CPLR 4502(b): The Spousal Privilege

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The fostering of uninhibited communications between spouses so as to promote domestic peace is at the heart of the spousal privilege. However, this troublesome privilege is not inviolate and not all communications between spouses are, or should be, immune from disclosure, even if the parties intended them to be confidential.

Section 4502(b) sets forth the basis for privileged “confidential” communications between spouses as follows: “[a] husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage,” N.Y. CPLR &#167 4502(b) (1992).

This statutory privilege was “designed to protect and strengthen the marital bond,” Poppe v. Poppe 3 NY2d 312, 315 (1957) rearg denied 3 NY2d 914 (1957) (recognizing that the privilege does not necessarily apply to all communications between husband and wife, even though made in privacy and when alone).

While the statute does not set forth express exceptions to the privilege, New York courts have not been reluctant to consider and rule that a specific conversation constitutes something other than a conversation relating to matters of the heart. Thus, exceptions have been judicially recognized such as where the statement being offered is lacking in any sentiments of “domestic peace or of conjugal loyalty,” see Poppe 3 NY2d at 317 (allowing husband to introduce wife’s statement characterized as “defiant declaration of misconduct and of intention to persist therein and go away with ‘the other man'” in order to establish cruelty).

Courts have also been willing to characterize a conversation as an “ordinary conversation[s] relating to matters of business” so as to by-pass the privilege, on the ground that “there is no reason to suppose that the [spouse] would have been unwilling to hold the conversation in the presence of ‘any person,'” Parkhurst v. Berdell, 110 NY 386, 393-394 (1888) (affirming lower court ruling allowing wife’s testimony about the defendant- husband’s statements to her concerning his act of taking securities away from the plaintiff, and also recognizing that the privilege was waived by defendant’s counsel who failed to raise the privilege until after he had concluded his cross examination).

While some courts have characterized a conversation as an “ordinary conversation relating to matters of business” in order to avoid the spousal privilege, it is clear that in many cases, the concept advanced by the court is that the spousal privilege should not be used as a shield to thwart execution of a judgment or to perpetrate a fraud.

See eg. Securities Settlement Corp v. Johnpoll, 128 AD2d 429 (1st Dept.) app dismissed 70 NY2d 693 (1987) (upholding lower court’s denial of motion to quash a subpoena for, among various reasons, no marital privilege would attach to the ordinary business records sought and testimony as to ordinary business matters of a spouse [involving a supplementary proceeding to recover proceeds of stolen securities]); Roberts v. Pollack, 92 AD2d 440, 445 (subpoena issued to judgment debtor’s wife, by former mother-in-law creditor, in judgment enforcement action, was proper and the spousal privilege did not bar inquiry of wife concerning her judgment debtor-husband’s finances).

See also G-Fours, Inc. v. Miele, 496 F2d 809, 812-813 (2d Cir 1974) (construing &#167 4502, observing that divining what the New York courts would do is “a little like reading tea leaves,” and ruling that the marital privilege is not available to shield communications about the concealment or transfer of assets to thwart judgment execution); In re Donald Sheldon & Co., Inc., 191 BR 39 (Bankr. SDNY 1996) (interspousal communications not privileged as there was probable cause to believe that they were intended to facilitate judgment debtor’s efforts to secrete assets).

Not all conversations about personal finances however are “ordinary conversations about matters of business,” see Joel, Professionally Known as Billy Joel v. Weber v. Christie Joel, 153 Misc 2d 549 (Sup Ct NY Co 1992) (dismissing action against Christie Brinkley on the grounds that crucial testimony to support claims against her would be inadmissible on the basis of the spousal privilege because the testimony related to personal finances as between Joel and Brinkley); Federated Dep’t Stores, Inc. v. Esser, 96 Misc 2d 567, 572-573 (Sup Ct NY Co 1978) (holding that wife could not be compelled to answer questions about the amount of support furnished to the witness by the judgment debtor, but also recognizing the “extremely narrow scope of the privilege claimed and the lack of any showing of fraud or an attempt to conceal fraud”).

When all else fails, one should consider whether the spousal privilege has been waived. Thus, a conversation that at first blush was privileged under CPLR 4502(b) may become subject to compelled disclosure by some act that occurred after the conversation took place.

In Prink v. Rockefeller Ctr, Inc., 48 NY2d 309 (1979), the Court of Appeals ruled that a wife could be compelled to testify concerning a conversation with her husband because the wife had brought a wrongful death action pursuant to EPTL 5-4.1 (which authorizes an action for wrongful death only for a wrongful act, neglect or default which caused the decedent’s death).

Thus, the defendant was not foreclosed inquiry concerning whether the husband’s injury was the result of an attempt at suicide. In recognizing an exception based upon waiver, the court balanced the danger of suppression of relevant proof with the “doubtful and marginal” benefits in encouraging marital confidences and wedded harmony, Id. at 317 (quoting McCormick Evidence).

In advocating a balancing approach, Chief Judge Cooke, writing for the majority, noted, “‘[p]robably the policy of encouraging confidences is not the prime influence in creating and maintaining the privilege. It is really a much more natural and less devious matter. It is a matter of emotion and sentiment. All of us have a feeling of indelicacy and want of decorum in prying into the secrets of husband and wife. It is important to recognize that this is the real source of the privilege. When we do, we realize at once that is motive of delicacy, while worthy and desirable, will not stand in the balance with the need for disclosure in court of the facts upon which a man’s life, liberty, or estate may depend,'” Id. at 317-318.

In a society that today seems bent on revealing all, on television, radio and in print, the spousal privilege continues to survive so as to frustrate the fact finding process. If the true underlying basis for the privilege reflects, as a skeptical Court of Appeals suggested, nothing more than a notion of indelicacy and want of decorum in prying into the secrets of husband and wife, a notion that is perhaps pass&#233, then perhaps the need for the privilege should be reexamined.

Mary Jo S. Korona is a partner with the firm of Wolford & Leclair LLP. The firm concentrates its practice in litigation with special emphasis in the areas of business/commercial, employment, creditor’s rights, securities, healthcare, environmental and white collar criminal defense.