Matrimonial Litigation

Issues of Interest

Submitted by Ronald A. Phillips, Esq., Member Family Law Section – Fellow, American Academy of Matrimonial Lawyers

Cruel & Inhuman Treatment – A Troublesome Anachronism

It always seems that when "Pandora's Box" is delivered to matrimonial attorneys, its hidden among the other packages or gets delivered to the service entrance and put in a corner where it collects dust. Eventually, someone trips over it and finally gets around to opening it. I recently did just that and as usual, was horrified at the contents.
In recent years domestic violence has finally gotten the attention it deserved as a result of the "O.J. Simpson case". Domestic violence was addressed with lightning speed, and a number of statutes were amended; perhaps those statutes were addressed a bit to quickly. Certainly it is understandable; what politician would risk dealing with "sound bytes" at election time that they were against domestic violence reform. Some of the ramifications of these changes need to be reviewed. The general cause of action for divorce in the State of New York, "cruel and inhuman treatment", will now have results that were never intended when DRL § 240 and DRL § 252 were amended.

One such change relates to discovery. We in the First and Second Departments may very well have been fortunate in the past in that our appellate courts did not permit "discovery into the merits" (BILLET V BILLET, 53 AD2d 564, 384 NYS2d 826 [2nd Dept.]; FIORELLA V FIORELLA, 132 A.D.2D 643, 518 NYS2d 17 [2nd Dept.]; VAN ESS v VAN ESS, 100 A.D.2D 848 [2nd Dept.]; RUBIN v RUBIN, 73 AD2d 148, 425 NYS2d 331 [1st Dept.]; ANONYMOUS v ANONYMOUS, 71 AD2d 209, 422 NYS2d 89 [1st Dept.]). The Third & Fourth Departments do allow such discovery (see SEMON V SARIDIS, 125 A.D.2D 882, 510 NYS2d 236 [3rd Dept.]; NIGRO v NIGRO, 121 AD2d 833, 504 NYS2d 264 [3rd Dept.]; LEMKE v LEMKE, 100 AD2d 735 [4th Dept.]).1 While, in the First and Second Departments, discovery into the merits was originally denied on the grounds that its only purpose was to “exacerbate” the parties problems (BILLET V BILLET, supra.; RUBIN v RUBIN, supra.). This refusal to permit discovery into the merits was called a “policy” in the First Department (see ANONYMOUS v. ANONYMOUS, 71 AD2d 209, 422 NYS2d 89), and a “rule” in the Second Department (see BILLET v BILLET, supra.). This hard and fast rule/policy was eventually softened, albeit only slightly. When the concept of “egregious conduct” was defined (see BLICKSTEIN v BLICKSTEIN, supra.), the first crack appeared in the immutable concept that there was to be “no discovery into the merits” in the First and Second Departments (see MCMAHAN v MCMAHAN, 100 AD2d 826, 474 NYS2d 974 [1st Dept]; CORSEL v CORSEL, 133 AD2d 604; 519 NYS2d 710 [2nd Dept.]). Discovery into the merits was still extremely limited in that the conduct which was defined as "egregious" was extremely serious (attempted murder, attempting to burn down the marital home, etc.). It would appear that if you alleged "egregious conduct" and the court was satisfied that the allegations rose to that lofty level, you could get discovery. Indeed, such conduct could effect equitable distribution.

Say goodbye to those "good old days"!

DRL § 240 1. now reads in part as follows:

Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section.
As is all to usual today, the legislature has taken away the court's discretion by using the term "must". Needless to say, if the court "must" consider such conduct in custody cases, than discovery is required as the judge cannot tell you he or she "won't consider it", at least "on the record". The legislature has now provided a reason for discovery into the allegations of misconduct. Therefore, all CPLR Article 31 disclosure devices may be utilized (EBT's, Interrogatories, etc.). Again, discovery in custody proceedings was never prohibited; it was simply scrutinized more closely (see BURGELL v BURGELL, 141 AD2d 215, 533 NYS2d 735; MCMAHAN v MCMAHAN, 100 AD2d 826, 474 NYS2d 974; GARVIN v GARVIN, 162 AD2d 497, 556 NYS2d 699) Indeed, in MCMAHAN, supra., the court indicates that such discovery should be denied because "in most instances, other than to exacerbate an already frequently acrimonious relationship, no purpose would be served in allowing discovery of the various charges and countercharges of misconduct which an estranged husband and wife engage in hurling at each other". Unfortunately, discovery into the merits may also be only the proverbial "tip of the iceberg".

Another negative effect of the requirement for disclosure may be the loss of bifurcation. A number of judges direct bifurcation of "status" and "ancillary relief" when a representation is made that "status is an issue" at the preliminary conference (but compare ROTTA v ROTTA, 190 AD2d 617, 594 NYS2d 988, and FIORELLA v FIORELLA, 132 AD2d 643, 518 NYS2d 17). When cruel and inhuman treatment was merely used as a ground for divorce, this idea had much merit in that time and money was not wasted on discovery when a divorce might not be granted. Now, it may also be necessary to bifurcate disclosure! If bifurcation is to be continued, it may be necessary to have an Examination Before Trial on the allegations of misconduct, a status trial, and then proceed from there if a divorce is granted.

Let us next look at how "cruel and inhuman treatment" and the amendments to the domestic violence statutes interrelate.
Domestic Violence is currently defined in FCA § 812 as follows:

FCA § 812. Procedures for family offense proceedings

1. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. For purposes of this article, "disorderly conduct" includes disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following:
(a) persons related by consanguinity or affinity;
(b) persons legally married to one another;
(c) persons formerly married to one another; and
(d) persons who have a child in common regardless whether such persons have been married or have lived together at any time.
Under this definition of domestic violence, it would be almost impossible to have any allegation that would qualify as cruel and inhuman treatment not also fall into the category of domestic violence. Indeed, conduct that would fall into the category of domestic violence might not rise to the level of cruel and inhuman treatment under HESSEN v HESSEN, 33 NY2d 406, 353 NYS2d 421, and BRADY v BRADY, 64 NY2d 339, 486 NYS2d 891. Let us look at "disorderly conduct", which includes disorderly conduct not in a public place for purposes of Domestic Violence. Said provision reads as follows:
Penal Law § 240.20. Disorderly conduct
"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.
Disorderly conduct is a violation."

(This statute is obviously not "politically correct" since it refers only to "He".)
Under the aforesaid definition, Ralph Kramden (Jackie Gleason) was guilty of domestic violence on every "Honeymooners" program when he said: "Keep it up Alice – Pow right in the kisser – Right to the moon!" Yet, Today, the headlines would read "Ralph Kramden arrested for Domestic Violence". He would bang objects down in anger. Headlines – "Ralph Kramden arrested for Domestic Violence". In those days, "four letter words" were not used on TV. Today, few movies or even sitcoms are devoid of a "four letter word" or two. Domestic Violence! Call the police. Under Number 3 above, if one party tells the other to get their friends or relatives the "h___ out of the house", it constitutes Domestic Violence. Under Number 7 above, should someone angrily knock over the garbage – maybe even kick it around the kitchen; domestic violence. (Of course, there will be an issue as to whether it was an accident or an intentional act). A person gives another person "the finger"; domestic violence under Number 3 above. If done in a "public place" such as was intended by the above statute, it would probably be considered "constitutionally protected free speech". However, in the world of matrimonial and family law, it is domestic violence. While in this day and age, "Alice" would certainly charge "Ralph" with Domestic Violence, I'm sure she still wouldn't want to sue him for a divorce (see GLEASON v GLEASON, 26 NY2d 28, 308 NYS2d 347).

In short, conduct that would not get one a divorce in a long term (perhaps even in a short term) marriage would constitute domestic violence. The court "must" consider it in determining custody and visitation. While no one seriously believes that any of the aforesaid conduct will change the custody/visitation determination that a judge would make, it just can't be ignored under DRL § 240 1. The judge can no longer tell the litigant's it won't change the outcome of the case (however, he or she will surely tell the attorneys). Since consideration is a "must", a finding will have to be made regarding the effect of domestic violence on the custody and visitation provisions if the evidence is presented to the court and a claim is made that the conduct should have an effect. (Initially, the courts will probably not make such findings; however, the appellate courts will eventually indicate in some case where the issue turns on such violence that such findings are required in order to insure proper appellate review). Certainly, some parties will now attempt to "embellish" their allegations of misconduct or allege far more than is necessary for a mere divorce. Some parties will delude themselves into believing that proof of domestic violence alone may persuade a judge to award them custody or limit visitation. We all seem to get some clients who have "selective hearing".

Let us examine some of the other possible ramifications of domestic violence being easier to prove than "cruel and inhuman treatment". Since most "cruel and inhuman treatment" would constitute domestic violence, will the court be required to direct that "guilty" party's names be added to the Domestic Violence Registry? DRL § 240 3. and DRL § 252 would appear to require same. Certainly, by simply adding an additional allegation to a complaint for divorce on the grounds of 'cruel and inhuman treatment' "that the foregoing conduct constitutes domestic violence under FCA § 812", a party would statutorily be entitled to such relief. Would they automatically be entitled to an order of protection? They would certainly get an order of protection in the other courts of concurrent jurisdiction if most of the allegations which rise to the level of "cruel and inhuman treatment" were proven.
Unfortunately, if custody is in issue, you as the attorney will be required to play the "Domestic Violence" card. Certainly, if your client does not win custody after a failure to push the Domestic Violence issue, you'll read about your mistake in a malpractice complaint. In order to prove malpractice, a client need only establish that they would have succeeded in obtaining the desired relief but for the attorney's mistake. A malpractice claim would most likely be before a jury. What judge will be willing to grant summary judgment dismissing the action if the issue of domestic violence was not pushed as a reason why a particular client should get custody. Will the judge charge such a jury that domestic violence "must" be considered in determining custody/visitation as set forth in DRL § 240? What effect will this charge have on a jury which might otherwise be unable to find a reason why a particular party might have been awarded custody?

There are other changes destined to take place as a result of discovery being required where custody and visitation are in issue. At one time, CPLR § 3016 (c) was strictly enforced. There were no "bills of particular" permitted in that the whole purpose of this provision was to have the pleading done properly in the first place (see PUSTILNIK v PUSTILNIK, 24 AD2d 868; KURCZ v KURCZ, 13 AD2d 954 – but see also HARARI v HARARI, 234 AD2d 421, 651 NYS2d 123 [2nd Dept.]). CPLR § 3016 contains the exceptions to the liberalized pleading policy. However, as the years went by and it became apparent that judicial time was being wasted on motions addressed to the sufficiency of the pleadings, the rule was eroded (see GINZBERG v GINZBERG, 104 AD2d 482, 479 NYS2d 233 [2nd Dept.]). In addition, the “course of conduct” rule originally appearing in EARLE v EARLE, 79 App. Div. 631, became more and more liberal, and categories of allegations which were not pleaded in any form were allowed to be brought up in the testimony (with an appropriate argument about liberalized pleadings [CPLR § 3026] and a motion to conform the pleadings to the proof [CPLR § 3025 (c)]). The “Course of Conduct” rule, originally a pleadings rule, allows additional unpleaded allegations to be proved where similar conduct has been specifically pleaded and an allegation that there has been a “course of conduct” has been included in the complaint (see HOFFMAN, 232 N.Y. 215; ALBERT, 44 AD2d 895, 355 NYS2d 687 [4th Dept.]; McKILLIAN, 156 AD2d 904, 550 NYS2d 121; PFEIL, 100 AD2d 725; LERNER, 65 AD2d 889, 410 NYS2d 420). The courts have allowed allegations that would otherwise be barred by the 5 year statute of limitations to be brought in under the "course of conduct" rule. Likewise, you may be able to bring up allegations which occurred subsequent to the filing of the complaint if they are part of a "course of conduct" involving similar conduct.

Indeed, DRL § 170 (1) does not include any requirement that a "course of conduct" must be established to obtain a divorce; merely that "the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant". The conduct must rise to the level mandated by HESSEN and BRADY, supra. Certainly a defendant will be severely prejudiced by allowing unpleaded allegations into evidence which may effect custody/visitation and which may result in an order of protection and/or the inclusion of his or her name in the Domestic Violence Registry.

Therefore, the erosion of the strict pleading requirements contained in CPLR § 3016 (c) should soon end. Attorneys will be required to draft complaints that more fully comply with CPLR § 3016 (c). Obviously, when most judges and attorneys believed that the grounds for divorce were immaterial (despite HESSEN and BRADY, supra.), and the misconduct (absent it being classified as "egregious") was simply a means to put an end to a bad marriage, it was easy to liberalize provisions that were, by statute, not supposed to be liberalized.
This particular "Pandora's Box" came with a packing slip which said "Packed by the New York State Legislature". If you don't like the contents, you should address your comments, complaints or accolades there. Perhaps those communications should point out that the time has come for a "no-fault divorce" as the general cause of action for divorce in this state. When a divorce already costs many middle income families as much money as they would spend on two new cars, it appears that many more hours will now have to be spent to complete divorces where custody/visitation is in issue. Simplified uncontested divorce forms have recently been proposed; a good idea. Unfortunately while we take that one step forward, we must march three steps back.

¹ The First and Second Departments believe that the parties would become angry if the details of the cruel and inhuman treatment became the focus of discovery, and settlement would become more difficult. The Third and Fourth Departments believe that the parties might be more likely to settle if they were faced with pointed questions about the allegations of misconduct, have a better idea of what they will face in court, and might be more amenable to settlement after the Examination Before Trial. Apparently, both theories have merit in that the Court of Appeals never reconciled the differences existing between the Departments for almost three (3) decades and reconciliation of different results in the various departments is one of the factors in granting permission to appeal [see GLEASON v GLEASON, supra.; see also 22 NYCRR 500.11 (d)(1)(v)].