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#282 Third Department Caselaw Round-Up for January 12, 2012, Part 10 of 14

138 Post 01-12-12, Part 10 Third Department January.pngThe first case is a classic example of the issues one encounters when a lengthy marriage terminates and the wife has given up her career in order to raise the couple’s children. As a result, and as you can well imagine, (long-term) maintenance often takes center stage.

The second case is a neglect case. And while, in general, neglect cases are basically all the same, it is in the (often bizarre) details that make each and every neglect case utterly different from every other. These are often the kinds of cases where you think that nothing can surprise you – only to find out that you are quite wrong.

Also, another note: mea cupla. I’ve been a bit sloppy in conflating maintenance with spousal support, primarily because they are terms that are often treated as if they are interchangeable. They are not. Maintenance is awarded as part of an action for divorce, in Supreme Court, under DRL ยง236, while spousal support is awarded as the result of a petition by a married spouse for support, in Family Court, under FCA articles 4 and 5-B (UIFSA).

29-18 Post Saratoga County.pngCase #120 #512896
O’Connor v. O’Connor, ___ A.D.3d ___, ___ N.Y.S.2d ___ Saratoga Supreme – Nolan Issues: Abandonment; Counsel Fees; Divorce; Maintenance Cited statutes: DRL generally Dismissed & Affirmed

This case involves three separate appeals. The parties were married in 1986 and have three children. The wife commenced the action for divorce on the grounds of the husband’s abandonment. After trial, the court granted the wife maintenance of $1,000.00 per month until she becomes eligible for Social Security, in 2022, with some exceptions. The court also granted the wife $7,500.00 of over $20,000.00 in counsel fees.

The husband appealed the judgment of divorce, which, in turn, compelled the wife to cross-appeal – and move the court for an award of appellate counsel fees. The court then granted the wife $900.00 in counsel fees for making the motion – and $9,000.00 for appellate counsel fees. And then the husband appealed that order as well.

As you can guess, the Third Department is unpersuaded by the husband’s appeal, and it set forth this important quote on the matter: “Maintenance is appropriate where, among other things, the marriage is of long duration, the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial non-economic contributions to the household or to the career of the payor. The fact that a wife has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living.”

So, boys and girls, if you have been married for a good long time (20+ years) and your spouse has dropped out of the workforce to help raise the kids, be prepared to be required to pay a hefty amount in maintenance for a good long time, in the event you’d like a divorce.

For “score card” purposes, this appeal is therefore affirmed.

29-19 Post Schenectady County.pngCase #121 #512160
Matter of Joseph MM., ___ A.D.3d ___, ___ N.Y.S.2d ___ Schenectady Family – Clark Issues: Abuse; Anger Management; Domestic Violence; Imminent Risk; Mental Retardation; Neglect; Removal Cited statutes: FCA Art. 10 Affirmed

The mother and father were living together in a home for persons with mental disabilities. Their son, too, had a variety of mental disabilities. While the mother was still in the hospital with her son, after giving birth to him, CPS received a hotline report of suspected child abuse. DSS thereafter filed a petition for neglect against both parents.

The trial court found that the respondents’ history of mental retardation, coupled with incidents of angry outbursts, domestic violence, and poor judgment, together with their poor parenting skills and inability to protect themselves or their newborn son, supported a finding of neglect. The parents appealed.

Standing on its own – without any fact pattern pertaining to the special needs of the newborn, it was likely that the Third Department would affirm. However, when you have mentally retarded parents with poor judgment and parenting skills trying to care for a newborn with substantial medical and mental disabilities, it’s pretty much a foregone conclusion that the matter will be affirmed on appeal, as happened here.

To make matters worse and truly seal their fate, the parents apparently refused to testify on their own behalf – which is almost always the kiss of death in family court. Why? Because a failure to testify creates “the strongest inference against them as the opposing evidence would allow.”

While it may appear to be a smart tactical move to avoid having your client testify at trial in family court (especially in cases where there is the danger of collateral consequences in a subsequent criminal trial), in my experience, it is usually best to err on the side of having your client testify. Otherwise, should you appeal the case, you will find that it’s often dead on arrival.

Caselaw Round-Up Score Card:

Affirmed: 79 (65.29%)
Decision Withheld: 6 (4.96%)
Dismissed: 8 (6.61%)
Modified: 11 (9.09%)
Reversed: 17 (14.05%)

Total: 121