Husband's fraud claim is denied on appeal

Paternity issue raised in property dispute in divorce proceeding

March 08, 2000|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

A husband cannot sue his wife for fraud because she lied to him about the paternity of their children, Maryland's highest court ruled yesterday.

The Court of Appeals said that kind of claim is nearly identical to one the state eliminated two decades ago.

The ruling stems from a Baltimore County divorce proceeding in which the husband learned that his wife -- a woman with "an individual net worth of approximately $2 million," according to the complaint -- had a paramour who fathered two of "their" three children.

The paramour was named the children's godfather in a church service. The names of the couple have been shrouded in pseudonyms, "Doe vs. Doe," in court filings.

"In essence, the court was saying in Maryland that this type of lawsuit was not permitted because it violates public policy," said Paul Mark Sandler, attorney for the wife.

Maryland has long barred lawsuits against paramours for stealing a spouse's affections, and the court in yesterday's ruling applied that to suing an adulterous spouse alleging fraud and emotional distress.

"This court decided 20 years ago that public policy would not allow tort damages based upon adultery,"" Judge John C. Eldridge wrote in the unanimous 17-page opinion. "That decision should not be ignored simply because the plaintiff has employed different labels and named a different defendant."

Precedent at stake

A ruling the other way, Sandler said, would have turned divorce cases upside down, with each divorce potentially spawning a civil suit.

That would threaten to clog court dockets just as the state's courts are using family court divisions, with mediation and settlement conferences, to reduce the workload, legal experts say.

M. Albert Figinski, who represented the husband, said he was disappointed with the ruling because the court did not get to the central part of his argument, which was whether the wife's behavior was so "outrageous" that suing for damages should be allowed.

Battered spouses, for example, are allowed to sue.

"I believe it is an unfortunate reversal of a splendid Court of Special Appeals opinion which has been followed by three other jurisdictions since it has been rendered," Figinski said.

Division of property

Two of those jurisdictions are New Jersey and Minnesota.

"It is particularly disturbing that the case was held for 14 months and appears to have been decided on a ground not raised by the petitioner but injected during oral arguments by the author of the opinion and one other jurist," Figinski said.

The arguments on the fraud issue were heard in January 1999. The ruling leaves the division of marital property, alimony and child support as the means, in theory, for a husband to exact money from an adulterous wife.

In Maryland, a judge can consider fault in a divorce when dividing property.

Potentially at stake was the woman's wealth.

In a routine divorce, marital property is divided, but in a civil suit alleging harm, a person can seek the other person's assets.

The ruling leaves "perhaps the greatest wrong a wife can do to a husband not actionable," said Jana B. Singer, associate dean and professor at the University of Maryland School of Law.

"This is about what husbands and wives do to each other," she said. "The court is saying the divorce system is set up for these people to work out their differences."

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