© 1996 National Legal Research Group, Inc.
NEW JERSEY: Brennan v. Orban, 145 N.J. 282, 678 A.2d 667 (1996).
Family courts have discretion to decide whether or not the victim of a marital tort will receive a jury trial on her tort claim that is joined with a divorce action.
In New Jersey, a spouse who files for divorce must bring a tort action arising out of the marital relationship as part of the divorce complaint. Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979). In Brennan v. Orban, the state’s high court addressed the question whether the tort claimant in a divorce action is entitled to a jury trial. The court did not answer with a definitive “yes” or “no” for all cases, but instead declared that “when vindication of the public policy against domestic violence outweighs in its significance to the family the other matters awaiting disposition, the tort claim should, at the request of a victim, be tried by a civil jury.” 678 A.2d at 669. The dissent criticized the majority for leaving the question up to the family courts and not adopting a straightforward rule requiring jury trials for domestic violence victims who are seeking a divorce.
After reviewing the scope of the domestic violence problem and the legislative reaction to it by the United States Congress and the New Jersey Legislature, the court noted that in every family court action involving children, a paramount concern of the courts remains the best interests of the children, who may be affected by the outcome or by a delay in the resolution of the controversy. “Hence, we believe that a major factor deciding the question whether jury trials will be given for a marital tort action should be the divisibility of the tort claim from the other matters in controversy between the parties.” Id. at 677. When issues of child welfare, child support, and child parenting are intertwined with the dissolution of the marriage and the resolution of the marital tort, the family court may conclude that the marital tort should be resolved as part of the overall dispute between the parties. In such a case, the family court should retain jurisdiction over the marital tort and try that cause of action without a jury in the same proceedings.
On the other hand, the court held, when the family court is convinced that society’s interest in vindicating a marital tort through the jury process is the dominant part of the matter, it may order that the marital tort be tried by a jury. Where the jury trial takes place is a matter within the discretion of the family court judge, the court decided. It acknowledged, however, the difficulty of empaneling juries in family court to decide the marital tort. Consequently, the court ruled that when family court judges exercise their discretion to have marital torts tried separately, they may order that the marital tort action be severed and that the tort claims be transferred to a law court for trial in accordance with the regular procedures for civil cases.
The court raised but did not decide the question whether, in divorce cases where a tort claim is severed, the remaining marital issues should be deferred or resolved subject to reopening. A recent report recommended that the tort claims should be tried prior to the dissolution action, so as to enable the family court to consider the tort award when rendering its decision concerning equitable distribution, child support, spousal support, and the parties’ method of payment, the court noted. According to the report, resolving the divorce action first might lead to an increase in postdivorce applications for relief because parties against whom a tort judgment is entered would seek to reopen their economic divorce settlements based on a change of circumstances. Jury Trial Subcommittee on Family Practice, Report Concerning Jury Trial When a Marital Tort Is Joined in a Dissolution Action at 40 (1996).
On the other hand, the court noted, the report acknowledged that the delay in resolving the divorce proceeding might have a negative psychological impact on spouses by prolonging the uncertainty of their marital status. Moreover, another commentator observed that a jury hearing the tort action cannot assess a defendant’s assets properly to determine punitive damages without knowledge of the tortfeasor’s net worth, which is an open question until after equitable distribution. Wildstein, “The Application of the Entire Controversy Doctrine to Family Part Actions,” 16 N.J. Fam. Law. 69, 77 (1996).
In any event, the court said, most matters will benefit from single-case management by the family court judge. All issues, including the marital tort, should be submitted to the available processes of mediation and nonbinding arbitration. Failing resolution of all issues, the family court should decide whether, on balance, the interests in vindicating the marital tort outweigh the interests of a unitary disposition of the family dispute and thus warrant a jury trial.
Summarizing, the court stated that, consistent with the state Prevention of Domestic Violence Act, courts should strive to afford abused people the maximum protection from abuse that the law can provide. In some cases, the maximum protection will be in the form of a jury trial; in other cases, where other legal interests converge, the maximum protection of the law will be in the form of a nonjury trial. “We invest the Family Part with discretion to make an appropriate judgment concerning the type of trial to be afforded, with special emphasis placed on the severability of the tort claim from the other matters in controversy between the parties.” Brennan v. Orban, supra, 678 A.2d at 679. The court decided that in the case before it, which involved a short marriage and no children, a sufficient divisibility among the claims existed to warrant a jury trial on the tort claim.
Dissent. The dissent found unacceptable the broad discretion that the majority conferred on family court judges to decide whether or not the victim of a marital tort is entitled to a jury trial on the tort claim. Under the majority opinion, the dissent contended, family court judges may deny a jury trial in nearly every marital tort claim on the basis that the potential monetary award by a jury necessarily is intertwined with issues of alimony, child support, and equitable distribution. Courts should provide the fullest measure of vindication authorized by law to compensate victims of domestic violence, the dissent declared. Accordingly, all victims of marital torts who seek a jury trial should be entitled to one, whether or not the marital tort claim is joined with a claim for divorce. There should be only a narrow exception for cases where the marital tort action involves an obviously insignificant claim that has been asserted primarily for strategic reasons and is designed to influence the outcome of the divorce action, the dissent said.