ATTORNEY ADVERTISING
PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME

#360 Third Department Caselaw Round-Up for April 26, 2012, Part 3 of 8

April 24, 2013

360 Post 04-26-12, Part 3 Third Department April.pngThis first case stands for the proposition that "equitable distribution of marital property does not mean equal" distribution of marital property. Look the two words up; they mean entirely different things. However, the Third Department leaves you guessing about what precisely is "equitable" in this particular case.

The second case is the return of SSL §384-b. And you know what that means.


360 Post-2 Broome County.pngCase #233
#513489
Lurie v. Lurie
Broome Supreme-Lebous
Issues: Credibility; Divorce; Equitable Distribution; Witnesses
Cited statutes: DRL §236; RPL §245
Affirmed

The plaintiff-husband filed for divorce. The trial court's determination of the equitable distribution of the marital residence was not to the defendant-wife's liking, contending that she should have received an equal division of that asset.

The wife appealed and the husband cross-appealed.

The crux of the matter is this: the marital residence was purchased through the auspices of a secured personal loan from the husband's mother and the liquidation of the husband's IRA, acquired prior to the marriage.

Neither party disputed that the marital residence constituted marital property. Neither party disputed that the husband's "contributions to its acquisition - including the mortgage loan forgiveness [of his mother] - constituted his separate property." What was in contention was how and the extent to which the trial court credited the husband for these contributions. However, because the Third Department felt that the record was well developed with regard to testimony in this particular area, the Third Department, as it often does, deferred to the trial court with regard to the credibility it accorded to the various witnesses, testimony, and evidence before it.

These sorts of cases are quirky and, but for some small fact, could go either way. Therefore, the best way to support your case is to develop the record as fully as possible, exhausting all arguments at trial. Here, the determination of equitable distribution was well within the discretion of the trial court and the Third Department saw no reason to disturb that determination.

The Third Department has this uncanny way of annoying regular readers of its decisions by often failing to include important facts within them (is it following the terrible lead of the Fourth Department?!). In this case, wouldn't it have been nice to know the percentage of equitable distribution that the trial judge gave to each of the parties since the wife appealed on the basis that the distribution was not 50%? I sure the hell think so! How maddening that this simple number was not included! How far did the distribution deviate from a 50/50 split? Well, the Third Department ain't tellin', thereby gutting the full force and precedential effect of this decision.

Also, look at the footnotes - they're there for a damned good reason. See footnote 1? The Third Department raises this issue more out of an academic concern for how it could have easily complicated matters even more than they already were.


360 Post-3 Clinton County.pngCase #234
#512491
In the Matter of Havyn PP.
Clinton Family-Lawliss
Issues: Clear and Convincing Evidence; Drug Abuse; Foster Care; Jail; Neglect; Permanent Neglect; Removal; Termination of Parental Rights
Cited statutes: SSL §384-b
Affirmed

So continues the long, sad song of SSL §384-b. I always feel bad for appellate counsel on these specific appeals, because they've got to feel like they're taking the long walk to the guillotine. You really have to find that the trial court (or DSS or both) screwed up badly to win these appeals.

DSS engaged in an emergency removal of the child from the mother as a result of the mother's chronic drug abuse, as well as the child's exposure to such drug abuse. Upon the mother's admissions, the court found her to have neglected the child and the child was placed in foster care. DSS provided a potpourri of services to the mother to help her to stop her drug addiction and regain custody of her daughter - all to no avail. After the child was in DSS' care for over a year, DSS filed a TPR petition. After a trial, the mother's parental rights were terminated.

The mother appealed.

The record illustrates a parent that was so far gone to drug abuse that it was highly unlikely that she would ever return to normal. Despite engaging in and completing inpatient substance abuse counseling, the mother almost immediately relapsed upon her discharge, returning to her drug addicted lifestyle of using heroin, crack, pot, and prescription medicines, and disappearing completely for a month. Worse, upon resurfacing, the mother appeared at supervised visits with the child "exhibiting signs that she was under the influence of drugs, including slurred speech, glazed eyes and erratic and bizarre behavior that caused the child to become upset." The mother also refused to participate in any further substance abuse treatment and counseling and repeatedly refused to participate in drug treatment court.

Game over.