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#317 Third Department Caselaw Round-Up for March 1, 2012, Part 3 of 3

317 Post 03-01-12, Part 3 Third Department March.pngThe first case is basically a garden variety sexual abuse case against a “young victim”. The result is pretty much as you might expect: do not pass Go, do not collect $200.

The second case is amazing because it perfectly illustrates some of the financial consequences of a separation versus a divorce. It is also amazing to me personally, because I currently have a (potential) client who is on the fence over whether or not to retain me to divorce a wife with whom he has not lived in over thirty (30) years. My advice was to initiate a divorce action ASAP – for various reasons, one of which is set forth within this case. Time might’ve been on the Rolling Stones’ side, but it’s not on anyone else’s. Carpe diem!

317 Post-2 Warren County.pngCase #181 #103662
People v. Hughes
Warren County-Hall Issues: Criminal Charges Cited statutes: Penal Law §60.13, 70.80, 130.65 Affirmed

The “defendant was convicted of multiple crimes arising out of allegations that he had sexually abused two young victims”. Those convictions were later reversed on appeal. The defendant was thereafter retried on a single charge of sexual abuse in the first degree and found guilty. He was then sentenced to a prison term of 7 years with 5 years of post-release supervision.

The defendant appealed.

The defendant’s arguments were as follows:

1. The defendant was denied a fair trial due to the court’s evidentiary rulings;
2. A pertinent part of the victim’s testimony was unpreserved; and 3. The court “improperly sentenced [the defendant] to the maximum potential term of imprisonment as retribution for the reversal of [the defendant’s] prior convictions”.

The Third Department did not accept any of these arguments. However, the third argument is interesting insofar as it effectively raises an issue that is probably on everyone’s mind but is next to impossible to prove to any reasonable degree: did the court engage in pay-back? I think the answer is not so much “no” as it is “there is simply no way to know”. It always comes down to a matter of trust.

Case #182 #513248
Nizolek v. Nizolek
Warren Family-Breen Issues: Divorce; Spousal Support Cited statutes: DRL §236; FCA Art. 4 Affirmed

This one is an eye-opener.

Both litigants are in their eighties, having been married in 1947, with six adult children. In 1979, they parted company and have been living separate and apart ever since – but have never divorced. The wife, now destitute, petitioned the court for spousal support twice before, to no avail. However, third time’s the charm, with a twist.

Between the wife’s second and third petitions for spousal support, lo and behold, the husband began to receive “monthly veterans’ disability benefits of $1,064 for injuries he sustained while serving in World War II.” Cha-ching!

The support magistrate “found that, but for [the husband’s] disability award, the situation had not changed since [the wife’s] prior, unsuccessful efforts, and dismissed the petition.” That’s sort of like saying “aside from that Mrs. Lincoln, how was the play?” insofar as it misses the whole damned point: the husband now has resources from which he can be expected to reasonably pay spousal support!

The wife filed objections with family court and the court ordered the husband to pay to the wife the amount of $250 per month.

The husband (very likely shocked beyond belief) appealed.

And here is where it gets interesting! Had the couple divorced, the husband’s disability benefits would have been treated as separate property, which would not be subject to equitable distribution, pursuant to DRL §236(B)(1)(d)(2). But, they never divorced, so DRL §236 never comes into play! So which statute does come into play? Funny you should ask. FCA §413(5)(iii)(E) comes into play. And this statute “specifically provides that veterans’ benefits shall be included as income for purposes of determining a parent’s child support obligation“. But this is spousal support, not child support. So what gives?

Well, what gives is that the Third Department takes a leap of faith (or logic). Instead of parsing FCA §413(5)(iii)(E), the Third Department looked to the immediately preceding statute: FCA §412. Why? Well, where FCA §413 is narrow, FCA §412 is broad. So broad, in fact, that one can find the rationale one needs to affirm this matter on appeal. The Third Department engages in this logical somersault: since they can’t find anything in FCA §412 which would preclude the consideration of veterans’ benefits in an award of spousal support, the presumption is, therefore, that veterans’ benefits can be considered for such an award.

Very slick indeed.

Since I alluded to the Stones at the beginning of this post, I’ll allude to another favorite band. This case stands for the (musical) proposition that when the music’s over, turn out the light. Or you may live to regret it.