“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.
Divorce Lawyer Ramblings 