Scholz v. Scholz
| Decision Date | 02 December 1980 |
| Citation | 427 A.2d 619,177 N.J.Super. 647 |
| Parties | Susan J. SCHOLZ, Plaintiff, v. Bruce W. SCHOLZ, Defendant. |
| Court | New Jersey Superior Court |
Steven J. Stillman, Hackensack, for plaintiff (Lucianna, Bierman & Stillman, Hackensack, attorneys).
Jay Atkins, Oradell, for defendant (Draesel, Sunshine & Atkins, Oradell, attorneys).
MINUSKIN, J. J. D. R. C. (temporarily assigned).
This matter was heard on a motion by plaintiff wife to amend her complaint for divorce on the ground of extreme cruelty by adding causes of action for slander, alienation of the children's affections and assault and battery.
The amended complaint for slander alleges that "the defendant made ... false and slanderous statements to the children of the marriage concerning the plaintiff, her reputation and concerning her affections for her children as well as many other slanderous statements ... knowing said statements were false."
Claiming alienation of the children's affections, the amendment states that defendant "has attempted to and has alienated the affections of plaintiff's children for her, has deprived her of their company and respect and has harassed, threatened, abused and embarrassed the plaintiff by deliberately making abusive, threatening, humiliating and embarrassing statements to the children and the plaintiff."
The last-sought amendment for assault and battery alleges that "on or about September 25, 1980 ... the Defendant committed assault and battery upon the person of the Plaintiff without just cause, provocation or other justification," causing "great pain and bodily injuries" and "emotional distress and shock."
Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979), and Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978), are cited as authority to permit the amendments. Tevis is clearly applicable to the allegation of assault and battery alleged and the court will grant plaintiff's motion.
Although Tevis recognized the abrogation of the doctrine of interspousal immunity, it made mention of exceptions to which the immunity may still apply.
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 on a case-by-case approach.
The existence of common domestic negligence between spouses was accepted by leading scholars. See McCurdy, "Torts Between Persons in Domestic Relation," 43 Harv.L.Rev....
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