In re civility
“A judge is not supposed to know anything about the facts of life until they have been presented in evidence and explained to him at least three times.” Lord Chief Justice Parker (1900–1972), British judge.
“Judge—A law student who marks his own examination-papers.” H.L. Mencken (1880–1956).
Did it rankle you when they passed standards of civility for lawyers? It upset me, as though I was a child in need of a life lesson in courtesy. They might as well have legislated rules on breathing, for discourtesy was anathema in my family and one did not need to be reminded to treat others with kindness. Such behavior just wasn’t allowed, and my early professional life reinforced the principles of civility. The charm of practicing law was the graciousness of fellow counsel.
So what happened? A few years ago, a lawyer was disciplined in Connecticut for writing a letter to a probate judge that he had “prostituted the integrity of his office”. The lawyer’s defense? Free speech of course, and that he had written the letter as a private citizen. I don’t think so, and neither did the Connecticut Superior Court. At the same time, the Commission on Judicial Conduct censured a New York Supreme Court Justice for some rather discourteous behavior. Justice Lewis V. Dye thought it necessary to ask if an attorney was Jewish, and when counsel asked the Honorable Justice Dye to explain he said that he grew up in North Carolina where he had never seen a Jew or a West Indian and “the only Chinese people I saw were in the laundry.” Nice.
In a 1986 tenant eviction proceeding in New York City, an attorney called a woman companion of an adverse party “sleazy” resulting in a physical confrontation in the courthouse. He also called opposing counsel a “f------ liar” and that he was “going to kick his ass at trial”. The defense? He did it too. Nah, Nah, Nah.
These cases are sad, because the misbehavior of one attorney reflects badly on us all. For reasons unknown to me, the older I get the more I feel the necessity to defend the civility of the profession. And I do not buy the idea that incivility is just a “downstate phenomenon”. Remember Morgan Bloodgood? He was the Malta Town Justice who decided to write to a defendant, David Rosenblum, who had not paid a traffic ticket. After sarcastically admonishing the defendant on Town Justice letterhead, he signed off, “So long Kikie.” The Commission on Judicial Conduct rightfully removed Mr. Bloodgood in 1981 finding “When a judge demonstrates prejudice by deliberately using the term ‘kikie’, public confidence in the integrity of the courts is diminished, and the administration of justice is seriously compromised.”
Within the past few years I have had the pleasure of having a sitting judge ask me in open court when and where I was admitted to the practice of law after I made several overruled evidentiary objections. I know I can sometimes get under a judge’s skin, but I thought that was a little much. In any event, my skin is pretty thick and it didn’t offend me so much as make me feel compunctious for the litigants. Their respect for the process designed for the resolution of their dispute undoubtedly disintegrated at that point. Courts exist for people to resolve disputes in a civilized manner. If the lawyers and judges can’t act with courtesy towards each other, how can we expect citizens to do the same?
For the most part, these are isolated incidents, but they do happen. How do we resolve the problem? Simple. Remember that it takes two to Tango, and the invitation to incivility when met with courtesy dies on the vine. As my deceased fellow matrimonial practitioner and friend Stanley Rosen used to say, “I kill them with kindness.” You are not a better lawyer if you are perceived as tough, difficult or intransigent. You are not a good practitioner if you write to a judge or opposing counsel suggesting that the opposing litigant is a lying scoundrel. While that may make your client feel good, it does not promote the resolution of anything and constitutes pandering to your client. Let me tell you what I mean.
Several years ago a client of mine was waiting to get her hair and God knows what else done in a beauty salon. Another woman was railing on and on about the bastard Shyster who represented her husband. She wasn’t getting any support because she was humiliated on the stand by this slimy creep who insinuated that she was seeking support when she was fully capable of gainful employment. When asked the name of the troglodytic pettifogger, she replied, “Michael Friedman”. Immediately three women getting their hair dyed, dried or deep-fried pulled paper and pencil out of their pocketbooks and wrote my name down. Do I want to represent these women? No thank you.
When I meet clients for the first time, I usually say, “What can I do for you?” The answer seems to ferret out the crazies, but not always. Several times a year, I hear, “Mr. Friedman I want to hire you because I understand you are a son of a bitch.” Of course, I politely suggest that the potential client take his business elsewhere. I am not interested in representing those who seek retribution or bloodletting from their counsel, and if you take on such a client you will undoubtedly have a very unhappy camper in a few months. You see, they were unhappy to begin with, and you cannot and should not become the legal hammer for their dissatisfaction with life. They feel they have been dealt a bad hand, and eventually you will become just one more bad card. You are not the sword of their incivility.
By and large the judges and counsel I meet are a pleasure. We understand that our function is to guide our clients through the maze of the justice system to achieve a resolution. While our clients may struggle with each other, there is no need for uncivil behavior from counsel. If nothing else, we should be guided by the Jim Conboy standard. For those of you who have never met Mr. Conboy, he is a senior partner in Carter and Conboy. If you seek “civility” & “lawyer” on your favorite search engine, a picture of Mr. Conboy should come up. He has defined a very successful career by courteous courtroom behavior. A few years ago, the Albany County Bar Association nominated Mr. Conboy for the Attorney Professionalism Award of the New York State Bar Association. The accolades for Mr. Conboy from the judiciary, counsel, physicians and clients were astounding. In spite of some lobbying to the contrary, he receid the award. Whenever I and many others wonder how to behave in our firms and local courtrooms, we think of what Mr. Conboy would do and try to emulate him. If you do, you will be much happier and a better lawyer.
22 NYCRR 1200
Grunberg v. Feller, 132 Misc.2nd 738
Friday, June 05, 2009
Sunday, April 19, 2009
Our Chief Judge's Security and Fiscal Responsiobility
“I speak two languages, Body and English.” Mae West
“It is not the state’s place to define marriage in a way that excludes a segment of the population from the legal benefits associated with marriage, and that’s why I’m here today.” Patterson April 16, 2009
“We bishops aren’t into politics, we’re into principles.” Archbishop Timothy Dolan, April 15, 2009
All righty then. Did you see our friend in Kabul Hamid Karzai waded into the divorce debate by the passage of The Shia Personal Status Law affecting the minority Shiite population in Afghanistan? This law requires women to submit to sex even if forced, and requires wives to get permission to leave the home except in an emergency. Wives must wear makeup upon request of the husband, and they can only divorce if the husband cannot feed her or disappears for a really long time. On the other hand, the man can divorce for virtually any reason. As for children, only the father and the grandfather can be awarded custody of a child over the age of seven. I wonder what the child support standards are in Afghanistan for two children. And we thought the New York legislature’s view of domestic relations was backward.
Speaking of Grand Poobahs, I see our former Family Court is getting a nice facelift courtesy of the Office of Court Administration. Twenty years ago the Albany Family Court left its Romanesque digs at Lodge and Pine streets “temporarily” because the building was condemned as unsafe. Lots of fond memories there like the bullet hole they never fixed when Sam Crutchfield shot and killed his wife in the waiting room in 1977. Now our bankrupt state is spending $26 million to buy and renovate one building. Why? So our Chief Judge as well as other out of town judges can stay there instead of patronizing our local hotels. Court of Appeals “spokesman” Gary Spencer says this is “a security issue for us.” Say what? A security issue? Since when do we have to spend over $900 a square foot to build a place for our judges to place their pretty heads while in Albany? An exorbitant cost of such space would be $100 per square foot. The Waldorf Astoria renovated the great Fairmont Hotel New Orleans for $68 per square foot. Besides, is there really a “security issue” for our judges? Is Osama Bin Laden sitting in a Pakistani cave plotting injury to Jonathan Lippman and out of town jurists? I wonder if the Chief Judge’s bodyguard will get to stay there, or his limo driver. Maybe we can dispense with the limo driver since the Family Court building is only 100 feet from the Court of Appeals building. Maybe there is a better use of the $27 million, like judicial pay raises or perhaps replacing the duct tape that graces the rug in the courtroom on the 4th floor of the Albany County Courthouse. I guess not.
So, with a deficit of $16 billion, we can spend $26 million for a few luxury bedrooms for our out of town judges. But what if you want to practice law and don’t pay your student loans? For that, you do not have the requisite character and fitness to practice law. So saith the Third Department, in denying admission to Mr. Anonymous. This guy went to law school, passed the bar and except for his enormous student loans would be practicing law. And just what kind of unfit behavior denied him the pleasure of practicing law? Among other things, not making substantial payments on the loans, and not being “flexible in his discussions with the loan servers.” So, if you want to pass the scrutiny of the Character and Fitness Committee, be sure you are flexible with those pesky loan collectors. After all, fiscal responsibility is a hallmark of fitness to practice.
Here’s a question for you. What is the perfect storm just waiting to swallow up all your money and assets for the rest of your life? Number one, get married. Number two, get your bachelor’s degree, go to medical school, become licensed to practice medicine, get board certified and start a private practice in ophthalmology. Number three, move to New York. Number four, have seven children. Number five, get divorced. Now that guy has “a security issue” if you ask me. Such was the plight of Dr. Michael Mairs when he placed his financial future in the capable hands of the Third Department. The trial court’s award of 15% of the license, degree, and practice was increased from 15% to 25%, reversing the trend downward as shown by the Third Department late last year in Evans (0%) and the Second Department this year in Guha (5%) because of the lack of “meaningful contributions” towards the degree. For good measure, the practice value was increased $86,000 because a loan that had not been repaid in many years was disallowed as a debt. The total net award for the degrees, licenses and practice was approximately $384,000 payable in sixty easy monthly payments of about $6,600 when you add a few years of interest at 4.5% since this case was tried in 2005. The maintenance was increased from $400 per week for seven years to $500 per week for seven years, since the good doctor earned $300,000 and the wife $50,000. As for child support, the trial court’s decision to limit the CSSA percentages above the elusive $80,000 cap was swept aside in favor of the Full Monty of 35% of gross income less FICA less maintenance, for a hefty $71,000 per year. Did I mention that Dr. Mairs was required to pay half the loan taken out by his wife for the eldest child’s college education, plus a $500,000 life insurance policy? So, with his $300k yearly salary, he must pay about $79,000 tax free per year in equitable distribution, $71,000 tax free child support, $26,000 tax deductible maintenance, half of a college loan and life insurance. And by the way, the wife received the home and the right to seek more for college education. So after paying maybe $80,000 in taxes, Dr. Maris can enjoy the remaining $40,000 for his own lifestyle and paying for the remaining kiddies’ college. What’s up, Doc? In his defense, he did get married four years before O’Brien reared its ugly head at the doctors of New York State.
Well, that is about as much fun as one can have for one month. Happy Law Day and Requiscat in Pace Marilyn “99.44% pure” Chambers, Mark The Bird, and Jack Wrangler. We’ll miss you all.
“It is not the state’s place to define marriage in a way that excludes a segment of the population from the legal benefits associated with marriage, and that’s why I’m here today.” Patterson April 16, 2009
“We bishops aren’t into politics, we’re into principles.” Archbishop Timothy Dolan, April 15, 2009
All righty then. Did you see our friend in Kabul Hamid Karzai waded into the divorce debate by the passage of The Shia Personal Status Law affecting the minority Shiite population in Afghanistan? This law requires women to submit to sex even if forced, and requires wives to get permission to leave the home except in an emergency. Wives must wear makeup upon request of the husband, and they can only divorce if the husband cannot feed her or disappears for a really long time. On the other hand, the man can divorce for virtually any reason. As for children, only the father and the grandfather can be awarded custody of a child over the age of seven. I wonder what the child support standards are in Afghanistan for two children. And we thought the New York legislature’s view of domestic relations was backward.
Speaking of Grand Poobahs, I see our former Family Court is getting a nice facelift courtesy of the Office of Court Administration. Twenty years ago the Albany Family Court left its Romanesque digs at Lodge and Pine streets “temporarily” because the building was condemned as unsafe. Lots of fond memories there like the bullet hole they never fixed when Sam Crutchfield shot and killed his wife in the waiting room in 1977. Now our bankrupt state is spending $26 million to buy and renovate one building. Why? So our Chief Judge as well as other out of town judges can stay there instead of patronizing our local hotels. Court of Appeals “spokesman” Gary Spencer says this is “a security issue for us.” Say what? A security issue? Since when do we have to spend over $900 a square foot to build a place for our judges to place their pretty heads while in Albany? An exorbitant cost of such space would be $100 per square foot. The Waldorf Astoria renovated the great Fairmont Hotel New Orleans for $68 per square foot. Besides, is there really a “security issue” for our judges? Is Osama Bin Laden sitting in a Pakistani cave plotting injury to Jonathan Lippman and out of town jurists? I wonder if the Chief Judge’s bodyguard will get to stay there, or his limo driver. Maybe we can dispense with the limo driver since the Family Court building is only 100 feet from the Court of Appeals building. Maybe there is a better use of the $27 million, like judicial pay raises or perhaps replacing the duct tape that graces the rug in the courtroom on the 4th floor of the Albany County Courthouse. I guess not.
So, with a deficit of $16 billion, we can spend $26 million for a few luxury bedrooms for our out of town judges. But what if you want to practice law and don’t pay your student loans? For that, you do not have the requisite character and fitness to practice law. So saith the Third Department, in denying admission to Mr. Anonymous. This guy went to law school, passed the bar and except for his enormous student loans would be practicing law. And just what kind of unfit behavior denied him the pleasure of practicing law? Among other things, not making substantial payments on the loans, and not being “flexible in his discussions with the loan servers.” So, if you want to pass the scrutiny of the Character and Fitness Committee, be sure you are flexible with those pesky loan collectors. After all, fiscal responsibility is a hallmark of fitness to practice.
Here’s a question for you. What is the perfect storm just waiting to swallow up all your money and assets for the rest of your life? Number one, get married. Number two, get your bachelor’s degree, go to medical school, become licensed to practice medicine, get board certified and start a private practice in ophthalmology. Number three, move to New York. Number four, have seven children. Number five, get divorced. Now that guy has “a security issue” if you ask me. Such was the plight of Dr. Michael Mairs when he placed his financial future in the capable hands of the Third Department. The trial court’s award of 15% of the license, degree, and practice was increased from 15% to 25%, reversing the trend downward as shown by the Third Department late last year in Evans (0%) and the Second Department this year in Guha (5%) because of the lack of “meaningful contributions” towards the degree. For good measure, the practice value was increased $86,000 because a loan that had not been repaid in many years was disallowed as a debt. The total net award for the degrees, licenses and practice was approximately $384,000 payable in sixty easy monthly payments of about $6,600 when you add a few years of interest at 4.5% since this case was tried in 2005. The maintenance was increased from $400 per week for seven years to $500 per week for seven years, since the good doctor earned $300,000 and the wife $50,000. As for child support, the trial court’s decision to limit the CSSA percentages above the elusive $80,000 cap was swept aside in favor of the Full Monty of 35% of gross income less FICA less maintenance, for a hefty $71,000 per year. Did I mention that Dr. Mairs was required to pay half the loan taken out by his wife for the eldest child’s college education, plus a $500,000 life insurance policy? So, with his $300k yearly salary, he must pay about $79,000 tax free per year in equitable distribution, $71,000 tax free child support, $26,000 tax deductible maintenance, half of a college loan and life insurance. And by the way, the wife received the home and the right to seek more for college education. So after paying maybe $80,000 in taxes, Dr. Maris can enjoy the remaining $40,000 for his own lifestyle and paying for the remaining kiddies’ college. What’s up, Doc? In his defense, he did get married four years before O’Brien reared its ugly head at the doctors of New York State.
Well, that is about as much fun as one can have for one month. Happy Law Day and Requiscat in Pace Marilyn “99.44% pure” Chambers, Mark The Bird, and Jack Wrangler. We’ll miss you all.
Monday, March 23, 2009
The Child Support Champ and the Lawyers' Wage Gap
“Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else's cash.” P.G. Wodehouse aka Sir Pelham Grenville
“You never know how short a month is until you pay alimony.” John Barrymore
“There are much easier things in life than finding a good man. Nailing Jell-O to a tree, for instance.” Anonymous
Ah, Spring. When a young man’s fancy certainly does not turn towards thoughts of child support, although it should. Case in point, Travis Henry, winner of the CSSA Flying Fickle Finger of Fate Award for 2009. If you’ve never heard of this guy, join the club. However, he is a very good football player, being an all pro NFL running back and signing a $25 million contract in 2007. He celebrated his exoneration on a failed marijuana drug test by smoking marijuana and getting suspended again, so you know he has a sense of humor. Although only thirty years old, he has fathered nine children by nine different women and he is obligated to pay over $170,000 per year in child support for his offspring. Recently he was jailed in Florida for failing to pay over $16,000 for one of these cherubs, and apparently Mr. Henry is now broke. He did tell the New York Times shortly before he was jailed, “I love all my kids.” Amen. He now has Shawn Kemp (seven children by six women) and Derrick Thomas (seven by five) beat by a landslide. Nice job, big guy. But compare Mr. Henry with David Bean who was made to pay lifetime maintenance of at least $150,000 and child support for one child of $85,000 per year on $1 million in yearly income, considerably less than Mr. Henry’s yearly take as a running back. That’s just fine in the Third Department. Bean v. Bean, setting the Gold Standard for the CSSA cap at $500,000 of combined income. One wonders what kind of numbers Mr. Henry would put up in the Third Department had one of the moms wandered into the jurisdiction.
By the way, did you get your latest issue of the Journal of the American Psychosomatic Society? No? There’s a nifty study there by a psychologist named Nancy Henry (no relation to Travis) and some others at the University of Utah that concludes that women are far more likely than men to have damage to their health in strained marriages. The study included people who had been married twenty years and found that both men and women claimed to be depressed in bad marriages, but only women showed negative physiological signs. One of the leading researchers concluded, “It's a little premature to say they would lower their risk of heart disease if they improved the tone and quality of their marriages - or dumped their husbands.” Geez, I could have told them that, but this is Reason Number 12,394 for the Empire State to pass no fault divorce if you ask me. But no one is asking.
And speaking of divorce reform, did you get the news of the two imbeciles in the West Virginia Legislature named John Ellum and Robert Schadler? They want to make it impossible to get maintenance (alimony) if you commit adultery. As Mr. Ellum said, “It has always bothered me that you can almost be rewarded in a way for cheating on your spouse.” You and you alone, John Bob, or is it Bob John?
Before we get to the latest from My Favorite Appellate Division, there was an interesting study of the “wage gap” between men and women based on the Census Bureau’s Current Population Survey for 2007. Suffice it to say men earn more than women for the same job, but we all know that. However, the “wage gap” is 22% among lawyers, with women earning about $71,500 and men earning about $91,600 per year. So, ladies, not only do we earn more than you, but apparently we make you sick in bad marriages. Time to rethink things here?
So, we all know that an attorney is supposed to sign a pleading, and this goes for Family Court Petitions. If you don’t believe me, take a gander at 22 NYCRR 130-1.1. So if the attorney doesn’t sign, is the petition to be dismissed? Of course not, but the Third Department had to reverse a Family Court judge who did just that in Green v. Tierney. Finally, a victory for resolution on the merits over technicality.
Are you entitled to paralegal fees in Family or Supreme Court? Of course not as the statues only refer to “counsel fee” applications. Sure, §8602(b) of the CPLR allows the recovery for paralegal fees in actions against the state, but Family Court Act §438, §536, §842(f) and Domestic Relations Law §237 make no mention of paralegal or other such fees. Therefore, one might conclude that since the legislature allowed such fees in one kind of action, but not in domestic relations matters, they never intended a recovery for paralegal fees in Family Court or Matrimonial Actions. Makes sense to me, but not to the Second Department, who recently held that a court can award paralegal fees in Family Court in the court’s discretion, although denied in this instance. Hubbard v. Clay. Makes you wonder.
Speaking of wondering, the Second Department gave us a doozy at the end of February in deciding that the standard for finding a violation of an Order of Protection under Article 8 of the Family Court Act is beyond a reasonable doubt! Rubackin v. Rubackin. They frankly acknowledged that this is contrary to their own prior decisions as well as the decisions of the other Appellate Divisions including our Favorite App Div. The language of this decision seems to imply that this might also be the standard in support violation matters as potential incarceration is the lynchpin for the standard, citing the 1911 Supreme Court case of the great labor activist Samuel Gompers v. Buck’s Stove and Range Co. Sounds like the Second Department is dying to grant leave to the Court of Appeals on this one. We’ll see.
Finally a few words on the Appellate Division, Third. I know that we have about a 30% chance of a reversal or modification in matrimonial appeals and obviously significantly less in criminal and prisoner appeals. But ladies and gentlemen, a day with 29 affirmances and one measly reversal, which occurred on March 5, 2009? Man, the stars must have been aligned on that day.
The Gov’nor finally appointed three new appellate justices last month, but many newspaper articles only commented on the skin color or sexual orientation of the jurists. Whatever happened to the judicial qualifications? Doesn’t that mean anything anymore to the hoi polloi? Is skin color or sexual orientation the only relevant issues anymore when it comes to judicial selection? Makes me wonder if I were ever appointed to anything, the headlines the next day would probably be, “Delusional, Demented, Narcissistic Blue Jay Fan wing nut appointed by the Gov.” Guilty as charged.
“You never know how short a month is until you pay alimony.” John Barrymore
“There are much easier things in life than finding a good man. Nailing Jell-O to a tree, for instance.” Anonymous
Ah, Spring. When a young man’s fancy certainly does not turn towards thoughts of child support, although it should. Case in point, Travis Henry, winner of the CSSA Flying Fickle Finger of Fate Award for 2009. If you’ve never heard of this guy, join the club. However, he is a very good football player, being an all pro NFL running back and signing a $25 million contract in 2007. He celebrated his exoneration on a failed marijuana drug test by smoking marijuana and getting suspended again, so you know he has a sense of humor. Although only thirty years old, he has fathered nine children by nine different women and he is obligated to pay over $170,000 per year in child support for his offspring. Recently he was jailed in Florida for failing to pay over $16,000 for one of these cherubs, and apparently Mr. Henry is now broke. He did tell the New York Times shortly before he was jailed, “I love all my kids.” Amen. He now has Shawn Kemp (seven children by six women) and Derrick Thomas (seven by five) beat by a landslide. Nice job, big guy. But compare Mr. Henry with David Bean who was made to pay lifetime maintenance of at least $150,000 and child support for one child of $85,000 per year on $1 million in yearly income, considerably less than Mr. Henry’s yearly take as a running back. That’s just fine in the Third Department. Bean v. Bean, setting the Gold Standard for the CSSA cap at $500,000 of combined income. One wonders what kind of numbers Mr. Henry would put up in the Third Department had one of the moms wandered into the jurisdiction.
By the way, did you get your latest issue of the Journal of the American Psychosomatic Society? No? There’s a nifty study there by a psychologist named Nancy Henry (no relation to Travis) and some others at the University of Utah that concludes that women are far more likely than men to have damage to their health in strained marriages. The study included people who had been married twenty years and found that both men and women claimed to be depressed in bad marriages, but only women showed negative physiological signs. One of the leading researchers concluded, “It's a little premature to say they would lower their risk of heart disease if they improved the tone and quality of their marriages - or dumped their husbands.” Geez, I could have told them that, but this is Reason Number 12,394 for the Empire State to pass no fault divorce if you ask me. But no one is asking.
And speaking of divorce reform, did you get the news of the two imbeciles in the West Virginia Legislature named John Ellum and Robert Schadler? They want to make it impossible to get maintenance (alimony) if you commit adultery. As Mr. Ellum said, “It has always bothered me that you can almost be rewarded in a way for cheating on your spouse.” You and you alone, John Bob, or is it Bob John?
Before we get to the latest from My Favorite Appellate Division, there was an interesting study of the “wage gap” between men and women based on the Census Bureau’s Current Population Survey for 2007. Suffice it to say men earn more than women for the same job, but we all know that. However, the “wage gap” is 22% among lawyers, with women earning about $71,500 and men earning about $91,600 per year. So, ladies, not only do we earn more than you, but apparently we make you sick in bad marriages. Time to rethink things here?
So, we all know that an attorney is supposed to sign a pleading, and this goes for Family Court Petitions. If you don’t believe me, take a gander at 22 NYCRR 130-1.1. So if the attorney doesn’t sign, is the petition to be dismissed? Of course not, but the Third Department had to reverse a Family Court judge who did just that in Green v. Tierney. Finally, a victory for resolution on the merits over technicality.
Are you entitled to paralegal fees in Family or Supreme Court? Of course not as the statues only refer to “counsel fee” applications. Sure, §8602(b) of the CPLR allows the recovery for paralegal fees in actions against the state, but Family Court Act §438, §536, §842(f) and Domestic Relations Law §237 make no mention of paralegal or other such fees. Therefore, one might conclude that since the legislature allowed such fees in one kind of action, but not in domestic relations matters, they never intended a recovery for paralegal fees in Family Court or Matrimonial Actions. Makes sense to me, but not to the Second Department, who recently held that a court can award paralegal fees in Family Court in the court’s discretion, although denied in this instance. Hubbard v. Clay. Makes you wonder.
Speaking of wondering, the Second Department gave us a doozy at the end of February in deciding that the standard for finding a violation of an Order of Protection under Article 8 of the Family Court Act is beyond a reasonable doubt! Rubackin v. Rubackin. They frankly acknowledged that this is contrary to their own prior decisions as well as the decisions of the other Appellate Divisions including our Favorite App Div. The language of this decision seems to imply that this might also be the standard in support violation matters as potential incarceration is the lynchpin for the standard, citing the 1911 Supreme Court case of the great labor activist Samuel Gompers v. Buck’s Stove and Range Co. Sounds like the Second Department is dying to grant leave to the Court of Appeals on this one. We’ll see.
Finally a few words on the Appellate Division, Third. I know that we have about a 30% chance of a reversal or modification in matrimonial appeals and obviously significantly less in criminal and prisoner appeals. But ladies and gentlemen, a day with 29 affirmances and one measly reversal, which occurred on March 5, 2009? Man, the stars must have been aligned on that day.
The Gov’nor finally appointed three new appellate justices last month, but many newspaper articles only commented on the skin color or sexual orientation of the jurists. Whatever happened to the judicial qualifications? Doesn’t that mean anything anymore to the hoi polloi? Is skin color or sexual orientation the only relevant issues anymore when it comes to judicial selection? Makes me wonder if I were ever appointed to anything, the headlines the next day would probably be, “Delusional, Demented, Narcissistic Blue Jay Fan wing nut appointed by the Gov.” Guilty as charged.
Sunday, February 08, 2009
Mystery and God Bless the Third Department
“In some of the poorer areas of the world it is sadly true that sex is the only luxury available to the ordinary man. Whether the ordinary woman also considers it a luxury is open to question.” Hugh Llewellan Keenleyside (1898-1992), Canadian Ambassador to Mexico
“The difference between the recession and divorce is that in the recession you lose half your assets and you still have your wife.” Anonymous, of course
"Just another of our many disagreements. He wants a no-fault divorce, whereas I would prefer to have the bastard crucified." J.B. Handelsman
You know, there are certain mysteries to the practice of law that can never be explained. I’m not talking about the Eleusian Mysteries here, just things that baffle me every time I think about them. As I have said, there is no reason why the Rensselaer County Courthouse has seven elevator buttons for a three story building. A hop, skip and a jump from said elevator is a picture of the Rensselaer County Bar Association for the year 2000. There among the smiling barristers in the center are the significant judges of the county bar, including the Watervliet City Court Judge. Last I looked, Watervliet was in Albany County. Go figure. Down the river at the lovely Albany County Courthouse on the third floor in the “Eagle Street Courtroom” is a fine array of the former Supreme Court Justices from Albany. The Albany County Bar Association provides these wonderful portraits so we don’t forget the fine state justices who taught us how to practice and serve our clients. There in the upper right is the Hon. Lawrence J. Kahn who served us well from 1980 to 1996. If you look really close, you will see his portrait is in front of the symbol of the United States District Court for the Northern District of New York. Why? Beats me. This makes about as much sense as the lovely spittoons that grace the feet of every judge in the Court of Appeals during oral argument. Somehow, I don’t think Victoria Graffeo is a Chattanooga Chew or a Southern Pride fan. I could be wrong. Then there’s the Unified Court System Website that had running news of the judges’ lawsuit for a pay raise, but recently switched to Governor Patterson’s remarks praising our new Chief Judge Jonathan Lippman. If that is old news to you, try the Russian small claims tutorial. Nothing in German or Portuguese (Brazilian) of course, but those Russkies can figure it out without speaking English. You can also see pictures of the swearing in ceremony of Court of Appeals Associate Judge Read in 2003, including a nice one with Judge Lippman. The subsequent swearings in of Judges Jones, Smith, Pigott and Lippman didn’t make it. Not to be outdone, the Third Department website still has Justice Carpinello hearing cases. Then there’s those courtroom flags. Didn’t anyone tell the OCA wonks that the American Flag is suppose to be higher than the New York State Flag and if on the same level never to the right of the American Flag? I guess not, at least in Schenectady and the new Justice Building in Albany. Then there’s the limousines and body guards for our judges. It seems a select few Supreme Court jurists, mostly deputy administrative judges, have a car, driver and sometimes a body guard courtesy of our bankrupt state. Best me why they rate such an expense, but what the hell are you going to go with $2 billion a year anyway? Give someone a raise? C’mon. If any of you can figure these mysteries out, send me a note. As for me, it’s more likely that I will solve the Inverse Galois Problem in my spare time.
If all this makes no sense to you, consider our beloved legislature who decided to torture us with a new little ditty known as Domestic Relations Law 240(1-a). Now, just for yucks, the court must conduct a review of the statewide registry of Orders of Protection and sex offenders before signing custody orders. Nice. And faster than you can say Jiminy Cricket OCA developed a form for just such matters, called gf (for Godforsaken)-40a. Can they make this process any more complicated? Of course it begs the question of what a court is supposed to do when finding such an Order of Protection after the parties place a stipulation on the record of the court. Punt? Of course, I wonder if any of the geniuses who passed this bill ever spent more than an hour in any Family Court. Stay tuned.
The Second Department recently gave us a strange decision on issues of res judicata and collateral estoppel, whatever they are. I seem to remember that if you could have asserted a claim but didn’t, and a matter goes to trial, you cannot later assert such a claim. You get but one bite of the apple, so to speak. Such was the decision in O’Connell v. Corcoran, where the Court of Appeals denied 35 years of the acquisition of marital assets just because the wife “could have” litigated equitable distribution in Vermont but did not do so since the Vermont court deferred to New York. The aforesaid Second Department used such a principle to deny a constructive trust lawsuit which “could have” been litigated at the time of the divorce action but wasn’t. So it seemed pretty strange that in Mohan v. Sharma they allowed a second shot at the grounds for divorce. In an August 17, 2006 divorce complaint, Mr. Mohan pleaded cruelty and constructive abandonment. When he was defeated on fault grounds, he sued again on an actual abandonment that allegedly occurred from June 1, 2005 for more than one year. Clearly this “could have” been pleaded in the earlier action, but nonetheless the Second Department holds this is NOT collateral estoppel or res judicata. So, if at first you don’t succeed, try, try again, even if the grounds occurred before the prior complaint. All’s fair in love and the Second Department.
Every once in a while, I am really proud of the Third Department. Such a moment came on January 22, 2009 in the form of an opinion on gay marriages in Lewis v. New York State Department of Civil Service. We have been waiting for some time to see if a gay or lesbian marriage sanctioned by another state or country will be recognized in New York or whether such marriages violate our public policy. With a whole slew of amicus briefs, you knew this was going to be a significant case. The Department of Civil Service announced it would recognize same sex marriages for purpose of benefits under the family health insurance provided by the State of New York as a benefit to its employees. That brought a lawsuit by Kenneth Lewis and other taxpayers to declare this policy “illegal, unconstitutional and an unlawful disbursement of taxpayer funds.” As for me, I rather my taxpayer funds were use for this rather than a limo, driver and bodyguard for some deputy judge in New York City. In any event, Judge McNamara in Albany County granted summary judgment to the Department of Civil Service and the Third Department affirmed. Currently Connecticut, Massachusetts and if, Jerry Brown has his way, California recognize such marriages, as opposed to civil unions as in Vermont. Clearly holding that public policy is not offended by such marriages, the majority held, “New York’s public policy, however, cannot be said to abhor same-sex marriages.” Two judges concurred for different more narrow reasons without reaching the public policy issue. Of course, the conclusion here is that same sex marriage means same sex divorce if there are no public policy impediments. Welcome to the Domestic Relations Law my gay and lesbian friends!
Happy Pi Day.
“The difference between the recession and divorce is that in the recession you lose half your assets and you still have your wife.” Anonymous, of course
"Just another of our many disagreements. He wants a no-fault divorce, whereas I would prefer to have the bastard crucified." J.B. Handelsman
You know, there are certain mysteries to the practice of law that can never be explained. I’m not talking about the Eleusian Mysteries here, just things that baffle me every time I think about them. As I have said, there is no reason why the Rensselaer County Courthouse has seven elevator buttons for a three story building. A hop, skip and a jump from said elevator is a picture of the Rensselaer County Bar Association for the year 2000. There among the smiling barristers in the center are the significant judges of the county bar, including the Watervliet City Court Judge. Last I looked, Watervliet was in Albany County. Go figure. Down the river at the lovely Albany County Courthouse on the third floor in the “Eagle Street Courtroom” is a fine array of the former Supreme Court Justices from Albany. The Albany County Bar Association provides these wonderful portraits so we don’t forget the fine state justices who taught us how to practice and serve our clients. There in the upper right is the Hon. Lawrence J. Kahn who served us well from 1980 to 1996. If you look really close, you will see his portrait is in front of the symbol of the United States District Court for the Northern District of New York. Why? Beats me. This makes about as much sense as the lovely spittoons that grace the feet of every judge in the Court of Appeals during oral argument. Somehow, I don’t think Victoria Graffeo is a Chattanooga Chew or a Southern Pride fan. I could be wrong. Then there’s the Unified Court System Website that had running news of the judges’ lawsuit for a pay raise, but recently switched to Governor Patterson’s remarks praising our new Chief Judge Jonathan Lippman. If that is old news to you, try the Russian small claims tutorial. Nothing in German or Portuguese (Brazilian) of course, but those Russkies can figure it out without speaking English. You can also see pictures of the swearing in ceremony of Court of Appeals Associate Judge Read in 2003, including a nice one with Judge Lippman. The subsequent swearings in of Judges Jones, Smith, Pigott and Lippman didn’t make it. Not to be outdone, the Third Department website still has Justice Carpinello hearing cases. Then there’s those courtroom flags. Didn’t anyone tell the OCA wonks that the American Flag is suppose to be higher than the New York State Flag and if on the same level never to the right of the American Flag? I guess not, at least in Schenectady and the new Justice Building in Albany. Then there’s the limousines and body guards for our judges. It seems a select few Supreme Court jurists, mostly deputy administrative judges, have a car, driver and sometimes a body guard courtesy of our bankrupt state. Best me why they rate such an expense, but what the hell are you going to go with $2 billion a year anyway? Give someone a raise? C’mon. If any of you can figure these mysteries out, send me a note. As for me, it’s more likely that I will solve the Inverse Galois Problem in my spare time.
If all this makes no sense to you, consider our beloved legislature who decided to torture us with a new little ditty known as Domestic Relations Law 240(1-a). Now, just for yucks, the court must conduct a review of the statewide registry of Orders of Protection and sex offenders before signing custody orders. Nice. And faster than you can say Jiminy Cricket OCA developed a form for just such matters, called gf (for Godforsaken)-40a. Can they make this process any more complicated? Of course it begs the question of what a court is supposed to do when finding such an Order of Protection after the parties place a stipulation on the record of the court. Punt? Of course, I wonder if any of the geniuses who passed this bill ever spent more than an hour in any Family Court. Stay tuned.
The Second Department recently gave us a strange decision on issues of res judicata and collateral estoppel, whatever they are. I seem to remember that if you could have asserted a claim but didn’t, and a matter goes to trial, you cannot later assert such a claim. You get but one bite of the apple, so to speak. Such was the decision in O’Connell v. Corcoran, where the Court of Appeals denied 35 years of the acquisition of marital assets just because the wife “could have” litigated equitable distribution in Vermont but did not do so since the Vermont court deferred to New York. The aforesaid Second Department used such a principle to deny a constructive trust lawsuit which “could have” been litigated at the time of the divorce action but wasn’t. So it seemed pretty strange that in Mohan v. Sharma they allowed a second shot at the grounds for divorce. In an August 17, 2006 divorce complaint, Mr. Mohan pleaded cruelty and constructive abandonment. When he was defeated on fault grounds, he sued again on an actual abandonment that allegedly occurred from June 1, 2005 for more than one year. Clearly this “could have” been pleaded in the earlier action, but nonetheless the Second Department holds this is NOT collateral estoppel or res judicata. So, if at first you don’t succeed, try, try again, even if the grounds occurred before the prior complaint. All’s fair in love and the Second Department.
Every once in a while, I am really proud of the Third Department. Such a moment came on January 22, 2009 in the form of an opinion on gay marriages in Lewis v. New York State Department of Civil Service. We have been waiting for some time to see if a gay or lesbian marriage sanctioned by another state or country will be recognized in New York or whether such marriages violate our public policy. With a whole slew of amicus briefs, you knew this was going to be a significant case. The Department of Civil Service announced it would recognize same sex marriages for purpose of benefits under the family health insurance provided by the State of New York as a benefit to its employees. That brought a lawsuit by Kenneth Lewis and other taxpayers to declare this policy “illegal, unconstitutional and an unlawful disbursement of taxpayer funds.” As for me, I rather my taxpayer funds were use for this rather than a limo, driver and bodyguard for some deputy judge in New York City. In any event, Judge McNamara in Albany County granted summary judgment to the Department of Civil Service and the Third Department affirmed. Currently Connecticut, Massachusetts and if, Jerry Brown has his way, California recognize such marriages, as opposed to civil unions as in Vermont. Clearly holding that public policy is not offended by such marriages, the majority held, “New York’s public policy, however, cannot be said to abhor same-sex marriages.” Two judges concurred for different more narrow reasons without reaching the public policy issue. Of course, the conclusion here is that same sex marriage means same sex divorce if there are no public policy impediments. Welcome to the Domestic Relations Law my gay and lesbian friends!
Happy Pi Day.
Sunday, January 18, 2009
Overzealous advocacy and Kidney Distributions
“Love is an exploding cigar we willingly smoke.” Lynda Barry (1953- )
“American husbands are the best in the world; no other husbands are so generous to their wives, or can be so easily divorced.” Elinor Glyn (1864-1943)
“The husband who wants a happy marriage should learn to keep his mouth shut and his checkbook open.” Groucho Marx (1890-1977)
And they say American entrepreneurship is dead. If you read this in time, you can get yourself to the Hilton Garden Inn in Austin Texas for the next Texas Divorce Bootcamp. United Airlines can get you there in about 6½ hours. A full day of learning for men only to teach you how to “plan, how to survive the initial assault of the Temporary Order hearings, how to devise a divorce strategy and how to win.” For a mere $250 including lunch, you can spend four hours learning about the wiles and tricks of those nefarious members of The Second Sex. So, if your practice seems to be lagging a little with the economy in the dumpster and all, and if the Legislature doesn’t seem to be progressing with gay marriage and it’s progeny, gay divorce, rent a room at the local Garden Inn and see who shows up for your own unique boot camp.
If you think that is crazy, how about a Divorce Party Planner? If you trundle on down to RevengeLady.com, you can get a copy of The Divorce Party Planner by Christine Gallagher, as well as lots of helpful advice, including the Top 10 Revenge Stories and a link to buy your very own “Don’t Get Mad, Get Even” license plate holder. Just in time for Valentine’s Day.
If all that man v. woman stuff is too much, how about a Divorce Expo, an egalitarian gathering of vendors and consumers for the recently and soon to be divorced. Sound crazy? One was held in Vienna in 2007, and several have been held in Brighton, England and Holland in 2008. One is being held at the Harbor Links Golf Course in Port Washington, New York on March 24 with hundreds of vendors of male enhancement pills, therapists, plastic surgeons and God knows what else. The possibilities are endless, so you may yet recover from Bernie Madoff’s defalcation of your Profit Sharing Plan.
Of course, that is just News of the Weird and really has no connection to the serious nature of matrimonial practice, as we all know. So what is new? How about the brand new, improved Rules of Professional Conduct, replacing the New York Code of Professional Responsibility and bringing New York in line with the ABA Model Rules of Professional Conduct. This hilarious tome goes into effect on April Fools Day, and defines “sexual relations”, among other things, as “touching the intimate part of the lawyer.” That’s a new one on me, and it sure is nice to know that someone thinks we have intimate parts. Of course, “intimate part” is not defined, but the new code clearly states that your law partner can have all the sex he or she wants with your client, intimate parts and all, and you cannot be disciplined if said partner does not participate in representing the client. What a relief!
Enough of that stuff. Time for a cold shower and a dose of reality, courtesy of the Perspicacious Prophets of the Empire State Plaza. Is there anything more execrable than someone trying to discharge your hard earned fees in bankruptcy? How about an opposing spouse who tries to skate on his obligation to pay your fees awarded in a custody proceeding in Family Court? Mom said it could not be discharged as a “domestic support obligation” defined in the Bankruptcy Law, whatever that is. Dad argued that legal fees are not support and therefore dischargeable like any Joe the Plumber’s bill. Giving a broad interpretation to the term “in the nature of support”, the Third Department thankfully held that legal fees cannot be discharged. Ross v. Sperow decided, appropriately enough on Christmas Eve. A tip of the hat to Justice Malone for that nice Christmas present to us all.
Until now, courts have been pretty strict with the filing requirements for Objections to an Order of a hearing examiner, dismissing such appeals for late filing or for failure to file the affidavit of service with the objections. The Third Department said just that in Monahan v. Hartka, 17 A.D.3rd 728 (3rd Dept., 2005) holding that you cannot even move for permission to extend the time limit requirements of Family Court Act §439(e). Now comes some wiggle room courtesy of Latimer v. Hartkin where the dismissal of Objections filed one day late was found to be an abuse of discretion. If the affidavit of service is not timely filed with the Objections, the Third Department will also excuse that defect. Rossiter v. Rossiter, 56 A.D.3rd 1011 (3rd Dept., 2008), which is contrary to a line of cases from those strict constructionists in the Second Department.
Sometimes, one can find gems in the footnotes, those little bits of dicta that sometimes explain the court’s thought process, even if not part of the ultimate determination. Such was the case in McGovern v. McGovern, a custody modification case involving a fourteen year old boy. In footnote 2, Justice Spain writing for the unanimous majority, lamented the denial of the Law Guardian’s request to permit the child to testify in camera in a Lincoln hearing without the parents being present. Such a procedure would have “limited the harm” of a child confronting his parents in open court. While there is some conflict among Family Court judges as to the propriety of resolving factual disputes on the basis of testimony not subject to cross examination, the Third Department seems to be begging for some limited inquiry into the child’s preferences to avoid open court testimony. Smart trial judges try to get consent to this process, as any parent who insists on his or her child’s testimony is only demonstrating parental deficits. It was good of the Third Department to point this out, although not directly asked to do so. We tea leaf readers of the appellate courts always enjoy the thought.
A comment on the fate of Barry L. Goldstein, a fellow practitioner who seems to have lost his way and ultimately his license to practice for five years for the overzealous representation of his client in a child custody matter. Matter of Goldstein decided in the waning hours of 2008 by the Second Department. Counselor Goldstein represented Yevgenia Shockome in a child custody matter that was contested in Dutchess Family Court before Judge Damien Amodeo and then in the Second Department and then in the United States District Court for the Southern District of New York in Matter of Shockome v. County of Dutchess. When she was held in contempt of court and imprisoned for custody visitation interference, he posted an article on the Battered Mothers Custody Conference website that is in part still available on the internet. Calling Judge Amodeo a Bad Judge, giving out his e-mail and phone number and calling his decision bizarre, giving the children to an abuser, and attacking and berating the mother. He then submitted an affidavit in an Order to Show Cause with such useful allegations as, “Clearly something is wrong with the system in Dutchess...there is no reason that Dutchess County has to remain on the side of the abuser.” There were other allegations of financial misconduct, but one wonders where the line is to be drawn between free speech, opinion and overzealous representation. In many ways, bad cases make bad law, and the sanctioning of Counselor Goldstein may be used to seek restrictions on other zealous advocates. For his part, Mr. Goldstein is unrepentant, writing in a blog following his suspension, “In their desire to retaliate against me for exposing an abusive judge they have placed the lives of battered women in danger.” I think we have not heard the last of this controversy.
Finally, because you asked, a thought about Dr. Richard Batista, a vascular surgeon who donated his kidney to his wife, only to have her be the recipient of the donations of her physical therapist. Dr. B is seeking the return of the kidney, which would kill her, or its value ($1.5 million) in equitable distribution. Hell, if you can get the value of an opera singer’s career, or a congressional career, why not give it a try? Stranger ideas have stuck like boiled pasta to the wall of matrimonial judicial excess. Reminds me of a case I had a few years ago involving breast implants that led to the filing of an adultery complaint shortly after implantation. Not to be misunderestimated, I requested the equitable distribution of one of the two, and I was promptly rebuked by opposing counsel. I then requested a “Physical Examination” under CPLR Rule 3121. Counsel politely declined, so I suggested temporary visitation under Domestic Relations Law §240(1) (a). The phone call was terminated. No sense of humor, that guy.
Happy Lupercalia and Canadian Flag Day
“American husbands are the best in the world; no other husbands are so generous to their wives, or can be so easily divorced.” Elinor Glyn (1864-1943)
“The husband who wants a happy marriage should learn to keep his mouth shut and his checkbook open.” Groucho Marx (1890-1977)
And they say American entrepreneurship is dead. If you read this in time, you can get yourself to the Hilton Garden Inn in Austin Texas for the next Texas Divorce Bootcamp. United Airlines can get you there in about 6½ hours. A full day of learning for men only to teach you how to “plan, how to survive the initial assault of the Temporary Order hearings, how to devise a divorce strategy and how to win.” For a mere $250 including lunch, you can spend four hours learning about the wiles and tricks of those nefarious members of The Second Sex. So, if your practice seems to be lagging a little with the economy in the dumpster and all, and if the Legislature doesn’t seem to be progressing with gay marriage and it’s progeny, gay divorce, rent a room at the local Garden Inn and see who shows up for your own unique boot camp.
If you think that is crazy, how about a Divorce Party Planner? If you trundle on down to RevengeLady.com, you can get a copy of The Divorce Party Planner by Christine Gallagher, as well as lots of helpful advice, including the Top 10 Revenge Stories and a link to buy your very own “Don’t Get Mad, Get Even” license plate holder. Just in time for Valentine’s Day.
If all that man v. woman stuff is too much, how about a Divorce Expo, an egalitarian gathering of vendors and consumers for the recently and soon to be divorced. Sound crazy? One was held in Vienna in 2007, and several have been held in Brighton, England and Holland in 2008. One is being held at the Harbor Links Golf Course in Port Washington, New York on March 24 with hundreds of vendors of male enhancement pills, therapists, plastic surgeons and God knows what else. The possibilities are endless, so you may yet recover from Bernie Madoff’s defalcation of your Profit Sharing Plan.
Of course, that is just News of the Weird and really has no connection to the serious nature of matrimonial practice, as we all know. So what is new? How about the brand new, improved Rules of Professional Conduct, replacing the New York Code of Professional Responsibility and bringing New York in line with the ABA Model Rules of Professional Conduct. This hilarious tome goes into effect on April Fools Day, and defines “sexual relations”, among other things, as “touching the intimate part of the lawyer.” That’s a new one on me, and it sure is nice to know that someone thinks we have intimate parts. Of course, “intimate part” is not defined, but the new code clearly states that your law partner can have all the sex he or she wants with your client, intimate parts and all, and you cannot be disciplined if said partner does not participate in representing the client. What a relief!
Enough of that stuff. Time for a cold shower and a dose of reality, courtesy of the Perspicacious Prophets of the Empire State Plaza. Is there anything more execrable than someone trying to discharge your hard earned fees in bankruptcy? How about an opposing spouse who tries to skate on his obligation to pay your fees awarded in a custody proceeding in Family Court? Mom said it could not be discharged as a “domestic support obligation” defined in the Bankruptcy Law, whatever that is. Dad argued that legal fees are not support and therefore dischargeable like any Joe the Plumber’s bill. Giving a broad interpretation to the term “in the nature of support”, the Third Department thankfully held that legal fees cannot be discharged. Ross v. Sperow decided, appropriately enough on Christmas Eve. A tip of the hat to Justice Malone for that nice Christmas present to us all.
Until now, courts have been pretty strict with the filing requirements for Objections to an Order of a hearing examiner, dismissing such appeals for late filing or for failure to file the affidavit of service with the objections. The Third Department said just that in Monahan v. Hartka, 17 A.D.3rd 728 (3rd Dept., 2005) holding that you cannot even move for permission to extend the time limit requirements of Family Court Act §439(e). Now comes some wiggle room courtesy of Latimer v. Hartkin where the dismissal of Objections filed one day late was found to be an abuse of discretion. If the affidavit of service is not timely filed with the Objections, the Third Department will also excuse that defect. Rossiter v. Rossiter, 56 A.D.3rd 1011 (3rd Dept., 2008), which is contrary to a line of cases from those strict constructionists in the Second Department.
Sometimes, one can find gems in the footnotes, those little bits of dicta that sometimes explain the court’s thought process, even if not part of the ultimate determination. Such was the case in McGovern v. McGovern, a custody modification case involving a fourteen year old boy. In footnote 2, Justice Spain writing for the unanimous majority, lamented the denial of the Law Guardian’s request to permit the child to testify in camera in a Lincoln hearing without the parents being present. Such a procedure would have “limited the harm” of a child confronting his parents in open court. While there is some conflict among Family Court judges as to the propriety of resolving factual disputes on the basis of testimony not subject to cross examination, the Third Department seems to be begging for some limited inquiry into the child’s preferences to avoid open court testimony. Smart trial judges try to get consent to this process, as any parent who insists on his or her child’s testimony is only demonstrating parental deficits. It was good of the Third Department to point this out, although not directly asked to do so. We tea leaf readers of the appellate courts always enjoy the thought.
A comment on the fate of Barry L. Goldstein, a fellow practitioner who seems to have lost his way and ultimately his license to practice for five years for the overzealous representation of his client in a child custody matter. Matter of Goldstein decided in the waning hours of 2008 by the Second Department. Counselor Goldstein represented Yevgenia Shockome in a child custody matter that was contested in Dutchess Family Court before Judge Damien Amodeo and then in the Second Department and then in the United States District Court for the Southern District of New York in Matter of Shockome v. County of Dutchess. When she was held in contempt of court and imprisoned for custody visitation interference, he posted an article on the Battered Mothers Custody Conference website that is in part still available on the internet. Calling Judge Amodeo a Bad Judge, giving out his e-mail and phone number and calling his decision bizarre, giving the children to an abuser, and attacking and berating the mother. He then submitted an affidavit in an Order to Show Cause with such useful allegations as, “Clearly something is wrong with the system in Dutchess...there is no reason that Dutchess County has to remain on the side of the abuser.” There were other allegations of financial misconduct, but one wonders where the line is to be drawn between free speech, opinion and overzealous representation. In many ways, bad cases make bad law, and the sanctioning of Counselor Goldstein may be used to seek restrictions on other zealous advocates. For his part, Mr. Goldstein is unrepentant, writing in a blog following his suspension, “In their desire to retaliate against me for exposing an abusive judge they have placed the lives of battered women in danger.” I think we have not heard the last of this controversy.
Finally, because you asked, a thought about Dr. Richard Batista, a vascular surgeon who donated his kidney to his wife, only to have her be the recipient of the donations of her physical therapist. Dr. B is seeking the return of the kidney, which would kill her, or its value ($1.5 million) in equitable distribution. Hell, if you can get the value of an opera singer’s career, or a congressional career, why not give it a try? Stranger ideas have stuck like boiled pasta to the wall of matrimonial judicial excess. Reminds me of a case I had a few years ago involving breast implants that led to the filing of an adultery complaint shortly after implantation. Not to be misunderestimated, I requested the equitable distribution of one of the two, and I was promptly rebuked by opposing counsel. I then requested a “Physical Examination” under CPLR Rule 3121. Counsel politely declined, so I suggested temporary visitation under Domestic Relations Law §240(1) (a). The phone call was terminated. No sense of humor, that guy.
Happy Lupercalia and Canadian Flag Day
Sunday, December 14, 2008
The Hulkster and Brittish Promiscuity
“A man can sleep around, no questions asked, but if a woman makes nineteen or twenty mistakes she's a tramp.” Joan Rivers (1935-)
“I don't believe man is woman's natural enemy. Perhaps his lawyer is.“ Shana Alexander
“You know what I did before I married? Anything I wanted to.” Henny Youngman
I have to hand it to the Hulkster’s wife, Linda Bollea. She not only froze $7 million of his assets, but got just enough unfrozen to hold body and soul together for her divorce lawyer: $400,000. The lawyers and accountants had received $850,000 within the past year, but that was not nearly enough so they got a nice bailout just in time for the New Year. After all, she couldn’t be expected to pony up for her own fees on the $40,000 per month she was receiving in temporary alimony. And just what do you get for that money? A lawyer named A.J. Barranco who tells the world such nonsense as, “This case will be tried in court and we shall see a Smackdown!" What a genius. It’s no wonder The American Hero Kurt Angle settled his divorce easily last October.
When oh when do one’s hands stop being dirty? When all the Borax is used up, or do they ever get clean? “Out damn’d spot. Out I say.” As we all know, divorce is an equitable proceeding, and one cannot seek equity if one has unclean hands. For example, when a married guy gave a $60k engagement ring to some trollop, she got to break the engagement and keep the ring in spite of case law and statutory law to the contrary. Why? Because you cannot use the courts to enforce such an immoral promise. Lowe v. Quinn.[1] So what if a guy lies on his financial statement in his prior divorce just to cheat Wifey number one so he can share the fruits of his marriage with Wifey number 2? When divorce Numero Secundo goes sour, can Wifey number two use the “unclean hands” principle to prevent the husband from making premarital claims? After all, he swore he owned nothing in his prior divorce. According to the First Department, the spot came out, since hubby only just tried to cheat Wifey number one when he lied, and not Wifey number two. Therefore he can make inconsistent claims in this divorce and he can make a separate property claim. Why not? Rachimi v. Rachimi.[2]
Maybe it is just me, but many of the access (visitation) issues seem trivial beyond belief, and really have nothing to do with best interests of children. No one can tell me that it is better for children to return home at 6:00 p.m. on a Sunday versus 8:00 p.m., or that a child is harmed by going to a parent’s home at noon on Christmas versus 10:00 a.m. After all, Guy Richie and Madonna fought for Christmas access just last month in London. It therefore seems even sillier when an appellate court takes up these issues, as the Second Department just did in Gerson v. Gerson.[3] It seems mom was Catholic and Dad was Jewish, but so were my parents. The trial court affirmed a four year old stipulation giving specific weekend access, but directed that if Easter fell on Dad’s weekend, he had to bring the kiddies to church. They were after all Roman Catholic. That was not good enough, so mom appealed and the Second Department reversed, giving her access every Easter Sunday from 9:00 a.m. until 6:00 p.m. Being the jaundiced guy I am, I couldn’t help but notice that the attorney for mom was named Feldman, dad’s was named Cohen and three of the four judges deciding the matter were named Spolzino, Covello and Angiolillo. Couldn’t be, could it? Of course not.
There is a movement afoot to ignore disclosure requests in Family Court. Some people now take the position that a Family Court petition is a “special proceeding” that requires “leave of court” for disclosure. See CPLR §408. The Third Department recently decided a case that implies that leave of court is required except in certain cases. Matter of John H[4] was an Article 10-A permanency placement proceeding and the Third Department granted leave to hear this issue before a final determination. The law guardian sought to take the deposition of the case worker and the Department of Social Services of Greene County objected, claiming leave of court was required. The Third Department allowed the disclosure but only because there is a special section of Article 10 that states that the disclosure provisions of Article 31 of the CPLR relating to disclosure apply to Article 10 proceedings. Family Court Act §1038(d). Does it therefore follow that there is no disclosure absent court order in custody or support matters? That would be my conclusion, but the issue has not been directly addressed, at least not yet. I’m hanging my hat on this language from the decision: “Clearly, the specific provisions of Family Court Act article 10 override the general discovery limitations placed on special proceedings under CPLR 408.” Why say that if it didn’t matter?
Enough of these weighty issues. It is a new year, after all, and just in time is the news that Great Britain leads the world in promiscuity among major Western countries. Blimey.[5] Just beating out Germany and the Dutch, the Brits can finally overcome their recent World Cup failures with this Légion d'Honneur. We came in 6th, but if you count all the countries surveyed Finland beats them all. What else are you going to do if the sun doesn’t set for 73 consecutive days? Snowshoe? God bless the International Sexuality Description Project of Bradley University of Peoria, Illinois for giving us that gem.
Finally a word about another lost colleague, Howard Dimock “Farmer” Clayton who died last month. He was admitted to practice law in my birth year, and was a fine trial lawyer with Donohue and Bohl and later Bohl, Clayton, Komar and Della Rocca during my formative years. Always a gentleman, loved by juries and practitioners alike, and one of the few who could get away with wearing a bow tie to work, which he did every day. What more could one ask for in a life in law?
Happy New Year, or as they say in Finland, Onnellista uutta vuotta
[1] 27 N.Y.2nd 397 (1971)
[2] __ A.D.34d __ (1st Dept., December 11, 2008).
[3] __ A.D.3rd ___ (2nd Dept., December 9, 2008).
[4] __ A.D.3rd ___ ( November 20, 2008)
[5] You can read the whole report here:
http://www.bradley.edu/academics/las/psy/facstaff/schmitt/documents/Schmitt-BBS-2005-Sociosexuality-ALL_000.pdf
“I don't believe man is woman's natural enemy. Perhaps his lawyer is.“ Shana Alexander
“You know what I did before I married? Anything I wanted to.” Henny Youngman
I have to hand it to the Hulkster’s wife, Linda Bollea. She not only froze $7 million of his assets, but got just enough unfrozen to hold body and soul together for her divorce lawyer: $400,000. The lawyers and accountants had received $850,000 within the past year, but that was not nearly enough so they got a nice bailout just in time for the New Year. After all, she couldn’t be expected to pony up for her own fees on the $40,000 per month she was receiving in temporary alimony. And just what do you get for that money? A lawyer named A.J. Barranco who tells the world such nonsense as, “This case will be tried in court and we shall see a Smackdown!" What a genius. It’s no wonder The American Hero Kurt Angle settled his divorce easily last October.
When oh when do one’s hands stop being dirty? When all the Borax is used up, or do they ever get clean? “Out damn’d spot. Out I say.” As we all know, divorce is an equitable proceeding, and one cannot seek equity if one has unclean hands. For example, when a married guy gave a $60k engagement ring to some trollop, she got to break the engagement and keep the ring in spite of case law and statutory law to the contrary. Why? Because you cannot use the courts to enforce such an immoral promise. Lowe v. Quinn.[1] So what if a guy lies on his financial statement in his prior divorce just to cheat Wifey number one so he can share the fruits of his marriage with Wifey number 2? When divorce Numero Secundo goes sour, can Wifey number two use the “unclean hands” principle to prevent the husband from making premarital claims? After all, he swore he owned nothing in his prior divorce. According to the First Department, the spot came out, since hubby only just tried to cheat Wifey number one when he lied, and not Wifey number two. Therefore he can make inconsistent claims in this divorce and he can make a separate property claim. Why not? Rachimi v. Rachimi.[2]
Maybe it is just me, but many of the access (visitation) issues seem trivial beyond belief, and really have nothing to do with best interests of children. No one can tell me that it is better for children to return home at 6:00 p.m. on a Sunday versus 8:00 p.m., or that a child is harmed by going to a parent’s home at noon on Christmas versus 10:00 a.m. After all, Guy Richie and Madonna fought for Christmas access just last month in London. It therefore seems even sillier when an appellate court takes up these issues, as the Second Department just did in Gerson v. Gerson.[3] It seems mom was Catholic and Dad was Jewish, but so were my parents. The trial court affirmed a four year old stipulation giving specific weekend access, but directed that if Easter fell on Dad’s weekend, he had to bring the kiddies to church. They were after all Roman Catholic. That was not good enough, so mom appealed and the Second Department reversed, giving her access every Easter Sunday from 9:00 a.m. until 6:00 p.m. Being the jaundiced guy I am, I couldn’t help but notice that the attorney for mom was named Feldman, dad’s was named Cohen and three of the four judges deciding the matter were named Spolzino, Covello and Angiolillo. Couldn’t be, could it? Of course not.
There is a movement afoot to ignore disclosure requests in Family Court. Some people now take the position that a Family Court petition is a “special proceeding” that requires “leave of court” for disclosure. See CPLR §408. The Third Department recently decided a case that implies that leave of court is required except in certain cases. Matter of John H[4] was an Article 10-A permanency placement proceeding and the Third Department granted leave to hear this issue before a final determination. The law guardian sought to take the deposition of the case worker and the Department of Social Services of Greene County objected, claiming leave of court was required. The Third Department allowed the disclosure but only because there is a special section of Article 10 that states that the disclosure provisions of Article 31 of the CPLR relating to disclosure apply to Article 10 proceedings. Family Court Act §1038(d). Does it therefore follow that there is no disclosure absent court order in custody or support matters? That would be my conclusion, but the issue has not been directly addressed, at least not yet. I’m hanging my hat on this language from the decision: “Clearly, the specific provisions of Family Court Act article 10 override the general discovery limitations placed on special proceedings under CPLR 408.” Why say that if it didn’t matter?
Enough of these weighty issues. It is a new year, after all, and just in time is the news that Great Britain leads the world in promiscuity among major Western countries. Blimey.[5] Just beating out Germany and the Dutch, the Brits can finally overcome their recent World Cup failures with this Légion d'Honneur. We came in 6th, but if you count all the countries surveyed Finland beats them all. What else are you going to do if the sun doesn’t set for 73 consecutive days? Snowshoe? God bless the International Sexuality Description Project of Bradley University of Peoria, Illinois for giving us that gem.
Finally a word about another lost colleague, Howard Dimock “Farmer” Clayton who died last month. He was admitted to practice law in my birth year, and was a fine trial lawyer with Donohue and Bohl and later Bohl, Clayton, Komar and Della Rocca during my formative years. Always a gentleman, loved by juries and practitioners alike, and one of the few who could get away with wearing a bow tie to work, which he did every day. What more could one ask for in a life in law?
Happy New Year, or as they say in Finland, Onnellista uutta vuotta
[1] 27 N.Y.2nd 397 (1971)
[2] __ A.D.34d __ (1st Dept., December 11, 2008).
[3] __ A.D.3rd ___ (2nd Dept., December 9, 2008).
[4] __ A.D.3rd ___ ( November 20, 2008)
[5] You can read the whole report here:
http://www.bradley.edu/academics/las/psy/facstaff/schmitt/documents/Schmitt-BBS-2005-Sociosexuality-ALL_000.pdf
Saturday, November 22, 2008
Is You Is or Is You Ain't My Baby
"If she says it's over, it's over, but like I've said before, she is the love of my life, and I expected to spend the rest of my life with her." Hugh Hefner, 2008. Yeah, right.
“I'd marry again if I found a man who had fifteen million dollars, would sign over half to me, and guarantee that he'd be dead within a year.” Bette Davis
“Woman inspires us to great things, and prevents us from achieving them.” Alexander Dumas
Drum roll please. Which state has the highest divorce rate in the country? Nevada of course, with 7.7 divorces per 1,000 people in 2005. Of course that may be a product of its relatively short residency requirement, ninety days, and of course the ease of no-fault grounds. After all, if you really can’t wait, why not spend a few months at the craps tables or pumping those one armed bandits full of quarters? So, who is number two? Arkansas of all places followed by Palinville aka Alasker, and we know that no one goes there for the local culture just to get divorced. After all, both places have mosquitoes as big as your head. Lori Holyfield, a professor in the Department of Sociology and Criminal Justice at the esteemed University of Arkansas speculates that the causes are “asset poverty”[1] and lack of education. However, that does not explain why education rich Massachusetts and Connecticut round out the top five. More likely is the prevalence of a high marriage rate, especially among younger people. However, even if business gets a little slow in our firm, you can bet that I will NOT be going to Arkansas to bolster my 401(k).
Speaking of young marriages, poor Peaches Geldof is getting divorced after only 96 days, saying, “It’s over. I just don’t fancy him anymore.” Duh. Which makes me wonder about the shortest divorces, with numero uno coming in the form of Friedman fave Zsa Zsa Gabor, who married Mexican lawyer turned actor Felipe de Alba in1952 for exactly one day. It seems Zsa Zsa was still married at the time to Michael O’Hara, but who’s counting. Tied at 24 hours are Robin Givens and Svetozar Marinkovic followed by Mother of the Year Britney Spears and Jason Alexander at two days. I love these people. They make Carmen Electra and Dennis Rodman seem like icons of marital stability.
Well enough of this trivial stuff. Did you see that South Korea’s Constitutional Court just upheld a 55 year old law criminalizing adultery? Actress Ok So-Ri has tried to get the law overturned since she admitted having an affair with a pop singer. She claims her marriage was empty and loveless. Can you believe those moronic, vacuous people still believe you can be prosecuted for having sex with another person while married? Oh wait.[2]
Remember Louis Jordan? In 1944, he wrote a great song, “Is You Is or Is You Ain’t My Baby?” That sums up the strange and delightful matter of Linda and Lawrence Graev, two former lovebirds who were divorced in 1997 and thereafter engaged in a roller coaster trip to determine whether the word “cohabitation” is or ain’t ambiguous. By a minority of the judges who addressed this issue, it was conclusively determined that it is ambiguous. How can you beat that? The Graevs settled their 24 year marriage by agreement for Lawrence to pay Linda $10,000 per month maintenance unless Linda “cohabited with an unrelated adult for a period of sixty (60) substantially consecutive days” or August 10, 2009, whichever comes first. With so much bling at issue, Lawrence hired a slew of gumshoes to determine if “maybe my baby found somebody new.” In the summer of 2004, they discovered that Linda was living in her summer home with MP, a man whose identity is kept secret in the decisions for obvious reasons, infra. It seems MP lived at Linda’s home for all 60 days but Linda said their relationship was platonic since MP, well, couldn’t perform anymore and anyway she had lost interest in sex.[3] In determining that the term cohabiting is not ambiguous, the trial court found that Linda had not “cohabited” with MP within the meaning of the agreement, especially since MP had his own home, paid none of Linda’s shelter expenses and the United States Postal Service felt that he lived elsewhere. The First Department agreed, but a two judge dissent argued that the unambiguous language required the cessation of maintenance.[4] A two judge dissent is music to my ears as it means an automatic appeal to the Court of Appeals.[5] Last month in a 4-3 decision, it was determined that the term is indeed ambiguous and the case was sent back for a new trial which would include proof of the parties’ intent at the signing of the agreement.[6] Justice Graffeo writing for the dissenters Smith and Pigott, would have let Mr. Graev off the hook because after all living a with a guy you love for 60 days is enough in anyone’s book, except of course for four Court of Appeals judges (Read, Kaye, Ciparek and Jones). So, let’s see. The trial judge and all five Appellate Division justices and three Court of appeals judges held that cohabitation is not an ambiguous term. That would be nine judges. And four judges on the Court of Appeals held that it is ambiguous. So what is the result? Ambiguous of course, and back we go for another trial. I must say, Mr. Graev came closer than most men to a victory in the Court of Appeals. So, “is my baby still my baby too”? Stay tuned.
Speaking of ambiguity, the First Department terminated a husband’s use of a vacation home in a settlement agreement because of his violation of the molestation clause. In Weiner v. Weiner,[7] they deviated from the long line of cases holding that this is a separate clause that does not vitiate the rights and obligations of the rest of an agreement. They did so “under the particular circumstances of this case” invoking equitable principles. And just what were those particular circumstances? Don’t ask, as this is the First Department and they do not explain anything for our benefit. One can tell they are already missing the reasoned counsel of their former colleagues Kavanaugh and Malone, and no, we’re not sending them back.
The Third Department gave us a nice enhanced earnings case justifying a zero award for an engineering degree in a long term marriage for two reasons. In Evans v. Evans,[8] the aforesaid Justice Kavanaugh writing for a unanimous court upheld that an expert determination that the degree did not enhance earnings because the engineer could have attained his job without the degree as “whatever promotions defendant obtained during his employment were likely the product of his professional competence and would have occurred even if defendant had not obtained the degree.” Damned if I know how any accountant could come to that opinion as it seems a factual matter for the trial court, but that opinion was credited by the trial court and affirmed. Second, the Third Department denied any distribution of the degree even if it had a value as the wife’s contributions “while significant, can be seen more as overall contributions to the marriage rather than an additional effort to support defendant in obtaining his license.” This was a nineteen year marriage with two children, one of whom has special needs. So, now we at least have some colorable argument for a minimal or no distribution in these infernal enhanced earnings cases thanks to the Savants of State Street. The maintenance award was set at $1,000 per month until social security eligibility on the husband’s income of $93,500 and the wife’s income of $17,000. This was about 15% of the difference.
Finally thanks to the Second Department for answering that burning question, “Can a court fine a father $250 a day as additional child support for each day of missed visitation?” No, especially if no one asks for it. Papandrea v. Pallan[9]
Happy Holidays and Prosit Neujahr, y’all.
Michael the Divorce Lawyer
[1] A condition where if you sold everything you own, you would still be in debt, apparently quite prevalent in The Natural State.
[2] Penal Law §255.17
[3] She did admit that she and MP had done the Humpty Dance from January to March of 2003, but since then it was just platonic.
[4] Graev v. Graev, 46 A.D.3rd445 (1st Dept., 2007)
[5] CPLR §5601(a)
[6] Graev v. Graev, __ Ny.Y.3rd __ (October 21, 2008).
[7] __ A.D.3rd __ (1st Dept., November 13, 2008).
[8] __ A.D.3rd __ (3rd dept., 2008).
[9] __ A.D.3rd __ (2nd Dept., November 13, 2008).
“I'd marry again if I found a man who had fifteen million dollars, would sign over half to me, and guarantee that he'd be dead within a year.” Bette Davis
“Woman inspires us to great things, and prevents us from achieving them.” Alexander Dumas
Drum roll please. Which state has the highest divorce rate in the country? Nevada of course, with 7.7 divorces per 1,000 people in 2005. Of course that may be a product of its relatively short residency requirement, ninety days, and of course the ease of no-fault grounds. After all, if you really can’t wait, why not spend a few months at the craps tables or pumping those one armed bandits full of quarters? So, who is number two? Arkansas of all places followed by Palinville aka Alasker, and we know that no one goes there for the local culture just to get divorced. After all, both places have mosquitoes as big as your head. Lori Holyfield, a professor in the Department of Sociology and Criminal Justice at the esteemed University of Arkansas speculates that the causes are “asset poverty”[1] and lack of education. However, that does not explain why education rich Massachusetts and Connecticut round out the top five. More likely is the prevalence of a high marriage rate, especially among younger people. However, even if business gets a little slow in our firm, you can bet that I will NOT be going to Arkansas to bolster my 401(k).
Speaking of young marriages, poor Peaches Geldof is getting divorced after only 96 days, saying, “It’s over. I just don’t fancy him anymore.” Duh. Which makes me wonder about the shortest divorces, with numero uno coming in the form of Friedman fave Zsa Zsa Gabor, who married Mexican lawyer turned actor Felipe de Alba in1952 for exactly one day. It seems Zsa Zsa was still married at the time to Michael O’Hara, but who’s counting. Tied at 24 hours are Robin Givens and Svetozar Marinkovic followed by Mother of the Year Britney Spears and Jason Alexander at two days. I love these people. They make Carmen Electra and Dennis Rodman seem like icons of marital stability.
Well enough of this trivial stuff. Did you see that South Korea’s Constitutional Court just upheld a 55 year old law criminalizing adultery? Actress Ok So-Ri has tried to get the law overturned since she admitted having an affair with a pop singer. She claims her marriage was empty and loveless. Can you believe those moronic, vacuous people still believe you can be prosecuted for having sex with another person while married? Oh wait.[2]
Remember Louis Jordan? In 1944, he wrote a great song, “Is You Is or Is You Ain’t My Baby?” That sums up the strange and delightful matter of Linda and Lawrence Graev, two former lovebirds who were divorced in 1997 and thereafter engaged in a roller coaster trip to determine whether the word “cohabitation” is or ain’t ambiguous. By a minority of the judges who addressed this issue, it was conclusively determined that it is ambiguous. How can you beat that? The Graevs settled their 24 year marriage by agreement for Lawrence to pay Linda $10,000 per month maintenance unless Linda “cohabited with an unrelated adult for a period of sixty (60) substantially consecutive days” or August 10, 2009, whichever comes first. With so much bling at issue, Lawrence hired a slew of gumshoes to determine if “maybe my baby found somebody new.” In the summer of 2004, they discovered that Linda was living in her summer home with MP, a man whose identity is kept secret in the decisions for obvious reasons, infra. It seems MP lived at Linda’s home for all 60 days but Linda said their relationship was platonic since MP, well, couldn’t perform anymore and anyway she had lost interest in sex.[3] In determining that the term cohabiting is not ambiguous, the trial court found that Linda had not “cohabited” with MP within the meaning of the agreement, especially since MP had his own home, paid none of Linda’s shelter expenses and the United States Postal Service felt that he lived elsewhere. The First Department agreed, but a two judge dissent argued that the unambiguous language required the cessation of maintenance.[4] A two judge dissent is music to my ears as it means an automatic appeal to the Court of Appeals.[5] Last month in a 4-3 decision, it was determined that the term is indeed ambiguous and the case was sent back for a new trial which would include proof of the parties’ intent at the signing of the agreement.[6] Justice Graffeo writing for the dissenters Smith and Pigott, would have let Mr. Graev off the hook because after all living a with a guy you love for 60 days is enough in anyone’s book, except of course for four Court of Appeals judges (Read, Kaye, Ciparek and Jones). So, let’s see. The trial judge and all five Appellate Division justices and three Court of appeals judges held that cohabitation is not an ambiguous term. That would be nine judges. And four judges on the Court of Appeals held that it is ambiguous. So what is the result? Ambiguous of course, and back we go for another trial. I must say, Mr. Graev came closer than most men to a victory in the Court of Appeals. So, “is my baby still my baby too”? Stay tuned.
Speaking of ambiguity, the First Department terminated a husband’s use of a vacation home in a settlement agreement because of his violation of the molestation clause. In Weiner v. Weiner,[7] they deviated from the long line of cases holding that this is a separate clause that does not vitiate the rights and obligations of the rest of an agreement. They did so “under the particular circumstances of this case” invoking equitable principles. And just what were those particular circumstances? Don’t ask, as this is the First Department and they do not explain anything for our benefit. One can tell they are already missing the reasoned counsel of their former colleagues Kavanaugh and Malone, and no, we’re not sending them back.
The Third Department gave us a nice enhanced earnings case justifying a zero award for an engineering degree in a long term marriage for two reasons. In Evans v. Evans,[8] the aforesaid Justice Kavanaugh writing for a unanimous court upheld that an expert determination that the degree did not enhance earnings because the engineer could have attained his job without the degree as “whatever promotions defendant obtained during his employment were likely the product of his professional competence and would have occurred even if defendant had not obtained the degree.” Damned if I know how any accountant could come to that opinion as it seems a factual matter for the trial court, but that opinion was credited by the trial court and affirmed. Second, the Third Department denied any distribution of the degree even if it had a value as the wife’s contributions “while significant, can be seen more as overall contributions to the marriage rather than an additional effort to support defendant in obtaining his license.” This was a nineteen year marriage with two children, one of whom has special needs. So, now we at least have some colorable argument for a minimal or no distribution in these infernal enhanced earnings cases thanks to the Savants of State Street. The maintenance award was set at $1,000 per month until social security eligibility on the husband’s income of $93,500 and the wife’s income of $17,000. This was about 15% of the difference.
Finally thanks to the Second Department for answering that burning question, “Can a court fine a father $250 a day as additional child support for each day of missed visitation?” No, especially if no one asks for it. Papandrea v. Pallan[9]
Happy Holidays and Prosit Neujahr, y’all.
Michael the Divorce Lawyer
[1] A condition where if you sold everything you own, you would still be in debt, apparently quite prevalent in The Natural State.
[2] Penal Law §255.17
[3] She did admit that she and MP had done the Humpty Dance from January to March of 2003, but since then it was just platonic.
[4] Graev v. Graev, 46 A.D.3rd445 (1st Dept., 2007)
[5] CPLR §5601(a)
[6] Graev v. Graev, __ Ny.Y.3rd __ (October 21, 2008).
[7] __ A.D.3rd __ (1st Dept., November 13, 2008).
[8] __ A.D.3rd __ (3rd dept., 2008).
[9] __ A.D.3rd __ (2nd Dept., November 13, 2008).
Saturday, October 25, 2008
Gay Marriages and Modern Art
“I think that everyone should get married at least once, so you can see what a silly, outdated institution it is.” Madonna Louise Ciccone Ritchie aka Madonna
“Eighty percent of married men cheat in America. The rest cheat in Europe.” Yacov Moshe Maza aka Jackie Mason
"It's not true that I had nothing on. I had the radio on." Norma Jeane Mortenson, baptized Norma Jeane Baker aka Marilyn Monroe
Greetings from the Golden State, where they will vote in a few days to determine whether the state constitution should be amended to ban same sex marriages. All of this is on the heels of the 4-3 California Supreme Court decision last May sanctioning gay divorces on equal protection grounds, finding that there is a fundamental right to marry. [1] Latest Vegas odds favor upholding gay marriages. Then last month the Connecticut Supreme Court decided the same way for similar reasons, again in a 4-3 decision. Compared to the 172 page California decision, this was a pithy 85 pages with 84 footnotes.[2] Of course, our Court of Appeals said “no way” to gay marriages in 2006 in Hernandez v. Robles, a 4-2 decision.[3] All of this begs a few questions. How can something be fundamental right in one state but not another? Are some gays more equal than others, as in Equally Protected? Why does it take judges so much verbiage to express their thoughts, and why do such great minds disagree in each of these decisions? It does seem to be trend at least on the Left and Right Coasts to support gay marriages, and such an issue seems to stir up emotions and money for and against. The California Proposition 8 lobbying has raised over $60 million from both sides. Of course, gay marriage means gay divorce, and that is grist for our mills and we will be looking for the first divorces in New York for people legally married in other states.
Other grist for our mill news? Some Dutch researcher has published an article proving that Turtle Doves commit adultery.[4] Thanks Dr. den Hartog for that one. The financial crisis on Wall Street has caused a threefold increase in sex addiction for financiers, and presumably increased divorces.[5]
The Third Department has returned from their summer slumbers, affirming a whole slew of custody cases and curiously modifying the dispositional phase of a family offense proceeding in Gil v. Gil.[6] It seems Mr. Gil beat his five year old daughter with a belt causing raised welts. That was enough to uphold the finding of harassment and menacing. However, the Order of Protection requiring a full stay away from the home of the mother, the child, and the mother’s workplace were eliminated as it was not proven that he is likely to pose an “immediate and ongoing” danger to a member of the family. “Honey, I’m home!”
Did you ever experience the Father of the Year Syndrome? You know, the dad who ceded the child rearing to the mother while he worked, played golf, went bowling or pursued other women during the marriage. Now, with the beak-up of the marriage, he is suddenly working 35 hours per week, coming home at 5:00 p.m., showing up for his son’s soccer practices and Meet the Teacher nights, all for the first time. He seeks shared or sole custody, as the Epiphany of Fatherhood descends on him immediately after a visit to his local matrimonial attorney for a discussion of the joys of the Child Support Standards Act. It frustrates many litigants as the past is not necessarily prologue, in spite of the decisions made while the marriage was intact. Courts struggle with these issues as there is a desire to encourage parental participation, even if it is newly discovered. Well, the First Department grappled with just such a dad in Tonisha J. v. Paul P.[7] The Referee who decided the matter at trial awarded the father sole custody in spite of the primary responsibility of child rearing by the mother while the parties lived together. Apparently the mother had misbehaved towards the father and his fiancée when she discovered his affair, but she had never misbehaved towards the child and was the “primary custodial parent” in the early years. Although Family Court adopted the Referee’s findings, the First Department reversed, in spite of the recommendations of a forensic social worker. Seizing on the important but often overlooked issue of the roles of the parents while the parties were living together, the court reversed and awarded custody to the mother. It is nice to see recognition of this important standard in a reversal of a trial court when trying to determine the future best interests of children.
You do have to admire the billing efforts of our downstate brethren. I often comment on the inadequacy of fee awards or the charges billed in the Third Department, as for the most part I believe we undervalue our services. The First Department has no such recalcitrance as it recently awarded nearly $30,000 in legal fees just to enforce two money judgments of about $250,000. Schiffer v. Schiffer[8] and, no, it is not THAT Schiffer, unfortunately. Nice work if you can get it. The trial court had denied Mrs. Schiffer’s application as she had received enough in maintenance, equitable distribution and her own earnings. However, what good is that if you have to spend mucho dinero just to get what the court awarded you? In reversing the trial court, the First Department accepted the attorney’s fee application and awarded all such fees for the enforcement, including negotiations, miscellaneous legal fees, and fees for making the fee application. Yeah!
Speaking of legal fees, my favorite modern artist cum divorce litigant, Jeffrey Koons recently lost custody of his child to his former porn star wife “La Cicciolina” aka Ilona Staller in the European Court of Human Rights in Strasbourg, France, of all places. That’s my next court of choice in custodial disputes, you betcha. You may remember her as the only one to volunteer to have sex with Saddam Hussein in 2002 in exchange for world peace saying, “I would do it holding my nose and closing my eyes. I would do it for peace." If only he had taken her up on that offer. I remember Mr. Koons as the guy who had to pay Paul, Weiss, Rifkind, Wharton & Garrison over $3.3 million in fees related to his divorce because he never challenged the bills.[9] Doggone it, for that alone he deserves a “shout out” from yours truly. Can I call you Jeff?
Don’t forget to vote.
[1] In re Marriage Cases, six consolidated appeals, decided May 15, 2008. You can find the whole 172 page decision here. It took about three pages just to list the Respondents’ attorneys!
http://www.latimes.com/media/acrobat/2008-05/38894545.PDF
[2] Carrigan et. al. v. Commisssioner, decided October 10, 2008. Here it is:
http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR289/289CR152.pdf
[3] 7 NY3rd 338(2006)
[4] Netherlands Organization for Scientific Research (2008, October 15). Turtle Doves Commit Adultery. Science Daily. October 18, 2008. You can read the article here in Dutch together with “cooing” noises proving her hypotheses:
http://www.nwo.nl/nwohome.nsf/pages/NWOA_7kdept
[5] London’s Daily Telegraph, October 19, 2008.
[6] __ A.D.3rd __ (3rd Dept., October 16, 2008)
[7] __ A.D. 3rd __ (1st Dept., October 16, 2008)
[8] __ A.D.3rd __ (1st Dept., October 14, 2008)
[9] Paul, Weiss, Rifkind, Wharton & Garrison v. Koons, 4 Misc.3rd 447 (N.Y.Co.Sup.Ct., 2004)
“Eighty percent of married men cheat in America. The rest cheat in Europe.” Yacov Moshe Maza aka Jackie Mason
"It's not true that I had nothing on. I had the radio on." Norma Jeane Mortenson, baptized Norma Jeane Baker aka Marilyn Monroe
Greetings from the Golden State, where they will vote in a few days to determine whether the state constitution should be amended to ban same sex marriages. All of this is on the heels of the 4-3 California Supreme Court decision last May sanctioning gay divorces on equal protection grounds, finding that there is a fundamental right to marry. [1] Latest Vegas odds favor upholding gay marriages. Then last month the Connecticut Supreme Court decided the same way for similar reasons, again in a 4-3 decision. Compared to the 172 page California decision, this was a pithy 85 pages with 84 footnotes.[2] Of course, our Court of Appeals said “no way” to gay marriages in 2006 in Hernandez v. Robles, a 4-2 decision.[3] All of this begs a few questions. How can something be fundamental right in one state but not another? Are some gays more equal than others, as in Equally Protected? Why does it take judges so much verbiage to express their thoughts, and why do such great minds disagree in each of these decisions? It does seem to be trend at least on the Left and Right Coasts to support gay marriages, and such an issue seems to stir up emotions and money for and against. The California Proposition 8 lobbying has raised over $60 million from both sides. Of course, gay marriage means gay divorce, and that is grist for our mills and we will be looking for the first divorces in New York for people legally married in other states.
Other grist for our mill news? Some Dutch researcher has published an article proving that Turtle Doves commit adultery.[4] Thanks Dr. den Hartog for that one. The financial crisis on Wall Street has caused a threefold increase in sex addiction for financiers, and presumably increased divorces.[5]
The Third Department has returned from their summer slumbers, affirming a whole slew of custody cases and curiously modifying the dispositional phase of a family offense proceeding in Gil v. Gil.[6] It seems Mr. Gil beat his five year old daughter with a belt causing raised welts. That was enough to uphold the finding of harassment and menacing. However, the Order of Protection requiring a full stay away from the home of the mother, the child, and the mother’s workplace were eliminated as it was not proven that he is likely to pose an “immediate and ongoing” danger to a member of the family. “Honey, I’m home!”
Did you ever experience the Father of the Year Syndrome? You know, the dad who ceded the child rearing to the mother while he worked, played golf, went bowling or pursued other women during the marriage. Now, with the beak-up of the marriage, he is suddenly working 35 hours per week, coming home at 5:00 p.m., showing up for his son’s soccer practices and Meet the Teacher nights, all for the first time. He seeks shared or sole custody, as the Epiphany of Fatherhood descends on him immediately after a visit to his local matrimonial attorney for a discussion of the joys of the Child Support Standards Act. It frustrates many litigants as the past is not necessarily prologue, in spite of the decisions made while the marriage was intact. Courts struggle with these issues as there is a desire to encourage parental participation, even if it is newly discovered. Well, the First Department grappled with just such a dad in Tonisha J. v. Paul P.[7] The Referee who decided the matter at trial awarded the father sole custody in spite of the primary responsibility of child rearing by the mother while the parties lived together. Apparently the mother had misbehaved towards the father and his fiancée when she discovered his affair, but she had never misbehaved towards the child and was the “primary custodial parent” in the early years. Although Family Court adopted the Referee’s findings, the First Department reversed, in spite of the recommendations of a forensic social worker. Seizing on the important but often overlooked issue of the roles of the parents while the parties were living together, the court reversed and awarded custody to the mother. It is nice to see recognition of this important standard in a reversal of a trial court when trying to determine the future best interests of children.
You do have to admire the billing efforts of our downstate brethren. I often comment on the inadequacy of fee awards or the charges billed in the Third Department, as for the most part I believe we undervalue our services. The First Department has no such recalcitrance as it recently awarded nearly $30,000 in legal fees just to enforce two money judgments of about $250,000. Schiffer v. Schiffer[8] and, no, it is not THAT Schiffer, unfortunately. Nice work if you can get it. The trial court had denied Mrs. Schiffer’s application as she had received enough in maintenance, equitable distribution and her own earnings. However, what good is that if you have to spend mucho dinero just to get what the court awarded you? In reversing the trial court, the First Department accepted the attorney’s fee application and awarded all such fees for the enforcement, including negotiations, miscellaneous legal fees, and fees for making the fee application. Yeah!
Speaking of legal fees, my favorite modern artist cum divorce litigant, Jeffrey Koons recently lost custody of his child to his former porn star wife “La Cicciolina” aka Ilona Staller in the European Court of Human Rights in Strasbourg, France, of all places. That’s my next court of choice in custodial disputes, you betcha. You may remember her as the only one to volunteer to have sex with Saddam Hussein in 2002 in exchange for world peace saying, “I would do it holding my nose and closing my eyes. I would do it for peace." If only he had taken her up on that offer. I remember Mr. Koons as the guy who had to pay Paul, Weiss, Rifkind, Wharton & Garrison over $3.3 million in fees related to his divorce because he never challenged the bills.[9] Doggone it, for that alone he deserves a “shout out” from yours truly. Can I call you Jeff?
Don’t forget to vote.
[1] In re Marriage Cases, six consolidated appeals, decided May 15, 2008. You can find the whole 172 page decision here. It took about three pages just to list the Respondents’ attorneys!
http://www.latimes.com/media/acrobat/2008-05/38894545.PDF
[2] Carrigan et. al. v. Commisssioner, decided October 10, 2008. Here it is:
http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR289/289CR152.pdf
[3] 7 NY3rd 338(2006)
[4] Netherlands Organization for Scientific Research (2008, October 15). Turtle Doves Commit Adultery. Science Daily. October 18, 2008. You can read the article here in Dutch together with “cooing” noises proving her hypotheses:
http://www.nwo.nl/nwohome.nsf/pages/NWOA_7kdept
[5] London’s Daily Telegraph, October 19, 2008.
[6] __ A.D.3rd __ (3rd Dept., October 16, 2008)
[7] __ A.D. 3rd __ (1st Dept., October 16, 2008)
[8] __ A.D.3rd __ (1st Dept., October 14, 2008)
[9] Paul, Weiss, Rifkind, Wharton & Garrison v. Koons, 4 Misc.3rd 447 (N.Y.Co.Sup.Ct., 2004)
Tuesday, September 30, 2008
Lap Dance Fees, and Thank God for the Second Department
“If all the girls who attended the Yale prom were laid end to end, I wouldn't be a bit surprised.” Dorothy Parker (1893-1967)
“I owe a lot to my parents, especially my mother and father.” Paul Hamm, Gymnast and linguist
“Don't accept rides from strange men, and remember that all men are strange.” Robin Morgan (1941-)
OK, call me jaundiced. How else do you explain the hundreds of marriage proposals for a police constable in the Rift Valley of Kenya? Just ask Olympic 800 meter gold medalist Pamela Jelimo when she returned home after winning $1,000,000 for six victories in elite track meets. To me, men are all just gold digging slugs looking for a free ride from a woman of accomplishment. But to quote the great Kanye West, “"If you ain't no punk, holla 'We want pre-nup!'"[i] Makes sense to me. So Brad Pitt ponies up $100,000 to support gay marriages in the upcoming California referendum and along comes the Church of Latter Day Saints aka The Mormons to urge their flock to contribute the other way.[ii] This prompts former gay Mormon Bruce Bastian to drop $1 mil on the gay marriage supporters. Match that, Beefcake Boy.
Maybe it’s just been a bad month, with A-Rod resolving his divorce without any splashy testimony and the Office of Confused Adults sponsoring a report to take control of all the justice courts and measurably increase the coffers of the Evil Empire.[iii] So here’s a quiz, which presidential candidate wrote the following, “"She was lovely, intelligent and charming, 17 years my junior. I persuaded her to join me for drinks at the Royal Hawaiian Hotel. By the evening's end, I was in love." Hint: It’s not Cynthia McKinnon or Bob Barr[iv]. Ah, love, stronger than marital fidelity again! At least we’ll always have the Third Department, whenever they wake up from their summer funk. Until then, as they say, love the one you’re with.[v] In this case she is the Second Department, the only true source of amusement until the Vernal Equinox.
For example, they sure mixed things up when they let Joey LaRocca[vi] free for not having the ability to pay his child support. As we know, failure to pay a support order is prima facie proof of a willful violation. I didn’t make that up. It’s in §454(3)(a) of the Family Court Act. So the App Div Second decides, “Wait a minute, here.” We know he didn’t pay. The Family Court Act be damned, let’s let the guy off because, “In the absence of proof of an ability to pay, an order of commitment for willful violation of a support order may not stand.” Thanks for clearing that up guys. Maybe I better see if the definition of prima facie has changed since the Fifteenth Century.[vii]
Then they decided it is just fine and dandy to apply the CSSA standards to all $212,000 of a person’s income, joining the Third Department’s $500,000 “cap” in Bean.[viii] They blasted through the ethereal $80,000 statutory cap, virtually without comment in Maharaj-Ellis v. La Roche.[ix] Here is their reasoning for all you tea leaf readers: “The court further providently exercised its discretion in applying the statutory child support percentage to the total sum of $272,550.38 in combined parental income.” What I mean is what I say, nothing more and nothing less. Try to explain that to your next client who comes in wondering what the court will do to his gross income when it comes for support of the kiddies. To add insult to injury they banged Dad for ice skating expenses of all things, “where the evidence demonstrated that she had a special aptitude for the sport.” Who doesn’t, Tanya? I guess that’s what the legislature meant when it awarded “as justice requires” “special, or enriched education for the child.”[x] Is there no end to this stuff?
Apparently not, as the Second Department again held that College Expenses are not to be modified especially if you have a separate paragraph called “College expenses” in an agreement with a paragraph called “Child Support.” Colucci v. Colucci.[xi] I had no idea paragraph headings were so important in the Southern counties, but I’m changing my behavior up here too, just in case.
Just to put more nails in the coffins of moneyed spouses, the Second Department came down with Kilkenny v. Kilkenny.[xii] Poor Mister Kilkenny came into his marriage with $147,000 in separate accounts. He spent $40,000 of this separate money during the marriage on the education of a daughter from a first marriage, reducing the accounts to $107,000. The accounts had $209,000 at commencement. So how much does the missus get? $51,000. Get that? If he had not spent the $40,000 on his child’s education, the increase would be $62,000 and she would get $31,000, but since he paid for his child’s education during the marriage, he gets to pay his wife half of that sum again. Like I say, arithmetic is sure different south of the Tappan Zee Bridge, or to quote John McCain, “I think they put some lipstick on a pig, but it's still a pig."[xiii] Of yeah, the Kilkenny lassie also gets half of the amount he reduced the principal on his premarital home mortgage during the marriage plus half of the appreciation in the home, even if it is due to market forces. And by the way, that loan for $32,000 for his other child from his first marriage? That’s not a marital debt either.
In a stirring victory for those in uniform, at least the slutty kind, the Second Department reversed an award of custody to the father and restored the child to the mother in a modification proceeding. The Family Court judge had given custody to the father, among other reasons, because the mom came to court in hospital clothing, “as if she were a nurse or other medical professional, but in fact works as a receptionist.” He also held it against her, but not the father, that she was married to another man during the entirety of the parties’ relationship with one another. Horrors! Peroglu v. Baez.[xiv]
Finally a tip of the hat to Scott Robert Irwin, a lawyer after my own heart. Mr. Erwin is the former chairman of the DeKalb County Bar Association pro bono committee, a position yours truly has occupied for the Albany County Bar Association. It seems Barrister Erwin had an arrangement with one of his clients to perform nude dances for him in his office (And at her place of employment: Heartbreakers. I kid you not.) in exchange for legal services for his ecdysiast client and members of her family. When he credited her with only $534 and demanded she pay a bill of $7,000 she blew the whistle on him, no pun intended. Although a grand jury let him off the hook on sexual assault, the Illinois Attorney Registration and Disciplinary Commission suspended him for 15 months. So just where in our regulations prohibiting sexual relations with our clients is there a proscription for a lap dance or two?[xv] If you find out, send me a wire.
Happy Guy Fawkes Day.
[i] “Gold Digger”, Kanye (Brion) and Foxx, copyright 2005 Roc-A-Fella Records, LLC used here without permission.
[ii] If you don’t believe me, check out ProtectMarriage.com
[iii] http://www.nycourtreform.org/
[iv] John Sidney McCain III in his aptly titled 2002 memoir, “Worth Fighting For”
[v] Stephen Stills, 1970, used again without permission. Sorry Mr. Isely.
[vi] Grasso v. LaRocca, __ A.D.3rd __ (2nd Dept., Mom’s Birthday, 2008)
[vii] Merriam Webster Dictionary, 2008.
[viii] 53 A.D.2nd 718 (3rd Dept., 2008).
[ix] __ A.D.3rd __ (2nd Dept., 2008)
[x] §240(1-b(b)(7) of the Domestic Relations Law
[xi] __ A.D.2nd __ (2nd Dept., September 9, 2008)
[xii] __ A.D.3rd __ (2nd Dept., September 16, 2008)
[xiii] Des Moines Rotary Club Speech, October 11, 2008.
[xiv] __ A.D.3rd __ (2nd Dept., August 19, 2008)
[xv] Code of Professional Responsibility DR-511, 22 NYCRR 1200.29-a
“I owe a lot to my parents, especially my mother and father.” Paul Hamm, Gymnast and linguist
“Don't accept rides from strange men, and remember that all men are strange.” Robin Morgan (1941-)
OK, call me jaundiced. How else do you explain the hundreds of marriage proposals for a police constable in the Rift Valley of Kenya? Just ask Olympic 800 meter gold medalist Pamela Jelimo when she returned home after winning $1,000,000 for six victories in elite track meets. To me, men are all just gold digging slugs looking for a free ride from a woman of accomplishment. But to quote the great Kanye West, “"If you ain't no punk, holla 'We want pre-nup!'"[i] Makes sense to me. So Brad Pitt ponies up $100,000 to support gay marriages in the upcoming California referendum and along comes the Church of Latter Day Saints aka The Mormons to urge their flock to contribute the other way.[ii] This prompts former gay Mormon Bruce Bastian to drop $1 mil on the gay marriage supporters. Match that, Beefcake Boy.
Maybe it’s just been a bad month, with A-Rod resolving his divorce without any splashy testimony and the Office of Confused Adults sponsoring a report to take control of all the justice courts and measurably increase the coffers of the Evil Empire.[iii] So here’s a quiz, which presidential candidate wrote the following, “"She was lovely, intelligent and charming, 17 years my junior. I persuaded her to join me for drinks at the Royal Hawaiian Hotel. By the evening's end, I was in love." Hint: It’s not Cynthia McKinnon or Bob Barr[iv]. Ah, love, stronger than marital fidelity again! At least we’ll always have the Third Department, whenever they wake up from their summer funk. Until then, as they say, love the one you’re with.[v] In this case she is the Second Department, the only true source of amusement until the Vernal Equinox.
For example, they sure mixed things up when they let Joey LaRocca[vi] free for not having the ability to pay his child support. As we know, failure to pay a support order is prima facie proof of a willful violation. I didn’t make that up. It’s in §454(3)(a) of the Family Court Act. So the App Div Second decides, “Wait a minute, here.” We know he didn’t pay. The Family Court Act be damned, let’s let the guy off because, “In the absence of proof of an ability to pay, an order of commitment for willful violation of a support order may not stand.” Thanks for clearing that up guys. Maybe I better see if the definition of prima facie has changed since the Fifteenth Century.[vii]
Then they decided it is just fine and dandy to apply the CSSA standards to all $212,000 of a person’s income, joining the Third Department’s $500,000 “cap” in Bean.[viii] They blasted through the ethereal $80,000 statutory cap, virtually without comment in Maharaj-Ellis v. La Roche.[ix] Here is their reasoning for all you tea leaf readers: “The court further providently exercised its discretion in applying the statutory child support percentage to the total sum of $272,550.38 in combined parental income.” What I mean is what I say, nothing more and nothing less. Try to explain that to your next client who comes in wondering what the court will do to his gross income when it comes for support of the kiddies. To add insult to injury they banged Dad for ice skating expenses of all things, “where the evidence demonstrated that she had a special aptitude for the sport.” Who doesn’t, Tanya? I guess that’s what the legislature meant when it awarded “as justice requires” “special, or enriched education for the child.”[x] Is there no end to this stuff?
Apparently not, as the Second Department again held that College Expenses are not to be modified especially if you have a separate paragraph called “College expenses” in an agreement with a paragraph called “Child Support.” Colucci v. Colucci.[xi] I had no idea paragraph headings were so important in the Southern counties, but I’m changing my behavior up here too, just in case.
Just to put more nails in the coffins of moneyed spouses, the Second Department came down with Kilkenny v. Kilkenny.[xii] Poor Mister Kilkenny came into his marriage with $147,000 in separate accounts. He spent $40,000 of this separate money during the marriage on the education of a daughter from a first marriage, reducing the accounts to $107,000. The accounts had $209,000 at commencement. So how much does the missus get? $51,000. Get that? If he had not spent the $40,000 on his child’s education, the increase would be $62,000 and she would get $31,000, but since he paid for his child’s education during the marriage, he gets to pay his wife half of that sum again. Like I say, arithmetic is sure different south of the Tappan Zee Bridge, or to quote John McCain, “I think they put some lipstick on a pig, but it's still a pig."[xiii] Of yeah, the Kilkenny lassie also gets half of the amount he reduced the principal on his premarital home mortgage during the marriage plus half of the appreciation in the home, even if it is due to market forces. And by the way, that loan for $32,000 for his other child from his first marriage? That’s not a marital debt either.
In a stirring victory for those in uniform, at least the slutty kind, the Second Department reversed an award of custody to the father and restored the child to the mother in a modification proceeding. The Family Court judge had given custody to the father, among other reasons, because the mom came to court in hospital clothing, “as if she were a nurse or other medical professional, but in fact works as a receptionist.” He also held it against her, but not the father, that she was married to another man during the entirety of the parties’ relationship with one another. Horrors! Peroglu v. Baez.[xiv]
Finally a tip of the hat to Scott Robert Irwin, a lawyer after my own heart. Mr. Erwin is the former chairman of the DeKalb County Bar Association pro bono committee, a position yours truly has occupied for the Albany County Bar Association. It seems Barrister Erwin had an arrangement with one of his clients to perform nude dances for him in his office (And at her place of employment: Heartbreakers. I kid you not.) in exchange for legal services for his ecdysiast client and members of her family. When he credited her with only $534 and demanded she pay a bill of $7,000 she blew the whistle on him, no pun intended. Although a grand jury let him off the hook on sexual assault, the Illinois Attorney Registration and Disciplinary Commission suspended him for 15 months. So just where in our regulations prohibiting sexual relations with our clients is there a proscription for a lap dance or two?[xv] If you find out, send me a wire.
Happy Guy Fawkes Day.
[i] “Gold Digger”, Kanye (Brion) and Foxx, copyright 2005 Roc-A-Fella Records, LLC used here without permission.
[ii] If you don’t believe me, check out ProtectMarriage.com
[iii] http://www.nycourtreform.org/
[iv] John Sidney McCain III in his aptly titled 2002 memoir, “Worth Fighting For”
[v] Stephen Stills, 1970, used again without permission. Sorry Mr. Isely.
[vi] Grasso v. LaRocca, __ A.D.3rd __ (2nd Dept., Mom’s Birthday, 2008)
[vii] Merriam Webster Dictionary, 2008.
[viii] 53 A.D.2nd 718 (3rd Dept., 2008).
[ix] __ A.D.3rd __ (2nd Dept., 2008)
[x] §240(1-b(b)(7) of the Domestic Relations Law
[xi] __ A.D.2nd __ (2nd Dept., September 9, 2008)
[xii] __ A.D.3rd __ (2nd Dept., September 16, 2008)
[xiii] Des Moines Rotary Club Speech, October 11, 2008.
[xiv] __ A.D.3rd __ (2nd Dept., August 19, 2008)
[xv] Code of Professional Responsibility DR-511, 22 NYCRR 1200.29-a
Monday, August 18, 2008
The Hulkster, Maitenance and Other Thoughts
“Men aren’t attracted to me by my mind. They’re attracted to me by what I don’t mind.” Rose Louise Hovick aka Gypsy Rose Lee (1911-1970)
“We're a collection of caring, bright do-gooders who want everyone to love us. But we're also voyeurs and mischievous thieves who take advantage of the unsuspecting and make money because our clients are angry, hurt, and greedy." Norman Sheresky, J.D.
"The first thing they get is a net-worth statement. Then they make sure they get your total net worth." Ronald Lindner, divorced plastic surgeon
The doldrums of the Third Department descend upon us each August, with the trickle of decisions having nothing to do with the glories of matrimonial practice. The true horse latitudes of matrimonial practice, spiced this week by two thrilling negligence cases in favor of plaintiffs with stinging dissents by two justices and nary a whiff of marital discord to be resolved by the Genii of the Fifth Floor. For that matter, the Fourth Department has virtually given up, taking off the entire month of August like some German autoworker migrating to the Amalfi Coast for a few weeks of epidermis broiling and Il Baccala’ in Casseruola con Patate. Schade as they say im Burgenland. So, to quote the late great Hunter Thompson, “When the going gets weird, the weird turn pro.” So here it goes.
When we last left the gay former Governor and current seminarian James McGreevey, his wife was seeking about $30,000 in yearly maintenance from his $48,000 yearly salary. She also wanted a piece of the $1,400,000 her expert valued as the ex-Gov’s “Celebrity Goodwill”. During the trial Mrs. McGreevey testified that she can no longer afford to shop at Nordstrom and Nieman Marcus, and now had to stoop to clothing herself at the Gap and T.J. Maxx. You’re breaking my heart, honey. So, the court gave her nothing for alimony and a mere $110,000 in equitable distribution. How much did that cost her? Legal fees alone totaled $525,468 for the former First Lady of the Garden State. Shucks, I could have gotten her that kind of an award for less than $400,000. Seems like a deal to me. Not so fortunate, at least not yet, was the Hulkster, aka Terrence Gene Bollea who was ordered to pay $40,000 per month in temporary alimony to the lovely Linda Bollea. Seems like only yesterday but it was January 23, 2003 that we were at the Pepsi Arena watching Mr. Hogan knock out Vince McMahon with a single punch to the delight of thousands at the WWE Smackdown! Remember? Hopefully Ms. Hulkster’s legal fees will be a tad shy of a half a million. Of course all this demonstrates that the amount and duration of maintenance is in the eye of the beholder, i.e. the judge, and there are really no guidelines that one can safely cite to a client to determine the true outcome after trial. Like they say, the weird turn pro.
So, what little baubles does the Second Departments give us this summer? Well how about our old friend the Child Support Standards Act. As the Third Department told us last month, if there is not an adequate recitation of what the CSSA standards would be for child support and the reason for any deviation, then an agreement is null and void[i], or not null and void[ii]. Got it? Well, in Cimons v. Cimons[iii] everyone agreed that the opting out provisions did not comply with the statute and needed to be set aside, but what about the agreement to pay for college education? Does that get thrown out with the baby’s bath water too? Apparently not, as it is discretionary to award educational expenses and such awards are not pro rated like the other “add ons” of uninsured health and child care.[iv] Since educational obligations are not connected to basic child support, they are enforceable even if the other provisions are not.
Speaking of the Child Support Standards Act, the Second Department in Uriarte v. Ippolito[v], joined the Third Department for a change in holding that a parent need not use in-service providers when seeking reimbursement for uninsured health related expenses. Of course, no tip of the hat to the Third Department’s Wetherby[vi] case of a few months prior, as though they thought it up all by themselves.
The Second Department also answered the burning question of whether payments of maintenance to a mother by a father should be included in her income when determining the amount of child support she has to pay the custodial father. I thought it was quite novel of the mother to suggest that she had no income for the support of the bambino even though she was receiving $100,000 per year in maintenance. You see, the child moved in with dad after the divorce, but of course that had no effect on his maintenance obligation to her. Income is income saith the Second Department so her maintenance money was fair game for the child support percentages. Krukenkamp v. Krukenkamp.[vii] Here’s where the math gets a little squirrely however, as the Second Department tells us it was inappropriate to apply the percentage of 17% above the statutory $80,000 cap because (a) dad earns a lot more than she does and (b) she has to support other family members. Putting aside for a moment whether these are valid reasons to cap the support obligation, the Second Department set the support at $338 per week without explanation how they came up with that peculiar amount. By my calculations that is $17,565 per year or the support obligation of a person earning about $106,000! I’ve known for years that the bean counters downstate are different from the bean counters up here, but I thought mathematics was a more objective standard. I’m dying to see how they came up with that sum, but being the Second Department they don’t tell us. It’s just one of life’s mysteries, I guess, like the Eleusian Mysteries. Don’t ask, don’t tell.
Happy New Zealand Fathers Day, all you Kiwis.
[i] Usenza v. Swift, 52 A.D.3rd 876 (3rd Dept., 2008)
[ii] Groesbeck v. Groesbeck, 52 A.D.3rd 903 (3rd dept., 2008)
[iii] __ A.D.3rd __ (2nd Dept., June 17, 2008)
[iv] Domestic Relations Law Section 240(1-b)(c)(4) and (5)
[v] __ A.D.3rd __ (2nd Dept., August 12, 2008)
[vi] 50 A.D.3rd 1226 (2008)
[vii] __ A.D.3rd __ (2nd Dept., August 5, 2008).
“We're a collection of caring, bright do-gooders who want everyone to love us. But we're also voyeurs and mischievous thieves who take advantage of the unsuspecting and make money because our clients are angry, hurt, and greedy." Norman Sheresky, J.D.
"The first thing they get is a net-worth statement. Then they make sure they get your total net worth." Ronald Lindner, divorced plastic surgeon
The doldrums of the Third Department descend upon us each August, with the trickle of decisions having nothing to do with the glories of matrimonial practice. The true horse latitudes of matrimonial practice, spiced this week by two thrilling negligence cases in favor of plaintiffs with stinging dissents by two justices and nary a whiff of marital discord to be resolved by the Genii of the Fifth Floor. For that matter, the Fourth Department has virtually given up, taking off the entire month of August like some German autoworker migrating to the Amalfi Coast for a few weeks of epidermis broiling and Il Baccala’ in Casseruola con Patate. Schade as they say im Burgenland. So, to quote the late great Hunter Thompson, “When the going gets weird, the weird turn pro.” So here it goes.
When we last left the gay former Governor and current seminarian James McGreevey, his wife was seeking about $30,000 in yearly maintenance from his $48,000 yearly salary. She also wanted a piece of the $1,400,000 her expert valued as the ex-Gov’s “Celebrity Goodwill”. During the trial Mrs. McGreevey testified that she can no longer afford to shop at Nordstrom and Nieman Marcus, and now had to stoop to clothing herself at the Gap and T.J. Maxx. You’re breaking my heart, honey. So, the court gave her nothing for alimony and a mere $110,000 in equitable distribution. How much did that cost her? Legal fees alone totaled $525,468 for the former First Lady of the Garden State. Shucks, I could have gotten her that kind of an award for less than $400,000. Seems like a deal to me. Not so fortunate, at least not yet, was the Hulkster, aka Terrence Gene Bollea who was ordered to pay $40,000 per month in temporary alimony to the lovely Linda Bollea. Seems like only yesterday but it was January 23, 2003 that we were at the Pepsi Arena watching Mr. Hogan knock out Vince McMahon with a single punch to the delight of thousands at the WWE Smackdown! Remember? Hopefully Ms. Hulkster’s legal fees will be a tad shy of a half a million. Of course all this demonstrates that the amount and duration of maintenance is in the eye of the beholder, i.e. the judge, and there are really no guidelines that one can safely cite to a client to determine the true outcome after trial. Like they say, the weird turn pro.
So, what little baubles does the Second Departments give us this summer? Well how about our old friend the Child Support Standards Act. As the Third Department told us last month, if there is not an adequate recitation of what the CSSA standards would be for child support and the reason for any deviation, then an agreement is null and void[i], or not null and void[ii]. Got it? Well, in Cimons v. Cimons[iii] everyone agreed that the opting out provisions did not comply with the statute and needed to be set aside, but what about the agreement to pay for college education? Does that get thrown out with the baby’s bath water too? Apparently not, as it is discretionary to award educational expenses and such awards are not pro rated like the other “add ons” of uninsured health and child care.[iv] Since educational obligations are not connected to basic child support, they are enforceable even if the other provisions are not.
Speaking of the Child Support Standards Act, the Second Department in Uriarte v. Ippolito[v], joined the Third Department for a change in holding that a parent need not use in-service providers when seeking reimbursement for uninsured health related expenses. Of course, no tip of the hat to the Third Department’s Wetherby[vi] case of a few months prior, as though they thought it up all by themselves.
The Second Department also answered the burning question of whether payments of maintenance to a mother by a father should be included in her income when determining the amount of child support she has to pay the custodial father. I thought it was quite novel of the mother to suggest that she had no income for the support of the bambino even though she was receiving $100,000 per year in maintenance. You see, the child moved in with dad after the divorce, but of course that had no effect on his maintenance obligation to her. Income is income saith the Second Department so her maintenance money was fair game for the child support percentages. Krukenkamp v. Krukenkamp.[vii] Here’s where the math gets a little squirrely however, as the Second Department tells us it was inappropriate to apply the percentage of 17% above the statutory $80,000 cap because (a) dad earns a lot more than she does and (b) she has to support other family members. Putting aside for a moment whether these are valid reasons to cap the support obligation, the Second Department set the support at $338 per week without explanation how they came up with that peculiar amount. By my calculations that is $17,565 per year or the support obligation of a person earning about $106,000! I’ve known for years that the bean counters downstate are different from the bean counters up here, but I thought mathematics was a more objective standard. I’m dying to see how they came up with that sum, but being the Second Department they don’t tell us. It’s just one of life’s mysteries, I guess, like the Eleusian Mysteries. Don’t ask, don’t tell.
Happy New Zealand Fathers Day, all you Kiwis.
[i] Usenza v. Swift, 52 A.D.3rd 876 (3rd Dept., 2008)
[ii] Groesbeck v. Groesbeck, 52 A.D.3rd 903 (3rd dept., 2008)
[iii] __ A.D.3rd __ (2nd Dept., June 17, 2008)
[iv] Domestic Relations Law Section 240(1-b)(c)(4) and (5)
[v] __ A.D.3rd __ (2nd Dept., August 12, 2008)
[vi] 50 A.D.3rd 1226 (2008)
[vii] __ A.D.3rd __ (2nd Dept., August 5, 2008).
Saturday, July 19, 2008
Caps and Clowns
"This marriage is forever. We have a foundation of love and honesty and respect, and we're a real team. Peter is the greatest father, so involved. He's our Rock of Gibraltar." Christie Brinkley, Good Housekeeping, July, 2004.
“Once we got together, we knew it was meant to be." Peter Cook, People Weekly, January 9, 1995.
“Easy is an adjective used to describe a woman who has the sexual morals of a man.” Nancy Linn-Desmond
“If you’re only going to have ten rules, I don’t know if adultery should be one of them.” Ted Turner
It’s been a tough month. What with the loss of U. Utah Phillips, the Golden Voice of the Great Southwest and the beloved clown of my childhood. No not Jesse Helms. Bozo, of course. But the real loss was the death of Tom Brown, the former president of the Albany County Bar Association, state assemblyman, and the former Fordham Flash as a top distance runner for CBA and Fordham University. All this was before I met Mr. Brown when I was toiling as a young insurance defense lawyer in downtown Albany. For the next thirty years I knew him as a capable trial attorney, a man of his word, a friend to all and a true gentleman. I often rail about the lack of civility among lawyers and sometimes members of the judiciary. I just wish everyone could have spent time with a Tom Brown to see how a real lawyer is supposed to act. He was always interested in me and a slew of other young lawyers, and he couldn’t pass you in the hall or even a running race without some word of encouragement. I wish we had more of the Tom Browns of the world in our courthouses. The practice of law was a lot sweeter with him around.
Did you catch the latest issue of the Journal of Human Resources? In case you missed it, there’s a nifty article called The Effect of Marital Breakup on the Income Distribution of Women with Children by Elizabeth Ananat and Guy Michaels. Their conclusion? “Having a female firstborn child significantly increases the probability that a woman’s first marriage breaks up.” So the next time someone asks you the cause of divorce, lay that one on them. They also conclude that divorce has little mean effect on women’s mean household income. Some win, and some lose, but inequality and poverty often result. This is clearly contrary to the studies of a few decades ago showing decreased economic circumstances in women of divorce. .Similar results were found by Kelly Bedard and Olivier Deschenes in the same journal in their study Sex Preferences, Marital Dissolution, and the Economic Status of Women. Overall they found that women who divorce have greater household income than women who never divorce. Makes you wonder about the impact of the CSSA and similar state laws on the economics of divorce.
I was pondering all this when I read about the fate of David Bean in his trip to the Appellate Division, Third Department. In a case decided on July 3[1], our beloved App Div decided once and for all the burning question of the day: At what point should a court stop applying the CSSA percentages to high income taxpayers? After all, above the $80,000 “cap” it becomes a game of needs versus income and at some point Little Johnny doesn’t need any more money for child support, does he? Eventually it becomes Asset Reallocation, Blood Money, Bimbo Ransom, Freedom Juice, or what have you. It certainly has nothing to do with needs of children. Just how high is this number? After all, the Court of Appeals told us in Cassano[2] that “The stated basis for an exercise of discretion to apply the formula to income over $80,000 should, in sum and substance, reflect both that the court has carefully considered the parties' circumstances and that it has found no reason why there should be a departure from the prescribed percentage.” Ok, I understand. But “careful consideration of the parties’ circumstances” is in the eye of the beholder, and Mr. Bean’s bean muscles must have tightened a little when the trial justice in Albany County held that 17% of his entire $1,000,000 income is an appropriate support amount after due consideration of the aforesaid circumstances. Re-considering the circumstances of the case My Favorite Appellate Division reduced Beanie’s child support nut to a mere $7,083.33 per month or a mere 17% of $500,000 of daddy’s income. I bet that was a relief! You’ve got to hand it to the Third Department, they sure do have a sense of humor. So, the next time a court suggests that the cap should phase out at some ethereal point such as the legislative suggestion of $130,000, slide the Bean case under the Support Magistrate’s nose as an example of true grit by the Oracles of the Fifth Floor. Don’t be a piker here. Go for the gold. Did I mention the maintenance award, by the way? Forget deducting it from income before applying the percentages. No siree. How about reducing the trial court’s award to a mere $20,000 per month until the equitable distribution is paid and then just $15,000 per month until death or remarriage, i.e. for life. Hardly enough to keep body and soul together, when coupled with the equitable distribution award of God knows how much. As they say in Germany, Arbeit macht das Leben süß, or “keep paying Mr. Bean, because your son and former wife need to be among those whose household incomes just might have increased post divorce.” I daresay the Bean award will offset several hundred thousand awards of $25 per month in poverty households to keep that mean income of divorced women really, really, high. Take that Ms. Anant and Mr. Michaels!
Finally, what is so rare as a day in June[3], other than a matrimonial decision from our beloved Court of Appeals. It must have given the plaintiff husband the Heebie Jeebies when the Court of Appeals granted leave in spite of the Second Department’s unanimous decision in Mesholam v. Mesholam.[4] After all, the Court of Appeals had already given its pro-husband decision of the century in Spencer, and this was decades before the next one is scheduled. At issue here was the valuation date for equitable distribution. The parties were married in 1969 and in 1994 the wife sued but ultimately discontinued her divorce action against the husband. However, the parties never reconciled. In 1999 the husband sued for divorce, and asserted that the “equitable” thing to do would be to use the 1994 date for valuation of his pension. Domestic Relations Law Section 236B(4)(b) states that “The valuation date or dates may be anytime from the date of commencement of the action to the date of trial.” The Court of Appeals held that the prior discontinued action cannot be the date of commencement and threw the additional five years of Mr. Mesholam’s pension into the marital estate. They did remand however, so perhaps the court can fashion an “equitable” award that uses the later valuation date and provides the wife with something less than 50% of the assets. After all, equitable does not necessarily mean equal, does it?
Fröhliche Schweizer Bundesfeier for all my Swiss friends, or for you Romansch fans, Happy Fiasta Naziunala Svizra.
[1]__ A.D.3d __ (3rd Dept., 2008)
[2] 85 N.Y.2d 649 (1995)
[3] With apologies to Robert Russell Lowell, for all you American Romantic Poetry fans, like me.
[4] __ N.Y.3rd __ (June 26, 2008) reversing 25 A.D.2nd 670 (2nd Dept., 2006)
“Once we got together, we knew it was meant to be." Peter Cook, People Weekly, January 9, 1995.
“Easy is an adjective used to describe a woman who has the sexual morals of a man.” Nancy Linn-Desmond
“If you’re only going to have ten rules, I don’t know if adultery should be one of them.” Ted Turner
It’s been a tough month. What with the loss of U. Utah Phillips, the Golden Voice of the Great Southwest and the beloved clown of my childhood. No not Jesse Helms. Bozo, of course. But the real loss was the death of Tom Brown, the former president of the Albany County Bar Association, state assemblyman, and the former Fordham Flash as a top distance runner for CBA and Fordham University. All this was before I met Mr. Brown when I was toiling as a young insurance defense lawyer in downtown Albany. For the next thirty years I knew him as a capable trial attorney, a man of his word, a friend to all and a true gentleman. I often rail about the lack of civility among lawyers and sometimes members of the judiciary. I just wish everyone could have spent time with a Tom Brown to see how a real lawyer is supposed to act. He was always interested in me and a slew of other young lawyers, and he couldn’t pass you in the hall or even a running race without some word of encouragement. I wish we had more of the Tom Browns of the world in our courthouses. The practice of law was a lot sweeter with him around.
Did you catch the latest issue of the Journal of Human Resources? In case you missed it, there’s a nifty article called The Effect of Marital Breakup on the Income Distribution of Women with Children by Elizabeth Ananat and Guy Michaels. Their conclusion? “Having a female firstborn child significantly increases the probability that a woman’s first marriage breaks up.” So the next time someone asks you the cause of divorce, lay that one on them. They also conclude that divorce has little mean effect on women’s mean household income. Some win, and some lose, but inequality and poverty often result. This is clearly contrary to the studies of a few decades ago showing decreased economic circumstances in women of divorce. .Similar results were found by Kelly Bedard and Olivier Deschenes in the same journal in their study Sex Preferences, Marital Dissolution, and the Economic Status of Women. Overall they found that women who divorce have greater household income than women who never divorce. Makes you wonder about the impact of the CSSA and similar state laws on the economics of divorce.
I was pondering all this when I read about the fate of David Bean in his trip to the Appellate Division, Third Department. In a case decided on July 3[1], our beloved App Div decided once and for all the burning question of the day: At what point should a court stop applying the CSSA percentages to high income taxpayers? After all, above the $80,000 “cap” it becomes a game of needs versus income and at some point Little Johnny doesn’t need any more money for child support, does he? Eventually it becomes Asset Reallocation, Blood Money, Bimbo Ransom, Freedom Juice, or what have you. It certainly has nothing to do with needs of children. Just how high is this number? After all, the Court of Appeals told us in Cassano[2] that “The stated basis for an exercise of discretion to apply the formula to income over $80,000 should, in sum and substance, reflect both that the court has carefully considered the parties' circumstances and that it has found no reason why there should be a departure from the prescribed percentage.” Ok, I understand. But “careful consideration of the parties’ circumstances” is in the eye of the beholder, and Mr. Bean’s bean muscles must have tightened a little when the trial justice in Albany County held that 17% of his entire $1,000,000 income is an appropriate support amount after due consideration of the aforesaid circumstances. Re-considering the circumstances of the case My Favorite Appellate Division reduced Beanie’s child support nut to a mere $7,083.33 per month or a mere 17% of $500,000 of daddy’s income. I bet that was a relief! You’ve got to hand it to the Third Department, they sure do have a sense of humor. So, the next time a court suggests that the cap should phase out at some ethereal point such as the legislative suggestion of $130,000, slide the Bean case under the Support Magistrate’s nose as an example of true grit by the Oracles of the Fifth Floor. Don’t be a piker here. Go for the gold. Did I mention the maintenance award, by the way? Forget deducting it from income before applying the percentages. No siree. How about reducing the trial court’s award to a mere $20,000 per month until the equitable distribution is paid and then just $15,000 per month until death or remarriage, i.e. for life. Hardly enough to keep body and soul together, when coupled with the equitable distribution award of God knows how much. As they say in Germany, Arbeit macht das Leben süß, or “keep paying Mr. Bean, because your son and former wife need to be among those whose household incomes just might have increased post divorce.” I daresay the Bean award will offset several hundred thousand awards of $25 per month in poverty households to keep that mean income of divorced women really, really, high. Take that Ms. Anant and Mr. Michaels!
Finally, what is so rare as a day in June[3], other than a matrimonial decision from our beloved Court of Appeals. It must have given the plaintiff husband the Heebie Jeebies when the Court of Appeals granted leave in spite of the Second Department’s unanimous decision in Mesholam v. Mesholam.[4] After all, the Court of Appeals had already given its pro-husband decision of the century in Spencer, and this was decades before the next one is scheduled. At issue here was the valuation date for equitable distribution. The parties were married in 1969 and in 1994 the wife sued but ultimately discontinued her divorce action against the husband. However, the parties never reconciled. In 1999 the husband sued for divorce, and asserted that the “equitable” thing to do would be to use the 1994 date for valuation of his pension. Domestic Relations Law Section 236B(4)(b) states that “The valuation date or dates may be anytime from the date of commencement of the action to the date of trial.” The Court of Appeals held that the prior discontinued action cannot be the date of commencement and threw the additional five years of Mr. Mesholam’s pension into the marital estate. They did remand however, so perhaps the court can fashion an “equitable” award that uses the later valuation date and provides the wife with something less than 50% of the assets. After all, equitable does not necessarily mean equal, does it?
Fröhliche Schweizer Bundesfeier for all my Swiss friends, or for you Romansch fans, Happy Fiasta Naziunala Svizra.
[1]__ A.D.3d __ (3rd Dept., 2008)
[2] 85 N.Y.2d 649 (1995)
[3] With apologies to Robert Russell Lowell, for all you American Romantic Poetry fans, like me.
[4] __ N.Y.3rd __ (June 26, 2008) reversing 25 A.D.2nd 670 (2nd Dept., 2006)
Sunday, July 13, 2008
Anger Management and Client Pandering
"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)
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