Howard S. v. LILLIAN S.Howard S. v. LILLIAN S.
Lead Opinion
OPINION OF THE COURT
Thе dispute in this matrimonial action centers on the extent of discovery that should be permitted into issues of marital fault. As set forth in the complaint, plaintiff husband and defendant wife were married in May 1997. Defendant had one child from a previous relationship, who was later adopted by plaintiff. Three other children were born during the course of the marriage. The youngest child, born in 2004, was the product of an extramarital affair between defendant and an unidentified man. Plaintiff, unaware of his wife’s infidelity until the child was over three years old, has raised that child as his own. Plaintiff аlleges that, although defendant knew or should have known that the child was not plaintiffs, she withheld that information from him.
In 2007, defendant allegedly commenced another extramarital affair with an individual who was initially named as a correspondent in this action. Plaintiff confronted defendant with his susрicions of her infidelity, but she denied that she was unfaithful. Defendant maintained that there were no grounds for divorce and the parties entered into the collaborative law process at her suggestion. Several months later, plaintiff obtained the results of a DNA marker test revealing that he was not the biological father of the youngest child.
Soon thereafter, plaintiff commenced this action asserting two causes of action for divorce—based on grounds of cruel and inhuman treatment and adultery—and a cause of action for fraud, seeking сompensatory and punitive damages. The fraud allegations stated that defendant represented that she had been faithful to plaintiff and that he continued to participate in the marriage in reliance upon those representations to his financial detriment. Hе sought to recover damages under the fraud claim based upon costs he incurred due to defendant’s failure to disclose her adultery—specifically, the amounts he expended in support of the youngest child, profits from marital investments that he would have deferred and fеes for the collaborative law process. Among other things, plaintiff sought equitable distribution of the marital property, alleging that the bulk of the
Defendant moved to dismiss or sever the fraud cause of action and plaintiff cross-moved for liberal discovery relating to his fraud claim and to the issue of defendant’s egregious fault for purposes of equitable distribution.
A majority of the Appellate Division affirmed, agreeing that defendant’s behavior did not constitute egregious fault such that it could be considered for purposes of equitable distribution (
Domestic Relations Law § 236 (B) (5) (d) sets forth the factors a court must consider when making an equitable distribution award. The statute does not specifically provide for considerаtion of marital fault, but does contain a catchall provision that allows a court to consider “any other factor which the court shall expressly find to be just and proper” (Domestic Relations Law § 236 [B] [5] [d] [14]). We have, however, rejected the notion that marital fault is a “just and proper” factor for consideration, “[e]xcept in egregious cases which shock the conscience of the court” (O’Brien v O’Brien,
Although we have not had occasion to further define egregious cоnduct, courts have agreed that adultery, on its own, does not ordinarily suffice (see e.g. Newton v Newton,
The complaint alleges that defendant committed adultery and that, as a consequence of that conduct, she conceived a child that she knew or should have known was fathered by another man and that she kept that information from plaintiff. Even taking these allegations as true, plaintiff has essentially stated a cause of action for adultery. While adultery, and many of its unintended consequences, will undоubtedly cause a great deal of anguish and distress for the other spouse, it does not fit within the legal concept of egregious conduct. Moreover, plaintiffs cause of action for fraud
Although CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action,” Domestic Relatiоns Law § 236 (B) (5) (d) is the specific statutory provision that governs equitable distribution in marital actions. Despite the general policy in favor of liberal discovery, this Court has interpreted the more specific section of the Domestic Relations Law to allow for consideration of marital fault in only a limited set of circumstances involving egregious conduct. In the absence of those circumstances, liberal discovery on issues of marital fault—at variance with O’Brien—should not ordinarily be permitted, though there may be exceptions in rare circumstanсes (see e.g. Anonymous v Anonymous,
Plaintiffs contentions pertaining to permissible damages with respect to his fraud cause of action are without merit.
Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
Notes
. The parties indicate that they have stipulated to a divorce on the ground of constructive abandonment. A copy of that stipulation was not included in the record on appeal.
. Although the Appellate Division opinion below generally stated the correct standard, to the extent that it can be read to limit egregious conduct to behavior involving extreme violence, the definition should not be so restrictive.
. We note that since defendant did not сross-appeal the denial of the motion to dismiss the fraud cause of action to the Appellate Division, the issue of whether or not plaintiff stated a cause of action for fraud was not presented to that Court and is not before us.
. This holding, of course, has no impаct on a party’s ability to seek discovery for the dissipation of marital assets (see Domestic Relations Law § 236 [B] [5] [d] [12]).
Dissenting Opinion
I respectfully dissent because, in my view, it is premature to rule that wife’s behavior does not, as a matter of law, constitute egregious misconduct for purposеs of equitable distribution under the Domestic Relations Law. Therefore, husband is entitled to discovery on his claim.
It is well settled that parties are entitled to “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101 [a] [1]). This provision mаkes no exception for matrimonial actions. Further, as the majority recognizes, this Court has held that marital fault may be considered under factor 14 of Domestic Relations Law § 236 (B) (5) (d) (14), which provides that a court may consider “any other
The majority finds that discovery on the issue of fault is precluded in this case. Although neither party affirmatively moved for a ruling on the egregious misconduct claim, the majority reasons thаt the conduct alleged by husband is not so egregious as a matter of law to be considered for purposes of equitable distribution. In my view, this is putting the cart before the horse. Indeed, the majority has implicitly accepted the view of the First and Second Departments that a party is required to make a motion for discovery on the issue of fault (see Ginsberg v Ginsberg,
Further, I cannot agree with the majority’s reasoning for imposing a rule that would require a party to first seek permission from the court to obtain discovery on egregious fault. The majority reasons that, despite the cоurt’s protective power, “there remains significant potential for abuse and harassment as a result of such discovery” (majority op at 437). However, considerations of abuse and harassment may be found in any contentious litigation. Further, fault is almost always an issue in a matrimonial case as a finding of fault or the living apart of
Further, the majority believes there is a “possibility that parties will be induced to enter into disadvantageous settlements rather than litigate these types of intensely personal issues” (majority op at 437). At least one matrimonial scholar disagrees:
“Often, thе pretrial examination can motivate settlement and avoid the far more bitter confrontation of the parties at trial, thereby paving the way for more harmonious post-divorce relationships. In any event, there would appear to be no valid reason to force matrimonial litigants to trial with less opportunity for disclosure and preparation than in any other civil action” (2 Tippins, New York Matrimonial Law and Practice § 16:29).
Assuming wife moved for a protective order limiting husband’s discovery on the issue of fault, I think the issue would be close. While adultery has generally been held not to be an act so egregious as to become a factor to be considered when distributing marital property, it may be a factor if it amounts to “egregious” misconduct. Here, wife not only committed adultery on more than one occasion, she also had a child out of wedlock and deceived both husband and child as to that child’s birth parent. In my view, it is premature without additional discovery to conclude at this juncture that wife’s misconduct is not so egregious to warrant consideration for purposes of the Domestic Relations Law.
Judges Ciparick, Graffeo, Read, Smith and Jones concur with Chief Judge Lippman; Judge Pigott dissents in a separate opinion.
Order affirmed, etc.