The opinion of the court was delivered by: Lippman, Chief Judge
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The 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 alleges that, although defendant knew or should have known that the child was not plaintiff's, she withheld that information from him.
In 2007, defendant allegedly commenced another extramarital affair with an individual who was initially named as a co-respondent in this action. Plaintiff confronted defendant with his suspicions 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 compensatory 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. He 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 fees for the collaborative law process. Among other things, plaintiff 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. Defendant answered and asserted a counterclaim for divorce on the ground of abandonment.
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.*fn1 Supreme Court denied defendant's motion to dismiss and found that the complaint stated a cause of action for fraud, but limited plaintiff's available damages to his pecuniary loss in the form of collaborative law process fees. The court also denied plaintiff's cross motion for liberal discovery, finding that defendant's actions did not rise to the level of egregious fault.
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 (62 AD3d 187 [1st Dept 2009]). The Court further found that plaintiff could only pursue his claims of actual pecuniary loss under the fraud cause of action and rejected the claims for lost profits, child support and punitive damages. One Justice dissented and would have allowed plaintiff to obtain liberal discovery on the issue of egregious conduct. The Appellate Division granted plaintiff leave to appeal, and we now affirm.
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 consideration of marital fault, but does contain a catch-all 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][d]). 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, 66 NY2d 576, 589-590 ). This rule is based, in part, upon the recognition that marriage is, among other things, an economic partnership and that the marital estate should be divided accordingly. We also observed that "fault will usually be difficult to assign and [that] introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues" (O'Brien, 66 NY2d at 590).
Although we have not had occasion to further define egregious conduct, courts have agreed that adultery, on its own, does not ordinarily suffice (see e.g. Newton v Newton, 246 AD2d 765, 766 [3d Dept 1998]; Lestrange v Lestrange, 148 AD2d 587, 588 [2d Dept 1989]). This makes sense because adultery is a ground for divorce -- a basis for ending the marital relationship, not for altering the nature of the economic partnership. At a minimum, in order to have any significance at all, egregious conduct must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action. This is not to say that there can never be a situation where grounds for divorce and egregious conduct will overlap. However, it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets (see e.g. Levi v Levi, 46 AD3d 520 [2d Dept 2007] [attempted bribery of trial judge]; Havell v Islam, 301 AD2d 339 [1st Dept 2002] [vicious assault of spouse in presence of children]).*fn2 Absent these types of extreme circumstances, courts are not in the business of regulating how spouses treat one another.
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 undoubtedly cause a great deal of anguish and distress for the other spouse, it does not fit within the legal concept of egregious conduct. Moreover, plaintiff's cause of action for fraud,*fn3 is based entirely upon defendant's alleged adultery and on plaintiff's reliance upon the denial of that behavior. Plaintiff cannot obtain discovery for what is essentially an allegation of marital fault.*fn4
Although CPLR 3101 provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action," Domestic Relations 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 circumstances (see e.g. Anonymous v Anonymous, 71 AD2d 209, 214 [1st Dept 1979]). Despite the availability of protective orders if courts were to consider these matters on a case by case basis, there remains 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.
Plaintiff's 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.
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 purpose of equitable distribution under the Domestic Relations Law. ...