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Domestic Tort Claims in the Context of Divorce

Mogerman, Cary J ; Niemira, Mary E

Family Advocate, 2016-10, Vol.39 (2), p.14

Chicago: American Bar Association

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  • Título:
    Domestic Tort Claims in the Context of Divorce
  • Autor: Mogerman, Cary J ; Niemira, Mary E
  • Assuntos: Breach of contract ; Court hearings & proceedings ; Divorce ; Federal court decisions ; Immunity from prosecution ; Marriage ; State court decisions ; Torts
  • É parte de: Family Advocate, 2016-10, Vol.39 (2), p.14
  • Descrição: Other states have held that actionable torts between married persons should not be litigated within the divorce proceeding. Walther v. Walther, 709 P.2d 387 (Utah Sup. Ct. 1985); Simmons v. Simmons, 773 P.2d 602 (Colo. Ct. App. 1988) (tort action); In Re Marriage of Lewis, 66 P.3d 2014 (Colo. Ct. App. 2003) (although this involved a suit on a contract, not a tort). In Simmons, the court noted that "[sjound policy considerations preclude either permissive or compulsory joinder of inter-spousal tort claims, or nonrelated contract claims, with dissolution of marriage proceedings." Such considerations have been generally expressed as promoting judicial economy and avoiding undue complication of the process of dissolving a marriage; insulating an equitable proceeding (divorce) from the peculiarities of matters at law; extending a policy of the Uniform Dissolution of Marriage Act to promote the amicable settlement of disputes that have arisen between parties to a marriage; and avoiding the inherent tension between the acceptance of contingency fees in tort cases and a longstanding public policy against contingency fees in domestic cases. Courts in Vermont, Ward v. Ward, 583 A.2d 577 (Vt. 1990); New Hampshire, Aubert v. Aubert, 529 A.2d 909 (N.H. 1987); and Arizona, Windauer v. O'Connor, 485 P.2d 1157 (Ariz. 1971), have taken a similar view, and in Wisconsin, although joinder is technically allowed, it is discouraged. Stuart v. Stuart, 421 N.W.2d 505 (Wis. 1988). Consider the nature of a divorce proceeding and the distinct differences between a division of marital property and an award of damages. In contrast to a court presiding over a suit for damages, a divorce court has considerable discretion. While a tort may indeed be considered marital misconduct, the divorce court may not be required to fashion a remedy. Marital misconduct is generally only one of a number of factors a dissolution court must consider, and the court may not give undue weight to one factor. Accordingly, even if a dissolution court were to make a disproportionate division of property relying in part upon evidence of misconduct that might also constitute a tort, the relationship between the tort claim and the division of property will likely be inexact and imprecise. Further, the marital estate may not be sufficient to compensate a spouse for tort damages sustained, and so the tort damage may not be recoverable. Additionally, "fault" and "misconduct" are general terms; issue preclusion typically turns upon the specificity of the claim and the related evidence. For example, a Missouri court allowed a former wife to pursue a tort suit for personal injuries stemming from a series of assaults allegedly inflicted upon her during the course of their marriage, which ended in divorce prior to the resolution of the tort case. Sotirescu v. Sotirescu, 52 S.W. 3d 1 (Mo. App. 2001). In Sotirescu, the divorce judgment found no marital misconduct, and the tort court granted summary judgment to the former husband. The Missouri Court of Appeals stated that If the divorce and tort claims are prosecuted separately, coming to an agreement on one or waiving one by failing to pursue it could bar pursuit of important elements of the other. In Overbergv. Lusby, 921 F.2d 90 (6th Cir. 1990), the court held that a release of claims contained in a marital settlement agreement barred all subsequent actions for tort claims against the prior spouse if the plaintiff had notice of the tort prior to the divorce. See also Dahn v. Dahn, 346 S.W. 3d 325 (Mo. Ct. App. 2011), in which a spouse, in testifying about the terms of the divorce settlement, acknowledged she waived any claim to monies previously disputed and now awarded by stipulation to the other spouse. This waiver barred her later suit for damages for the misappropriation of such funds and for breach of fiduciary duty.
  • Editor: Chicago: American Bar Association
  • Idioma: Inglês
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