Giovine v. Giovine

Decision Date11 August 1995
Citation663 A.2d 109,284 N.J.Super. 3
PartiesChristina GIOVINE, Plaintiff-Appellant, v. Peter J. GIOVINE, Defendant-Respondent.
CourtNew Jersey Superior Court — Appellate Division

James P. Yudes, Springfield, for appellant (James P. Yudes, P.C., attorneys; Charles F. Vuotto, Jr., Springfield, of counsel; Elizabeth E. Bedell, Long Branch, of counsel and on the brief).

Lee M. Hymerling, Haddonfield, for respondent (Archer & Greiner, attorneys; Mr. Hymerling, of counsel and on the brief).


The opinion of the court was delivered by


On July 1, 1994, plaintiff Christina Giovine filed an eleven count complaint against defendant Peter J. Giovine denominated: "Complaint for divorce, domestic torts, equitable claims and jury trial demand." Plaintiff's complaint alleged habitual drunkenness, N.J.S.A. 2A:34-2(e) (count one) and extreme cruelty, N.J.S.A. 2A:34-2(c) (count two) as alternative grounds for the dissolution of the marriage. In counts three through six, plaintiff asserted claims for compensatory and punitive damages based upon an assault and battery which allegedly occurred in March 1972 (count three); intentional infliction of emotional injury/distress commencing in March 1972 (count four); "continuous wrong" between March 1972 and May 1993, resulting in "severe emotional and physical damage" (count five); and negligence (count six).

Counts seven through eleven of plaintiff's complaint alleged equitable claims respecting real property acquired by defendant in February 1969 prior to the marriage and titled solely in defendant's name, predicated upon the concepts of transmutation (count seven); constructive/resulting trust (count eight); implied contract (count nine); unjust enrichment (count ten); and quasi-contract (count eleven).

Plaintiff demanded a jury trial on counts three through eleven.


Plaintiff and defendant were married on May 1, 1971. Three children were born of this marriage on August 17, 1975, July 5, 1979, and July 7, 1983.

On approximately December 31, 1978, defendant separated from plaintiff. In May 1980, he filed a complaint seeking to establish visitation rights with the two children of the marriage. On August 1, 1980, defendant filed a complaint for divorce, asserting a cause of action for dissolution of marriage predicated upon eighteen consecutive months of separation. Plaintiff filed an answer and counterclaim for divorce, alleging habitual drunkenness and extreme cruelty as alternative grounds for divorce. Additionally, that counterclaim contained three counts for damages predicated upon the following torts: a specific act of assault and battery in March 1972 and a final act of assault and battery on December 28, 1978; infliction of emotional distress based upon the same acts of assault and battery; and "a continuous and unbroken wrong commencing on or about March 1972 and continuing down until December 28, 1978."

Defendant filed an answer to the counterclaim and amended his complaint for divorce, adding a cause of action for divorce based upon acts of extreme cruelty.

In July 1982, while their matrimonial action was pending, the parties reconciled and resumed living together. On July 26, 1982, both parties directed their respective attorneys to discontinue the litigation. The proceedings were dismissed by a stipulation of dismissal with prejudice dated October 25, 1982. The couple separated again in September 1993. As noted, plaintiff filed her present complaint on July 1, 1994. Defendant filed an answer and counterclaim asserting a cause of action for divorce based upon extreme cruelty.


On August 8, 1994, defendant filed a motion to strike certain causes of action contained within plaintiff's complaint and to strike plaintiff's demand for a jury trial on counts three through eleven. On September 20, 1994, the motion judge granted defendant's motion, striking all tortious claims occurring prior to June 30, 1992 based upon the applicable statute of limitations, N.J.S.A. 2A:14-2, and limiting plaintiff's proofs on her claims for emotional distress or negligence to those acts alleged to have occurred after June 30, 1992. The motion judge also determined that plaintiff did not have a constitutional right to a jury trial. We granted plaintiff's motion seeking leave to appeal those rulings, which were memorialized in an order dated November 14, 1994. We now affirm in part and reverse in part.


Interspousal tort immunity no longer exists to bar the suit of one spouse against another for injuries sustained by one spouse due to the tortious conduct of the other. Merenoff v. Merenoff, 76 N.J. 535, 557, 388 A.2d 951 (1978).

[T]he abolition of the doctrine pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of excessive behavior such as gross negligence, recklessness, wantonness, and the like. The only kind of marital conduct excepted from the abolition was that involving marital or nuptial privileges, consensual acts and simple, common domestic negligence, to be defined and developed on a case-by-case approach.

[Tevis v. Tevis, 79 N.J. 422, 426-27, 400 A.2d 1189 (1979) (citation omitted).]

If the circumstances surrounding a domestic tort and a claim for monetary damages are relevant to a divorce proceeding, the domestic tort must be joined with the divorce proceeding under the "single controversy doctrine" in order to avoid protracted, repetitious and fractionalized litigation. Id. at 434, 400 A.2d 1189.

On appeal, plaintiff contends that the motion judge erred in refusing to follow the decision in Cusseaux v. Pickett, 279 N.J.Super. 335, 652 A.2d 789 (Law Div.1994), which concluded that "battered-woman's syndrome is the result of a continuing pattern of abuse and violent behavior that causes continuing damage." Id. at 345, 652 A.2d 789. As such, "it must be treated in the same way as a continuing tort." Ibid. Battered woman's syndrome would therefore be an exception to N.J.S.A. 2A:14-2, that "[e]very action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have occurred." Ibid. The decision in Cusseaux substantially relied upon State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984).

In Kelly, the Supreme Court, relying in part on the research of Lenore E. Walker, The Battered Woman (1979), noted that battered woman's syndrome is a recognized medical condition. By definition, a battered woman is one who is repeatedly physically or emotionally abused by a man in an attempt to force her to do his bidding without regard for her rights. State v. Kelly, supra, 97 N.J. at 193, 478 A.2d 364. According to experts, in order to be a battered woman, the woman and her abuser must go through the "battering cycle" at least twice. Ibid.

The battering cycle consists of three stages. Ibid. Stage one, the "tension-building stage," involves some minor physical and verbal abuse while the woman tries to prevent an escalation of the abuse by assuaging the abuser with her passivity. Ibid. (citation omitted). Stage two, the "acute battering incident," is characterized by more severe battering due to either a triggering event in the abuser's life or the woman's inability to control the anger and fear she experienced during stage one. Ibid. (citation omitted). During stage three, the abuser pleads for forgiveness and promises that he will not abuse again. Id. at 193-94, 478 A.2d 364 (citation omitted). This period of relative calm and normalcy eventually ends when the cycle begins anew. Id. at 194, 478 A.2d 364 (citation omitted). 1

"The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers." Ibid. The caring and attentive behavior of the abuser during stage three fuels the victim's hope that her partner has reformed and keeps her tied to the relationship. Ibid. In addition, some women who grew up in violent families do not leave abusive relationships because they perceive their situations as normal. Ibid. Others cannot face the reality of their situations. Ibid. Some victims "become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation." Ibid. Victims are often afraid to seek help out of shame, fear that no one will believe them, or fear of retaliation by their abusers. Id. at 195, 478 A.2d 364. "They literally become trapped by their own fear." Ibid.

In Kelly, the Supreme Court held that expert testimony on battered woman's syndrome was admissible to show that a woman on trial for murder who was repeatedly beaten during her marriage honestly believed that she was in imminent danger of death when she stabbed her husband, and therefore, she acted in self-defense. Id. at 187, 202-04, 478 A.2d 364.

In State v. Ellis, 280 N.J.Super. 533, 543, 656 A.2d 25 (App.Div.1995) (citing State v. Kelly, supra ), we concluded that evidence of battered woman's syndrome can be introduced in a criminal proceeding as evidence to explain why a victim of a kidnapping neither attempted to escape a kidnapper nor immediately reported the kidnapping. In Ellis, the victim was the defendant's girlfriend.

Cusseaux v. Pickett, supra, recognized for the first time in this state, that a woman who suffers from the medically diagnosable condition of battered woman's syndrome is entitled to seek compensation for the physical and emotional injuries attributable to the abusive conduct during the course of the relationship. The trial judge found that:

Because the battered-woman's syndrome is the result of a continuing pattern of abuse and violent behavior that...

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