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Grounds For Divorce: Adultery

The Domestic Relations Law, in Section 170(4), provides that an action may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on the ground of the commission of an act of adultery.

Double Standard

In Westervelt v Westervelt,(1970) 26 NY2d 865, 309 NYS2d 604, 258 NE2d 98. On the other hand, a husband who spends some time in a hotel or motel room with the "other woman" may be subject to the presumption that "he sayeth not his pater nosters there." Kerr v. Kerr (1909) 134 App Div 141, 118 NYS 801.

In effect, a "double standard" may be inferred from the New York cases and it is easier to prove a husband's adultery from circumstantial evidence involving inclination and opportunity than it is to prove a wife's indiscretion. It may be more than coincidental that guilt of the latter formerly barred alimony whereas a husband's infidelity occasioned no comparable financial hardship except that unofficially it might enhance the alimony he had to pay.

George v. George (1970, 4th Dept) 34 App Div 2d 888, 313 NYS2d 85, held that the trial court had erred in finding that the defendant wife had committed adultery. The only testimony submitted was that a man visited the wife on various occasions while plaintiff was not at home. The court held that although such evidence might be considered on the issue of cruel and inhuman treatment, it was insufficient to support a finding of adultery. a complaint was dismissed despite proof that the wife had lived in her alleged lover's home for four months during which time she took contraceptive pills.

It is important to keep in mind that adultery, as distinguished from the other grounds for divorce in New York, is subject to the traditional defenses of recrimination, connivance, and condonation, and also to a five-year statute of limitations.

Definition.

The Domestic Relations Law defines adultery as the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of the plaintiff and the defendant. [Dom L 170, subd 4]. Deviate sexual intercourse includes, but is not limited to, sexual conduct as defined in Penal L 130:00, subd 2, and Penal L 130:20, subd 3. [Dom Rel L 170, subd 4.]

The Penal Law 130.00 says that "deviate sexual intercourse" "means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva." Apparently, bestiality is omitted if the definition is taken literally since the reference is to deviate sexual intercourse with a "person."

In New York, as in most states, adultery is rarely prosecuted. In 1948, there were over 6,000 divorce cases based upon adultery but not a single prosecution for that offense. Between June 1959 and June 1960, there were 1700 divorce cases based on the adultery ground in New York City but no prosecutions. See Ploscowe, Sex And The Law, Ch 5 (1962 rev ed).

Proof of Adultery

In a divorce action grounded upon the adultery of the defendant, the plaintiff has the burden of proving the material allegations of his or her complaint, including the allegation of adultery, even though the defendant defaults in appearing or pleading, or the answer does not put in issue the allegation of adultery. [Dom Rel L 211]

Plaintiff must satisfactorily prove adultery even though defendant fails to deny factual allegations in complaint that he has been living with another woman from 1955 to present time. Kirshner v. Kirshner, (1959, 2d Dept.) 7 App Div 2d 202, 182 NYS2d 286.

An admission of adultery in an answer does not justify a finding that adultery has been committed by the defendant, since if this were true it would permit the granting of a divorce on the consent of the defendant. Taylor v. Taylor, (1908) 123 App Div 220, 108 NYS 428

The Court of Appeals, in an understandably divided opinion, held in Sackler v. Sackler that proof as to a wife's adultery was admissible in a divorce action even though it had been obtained by means of an illegal search and seizure by a forcible entry into the wife's home by the husband and his hired detectives, the rule as to criminal cases having no application. Sackler v. Sackler, (1964) 15 NY2d 40, 255 NYS2d 83, 203 NE2d 481, 5 ALR3d 664.

The allegation that the defendant committed adultery with a certain specified person must be supported by testimony which identifies the person with whom the acts were committed as the person specified, Mondano v. Mondano, (1910, Sup) 122 NYS 731 and such an allegation is not supported by testimony establishing the fact that the plaintiff committed acts of adultery with persons other than the one named. Kane v. Kane, 3 Edw Ch. 389; Mondano v. Mondano, (1910, Sup. 122 NYS 731 But an allegation that the defendant committed adultery with a person whose name is unknown to the plaintiff is satisfactorily established by proof that the adultery alleged was committed with a person known as "May", Miller v. Miller, (1920) 194 App Div 183, 185 NYS 313 or with a person called ...., Mitchell v. Mitchell, (1875) 61 NY 398 or otherwise identified. Where the complaint contains an allegation of adultery with persons unknown to the plaintiff, the complaint will not be dismissed because the plaintiff does not establish by proof the former allegation, where he proves, under the latter allegation, that the defendant committed adultery with a certain person. Miller v. Miller, supra. The complaint will not be dismissed because the plaintiff did not establish by proof another allegation in his complaint that during the months of October, November and December, of a particular year, the defendant "committed adultery with a certain woman whose Christian name is `Julia', in the city of New York, and at various other places, which plaintiff is unable to state with more particularity.

Proof By Circumstantial Evidence

In an action for a divorce on the ground of adultery, there need not be direct evidence of the actual commission of the offense charged, Davidson v. Davidson (1909) 134 App Div 958, 119 NYS 141; Harris v. Harris (1903) 83 App Div 123, 82 NYS 568. since adulterous acts are usually secret and clandestine, and proof thereof ordinarily can be made only by circumstantial and indirect evidence. Yates v. Yates (1914) 211 NY 163, 105 NE 195; Mattison v. Mattison (1911) 203 NY 79, 96 NE 359; Cullen v. Cullen (1923) 205 App Div 276, 199 NYS 598; Cottrell v. Cottrell (1915) 165 App Div 693, 151 NYS 289; Shaw v. Shaw (1913) 155 App Div 252, 140 NYS 109. It is said the court "must take such evidence as the nature of the case permits, circumstantial, direct, or positive, and bringing to bear upon it the experiences and observations of life, and thus weighing it with prudence and care, give effect to its just preponderance." Moller v. Moller (1889) 115 NY 466, 22 NE 169. There are facts and circumstances which, unexplained, and in the line of the common experience of mankind, justify reaching the conclusion that the defendant has been guilty of adultery. Harris v. Harris (1903) 83 App Div 123, 82 NYS 568.

As to proof of nonaccess of plaintiff and subsequent birth of child, see Taylor v. Taylor (1908) 123 App Div 220, 108 NYS 428; Mayer v. Davis (1907) 122 App Div 393, 106 NYS 1041.

As to entries in hotel registers, and as to testimony upon which decree of divorce against the corespondent was granted, as evidence of act of adultery, see Mattison v. Mattison (1911) 203 NY 79, 96 NE 359.

It has frequently held that in order to establish a charge of adultery by circumstantial evidence, the plaintiff must prove opportunity, inclination, and intent. Trumpet v. Trumpet (1961, Sup) 215 NYS2d 921; Fleck v. Fleck (1957) 6 Misc 2d 202, 163 NYS2d 218; Brooks v. Brooks (1953, Sup) 120 NYS2d 335.

The following charge of the court was said to be able and instructive: "The burden is upon the plaintiff from first to last in the case. He must satisfy you by a fair preponderance of credible evidence of the two propositions which I have heretofore indicated to you: First, that these parties had the lascivious desire; and second, that they had the opportunity to gratify it, and third, that they did gratify it. That, however, you may find as an inference; that is to say, you are not called upon to receive direct proof of the fact, but, given the desire and intent and opportunity, you may if you are satisfied by a fair preponderance of credible evidence if you can say it is likely and probable, and necessarily followed from the preceding circumstances that they did commit the act you may find it, although no one saw it." Roth v. Roth (1904) 90 App Div 87, 85 NYS 640, affd 183 NY 520, 76 NE 1107. There must be evidence of some relation between the parties and such conduct on their part as would tend to establish that the desire and willingness existed to engage in an act of adultery when the opportunity arose [Brooks v. Brooks (1953, Sup) 120 NYS2d 335. Where the circumstances shown by the evidence were many, the opportunities frequent, and positive evidence of affection was openly shown, a finding of the court that the defendant was not guilty of adultery as charged was held to be against the weight of evidence. Cullen v. Cullen (1923) 205 App Div 276, 199 NYS 598]; proof of opportunity alone to commit adultery is not sufficient; [Pollock v. Pollock (1877) 71 NY 137; Bosch v. Bosch (1949) 275 App Div 1046, 91 NYS2d 841; Nottingham v. Nottingham (1924) 209 App Div 459, 204 NYS 750; Cottrell v. Cottrell (1915) 165 App Div 693, 151 NYS 289; Graham v. Graham (1913) 157 App Div 52, 141 NYS 766; Keville v. Keville (1907) 122 App Div 388, 106 NYS 993; Brooks v. Brooks (1953, Sup) 120 NYS2d 335.

The mere fact that the defendant and the corespondent were alone in the kitchen of the defendant's home from about 9:30 p.m. until midnight, at which time the plaintiff appeared, and that for the most of the time at least they were without a light, is not proof that the wrong has been done. Graham v. Graham (1913) 157 App Div 52, 141 NYS 766]; the evidence of inclination and intent must be clear, positive, and satisfactory, such as to lead a reasonable man to the conclusion that the adulterous act was committed when the opportunity was present. Brooks v. Brooks (1953, Sup) 120 NYS2d 335. Where it is shown that the parties charged with wrongdoing had the lascivious desire and the opportunity to gratify it, the fact that they did gratify it may be inferred from other facts. Kay v. Kay (1932) 235 App Div 25, 256 NYS 147; Rathje v. Rathje (1931) 232 App Div 664, 247 NYS 880; Roth v. Roth (1904) 90 App Div 87, 85 NYS 640, affd 183 NY 520, 76 NE 1107.

Evidence that the defendant met a woman who was not his wife at a railroad station, took her to a hotel where he registered both her and himself under an assumed name as husband and wife, had a room assigned to them upstairs in the hotel, ascended with her in the lift as if to the room, taking their baggage with him, and that neither of them was seen to come down, although the witness waited in the hotel until midnight, was held sufficient to justify an interlocutory decree of divorce, the court observing, "We have it of old that 'it is presumed he saith not a pater noster' there." Kerr v. Kerr (1909) 134 App Div 141, 118 NYS 801.

Since one act of adultery is sufficient grounds for divorce (Kay v. Kay (1932) 235 App Div 25, 256 NYS 147; Rathje v. Rathje (1931) 232 App Div 664, 247 NYS 880), and since the evidence of wife's adultery was "clear and convincing," the husband was entitled to a summary judgment for divorce. The defendant wife's own testimony clearly indicates that she committed adultery with one Ralph Nathan, and she does not deny this allegation in her reply affidavit, therefore plaintiff husband's motion for summary judgment is granted on his cause of action "adultery with a man or men whose name or names are unknown as well." Salomon v. Salomon (1979) 102 Misc 2d 427, 423 NYS2d 605.

It has also frequently been said that the evidence must be more consistent with guilt than with innocence in order to establish the charge of adultery by circumstantial evidence. Trumpet v. Trumpet (1961, Sup) 215 NYS2d 921; Fleck v. Fleck (1957) 6 Misc 2d 202, 163 NYS2d 218.

Where the evidence showed that the defendant and a woman not his wife registered at a hotel as man and wife, and later in the evening of the day on which they registered, were discovered in a room of the hotel partially disrobed, it was held error for the trial court to dismiss the complaint on the ground that the acts were as consistent with innocence as with guilt; such a conclusion was held not to be compatible with the acts of the parties. Miller v. Miller (1925) 212 App Div 114, 208 NYS 113.

Where circumstances are as consistent with innocence as with guilt, or are reconcilable with innocence, a presumption of guilt is not justified and the plaintiff is not entitled to recover. Allen v. Allen (1886) 101 NY 658, 5 NE 341; Pollock v. Pollock (1877) 71 NY 137; Rolfe v. Rolfe (1935) 244 App Div 863, 279 NYS 796; Cottrell v. Cottrell (1915) 165 App Div 693, 151 NYS 289; Roth v. Roth (1904) 90 App Div 87, 85 NYS 640, affd 183 NY 520, 76 NE 1107; Brooks v. Brooks (1953, Sup) 120 NYS2d 335.The circumstantial evidence as to adultery need not be so strong as to admit of no other possible conclusion, [ Allen v. Allen (1886) 101 NY 658, 5 NE 341. Where the action for divorce was based on the adultery of the defendant with his mother-in-law, direct testimony of the offense was given by the son of the corespondent, and there was no denial under oath by either the defendant or the corespondent, it was held error to dismiss the complaint on the ground that the testimony was so inherently improbable as to be beyond belief. Gelbman v. Gelbman (1920) 194 App Div 137, 184 NYS 902 ]; or as to convince the court beyond all doubt, Fleck v. Fleck (1957) 6 Misc 2d 202, 163 NYS2d 218. but it should point clearly to guilt. Braun v. Braun (1935) 245 App Div 194, 281 NYS 25.

Circumstantial evidence was insufficient where it merely established that the wife was in another man's hotel room in a "shortie" nightgown and lucky Pierre was never placed in the room. Hess v. Hess (1966, 2d Dept) 25 App Div 2d 548, 267 NYS2d 537.

Proof By Testimony of Third Persons - The Paramour, Prostitute and Private Eye

In an action for divorce on the ground of adultery, the testimony of a correspondent as to intercourse with a spouse is said to be viewed with suspicion, and the courts will not generally grant a divorce based on such uncorroborated testimony. Glaser v. Glaser (1901) 36 Misc 231, 73 NYS 284; Delling v. Delling (1901) 34 Misc 122, 69 NYS 479; Fawcett v. Fawcett (1899) 29 Misc 673, 61 NYS 108. Because of the doubtful character and unreliability of testimony given by private detectives and prostitutes, such testimony is viewed with suspicion and is generally held to be insufficient to justify a judgment in favor of the party suing for a divorce because of defendant's adultery, without some corroboration. Winston v. Winston (1901) 165 NY 553, 59 NE 273, affd 189 US 506, 47 L Ed 922, 23 S Ct 852.

Regarding detectives, see Yates v. Yates (1914) 211 NY 163, 105 NE 195; Kruczek v. Kruczek (1942) 264 App Div 242, 35 NYS2d 289, affd 289 NY 826, 47 NE2d 434; Cottrell v. Cottrell (1915) 165 App Div 693, 151 NYS 289; Shaw v. Shaw (1913) 155 App Div 252, 140 NYS 109; Steele v. Steele (1918, Sup) 170 NYS 454. Regarding prostitutes, see McCarthy v. McCarthy (1894) 143 NY 235, 38 NE 288; Moller v. Moller (1889) 115 NY 466, 22 NE 169.

This does not apply to the testimony of a detective who obtained evidence without compensation through friendship to one of the parties, Yates v. Yates (1914) 211 NY 163, 105 NE 195, nor to the testimony of a person who was a witness to the sexual act, but not as a paid detective; in such instances there need be no corroboration to the testimony offered. Filocco v. Filocco (1942) 263 App Div 296, 32 NYS2d 552.

The rule requiring corroboration in certain cases is not a rule of evidence, but merely one for the guidance of the judicial conscience in uncontested cases, Yates v. Yates (1914) 211 NY 163, 105 NE 195; Simons v. Simons (1945) 270 App Div 88, 58 NYS2d 558; Trumpet v. Trumpet (1961, Sup) 215 NYS2d 921; Barber v. Barber (1953, Sup) 119 NYS2d 773; Steele v. Steele (1918, Sup) 170 NYS 454, and it is not followed as a matter of law in litigated cases where a jury is present to determine the issues of fact under proper instructions. Simons v. Simons (1945) 270 App Div 88, 58 NYS2d 558.

In other words, the rule is not that, as matter of law, such evidence could not be considered by a justice or jury, but rather that in the consideration of the same, only such weight should be given to it as the conscience of the judge or jurors shall deem it is entitled to receive. Yates v. Yates (1914) 211 NY 163, 105 NE 195. Therefore, it is error to charge the jury that the evidence of a private detective must be corroborated; a correct charge should state that the jury should consider the evidence of a private detective for what it is worth, considering the fact that he is a mercenary whose success and reward depend upon producing evidence favorable to the one hiring him. Braun v. Braun (1935) 245 App Div 194, 281 NYS 25. The rule is not one which affects a judgment rendered upon some evidence and affirmed upon review by the Appellate Division. Shaftan v. Shaftan (1932) 259 NY 527, 182 NE 166; Winston v. Winston (1901) 165 NY 553, 59 NE 273, affd 189 US 506, 47 L Ed 922, 23 S Ct 852. In such case, the judgment cannot be reversed by the Court of Appeals. Winston v. Winston, supra, where the court stated: "However the evidence may be criticized, with respect to its character, or to its weight, if it was such as to support the conclusions of the trial judge, or referee, and the judgment recovered is subsequently affirmed, the controversy should be deemed closed in this court."

Be that as it may, the courts, realizing the clandestine and secret nature of the offense sought to be proved in a case of this kind, have held very slight corroboration of the testimony of private detectives, or of prostitutes, to be sufficient to justify the granting of a divorce, See Yates v Yates (1914) 211 NY 163, 105 NE 195 and this is especially true where the party against whom the testimony is introduced fails to take the stand in his or her own behalf. Winston v. Winston (1901) 165 NY 553, 59 NE 273, affd 189 US 506, 47 L Ed 922, 23 S Ct 852; McCarthy v. McCarthy (1894) 143 NY 235, 38 NE 288; Moller v. Moller (1889) 115 NY 466, 22 NE 169.

The corroboration which such evidence should receive need not be sufficient, standing by itself, to prove the fact of adultery, but must simply be such as to justify a belief that the incriminating testimony given is true. Winston v. Winston, supra; Moller v. Moller (1889) 115 NY 466, 22 NE 169. Such corroboration may be found, for instance, in surrounding circumstances, Winston v. Winston (1901) 165 NY 553, 59 NE 273, affd 189 US 506, 47 L Ed 922, 23 S Ct 852.

or in letters of the defendant to the corespondent. McCarthy v. McCarthy (1894) 143 NY 235, 38 NE 288; Moller v. Moller (1889) 115 NY 466, 22 NE 169.

By Proof of Divorce and Remarriage.

In an action for divorce on the ground of adultery, proof of an invalid foreign divorce obtained by the defendant and a subsequent second marriage is insufficient to prove adultery, even though such proof is offered by the defendant. Taylor v. Taylor (1908) 123 App Div 220, 108 NYS 428. There must be proof of cohabitation with the second spouse in order to establish the adultery. Taylor v. Taylor, supra; Fox v. Fox (1960) 23 Misc 2d 504, 206 NYS2d 317. Where the plaintiff proves the remarriage of the defendant subsequent to the obtaining an invalid foreign judgment of divorce, and also proves that the defendant resided with his or her alleged second spouse, this is sufficient to authorize an inference of adultery. Hoyt v. Hoyt (1955) 286 App Div 580, 146 NYS2d 133.

Confessions

A judgment of divorce will not be granted based upon adultery solely upon the confessions of the parties. The policy reason for this rule is to avoid the danger of collusion, and to assure the courts that no imposition has been practiced upon them. The courts refuse to grant divorces upon a confession alone, but require some corroboration of the confession. Betts v. Betts, 1 Johns Ch 197; Rivett v. Rivett (1946) 270 App Div 878, 61 NYS2d 7; Buchanan v. Buchanan (1930) 229 App Div 631, 243 NYS 436; Monypeny v. Monypeny (1916) 171 App Div 134, 157 NYS 11; Irwin v. Irwin (1946, Sup) 69 NYS2d 780; Feraco v. Feraco (1946, Sup) 69 NYS2d 652; Madge v. Madge (1886, NY) 42 Hun 524; Anonymous, 17 Abb Pr 48; Lyon v. Lyon, 62 Barb 138. This rule, requiring corroboration of testimony in a divorce action, is not a rule of evidence, but is said to be one for the guidance of the judicial conscience. Barbara v. Barbara (1945, Sup) 57 NYS2d 156. It is not necessary that the corroboration should be sufficient, standing by itself, to prove the fact of adultery, or the other grounds upon which the divorce action is based. Monypeny v. Monypeny (1916) 171 App Div 134, 157 NYS 11; Lake v. Lake (1946, Sup) 60 NYS2d 105. It is only required that it shall tend to corroborate the fact stated in the confession.Monypeny v. Monypeny, supra.

It is said: "It is a rule of policy ....... not to found a sentence of divorce upon confession alone. Yet when it is full, confidential, reluctant, free from suspicion of collusion, and corroborated by circumstances, it is ranked with the safest proofs." Madge v. Madge (1886, NY) 42 Hun 524. Thus, if it is made to appear by evidence outside of his or her own confession that the defendant has done acts which it would be quite natural and probable that he or she would do if the facts stated in the confession were true, but quite unnatural and improbable if the confession were untrue, there is presented some corroboration of the truth of the confession.

A confession of a party to a divorce action which is clear and distinct, sincere and not collusive, corroborated by the correspondence of the guilty party or other evidence, constitutes a sufficient basis for a judgment of divorce. Madge v. Madge (1886, NY) 42 Hun 524.

The testimony of a policeman that he had seen plaintiff chasing defendant, that he intercepted plaintiff who accused defendant of having illicit relations with a doctor at his office, that all three of them went to the doctor's office where the doctor and defendant admitted their guilt was sufficient corroboration of the out-of-court confessions of adultery of the defendant and of the correspondent to warrant granting plaintiff a divorce in his uncontested action against defendant. Crowley v. Crowley (1959) 18 Misc 2d 586, 186 NYS2d 60.

It was held in Stetson v. Stetson (1914, Sup) 146 NYS 245, that an admission by a defendant in an action for divorce is not sufficiently corroborated to justify the granting of the divorce, by a record of criminal prosecution against the defendant, showing that he had transported the corespondent to another city for the purpose of committing adultery with her, since there was no allegation in the criminal prosecution of cohabitation or unlawful intercourse, the conviction proved only an intent to commit adultery and some steps taken to carry out that intent. An admission of adultery by a party to a divorce action is not corroborated by his or her testimony that he or she received certain letters from a correspondent indicating the acts of adultery, since it will constitute merely an admission to corroborate an admission. Lake v. Lake (1946, Sup) 60 NYS2d 105.