NY Courts Define 'Egregious Conduct'

Like New Jersey, New York generally does not consider fault when distributing marital assets. (See Strober L: Marital Misconduct and Alimony. The Matrimonial Strategist, November 2006.) However, there are circumstances under which both states will factor in fault.

New York's Domestic Relations Law (DRL) ' 236 was amended, effective July 16, 1980, to add as Part 'B' the availability of multiple financial relief, including equitable distribution. Left in place as Part 'A' of the statute were the provisions for 'alimony' (termed 'maintenance' for the first time in Part 'B') for all actions begun before the effective date of the amendment. Under Part 'A,' alimony had been statutorily barred for a spouse found guilty of fault. While buried in the text, here is the language that led to that result:

Such direction may be made notwithstanding that the court refuses to grant the relief requested by either spouse ' (2) by reason of the misconduct of the other spouse, unless such misconduct would itself constitute grounds for separation or divorce '

In plain English, this meant that, under Part 'A,' a spouse could not receive alimony as a matter of law, if found guilty of fault sufficient to constitute grounds for separation or divorce (whether or not a separation or divorce were being sought on those grounds). Upon the enactment of Part 'B,' which did not contain this language, the question immediately arose: What effect, if any, would fault have upon the awarding of equitable distribution and maintenance? As to child support, the statute explicitly barred consideration of fault in fixing child support: 'The court shall not consider the misconduct of either party.' (DRL '236(B)(7)).

The Concept of Egregious Fault

Appellate cases quickly established that fault was not to be considered in distributing property and awarding maintenance unless it was egregious. In Blickstein v. Blickstein, 99 A.D.2d 287 (2nd Dept. 1984), the Second Department held:

We conclude on this appeal that marital fault is not generally a relevant consideration in the equitable distribution of marital property of divorcing spouses ' This is not to deny, however, that there will be cases in which marital fault, by virtue of its extraordinary nature, becomes relevant and should be considered. But such occasions, we would stress, will be very rare and will require proof of marital fault substantially greater than that required to establish a bare prima facie case for matrimonial relief. They will involve situations in which the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship-misconduct that 'shocks the conscience' of the court thereby compelling it to invoke its equitable power to do justice between the parties.

The case the Second Department cited for this proposition, D'Arc v. D'Arc, 175 N.J.Super. 598, in which the court considered fault, although it is not generally considered in New Jersey, where the husband had offered $50,000 for the murder of his wife.

As to maintenance, the Blickstein court recognized that 'the role of marital fault may be different in the context of fixing an award of maintenance.' The decision also made clear that while marital fault, unless egregious, is not to be considered; economic fault, which consists of dissipation or secreting of assets, or other conduct which unfairly prevents the court from making an equitable distribution of marital property, remains relevant.

In the First Department, McMahon v. McMahon, 100 A.D.2d 326 (1st Dept. 1984), followed the Blickstein holding with regard to equitable distribution and in Wilson v. Wilson, 101 A.D.2d 536 (1st Dept. 1984), expressly included spousal maintenance under the rule. The Fourth Department also chose to follow Blickstein in Pacifico v. Pacifico, 101 A.D.2d 709 (4th Dept. 1984). So we were left with the general principle: Fault is only to be considered when it is 'egregious' ” defined as attempting to murder the other spouse or hiring someone to do so.

Havell v. Islam

Justice Jacqueline Silbermann's decisions in Havell v. Islam have substantially amplified the Blickstein rule. As reported at 186 Misc.2d 726 (N.Y.Co. 2000), the husband in that case had first sought to preclude the wife from offering testimony of the husband's misconduct on the alleged basis that it was not a 'just and proper' factor to be considered in connection with the equitable distribution of the parties' marital property, as the conduct was not egregious and did not 'shock the conscience' of the court, citing Blickstein and O'Brien v. O'Brien, 66 N.Y.2d 756 (1985) ' presumably on its language of marriage being an economic partnership.

By this time, the husband had been arrested and indicted for attempted murder in the second degree, and assault in the first degree. Having pleaded guilty to assault in the first degree (but not attempted murder), the husband confirmed that he had struck the wife with a barbell with intent to cause serious personal injury and was serving an 8.5-year prison term.

In a lengthy decision listing 21 different acts that the wife asserted collectively added up to egregious misconduct, Justice Silbermann reviewed the case law in this and other states, as well as the literature, and denied the husband's request for preclusion, stating:

As eloquently stated by Judge Imbriani in the case of D'Arc v. D'Arc (164 N.J.Super. 226, 242, 395 A2d 1270, 1278 [1978]), '[t]he obligation of th[e] court is to implement the purpose of law, which is to do justice, and not to mechanically apply established principles of law, even when they compel an absurd result.' In the case at bar, the wife alleges the husband engaged in conduct resulting in lasting emotional and physical harm to herself and the parties' children. In this court's view, such conduct, if proven, is so egregious and shocking that the court must invoke its equitable power so that justice may be done between the parties.

After trial, as reported in the New York Law Journal July 30, 2001, p. 25, col. 2 (Sup. Ct., N.Y. County), Justice Silbermann found that the husband had violently attacked his wife with a barbell, causing her teeth and portion of her jaw to fly across the room and bloodying her until her features were unrecognizable; all this in front of three of his young children and despite their cries and pleas for him to stop.

Describing the husband's actions as a 'murderous assault,' Justice Silbermann held:

Accordingly, this court holds that in cases where one spouse attempts to murder the other spouse, there need be no showing of an adverse economic impact on the victim spouse in order to reduce the offending spouse's equitable distribution.

The Appeal

On appeal, the First Department affirmed the decision, 301 A.D.2d 339 (1st Dept. 2002); rejecting the husband's argument that, inter alia, to qualify under the Blickstein test, the spouse's misconduct had to have 'such adverse physical and/or psychological effect upon the innocent spouse so as to interfere with her ability to be or become self-supporting.' (The court found that the husband had incorrectly relied upon two cases where the husband's acts of domestic violence were held egregious, had prevented or diminished the wife's ability to be self-supporting and affected the award of equitable distribution. Murtha v. Murtha, NYLJ May 15, 1998, p. 29, col. 4 [husband's long history of physical and emotional abuse of wife culminating in an incident resulting in the husband's arrest for assault and reckless endangerment] and Pollack v. Pollack, NYLJ Oct. 25, 1999, p. 40, col. 3 [husband stabbed the wife repeatedly with a butcher knife while she slept]. While these cases had findings concerning the economic effect on the wife, the Appellate Division observed that they had never reached the question of whether a showing of economic effect is required to establish egregiousness.) The First Department observed that Blickstein expressly distinguished marital fault from 'economic fault'; and there is no such requirement.

The court also found without merit, the husband's argument that the trial court had mischaracterized the barbell attack as attempted murder, since he had only pleaded guilty to first-degree assault, stating 'The court was not bound by defendant's generous plea bargain.'

DeSilva v. DeSilva

In her recent decision in DeSilva v. DeSilva, NYLJ Sept. 6, 2006, Justice Silbermann, relying on Havell v. Islam, expanded the definition of egregious fault to be considered in determining equitable distribution so as to include a long history of physical and mental abuse that increased in intensity over the years.

In DeSilva, the husband was found to have:

• Returned to the marital apartment drunk and, in the presence of the parties' then-3-year-old child, woke the wife yelling obscenities;
• Told the 3-year-old child 'your mother is a cunt';
• Told the pregnant wife he was leav-ing her and he never wanted the baby; spit in her face; threw a packed duffle bag at her pregnant abdomen; and said he wished he could get rid of the baby and hoped the plaintiff would lose it;
• Began screaming at the wife on their way back from a holiday trip to Rockport, ME, when the parties stopped to get gas, accusing her of staring at a 'black man' who was pumping gas; calling her 'bitch,' 'cunt,' 'whore,' and telling their older child his mother was all of these terrible things. During this tirade, the husband was driving extremely fast and recklessly, causing the wife to crawl into the back seat to get away from him and be closer to the children;
• Continued the tirade for 2 hours after the parties returned home, once again telling the older child that his mother was a 'whore and a cunt' and that she has 'sex with lots of different men other than me'; and
• Became enraged and threw the wife to the ground.

Judge Silbermann observed that the wife's testimony was made all the more credible because of the husband's actions in the courtroom over the course of the case, including a violent outburst at the end of trial. Indeed, part of the relief granted, based upon the husband's inability to manage his anger, was the issuance of a permanent Order of Protection for the wife and a finding that all the husband's parenting time with the children should be supervised.

In enumerating the factors considered on the equitable distribution, Justice Silbermann's decision listed:

13. Any other factors ” There has been a pattern of conduct involving both physical and verbal abuse which rises to the level of egregious fault. As this court stated in its interim decision dated Dec. 18, 2000 in Havell v. Islam, 186 Misc2d 726.

(The judge then went on to quote extensively from that decision).

Accordingly, having considered the factors as well as case law, statute, and literature, Justice Silbermann held that the pattern of domestic violence warranted awarding all of the marital assets to the wife and holding the husband liable for all of the marital debts.

Conclusion

Even in Blickstein, which appeared to limit the definition of egregious fault to attempts to murder the other spouse, the Second Department quoted the New Jersey Court in D'Arc as stating:

' where a spouse has committed an act so evil and outrageous that it must shock the conscience of everyone, it is inconceivable that this court should not consider his conduct when distributing the marital assets equitably.

Justice Silbermann's decisions in Havell v. Islam, and now DeSilva v. DeSilva, have applied that concept to include within the rubric of 'egregious fault' physical and verbal abuse which is 'so evil and outrageous that it must shock the conscience of everyone'; an appropriate and logical extension.

Myrna Felder is a partner in the New York law firm of Raoul Lionel Felder.The article first appeared in the New York Law Journal, a sister publication of this newsletter.

Like New Jersey, New York generally does not consider fault when distributing marital assets. (See Strober L: Marital Misconduct and Alimony. The Matrimonial Strategist, November 2006.) However, there are circumstances under which both states will factor in fault.

New York's Domestic Relations Law (DRL) ' 236 was amended, effective July 16, 1980, to add as Part 'B' the availability of multiple financial relief, including equitable distribution. Left in place as Part 'A' of the statute were the provisions for 'alimony' (termed 'maintenance' for the first time in Part 'B') for all actions begun before the effective date of the amendment. Under Part 'A,' alimony had been statutorily barred for a spouse found guilty of fault. While buried in the text, here is the language that led to that result:

Such direction may be made notwithstanding that the court refuses to grant the relief requested by either spouse ' (2) by reason of the misconduct of the other spouse, unless such misconduct would itself constitute grounds for separation or divorce '

In plain English, this meant that, under Part 'A,' a spouse could not receive alimony as a matter of law, if found guilty of fault sufficient to constitute grounds for separation or divorce (whether or not a separation or divorce were being sought on those grounds). Upon the enactment of Part 'B,' which did not contain this language, the question immediately arose: What effect, if any, would fault have upon the awarding of equitable distribution and maintenance? As to child support, the statute explicitly barred consideration of fault in fixing child support: 'The court shall not consider the misconduct of either party.' (DRL '236(B)(7)).

The Concept of Egregious Fault

Appellate cases quickly established that fault was not to be considered in distributing property and awarding maintenance unless it was egregious. In Blickstein v. Blickstein , 99 A.D.2d 287 (2nd Dept. 1984), the Second Department held:

We conclude on this appeal that marital fault is not generally a relevant consideration in the equitable distribution of marital property of divorcing spouses ' This is not to deny, however, that there will be cases in which marital fault, by virtue of its extraordinary nature, becomes relevant and should be considered. But such occasions, we would stress, will be very rare and will require proof of marital fault substantially greater than that required to establish a bare prima facie case for matrimonial relief. They will involve situations in which the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship-misconduct that 'shocks the conscience' of the court thereby compelling it to invoke its equitable power to do justice between the parties.

The case the Second Department cited for this proposition, D'Arc v. D'Arc, 175 N.J.Super. 598, in which the court considered fault, although it is not generally considered in New Jersey, where the husband had offered $50,000 for the murder of his wife.

As to maintenance, the Blickstein court recognized that 'the role of marital fault may be different in the context of fixing an award of maintenance.' The decision also made clear that while marital fault, unless egregious, is not to be considered; economic fault, which consists of dissipation or secreting of assets, or other conduct which unfairly prevents the court from making an equitable distribution of marital property, remains relevant.

In the First Department, McMahon v. McMahon , 100 A.D.2d 326 (1st Dept. 1984), followed the Blickstein holding with regard to equitable distribution and in Wilson v. Wilson , 101 A.D.2d 536 (1st Dept. 1984), expressly included spousal maintenance under the rule. The Fourth Department also chose to follow Blickstein in Pacifico v. Pacifico , 101 A.D.2d 709 (4th Dept. 1984). So we were left with the general principle: Fault is only to be considered when it is 'egregious' ” defined as attempting to murder the other spouse or hiring someone to do so.

Havell v. Islam

Justice Jacqueline Silbermann's decisions in Havell v. Islam have substantially amplified the Blickstein rule. As reported at 186 Misc.2d 726 (N.Y.Co. 2000), the husband in that case had first sought to preclude the wife from offering testimony of the husband's misconduct on the alleged basis that it was not a 'just and proper' factor to be considered in connection with the equitable distribution of the parties' marital property, as the conduct was not egregious and did not 'shock the conscience' of the court, citing Blickstein and O'Brien v. O'Brien , 66 N.Y.2d 756 (1985) ' presumably on its language of marriage being an economic partnership.

By this time, the husband had been arrested and indicted for attempted murder in the second degree, and assault in the first degree. Having pleaded guilty to assault in the first degree (but not attempted murder), the husband confirmed that he had struck the wife with a barbell with intent to cause serious personal injury and was serving an 8.5-year prison term.

In a lengthy decision listing 21 different acts that the wife asserted collectively added up to egregious misconduct, Justice Silbermann reviewed the case law in this and other states, as well as the literature, and denied the husband's request for preclusion, stating:

As eloquently stated by Judge Imbriani in the case of D'Arc v. D'Arc (164 N.J.Super. 226, 242, 395 A2d 1270, 1278 [1978]), '[t]he obligation of th[e] court is to implement the purpose of law, which is to do justice, and not to mechanically apply established principles of law, even when they compel an absurd result.' In the case at bar, the wife alleges the husband engaged in conduct resulting in lasting emotional and physical harm to herself and the parties' children. In this court's view, such conduct, if proven, is so egregious and shocking that the court must invoke its equitable power so that justice may be done between the parties.

After trial, as reported in the New York Law Journal July 30, 2001, p. 25, col. 2 (Sup. Ct., N.Y. County), Justice Silbermann found that the husband had violently attacked his wife with a barbell, causing her teeth and portion of her jaw to fly across the room and bloodying her until her features were unrecognizable; all this in front of three of his young children and despite their cries and pleas for him to stop.

Describing the husband's actions as a 'murderous assault,' Justice Silbermann held:

Accordingly, this court holds that in cases where one spouse attempts to murder the other spouse, there need be no showing of an adverse economic impact on the victim spouse in order to reduce the offending spouse's equitable distribution.

The Appeal

On appeal, the First Department affirmed the decision, 301 A.D.2d 339 (1st Dept. 2002); rejecting the husband's argument that, inter alia, to qualify under the Blickstein test, the spouse's misconduct had to have 'such adverse physical and/or psychological effect upon the innocent spouse so as to interfere with her ability to be or become self-supporting.' (The court found that the husband had incorrectly relied upon two cases where the husband's acts of domestic violence were held egregious, had prevented or diminished the wife's ability to be self-supporting and affected the award of equitable distribution. Murtha v. Murtha, NYLJ May 15, 1998, p. 29, col. 4 [husband's long history of physical and emotional abuse of wife culminating in an incident resulting in the husband's arrest for assault and reckless endangerment] and Pollack v. Pollack, NYLJ Oct. 25, 1999, p. 40, col. 3 [husband stabbed the wife repeatedly with a butcher knife while she slept]. While these cases had findings concerning the economic effect on the wife, the Appellate Division observed that they had never reached the question of whether a showing of economic effect is required to establish egregiousness.) The First Department observed that Blickstein expressly distinguished marital fault from 'economic fault'; and there is no such requirement.

The court also found without merit, the husband's argument that the trial court had mischaracterized the barbell attack as attempted murder, since he had only pleaded guilty to first-degree assault, stating 'The court was not bound by defendant's generous plea bargain.'

DeSilva v. DeSilva

In her recent decision in DeSilva v. DeSilva, NYLJ Sept. 6, 2006, Justice Silbermann, relying on Havell v. Islam, expanded the definition of egregious fault to be considered in determining equitable distribution so as to include a long history of physical and mental abuse that increased in intensity over the years.

In DeSilva, the husband was found to have:

• Returned to the marital apartment drunk and, in the presence of the parties' then-3-year-old child, woke the wife yelling obscenities;
• Told the 3-year-old child 'your mother is a cunt';
• Told the pregnant wife he was leav-ing her and he never wanted the baby; spit in her face; threw a packed duffle bag at her pregnant abdomen; and said he wished he could get rid of the baby and hoped the plaintiff would lose it;
• Began screaming at the wife on their way back from a holiday trip to Rockport, ME, when the parties stopped to get gas, accusing her of staring at a 'black man' who was pumping gas; calling her 'bitch,' 'cunt,' 'whore,' and telling their older child his mother was all of these terrible things. During this tirade, the husband was driving extremely fast and recklessly, causing the wife to crawl into the back seat to get away from him and be closer to the children;
• Continued the tirade for 2 hours after the parties returned home, once again telling the older child that his mother was a 'whore and a cunt' and that she has 'sex with lots of different men other than me'; and
• Became enraged and threw the wife to the ground.

Judge Silbermann observed that the wife's testimony was made all the more credible because of the husband's actions in the courtroom over the course of the case, including a violent outburst at the end of trial. Indeed, part of the relief granted, based upon the husband's inability to manage his anger, was the issuance of a permanent Order of Protection for the wife and a finding that all the husband's parenting time with the children should be supervised.

In enumerating the factors considered on the equitable distribution, Justice Silbermann's decision listed:

13. Any other factors ” There has been a pattern of conduct involving both physical and verbal abuse which rises to the level of egregious fault. As this court stated in its interim decision dated Dec. 18, 2000 in Havell v. Islam , 186 Misc2d 726.

(The judge then went on to quote extensively from that decision).

Accordingly, having considered the factors as well as case law, statute, and literature, Justice Silbermann held that the pattern of domestic violence warranted awarding all of the marital assets to the wife and holding the husband liable for all of the marital debts.

Conclusion

Even in Blickstein, which appeared to limit the definition of egregious fault to attempts to murder the other spouse, the Second Department quoted the New Jersey Court in D'Arc as stating:

' where a spouse has committed an act so evil and outrageous that it must shock the conscience of everyone, it is inconceivable that this court should not consider his conduct when distributing the marital assets equitably.

Justice Silbermann's decisions in Havell v. Islam, and now DeSilva v. DeSilva, have applied that concept to include within the rubric of 'egregious fault' physical and verbal abuse which is 'so evil and outrageous that it must shock the conscience of everyone'; an appropriate and logical extension.

Myrna Felder is a partner in the New York law firm of Raoul Lionel Felder.The article first appeared in the New York Law Journal, a sister publication of this newsletter.