Coleman v. Coleman
Decision Date | 06 July 1990 |
Citation | 566 So.2d 482 |
Parties | Susan Frasa COLEMAN v. Stephen Lanier COLEMAN. 89-521. |
Court | Alabama Supreme Court |
Robert M. Echols, Jr., Birmingham, for appellant.
L. Drew Redden and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellee.
Susan Frasa Coleman appeals from a summary judgment in favor of her former husband, Stephen L. Coleman. Ms. Coleman alleged that Dr. Coleman had negligently or wantonly infected her with a venereal disease during the course of their marriage. We affirm.
Susan Frasa Coleman and Stephen L. Coleman were married in 1971. On October 17, 1985, Dr. Coleman filed a complaint for divorce in the Circuit Court of Jefferson County, Alabama. Ms. Coleman filed an answer and counterclaim seeking a divorce on the ground of adultery. Dr. Coleman filed an answer to the counterclaim, admitting the acts of adultery but setting forth the defense of condonation.
On the day the case was set for trial, March 20, 1986, the parties entered into a settlement agreement, which was later incorporated into the final divorce judgment. The settlement agreement provided for, among other things, support of the parties' two minor children and alimony for Ms. Coleman. The agreement also stated:
"SIXTEENTH: MUTUAL RELEASE: Each party, in consideration of this Agreement, expressly releases the other party from any and all claims and demands, other than under the provisions of this Agreement, for the settlement of property rights."
After the final judgment of divorce was entered, on September 2, 1986, Susan Coleman filed this tort action, seeking damages for the alleged negligent or wanton transmission of a venereal disease, condylomata acuminatum, to her by her former husband. Dr. Coleman in his answer pleaded the affirmative defenses of estoppel, res judicata, release, and failure to file a compulsory counterclaim in the divorce action.
Dr. Coleman then moved for summary judgment based on the affirmative defenses in his answer, and he supported the motion by affidavit testimony, deposition testimony, the pleadings, his testimony from the prior divorce action, and the divorce judgment. Dr. Coleman subsequently filed a supplemental brief and in support of his motion attached copies of two letters between the parties' lawyers in the prior divorce case.
In further support of his motion, Dr. Coleman also attached subpoenas for records from five of his physicians that his former wife had requested in the divorce action. In particular, Ms. Coleman subpoenaed for trial Richard Holmes, of the Jefferson County Health Department's sexually transmitted disease program, and the following records: "Copies of any and all records and reports submitted in connection with the recording of a test for sexually transmitted disease on an individual namely: Stephen Coleman."
Ms. Coleman submitted two affidavits in opposition to Dr. Coleman's summary judgment motion: her own affidavit and an unsigned affidavit from her physician. She stated that she had not had sexual relations with any person other than Dr. Coleman. Ms. Coleman's physician stated that she had contracted a sexually transmitted disease and was receiving treatment for it. In a supplemental affidavit she stated that she had never raised the issue of transmission of the disease in the divorce action, and that she was not awarded any damages, expenses, or funds for treatment of the disease.
The trial court granted Dr. Coleman's motion for summary judgment. The trial court's well-reasoned opinion stated, in part:
This Court has recently held that a cause of action for the tortious transmission of a sexually transmitted disease--genital herpes--exists under the law of Alabama. See Berner v. Caldwell, 543 So.2d 686 (Ala.1989). We also noted in Berner that while that case dealt with liability for the transmission of genital herpes, liability could also be imposed for the transmission of other sexually transmitted diseases. In Berner the parties were two single adults; but in this case we are faced with a situation where a wife alleges that her former husband infected her with a sexually transmitted disease during the course of their marriage.
The present state of the law in Alabama concerning the issue of whether a wife is barred from bringing a...
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