Strahan Wins Appeal

Former New York Giants defensive end Michael Strahan on Tuesday won his appeal from an $18,000-a-month child support obligation imposed in his 2006 divorce, which a New Jersey appellate court found both exorbitant and unfairly apportioned against him.

The court, in Strahan v. Strahan, A-3747-06, said that the trial judge failed to make the specific findings of fact necessary to sustain his decision to add $200,000 a year to the $35,984 annual award that the couple’s twins girls are due under statutory guidelines.

While acknowledging there are unique problems with determining the reasonable needs of children of high-earning families, the court said trial judges should nevertheless avoid overindulgence — citing the doctrine of In re Patterson, 920 P.2d 450 (Kan. App. 1996), that “no child, no matter how wealthy the parents, needs to be provided [with] more than three ponies.”

The court also found error in the trial judge’s saddling of Strahan with 91 percent of the child support obligation, especially since the judge did not impute any income to Strahan’s former wife, Jean, even though she is college-educated and capable of working but has voluntarily chosen not to do so.

When the couple began dating in 1994, Michael Strahan was in his second season with the Giants and Jean Strahan was a model and manager for a cosmetics company, earning about $70,000 a year. In 1995, they moved in together and she quit her job. They married July 18, 1999, after signing a prenuptial agreement. Their twin girls were born on Oct. 28, 2004.

Divorce proceedings began in early 2005 and a judgment of divorce was entered on July 20, 2006. The couple agreed on joint custody of the girls, with Jean having primary residential custody. An amended judgment, entered in early 2007, ordered equitable distribution and child support. Strahan’s motion for reconsideration was turned down. The parties reached an out-of-court settlement on equitable distribution but not on support, which was left for the appeal.

The New Jersey appeals court agreed with Strahan that Essex County Superior Court Judge James Convery erred in setting the supplemental child support amount and in ordering him to pay 91 percent of it.

Although the parties’ experts agreed the Strahans’ marital standard of living was approximately $1 million a year, Convery found the “reasonable current standard of living” of Jean Strahan and the two children was $630,000 a year, or $52,500 per month. He imputed no income to her except $28,470 per month in net investment income, leaving her with a monthly $24,030 shortfall. He decided on a yearly support award of $235,984 and charged 91 percent of it to Strahan, who in 2006 earned about $5.87 million.

But the appeals court said Convery failed to make a detailed examination of Jean Strahan’s child support request and instead merely accepted her recitation of the children’s needs. Those “needs,” wrote Appellate Division Judge Lorraine Parker, included the children giving their nanny a 10-day vacation in Jamaica; diamond jewelry for their grandmother; $30,000 yearly for landscaping expenses; $36,000 a year for “equipment and furnishings”; and $3,000 yearly for audio visual equipment. Jean set their clothing needs at $27,000 a year, since the children needed new outfits every time they saw their father and one of them demanded a new purse every time she left the house.

“[T]he court made no distinction between what needs were reasonable, given the age of the children, and what simply amounted to a ‘fourth pony,'” wrote Parker, who was joined by Judges Rudy Coleman and Thomas Lyons.

Parker said it appeared that Jean Strahan was actually the beneficiary of some of the child support payments. While a custodial parent may reap some “incidental benefits” of a wealthy noncustodial parent’s child support payments the custodial parent cannot become the primary beneficiary, especially when there is no alimony.

The panel also agreed that income should be imputed to Jean Strahan, who decided not to work even though she held two college degrees, a previous career and “employment opportunities [that] were, in all likelihood, enhanced by her celebrity marriage.”

“There is no question that as a healthy, educated, forty-one year-old, defendant is capable of earning her own income,” added Parker, directing that on remand, the trial court should consider all possible sources of Jean Strahan’s income — earned and unearned — as well as her assets in determining her share of support.

The judges also reversed the trial court’s order that Michael Strahan take out a $7.5 million disability insurance policy as security for child support, premised on the possibility that injury or sickness could leave him unable to play football. They found the situation no different than that of any other injured or ill divorced parent who is thus left with reduced income, entitling him to seek a modification of child support.

They further found the rationale for the insurance moot since Strahan gave up football in June to become a commentator. “Plaintiff’s retirement further illustrates the unreasonable requirement of the disability policy,” Parker said.

Finally, the judges reversed a $13,777 fee award for Jean Strahan’s lawyers in connection with Michael Strahan’s post-judgment motion for reconsideration, calling it an abuse of discretion. The parties, in their prenuptial agreement, had assumed responsibility for their own counsel fees and Strahan’s motion was not made in bad faith, Parker said.

The panel rejected Strahan’s request that on remand, the case be assigned to another judge, finding a bias against Strahan could not be inferred from Convery’s rulings against him.

Michael Strahan’s lawyer, Angelo Genova, of Livingston, N.J.’s Angelo, Burns & Vernoia: “Mr. Strahan is gratified by the result and feels his legal position has been vindicated. He hopes the matter can be resolved amicably, going forward in the interests of the children.”

Jean Strahan’s lawyer is likewise optimistic. “This is a period at the end of a long sentence,” says Ellen Marshall, of Greenbaum, Rowe, Smith & Davis in Roseland, N.J. “We’re glad Judge Convery is remaining with these issues, and we’re confident we can resolve of the remaining issues amicably.”

Source: New Jersey Law Journal

Strahan Appeal Argued

Sounds as if New York Giant Michael Strahan may have had a successful day in an appellate court, if the Newark Star Ledger is to be believed:

The slugfest that is Michael Strahan’s divorce case resumed today in state appellate court, where the football player found a sympathetic ear for his claim that a lower court went too far in awarding his ex-wife $14 million.

Strahan’s attorney, Angelo Genova, used the word “absurd” seven times to belittle a 2007 opinion by Superior Court Judge James Convery, who gave Jean Strahan twice what her husband’s attorneys felt she was due.

Arguing before a three-judge appellate panel in Morristown, Genova said that because the New York Giant failed to set aside 20 percent of his income per year under a pre-nuptial agreement, Convery in effect awarded his ex-wife far more than the agreement ever intended.

Based on questions the judges put to Jean Strahan’s attorney, Ellen Marshall, they appeared to be leaning toward Genova’s position.

“You want to penalize him, essentially, for not creating the 20 percent allocation,” Judge Lorraine Parker told Marshall. “You want to penalize him for that breach rather than reach a remedy that is equitable to both parties.”

Michael Strahan was not in court today, but his ex-wife wife watched from the rear of the spectator gallery.

The couple, who lived in a Montclair mansion with their twin daughters, filed for divorce in March 2005 and fought a nasty battle in a Newark family court the following year.

Convery sided with Jean Strahan in his Jan. 12, 2007, ruling, but the Superior Court Appellate Division stayed his decision two months later pending an appeal. Parker told the two sides today to not expect a quick decision because of the size of the record in the divorce case.

A Super Bowl win and an appellate reversal in the same year. Not too shabby.

Supreme Court Declines to Hear Grandparent Visitation Case

The United States Supreme Court has declined to hear a Pennsylvania man’s appeal that raised the question of whether grandparents should be required to show that keeping children away from grandparents would be harmful to the children as a condition for granting the grandparents visitation rights. The Pennsylvania Supreme Court ruled, in Fausey v. Hiller that no such showing is required. In denying Shane Fausey’s petition for certiorari, the Supreme Court declined the opportunity to clarify an area of the law that they left fairly muddled the last time they considered the issue in a case that resulted in a badly splintered Court and multiple opinions.

When The Trial Court Tries to Do Your Adversary’s Job

It often leads to a reversal at the appellate level, as happened in the case of Ney v. Ney, in which the Pennsylvania Superior Court reversed a trail level decision denying a father’s request for modification of his support obligations.

Amicus Briefs in Supreme Court Grandparent Visitation Case Available Online

Howard Bashman at How Appealing has posted amicus briefs for and against writ of certiorari in a grandparent visitation case currently pending in the US. Supreme Court, Fausey v. Hiller, No. 06-863.Many thanks to Howard for making these available.

New York Court Upholds Grandparent Visitation

The New York Court of Appeals, that state’s highest court, has upheld the state’s grandparent visitation statute. The law permits grandparent visitation rights where it is shown that one parent is deceased, or equity would otherwise warrant such visitations. As I noted in a previous post on this issue, the Pennsylvania Supreme Court in a recent case, likewise found that orders requiring grandparent visitation do not violate the custodial parent’s 14th amendment right to raise his or her children as he or she sees fit. A petition for certiorari, seeking review in the United States Supreme Court, has been filed in the Pennsylvania case. Whether in the context pf the Pennsylvania case or otherwise, there can be little doubt that the Supreme Court will ultimately have to weigh in on this issue again.

New York Court of Appeals to consider grandparent visitation

Today’s New York Sun contains this article about a case now pending before the New York Court of Appeals – that state’s highest court – that involves the constitutionality of court ordered grandparent visitation. As the author correctly notes, when the Supreme Court last took uo the issue the case resulted in a court so fractured – 6 opinions were issued – that the decision provides oittle practical guidance. Closer to home, the Pennsylvania Supreme Court has ruled that such orders do not violate the parents’ constitutional right to raise their children as they see fit (link to the majority opinion here). Howard Bashman, publisher of the How Appealing blog, is appellate counsel to the losing party in that case, and has filed a petition for a writ of certiorari to the United States Supreme Court. You can be certain that the US Supreme Court will have to take up the issue eventually.