Husband Sought Damages After Learning Wife's Ex-Boss Fathered Two Children
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MasterJayN100
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When David DiMichele was married, his wife gave birth to two children. He raised them as his own for 10 years, only to eventually find out that his wife's former boss was the biological father.
That revelation gave rise to a five-year court battle between the husband, the wife and her ex-boss. It's a case that still may not be over.
But in the latest chapter, the state Appellate Court has reversed a trial judge's award of $30,000 to the husband on his claim of fraud and deceit on the part of the biological father.
The appellate judges, in their unanimous ruling, opined that the biological father owed no duty to the husband—a man he did not know—to reveal that he was the real father.
"[DiMichele] argues that he shared a special relationship with the defendant, which imposed on the defendant a duty to disclose the children's paternity, because the plaintiff is the psychological parent of the children and the defendant is the biological parent," wrote retired state Supreme Court Justice Flemming Norcott Jr., a member of the Appellate Court panel that heard the case.
"The plaintiff does not cite to, and we have not found, any legal authority to support his argument. Rather, our Supreme Court's case law lends support to the defendant's argument that he did not have a duty to disclose."
Previously, Superior Court Judge Vincent Roche had a much different view of the situation, ruling that the wife and biological father were both deceitful.
Roche described the case as one involving "certain human instincts and relationships that are not usually publicly exhibited" before quoting Shakespeare's "The Merry Wives of Windsor," a comedy about suspected infidelity.
DiMichele and his wife, Josinette DiMichele, were married in 1994 and two children were born during their marriage: Priscilla in 1996 and Jacob in 1998. The couple, who shared a home in Waterbury, are now separated, having stopped living together in 2013.
According to court documents, Josinette came to the U.S. from Brazil with her family when she was 9. She later met the defendant in this case, Gary Perrella, who was 16 years her elder and who was her supervisor at work.
Josinette and Perrella had an ongoing sexual relationship that they secretly continued during Josinette's marriage to David DiMichele. Josinette had DNA testing done three months after Priscilla was born. Around the time Jacob was born in 1998, Josinette told Perrella he was the father of both children. An official DNA test in 2006 confirmed he was Jacob's father.
From the time the children were born, Josinette secretly took the children to visit Perrella at least once a week.
She stopped the visits in July 2006.
In March 2007, Perrella began an action in family court in which he sought visitation with the children. In the course of that proceeding, both Josinette DiMichele and Perrella acknowledged that he was the biological father of the children.
Perrella was granted visitation rights but also ordered to pay $155 a month in child support.
A month later, in April 2007, David DiMichele opened a piece of mail pertaining to the visitation family court matter. After reading it, he confronted his wife and she admitted that Perrella was the children's father.
Three years later, David brought a formal lawsuit against Perrella alleging fraud and deceit, intentional infliction of emotional distress, negligent infliction of emotional distress and unjust enrichment.
Perrella's attorney, Thomas Amato of Manchester, filed a motion to strike all four counts of the complaint. The trial judge only granted the motion on the unjust enrichment count. Amato told theLaw Tribune that it was "hard to believe [David] couldn't have known for 10 years" that Perrella was the biological father of his children.
Amato next filed a motion to implead Josinette, alleging she was liable for all or part of David's lawsuit against Perrella under the theories of contribution and/or apportionment. That motion to implead was granted and Josinette became a third-party defendant.
Amato later filed a motion for summary judgment on the three remaining counts of the lawsuit. That was denied. A bench trial later took place in August 2013 over three days. The husband, wife and biological father all testified. The children did not. "Everybody really attempted to minimize [the children's] involvement," said Amato.
Following post-hearing briefing, the judge issued a written ruling in April 2014. Judge Roche ruled in favor of David DiMichele, and against Perrella and Josinette DiMichele, only on the count of fraud and deceit. The judge sided with Perella on the other two emotional distress counts.
Roche ruled that Perrella should pay $30,000 in damages and Josinette $15,000, plus court costs. Perrella then appealed. Josinette did not appeal the verdict against her.
"The clandestine interaction with the gifting and visitation by the defendant with full knowledge of his paternity of the children only deepens the deceptive nature of this unusual three-party relationship," Roche wrote in his 34-page ruling.
But the appellate judges, in the ruling released online July 20, opined that Perrella was not deceitful in failing to disclose to David DiMichele that he was the biological father to the children DiMichele had been raising because they did not have a "special relationship" before DiMichele first discovered he wasn't the children's actual father.
From a legal standpoint, Norcott explained in the ruling, a special relationship includes such examples as principal and agent, majority and minority stockholders, old friends, "or numerous others where special trust and confidence is reposed."
"We conclude that the parties in this case did not share a special relationship, and thus the defendant did not have a duty to disclose the children's paternity to the plaintiff," wrote Norcott.
Amato said his client was pleased with the ruling though cautious that the case may not be over, as the plaintiff now has time to decide whether to petition the state Supreme Court to review the case.
"We've been maintaining all along that the defendant did not have a duty of disclosure to the plaintiff, which is ultimately what the Appellate Court concluded," said Amato.
David DiMichele was represented by attorneys from the Kolesnik Law Firm in Waterbury, including Stephanie Cummings, who argued the appeal. The lawyers did not return repeated messages for comment.
http://m.ctlawtribune.com/module/alm/app/clt.do#!/article/1750400137
Comments
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seems like a allergens situation
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lol @ having a "special relationship" with the dude who fathered your wife's children.
They didn't even know each other.
I know in most states, once you sign the birth certificate or have children within a marriage....the kids are legally yours regardless of whether or not you actually fathered them.
He's lucky he was awarded $15,000 from the wife and she's not contesting it.
He should leave the dude alone though because he's just wasting money by going after him. -
I know it hurts to find out the kids arent yours but you gotta move on.when you find out your wife is a ? you take the L and Sign them papers.some women out here just trifling and sneaky.whats in the dark comes to light
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Que biggie somebody's got to die
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how she running off on secret visits with ya kids for years.. sorry somebody else kids and then go through a whole ? custody trial without you knowing it. ? her the real dad
and the kids... they could have let him know they seeing they real dad on the sly. he ain't no at attachments other than emotional s that will fade with time -
I would cut everybody off.
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It was a nice try. If it had worked there would be revolution of ? suing cats for fathering kids with their wives and/or girlfriends.
Its filthy ? like this situation that make me hesitant to even get married. I'd did something horrible to that ? by now. -
These people seem incredibly civilized about this. Do the kids even know what's going on? Psychological father?!? Never heard of that one.
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"Psychological father" is new to me but it makes perfect sense. The kids know him and recognize him as their parent. Due to that attachment it is difficult for him to separate from them.
Sounds like emotional distress to me. -
DO NOT SIGN ?
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Damn, thats messed up. Sound like the next Tyler Perry movie...
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'Son, your mom been secretly taking you to visit this ? for 10 years and you ain't slip me a note or NOTHING? Get out.'
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? gotta die. no question. the way women are built these days, she probably didnt even feel bad about it
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King Erauno wrote: »? gotta die. no question. the way women are built these days, she probably didnt even feel bad about it
Knowing these hoes out here, she probably tried to justify the whole ? . You know hoes ain't go NO shame or remorse, especially when ? blows up in their faces. -
What about that ? tho ? If anything, she should be paying that dude money for fraud.
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Might as well starch my orange jumpsuit up. I'm knocking everybody block off.
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Somebody try to find her fb or something I wanna see what that broad looks like
Husband gotta be a sucker for love ass ? .. He was in denial. Your wife and kids
Going on weekly field trips and your not curious as to what the ? is going on you
Just so happen to never be invited. South American woman are so beautiful but the devil.. -
That’s a hard ? L to take. His soul is gone slowly burn until he dead. He gotta hit the lottery in order to live that ? down.
10 ? years! If my kid came out with different looking fingers then mine I want that paternity test, I don’t care if we married or not. Not even one but TWO kids! That ? went back for seconds.
These type of stories make me more jaded every day.
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That guy had nothing to do with this other than providing life sauce.
He needs to do something about that ? . He mad at the wrong person. -
That guy had nothing to do with this other than providing life sauce.
He needs to do something about that ? . He mad at the wrong person.
Are u saying he should have Scott Peterson her @DarcSkies -
Damn, and just when I was thinking about having a kid. ? that, I ain't built for that L right now, somebody would get chopped smh.
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"How you gonna call another man your boss? Your kids might as well call him daddy."
- The Honorable Profit Dame Dash
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What about that ? tho ? If anything, she should be paying that dude money for fraud.
She is.
I'm trying to figure out how she got two paternity test done, go on weekly visitations, go thru a family court case and her husband be none the wiser... -
Hilarious how the same dudes always talking about prenups arent ever talking about paternity tests.
You better make sure that kid is yours before you fall in love with it, ? the money involved man dont even put yourself in position to form that kind of bond with a seed that aint yours.
And if your woman have a problem with that you should treat it the same way as a broad having a problem with a prenup. ? im trying to protect myself and you have a problem with that?.. why are we together again?
