dissenting.
The Court’s fixation on the entire controversy doctrine continues. It bars the assault claims asserted by the victim of severe domestic violence that allegedly caused two miscarriages, on the ground that those claims were not joined in a prior custody action instituted by defendant, the perpetrator of the alleged assaults. The Court demonstrates its affinity for the entire controversy doctrine by dismissing plaintiffs’ complaint notwithstanding that the entire controversy defense was not pleaded as an affirmative defense until defendant answered the amended complaint approximately thirty-three months after the suit was commenced, and was not asserted as a defense in support of defendant’s summary judgment motion until nearly four years after the complaint was filed. In the process, the Court utterly ignores its own precedents on waiver of affirmative defenses, see Williams v. Bell Tel. Lab., Inc., 132 N.J. 109, 118-20, 623 A.2d 234 (1993), and Fees v. Trow, 105 N.J. 330, 335, 521 A.2d 824 (1987), as well as former Presiding *404Judge Michels’s opinion in Kopin v. Orange Products, Inc., 297 N.J.Super. 353, 375, 688 A.2d 130 (App.Div.), certif. denied, 149 N.J. 409, 694 A.2d 194 (1997), expressly holding that the entire controversy defense is waived if not asserted within three years of the filing of a complaint.
The Court creatively mischaracterizes the waiver issue as a “debate ... concerning the proper method of pleading a defense of failure to join claims,” ante at 401-02, 705 A.2d at 751, and attempts to obscure its inability to meet it by declining to address waiver, inflexibly dismissing it as an issue beyond the scope of the dissent below- A more forthright and accurate response by the Court would unequivocally confirm that the availability of the entire controversy doctrine defense is conditioned on its timely assertion. The Court excuses its silence on the waiver issue and plaintiffs’ other equitable arguments by representing that “it would be more sensitive to the matters of inequity” recited in this dissenting opinion if the bulk of plaintiffs’ claims had not been barred by the statute of limitations. Ante at 401, 705 A.2d at 751. The Court fails to acknowledge, however, that claims for compensatory and punitive damages based on intentional assaults remain in the case. Our entire controversy jurisprudence breaks new ground with the Court’s assertion that an apparent substantive weakness in a plaintiffs case is a factor that may affect decisively whether the equitable aspects of the entire controversy doctrine will receive recognition.
I
In Olds v. Donnelly, 150 N.J. 424, 696 A.2d 633 (1997), one of last term’s most significant cases decided less than six months ago, the Court virtually assured the bar that there would be no more instances of draconian applications of the entire controversy doctrine. In words designed to calm and reassure both litigants and lawyers, the Court benignly observed: ‘We have always emphasized that preclusion is a remedy of last resort.” Id. at 446, 696 A.2d 633. The Court then cited Gelber v. Zito Partnership, 147 N.J. 561, 565, 688 A.2d 1044 (1997), for the proposition that *405“[c]ourts must carefully analyze” both fairness to the parties and fairness to the system of judicial administration “before dismissing claims or parties to a suit.” Olds, supra, 150 N.J. at 446-47, 696 A.2d 683 (emphasis added). Continuing, the Court cited both claim joinder and party joinder cases in support of the principle that “[t]he purpose of the doctrine is not to bar meritorious claims, but to encourage litigants to bring to the attention of trial courts persons [or claims that] should be joined in a proceeding.” Id. at 447, 696 A.2d 633.
And just one year before deciding Olds, the Court in Brennan v. Orban, 145 N.J. 282, 678 A.2d 667 (1996), confronted with the question whether marital tort claims joined with other domestic relations claims should be tried by a court or by a jury, held that the “court should decide whether, on balance, the interests in vindicating the marital tort outweigh the interests of a unitary disposition of the family dispute and warrant a jury trial.” Id. at 304, 678 A.2d 667. The Court in Brennan emphasized that, in balancing those interests, the severity of the violence inflicted merits significant weight:
Obviously, the court will consider in its assessment of the interests, the nature and extent of the violence inflicted on the spouse, be it mental or physical. After all, “these disputes are not private wars. Acts of domestic violence are often crimes. The public has an interest, wholly apart from that of litigants, in the fair and effective resolution of these cases.” Trial by jury, for reasons rooted in our history and tradition, is a special repository of public confidence that our laws will be vindicated.
[Ibid, (citations omitted).]
Notwithstanding its recent pronouncements in Olds and Brennan, the Court bars plaintiffs’ tort action against defendant Ambrose because plaintiff Beverly Oliver failed to assert her tort claims as counterclaims in the custody proceeding previously filed by Ambrose. In holding that preclusion — the remedy of last resort — is appropriate here, the Court apparently overlooks or attaches little significance either to the numerous equitable factors or to the allegations of extreme violence that militate against so severe a remedy:
*406• Ambrose’s custody action, filed in October 1988, was settled without a trial in August 1989, and apparently imposed only a minimal burden on judicial resources in the Family Part.
• Although the Olivers’ tort action was filed in December 1989, the motion for summary judgment based on the entire controversy doctrine was not filed until November 1993, nearly four years later. At the time the motion was filed, Ambrose was being defended on plaintiffs’ negligence claims by counsel for Allstate and Cumberland Insurance Companies, the homeowners’ carriers covering Ambrose for the time period at issue, and by personal counsel on plaintiffs’ claims of intentional tort and punitive damages. The summary judgment motion, filed only by counsel for Allstate, was not granted until December 1994, after Allstate’s counsel in October 1994 sought reconsideration by the trial court of the prior motion.
• In the course of her eight-year relationship with Ambrose, Beverly Oliver became pregnant five times. Two pregnancies were terminated by abortion, Oliver alleging that Ambrose forced her by threats and violence to terminate those pregnancies. The next two pregnancies terminated by miscarriages that Oliver alleges were caused by violent beatings inflicted on her by Ambrose. Following the fifth pregnancy, Melissa Rose Oliver was bom July 9, 1988. In explaining during depositions why she did not seek to assert her tort claims against Ambrose in the custody suit he filed, Beverly Oliver testified that “my concentration during that period was to make sure that Melissa Rose was safe and cared for and got the best care that she could. I did concentrate on that [and] I wasn’t looking at what had gone on with me.” She testified that in the custody ease she focused on the safety of her daughter, “paramount to everything else.”
• Beverly Oliver filed a certification during the custody proceeding that informed both the Family Part judge and defendant of her allegations that she was viciously and violently assaulted by Ambrose. Nevertheless, Ambrose consented to the dismissal with prejudice of his custody action without requiring Oliver to release him from liability for his assaultive conduct.
• Under Brennan v. Orban, supra, Oliver’s allegations that Ambrose brutally and violently assaulted her on numerous occasions would have required a jury trial (and a jury trial was demanded in the tort action) even if the tort claims had been asserted in the custody case. Those allegations include:
April 1983: Angered that she was pregnant, Ambrose slapped her in the face, pushed her against a wall, and choked her;
December 1983: Upon learning that Oliver was pregnant again, Ambrose threatened to kill her if she did not have an abortion;
December 1984: When Oliver refused to terminate another pregnancy by abortion, Ambrose tried to run her over with his car, tied her to a refrigerator, and threw her down the basement steps, causing a miscarriage;
October 1985: Angered over another pregnancy, Ambrose threw her against a wall, flung her down a flight of stairs, and kicked her. Another miscarriage followed.
*407Putting to one side the equitable roots of the entire controversy doctrine, one would assume that the Court would understand fully why Oliver, whose four prior pregnancies allegedly were terminated either by abortions coerced by Ambrose or miscarriages caused by Ambrose’s violent assaults, would not wish to entangle the custody proceeding, in which she was highly likely to prevail, with an extremely adversarial tort litigation against Ambrose. Viewed in the context of our precedents that compel consideration of equitable factors, and taking into account the powerful public policy articulated in Brennan, supra, favoring judicial vindication of aggravated domestic violence assaults, the Court’s disposition precluding the Olivers’ tort action constitutes an astonishing repudiation of our precedents.
II
Long before our decision last term in Olds, supra, our cases have emphasized the equitable underpinnings of the entire controversy doctrine and its focus on fairness. As Justice O’Hern observed in Brennan, supra: “Despite its policy of joinder of claims, the boundaries of the entire controversy doctrine are not limitless. It remains an equitable doctrine whose application is left to judicial discretion based on the factual circumstances of individual cases.” 145 N.J. at 291, 678 A.2d 667 (citation omitted). In our application of that doctrine, we have “proceed[ed] on a step-by-step basis recognizing that the doctrine is one of judicial fairness and will be invoked in that spirit.” Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 343, 476 A.2d 250 (1984); see also Cogdell v. Hospital Ctr., 116 N.J. 7, 23, 560 A.2d 1169 (1989) (stating that “party fairness is critical in the application of the entire controversy doctrine”). Because the doctrine is so inextricably dependent in its application on principles of fairness, we have been cautious not to “convert the entire controversy doctrine from an equitable device into a trap for the unsuspecting.” Cafferata v. Peyser, 251 N.J.Super. 256, 263, 597 A.2d 1101 (App.Div.1991).
*408Unfortunately, as on a prior occasion, see Prevratil v. Mohr, 145 N.J. 180, 199, 678 A.2d 243 (1996)(Stein, J., dissenting), the Court gets the wrong answer in this case because it poses the wrong question. Respectfully, the issue before us cannot simply be framed as “whether we should create an exception to [the entire controversy] doctrine for custody actions.” Ante at 386, 705 A.2d at 743. The critical issue is more specific, focusing on whether “based on the factual circumstances of [this] individual case[],” Brennan, supra, 145 N.J. at 291, 678 A.2d 667, the doctrine should or should not apply as a matter of judicial discretion.
The equitable factors overwhelmingly dictate that the entire controversy doctrine not be applied. As Judge Michels observed in Kopin v. Orange Products, Inc., supra, 297 N.J.Super. at 375, 688 A.2d 130, where the entire controversy defense was not raised for more than three years, that defense is waived if it is not asserted in a timely manner:
Beyond this, even if the entire controversy doctrine were applicable, defendant waived that defense. The entire controversy doctrine is an affirmative defense. R. 4:5-4 provides in part that “[a] responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense ____” “[A]n affirmative defense is waived if not pleaded or otherwise timely raised.” In addition, a party’s conduct can estop him/her from relying on an affirmative defense.
[Citations omitted.]
See also Williams, supra, 132 N.J. at 119, 623 A.2d 234 (holding statute of limitations defense waived although pleaded but not thereafter asserted until post-trial motion); Fees, supra, 105 N.J. at 335, 521 A.2d 824 (holding statute of limitations defense waived when neither pleaded nor raised in defendant’s motion for summary judgment); Brown v. Brown, 208 N.J.Super. 372, 383-84, 506 A.2d 29 (App.Div.1986)(holding in marital tort action that entire controversy defense was waived when not asserted until two and one-half years after filing of complaint); Pressler, Current N.J. Court Rules, comment on R. 4:6-7 (1997) (‘While this rule does not expressly so state, ordinarily affirmative defenses required to be pleaded by R. 4:5-4 which are not so pleaded or otherwise timely raised are waived.”).
*409As in Kopin, supra, defendant did not plead the entire controversy doctrine as an affirmative defense for almost three years and delayed nearly four years before raising the doctrine as a basis for summary judgment. In the interim, plaintiffs had proceeded with discovery and preparation for trial, and “defendant had already substantially assumed the burdens of successive litigation and had encouraged plaintiff herself to continue in the costly prosecution thereof.” Brown, supra, 208 N.J.Super. at 383-84, 506 A.2d 29. If the entire controversy doctrine is intended to avoid burdening judicial resources with duplicative litigation, that purpose is hardly advanced when the doctrine is permitted to be applied after the second case is almost four years old.
Moreover, as noted, although the crux of the complaint alleged intentionally tortious conduct, the entire controversy defense was raised by counsel for one of Ambrose’s homeowners’ carriers who was defending Ambrose only on the peripheral allegations of negligent infliction of emotional distress. Ambrose’s personal counsel, who was defending the intentional assault allegations, never raised that defense. The lower courts erred when they did not hold, as in Kopin, supra, that the entire controversy defense had been waived, or could not as a matter of fairness be applied so late in the litigation. This Court now perpetuates that error.
Moreover, as a matter of judicial burden, the docket entries in the prior custody action reveal virtually no judicial involvement between the complaint’s filing in October 1988, and its voluntary dismissal by Ambrose in August 1989. As the Court observed just last term in Karpovich v. Barbarula, 150 N.J. 473, 481-82, 696 A.2d 659 (1997): “The consent judgment thus involved virtually no judicial resources. Judicial involvement was so minimal as not to warrant the invocation of the entire controversy doctrine.”
Another equitable consideration is that our Rules of Court treat custody eases differently from other actions because the primary concern is the best interests of the child. Rule 5:8-6 provides:
Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than 3 months after the last *410responsive pleading. The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action.
Accordingly, custody actions impose significant time restraints on the parties and, in addition to the virtual certainty that the tort action would have been tried to a jury, Oliver’s counsel justifiably may have assumed that as a matter of practicality the tort action could not have been ready for trial in time to be tried simultaneously with Ambrose’s custody suit.
Ill
Although our Court’s emphasis in Brennan, supra, on the importance of providing judicial vindication for egregious assaults in domestic violence cases, 145 N.J. at 304, 678 A.2d 667, occurred in the context of resolving whether such suits should be tried to a jury or by the Family Part as a matter ancillary to the domestic relations litigation, our observations in Brennan cannot be viewed as an analytically watertight compartment unrelated to the equitable foundations of the entire controversy doctrine. In the context of the issue raised in this appeal, the entire controversy doctrine’s focus on fairness and Brennan’s focus on the importance of judicial vindication for egregious acts of domestic violence are complimentary analytical strains. Taking Oliver’s allegations as true for purposes of Ambrose’s summary judgment motion, her tort complaint presents multiple claims of vicious and contemptible acts of domestic violence. In enacting the Prevention of Domestic Violence Act of 1991, the Legislature forcefully expressed its purpose to afford victims of domestic violence, whether spouses or cohabitants, the maximum protection from abuse the law can provide:
The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is *411therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.
[N.J.S.A. 2C:25-18 (emphasis added).]
Moreover, the Legislature specifically directed the judiciary to provide both “emergent and long-term civil and criminal remedies” to address and vindicate the interests of victims of domestic violence. Ibid. The Legislature stated:
The Legislature finds that battered adults presently experience substantial difficulty in gaining access to protection from the judicial system, particularly due to that system’s inability to generate a prompt response in an emergency situation____ Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature encourages ... the broad application of the remedies available under this act in the civil and criminal courts of this State.
[Ibid, (emphasis added).]
Surely, the Legislature would be surprised to learn that its determination to provide comprehensive relief to victims of domestic violence could be frustrated by a procedural bar to recovery invoked four years after the commencement of civil litigation by counsel whose representation of defendant was only tangentially related to the claims of intentional tortious assault that constitute the focus of the suit.
Fairly evaluated, Oliver’s entitlement to compensation for Ambrose’s violent assaults constitutes a strong and independent equitable factor that should preclude application of the entire controversy doctrine in this litigation. Combined with the other persuasive equitable considerations that support Oliver’s contentions — including the delay of four years in Ambrose’s assertion of the entire controversy doctrine and the minimal expenditure of judicial resources in the custody proceeding — the application of the entire controversy doctrine to bar the Olivers’ tort claims ignores the doctrine’s equitable foundations and frustrates the interests of justice.
I can readily acknowledge the significance of the judiciary’s interest in avoiding duplicative litigation that underlies our claim*412joinder rule. But Beverly Oliver’s interest, after two coerced abortions and two violence-induced miscarriages, in keeping separate her assault claims against Ambrose from his claim for custody of or visitation rights with her infant daughter, is an equitable interest that in the context of her allegations of violent assault deserves compassionate recognition by any court. If the entire controversy doctrine is grounded in equitable principles, the Court’s clinical and unsympathetic elevation of the judiciary’s generalized interest in claim joinder over the equitable interests of this litigant is dismaying and disappointing.
IV
I previously expressed the view that
[t]he framers of the Judicial Article of the 1947 Constitution would be appalled to learn that the “fusion of the powers of Law and Chancery in one Superior Court,” designed to avoid the delay and duplication that results from “the splitting of a controversy,” has been transformed into a bureaucratic procedural snare that closes the courthouse doors to innocent litigants with meritorious claims.
[Prevratil, supra, 145 N.J. at 211, 678 A.2d 243 (Stein, J., dissenting) (citations omitted).]
Those who combined to produce the Judicial Article and our unified court system understood the administrative benefits of claim joinder, but those benefits are lost if the second suit is allowed to drag on for four years before the non-joinder defense is asserted. When we permit that defense to be asserted successfully at a point in the litigation when the joinder requirement no longer serves the purpose of avoiding the second suit, our application of the entire controversy doctrine becomes pointless and mechanistic, achieving none of the judicial management goals that inspired the doctrine, and serving no useful purpose except to bar the potentially meritorious claim of a litigant. In my view, such a bureaucratic application of the entire controversy doctrine is at odds with our basic mission:
But the fundamental harm done here is institutional. The judiciary exists to dispense justice, not deny it. We act in conflict with our most basic duty and function when we adopt rules or announce decisions that close the courthouse doors even to a single deserving litigant. The public that we serve is entitled to take for *413granted that when we act to bar meritorious claims we do so cautiously and reluctantly, and proceed only because the administrative goals that we advance are so essential and beneficial to the administration of justice as to warrant the [application] of a preclusionary rule.
[Id. at 214, 678 A.2d 243.]
I would reverse the judgment of the Appellate Division and remand the case for trial to the Law Division.
For affirmance — Chief Justice PORITZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and COLEMAN — 6.
For reversal and remandment— Justice STEIN — 1.