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