Appeals court to hear marriage fraud lawsuit; Husband sued wife for lying about paternity of children


Maryland's highest court will take up today The Case of The Crumbled Marriage, a divorce case so strange and steamy that names of the participants have been hidden in court papers as "Doe v. Doe."

For the first time, the Court of Appeals will consider whether a cuckolded husband can sue his wife for fraud and distress for lying to him about the paternity of "their" children.

A lot of money is at stake. In a divorce, spouses divide up only the property acquired during their marriage. But in a civil matter alleging harm, a spouse can go after all the other person's assets.

In the Doe case, a Baltimore County man is claiming that his wife had an "individual net worth of approximately $2 million."

His lawyers contend that her behavior was so egregious that a plain-vanilla divorce is not enough. They say he should be able to seek damages for emotional distress and fraud. While he is listed as the father in legal and Episcopal church documents, DNA tests showed that two of the three children of the marriage were not his.

The man the husband accused of being his wife's paramour and father of those children was named the children's godfather, the documents show.

"This is a wrong that deserves a remedy," said M. Albert Figinski, the husband's lawyer. "It is not sufficient to give the traditional marital remedies."

The wife's lawyers counter that it is bad public policy to use the cause of a breakup as a reason to expand divorces into jury trials. Most divorces feature one spouse blaming the other for emotional discomfort, they say, so civil lawsuits and titillating trials stemming from soured marriages would invade marital privacy, harm children and clog courts with two suits for every dysfunctional couple.

Paul Mark Sandler, the woman's lawyer, would not discuss the case.

"This would be new ground," said Jane C. Murphy, director of the Family Law Clinic at the University of Baltimore School of Law. In doing divorces, her clinic checks to see if a battered spouse should seek damages for injuries, which the law allows.

"Certainly, you don't want to encourage husbands and wives to go into court and sue," she said. But, she added, "the theory that allowing tort claims is destructive or destabilizing to the family doesn't make sense in divorce."

The court file is sealed and the names of the couple, who live in Sparks, were changed to "Doe" to protect the children. Only briefs and supporting papers at the Court of Appeals are open -- all of which omit real names.

While traditionally spouses have been barred from suing each other, most states allow lawsuits in some circumstances.

Two decades ago, Maryland's Court of Appeals decided that a battered wife can sue her abusing husband. It later allowed a spouse hurt in an accident to file a driver negligence lawsuit against her husband. And it said one spouse's "outrageous conduct" was a test for allowing the other spouse to seek damages.

"It is very tricky to say what is outrageous conduct," said Ira M. Ellman, professor at Arizona State University College of Law and author of one of the top-selling family law textbooks. "Most courts reject adultery as outrageous conduct. What if you conceal it? If you admit it, it's not outrageous, but if you don't admit it, then it is?"

Maryland is one of 15 states that allow fault-based grounds for divorce and for division of marital property.

Figinski is arguing that the wife's behavior passes any test of "outrageous conduct."

The couple wed in 1989. The husband claims that as early as 1990, his wife began an affair with a Baltimore art professor. His divorce suit says that in July 1996, he discovered her letter to her lover referring to "our children."

She had one child, then twins. Paternity tests confirmed that the husband was not the father of the twins. Naming the man he believes was his wife's lover as the children's godfather was "a reprehensible and blasphemous fraud upon the church and God," his divorce complaint states.

The husband also sued for breach of contract and related claims. Circuit Judge Dana M. Levitz dismissed everything except the divorce in 1997.

In June, the Court of Special Appeals reinstated his claims of fraud and emotional distress. The wife appealed. In hearing her appeal, the top court could uphold either lower court, make a broad ruling that tells trial judges what divorce situations qualify for civil damage trials or tailor an opinion to this case.

Pub Date: 1/07/99

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