a tidy income from being on a bunch of corporate boards and was an adviser to my beloved Toronto Blue Jays. So, what does such a Captain of Industry do in his spare time? What they all do: renovate a country home in Claverack, New York, a dippy little town in Columbia County best known as the home of Ollie North.[iv] Mr. Chapin owned the farm before he married Ms. Johnson, but sank $1.9 million into the property to increase its value a little less than $1.6 million. What a financial genius. In any event the trial court gave her half the increase which was reduced by the First Department to 25% because of passive appreciation I guess. They do not really explain that rationale, but she did after all order pizza and coffee for the renovation workers. Here’s where things got really squirrelly. It seems that Allan owed his first wife some money pursuant to his divorce judgment, namely $584,000 in maintenance and $690,000 in equitable distribution for a nice total of $1,274,000. Being the good spouse, he paid it all during the marriage to the former Mrs. Chapin. So when it came time for Equitable Distribution, the current Mrs. Chapin aka Janet Johnson made the rather silly argument: “Wait a minute. If he hadn’t paid the $1.2 million to the first Mrs. Chapin, then we would have had an extra $1.2 million in our marital estate. Yeah, I knew about this obligation when I married him, but so what? Give it back to me, or at least half. Please. Pretty please.” Well, Dammit Janet, there’s a fire in their heart and you’ve fanned it. So they reduced Allan’s separate property credits by half or over $600,000 and slid that over to Janet’s half of the equation. Wow!
Remember last week when I asked the First Department to lay off my beloved Third Department when writing a decision that not so respectfully disagreed with their Northerly brethren? Well, maybe they took the article to heart but the venom spilled over their black robes into this decision in the form of the majority opinion and the dissent by Mr. Justice James McGuire, a Pataki gift from Queens to the First Department in 2006. He was joined by Mr. Justice David Friedman, no relation to my learned brother of the same name. Putting aside the snide remarks the majority foisted on the dissenters, the heavily footnoted dissent sent shivers through my spine in its excoriation of the majority, however wrong they may be. Here is a sample: “I respectfully disagree with virtually everything the majority has to say… The majority's assertion that Ms. Costello ‘gave testimony which supported [the wife's] position’ is breathtakingly wrong… Not surprisingly, the majority offers nothing by way of an attempt to respond to any of the points I make regarding its erroneous reliance on the CFO's testimony… The majority does not and cannot dispute this critical fact. Indeed, the majority ignores it.” Boy, I would have loved to be in the room when this baby was argued by the Court. Given the two judge dissent, one can only wonder what magic the Court of Appeals will work with these facts. Did I mention that Allan had to pay $800,000 of Janet’s legal fees? Just slipped my mind I guess. Not bad for a 14 day trial. I really must be doing something wrong.
In any event, aside from the juicy stuff about child support and maintenance, the really novel idea here is to get a credit for half of a spouse’s premarital debt paid during the marriage. How ‘bout them student loans? Pay them during the marriage, and get them back at the end. Dammit, Janet, it really is a wonderful world.
I know the Office of Confused Adults has little money for judicial pay raises and the like, but who came up with the idea to put little numbered labels on everything in the courthouse? Have you noticed that every chair, flag stand, telephone and bauble has a new label with the words “Office of Court Administration, ___ Judicial District, No.___” pasted on the personalty. I wonder if the robes and shoes of the judges have numbered labels. Isn’t there something better these guys can do?
By the way, is the Third Department becoming a wholly owned subsidiary of the Third Judicial District? We now have four new judges and three are from the Third District giving us 2/3 of the App Div and further depleting our trial bench with the loss of Justice Stein. Can’t the other two districts chip in a judge or two to balance things out?
Happy Conch Republic Independence Day, the only place where this all makes sense.
[i] Of course, with a tip of the hat to Bob Thiele aka George Douglas and George David Weiss. Did you know Clear Channel made the song persona non grata just after 9/11?
[ii] Johnson v. Chapman, __ A.D.3rd __ (1st Dept., March 13, 2008)
[iii] For those of you who accuse me of making this stuff up, see The New York Times, January 13, 1991. I’ll lend you my copy.
[iv] The most famous graduate of Ockawamick High School.
“The trouble with my wife is that she is a whore in the kitchen and a cook in bed”
Geoffrey Gorer (1905-1985), Anthropologist
“A lot of guys think the larger a woman's breasts are, the less intelligent she is. I think the larger a woman's breasts are, the less intelligent the men become.” Anita Wise
And I think to myself, what a wonderful world.[i] Really. After all, where can you claim that one cannot possibly make ends meet for child support and maintenance on a tad over $7,485,000 per year? Why jolly old London of course. Next time you are filling out that silly Statement of Net Worth form so favored by the wonks at OCA, think of dear Heather Mills, the Gold Standard of needs and wants. After all, I often say that no one costs more to feed than the clients of one of our favorite downtown Albany law firms, but even they are pikers compared to the modest and demure Ms. Mills. Just how do you get there? Let’s start with the niggardly sum of $69,000 per year for helicopters for vacations. Or how about the seven full time housekeepers ($128,000) or my personal favorite: just shy of a quarter mil per annum for clothes. Like I say, it’s a wonderful world. Unfortunately, Mr. Justice Bennett wasn’t buying it and awarded her only a fraction of that to keep body and soul together, saying, “If, as she has done, a litigant flagrantly overeggs the pudding and thus deprives the court of any sensible assistance, then he or she is likely to find that the court takes a robust view and drastically prunes the proposed budget." Man would I like to see the Third Department write something like that some day. Overegg the pudding?
Into this surrealism wandered Allan Chapin the other day, and the First Department gave us a doozie just in time for Easter.[ii] Do you know him? He’s a former partner in Sullivan and Cromwell, one of the largest law firms in the world, founded in the 19th Century. Of course, he gave up that lucrative gig when his marriage Numero Duo went sour. Who wouldn’t? It seems Mr. Chapin and Ms. Janet Johnson married in the Episcopal Church of Heavenly Rest[iii] in NYC and nine months and one hour later had a bouncing baby boy. Within three years Janet quit her job as a lawyer for the Walt Disney Company (of course) and Allan kept earning about $2.1 million yearly at S&C and after that the investment bankers Lazard Freres & Company. He also had a tidy income from being on a bunch of corporate boards and was an adviser to my beloved Toronto Blue Jays. So, what does such a Captain of Industry do in his spare time? What they all do: renovate a country home in Claverack, New York, a dippy little town in Columbia County best known as the home of Ollie North.[iv] Mr. Chapin owned the farm before he married Ms. Johnson, but sank $1.9 million into the property to increase its value a little less than $1.6 million. What a financial genius. In any event the trial court gave her half the increase which was reduced by the First Department to 25% because of passive appreciation I guess. They do not really explain that rationale, but she did after all order pizza and coffee for the renovation workers. Here’s where things got really squirrelly. It seems that Allan owed his first wife some money pursuant to his divorce judgment, namely $584,000 in maintenance and $690,000 in equitable distribution for a nice total of $1,274,000. Being the good spouse, he paid it all during the marriage to the former Mrs. Chapin. So when it came time for Equitable Distribution, the current Mrs. Chapin aka Janet Johnson made the rather silly argument: “Wait a minute. If he hadn’t paid the $1.2 million to the first Mrs. Chapin, then we would have had an extra $1.2 million in our marital estate. Yeah, I knew about this obligation when I married him, but so what? Give it back to me, or at least half. Please. Pretty please.” Well, Dammit Janet, there’s a fire in their heart and you’ve fanned it. So they reduced Allan’s separate property credits by half or over $600,000 and slid that over to Janet’s half of the equation. Wow!
Remember last week when I asked the First Department to lay off my beloved Third Department when writing a decision that not so respectfully disagreed with their Northerly brethren? Well, maybe they took the article to heart but the venom spilled over their black robes into this decision in the form of the majority opinion and the dissent by Mr. Justice James McGuire, a Pataki gift from Queens to the First Department in 2006. He was joined by Mr. Justice David Friedman, no relation to my learned brother of the same name. Putting aside the snide remarks the majority foisted on the dissenters, the heavily footnoted dissent sent shivers through my spine in its excoriation of the majority, however wrong they may be. Here is a sample: “I respectfully disagree with virtually everything the majority has to say… The majority's assertion that Ms. Costello ‘gave testimony which supported [the wife's] position’ is breathtakingly wrong… Not surprisingly, the majority offers nothing by way of an attempt to respond to any of the points I make regarding its erroneous reliance on the CFO's testimony… The majority does not and cannot dispute this critical fact. Indeed, the majority ignores it.” Boy, I would have loved to be in the room when this baby was argued by the Court. Given the two judge dissent, one can only wonder what magic the Court of Appeals will work with these facts. Did I mention that Allan had to pay $800,000 of Janet’s legal fees? Just slipped my mind I guess. Not bad for a 14 day trial. I really must be doing something wrong.
In any event, aside from the juicy stuff about child support and maintenance, the really novel idea here is to get a credit for half of a spouse’s premarital debt paid during the marriage. How ‘bout them student loans? Pay them during the marriage, and get them back at the end. Dammit, Janet, it really is a wonderful world.
I know the Office of Confused Adults has little money for judicial pay raises and the like, but who came up with the idea to put little numbered labels on everything in the courthouse? Have you noticed that every chair, flag stand, telephone and bauble has a new label with the words “Office of Court Administration, ___ Judicial District, No.___” pasted on the personalty. I wonder if the robes and shoes of the judges have numbered labels. Isn’t there something better these guys can do?
By the way, is the Third Department becoming a wholly owned subsidiary of the Third Judicial District? We now have four new judges and three are from the Third District giving us 2/3 of the App Div and further depleting our trial bench with the loss of Justice Stein. Can’t the other two districts chip in a judge or two to balance things out?
Happy Conch Republic Independence Day, the only place where this all makes sense.
[i] Of course, with a tip of the hat to Bob Thiele aka George Douglas and George David Weiss. Did you know Clear Channel made the song persona non grata just after 9/11?
[ii] Johnson v. Chapman, __ A.D.3rd __ (1st Dept., March 13, 2008)
[iii] For those of you who accuse me of making this stuff up, see The New York Times, January 13, 1991. I’ll lend you my copy.
[iv] The most famous graduate of Ockawamick High School.
Sunday, January 27, 2008
Parental Access Visitation Guidelines
When you talk to matrimonial lawyers in other states, they marvel at our peculiar practices. Fault divorces, let alone jury trials for fault divorces, always raise an eyebrow or two. Then you explain about enhanced earnings,[1] child support to age 21 including college contributions,[2] no recoupment of child support overpayments,[3] double dipping of child support and enhanced earnings[4] and guideline recalculations every two years in spite of agreements to the contrary.[5] No one believes you. So, I was not surprised to learn that other states have more progressive rules about custodial access, known as visitation in the Domestic Relations Law.[6] After all, if there are Child Support Guidelines, why not Parental Access Guidelines?
Our child support guidelines are the product of national child support enforcement regulations, essentially mandating that state legislatures have some standards for the determination of support.[7] There is no such impetus from Congress or the New York Legislature for parental access guidelines. The Melonas Commission and the 2006 Matrimonial Commission[8] did not address this issue among the myriad of suggested reforms. However, other states and municipalities have addressed these issues in an effort to set minimum standards of access and to avoid protracted litigation over such trivial issues as times for pick up and drop off, and standards for telephone access and clothing exchanges. The Third Department determined custodial schedules a few years ago in overruling minimal alternating weekend access in favor of more expanded midweek and full weekend access.[9] However, such cases are few and far between and are often the product of specific circumstances.[10] There are no generally recognized standards for parental access in New York, leaving it to judges to fashion schedules based on their own proclivities, experiences and prejudices. Appellate Courts are loathe to overturn a parental schedule, leaving such awards to the “sound discretion of the trial judges.”[11] At best, visitation schedules are remanded to the trial court to fashion an appropriate schedule.[12] Experts can provide no help as there is little scientific evidence to suggest that trained professionals have the expertise or training to establish parenting schedules.[13]
For the most part, the custodial guidelines of other states grant minimal access to noncustodial parents. In excruciating detail they deal with access for very young children, holidays, telephone calls and clothing exchanges. The Arizona Model Parenting Guidelines[14] breaks it down into three to four year intervals of a child’s life, and all require that the parents live within 150 to 200 miles for significant access. However, most guidelines have an alternating weekend schedule from Friday evening to Sunday evening and a midweek dinner visit. Indiana,[15] Arizona, Oklahoma,[16] Utah,[17] South Dakota,[18] Delaware,[19] and some courts in Mississippi,[20] Ohio,[21] and Florida[22] follow such rules. We have come a long way since the Draconian conclusions of Beyond the Best Interests of the Child,[23] where Goldstein, Freud and Solnit recommended the identification of the psychological parent and the essential disappearance of the other parent. However, in a country of two working parent households, custodial schedules do not mirror the shared parental responsibilities when parents separate. “Traditional” families of working spouse/homemaker spouse are no longer the norm in America. In 1940, 60% of American families had this traditional structure,[24] but the Bureau of Labor Statistics reported that 62 percent of families with children now have two working parents.[25]
Much judicial energy is spent on litigating access schedules that often have little to do with a child’s best interests. Are there any statistics that show a child does significantly better if the drop off time is 6:00 p.m. Sunday versus Monday morning or if a child spends midweek overnight with the non primary parent? Of course not. Yet these issues are litigated with a vengeance as parents fight for every minute of parenting time in an effort to obtain favorable child support considerations[26] or just to deny access to the offending spouse. Is it not more sensible to have parenting guidelines that try to mirror the child’s contacts with both parents in the intact household, if for no other reason than to limit the needless litigation of these issues that are so important for parents and so insignificant for many children? I am guessing a semester or two of college education expenses are often spent to determine whether there should be a phone call every day at 7:00 p.m. or whether a parent should return a child at 10:00 a.m. or noon on Christmas Day. Any law guardian with more than two weeks experience will tell you that the child’s best interests are served by a settlement of custodial schedules as opposed to a particular date or time for pick up and drop off. I am therefore proposing the following guidelines in the hopes that someday, someway children of separating parents can be spared the needless stress associated with parental access litigation. Maybe then we can start eliminating the useless trials over sole versus joint custody, but I leave that for another day.
I realize that these can only be guidelines, and the actual schedule may have to altered based on working schedules, out of town parents or for very young children. However, I believe this or some semblance thereof should be the “default” schedule for most families in the throes of custodial litigation. This should be the “presumptive” schedule and a parent who wishes to deviate should have to show good cause in the best interests of the child.
Proposed New York Parental Access Guidelines
1. WEEKENDS: Each parent shall have access on alternate weekends from Friday after school or at 3:00 p.m. if there is no school until Monday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. If Monday is a school holiday, then access shall end Tuesday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. Monday school holidays have precedence over the weekday schedule.
2. WEEKDAY: If both parents worked full time prior to separation, the mother/father shall have access from Monday at 9:00 a.m. until Wednesday morning when the child shall be brought to school or to the father/mother 9:00 a.m. if there is no school. Then the father/mother shall have access from Wednesday at 9:00 a.m. until Friday morning when the child shall be brought to school or to the father/mother 3:00 p.m. if there is no school. If one parent worked part time or not at all prior to separation, then the full time working parent shall have access every Wednesday after school or 3:00 p.m. if there is no school until Thursday morning when the child shall be brought to school or 9:00 a.m. if there is no school.
3. HOLIDAYS: Holidays shall take precedence of over Weekend and Weekday access. The father shall have the holidays in Column1 n odd-numbered years and the holidays in Column 2 in the even-numbered years. The mother shall have the children on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
Column 1
Column 2
Fourth of July Spring BreakHalloweenChristmas Day
ThanksgivingWinter BreakChristmas Eve
The Fourth of July shall be from 9:00 a.m. on July 4 to 9:00 a.m. on July 5. Halloween shall be October 31 after school or noon if there is no school until November 1 to school or 9:00 a.m. if there is no school. Thanksgiving shall be from the Wednesday before after school or noon if there is no school until the Friday after Thanksgiving at 9:00 a.m. Christmas Eve shall be from noon on December 24 until noon on December 25. Christmas Day shall be from noon on December 25 until noon on December 26. Spring and Winter break shall commence when the child ends school immediately prior to the break until the child enters school following the break.
4. MOTHER'S/FATHER'S DAY: On Mother's Day and Father's Day, the children shall be with the appropriate parent from 9 a.m. until 6 p.m. This shall take precedence over weekend access.
5. SUMMER VACATION: Each parent shall have access for two weeks of summer access to be communicated to the other parent in writing on or before April 1 of each year. However, summer vacation shall not abut the regular access. Therefore the child shall not have more than 14 days without seeing the other parent.
6. TELEPHONE/MAIL: Neither parent shall interfere with telephone or mail contact between the children and the other parent.
[1] O’Brien v. O’Brien, 66 N.Y.2nd 576 (1985)
[2] Domestic Relations Law Section 240(1-b)(b)(2)
[3] Annette M.R. v. John W.R., __ A.D.3rd __, 845 N.Y.S.2nd 616 (4th Dept., 2007))
[4] Holterman v. Holterman, 3 N.Y.3rd 1 (2004)
[5] Tompkins County Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2nd 328 (2003)
[6] Domestic Relations Law Section 240
[7] Collectively known as the Child Support Enforcement Amendments of 1984 (CSEA), Pub. L. 98-378, 98 Stat. 1305, amending 42 U.S.C. §§ 657-662.
[8] The full report can be found at http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf
[9] Somerville v. Somerville, 307 A.D.2nd 481 (3rd Dept., 2003); Valentine v. Valentine, 3 A.D.3rd 646 (3rd Dept., 2003).
[10] See the recent case of Vincent v. Anna Tomaino, 848 N.Y.S.2nd 437 (3rd Dept., 2007), where the Third Department overturned a schedule of no overnight visitation as inappropriate.
[11] Thompson v. Yu-Thompson, 41 A.D.3rd 487 (2nd Dept., 2007).
[12] Hugh H. v. Fhara L., 44 A.D.3rd 192 (1st Dept., 2007)
[13] “Should the Mental Health Evaluator Decide child Custody?”, Family Court Review, May 2005 and "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance," Family Court Review of the Association of Family and Conciliation Courts by Professor Timothy Tippins and Jeffrey Wittmann, Ph.D.
[14] http://www.supreme.state.az.us/dr/Pdf/Parenting_Time_Plan_Final.pdf
[15] http://www.in.gov/judiciary/rules/parenting/
[16] http://www.oscn.net/forms/aoc_form/adobe/Form.76.pdf
[17] http://www.divorcenet.com/states/utah/ut_art01
[18] http://www.sdjudicial.com/index.asp?title=sharing_parental_guidelines&category=public_info&nav=91
[19] http://courts.state.de.us/How%20To/Custody%20and%20Visitation/?visitation.htm
[20] http://15thchancerydistrictms.org/images/visitation%20guidelines.pdf
[21] http://domestic.cuyahogacounty.us/Rules/Rule18.htm
[22] http://www.jud6.org/ContactInformation/familyLaw/non%20primary%20res%20parent%20visitation%20sched%202001.pdf
[23] The Free Press, 1972
[24] Economic Policy Foundation, "American Workplace: Labor Day 1997 Report; Bureau of Labor Statistics
[25] “Trends in Labor Force Participation of Married Mothers of Infants.” by the Bureau of Labor Statistics, February, 2007.
[26] Somerville v. Somerville, 5 A.D.3rd 878 (3rd Dept., 2004)
Our child support guidelines are the product of national child support enforcement regulations, essentially mandating that state legislatures have some standards for the determination of support.[7] There is no such impetus from Congress or the New York Legislature for parental access guidelines. The Melonas Commission and the 2006 Matrimonial Commission[8] did not address this issue among the myriad of suggested reforms. However, other states and municipalities have addressed these issues in an effort to set minimum standards of access and to avoid protracted litigation over such trivial issues as times for pick up and drop off, and standards for telephone access and clothing exchanges. The Third Department determined custodial schedules a few years ago in overruling minimal alternating weekend access in favor of more expanded midweek and full weekend access.[9] However, such cases are few and far between and are often the product of specific circumstances.[10] There are no generally recognized standards for parental access in New York, leaving it to judges to fashion schedules based on their own proclivities, experiences and prejudices. Appellate Courts are loathe to overturn a parental schedule, leaving such awards to the “sound discretion of the trial judges.”[11] At best, visitation schedules are remanded to the trial court to fashion an appropriate schedule.[12] Experts can provide no help as there is little scientific evidence to suggest that trained professionals have the expertise or training to establish parenting schedules.[13]
For the most part, the custodial guidelines of other states grant minimal access to noncustodial parents. In excruciating detail they deal with access for very young children, holidays, telephone calls and clothing exchanges. The Arizona Model Parenting Guidelines[14] breaks it down into three to four year intervals of a child’s life, and all require that the parents live within 150 to 200 miles for significant access. However, most guidelines have an alternating weekend schedule from Friday evening to Sunday evening and a midweek dinner visit. Indiana,[15] Arizona, Oklahoma,[16] Utah,[17] South Dakota,[18] Delaware,[19] and some courts in Mississippi,[20] Ohio,[21] and Florida[22] follow such rules. We have come a long way since the Draconian conclusions of Beyond the Best Interests of the Child,[23] where Goldstein, Freud and Solnit recommended the identification of the psychological parent and the essential disappearance of the other parent. However, in a country of two working parent households, custodial schedules do not mirror the shared parental responsibilities when parents separate. “Traditional” families of working spouse/homemaker spouse are no longer the norm in America. In 1940, 60% of American families had this traditional structure,[24] but the Bureau of Labor Statistics reported that 62 percent of families with children now have two working parents.[25]
Much judicial energy is spent on litigating access schedules that often have little to do with a child’s best interests. Are there any statistics that show a child does significantly better if the drop off time is 6:00 p.m. Sunday versus Monday morning or if a child spends midweek overnight with the non primary parent? Of course not. Yet these issues are litigated with a vengeance as parents fight for every minute of parenting time in an effort to obtain favorable child support considerations[26] or just to deny access to the offending spouse. Is it not more sensible to have parenting guidelines that try to mirror the child’s contacts with both parents in the intact household, if for no other reason than to limit the needless litigation of these issues that are so important for parents and so insignificant for many children? I am guessing a semester or two of college education expenses are often spent to determine whether there should be a phone call every day at 7:00 p.m. or whether a parent should return a child at 10:00 a.m. or noon on Christmas Day. Any law guardian with more than two weeks experience will tell you that the child’s best interests are served by a settlement of custodial schedules as opposed to a particular date or time for pick up and drop off. I am therefore proposing the following guidelines in the hopes that someday, someway children of separating parents can be spared the needless stress associated with parental access litigation. Maybe then we can start eliminating the useless trials over sole versus joint custody, but I leave that for another day.
I realize that these can only be guidelines, and the actual schedule may have to altered based on working schedules, out of town parents or for very young children. However, I believe this or some semblance thereof should be the “default” schedule for most families in the throes of custodial litigation. This should be the “presumptive” schedule and a parent who wishes to deviate should have to show good cause in the best interests of the child.
Proposed New York Parental Access Guidelines
1. WEEKENDS: Each parent shall have access on alternate weekends from Friday after school or at 3:00 p.m. if there is no school until Monday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. If Monday is a school holiday, then access shall end Tuesday morning when the child shall be brought to school or to the mother/father at 9:00 a.m. if there is no school. Monday school holidays have precedence over the weekday schedule.
2. WEEKDAY: If both parents worked full time prior to separation, the mother/father shall have access from Monday at 9:00 a.m. until Wednesday morning when the child shall be brought to school or to the father/mother 9:00 a.m. if there is no school. Then the father/mother shall have access from Wednesday at 9:00 a.m. until Friday morning when the child shall be brought to school or to the father/mother 3:00 p.m. if there is no school. If one parent worked part time or not at all prior to separation, then the full time working parent shall have access every Wednesday after school or 3:00 p.m. if there is no school until Thursday morning when the child shall be brought to school or 9:00 a.m. if there is no school.
3. HOLIDAYS: Holidays shall take precedence of over Weekend and Weekday access. The father shall have the holidays in Column1 n odd-numbered years and the holidays in Column 2 in the even-numbered years. The mother shall have the children on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
Column 1
Column 2
Fourth of July Spring BreakHalloweenChristmas Day
ThanksgivingWinter BreakChristmas Eve
The Fourth of July shall be from 9:00 a.m. on July 4 to 9:00 a.m. on July 5. Halloween shall be October 31 after school or noon if there is no school until November 1 to school or 9:00 a.m. if there is no school. Thanksgiving shall be from the Wednesday before after school or noon if there is no school until the Friday after Thanksgiving at 9:00 a.m. Christmas Eve shall be from noon on December 24 until noon on December 25. Christmas Day shall be from noon on December 25 until noon on December 26. Spring and Winter break shall commence when the child ends school immediately prior to the break until the child enters school following the break.
4. MOTHER'S/FATHER'S DAY: On Mother's Day and Father's Day, the children shall be with the appropriate parent from 9 a.m. until 6 p.m. This shall take precedence over weekend access.
5. SUMMER VACATION: Each parent shall have access for two weeks of summer access to be communicated to the other parent in writing on or before April 1 of each year. However, summer vacation shall not abut the regular access. Therefore the child shall not have more than 14 days without seeing the other parent.
6. TELEPHONE/MAIL: Neither parent shall interfere with telephone or mail contact between the children and the other parent.
[1] O’Brien v. O’Brien, 66 N.Y.2nd 576 (1985)
[2] Domestic Relations Law Section 240(1-b)(b)(2)
[3] Annette M.R. v. John W.R., __ A.D.3rd __, 845 N.Y.S.2nd 616 (4th Dept., 2007))
[4] Holterman v. Holterman, 3 N.Y.3rd 1 (2004)
[5] Tompkins County Support Collection Unit ex rel. Chamberlin v. Chamberlin, 99 N.Y.2nd 328 (2003)
[6] Domestic Relations Law Section 240
[7] Collectively known as the Child Support Enforcement Amendments of 1984 (CSEA), Pub. L. 98-378, 98 Stat. 1305, amending 42 U.S.C. §§ 657-662.
[8] The full report can be found at http://www.nycourts.gov/reports/matrimonialcommissionreport.pdf
[9] Somerville v. Somerville, 307 A.D.2nd 481 (3rd Dept., 2003); Valentine v. Valentine, 3 A.D.3rd 646 (3rd Dept., 2003).
[10] See the recent case of Vincent v. Anna Tomaino, 848 N.Y.S.2nd 437 (3rd Dept., 2007), where the Third Department overturned a schedule of no overnight visitation as inappropriate.
[11] Thompson v. Yu-Thompson, 41 A.D.3rd 487 (2nd Dept., 2007).
[12] Hugh H. v. Fhara L., 44 A.D.3rd 192 (1st Dept., 2007)
[13] “Should the Mental Health Evaluator Decide child Custody?”, Family Court Review, May 2005 and "Empirical and Ethical Problems with Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance," Family Court Review of the Association of Family and Conciliation Courts by Professor Timothy Tippins and Jeffrey Wittmann, Ph.D.
[14] http://www.supreme.state.az.us/dr/Pdf/Parenting_Time_Plan_Final.pdf
[15] http://www.in.gov/judiciary/rules/parenting/
[16] http://www.oscn.net/forms/aoc_form/adobe/Form.76.pdf
[17] http://www.divorcenet.com/states/utah/ut_art01
[18] http://www.sdjudicial.com/index.asp?title=sharing_parental_guidelines&category=public_info&nav=91
[19] http://courts.state.de.us/How%20To/Custody%20and%20Visitation/?visitation.htm
[20] http://15thchancerydistrictms.org/images/visitation%20guidelines.pdf
[21] http://domestic.cuyahogacounty.us/Rules/Rule18.htm
[22] http://www.jud6.org/ContactInformation/familyLaw/non%20primary%20res%20parent%20visitation%20sched%202001.pdf
[23] The Free Press, 1972
[24] Economic Policy Foundation, "American Workplace: Labor Day 1997 Report; Bureau of Labor Statistics
[25] “Trends in Labor Force Participation of Married Mothers of Infants.” by the Bureau of Labor Statistics, February, 2007.
[26] Somerville v. Somerville, 5 A.D.3rd 878 (3rd Dept., 2004)
Monday, January 14, 2008
Valentine's Musings
“Valentine's Day is when a lot of married men are reminded what a poor shot Cupid really is.” Anonymous
“I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.” J. Edgar Hoover
"If you're given a choice between money and sex appeal, take the money. As you get older, the money will become your sex appeal." Katherine Hepburn
Here’s some food for thought. About 20 percent of divorces in Australia are commenced in January.[1] In Britain, the divorce lawyers call January 1 “D (as in Divorce) Day.” Similar statistics are found in South Africa where January is called “Divorce Month.” By the way, the top reasons for divorce in Great Britain are (a) adultery, (b) abuse, (c) boredom and (d) lack of sex, in that order. Makes me wonder why we don’t make boredom a new cause of action in DRL 170, somewhere between abandonment and imprisonment. Oh, well. And a recent Gfk Roper[2] poll found that women divorce over abuse and men divorce over sex, or the lack thereof. In America boredom is a distant fifth among the reasons to divorce, at a paltry 12% compared to those ennui driven Brits at 29%.
That being said, let’s see what little treasures our Appellate Courts have given us for the New Year. Fault continues to be at the top of everyone’s resolution list, and the Third Department continues to be somewhat more liberal in granting divorces than their downstate brethren. Case in point: James Dunne who was asked to leave his home because of the misuse of medicines and alcohol.[3] His wife moved him into an apartment, and refused to allow him to come home for over one year. Although he stopped drinking and controlled his medications, she told him he could come home only if he was drug free. This was enough for a constructive abandonment divorce because his wife had placed an “unreasonable condition as a term of their relationship.” Who hasn’t? Compare that with Tricia Justin,[4] whose cruelty divorce was tossed by the Second Department for lack of proof, in spite of the trial court’s findings. Why? Who the hell knows? We’re talking Second Department here, so after stating a few platitudes about long term marriage, high degrees of proof and repeating the statute, they said, “Accordingly Supreme Court improperly granted the divorce.” Thanks guys.
Just in time for the New Year the Third Department gave us their own little version of Catch 22. Sometimes you just can’t win, as in the rule of support recoupment. If you get banged by a high temporary order and pay it, you cannot get the money back even though the final order is retroactive to the date of commencement of an action.[5] You cannot even get a credit against equitable distribution for overpayments.[6] So what do you do? If you pay under the order, you cannot get the money back or a credit. If you do not pay, you are in violation of a court order. It makes lawyering a little tricky as we can never advise any client to ignore a court order. This was the dilemma of Norman Rosenberg. When faced with a motion for temporary maintenance, he claimed to have taken a vow of poverty and to have no assets. Nice try, but the judge hit him for $2,500 per month temporary maintenance in November of 2004. Being poor of course, he paid nothing on the order. In 2006, Norm’s wife Eileen aka Leeny, became the beneficiary of a trust upon her father’s death paying her, ironically, about $2,500 per month. Norm promptly moved for modification and the court eliminated his maintenance obligation in August of 2006. “Wait a minute here” said poor Norm. “Final orders are to be retroactive to the date of commencement, so I shouldn’t be banged for the $55,000 in arrears that accumulated between November 2004 and August of 2006.” Sorry, Norm, but the Third Department saw things differently.[7] Since he made no payments on the temporary order, he gets no reduction since he “willfully flouted” the order, vow of poverty or no vow of poverty. Of course this begs the question, “Just how much bling would Norm have to pay to insure he gets the retroactive reduction without falling into the no recoupment trap of those who pay it all and get no credit?” Beats me.
How about another Christmas gift from the Third Department. I have often said that if you give ten judges the incomes of the parties and ask them to calculate what the CSSA “would have been,” you would get ten different answers. But that is exactly what is required by the statute if you are going to deviate from the “basic support obligation.”[8] The failure to include such provisions renders the agreement void. So, what if you screw up, and miscalculate the amount of basic support? All is not fatal, as the Third Department held in Sullivan v. Sullivan.[9] Here the deviation mistake was only $48 per month and resulted from the failure to deduct maintenance from income prior to applying the CSSA percentages and the Third Department let that one slide. I am sure that brought a sigh of relief to the payor spouse as well as the malpractice insurance carrier of the drafting attorney.
On the same sex marriage front, we are all anxiously awaiting the first New York divorce case based on a marriage or civil union of another state. Will comity prevail and allow our courts to divorce and equitably distribute property of married gay and lesbian couples, or will public policy or some other rationale close the courthouse door to such couples? Rhode Island has already weighed in on the issue, refusing to grant a divorce to a Rhode Island lesbian couple who were legally married in Massachusetts.[10] So a glimpse of the future came from the Third Department in a Workers Comp case of all things. In a full opinion in Langan v. State Farm Fire and Casualty,[11] the court dismissed the comity and Equal Protection claims of a “committed domestic partner” who sought death benefits following the death of his spouse, Neal Conrad Spicehandler. The parties had entered into a civil union in Vermont in 2000, and Vermont law gave them the right to obtain comp benefits as though married. The claim was dismissed as the comp judge found no standing in the domestic partner and the Appellate Division affirmed. Justice Rose dissented, and I hope this finds its way to the Court of Appeals.
Speaking of which, remember the Farkas[12] case? There, the First Department threw out a $750,000 judgment against a spouse for failure to file within the 60 day time limitations of 22 NYCRR 202.48. Thanks to a two judge dissent, the Court of Appeals has now granted leave so stay tuned.
Finally, welcome home Justices Kavanaugh and Malone, who have returned from exile in the First Department to finally serve those who voted for them in the first place.
Happy Valentine’s Day, and for all of my Canadian fans, Happy National Lactose Intolerance Awareness Month.
[1] Sydney Morning News January 12, 2008
[2] Gfk Roper is really a consumer research organization, which really makes me wonder why they are interested in the reasons for divorce. Must be a buck to be made somewhere.
[3] Dunne v. Dunne, __ A.D.3rd __ (January 10, 2008).
[4] Justin v. Justin, __ A.D.2nd __ (January 8, 2008)
[5] Fox v. Fox, 306 A.D.2nd 583 (3rd Dept., 2003), appeal dismissed 1 N.Y.3rd 622.
[6] Redgrave v. Redgrave, 25 A.D.3rd 973 (3rd Dept., 2006).
[7] Rosenberg v. Sacks, __ A.D.3rd December 27, 2007.
[8] Domestic Relations Law Section 240(1-b)(h)
[9] __ A.D.3rd __ (3rd Dept., December 20, 2007)
[10] Chambers v. Ormiston, Decision 06-340, December 7, 2007, a day which shall live in infamy.
[11] __ A.D.3rd __ (3rd Dept., December 27, 2007).
[12] 40 A.D.3rd 207 (1st Dept., 2007).
“I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce.” J. Edgar Hoover
"If you're given a choice between money and sex appeal, take the money. As you get older, the money will become your sex appeal." Katherine Hepburn
Here’s some food for thought. About 20 percent of divorces in Australia are commenced in January.[1] In Britain, the divorce lawyers call January 1 “D (as in Divorce) Day.” Similar statistics are found in South Africa where January is called “Divorce Month.” By the way, the top reasons for divorce in Great Britain are (a) adultery, (b) abuse, (c) boredom and (d) lack of sex, in that order. Makes me wonder why we don’t make boredom a new cause of action in DRL 170, somewhere between abandonment and imprisonment. Oh, well. And a recent Gfk Roper[2] poll found that women divorce over abuse and men divorce over sex, or the lack thereof. In America boredom is a distant fifth among the reasons to divorce, at a paltry 12% compared to those ennui driven Brits at 29%.
That being said, let’s see what little treasures our Appellate Courts have given us for the New Year. Fault continues to be at the top of everyone’s resolution list, and the Third Department continues to be somewhat more liberal in granting divorces than their downstate brethren. Case in point: James Dunne who was asked to leave his home because of the misuse of medicines and alcohol.[3] His wife moved him into an apartment, and refused to allow him to come home for over one year. Although he stopped drinking and controlled his medications, she told him he could come home only if he was drug free. This was enough for a constructive abandonment divorce because his wife had placed an “unreasonable condition as a term of their relationship.” Who hasn’t? Compare that with Tricia Justin,[4] whose cruelty divorce was tossed by the Second Department for lack of proof, in spite of the trial court’s findings. Why? Who the hell knows? We’re talking Second Department here, so after stating a few platitudes about long term marriage, high degrees of proof and repeating the statute, they said, “Accordingly Supreme Court improperly granted the divorce.” Thanks guys.
Just in time for the New Year the Third Department gave us their own little version of Catch 22. Sometimes you just can’t win, as in the rule of support recoupment. If you get banged by a high temporary order and pay it, you cannot get the money back even though the final order is retroactive to the date of commencement of an action.[5] You cannot even get a credit against equitable distribution for overpayments.[6] So what do you do? If you pay under the order, you cannot get the money back or a credit. If you do not pay, you are in violation of a court order. It makes lawyering a little tricky as we can never advise any client to ignore a court order. This was the dilemma of Norman Rosenberg. When faced with a motion for temporary maintenance, he claimed to have taken a vow of poverty and to have no assets. Nice try, but the judge hit him for $2,500 per month temporary maintenance in November of 2004. Being poor of course, he paid nothing on the order. In 2006, Norm’s wife Eileen aka Leeny, became the beneficiary of a trust upon her father’s death paying her, ironically, about $2,500 per month. Norm promptly moved for modification and the court eliminated his maintenance obligation in August of 2006. “Wait a minute here” said poor Norm. “Final orders are to be retroactive to the date of commencement, so I shouldn’t be banged for the $55,000 in arrears that accumulated between November 2004 and August of 2006.” Sorry, Norm, but the Third Department saw things differently.[7] Since he made no payments on the temporary order, he gets no reduction since he “willfully flouted” the order, vow of poverty or no vow of poverty. Of course this begs the question, “Just how much bling would Norm have to pay to insure he gets the retroactive reduction without falling into the no recoupment trap of those who pay it all and get no credit?” Beats me.
How about another Christmas gift from the Third Department. I have often said that if you give ten judges the incomes of the parties and ask them to calculate what the CSSA “would have been,” you would get ten different answers. But that is exactly what is required by the statute if you are going to deviate from the “basic support obligation.”[8] The failure to include such provisions renders the agreement void. So, what if you screw up, and miscalculate the amount of basic support? All is not fatal, as the Third Department held in Sullivan v. Sullivan.[9] Here the deviation mistake was only $48 per month and resulted from the failure to deduct maintenance from income prior to applying the CSSA percentages and the Third Department let that one slide. I am sure that brought a sigh of relief to the payor spouse as well as the malpractice insurance carrier of the drafting attorney.
On the same sex marriage front, we are all anxiously awaiting the first New York divorce case based on a marriage or civil union of another state. Will comity prevail and allow our courts to divorce and equitably distribute property of married gay and lesbian couples, or will public policy or some other rationale close the courthouse door to such couples? Rhode Island has already weighed in on the issue, refusing to grant a divorce to a Rhode Island lesbian couple who were legally married in Massachusetts.[10] So a glimpse of the future came from the Third Department in a Workers Comp case of all things. In a full opinion in Langan v. State Farm Fire and Casualty,[11] the court dismissed the comity and Equal Protection claims of a “committed domestic partner” who sought death benefits following the death of his spouse, Neal Conrad Spicehandler. The parties had entered into a civil union in Vermont in 2000, and Vermont law gave them the right to obtain comp benefits as though married. The claim was dismissed as the comp judge found no standing in the domestic partner and the Appellate Division affirmed. Justice Rose dissented, and I hope this finds its way to the Court of Appeals.
Speaking of which, remember the Farkas[12] case? There, the First Department threw out a $750,000 judgment against a spouse for failure to file within the 60 day time limitations of 22 NYCRR 202.48. Thanks to a two judge dissent, the Court of Appeals has now granted leave so stay tuned.
Finally, welcome home Justices Kavanaugh and Malone, who have returned from exile in the First Department to finally serve those who voted for them in the first place.
Happy Valentine’s Day, and for all of my Canadian fans, Happy National Lactose Intolerance Awareness Month.
[1] Sydney Morning News January 12, 2008
[2] Gfk Roper is really a consumer research organization, which really makes me wonder why they are interested in the reasons for divorce. Must be a buck to be made somewhere.
[3] Dunne v. Dunne, __ A.D.3rd __ (January 10, 2008).
[4] Justin v. Justin, __ A.D.2nd __ (January 8, 2008)
[5] Fox v. Fox, 306 A.D.2nd 583 (3rd Dept., 2003), appeal dismissed 1 N.Y.3rd 622.
[6] Redgrave v. Redgrave, 25 A.D.3rd 973 (3rd Dept., 2006).
[7] Rosenberg v. Sacks, __ A.D.3rd December 27, 2007.
[8] Domestic Relations Law Section 240(1-b)(h)
[9] __ A.D.3rd __ (3rd Dept., December 20, 2007)
[10] Chambers v. Ormiston, Decision 06-340, December 7, 2007, a day which shall live in infamy.
[11] __ A.D.3rd __ (3rd Dept., December 27, 2007).
[12] 40 A.D.3rd 207 (1st Dept., 2007).
Sunday, December 16, 2007
New Year New York Divorce
"There is nothing safe about sex. There never will be." Norman Mailer
“Women might be able to fake orgasms. But men can fake whole relationships.” Sharon Stone
"Sex at the age of eighty-four is a wonderful experience. Especially the one in the winter.” Milton Berle
Sometimes life is tough. Take German jewelers for example. There is a major downturn in the wedding band business because divorce and cohabitation are so prevalent. Things could be worse however. You could be Mahmud Hamisu from Nigeria who was sentenced to a year in jail and 100 strokes of the cane for adultery.[1] That seems a lot worse than having to cough up a few bucks doesn’t it? Maybe not. Case in point: Jerry Fitch, Sr. It seems Mr. Fitch was smitten by his comely employee, one Sandy Valentine, a plumber’s wife. One thing led to another and Mrs. Valentine became pregnant. A bouncing baby boy was born, and the aforesaid plumber, Johnny Valentine, became suspicious. DNA confirmed that no plumbing genes were carried by the child, and Johnny and Sandy separated and ultimately divorced. Jerry then married Sandy. Did I mention this took place in Mississippi? Well it did, and Johnny sued Jerry for alienating his wife’s affections, a cause of action long since outlawed in New York and 41 other states.[2] A jury saw it Johnny’s way and awarded $642,000 in actual damages and $112,000 in punitive damages. Ouch. The case was affirmed all the way to the Mississippi Supreme Court, and Antonin Scalia is now considering whether leave should be granted by the United States Supreme Court on constitutional grounds, based on the anti-sodomy case of Lawrence v. Texas.[3]
All this brings me to the bad karma visited on poor Norman Wechsler, the victim of a First Department decision[4] so diabolical it would make Joseph Heller smile. Like Jerry Fitch, he was smitten with an employee and eventually married her. You might remember Norm as the guy who could not get a stay of $450,000 in legal fees awarded to his wife while his appeal was pending because of the “discretion” of the trial judge.[5] Norm owns Wechsler & Company, Inc., an investment firm. Its assets consisted of securities worth $80.7 million. If sold, they would generate $51.1 million after taxes. However, the trial judge found this figure ridiculous since the company paid an average of only 11% in capital gains taxes as it could write off gains against loses. Ignoring that a marital distributive award was hardly the kind of business sale that could be easily written off, the trial justice found the business was worth a hefty $71+ million and awarded her half after first crediting Norm with $5 million as his separate property contribution. This makes me wonder why the trial judge pounded Norm for $430,000 in legal fees since the wife could easily pay that from the $35+ million she was receiving in the business award plus an additional $27.3 million of “other assets”. Of course the whole thing could have been avoided had the trial judge awarded Mrs. Wechsler her share of the stocks outright since such transfers are capital gains tax free to Mr. Wechsler[6] and the wife could decide when and where to sell and pay the capital gains. Maybe that was too simple so Mrs. Wechsler received some assets and securities and a distributive award of over $22 million payable in 60 easy payments of $379,510.50 per quarter. Oh yeah, since that won’t be enough for Mrs. Wechsler to maintain her lifestyle, he also has to pay monthly maintenance of $46,666 until he transferred certain assets. Enough to hold body and sole together. All this was too much for Norm so he left town on the next flight to Colorado and was ultimately held in contempt for failing to pony up. When he finally got his appeal before the Second Department to address the travesty of this mess, the Second Department threw him out faster than you can say Milo Minderbinder. Why? Fugitive disentitlement. You remember that nice principle from our Third Department Skiff-Murray[7] decision where an appeal was dismissed because Mr. Murray skipped town and failed to comply with the judgment. It is the ultimate Catch-22 because if a decision is manifestly unfair, you cannot get your appeal decided unless you comply with the decision. Makes sense to me. Applying these principles to poor Norm, his appeal was tossed unless he posted an undertaking of $9,151,920.57. Don’t forget the 57¢ Norm.
Here’s a new idea, fresh from the Second Department. In figuring out how much child support and maintenance a spouse has to pay, you should consider the reasonable living expenses and debts of the payor spouse. Really? Where did that come from? In Silver v. Silver[8], the Appellate Division actually lowered a pendente lite maintenance award from $1,700 per month to $650 per month and child support from $2,500 per month to $950 per month.[9] They also slashed the counsel fees from $10,000 to $3,762 because of the “equities of the case and the financial circumstances of the parties.” What a novel idea! The Second Department also gets the Mike Friedman’s 2007 Sentence of the Year Award, narrowly bumping off the eloquence of the First Department with this little ditty in the Silver case: “As a general rule, we do not consider an issue raised on a subsequent appeal that was raised on a prior appeal or could have been raised on a prior appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do.” If that’s the general rule, I’d like to see the exception!
As if that wasn’t bad enough, the Second Department gave us a chilling little Christmas present called In re Bruno[10] where an attorney was suspended for two years for improperly responding to disclosure in a matrimonial case. It seems that Counselor Bruno received Interrogatories and responded by saying that his client’s business “went under” and the records were in the possession of the wife. It was subsequently discovered that the husband/client’s business received $105,000 in checks payable to Mr. Bruno as attorney for the business. Oops. Although sanctions against Mr. Bruno were denied by the trial court, the Second Department lifted his ticket for two years. While this might be a proper decision given Mr. Bruno’s extensive past disciplinary history, it does seem to open a panoply of problems for matrimonial lawyers in disclosure issues that are clearly privileged and often ambiguous. Hopefully this will not start a trend of disciplinary claims of what we know and when we knew it.[11]
Finally, kudos to the Third Department for affirming a $325,000 personal injury award to a father who was falsely accused of sexual abuse of his child by his mother-in-law. In Brefka v. Dobies[12] a jury found that the resulting supervised visitation, emotional strain and being forced to resign as a physician and relocate was worth $225,000. Dr. Dobies was also awarded special damages of $50,000 in legal fees and $30,500 in punitive damages. All sums were upheld on appeal. You might leave this decision on the dinner table the next time your mother-in-law mouths off about your failings as the husband of her perfect child or the father of her perfect grandchild.
Happy New Year to all, and to all a good night.
[1] However, the adulteress was set free because of her “mental state”.
[2] New York passed an alienation of affection law in 1864, but abolished it as a cause of action in 1935 by passage of 80-a of the Civil Rights Law.
[3] 539 U.S. 558 (2003). The entire sad stay application can be found here:
http://www.scotusblog.com/wp/wp-content/uploads/2007/10/10-18-07-motion-for-stay-ussc.pdf
[4] Wechsler v. Wechsler, __ A.D.3rd __ (November 27, 2007)
[5] Wechsler v. Wechsler, 8 Misc.3rd 329 (Sup.Ct. New York County, 2005)
[6] If you don’t believe me, take a gander at Section 1041 of the Internal Revenue Code.
[7] Matter of Skiff Murray v. Murray, 305 A.D.2nd 751 (3rd Dept., 2003)
[8] __ A.D.3rd __ (2nd Dept., December 11, 2007)
[9] The court did continue the obligation of the husband to pay the carrying charges on the home, generally not awarded in addition to child support in final orders.
[10] __ A.D.3rd __ (2nd Dept., December 4, 2007)
[11] For those of you old enough to remember this phrase, it comes from Tennessee senator Howard Baker in the famous Watergate Hearings. You could look it up.
[12] __ A.D.3rd __ (November 8, 2007). You might remember the Brefka v. Dobies trials and tribulations in numerous appellate cases in 273 A.D.2nd 776 (3rd Dept., 2000) leave dismissed 95 N.Y. 931 (2000) and 271 A.D.2nd 876 (3rd Dept., 1999) leave dismissed 95 N.Y.2nd 931 (2000) and 271 A.D.2nd 876 (3rd Dept., 2000).
“Women might be able to fake orgasms. But men can fake whole relationships.” Sharon Stone
"Sex at the age of eighty-four is a wonderful experience. Especially the one in the winter.” Milton Berle
Sometimes life is tough. Take German jewelers for example. There is a major downturn in the wedding band business because divorce and cohabitation are so prevalent. Things could be worse however. You could be Mahmud Hamisu from Nigeria who was sentenced to a year in jail and 100 strokes of the cane for adultery.[1] That seems a lot worse than having to cough up a few bucks doesn’t it? Maybe not. Case in point: Jerry Fitch, Sr. It seems Mr. Fitch was smitten by his comely employee, one Sandy Valentine, a plumber’s wife. One thing led to another and Mrs. Valentine became pregnant. A bouncing baby boy was born, and the aforesaid plumber, Johnny Valentine, became suspicious. DNA confirmed that no plumbing genes were carried by the child, and Johnny and Sandy separated and ultimately divorced. Jerry then married Sandy. Did I mention this took place in Mississippi? Well it did, and Johnny sued Jerry for alienating his wife’s affections, a cause of action long since outlawed in New York and 41 other states.[2] A jury saw it Johnny’s way and awarded $642,000 in actual damages and $112,000 in punitive damages. Ouch. The case was affirmed all the way to the Mississippi Supreme Court, and Antonin Scalia is now considering whether leave should be granted by the United States Supreme Court on constitutional grounds, based on the anti-sodomy case of Lawrence v. Texas.[3]
All this brings me to the bad karma visited on poor Norman Wechsler, the victim of a First Department decision[4] so diabolical it would make Joseph Heller smile. Like Jerry Fitch, he was smitten with an employee and eventually married her. You might remember Norm as the guy who could not get a stay of $450,000 in legal fees awarded to his wife while his appeal was pending because of the “discretion” of the trial judge.[5] Norm owns Wechsler & Company, Inc., an investment firm. Its assets consisted of securities worth $80.7 million. If sold, they would generate $51.1 million after taxes. However, the trial judge found this figure ridiculous since the company paid an average of only 11% in capital gains taxes as it could write off gains against loses. Ignoring that a marital distributive award was hardly the kind of business sale that could be easily written off, the trial justice found the business was worth a hefty $71+ million and awarded her half after first crediting Norm with $5 million as his separate property contribution. This makes me wonder why the trial judge pounded Norm for $430,000 in legal fees since the wife could easily pay that from the $35+ million she was receiving in the business award plus an additional $27.3 million of “other assets”. Of course the whole thing could have been avoided had the trial judge awarded Mrs. Wechsler her share of the stocks outright since such transfers are capital gains tax free to Mr. Wechsler[6] and the wife could decide when and where to sell and pay the capital gains. Maybe that was too simple so Mrs. Wechsler received some assets and securities and a distributive award of over $22 million payable in 60 easy payments of $379,510.50 per quarter. Oh yeah, since that won’t be enough for Mrs. Wechsler to maintain her lifestyle, he also has to pay monthly maintenance of $46,666 until he transferred certain assets. Enough to hold body and sole together. All this was too much for Norm so he left town on the next flight to Colorado and was ultimately held in contempt for failing to pony up. When he finally got his appeal before the Second Department to address the travesty of this mess, the Second Department threw him out faster than you can say Milo Minderbinder. Why? Fugitive disentitlement. You remember that nice principle from our Third Department Skiff-Murray[7] decision where an appeal was dismissed because Mr. Murray skipped town and failed to comply with the judgment. It is the ultimate Catch-22 because if a decision is manifestly unfair, you cannot get your appeal decided unless you comply with the decision. Makes sense to me. Applying these principles to poor Norm, his appeal was tossed unless he posted an undertaking of $9,151,920.57. Don’t forget the 57¢ Norm.
Here’s a new idea, fresh from the Second Department. In figuring out how much child support and maintenance a spouse has to pay, you should consider the reasonable living expenses and debts of the payor spouse. Really? Where did that come from? In Silver v. Silver[8], the Appellate Division actually lowered a pendente lite maintenance award from $1,700 per month to $650 per month and child support from $2,500 per month to $950 per month.[9] They also slashed the counsel fees from $10,000 to $3,762 because of the “equities of the case and the financial circumstances of the parties.” What a novel idea! The Second Department also gets the Mike Friedman’s 2007 Sentence of the Year Award, narrowly bumping off the eloquence of the First Department with this little ditty in the Silver case: “As a general rule, we do not consider an issue raised on a subsequent appeal that was raised on a prior appeal or could have been raised on a prior appeal which was dismissed for lack of prosecution, although the Court has the inherent jurisdiction to do.” If that’s the general rule, I’d like to see the exception!
As if that wasn’t bad enough, the Second Department gave us a chilling little Christmas present called In re Bruno[10] where an attorney was suspended for two years for improperly responding to disclosure in a matrimonial case. It seems that Counselor Bruno received Interrogatories and responded by saying that his client’s business “went under” and the records were in the possession of the wife. It was subsequently discovered that the husband/client’s business received $105,000 in checks payable to Mr. Bruno as attorney for the business. Oops. Although sanctions against Mr. Bruno were denied by the trial court, the Second Department lifted his ticket for two years. While this might be a proper decision given Mr. Bruno’s extensive past disciplinary history, it does seem to open a panoply of problems for matrimonial lawyers in disclosure issues that are clearly privileged and often ambiguous. Hopefully this will not start a trend of disciplinary claims of what we know and when we knew it.[11]
Finally, kudos to the Third Department for affirming a $325,000 personal injury award to a father who was falsely accused of sexual abuse of his child by his mother-in-law. In Brefka v. Dobies[12] a jury found that the resulting supervised visitation, emotional strain and being forced to resign as a physician and relocate was worth $225,000. Dr. Dobies was also awarded special damages of $50,000 in legal fees and $30,500 in punitive damages. All sums were upheld on appeal. You might leave this decision on the dinner table the next time your mother-in-law mouths off about your failings as the husband of her perfect child or the father of her perfect grandchild.
Happy New Year to all, and to all a good night.
[1] However, the adulteress was set free because of her “mental state”.
[2] New York passed an alienation of affection law in 1864, but abolished it as a cause of action in 1935 by passage of 80-a of the Civil Rights Law.
[3] 539 U.S. 558 (2003). The entire sad stay application can be found here:
http://www.scotusblog.com/wp/wp-content/uploads/2007/10/10-18-07-motion-for-stay-ussc.pdf
[4] Wechsler v. Wechsler, __ A.D.3rd __ (November 27, 2007)
[5] Wechsler v. Wechsler, 8 Misc.3rd 329 (Sup.Ct. New York County, 2005)
[6] If you don’t believe me, take a gander at Section 1041 of the Internal Revenue Code.
[7] Matter of Skiff Murray v. Murray, 305 A.D.2nd 751 (3rd Dept., 2003)
[8] __ A.D.3rd __ (2nd Dept., December 11, 2007)
[9] The court did continue the obligation of the husband to pay the carrying charges on the home, generally not awarded in addition to child support in final orders.
[10] __ A.D.3rd __ (2nd Dept., December 4, 2007)
[11] For those of you old enough to remember this phrase, it comes from Tennessee senator Howard Baker in the famous Watergate Hearings. You could look it up.
[12] __ A.D.3rd __ (November 8, 2007). You might remember the Brefka v. Dobies trials and tribulations in numerous appellate cases in 273 A.D.2nd 776 (3rd Dept., 2000) leave dismissed 95 N.Y. 931 (2000) and 271 A.D.2nd 876 (3rd Dept., 1999) leave dismissed 95 N.Y.2nd 931 (2000) and 271 A.D.2nd 876 (3rd Dept., 2000).
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