Are tort claims compulsory in a dissolution of marriage action?

In 1984, Beres Waite attacked and inflicted serious injuries on his wife, Joyce. He was later convicted of attempted murder and Joyce divorced him. In many cases of domestic violence this is the end of the story, but in this case the legal ramifications of this attack were only beginning. Joyce had a homeowner's insurance policy and sought to recover in tort for the injuries she suffered. The trial court dismissed the cause as being barred by the doctrine of interspousal immunity. On appeal the Florida Supreme Court held that "there no longer is a sufficient reason warranting a continued adherence to the doctrine of interspousal immunity." Waite v. Waite, 618 So. 2d 1360, 1361 (Fla. 1993). Justice McDonald who concurred in result only wrote to warn that he could foresee divorces with "multiple counts for damages being claimed by each spouse against the other for events that occurred during their marriage. The fault concept which was discarded in no fault dissolution proceedings will have a rebirth in a different form."[1]

However, the legislature did not remove all fault issues in the changeover from the fault-based divorce statute to the no fault-based dissolution of marriage statute, F.S. [sections] 61.051(1) (1995). Fault still is relevant to the issues of alimony, equitable distribution, and child custody. Florida's alimony statute states that "[t]the court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded." F.S. [sections] 61.08(l) (1995) (emphasis added). Under Florida's equitable distribution statute the court will equally divide all marital assets unless there is a justification for an, unequal division. The statute lists relevant factors that include "[a]ny other factors necessary to do equity and justice between the parties." F.S. [sections] 61.075(1)(j) (1995) (emphasis added). Finally, under Florida's custody and support of children statute, "[f]or the purpose of shared parental responsibility and primary residence, the best interest of the child shall include an evaluation of all factors affecting the welfare and interests of the child." F.S. [sections] 61.13(3) (1995) (emphasis added). Therefore, fault remains a large part of dissolution actions in Florida.

On September 5, 1996, the Florida Supreme Court ruled that a release clause in a marriage settlement agreement barred later tort claims arising from the marriage. Cerniglia v. Cerniglia, 679 So. 2d 1160 (Fla. 1996). In Cerniglia, the former wife filed a civil action against the former husband for assault and battery, intentional infliction of emotional distress, common-law fraud, and breach. of contract. The basis of the former wife's claims was that during the marriage she was abused by the husband both physically and mentally, that the marital settlement agreement had been obtained by duress, coercion, and threats, and that the husband made oral agreements to pay the wife additional sums. The trial court entered summary judgment for the former husband. On appeal the court reviewed the marital settlement agreement which said in pertinent part, "[t]his Agreement constitutes a full and complete settlement of ... and claims of any nature whatsoever that each may have against the other .... The Husband and Wife mutually forever renounce and relinquish all claims of whatever nature ... this paragraph shall constitute a complete, general, and mutual release of all claims whatsoever."[2] The former wife argued that this language only applied to the distribution of assets from the dissolution of her marriage and not to her tort and contract claims. The court approved the district court's determination that the "release contained in the marital settlement agreement was intended by the parties to serve as a complete bar to all claims arising from the marriage" and that summary judgment was proper.[3]

In Cerniglia the court used curious language in describing the tort claims that accrue during the marriage by referring to them as "claims arising from the marriage."[4] This language begs the question, is the court implying that these tort claims are compulsory claims in a dissolution of marriage action? A compulsory claim is a claim that "arises out of the transaction or occurrence" that is the subject matter of the litigation. Fla. R. Civ. P. 1.170(a); Fla. Fam. L. R. P. 12.170. This question turns on whether the marriage and the tort claims are the "same transaction or occurrence." This phrase has been given broad construction to carry out the goal of preventing multiple actions. See H. Londono, M.D. v. Turkey Creek, Inc., 609 So. 2d 14 (Fla. 1992); Stone v. Pembroke Lakes Trailer Park, Inc., 268 So. 2d 400 (Fla. 4th DCA 1972); Neil v. South Florida Auto Painters, Inc., 397 So. 2d 1160 (Fla. 3d DCA 1981).

In Turkey Creek the Florida Supreme Court adopted the federal "logical relationship test" to determine if a claim is compulsory.

[A] claim has a logical relationship to the original claim if it arises out of the same aggregate of operative facts as the original claim in two senses: (1) that the same aggregate of operative facts serves as the basis of both claims; or (2) that the aggregate core of facts upon which the original claim rests activates additional legal rights in a party defendant that would otherwise remain dormant.

Turkey Creek, 609 So. 2d at 20 (quoting Neil v. South Florida Auto Painters, Inc., 397 So. 2d 1160,1164 (Fla. 3d DCA 1981) (quoting Revere Copper and Brass, Inc. v. Aetna Casualty and Surety Co., 426 F.2d 709, 715 (4th Cir. 1970)). This is not a bright line test. It is a fact-intensive test in which the results vary on a case-by-case basis. By exploring hypothetical cases we can see how the courts might apply Cerniglia and Turkey Creek. Each case is based on the following hypothetical facts. Assume the husband and wife have been married nine years and they have an eight-year-old child. One evening after a particularly bad day at work the husband comes home in a foul mood. When the wife presses him for the details of his day, he strikes her, knocking her down in the presence of the minor child who starts crying and comes to the aid of the wife. The wife is injured and requires a visit to the emergency room where she is treated and released. During follow-up treatment the doctor diagnoses a slight but permanent hearing loss in the wife's left ear caused by the husband's attack.

Case 1: Dissolution Without Battery, Settlement Reached

The wife petitions for dissolution of marriage asking for primary residential care of the minor child and equitable distribution. She does not file a claim for battery. The husband and wife enter into a marital settlement agreement containing a release clause. At the final hearing the court makes a finding of fact that the marital settlement agreement was freely and voluntarily made and that the disclosures were adequate and incorporates the agreement into the final order of dissolution. A year later the former wife files suit for battery based on the incident described above. Here, the former husband may have the affirmative defense of release. This is a straight application of the Cerniglia case. The court will likely find that this battery arose from the marriage and any cause of action based on the battery was released in the marital settlement agreement. Therefore, since the battery claim was later barred, it was a compulsory claim in the dissolution action and the wife receives no compensation for her battery.

Case 2: Dissolution Without Battery, No Settlement

This case is the same as case 1 above but this time the husband contests both issues. At the final hearing the incident described above is litigated to show why the wife should have primary residential care and why she should have an unequal distribution of the marital assets. The final order makes a finding of fact that it is in the best interest of the child that the wife have primary residential care of the minor child. The court equally divides the marital assets and all nonmedical debts. The court's finding that the husband caused the wife's hearing loss makes him responsible for all of the wife's medical bills. A year later the former wife files suit for battery based on the incident described above. The former husband may have the affirmative defense of res judicata because these facts were already litigated in the divorce case. The court would likely find that the facts that make up the battery action were part of the "aggregate of operative facts" that were tried in the dissolution action. They satisfy the logical relationship test and thus they are the same transaction or occurrence. Therefore, the claim was a compulsory claim in the dissolution action. Here, the wife was compensated for her past medical bills but was not made whole because there was no compensation for her pain and suffering or her permanent hearing loss.

Case 3: Dissolution with Battery, No Motion to Sever or for Jury

The wife petitions for dissolution of marriage asking for primary residential care of the minor child and equitable distribution and includes a count for battery. See Snedaker v. Snedaker, 660 So. 2d 1070 (Fla. 4th DCA 1995) (holding that there is nothing improper in pleading a battery claim as a separate count in a dissolution action). The husband does not move to sever the battery claim nor for a jury trial. The dissolution court hears both counts and issues the following orders. The final order of dissolution makes a finding of fact that it is in the best interest of the child that the wife have primary residential care of the minor child. The court equally divides the marital assets and all nonmedical debts and then makes the husband responsible for all of the wife's medical bills. As to the battery count, the court orders the husband to pay the wife $100,000 as compensatory damages.

This seems to be a scenario where the wife gets a full measure of justice. She does not just get her medical bills paid, she is made whole by being compensated for her pain and suffering and permanent hearing loss. As a practical matter, however, the wife may have only a judgment to show for her battery claim. In many cases that judgment will be uncollectible because the husband will not have adequate resources to cover it. Then again the husband may come into money and be able pay at a future date.

Case 4: Dissolution with Battery, Motion to Sever and for Jury

The wife petitions for dissolution of marriage asking for primary residential care of the minor child and equitable distribution and she includes a count for battery. This time the husband moves to sever and for a jury trial on the battery charge. Assume that the court denies the motion to sever and grants the motion for a jury trial. The court can have one trial where the jury will determine liability and damages for the battery claim and the court will determine the dissolution issues. At first glance this seems like a practical solution. But with today's crowded courthouses, many family law judges conduct their hearings in chambers where there is no room for a jury trial. This may present some logistics problems in scheduling courtrooms but it is not an insurmountable problem.

Additionally, there will be evidentiary problems. Will the jury hear facts that are relevant to the dissolution but not to the battery? In the hypothetical case discussed above most of the information dealing with the equitable distribution of the marital assets will fall into this category and may unfairly prejudice the jury for or against one of the parties. Suppose that one of the parties wants to call the child as a witness for the battery claim. Ordinarily, the court would not allow the child to testify in the dissolution action.[5] However, the child could be subpoenaed to testify about the battery. Will Florida's offer of judgment and demand for judgment statute, F.S. [sections] 768.79(1), apply? Under this statute when the plaintiff's judgment is at least 25 percent less than the defendant's offer, the plaintiff must pay the defendant's costs and fees from date of the offer. If those costs exceed the plaintiff's judgment, a judgment for the defendant is entered for the excess. Suppose that it is not in the child's best interest for the wife to pay these costs?

Analysis and Conclusions

The above discussion shows that when a dissolution action is filed without also including a claim for battery, a later battery claim may be barred either by a release or by res judicata. Therefore, it is likely that in both cases the battery claim is a compulsory claim in the dissolution action.

But does this result fit with the modern concept of marriage? Justice Harding wrote in his concurring opinion in Waite, that the marital relationship is designed to be a special relationship where partners can share love, common interest, hopes, and endeavors.[6] Additionally, Justice McDonald characterized these tort claims as occurring during the marriage and not as arising from the marriage.[7] In light of these statements, how can the Florida Supreme Court say that these torts arise from the marriage? Cerniglia, 679 So. 2d at 1160.

It is hard to conceive that married partners have somehow agreed these torts will be a part of their marriage. Surely these acts are outside the marriage partnership agreement. To say that assault and battery and intentional infliction of emotional distress arise out of love, common interest, hopes, and endeavors is to distort the plain meaning of the language.

However, assuming the court carefully chose that phrase "arising from the marriage" for a purpose, the question then becomes how will the courts deal with these compulsory tort claims in the context of a dissolution of marriage action? When there is no demand for a jury trial or to sever the claims, the court will be able to resolve the issues with one eye on justice and one eye on efficiency. However, if a demand for a jury trial is made, the courts must deal with difficult issues, some of which are raised in case 4 above, because that is where most of the appellate cases are likely to "arise."

[1] Waite, 618 So. 2d at 1363 (emphasis added).

[2] Cerniglia, 679 So. 2d at 1162 (emphasis added).

[3] Id. at 1165. "Since there were no genuine issues of material fact, the trial court properly construed the release and found, as a matter of law, that the release was intended by the parties to serve as a complete bar to all claims arising from the marriage. RCA Invs., Inc. v. Amerivend, Corp., 581 So. 2d 618 (Fla. 3d D.C.A. 1991). Therefore, the wife's tort and contract claims were barred by the release in the marital settlement agreement, and summary judgment was proper as to those counts." Cerniglia v. Cerniglia, 655 So. 2d 172, 174 (Fla. 3d D.C.A. 1995); approved, 679 So. 2d 1160 (Fla. 1996) (emphasis added).

[4] Cerniglia, 679 So. 2d at 1165 (emphasis added).

[5] "No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation. This provision shall not apply to uncontested adoption proceedings." Fla. Fam L. R. P. 18 407. The court commentary to this rule indicates that this is not a complete ban on child testimony.

[6] Waite, 618 So. 2d at 1362.

[7] Id. at 1363.

James (Jim) R. Mitchell received his B.S. Ed. degree from the University of Georgia in 1977. Before attending law school, he was a computer systems analyst. Mr Mitchell received his J.D. from Stetson University College of Law in 1996 and is in private practice in Tampa.

This column is submitted on behalf of the Family Law Section, Deborah Brandstatter Marks, chair, and John S. Morse, editor