NY's High Court Finds No 'Egregious Conduct'

Although a wife concealed the true paternity of a child born of an adulterous relationship and permitted her husband to incur the costs of raising that child, New York's high court found no “egregious conduct.“

The Case

In Howard S. v. Lillian S., decided April 29, 2010, New York's highest court concluded, as a matter of law, that it was not egregious conduct for a wife not to tell her husband that the child he supported and raised for three years was the product of her adulterous relationship.

After the husband confronted the wife about his suspicion that she engaged in an extra-marital affair, the wife not only denied the affair, but she also told her husband that he did not have grounds for a fault-based divorce, which New York still requires. The parties then engaged in the collaborative process at the wife's suggestion. A DNA marker test some months later proved the youngest child of the three children born during the marriage was not the husband's. The husband then filed an action for divorce, based on the grounds of adultery and cruelty, and an action in fraud. The husband alleged fraud based on the wife's representation that she had been faithful, and the husband's continued participation in the marriage in reliance upon those representations to his financial detriment. He sought to recover damages under the fraud claim based upon costs he incurred due to the wife'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 fees for the collaborative law process. Among other things, the husband sought equitable distribution of the marital property, alleging that the bulk of the property should be awarded to him due to defendant's egregious fault.

The Court Ruling

The dispute came before New York's highest court, the Court of Appeals, in a procedural context regarding the scope of discovery. In two downstate judicial departments in New York, where the case arose, discovery is not permitted on issues of marital fault unless it is egregious. The husband sought disclosure under his fraud claim and on the allegations of egregious fault. The trial court denied disclosure, finding that the wife's conduct was not egregious, and limited his damages on the fraud claim to the fees incurred in the collaborative process. The intermediate appellate court affirmed.

A majority of the state's highest court agreed, based on the rationale that, since adultery is a statutorily defined ground for divorce, the failure to disclose that a child was born of an adulterous relationship could not be deemed to be egregious conduct. While never defining egregious conduct, the majority referenced lower court decisions that limit the concept to a truly exceptional situation, e.g., outrageous or conscience-shocking conduct on the part of one spouse. Only such conduct would require the court to consider whether to adjust the equitable distribution of the assets. The court cited examples of egregious conduct in New York, including attempted bribery of a trial judge or a vicious assault of one's spouse in the presence of children. Absent these types of extreme circumstances, the high court found that courts are not in the business of regulating how spouses treat one another.

The Dissent

A single dissenting judge concluded that without full disclosure, it is premature for the court to conclude that the wife's conduct was not egregious as a matter of law, because “[w]hile 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.”

Analysis

Lawyers used to New York's arcane rules will not be shocked by the irony of this decision. While adultery is grounds for divorce in New York, pretrial disclosure related to the adultery is prohibited so as to avoid, in the words of New York's highest court, the “significant potential for abuse and harassment as a result of such discovery, as well as the possibility that parties will be induced to enter into disadvantageous settlements rather than litigate these types of intensely personal issues.” To all other readers, the decision seems indeed harsh. As a matter of law, New York permits a wife to cuckold a husband and deplete his financial estate raising another man's child without any potential legal remedy.

Charles McEvily, a member of this newsletter's Board of Editors, is a member of Long Island, NY's DaSilva, Hilowitz and McEvily. He represents clients in matrimonial litigation, mediation and collaboration.

Although a wife concealed the true paternity of a child born of an adulterous relationship and permitted her husband to incur the costs of raising that child, New York's high court found no “egregious conduct.“

The Case

In Howard S. v. Lillian S., decided April 29, 2010, New York's highest court concluded, as a matter of law, that it was not egregious conduct for a wife not to tell her husband that the child he supported and raised for three years was the product of her adulterous relationship.

After the husband confronted the wife about his suspicion that she engaged in an extra-marital affair, the wife not only denied the affair, but she also told her husband that he did not have grounds for a fault-based divorce, which New York still requires. The parties then engaged in the collaborative process at the wife's suggestion. A DNA marker test some months later proved the youngest child of the three children born during the marriage was not the husband's. The husband then filed an action for divorce, based on the grounds of adultery and cruelty, and an action in fraud. The husband alleged fraud based on the wife's representation that she had been faithful, and the husband's continued participation in the marriage in reliance upon those representations to his financial detriment. He sought to recover damages under the fraud claim based upon costs he incurred due to the wife'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 fees for the collaborative law process. Among other things, the husband sought equitable distribution of the marital property, alleging that the bulk of the property should be awarded to him due to defendant's egregious fault.

The Court Ruling

The dispute came before New York's highest court, the Court of Appeals, in a procedural context regarding the scope of discovery. In two downstate judicial departments in New York, where the case arose, discovery is not permitted on issues of marital fault unless it is egregious. The husband sought disclosure under his fraud claim and on the allegations of egregious fault. The trial court denied disclosure, finding that the wife's conduct was not egregious, and limited his damages on the fraud claim to the fees incurred in the collaborative process. The intermediate appellate court affirmed.

A majority of the state's highest court agreed, based on the rationale that, since adultery is a statutorily defined ground for divorce, the failure to disclose that a child was born of an adulterous relationship could not be deemed to be egregious conduct. While never defining egregious conduct, the majority referenced lower court decisions that limit the concept to a truly exceptional situation, e.g., outrageous or conscience-shocking conduct on the part of one spouse. Only such conduct would require the court to consider whether to adjust the equitable distribution of the assets. The court cited examples of egregious conduct in New York, including attempted bribery of a trial judge or a vicious assault of one's spouse in the presence of children. Absent these types of extreme circumstances, the high court found that courts are not in the business of regulating how spouses treat one another.

The Dissent

A single dissenting judge concluded that without full disclosure, it is premature for the court to conclude that the wife's conduct was not egregious as a matter of law, because “[w]hile 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.”

Analysis

Lawyers used to New York's arcane rules will not be shocked by the irony of this decision. While adultery is grounds for divorce in New York, pretrial disclosure related to the adultery is prohibited so as to avoid, in the words of New York's highest court, the “significant potential for abuse and harassment as a result of such discovery, as well as the possibility that parties will be induced to enter into disadvantageous settlements rather than litigate these types of intensely personal issues.” To all other readers, the decision seems indeed harsh. As a matter of law, New York permits a wife to cuckold a husband and deplete his financial estate raising another man's child without any potential legal remedy.

Charles McEvily, a member of this newsletter's Board of Editors, is a member of Long Island, NY's DaSilva, Hilowitz and McEvily. He represents clients in matrimonial litigation, mediation and collaboration.