Fault-based claims lack specificity

Wife’s demurrer to cruelty and constructive desertion claims in husband’s amended counterclaim is sustained with prejudice because there is “insufficient detail” to specifically inform her of the complained-of conduct.

Overview

Wife sued for divorce on grounds of adultery and desertion. Husband counterclaimed for a no-fault divorce. By leave of the court, husband filed an amended counterclaim, in which he has abandoned any request for relief for a no-fault divorce. Instead, he has substituted fault-based claims of cruelty and constructive desertion.

Wife has demurred.

Discussion

“The court finds that Husband’s amended counterclaim fails to allege facts with the definiteness and certainty necessary to state a claim for cruelty. … Husband has averred that Wife on four occasions went into a rage, causing Husband to retreat into the bedroom. He does not aver the time of these incidents with any specificity beyond ‘from 2006 to 2010[.]’ … [H]e does not aver the reason for her rage or why he felt the need to retreat.

“Moreover, what he means by a ‘rage’ is uncertain – e.g., did she shout, or curse, or punch a hole in the wall? Other averments describe in more detail what Wife said during her rages … or the date of the rage, … but the other deficiencies remain.

“Moreover, Husband apparently is asking the court to infer that Wife’s ‘rages’ were malicious and were visited upon an unoffending spouse, but there is no adequate factual support for the court to do so without the context having been pled.

“More specific instances of Husband’s inadequate specificity are where he failed to allege the nature of the ‘over $1,000 worth of [Husband’s] personal items’ Wife threw in the trash[.] … He also does not specify how Wife ‘attempted to get Husband terminated from his employment[.]’ …

“Husband also alleges that Wife left open for view notes containing ‘disparaging and sexual messages about Husband’ and that Wife ‘disparag[ed] and debas[ed] Husband in front of the Children.’ … But the contents of Wife’s statements are not stated and the effect of what she wrote and said is purely a matter of opinion and construction by Husband. Whether they were merely examples of ‘rudeness of language’ or improper can be determined only by a knowledge of the language used and the circumstances of its use. …

“In multiple averments, Husband alleges ‘frequent[]’ or ‘multiple instances’ of a particular form of misconduct by Wife. … There is no definite fact of time, place, and/or means averred. In the court’s view, there would be no way for Wife to meet these allegations because there is insufficient detail for her to be apprised of what specific conduct Husband is referring to.

“Similarly, almost all of Husband’s general allegations of misconduct, before averring examples thereof, use the expansive phrases ‘including’ or ‘including but not limited to.’ … This court has said that the inclusion of such a ‘catch all’ phrase can ‘seriously impair’ a  defendant’s ability to respond to the conduct of which a spouse complains. …

“‘The Defendant is entitled to know what facts and circumstances the Complainant relies upon to support [his] allegations of cruelty and constructive desertion.’ … If Husband has more to allege, then he should allege it. If not, then he should not plead an open door which leaves Wife to speculate what Husband intends to prove against her.

“By failing to state a claim for cruelty, Husband necessary fails to state a claim for constructive desertion. But even if cruelty had been adequately pled, Husband failed to plead that Wife’s alleged cruelty caused him to leave the marital residence, which is a necessary element of constructive desertion. …

“While Husband did allege the date of separation, this court and others have recognized that parties can live ‘separate and apart’ while still living in the same house. … Husband did not allege if and when he left the marital residence or any cause therefore.”

Wife’s demurrer is sustained with prejudice.

O’Rourke v. O’Rourke, Case No. CL19003659-00, March 15, 2021, Loudon County Cir. Ct. (Fisher). Gerald R. Curran for plaintiff, John C. Whitbeck Jr. for defendant. VLW 021-8-035, 7 pp.