Decisions of Interest

'Egregious Fault' Not Found

The Appellate Division, First Department, has held that a divorcing man is not entitled to liberal discovery that would permit him to prove his claim that his wife was guilty of “egregious fault” for concealing the true parentage of a child he had raised as his, as such fault can be found only when extreme emotional or physical abuse is a factor. Howard S. v. Lillian S., 876 NYS2d 351 (1st Dept., 3/17/09) (Saxe, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.).

Defendant Lillian S. had an affair, or affairs, during her marriage to Howard S. One of the children the plaintiff husband raised, thinking it was his biological child, was in fact the product of his wife's relationship with another man. During divorce proceedings, the husband sought “liberal discovery” to prove that his wife was guilty of “egregious fault,” which would have reduced her share of the marital property. In addition, he sought damages stemming from his wife's alleged fraud. The wife moved to dismiss the fraud claim. The trial court denied the request for liberal discovery and limited recovery on the fraud claim to the husband's share of the collaborative law process fee. He filed an interlocutory appeal.

The Appellate Division, First Department, confirmed, finding that the wife's infidelity and concealment of the child's parentage had “no bearing on the equitable distribution of marital property.” Although Domestic Relations Law
' 236(B)(5)(d) permits courts to take into account “any other factor” that may be “just and proper,” in determining equitable distribution, the only cases that have invoked this provision have involved marriages plagued by extreme violence. Writing for the majority, Justice Helen E. Freedman of the AFirst Department, stated, “While 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.”

Some Contempt Findings Require Higher Standard of Proof

Family Court erred in applying the “clear and convincing evidence” standard of proof to a contempt proceeding concerning failure to obey a court order, as the possibility of incarceration for a finding of criminal contempt required application of the more stringent “beyond a reasonable doubt” standard. Rubackin v. Rubackin, 2007-07008 (2d Dept., 3/10/09) (Skelos, J.P.; Angiolillo, Leventhall and Belen, JJ.).

A Family Court had found, by a standard of “clear and convincing evidence,” that the appellant disobeyed a protection order, and sentenced him to 30 days in jail. At issue was the standard of proof necessary to sustain a finding that a respondent has failed to obey a lawful order of the Family Court, when the remedy to be imposed is incarceration pursuant to Family Court Act ' 846-a. The provisions of Family Court Act article 8 governing family offense proceedings do not specify the standard of proof that must be met.

The appellate court found that, while most of the remedies provided for in the Act are civil in nature, imposition of a jail sentence is not intended merely as a means to prevent future injuries to family members; it is also meant to be a punishment for the past behavior of the person who disobeyed the protection order. As such, when an order committing a respondent to a jail term is imposed in accordance with the Act, commitment is punitive and the standard of proof is “beyond a reasonable doubt.” In the present case, however, although Family Court erred in applying the reduced standard of proof, the Second Department panel determined that the appellant indeed had, beyond any reasonable doubt, willfully disobeyed the protection order. So Family Court's error was harmless.

Biological Mother Preserves Rights Through Adoption

In order to make sure that a genetic mother whose spouse gave birth to their child would not be deprived of her parental rights in future, the Surrogate's Court of New York County granted the genetic mother's petition to adopt the boy. Matter of Sebastian, — NYS2d —-, 2009 WL 1141728 (Surrogate's Court, NY Cty., 4/9/09) (Surrogate Glen).

Mona and Ingrid were married in The Netherlands, where same-sex marriage is legal. Later, Mona's ovum was fertilized in vitro with sperm from an anonymous donor and implanted into Ingrid, who gave birth to a son. The birth certificate named Ingrid as the only parent. Although Mona is thus the child's genetic mother, she is not his birth mother, so she petitioned here to adopt the child. The issue was whether adoption was appropriate and permissible when Mona was not only legally married to the child's mother at conception and birth but is also the child's genetic mother.

Stated the court, “At present there is no clear law in New York determining the relationship between a child and various women who may lay claim to parentage through genetic or gestational relationship. And, of special significance, no reported decision, in this or other states, has discussed or determined the parentage of a child's gestational and genetic mothers in a proceeding which involves no dispute between the parties.”

The court noted that Mona should not have to adopt the child because she was legally married to her spouse at the time Ingrid gave birth, which, in New York, would make her the boy's legal parent. Still, because many sister states and foreign nations do not recognize same-sex marriages, no matter where they are solemnized, only a judicial order of filiation would be presumptively subject to full faith and credit. Therefore, Mona's petition to adopt the child was granted.

'Egregious Fault' Not Found

The Appellate Division, First Department, has held that a divorcing man is not entitled to liberal discovery that would permit him to prove his claim that his wife was guilty of “egregious fault” for concealing the true parentage of a child he had raised as his, as such fault can be found only when extreme emotional or physical abuse is a factor. Howard S. v. Lillian S. , 876 NYS2d 351 (1st Dept., 3/17/09) (Saxe, J.P., Nardelli, Moskowitz, Renwick and Freedman, JJ.).

Defendant Lillian S. had an affair, or affairs, during her marriage to Howard S. One of the children the plaintiff husband raised, thinking it was his biological child, was in fact the product of his wife's relationship with another man. During divorce proceedings, the husband sought “liberal discovery” to prove that his wife was guilty of “egregious fault,” which would have reduced her share of the marital property. In addition, he sought damages stemming from his wife's alleged fraud. The wife moved to dismiss the fraud claim. The trial court denied the request for liberal discovery and limited recovery on the fraud claim to the husband's share of the collaborative law process fee. He filed an interlocutory appeal.

The Appellate Division, First Department, confirmed, finding that the wife's infidelity and concealment of the child's parentage had “no bearing on the equitable distribution of marital property.” Although Domestic Relations Law
' 236(B)(5)(d) permits courts to take into account “any other factor” that may be “just and proper,” in determining equitable distribution, the only cases that have invoked this provision have involved marriages plagued by extreme violence. Writing for the majority, Justice Helen E. Freedman of the AFirst Department, stated, “While 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.”

Some Contempt Findings Require Higher Standard of Proof

Family Court erred in applying the “clear and convincing evidence” standard of proof to a contempt proceeding concerning failure to obey a court order, as the possibility of incarceration for a finding of criminal contempt required application of the more stringent “beyond a reasonable doubt” standard. Rubackin v. Rubackin, 2007-07008 (2d Dept., 3/10/09) (Skelos, J.P.; Angiolillo, Leventhall and Belen, JJ.).

A Family Court had found, by a standard of “clear and convincing evidence,” that the appellant disobeyed a protection order, and sentenced him to 30 days in jail. At issue was the standard of proof necessary to sustain a finding that a respondent has failed to obey a lawful order of the Family Court, when the remedy to be imposed is incarceration pursuant to Family Court Act ' 846-a. The provisions of Family Court Act article 8 governing family offense proceedings do not specify the standard of proof that must be met.

The appellate court found that, while most of the remedies provided for in the Act are civil in nature, imposition of a jail sentence is not intended merely as a means to prevent future injuries to family members; it is also meant to be a punishment for the past behavior of the person who disobeyed the protection order. As such, when an order committing a respondent to a jail term is imposed in accordance with the Act, commitment is punitive and the standard of proof is “beyond a reasonable doubt.” In the present case, however, although Family Court erred in applying the reduced standard of proof, the Second Department panel determined that the appellant indeed had, beyond any reasonable doubt, willfully disobeyed the protection order. So Family Court's error was harmless.

Biological Mother Preserves Rights Through Adoption

In order to make sure that a genetic mother whose spouse gave birth to their child would not be deprived of her parental rights in future, the Surrogate's Court of New York County granted the genetic mother's petition to adopt the boy. Matter of Sebastian, — NYS2d —-, 2009 WL 1141728 (Surrogate's Court, NY Cty., 4/9/09) (Surrogate Glen).

Mona and Ingrid were married in The Netherlands, where same-sex marriage is legal. Later, Mona's ovum was fertilized in vitro with sperm from an anonymous donor and implanted into Ingrid, who gave birth to a son. The birth certificate named Ingrid as the only parent. Although Mona is thus the child's genetic mother, she is not his birth mother, so she petitioned here to adopt the child. The issue was whether adoption was appropriate and permissible when Mona was not only legally married to the child's mother at conception and birth but is also the child's genetic mother.

Stated the court, “At present there is no clear law in New York determining the relationship between a child and various women who may lay claim to parentage through genetic or gestational relationship. And, of special significance, no reported decision, in this or other states, has discussed or determined the parentage of a child's gestational and genetic mothers in a proceeding which involves no dispute between the parties.”

The court noted that Mona should not have to adopt the child because she was legally married to her spouse at the time Ingrid gave birth, which, in New York, would make her the boy's legal parent. Still, because many sister states and foreign nations do not recognize same-sex marriages, no matter where they are solemnized, only a judicial order of filiation would be presumptively subject to full faith and credit. Therefore, Mona's petition to adopt the child was granted.