Discovery Denied in N.Y. Lawyer's Fraud Claim Concerning Claimed Affair
Seeking to reduce his divorce settlement in a state that still attributes fault between spouses in divorces, a New York lawyer tried to get “liberal discovery” concerning his claim that DNA evidence proves his youngest child was the product of an affair between his wife and a building contractor.
But a divided panel of the Appellate Division, First Department, shot down the fraud claim asserted by Howard S., saying that it did not amount to “egregious fraud,” reports the New York Law Journal in an article reprinted by New York Lawyer (reg. req.). The issue was decided in an interlocutory appeal of the case, after a trial judge also denied the lawyer’s discovery request.
“[W]hile defendant’s alleged misconduct cannot be condoned and is clearly violative of the marital relationship, it does not rise to the level of egregious fault, since defendant neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them,” the appellate majority writes in its 4-1 opinion.
Although marital fault isn’t ordinarily relevant to an equitable distribution analysis in New York, it can sometimes be considered under a catchall provision, Domestic Relations Law §236(B)(5)(d), which gives courts the power to consider “any other factor,” when it is “just and proper” to do so.
Howard S. reportedly is considering a further appeal. The case is Howard S. v. Lillian S., No. 4563.
