Plankel v. Plankel

• Decision Date: 21 December 1992
• Docket Number: Nos. 14662-2-I,15076-0-II,s. 14662-2-I
• Citation: 841 P.2d 1309,68 Wn.App. 89
• Parties: Christine F. PLANKEL, Appellant, v. Gary G. PLANKEL, Respondent.
• Court: Washington Court of Appeals

Page 89

68 Wn.App. 89

841 P.2d 1309

Christine F. PLANKEL, Appellant, v. Gary G. PLANKEL, Respondent.

Nos. 14662-2-II, 15076-0-II.

Court of Appeals of Washington,

Division 2.

Dec. 21, 1992.

Stephen T. Carmick, Chehalis, for appellant.

Frederick D. Gentry, Bean & Gentry & Rathbone, Olympia, for respondent.

SEINFELD, Judge.

Christine Plankel appeals from a summary judgment dismissing with prejudice her tort claim against her former husband, Gary Plankel. ¹ The trial court held that the dissolution of the Plankel marriage, along with the attendant division of property rights and liabilities, also terminated Christine's right to recover damages from her former spouse for tortious conduct that occurred during the marriage. We reverse. ²

Christine and Gary Plankel were married on January 30, 1984. On December 23, 1986, Christine was injured in an automobile accident; she was a passenger in a car driven by Gary. This accident is the basis for Christine's negligence action against Gary. Her complaint alleges that she suffered serious personal injuries when Gary negligently drove the car across the centerline and collided with another car.

The Plankels separated on April 25, 1987; Gary petitioned for dissolution on April 29, 1987. The trial court entered a decree of dissolution on February 18, 1988 based on an agreed distribution of assets and debts; the dissolution decree does not mention the car accident, injuries received in the accident, or distribution of the tort claim.

Christine filed her complaint on December 22, 1989, after entry of the decree of dissolution. Gary moved for summary judgment on December 6, 1990. On January 4, 1991, the trial court granted summary judgment to Gary, dismissing Christine's claim with prejudice.

On appeal from summary judgment, the appellate court performs de novo review, making the same inquiry as the trial court. Simpson Tacoma Kraft Co. v. Department of Ecology, 119 Wash.2d 640, 646, 835 P.2d 1030 (1992). We uphold the grant of summary judgment if we determine, based on the documentation provided to the trial court, "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c).

In this case, the particular facts alleged in the complaint are not at issue. Rather, the trial court granted summary judgment on the theory that David was entitled to a judgment as a matter of law. The trial court, relying on a 1911 Supreme Court opinion, in Schultz v. Christopher, 65 Wash. 496, 118 P. 629 (1911), held that "there is a presumption that all of rights [of the parties] were determined in the decree." In other words, the trial court determined that Christine would not be permitted to relitigate a tort claim that should have been considered as part of the dissolution proceedings.

In Schultz, Genevieve Schultz sued her former husband, Oscar Christopher, for wilfully infecting her with a malignant venereal disease during their marriage. 65 Wash. at 497, 118 P. 629. She alleged that the transferred disease caused her mental anguish and physical pain and suffering and rendered her incapable of performing any physical labor. 65 Wash. at 497, 118 P. 629. Christopher demurred to this complaint and the trial court dismissed the action. 65 Wash. at 497, 118 P. 629.

The Supreme Court, on review of the dismissal of the complaint, stated "that the only question involved is whether a wife can sue a husband for a tort committed upon her person." The court then held that common law interspousal immunity barred the cause of action. Schultz, 65 Wash. at 497-500, 118 P. 629. This holding of Schultz was overruled by Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972). Freehe rejected the common law and policy rationales supporting interspousal immunity, and allowed spouses to sue each other for torts committed during marriage. 81 Wash.2d at 192, 500 P.2d 771.

Although the Schultz court explained that interspousal immunity was the "only question involved," it nonetheless went on to discuss "another conclusive reason why this demurrer should have been sustained." 65 Wash. at 500, 118 P. 629. Noting that a tort committed during marriage caused the injuries and that the parties had divorced after commission of the tort, the court held that all the rights of the parties were presumed to have been determined in the divorce proceeding. 65 Wash. at 500-01, 118 P. 629. Citing an 1891 case, the Schultz court explained that a divorce court making an "equitable division" investigates all the circumstances, including "the degree of blame to be attached to the respective parties" and the physical condition of the parties. Schultz, 65 Wash. at 501, 118 P. 629 (citing Webster v. Webster, 2 Wash. 417, 26 P. 864 (1891)). Schultz concludes:

... the condition of the appellant, flowing from the alleged tort, was a matter to be taken into consideration, and the presumption is that it was taken into consideration by the court in the distribution of the property made in the decree of divorce. It would be against public policy to permit multifarious actions concerning the property rights of the husband and wife after divorce which were in existence during coverture.

65 Wash. at 501, 118 P. 629. (Emphasis original.)

Initially, we observe that the second rationale of Schultz was not necessary to the decision and is thus non-binding dicta. Since Mrs. Schultz did not have a cause of action for an interspousal tort, it is pointless to state that the non-existent action is barred by an intervening divorce. Furthermore, it is arguable that Freehe also overruled this rationale, sub silentio. The Schultz rationale is based on the notion that the divorce action provided an adequate remedy for the wife's first claim. Freehe, expressly rejected this notion. 81 Wash.2d at 187-88, 192, 500 P.2d 771. The second Schultz rationale appears inconsistent with the underlying premise of Freehe. Nonetheless, we will address the Schultz dicta on its merits since (1) it was the basis for the trial court's grant of summary judgment, and (2) it is the only possible remaining rationale for the continued viability of Schultz.

Although the Schultz court does not use the term "res judicata," that doctrine appears to be the basis for its rationale that all of the rights of the parties presumably were determined in the divorce proceeding. Its concern that a matter already considered by one court not be relitigated in another proceeding is the same concern that underlies the doctrine of res judicata. Schoeman v. New York Life Ins. Co., 106 Wash.2d 855, 859, 726 P.2d 1 (1986). Res judicata protects the finality of judgments and operates when there is "concurrence of identity" between the current action and a former action in the following four respects: "(1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made." Bank of Wash. v. Hursey, 116 Wash.2d 522, 529, 806 P.2d 245 (1991).

In 1911, when Schultz was decided, it was necessary for the petitioner to prove fault in order to obtain a divorce. Rem. & Ball.Code § 982; Laws of 1891, ch. 26, § 1, p. 42. Today, we dissolve marriages rather than divorce couples, and proof of fault is neither required nor relevant. RCW 26.09.030, .080, In re Marriage of Little, 96 Wash.2d 183, 198-88, 192, 634 P.2d 498 (1981). Although the Plankel dissolution action and Christine's tort action share identity of parties, they involve dissimilar subject matters and causes of action. To prevail in her tort action, Christine would have to prove that David was at fault and that his fault was a proximate cause of her injuries. Christensen v. Swedish Hosp., 59 Wash.2d 545, 548, 368 P.2d 897 (1962); Jones v. Matson, 4 Wash.2d 659, 671, 104 P.2d 591 (1940). In the dissolution context, the trial court considers neither fault nor proximate cause. Further, in a dissolution proceeding, the trial judge is required to distribute the property and liabilities as shall appear "just and equitable." RCW 26.09.080. This involves totally different considerations than those required for adjudication of a tort action where awards must be based on proven damages rather than on equitable considerations. See Puget Sound Power & Light Co. v. Strong, 117 Wash.2d 400, 403, 816 P.2d 716 (1991). The subject matters and causes of action differ between the tort action and the dissolution action; thus, the tort action is not barred by res judicata.

By way of contrast, in the Schultz situation, the husband's responsibility for injuring his wife by transmitting a disease to her was a critical issue in the divorce proceedings as well as in the tort action. This degree of identity no longer exists under current no-fault dissolution laws.

Nonetheless, Gary argues that we should continue to follow the rule annunciated in Schultz eighty-one years ago, and points out the potential for undesirable consequences if we fail to do so. For example, he presents the scenario of "a pleasant divorce after an unpleasant marriage, but, lo! shortly thereafter followed the tort action which obviously had been part of the game plan." Nash v. Overholser, 114 Idaho 461, 757 P.2d 1180, 1185 (1988) (Bistline, J., concurring only in judgment). Gary suggests that we prevent the injured ex-spouse from surprising...