Brennan v. Orban

STEIN, J.,

concurring in part and dissenting in part.

I concur in the Court’s judgment mandating a jury trial of plaintiffs tort claim, and agree with much of the substantive content of the Court’s opinion. I find unacceptable, however, the broad discretion that the Court confers on Family Part judges to decide whether or not the victim of a marital tort is entitled to a jury trial on her tort claim that is joined with a divorce action. The Court holds that “[w]hen issues of child welfare, child support, and child parenting are intertwined with dissolution of the marriage and the necessary resolution of the marital tort ... the Family Part should retain jurisdiction over the matter and try that cause of action without a jury in the same proceedings.” Ante at 302, 678 A.2d at 677.

*307I disagree profoundly with that disposition, which vests virtually standardless discretion in Family Part judges to deny jury trials in marital tort claims. Under the Court’s formulation, the Family Part could deny a jury trial in virtually every marital tort claim on the basis that the potential monetary award by a jury necessarily is “intertwined” with issues of alimony, child support and equitable distribution.

The Court’s ruling may be pragmatic, on the assumption that consolidating trial of the tort and divorce actions before the Family Part judge will save time and judicial resources. But the holding is wrong, because it ignores society’s evolving determination to stamp out domestic violence and to punish those who perpetrate it, a determination emphatically endorsed by our Legislature in enacting the “Prevention of Domestic Violence Act of 1991,” L. 1991, c. 261, N.J.S.A 2C:25-17 to -33. Society’s growing recognition and understanding of the evils of domestic violence compels a reciprocal response by the judiciary, one that provides the fullest measure of vindication authorized by law to compensate victims of domestic violence. To that end, I would hold that all victims of marital torts who seek a jury trial are entitled to have a jury trial, whether that marital tort claim is or is not joined with a claim for divorce. I would allow only the narrowest exception to that rule: if the Family Part judge before whom the divorce action is pending determines that the marital tort action involves an obviously insignificant claim that has been asserted primarily for strategic reasons and is designed to influence the outcome of the divorce action, the Family Part judge may treat the tort claim as ancillary to the divorce action and decide it without a jury.

I

The Court properly explains that the question whether the marital tort claim must be joined with the action for divorce does not resolve the issue of the tort plaintiffs entitlement to a jury trial. Ante at 291-92, 678 A.2d at 672. In Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979), the Court ruled that a wife’s claim for *308damages, arising from a beating inflicted by her husband and filed more than two years after the assault, was barred by the statute of limitations, id. at 434, 400 A.2d 1189, observing in dictum that under the claim joinder requirements of the entire controversy doctrine the marital tort claim should have been joined in the prior divorce action between the parties “in order to lay at rest all their legal differences in one proceeding and avoid the ... fractionalization of litigation.” Ibid. Some states hold that divorce actions and marital tort claims are “separate and independent causes of action that do not have to be joined in a single proceeding.” Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24 Fam. L.Q. 127, 130 (1990); see, e.g., Simmons v. Simmons, 773 P.2d 602, 604-05 (Col.Ct.App.1988); Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151, 153 (1988); Walther v. Walther, 709 P.2d 387, 388 (Utah 1985). I agree with the Court’s apparent conclusion that joinder of the marital tort claim with the divorce proceeding ordinarily should be required. Even spouses engaged in an adversarial divorce proceeding have an interest in conducting candid settlement negotiations or in resolving in a single proceeding all of their outstanding disputes. Those considerations support the wisdom of requiring that the marital tort claim and the divorce action be joined in a single proceeding.

The Court holds that the doctrine of ancillary jurisdiction authorizes the Family Part, in its discretion, to adjudicate the marital tort without a jury in those cases in which the court concludes that the tort claim may be “intertwined” with issues of child support, alimony, and equitable distribution. Ante at 301-02, 678 A.2d at 677. The marital tort claim, if successfully litigated, will inevitably have some impact on the tortfeasor’s financial status and, on that basis, may affect and be “intertwined” with the Family Part’s resolution of issues directly related to the financial condition of the parties, including alimony, child support, and equitable distribution. Under the Court’s discretionary standard, Family Part judges would be required to permit jury trials in relatively few marital tort cases joined with divorce actions.

*309Article I, Paragraph 9 of the 1947 Constitution preserves the common law right of trial by jury: “The right of a trial by jury shall remain inviolate.” Our Court has interpreted that provision, consistent with its plain meaning, as ensuring that “[wjhere the right to a trial by jury existed under the Constitution of 1844, the right continues unimpaired under the new Constitution.” Steiner v. Stein, 2 N.J. 367, 378-79, 66 A2.d 719 (1949). At common law, tort claims were among the category of legal actions entitled to the right of trial by jury. See Kenney v. Scientific, Inc., 213 N.J.Super. 372, 374-75, 517 A.2d 484 (App.Div.1986). Thus, unless the marital tort claim is “ancillary” to the action for divorce, plaintiffs asserting such claims are entitled to a jury trial.

The Court strains the ancillary jurisdiction doctrine when it holds that marital tort claims generally may be regarded as ancillary to actions for divorce. We have recognized that legal claims are “ancillary” to claims for equitable relief if they are “germane to or grow out of the subject matter of the equitable jurisdiction,” Fleischer v. James Drug Stores, Inc., 1 N.J. 138, 150, 62 A.2d 383 (1948), and that equity courts can deal with legal issues if “ ‘their decision is incidental or essential to the determination of some equitable question.’ ” Shaw v. G.B. Beaumont Co., 88 N.J. Eq. 333, 336, 102 A. 151 (E. & A. 1917) (quoting Stout v. Phoenix Assurance Co. of London, 65 N.J. Eq. 566, 573-74, 56 A. 691 (Ch.Div.1904)). Those standards necessarily are imprecise, and in this context are entirely inadequate to guide the policy determination at the root of this appeal. The marital tort claim in the broadest sense may be “germane” to the divorce action, but it is not germane enough to be ancillary. The Court should not characterize a marital tort claim as “ancillary” to a pending divorce action because that tort claim is too important a mechanism for vindicating the public policies designed to punish perpetrators of domestic violence. By holding that the Family Part generally may regard marital tort claims as ancillary to divorce actions, the Court in effect diminishes the importance of the harm inflicted by domestic violence and countermands the escalating *310social and legislative determination to eradicate domestic violence and its destructive effects.

The Court thoroughly describes the danger posed by domestic violence incidents. The Court refers to a 1992 congressional report indicating that “the most dangerous place in the United States for a woman to be is in her home,” and also notes studies demonstrating that approximately eighty percent of women that file suit for divorce cite physical abuse by their husbands as a cause. Ante at 298-99, 678 A.2d at 675. The legislative findings and declaration in the Prevention of Domestic Violence Act of 1991 endorse those concerns in the strongest terms:

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 therefore, 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 20:25-18.]

Not only did the Legislature identify domestic violence as a serious and pervasive societal problem; it specifically admonished the judiciary to provide both “emergent and long-term civil and criminal remedies” to address 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.]

In the face of that legislative directive, the Court dilutes the judiciary’s responsibility to afford civil remedies to victims of *311domestic violence when it authorizes tort claims arising from domestic violence to be treated as a regrettable outgrowth of the marital relationship, ancillary to the other, and presumably more significant, issues in the divorce action. The day is long passed when “a husband could command his wife’s obedience, and subject her to corporal punishment or ‘chastisement’ if she defied his authority.” Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2123 (1996). Although most states had repudiated the right of “chastisement” by the late nineteenth century, for many years courts were reluctant to accord affirmative relief to women beaten by their husbands. Id. at 2141. As Professor Siegel observes, early in this century many state courts refused to recognize causes of action by battered wives against their husbands on the ground that to do so would disturb “ ‘the tranquillity of family relations.’ ” Id. at 2166 (quoting Drake v. Drake, 145 Minn. 388, 177 N.W. 624, 625 (1920)).

The Court’s disposition reflects an analogous and regressive response to marital tort actions, permitting them to be too readily characterized as ancillary to a divorce action, and impliedly sanctioning the view that such claims are an incident of the marital relationship. On that subject, the Legislature has taken the lead, stating categorically that “the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.” N.J.S.A. 2C:25-18 (emphasis added).

On issues such as this, the importance of judicial economy and efficiency pales in comparison to the judiciary’s higher responsibility to respond to the scourge of domestic violence by according its victims the same right that our civil law affords to every other victim of an unlawful assault and battery — a trial before a jury. That the victim is also engaged in a divorce action with the *312perpetrator of the tort should be irrelevant to the remedy afforded by law to the tort victim. Moreover, if the tort claim were tried by the judge trying the divorce action, the damages awarded on the tort claim inevitably will be influenced by the judge’s overriding obligation to resolve all of the financial issues in the divorce case. A separate jury trial on the tort claim, however, would focus only on that claim and the damages necessary for its vindication. The likelihood that a jury trial of the tort claim ordinarily would result in a more generous damages award underscores the judiciary’s obligation to respond clearly and evenhandedly to the claims of victims of domestic violence, affording them no less than the full panoply of remedies available to other citizens. In my view, the Court’s response is deficient.

I would also note that the practical problems can readily be addressed by the Family Part judge requiring trial of the marital tort claim prior to trial of the divorce action. If issues of punitive damages arise in the tort case, evidence of the defendant’s estimated obligations arising out of the divorce action can be presented to the jury. If a jury returns a verdict in favor of the plaintiff in the marital tort action, the trial court should stay entry of the judgment and permit the Family Part judge to take the judgment into account in its resolution of issues pending in the divorce action. The divorce action should be tried after the tort claim, taking into account the result of the marital tort action in resolving financial issues between the parties. .

II

I join in the Court’s judgment, but not in the rule it announces allowing marital tort suits generally to be treated as ancillary to divorce actions. The time for regressive responses to the evils of domestic violence has passed. The Court should allow jury trials in virtually all marital tort cases, reflecting its determination to deter domestic violence with every resource available to the judiciary.

*313COLEMAN, J., joins in this opinion.

For modification and affirmance — Justices HANDLER, POLLOCK, O’HERN and GARIBALDI-4.

For concurrence in part, dissent in part — Justices STEIN and COLEMAN — 2.