O.C. Case Could Alter Concept of California Split

The newspaper headline immediately grabbed the attention of famed palimony lawyer Marvin M. Mitchelson.

“ ‘Not Loving Husband Costs O.C. Wife Dearly’--definitely my kind of case,” the flamboyant lawyer said Thursday of a jury’s finding that a Santa Ana woman had defrauded her ex-husband by concealing that she was never physically attracted to him. Jurors ordered Bonnette Askew to pay Ronald Askew $242,000 in damages.

“Right away, I thought, ‘The appeals court is going uphold this decision,’ ” Mitchelson said Thursday.

While legal experts differed Thursday on whether the stunning verdict would be upheld on appeal, most agreed that the Askew decision holds the potential to reshape the concept that property must be split evenly upon divorce. They also predicted that divorcing spouses would flock to attorneys in an effort to take advantage of a new legal tactic.

“This decision is going to open up a Pandora’s box over litigation, over misconduct between husbands and wives,” said feminist attorney Gloria Allred. “It can undermine community property law and bring back the concept of ‘fault.’ ”

Added E. Robert Lemkin, who has been practicing family law in Orange County since 1955: “What this has done--and believe me, all family law attorneys who know about this case are discussing this today--is that it’s going to send spouses running to lawyers to see how they’re going to get this fraud concept to their advantage.”

Jurors concluded that Ronald Askew would never have married Bonnette Askew or made her joint owner of four parcels of property if she had told him beforehand that she did not find him sexually attractive.

They ordered her to compensate him for the deception by paying him $240,000, or her half of the equity of the properties. Jurors also ordered Bonnette Askew to pay $2,000 in cash damages. In another hearing Monday, a judge may allow Bonnette Askew to simply return her share of the property.

Bonnette Askew’s attorney said that his client will probably appeal the decision.

Grace Blumberg, a UCLA law professor, predicted that the decision would be struck down by a higher court.

“The decision would be reversible,” said Blumberg, whose specialty is family law.

It is one thing for a jury to find that Bonnette Askew broke her trust agreement and hold her to a damages award, “which is justified,” Blumberg said. But it is another for jurors to come back with that finding because they were swayed by the claim that the wife committed fraud when she concealed her lack of attraction for her husband throughout their 13-year relationship.

“Lying about how you feel sexually is not a legal ground” for fraud, Blumberg said.

“The question for an appeals court would be whether (the fraud) finding so contaminated the deliberation as to produce an unsustainable verdict,” she said. “And if that is the finding, this decision would be reversible.”

Lemkin certainly hopes so. If not, he said, “what this decision is going to do--if it’s upheld in the higher courts--is . . . bring back ‘fault-base’ through the back door. It’s taking away what the law said she should get, which is half the property earned during marriage.”

While lawyers disagree on how an appeals court or the California Supreme Court would rule on an appeal, most interviewed Thursday agreed that the jury’s verdict will undoubtedly open a floodgate of marital litigation.

The Askews will soon return to family court to discuss division of about five other properties, their lawyers said.

In the civil trial, Bonnette Askew, 46, admitted on the stand that she had never found her husband physically desirable during their two years of dating and 11 years of marriage. But she said she had always loved him and noted that theirs was not a sexless marriage. The couple had two children together.

Ronald Askew, a 50-year-old Anaheim banker, claimed his ex-wife misrepresented herself to him because during discussions of honesty and integrity, he asked if she had anything important to tell him. Repeatedly, she said no, he testified.

The Askews and a psychiatrist testified that Bonnette Askew first revealed her lack of sexual attraction to her husband at a joint session the couple had with the psychiatrist in 1991.

The case also threatens to undermine couples’ confidence in marital counseling, said Steven E. Briggs, an Orange County family law attorney since 1971.

“This had nothing to do with the legal issues of this case, of course, but another interesting point that came out of this bizarre case is, how do you know that what you’re telling your marriage counselor is not going to come back and haunt you?” Briggs said.

Briggs was referring to the psychiatrist’s testimony, which corroborated Ronald Askew’s claim of ignorance of his wife’s sexual indifference before their joint counseling session.

The doctor-patient confidentiality privilege is waived if a third party is present during a joint session, legal experts said.

“I’m sure (couples) are now trying to remember what they said to their counselors in joint sessions and are really worried right about now,” Briggs said.

Lemkin said he could envision spouses using the Askew precedent to move divorce cases into civil court, attempting to win more favorable awards.

Under California divorce law, responsibility for the failure of a marriage does not affect the division of community property because of a “no-fault” clause implemented in the Family Law Act in the 1970s. Thus, attorneys for both sides in the Askew case said, the fraud suit was the only avenue for Ronald Askew to retrieve the pieces of property he bought during the marriage but with money he said he earned before then.

“This decision could undermine community property law because the 50% (division of property) may no longer be a matter of right,” Allred said. “It’s going to open the door to (a spouse) losing a percentage of property because of this new area of litigation accusing fraud between husbands and wives being permitted.”

And if that happens, women will lose most often in divorce cases, Allred said, because “women are generally less able to afford a battle royal than men are, and so can be clobbered into a smaller settlement.”

Mitchelson and a few others argued that the decision would not affect current state divorce law.

“What you got here is something that’s outside the Family Law Act to start with. Fraud, or deception, is a civil tort and people under the law have every right to take anyone to court,” he said.

The case should have been left alone in family court for a judge to make a ruling, Lemkin said.

“You have a husband claiming his wife lied to him because he did not tell him she found him sexually unattractive. You have a discussion of events stemming from a marriage. The fraud claim appeared to go to the heart of marriage itself. That is family law. That doesn’t belong in civil court,” he said.

Lawyers and academics generally agreed that there has never been a case like this one before. And before the dust settles, legal minds will talk about this particular marriage-gone-bad and its impact on community property law for years to come, they said.

The Askew case, law professor Blumberg concluded, “is a novel case. It’s a complicated case. It’s a first of its kind, I believe. . . . If (the decision is) upheld, there will be more like it.”