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Howard S. v. Lillian S.

March 17, 2009


Plaintiff appeals from the order of the Supreme Court, New York County (Harold B. Beeler, J.), entered July 11, 2008, which, to the extent appealed from, denied his cross motion for "liberal discovery," and limited his recovery of compensatory damages for his fraud claim against his wife to his share of the collaborative law process fees.

The opinion of the court was delivered by: Freedman, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

David B. Saxe, J.P., Eugene Nardelli, Karla Moskowitz, Dianne T. Renwick, Helen E. Freedman, JJ.


This interlocutory appeal in a matrimonial action raises two issues. The first is whether defendant-wife's alleged misrepresentation to her plaintiff-husband that he was the biological father of one of their children, when in fact the child was conceived during her adultery and fathered by her lover, constitutes "egregious fault" sufficient to be considered in equitably distributing the marital property. We affirm the motion court's holding that, under the circumstances here, it should not. The second is whether the motion court properly limited plaintiff's recovery for his fraud cause of action. Again, we affirm the motion court's holding.

According to the verified complaint filed in March 2008, plaintiff married defendant in May 1997 and they have four children. In or about February 2004, defendant had an extramarital affair with an unnamed man and became pregnant with a child, Charles, who was born in December 2004. Plaintiff contends that defendant knew or should have known that plaintiff was not Charles's biological father, but concealed that information from him. Plaintiff states that he "raised Charles as his own child, nurturing him and providing the same financial and emotional support as all his other children."*fn1

The complaint further alleges that in or about February 2007 defendant began another affair with the named co-respondent which "continues to this day." Defendant also concealed this second adulterous relationship from plaintiff, but in the spring of 2007, she suggested that they separate and enter into a collaborative law process.

During this period plaintiff had become suspicious about Charles's parentage, allegedly "due to all the jokes within his and [defendant's] circle of family and friends that Charles looked nothing like him." Without telling his wife, plaintiff in February 2008 arranged for a DNA test of himself and Charles. The test confirmed that plaintiff was not Charles's biological father. Defendant now acknowledges that plaintiff is not Charles's biological father, but claims that she learned this from the DNA test results and denies that she deliberately concealed the truth about Charles's parentage from plaintiff.

The complaint asserts causes of action for divorce based on both cruel and inhuman treatment and adultery, and asserts a separate claim based on fraud. As damages for the fraud claim, plaintiff seeks to recover his child support expenses for Charles, the fees for the parties' collaborative law process, and profits from the couple's investments "from the time of Charles's conception until the commencement of this action." Defendant answered and counterclaimed for divorce on the ground of abandonment.

In May 2008, defendant moved for an order dismissing or severing the fraud claim; plaintiff opposed and cross-moved for "expanded discovery" to prove "defendant's egregious fault," the fraud claim, and her lack of contribution to and dissipation of the marital property. The motion court denied the motion to dismiss or sever the fraud claim, but limited the recoverable damages to plaintiff's share of the fees for the collaborative law process. The court also denied plaintiff's cross motion for expanded discovery as to defendant's marital fault on the ground that defendant's alleged misconduct did not constitute egregious fault and had no bearing on prospective spousal maintenance and equitable distribution. Finally, the court held that "[a]ll relief not expressly granted is denied." Plaintiff appealed on the grounds that the court (1) erred by holding that he had failed to state a claim for egregious fault and (2) erred by holding that he could not recover child support payments and certain real estate investments as damages for his fraud claim.

Defendant has not appealed the court's order in connection with the fraud claim, and accordingly the issues before this Court concern the rulings on plaintiff's cross motion. The first concerns whether defendant's conduct constitutes "egregious fault" that should be considered in distributing the marital property and which entitles him to further discovery about her misconduct. As a threshold matter, we reject defendant's assertion that plaintiff failed to preserve this issue on appeal. Although the complaint does not specifically characterize defendant's alleged misconduct as egregious fault, plaintiff raised that argument before the motion court in his cross motion papers.

The motion court properly ruled that the wife's infidelity and concealment of Charles's parentage has no bearing on the equitable distribution of the marital property. As a rule, the marital fault of a party is not a relevant consideration under the Equitable Distribution Law. (Havell v Islam, 301 AD2d 339, 344 [2002], lv denied 100 NY2d 505 [2003]). However, it is well settled that Domestic Relations Law § 236(B)(5)(d), which lists the specific factors that a court is to weigh in determining equitable distribution, provides that, in limited circumstances, marital fault may be considered pursuant to clause (d)(13) of the statute, the "catchall" provision that allows the court to take "any other factor" which may be "just and proper" into account (O'Brien v O'Brien, 66 NY2d 576, 589-590 [1985]; Blickstein v Blickstein, 99 AD2d 287, 292 [1984], appeal dismissed 62 NY2d 802 [1984]). Marital fault can only be considered where the 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" (Blickstein, 99 AD2d at 292; accord O'Brien, 66 NY2d at 589).

In Havell, this Court adopted the analysis set forth in McCann v McCann (156 Misc 2d 540 [1993]), which concerned a husband who had married with the express promise to his wife to make every effort to have children. He subsequently refused to fulfill that promise after several years of lying, and as a result his wife became infertile because of her advanced age. The court found that, while the husband's misconduct showed "a blatant disregard for the marital relationship" and was "morally reprehensible," it did not constitute egregious marital conduct sufficient to be considered in equitably distributing the marital assets (McCann, 156 Misc 2d at 547, 549). To be deemed egregious, the court concluded, conduct must "callously imperil[] the value our society places on human life and the integrity of the human body" (id. at 547; accord Havell, 301 AD2d at 345).

The only cases in which reprehensible behavior has been deemed to constitute egregious fault sufficient to affect equitable distribution have involved extreme violence. In Havell, for example, this Court upheld the matrimonial court's award of more than 95% of the marital estate to a wife where her husband beat her with a barbell and a piece of pipe, thereby breaking her nose, jaw and some of her teeth, causing multiple contusions and lacerations, along with neurological damage and other serious injuries. While the husband pleaded guilty to first-degree assault on his wife, this Court supported the matrimonial court's finding that the husband's attack amounted to attempted murder and constituted egregious marital fault. Egregious fault has also been found in instances of rape (see Thompson v Thompson, NYLJ, Jan. 5, 1990, at 31, col 4 [husband raped his stepdaughter]), kidnapping (see Safah v Safah, NYLJ, Jan. 8, 1992, at 26, col 5 [in midst of hearing on equitable distribution and custody, husband took couple's two children and fled to Lebanon with them, where he left them in a "war zone"]), and protracted and severe physical abuse (see Debeny v Debeny, NYLJ, Jan. 24, 1991, at 29, col 2 [over course of 37-year marriage, husband broke wife's foot by stamping on it, broke one of her fingers, pulled her arm out of its shoulder socket, cracked two of her teeth by punching her cheek, pushed her causing her to break her arm, pushed her on another occasion causing her to fall and break her ankle, slapped her face between 50 and 70 times per year, and committed other violent acts against her]).

Conversely, conduct that courts have found not to be egregious include adultery (see Lestrange v Lestrange, 148 AD2d 587, 588 [1989]), alcoholism (see Weilert v Weilert, 167 AD2d 463 [1990]), abandonment (see Wilson v Wilson, 101 AD2d 536 [1984], lv denied 64 NY2d 607 [1985]), and verbal harassment coupled with several ...

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