Gavel main.jpgThe rule of law discussed by Monroe County Supreme Court Justice Richard A. Dollinger in Lomaglio v. Lomaglio is undoubtedly correct. An ex-husband may not be required to provide health insurance beyond the period he is required to pay his ex-wife maintenance. The question is was he allowed to correctly apply the law?

With allusions to Gilbert and Sullivan’s H.M.S. Pinafore, Justice Dollinger answered his own question:

When does a trial court judge get to review or opine, expand upon or possibly modify an appellate division ruling? Answer: “hardly ever.”

Domestic Relations Law §236B(8) is straightforward enough. A divorcing spouse may not be required to provide health insurance beyond the support period:

8. Special relief in matrimonial actions. a. In any matrimonial action the court may order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage not to exceed such period of time as such party shall be obligated to provide maintenance, child support or make payments of a distributive award.

So why is Justice Dollinger’s just-published February, 2012 opinion implementing this provision front page news (New York Law Journal 5/21/2012)? It is because 12 years ago, the Appellate Division Fourth Department appears to have held that Mr. Lomaglio would be obligated to provide health insurance to his ex-wife, permanently, although the 18-month period for which he was obligated to provide maintenance to his ex-wife had expired.

The Lomaglios were divorced in 1998. Their divorce judgment, based upon a settlement, required maintenance to be paid for 18 months, but was silent as to Mr. Lomaglio obligation to provide his ex-wife with health insurance.

Ms. Lomaglio’s 1999 application for contempt and to modify maintenance and add a health insurance obligation was denied (Affronti, J. [who remains on the bench as a certificated Supreme Court Justice]). Modifying that result in its June 16, 2000 decision(apparently more than 18 months after the divorce judgment), the Fourth Department awarded Ms. Lomaglio health insurance:

The record supports the court’s determination that defendant has the education and qualifications to enable her to become self-supporting within 18 months, and we perceive no basis to disturb the court’s exercise of discretion in awarding durational maintenance for that limited period . . . . However, because defendant’s medical condition is likely to be permanent [she was diagnosed with an autoimmune disease in 1989], the court should have directed plaintiff to continue to provide the same level of medical insurance coverage that he provided during the marriage to the extent such coverage is not provided by defendant’s employer . . . . Thus, we modify the judgment accordingly.

Mr. Lomaglio “complied” by providing benefits until 2008, at which time he just stopped. In 2009, Ms. Lomaglio sustained an injury covered by workers’ compensation. In 2011, she was diagnosed with Type 2 diabetes. For a brief period she was covered by Medicaid, but more recently Ms. Lomaglio has been covered by the Healthy New York program at a cost of $299.45 per month.

In the current application decided by Justice Dollinger, Ms. Lomaglio sought reimbursement and restoration of the health insurance coverage mandated by the Appellate Division. Justice Dollinger denied that relief, holding that he was without authority to award health insurance after the period of maintenance expired.

Faced with the Appellate Divison decision, however, Justice Dollinger’s analysis contorted through different theories to reconcile his result. He visited the Appellate Division libary in an apparently-failed attempt to review the Record on Appeal (as a matrimonial case, it was closed to public inspection). As it could not be shown that the Appellate Division had considered the impact of the D.R.L. §236B(8) limitation, Justice Dollinger felt he was not barred by “law of the case” or “res judicata” rules from addressing this issue apparently for the first time.

Moreover, as the Appellate Division did not say, exactly, that Mr. Lomaglio’s obligation to provide health insurance was permanent, Justice Dollinger resolved the perceived ambiguity in line with the clear mandates of the statute.

Still further, Justice Dollinger did not deprive Mr. Lomaglio of the benefits of the statutory limitation merely because he voluntarily provided insurance through 2008.

Accordingly, Justice Dollinger granted Mr. Lomaglio’s “cross-motion to terminate the obligation to pay these costs” [why terminate an obligation that was never ordered?], also denying the cross-applications of the parties for fees.

Previous blogs have pointed out the public policy supporting the finality of decisions. While the statutory limitation of D.R.L. §236B(8) should have applied, what is the effect of the failure of the Appellate Division to discuss it, or the parties to raise it 12 years ago? It has been repeatedly held that the benefits under statutes may be waived. Here, had the limitation been raised 12 years ago, perhaps the trial court, or the Appellate Division might have ordered permanent maintenance of $1 per year.

If an issue could have and should have been raised in the past, and no overwhelming public policy is offended, past decisions of higher courts should be honored. Of course, Ms. Lomaglio will now have the opportunity to go back to the Fourth Department to ask for its position.

J. Scott Odorisi, Esq., of East Rochester, represented the ex-husband. Robert Levine, of Webster. represented the ex-wife.