Tweedley v. Tweedley

• Decision Date: 18 January 1994
• Citation: 277 N.J.Super. 246,649 A.2d 630
• Parties: George J. TWEEDLEY, Jr., Plaintiff, v. Sharon L. TWEEDLEY, Defendant.
• Court: New Jersey Superior Court

Page 246

277 N.J.Super. 246

649 A.2d 630

George J. TWEEDLEY, Jr., Plaintiff, v. Sharon L. TWEEDLEY, Defendant.

Superior Court of New Jersey, Chancery Division,

Morris County.

Decided Jan. 18, 1994.

Mark Gruber, Hopatcong, for plaintiff (Gruber & Colabella, attorneys).

Vincent P. Celli, Morristown, for defendant.

LANGLOIS, J.S.C.

This matter is before the court on plaintiff's motion requesting, among other things, that defendant's demand for a jury trial on her counterclaim alleging both negligent and intentional tortious acts be stricken. Oral argument was heard on December 3, 1993, and other issues were resolved. However, the court reserved decision on the jury trial demand. Having now reviewed the case law both in New Jersey and in other jurisdictions, the court denies the motion to strike defendant's jury demand. The counterclaim shall be tried before a jury.

The Tweedleys were married on January 4, 1985. Their child, George, III, was born in February 1987, and there are two children from prior marriages. The Tweedleys separated on July 20, 1991; Mr. Tweedley filed the divorce complaint on December 6, 1991, alleging extreme cruelty. Defendant's answer and counterclaim were not filed until December 1992. ¹

Mrs. Tweedley's counterclaim is in three counts. The first count seeks a divorce on grounds of extreme cruelty and lists 16 pages of acts occurring during the marriage (Schedule A). Among At oral argument, defendant's counsel stated that the defendant would withdraw her extreme cruelty claim and seek a divorce solely on the basis of an 18-month separation. That procedural tactic, therefore, leaves the tort claims remaining for resolution without any underlying issue of plaintiff's marital fault before the court.

                those acts are instances of sexual assault and abuse, physical assault and abuse, adultery, verbal abuse to herself and the children, mental cruelty and neglect.  The second count alleges that the acts listed in the Schedule "were done intentionally, willfully and wantonly and with the express and exclusive purpose of causing grievous and severe personal injury to defendant and to cause the defendant to be in fear of said personal injury."   The third count alleges that the physical injury and threats of physical injury were performed with the "purpose of causing severe emotional and mental distress."   The relief sought in those counts is for compensatory and punitive damages, restraints, and counsel fees
                

LEGAL DISCUSSION

New Jersey has definitively abolished spousal immunity from tortious conduct alleged to have been committed by "conventional negligence," or "intentional acts," or "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), citing Merenoff v. Merenoff, 76 N.J. 535, 557-59, 388 A.2d 951 (1978).

Tevis further established that a spouse must bring an action for damages arising out of a personal injury caused by the other spouse during the marriage as a part of the divorce action itself.

Since the circumstances of the marital tort and its potential for money damages were relevant in the matrimonial proceedings, the claim [cannot] be held in See also Brown v. Brown, 208 N.J.Super. 372, 378-79, 506 A.2d 29 (App.Div.1986) (the purpose is to 'conclusively dispose of their respective bundles of rights and liabilities which derive from a single transaction or related serious of transactions'....) Cf. J.Z.M. v. S.M.M., 226 N.J.Super. 642, 545 A.2d 249 (Law Div.1988). Therefore, defendant having to assert her claims in one proceeding, has done so by the filing of the counterclaim, and neither party disputes that this court now has jurisdiction over all claims between the parties. What is at issue now is the defendant's demand for a jury trial on the second and third counts of the counterclaim.

abeyance; it should, under the 'single controversy' doctrine, have been presented in conjunction with that 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. [Id., 79 N.J. at 434, 400 A.2d 1189.]

The right to a jury trial is guaranteed by Article I, Paragraph 9 of the New Jersey Constitution, and is granted on the basis of the nature of the issue to be resolved, as determined by the law and procedures of the jurisdiction, and not by the particular division of the Superior Court having jurisdiction. O'Neill v. Vreeland, 6 N.J. 158, 77 A.2d 899 (1951); Boardwalk Prop. v. BPHC, 253 N.J.Super. 515, 529, 602 A.2d 733 (App.Div.1991); Suchit v. Baxt, 176 N.J.Super. 407, 415, 423 A.2d 670 (Law Div.1980).

The Supreme Court in O'Neill specifically held that the procedures for determining the proper forum of a case in either the Law or Chancery Division do not deny to any party the right to a trial by jury, nor does it expose a party unnecessarily to the hazards of a jury trial.

Whether the action be brought in the Law Division or in the Chancery Division, all issues of fact triable as of right by a jury shall be decided by a jury, unless the right to jury trial be waived, expressly or impliedly, Rules 3:38-1 and 3:49-1. [Now R.4:35-1] In addition, any issues not triable as of right by a jury may be tried by an advisory jury, or, with the consent of the parties, by a jury whose verdict will be the same as if the trial by jury had been a matter of right, Rule 3:39-1. [now R.4:35-2] All issues of fact not triable of right by a jury, except as provided by Rule 3:39-1, are to be determined by the court without a jury and when certain . . . . .

issues are to be decided by the court and others by a jury, the court may determine the sequence in which such issues shall be tried, Rule 3:39-2. [Now R.4:35-3]

Whenever a case comes on for trial in either of the trial divisions of the Superior Court it shall be disposed of on its merits as the nature of the case may require.

[O'Neill, supra, 6 N.J. at 167-68, 169, 77 A.2d 899.]

As to the "nature of the case" involving an allegation of negligence and/or intentional tort committed by one spouse against the other, it has been held in Davis v. Davis, 182 N.J.Super. 397, 442 A.2d 208 (Ch.Div.1982), that a jury trial is not required for a marital tort claim. The trial court in Davis relied on a report of the Supreme Court Committee on Matrimonial Litigation, that "as a matter of judicial administration, no jury trial for a marital tort should be provided in an action for divorce...."

After an extensive review of cases, the committee focused on the New Jersey rule that the inherent jurisdictional power of an equity court permits it to dispose of legal issues which are incidental and ancillary to the main dispute without the necessity of providing a jury trial. See Mantell v. International Plastic Harmonica Corp., 141 N.J.Eq. 379 (E & A 1947); Steiner v. Stein, 2 N.J. 367 (1949); Fleisher v. James Drug Stores, 1 N.J. 138 (1948); Beekwilder v. Beekwilder, 29 N.J.Super. 351, 358 (App.Div.1953). Since the marital tort damage claim is so closely related to the subject matter of equitable distribution, it passes the test of "incidental and ancillary." Thus, it appears not to require a jury trial.

[Id. at 399, 442 A.2d 208.]

The Davis court acknowledged that the committee report did not carry the force of law and therefore wrote for the purpose of providing "judicial precedent" for the proposition that a jury trial is not required. Ibid.

That decision has been taken as precedent for the conclusion that a jury trial is not allowed for marital tort claims. Cf. Brown v. Brown, supra, 208 N.J.Super. at 383, 506 A.2d 29 ("Indeed, there is some uncertainty as to how a marital tort claim joined with a traditional divorce action should be tried;" party may file tort claim arising during pendency of divorce litigation); Chiacchio v. Chiacchio, 198 N.J.Super. 1, 6, 486 A.2d 335 (App.Div.1984) (insurer's right to jury trial on coverage issue cannot be denied despite pendency of the matrimonial tort action; improper joinder In these areas courts and juries cannot be expected to grasp sensibly and consistently the acceptable norm of married living or chart the parameters of reasonable marital behavior as a predicate for affixing liability in tort. Immer v. Risko, supra, 56 N.J. at 495 [267 A.2d 481 (1970) ]; cf. Small v. Rockfeld, supra, 66 N.J. at 244 [330 A.2d 335 (1974) ]; Note, supra, 79 Harv.L.Rev. at 1656.

of claims in Chancery Division); Apollo v. Kim Anh Pham, 192 N.J.Super. 427, 431, 470 A.2d 934 (Ch.Div.1983), aff'd, 224 N.J.Super. 89, 539 A.2d 1222 (App.Div.1987) (claim for support in palimony action is not triable by a jury); Pressler, Current N.J. Court Rules, comments on R. 4:35-1. However, these decisions have ignored that the Merenoff Court itself recognized jury participation. In discussing the abolition of spousal immunity, the Court sought to define and delineate marital conduct which cannot and should not be the basis for tort claims. Consensual conduct or matters of privacy within the marriage are outside the bounds of a definable duty of care.

[T]he fear that trivial, exaggerated or unrealistic claims for personal injury will be brought by married persons is counter-poised by the realization that such claims for the most part will not be cognizable by courts or rewarded by juries.

[Merenoff, supra, 76 N.J. at 555-56, 388 A.2d 951 (emphasis added).]

With due respect to the courts of equal jurisdiction, this court holds that there is the right to a trial by jury of the marital tort claims asserted in this case. A review of decisions in other jurisdictions and the facts of this case support...