What Ever Happened to Dissents in Matrimonial Appeals?

Notes and comments by Elliot D. Samuelson, Editor

To those practitioners who have been fortunate enough to have begun their practice forty years ago, they were able to read an appellate decision that recited at length the facts upon which the decision was based, the points counsel made, and a lengthy discussion of the law as it applied to the facts. Memorandum decisions were infrequently utilized. Today, not only have the Appellate Courts failed to share with the bar the facts upon which they have based their opinions, but dissenting opinions have all but disappeared in matrimonial cases. For example, the Second Department, beset by an avalanche of work and an unbearable work load, have followed the course of least resistance, reducing to bare bones the rationale, omitting lengthy fact patterns, and reaching unanimous decisions. The statistics speak volumes. In the past five years, there have only been two dissents in the Second Department, five in the First Department, and none in the Third or Fourth Departments in matrimonial appeals.

The cases in the First Department where dissents appeared include Bloomfield v. Bloomfield, 281 AD2d 301 (2001), (involving the validity of a pre-nuptial agreement), Justice Friedman dissented in a four to one decision; Anonymous v. Anonymous, 286 AD2d 656 (2001), (involving Mayor Giuliani's ability to have his girlfriend at mayoral functions), Justices Rubin and Buckley dissented in a three to two decision; Gottesman v. Gottesman, 290 AD2d 201(2002), (determining whether an arbitration award can be modified by the court), Justice Rubin dissented in a four to one decision; Ober v. Ober, 287 AD 2d 282 (2001), (determining what constitutes sufficient cruelty for divorce), Justice Saxe dissented in a four to one decision; Blau v. Blau, 3AD 3d 167 (2004) (determining whether a temporary award was adequate and the production of requested documents justified), Justices Buckley and Rosenberger dissented in a three to two decision.

The Second Department dissents appeared solely in Minnick v. Minnick, 294 AD2d 473 (2002), (concerning the proper division of the marital residence), Justices Goldstein and Townes dissented in a three to two decision; and Covington v. Walker, 307 AD2d 908, (2003), (determining whether the statute of limitations precluded the divorce complaint), Justices Feuerstein and Krausman dissented in a three to two decision, which resulted in the Court of Appeals reversing the majority opinion.

Based upon this paucity of dissent, one cannot resist the conclusion that rubber stamp justice is the expedient for crushing burdens and overcrowded calendars. There is no question that the work loads of the Appellate Courts should be reduced and new divisions created, but that result will be subject to the vagaries of politics and economics, and the odds of that occurring appear to be slim.

If this assessment is correct, then it becomes far more important to create precedents that are meaningful to the matrimonial bar, and revive the dissenting opinion to place new vitality in the Courts. Surely, not every case that is heard before a four judge panel should result in an unanimous opinion without a contrary view.

Our survey to determine the number of dissenting matrimonial opinions in the four judicial departments in this State, in the past five years, revealed but seven. That is unacceptable, considering that hundreds of matrimonial cases each year are decided by the courts. It appears that less than 2% of all matrimonial cases heard contained dissenting opinions.

Why is dissent so vital? Justice Renquist once remarked that a meaningful judiciary must explore every aspect of an appeal to make certain that justice is done. If our Appellate courts were to do so, it would certainly engender a greater volume of dissents.

The Court of Appeals has also been guilty of unanimous justice in the past several years. Until Judge Smith joined the court and dissented in Rupert v. Rupert, 97 NY2d 661(2001) and Holterman v. Holterman, 3 NY3d 1 (2004), in which Judge Read concurred with the dissent, every opinion deciding a matrimonial appeal by the high Court was unanimous. Of particular vexation was the Holterman appeal, where not one of the seven judges thought it was time to overrule the O'Brien doctrine, and agreed it was proper to value a law license, as well as a law practice, despite the fact that a license cannot be transferred or sold, nor for the most part, an interest in a law practice.

We all know that every case is subject to varying interpretations and different decisions at the trial level, depending upon which judge hears the case. It is most difficult to prognosticate to a client what result will be reached, when it is clear that it will depend upon the judge who hears the matter and his or her philosophical bent, whether he or she seems to favor husbands or wives, and his or her economic background and upbringing. Why then does this not occur in the Appellate Court, where there is a wide diversity of judges, both male and female, all of whom were trial judges in the Supreme Court, and who reached varying decisions in the courts below based on essentially the same fact pattern.

Justice Cardoza, one of the most eloquent jurists to ever sit on the New York Court of Appeals, and the Supreme Court of the United States of America, had the ability to analyze the most complex fact patterns, and in a few words reach the heart of the matter. Who can forget his terse commentary in Wagner v. International Railway Co., 232 NY 176 (1921), where he explained, "Danger invites rescue!" Modern jurists would be well to emulate his decisions, his analysis and recitation of the facts, which have enabled members of the bar to determine how to try a case in the court below, and decide after trial whether an appeal would prove fruitful. Certainly, a comprehensive decision, expressing dissenting views, would actually reduce appeals and litigation in the lower courts, and encourage settlements. Courts believing that it is important to reduce the number of appeals must tutor the bar through comprehensive analysis of fact patterns, when deciding cases. Terse decisions, without exploring lengthy fact patterns, only serve to increase congestion, not reduce appeals.