Walther v. Walther
| Decision Date | 01 November 1985 |
| Docket Number | No. 19018,19018 |
| Citation | 709 P.2d 387 |
| Parties | Howard Hitchings WALTHER, Plaintiff and Appellant, v. Celeste J. WALTHER, Defendant and Respondent. |
| Court | Utah Supreme Court |
Richard B. McKeown, Salt Lake City, for plaintiff and appellant.
Frank M. Wells, Ogden, for defendant and respondent.
This is an appeal by Howard Walther from that part of a divorce decree which awarded his wife, Celeste Walther, $5,000 for pain, suffering, and future medical expenses, and $2,000 towards her costs and attorney fees. We reverse the award for pain, suffering, and future medical expenses and affirm the award of costs and attorney fees.
The parties were married in Utah on December 5, 1978. In August of 1980, the husband filed for divorce, alleging in his complaint that his wife treated him cruelly and caused him great mental distress. The wife initially answered and counterclaimed in October. She subsequently filed an amended answer and counterclaim, adding an additional cause of action for physical abuse by her husband on March 30, 1980, and seeking damages for injuries she sustained as a result of that incident. After a bench trial, the court awarded the wife the lump sum of $5,000 to compensate her for future medical expenses necessary to relieve pain and suffering caused by the March 30, 1980, incident.
On appeal, the husband challenges this award as constituting a damage award for tortious conduct that should not have been considered in a divorce action. Relying upon Anderson v. Anderson, 104 Utah 104, 138 P.2d 252 (1943), the wife asserts that the court properly considered this counterclaim. That case is inapposite. There the court suggested that in certain cases, alimony might be awarded to compensate a spouse "for injuries or abuse to her person or impairment of health brought on by conduct or cruelty of the husband during coverture." Id., 104 Utah at 109, 138 P.2d at 254. This language means nothing more than that injuries and attendant medical expenses may be considered in determining an appropriate alimony award. The case did not address the propriety of awarding damages on a separate tort claim in a divorce action. In the instant case, however, the wife's claim was clearly framed in tort. In the second cause of action in the counterclaim, the wife stated a claim for battery and alleged that she had suffered general damages at the hand of her husband in the amount of $75,000.
In Lord v. Shaw, Utah, 665 P.2d 1288 (1983), we observed:
[T]he trial court held that the plaintiff was barred by res judicata from suing her ex-husband for torts which occurred during the marriage, because his liability for any tort should have been litigated in the divorce action. We do not comment on this ruling other than to observe that actionable torts between married persons should not be litigated in a divorce proceeding. We believe that divorce actions will become unduly complicated in their trial and disposition if torts can be or must be litigated in the same action. A divorce action is highly equitable in nature, whereas the trial of a tort claim is at law and may well involve, as in this case, a request for trial by jury. The administration of justice will be better served by keeping the two proceedings separate.
Id.,...
To continue reading
Request your trial
-
Brennan v. Orban
...v. Simmons, 773 P.2d 602, 604-05 (Col.Ct.App.1988); Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151, 153 (1988); Walther v. Walther, 709 P.2d 387, 388 (Utah 1985). I agree with the Court's apparent conclusion that joinder of the marital tort claim with the divorce proceeding ordinarily sho......
-
Twyman v. Twyman
...this question, several have held that the tort case and the divorce case must be litigated separately. See e.g. Walther v. Walther, 709 P.2d 387, 388 (Utah 1985); Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971); Simmons v. Simmons, 773 P.2d 602, 605 (Colo.Ct.App.1988). Other state......
-
Christians v. Christians, 21543.
...Simmons v. Simmons, 773 P.2d 602 (Colo.Ct.App.1988); Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971); Walther v. Walther, 709 P.2d 387 (Utah 1985). An Ohio appeals court, in Koepke v. Koepke, ruled that the concern for judicial economy "does not outweigh the fact that a domestic r......
-
Richardson v. Richardson
...preclusion does not apply. See, e.g. , Nelson v. Jones , 787 P.2d 1031, 1034-35 ; Noble , 761 P.2d at 1374 (citing Walther v. Walther , 709 P.2d 387, 388 (Utah 1985) ). The minority position examines whether the "action for divorce and [the] tort claim ... evolve from a common factual nucle......
-
Marital Torts
...supra, note 11 at 1196. 13. 485 P.2d 1157 (Ariz. 1971). 14. Id. at 1157. 15. Colorado does not have an interspousal immunity doctrine. 16. 709 P.2d 387 (Utah 17. Lord v. Shaw, 665 P.2d 1288 (Utah 1983), cited with approval in Walther, supra, note 16 at 18. Simmons, supra, note 8 at 19. CRS ......