Brennan v. Orban

• Decision Date: 16 July 1996
• Citation: 145 N.J. 282,678 A.2d 667
• Parties: Mary BRENNAN, Plaintiff-Respondent, v. Joseph S. ORBAN, Jr., Defendant-Appellant. Mary Kathryn BRENNAN, Plaintiff-Respondent, v. Joseph S. ORBAN, Jr., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 282

145 N.J. 282

678 A.2d 667

Mary BRENNAN, Plaintiff-Respondent, v. Joseph S. ORBAN, Jr., Defendant-Appellant.

Mary Kathryn BRENNAN, Plaintiff-Respondent, v. Joseph S. ORBAN, Jr., Defendant-Appellant.

Supreme Court of New Jersey.

Argued Feb. 14, 1996.

Decided July 16, 1996.

Steven K. Warner, Summit, for appellant (Satterlee, Stephens, Burke & Burke and Charles H. Brandt, Westfield, attorneys; Thomas V. Manahan, of counsel).

Robert J. Durst, II and Beth G. Baldinger, Lawrenceville, for respondent (Stark & Stark, attorneys; Mr. Durst, Ms. Baldinger, and Sudha T. Kantor, on the briefs).

The opinion of the Court was delivered by

O'HERN, J.

The question in this appeal is whether a marital tort that is joined with other claims in dissolution of marriage should be tried by judge or jury. We hold that when vindication of the public policy against domestic violence outweighs in its significance to the family the other matters awaiting disposition, the tort claim should, at the request of a victim, be tried by a civil jury.

I

The issue arises in the context of a marriage in which the dominant matter in controversy appears to be the marital tort. This marriage of two professionals was of relatively short duration. Each had been married previously. Defendant Joseph Orban, Jr., is an associate general counsel for a major corporation. Plaintiff Mary Brennan was an attorney with the same company until 1993, and now serves as the executive director of a hospital trade association. No children were born of their marriage. Although the record before us does not disclose the details, we surmise that both professionals have separate income-producing capacities and that the issues of equitable distribution should not present the difficulties of cases such as Lynn v. Lynn, 91 N.J. 510, 453 A.2d 539 (1982) or Kothari v. Kothari, 255 N.J.Super. 500, 605 A.2d 750 (App.Div.1992).

The parties were married on January 23, 1991. They later purchased a home in Red Bank, New Jersey, where they resided until their separation in September 1994. That separation was triggered on September 26, 1994, when plaintiff Brennan obtained a Domestic Violence Temporary Restraining Order against defendant. The Order prohibited defendant from having any contact with plaintiff and granted plaintiff exclusive possession of the marital home, thereby marking the end of the parties' cohabitation. On October 4, 1994, plaintiff filed a complaint for divorce in the Chancery Division, Family Part, of Monmouth County, seeking relief on grounds of extreme cruelty.

Two weeks later, on October 17, 1994, plaintiff instituted her marital tort action, with a jury demand, in the Law Division, Monmouth County. Plaintiff sought recovery for injuries resulting from defendant's mental and physical abuse. Her principal claim arose out of a February 26, 1994, incident in which she alleges that her husband struck her in the head following an argument. Apparently, defendant took plaintiff to the hospital. Plaintiff asserts and the hospital records disclose that doctors treated her for a "severe deep irregular laceration" to her forehead.

On April 28, 1995, defendant moved to consolidate the matrimonial and personal injury actions. Plaintiff filed a cross-motion to confirm her right to a jury trial on her personal injury claims. The Family Part heard those motions together on June 16, 1995. At the conclusion of oral argument, the Family Part granted defendant's motion to consolidate the two actions and denied plaintiff's motion to have her tort claim heard by a jury.

The court held that Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979), requires marital tort claims to be joined with a pending action for divorce. Once the actions are consolidated in the Chancery Division, the court reasoned, the doctrine of ancillary jurisdiction permits a court of equity to grant full legal relief on a party's action for damages. Such relief can be provided without any right to a jury trial arising. The court acknowledged that a divergence of case law existed on the application of the ancillary jurisdiction doctrine to the context of marital torts. Davis v. Davis, 182 N.J.Super. 397, 442 A.2d 208 (Ch.Div.1981), held that a tort claim is ancillary to a divorce action, and thus denied plaintiff's request for a jury trial. In contrast, Tweedley v. Tweedley, 277 N.J.Super. 246, 649 A.2d 630 (Ch.Div.1994), held that a wife's tort claim was not ancillary to her husband's action for divorce, and thus a jury trial should be provided. Noting that those cases were not binding on a court of equal jurisdiction, the Family Part concluded that plaintiff was not entitled to a jury trial because her personal injury claim was ancillary to her divorce action, the "primary dispute between the parties."

The Appellate Division granted plaintiff's motion for leave to appeal from that portion of the Family Part's order that denied plaintiff her right to a jury trial. It reversed the lower court's denial of plaintiff's jury trial application and remanded the matter

[t]o permit plaintiff to introduce proof of her physical and mental health and for the court to determine if the injury suffered is serious and significant resulting in permanent physical or psychological damage or alternatively that the medical proofs to be presented at trial are complex, in which case, plaintiff is entitled to a jury trial for this Tevis claim. Otherwise, plaintiff's tort claim shall be determined ancillary to the divorce proceeding and be heard without a jury.

The panel's decision adopted the test that was later established in Giovine v. Giovine, 284 N.J.Super. 3, 663 A.2d 109 (App.Div.1995).

We granted defendant's motion for leave to appeal, 142 N.J. 512, 665 A.2d 1105 (1995), and permitted the parties to file supplemental briefs.

II

The entire controversy doctrine requires that all claims between parties "arising out of or relating to the same transactional circumstances ... be joined in a single action." Brown v. Brown, 208 N.J.Super. 372, 377-78, 506 A.2d 29 (App.Div.1986). In Mystic Isle Development Corporation v. Perskie & Nehmad, 142 N.J. 310, 323, 662 A.2d 523 (1995), this Court explained that "it is the factual circumstances giving rise to the controversy itself, rather than a commonality of claims, issues or parties, that triggers the requirement of joinder to create a cohesive and complete litigation." New Jersey courts have held that this policy of mandatory joinder applies to family actions. Pressler, Current N.J. Court Rules, comment 5 on R. 5:1-2 (1996). In the leading case of Tevis v. Tevis, supra, 79 N.J. 422, 400 A.2d 1189, this Court determined that "marital torts, as a class, are to be considered as related to, not 'independent' of, divorce suits." Bruce D. Greenberg & Gary K. Wolinetz, The Right to a Civil Jury Trial in New Jersey, 47 Rutgers L.Rev. 1461, 1481 (1995) [hereinafter Greenberg & Wolinetz]. In Tevis, the parties divorced in May 1975 and the former wife instituted a tort action against her ex-husband six weeks later to recover damages for physical abuse that occurred in May 1973. 79 N.J. at 425, 400 A.2d 1189. Reasoning that the circumstances of the marital tort and its potential for money damages were relevant to the Chancery Division's dissolution proceeding, the Court held that the plaintiff's

claim should not have been held in abeyance; it should, under the "single controversy" doctrine, have been presented in conjunction with [the divorce] action as part of the overall dispute between the parties in order to lay at rest all their legal differences in one proceeding and avoid the prolongation and fractionalization of litigation.

[Tevis, supra, 79 N.J. at 434, 400 A.2d 1189.]

Even the conflicting cases of Davis, supra, 182 N.J.Super. at 398, 442 A.2d 208, and Tweedley, supra, 277 N.J.Super. at 248-49, 649 A.2d 630, both rely on Tevis for the proposition that a spouse must bring a tort action arising out of the marital relationship as part of the divorce complaint being heard in the Chancery Division.

Despite its policy of joinder of claims, the boundaries of the entire controversy doctrine are not limitless. Mystic Isle, supra, 142 N.J. at 323, 662 A.2d 523. It remains an equitable doctrine whose application is left to judicial discretion based on the factual circumstances of individual cases. Ibid. Brown, supra, 208 N.J.Super. 372, 506 A.2d 29, provides an example of a case in which an evaluation of the causes of action led the court to conclude that preclusion of the plaintiff's tort claim was not warranted. In that case, the plaintiff filed her divorce complaint in March 1981. In September 1981, while the divorce action was pending, the plaintiff was physically assaulted by her husband. Because the plaintiff's divorce attorney learned of the assault one month before the divorce action was scheduled for trial, he declined to incorporate the tort claim into her pending dissolution action. Consequently, the plaintiff waited and filed suit when her divorce became final. Id. at 376, 506 A.2d 29. Although the Appellate Division concluded that the entire controversy doctrine ordinarily requires joinder of related claims arising while the divorce action is pending, the court made an exception because equitable considerations rendered application of the doctrine unfair. Id. at 374, 506 A.2d 29.

No comparable basis for relaxing the application of the entire controversy doctrine exists in this case. Unlike that of the plaintiff in Brown, the assault underlying Brennan's personal injury claim occurred before she filed for divorce. The tort arose out of her marital relationship. In addition, the tort complaint alleges many of the same factual circumstances as the divorce complaint that plaintiff had filed two weeks earlier. Thus, joinder under the entire controversy doctrine is appropriate in this case.

III

That the several claims between the parties should be tried in the same...