Burden of Proof - Fair Preponderance of Credible Evidence - Clear and Convincing Evidence
To say that a party has the burden of proof on a particular issue means that, considering all the evidence in the case, the party's claim on that issue must be established by “a fair preponderance of the credible evidence,” or the relevant evidentiary standard. [1]
In some cases,[2] the burden of proof on an issue must be established by “clear and convincing evidence”. This means evidence that satisfies the trier of fact that there is a high degree of probability that something occurred. A party who must establish his case by clear and convincing evidence must satisfy the trier of fact that the evidence makes it highly probable that what he claims is what actually happened.[3]
The “burden of proof” involves the “burden of persuasion” and the “burden of going forward” with the evidence. The “burden of persuasion” remains on the same party throughout the trial, it never shifts. The “burden of going forward” with the evidence shifts from one party to the other. A presumption does not affect the ultimate burden of proof. It operates in such a way that it places a burden on the defendant, if he so chooses, to come forward with evidence to the contrary. In other words, the burden of going forward with evidence to rebut the presumption is upon the defendant. [4]
The burden of going forward is not related to the burden of persuasion. The burden of persuasion refers to the balancing of the evidence. The burden of persuasion is that burden which the law places on a party to actually convince the trier of facts that a given set of facts are true. The burden of persuasion in civil cases is usually a “preponderance of the evidence”, and sometimes “clear and convincing evidence”. In criminal cases, the burden of persuasion is “beyond a reasonable doubt”. This burden never shifts to the defense. [5]
These burdens of persuasion do not become operative unless and until the parties have sustained their necessary burdens of production of evidence.[6] This means that when the plaintiff has established a prima facie case, the defendant must present evidence to controvert it. Otherwise, judgment will be granted against him. When the defendant offers evidence controverting the plaintiff's case, then the question of the burden of proof as to any question of fact arises and rests upon the party upon whom it was at the beginning. It is not shifted by the course of the trial. At that point, the jury may be properly instructed that all material issues raised by the plaintiff must be established by him by a preponderance of the evidence.[7]
The pleadings define the issues. When the parties go to trial they respectively assume the burden of establishing that which they have affirmatively alleged as a cause of action or counter-claim, if it is controverted by allegation sufficient to put it in issue. [8]
The plaintiff has the affirmative of the issue and burden of proof with regard to the allegations of his complaint regarding divorce and the requests for ancillary relief, and the defendant has the burden of proof with regard to the allegations of his affirmative defenses and counterclaims.[9]
The term “cause of action’ is synonymous with “the right to bring a suit”. That right is based upon the ground or grounds on which an action may be maintained. [10] A demand for alimony or maintenance in a divorce action is not an essential part of the cause of action. It is merely an “appendage” of the action. Where it is awarded in the final judgment it is “a mere incident of the judgment”. It need not be determined, when the judgment dissolving the marriage is entered, providing the right to have it subsequently determined is reserved in the judgment. [11]
Causes of action in a complaint for equitable distribution, a determination of title to various items of personalty, and an award of exclusive use and occupancy of the marital abode are not causes of action but are requests for relief.[12]
Such incidental or ancillary relief in a matrimonial action includes equitable distribution of marital property, a distributive award, and a determination of separate property,[13] as well as maintenance,[14] child support,[15] an order regarding the use and occupancy of the marital home and its household effects as provided in Domestic Relations Law § 234, [16] special relief [17] and counsel fees.[18]
The granting of ancillary relief by the matrimonial court is pursuant to its statutory power to grant collateral relief in a matrimonial action, whether requested in the pleadings or not.[19] The only limitation is that it must be requested before entry of judgment.[20] The failure to request specific forms of ancillary relief in a pleading does not bar the court from granting that relief. Domestic Relations Law § 236[B] [5] gives the court the power to provide for an equitable distribution of marital assets as an element of relief in the event of a dissolution of a marriage. Other forms of incidental relief are also specifically provided for by Domestic Relations Law § 236 [B] (6), (7) and (8) including maintenance, child support and ‘‘special relief’’ by way of life insurance and medical Insurance. A request for relief does not constitute a cause of action, but, rather, a remedy flowing from a cause of action and the violation of an obligation or duty [21]
[1] N.Y. Pattern Jury Instr.--Civil 1:23 (3d Ed.)
[2] It is used in cases to terminate parental rights and establish the grounds for appointment of a guardian under Social Serv. L. § 384-b, In re Guardianship of B., 57 NY2d 641, 454 NYS2d 63, 439 NE2d 872; see Santosky v Kramer, 455 US 745, 102 SCt 1388 (termination of parental rights on ground that child is permanently neglected must be based on “clear and convincing” evidence, therefore former Family Court Act § 622 is unconstitutional because it sets “fair preponderance” as the standard of proof); In re Michael B., 58 NY2d 71, 459 NYS2d 254, 445 NE2d 637 (“clear and convincing” evidence required under FCA § 614); see also In re Candie Lee “W,” 91 AD2d 1106, 458 NYS2d 347; In re Rose Marie M., 90 AD2d 810, 455 NYS2d 664.
[3] N.Y. Pattern Jury Instr.--Civil 1:64 (3d Ed.)
[4] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978).
[5] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978)
[6] McCormick on Evidence § 336 (6th Ed.)
[7] Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45, 49; Doheny v. Lacy, 168 N. Y. 213, 220; Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y. 271, 279; Simpson v. Davis, 119 Mass. 269; Delano v. Bartlett, 6 Cush. Rep. 364; Klunk v. Hocking Valley R. Co., 74 Ohio St. 125, 133.)
[8] Lake Ontario Nat. Bank v Judson, 122 NY 278.
[9] Domestic Relations Law §211
[10] Payne v. N. Y., S. & W. R. R. Co., 201 N.Y. 436, 440, 95 N.E. 19 (1911)
[11] Galusha v Galusha (1893) 138 NY 272, 33 NE 1062.
[12] Wegman v Wegman, 112 Misc.2d 716, 716–19 (N.Y.Sup. 1982)
[13] Domestic Relations Law § 236[B] [5]
[14] Domestic Relations Law § 236 [B] [6]
[15] Domestic Relations Law § 236 [B] [7]
[16] Domestic Relations Law § 236[B] [5][f]
[17] Domestic Relations Law § 236 [B] [8]
[18] Domestic Relations Law § 237
[19] CPLR 3017(a) provides except as provided in CPLR 3215, with regard to default judgments, the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just.
[20] Galusha v Galusha (1893) 138 NY 272, 33 NE 1062.
[21] DiGennero v DiGennero (1981) 108 Misc 2d 721, 438 NYS2d 703.
To say that a party has the burden of proof on a particular issue means that, considering all the evidence in the case, the party's claim on that issue must be established by “a fair preponderance of the credible evidence,” or the relevant evidentiary standard. [1]
In some cases,[2] the burden of proof on an issue must be established by “clear and convincing evidence”. This means evidence that satisfies the trier of fact that there is a high degree of probability that something occurred. A party who must establish his case by clear and convincing evidence must satisfy the trier of fact that the evidence makes it highly probable that what he claims is what actually happened.[3]
The “burden of proof” involves the “burden of persuasion” and the “burden of going forward” with the evidence. The “burden of persuasion” remains on the same party throughout the trial, it never shifts. The “burden of going forward” with the evidence shifts from one party to the other. A presumption does not affect the ultimate burden of proof. It operates in such a way that it places a burden on the defendant, if he so chooses, to come forward with evidence to the contrary. In other words, the burden of going forward with evidence to rebut the presumption is upon the defendant. [4]
The burden of going forward is not related to the burden of persuasion. The burden of persuasion refers to the balancing of the evidence. The burden of persuasion is that burden which the law places on a party to actually convince the trier of facts that a given set of facts are true. The burden of persuasion in civil cases is usually a “preponderance of the evidence”, and sometimes “clear and convincing evidence”. In criminal cases, the burden of persuasion is “beyond a reasonable doubt”. This burden never shifts to the defense. [5]
These burdens of persuasion do not become operative unless and until the parties have sustained their necessary burdens of production of evidence.[6] This means that when the plaintiff has established a prima facie case, the defendant must present evidence to controvert it. Otherwise, judgment will be granted against him. When the defendant offers evidence controverting the plaintiff's case, then the question of the burden of proof as to any question of fact arises and rests upon the party upon whom it was at the beginning. It is not shifted by the course of the trial. At that point, the jury may be properly instructed that all material issues raised by the plaintiff must be established by him by a preponderance of the evidence.[7]
The pleadings define the issues. When the parties go to trial they respectively assume the burden of establishing that which they have affirmatively alleged as a cause of action or counter-claim, if it is controverted by allegation sufficient to put it in issue. [8]
The plaintiff has the affirmative of the issue and burden of proof with regard to the allegations of his complaint regarding divorce and the requests for ancillary relief, and the defendant has the burden of proof with regard to the allegations of his affirmative defenses and counterclaims.[9]
The term “cause of action’ is synonymous with “the right to bring a suit”. That right is based upon the ground or grounds on which an action may be maintained. [10] A demand for alimony or maintenance in a divorce action is not an essential part of the cause of action. It is merely an “appendage” of the action. Where it is awarded in the final judgment it is “a mere incident of the judgment”. It need not be determined, when the judgment dissolving the marriage is entered, providing the right to have it subsequently determined is reserved in the judgment. [11]
Causes of action in a complaint for equitable distribution, a determination of title to various items of personalty, and an award of exclusive use and occupancy of the marital abode are not causes of action but are requests for relief.[12]
Such incidental or ancillary relief in a matrimonial action includes equitable distribution of marital property, a distributive award, and a determination of separate property,[13] as well as maintenance,[14] child support,[15] an order regarding the use and occupancy of the marital home and its household effects as provided in Domestic Relations Law § 234, [16] special relief [17] and counsel fees.[18]
The granting of ancillary relief by the matrimonial court is pursuant to its statutory power to grant collateral relief in a matrimonial action, whether requested in the pleadings or not.[19] The only limitation is that it must be requested before entry of judgment.[20] The failure to request specific forms of ancillary relief in a pleading does not bar the court from granting that relief. Domestic Relations Law § 236[B] [5] gives the court the power to provide for an equitable distribution of marital assets as an element of relief in the event of a dissolution of a marriage. Other forms of incidental relief are also specifically provided for by Domestic Relations Law § 236 [B] (6), (7) and (8) including maintenance, child support and ‘‘special relief’’ by way of life insurance and medical Insurance. A request for relief does not constitute a cause of action, but, rather, a remedy flowing from a cause of action and the violation of an obligation or duty [21]
[1] N.Y. Pattern Jury Instr.--Civil 1:23 (3d Ed.)
[2] It is used in cases to terminate parental rights and establish the grounds for appointment of a guardian under Social Serv. L. § 384-b, In re Guardianship of B., 57 NY2d 641, 454 NYS2d 63, 439 NE2d 872; see Santosky v Kramer, 455 US 745, 102 SCt 1388 (termination of parental rights on ground that child is permanently neglected must be based on “clear and convincing” evidence, therefore former Family Court Act § 622 is unconstitutional because it sets “fair preponderance” as the standard of proof); In re Michael B., 58 NY2d 71, 459 NYS2d 254, 445 NE2d 637 (“clear and convincing” evidence required under FCA § 614); see also In re Candie Lee “W,” 91 AD2d 1106, 458 NYS2d 347; In re Rose Marie M., 90 AD2d 810, 455 NYS2d 664.
[3] N.Y. Pattern Jury Instr.--Civil 1:64 (3d Ed.)
[4] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978).
[5] People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978)
[6] McCormick on Evidence § 336 (6th Ed.)
[7] Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45, 49; Doheny v. Lacy, 168 N. Y. 213, 220; Lamb v. Camden & Amboy R. R. & T. Co., 46 N. Y. 271, 279; Simpson v. Davis, 119 Mass. 269; Delano v. Bartlett, 6 Cush. Rep. 364; Klunk v. Hocking Valley R. Co., 74 Ohio St. 125, 133.)
[8] Lake Ontario Nat. Bank v Judson, 122 NY 278.
[9] Domestic Relations Law §211
[10] Payne v. N. Y., S. & W. R. R. Co., 201 N.Y. 436, 440, 95 N.E. 19 (1911)
[11] Galusha v Galusha (1893) 138 NY 272, 33 NE 1062.
[12] Wegman v Wegman, 112 Misc.2d 716, 716–19 (N.Y.Sup. 1982)
[13] Domestic Relations Law § 236[B] [5]
[14] Domestic Relations Law § 236 [B] [6]
[15] Domestic Relations Law § 236 [B] [7]
[16] Domestic Relations Law § 236[B] [5][f]
[17] Domestic Relations Law § 236 [B] [8]
[18] Domestic Relations Law § 237
[19] CPLR 3017(a) provides except as provided in CPLR 3215, with regard to default judgments, the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just.
[20] Galusha v Galusha (1893) 138 NY 272, 33 NE 1062.
[21] DiGennero v DiGennero (1981) 108 Misc 2d 721, 438 NYS2d 703.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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