Judicial conscience: Wherefore art thou?

You learn today that your four year old child you have nurtured and raised from infancy is not your biological child. If the error was on the part of the hospital in a confused identity of your baby at birth, would you look to hold the hospital accountable? What if, instead, it was your spouse who was ultimately responsible? Would you expect a court to hold the responsible party accountable to you, at least financially, for the emotional upheaval foisted upon you and your family? Would you expect punitive action by a court to deter the “guilty/responsible” party or others from this action in the future?

This past March, the First Depart-ment in the context of a matrimonial action had before it this very issue. The court was called upon, in making an allocation of marital assets between the parties, to consider as a factor the misconduct of a spouse. Its analysis, not surprisingly, rested upon the law and precedent; its application of the law and precedent to the facts before them and the result may prove troublesome to your conscience.

Domestic Relations Law section 236B(5)(d) enumerates 13 factors the court may utilize in distributing marital property, considering the circumstances of the case and the respective parties. At the time of the enactment of the Equitable Distribution Law in 1980, the Legislature abolished a law that automatically barred a woman from receiving alimony if she was guilty of marital fault. Noticeably absent from the Equitable Distribution statute was a directive from the Legislature regarding marital fault in determining the distribution of marital assets; marital fault is expressly excluded as a consideration in awarding child support.

In those early years following the enactment of the statue, the courts were divided on the issue of the relevance of martial fault in distributing assets. Fault was considered by the courts, on a case-by-case basis, through broad discretion given to the judiciary in DRL section 236B(5)(d) (13), Factor 13, known colloquially as the “catch all factor” in equitable distribution.

DRL section 236B(5)(d): “In determining an equitable distribution of property under paragraph c, the court shall consider: … (13) any other factor which the court shall expressly find to be just and proper.”

In 1984, the Second Department in Blickstein1 established the recognized standard utilized by the courts to determine the role of marital fault, if any, in its determination of marital asset distributions:
“As a general rule, the marital fault of a party is not a relevant consideration under the Equitable Distribution Law in distributing marital property upon the dissolution of a marriage… there will be cases in which marital fault, by virtue of its extraordinary nature, becomes relevant and should be considered.”

The court described the very rare instance where an exception to the general rule could occur, when marital fault would be a relevant consideration in equitable distribution where:
“the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard for 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.”

The Court of Appeals reiterated the standard of Blickstein, in the O’Brien decision and held that, generally, marital fault is not a consideration in equitable distribution because that premise is inconsistent with the view of marriage as an economic partnership wherein each partner is entitled to a fair share of the assets; in addition, the court was concerned with the difficulty in assigning fault and the inordinate time to be devoted by a court to procedural maneuvers in collateral matters.2

Utilizing “egregious conduct” as the standard, the court in McCann (1993 New York County) struggled with what it openly acknowledged as reprehensible moral conduct on the part of the husband who misrepresented his intentions, upon entering marriage, to have children with his wife. He refused, after marriage, to undergo procedures to facilitate his fathering a child notwithstanding his promises made to his wife who was, at the time of the divorce, beyond child bearing years.3 In the midst of his refusal, he struck up a relationship with a 24-year-old woman with whom he was alleged to have agreed to bear a child. Judicial conscience in that instance was not shocked by the conduct of the husband.

The McCann Court, looking for guidance, turned to scholars in the field for interpretation and word meaning trying to lend objectivity to what is clearly a subjective standard reasoned that:
…when a judge has to decide if an act is conscience-shocking, he must look to the extrinsic evidence of normative societal perceptions of that act. Just as a word has no meaning removed from a specific context, neither will an act possess any significance beyond the external implications society places on its results.

This court sought a more definitive standard than that expounded by O’Brien. Rather than saying what was “not egregious,” the court affirmatively sought to say what is “egregious.” Drawing from criminal jurisprudence, it distinguished ordinary marital fault from egregious marital fault. The difference in definition at least for this court, rested with the relative importance of the particular social value involved; the higher the interest in preserving the social interest valued by society, the more likely the offensive conduct will be deemed egregious. From this court’s perspective, the role of the judge
a judge, … in determining whether particular conduct amounts to egregious marital fault must decide whether the social interest compromised by the offending spouse’s conduct is so fundamental that the court is compelled to punish the offending spouse by affecting equitable distribution of the marital assets.

The court noted that more than one social value was impugned by the husband’s conduct including the societal value of favoring marital relations and bearing children. However, it also took account of societal recognition of the fundamental right of the individual to refuse sexual relations with a spouse (having recognized rape by husband against a wife). It reasoned that the decision to engage in sexual relations within the context of a marriage is personal, and so is the decision to bear children; and is not amenable to the “black and white value system in which egregious marital fault is found.”

According to the court, the husband’s misrepresentation to wife regarding his willingness to have children goes to the heart of the marital relationship, nonetheless, his conduct was deemed no more socially deleterious than other types of marital misconduct judicially determined as non “egregious:”
• Adultery4
• Abandonment, either actual5 or constructive6
• Alcoholism, verbal abuse, and a single act of violence7
In those cases, the societal interest was insignificant to the court or was not sufficiently injured by the marital misconduct to warrant a punitive financial response by the courts. The societal impact test of the First Department is seemingly absent in the decisions of the other departments. Those decisions render deference to Blickstein, and O’Brien, citing the appropriate language and finding conduct egregious when economic circumstances or felonious conduct characterizes the marital misconduct. Shocking the conscience of the court have been acts of:
• Attempted Murder8
• Rape of a stepdaughter9
• Repeated pattern of domestic violence (physical and verbal abuse) over a 21-year period10

With the foregoing as the backdrop, consider the facts before the court last March in an interlocutory appeal in the matrimonial action of Howard S. v. Lillian S.11 The husband learns that his wife misrepresented to him that he was the biological father of one of their children. The husband’s suspicions regarding the parentage of the child born in December 2004, were aroused when his wife suggested in the spring of 2007, that they separate, coupled with jokes circulating among family and friends during this period that the child looked nothing like him. The allegations were that the wife had an adulterous affair in February 2004, resulting in the birth of this child. She then embarked on another adulterous affair in February 2007 that continued to the present (at the time of the divorce). The husband in February 2008, as a result of the jokes circulating regarding his parentage and his wife’s extended absences from the family, took the child for a DNA test which confirmed the husband’s suspicions. The wife, in the proceedings, acknowledged that the husband was not the biological father but claims she did not intentionally conceal the child’s parentage from the father, only having first learned of this through the results of the DNA test.

The trial court denied the husband’s motion to consider for equitable distribution purposes the misconduct of the wife, the misrepresentation to the 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, as “egregious.” On appeal, notwithstanding the court‘s acknowledgement that wife’s “alleged misconduct cannot be condoned and is clearly violative of the marital relationship,” the Appellate Court affirmed, “… (wife’s misconduct) 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.”

As a procedural matter, the dissent argued that the Appellate Court was premature in its ruling that as a matter of law, the wife’s conduct did not rise to the level of egregious fault. The dissent unlike the majority, raised the flag of social conscience and focused on the social impact test of McCann, that is whether the “social values contravened by the offending spouse’s behavior is so important that some punitive response (by the court) in the context of equitable distribution is appropriate.” Further, it viewed the majority’s decision as a limitation on the Blickstein test by requiring a finding of egregious fault be predicated upon physical acts.

Clearly disturbed by the allegations surrounding wife’s conduct; the dissent notes the wife’s “willingness to play fast and loose with the health of her child by knowingly misleading his health care providers as to his true genetic background, thereby providing, in essence a false medical history, and refusing to rectify the situation when asked to do so; her multiple acts of adultery; her numerous, sometimes lengthy trips with her lover during which she maintained no contact with her husband and children; her willingness to allow her lover to secretly accompany her on a family vacation, and her dissipation of assets.” The dissent would have permitted liberal discovery on the part of the husband to proceed at this point in the action to prove his claim of egregious conduct, recognizing marriage as something more than an economic partnership.

“Shocking the conscience of the court” is a subjective standard, similar in nature to that utilized in cases of pornography where when a learned jurist of the Supreme Court was pressed to define “pornography,” opined “I know it, when I see it.” Unless the marital misconduct is linked to a serious economic detriment to the aggrieved spouse or the aggrieved spouse is the victim of domestic violence of the murderous or rape variety, the court’s conscience, thus far has been aroused, not shocked.

Is marital fault an archaic moral concept absent from the social conscience with no place in the modern judicial conscience? Seems so, at least in the First Department.

Nancy E. Gianakos is a matrimonial and family law practitioner, Of Counsel, to Albanese & Albanese, Garden City, NY. She is a member of the NYSBA, Nassau County Matrimonial and Familly Law Committees, the American Family Law Inns of Court and the New York Association of Collaborative Professionals. For more information and articles published by Ms. Gianakos go to www.albaneselegal.com.

1. Blickstein v. Blickstein, 99A.D.2d, 472 N.Y.S.2d 110, (2d Dept. 1984)
2. O’Brien v. O’Brien, 66 N.Y.2d 576, 498 N.Y.S. 2d743 (1985)
3. McCann v. McCann 156Misd.2d540, 593 N.Y.S.2d917 (NY County 1993)
4. Rosenberg v. Rosenberg, 126 A.D.2d 537, 510 N.Y.S.2d 659 (2d Dept. 1987); Wilbur v. Wilbur, 116 A.D. 953, 498 N.Y.S.2d (3d Dept., 1986)
5. Blickstein, supra
6. Wilson v. Wilson, 101 A.D.2d 536, 476 N.Y.S.2d 120 (1st Dept., 1984)
7. Weilert v. Weilert 167 A.D.2d 463, 562 N.Y.S.2d 139 (2d Dept. 1990); see also Kellerman v. Kellerman, 187 A.D.2d 906, 590 N.Y.S.2d 570 (3d Dept. 1992)
8. Brancoveanu v. Brancoveanu, 145 A.D.2d, 395, 535 N.Y.S.2d 86 (2d Dept. 1988), Wenzel v. Wenzel, 122 Misched. 1001, 472 N.Y.S.2d 830 (Sup Ct. Suffolk County 1984)
9. N.Y.L.J, Jan. 5, 1990
10. Havell v. Islam, 186 Misc2d, 726, 718 N.Y.S.2d807, (SupCt, NY County, 2000)
11. 876 N.Y.S.2d, 351, N.Y.A.D.(1st Dept., 2009)