Torts & Divorce: An Emerging Trend
As all family law practitioners know, when the bloom falls off the rose, marital partners are quite capable of obnoxious behavior towards one another. A jury may well find the conduct of a particularly obnoxious mate to be actionable.
Although fault remains a relevant factor in Michigan and elsewhere, case law has clearly minimized its impact in divorce and other family-related matters. Indeed, a recent Court of Appeals reversal ordered a remand for entry of an "equal" property division in a case where fault was found. The practical effort of its removal where marital misconduct exists is to leave the victimized party frustrated and, in a sense, deprived of a day in court.
However, resourceful counsel, utilizing traditional tort concepts, have found a remedy and created a trend giving new meaning to the expression "old wine in a new bottle" – torts in domestic relations.
Breakdown of Interspousal Immunity
A necessary predicate to a domestic tort is the breakdown of the doctrine of interspousal immunity. Under the common law, a spouse could not sue his/her spouse for personal injury. the historical basis for this was a combination of the women’s lack of separate identity and the policy of maintenance of "conjugal harmony."
Professor Prosser, a longstanding critic of interspousal immunity, states in his treatise:
"The bald theory that after a husband has beaten his wife there is a state of peace had harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her legal remedy."
The Connecticut case of Brown v Brown was first to abrogate the doctrine. In rejecting interspousal immunity, the Court essentially adopted an equal protection point of view:
"If a cause of action in a wife’s favor arises from the wrongful infliction of such injuries upon her by another, why does not the wrongful infliction of such injuries by her husband now give her a cause of action against him? If she may sue him for a broken promise, why may she not sue him for a broken arm?"
Divorce as Condition Precedent
Until fairly recently, a number of states preserved the notion that interspousal torts required a precedent divorce. However, the improbable facts surrounding the case of Hack v Hack is credited with settling the distinction of marital status.
Hack, supra, death with a tortfeasor for vehicular negligence based on an accident that occurred prior to the marriage of the parties. The lawsuit was commenced after the marriage. However, the parties divorced while the suit was pending but reconciled and remarried by the time the case was decided on appeal.
The Pennsylvania Court, faced with an unmarried, married, divorced, remarried scenario, decided that any doctrine regarding marital status be eliminated.
"We conclude that a tortfeasor’s immunity from liability because of his marital relationship to the injured party cannot be sustained on the basis of law, logic or public policy."
Michigan PerspectiveThe Rights of Married Women Act abrogated the marital identity issue in Michigan. The Revised Judicta Act abrogated the doctrine of interspousal immunity. It removes the distinction of spouses to sue or be sued on the basis of marital status.
In Hosko v Hosko, our Supreme Court interpreted the Married Women’s Act to hold that a married woman could bring a tort against her husband and vice versa.
Goldman v Wexler holds that an action for a husband’s battery of his wife during the marriage was neither barred by nor merged into a divorce judgment, thereby clearly establishing an independent cause of action, separate and distinct from the statutory remedy of dissolution of marriage.
In Chiles v Chiles, a Texas jury awarded $500,000 against a former husband for intentional infliction of emotional distress. According to the Wall Street Journal, this award marks "The first time a wife has won substantial damages from a spouse for severe emotional distress."
Plaintiff’s claim included sexual escapades by Defendant with his secretary. The jury also found that the husband had frequented "topless entertainment establishments and maintained relationships with women employed there who often called and harassed his wife." Mrs. Chiles presented expert testimony on the degree of her emotional distress.
In Stafford v Stafford, interspousal immunity for negligence was struck down. There, a jury awarded actual damages of $250,000 on the theory that Plaintiff’s husband negligently transmitted a socially communicable disease. County also included in the award were assault and battery, invasion of privacy, and infliction of emotional distress.
Recent commentary catalogs a host of emerging torts. In addition to fraud for concealment of assets and assault and battery arising out of domestic violence, there are examples of invasion of privacy, and wiretapping under the Omnibus Crime Control and Safe Streets Act of 1968. Other examples include child-snatching, actions against policy officers for knowingly failing to enforce domestic violence orders, and conspiracy.
Michigan Follows Trend
Goldman v Wexler, supra, originated in Oakland County. It arose out of an automobile negligence suit, and included a count against former husband for battery committed after the accident which allegedly aggravated the injuries received in the accident. Summary judgment was grated in favor of Defendant on the basis that Plaintiff’s action was barred by prior divorce judgment.
In reversing, the Court of Appeals held that Plaintiff’s tort action was neither barred by nor merged in the judgment. It disagreed with Defendant’s contention that the property settlement, which provided "a large proportion of the marital assets" and several unexplained cash awards, took into account fault:
"Where the subsequent action is based upon a different cause of action from that upon which the prior action was based ... it is not conclusive as to questions which might have been but were not litigated in the original action. The prior action for the parties was one for divorce ... the present action is for a battery which alleged to occur during the course of the marriage. Although we agree that fault continues to be a consideration in the property division disputes in a divorce action, we do not agree ... that both claims constituted a single cause of action."
In McCoy v Cook, the former wife sued for battery and intentional infliction of emotional distress. The Trial Court granted summary judgment on the basis that the issues of physical and mental abuse were fully litigated in the divorce proceedings in the context of fault. Indeed, it appeared from the facts, they had.
At trial, "much of the trial testimony" centered on abuse. The Trial Court found Defendant to be 70 percent at fault and divided the assets in the same proportion, and ordered transitional alimony, the requirement for which was largely blamed on the husband.
The Court of Appeals revered. It concluded that not only should the issue of damages be tried, but also, that Defendant was collaterally estopped from relitigating whether the battery occurred, as the Trial Court expressly resolved this issue! However, Defendant may raise as an affirmative defense, that in the divorce case Plaintiff was compensated for the injuries.
In the recent case of Bhama v Bhama, an opinion authored by Judge Doctoroff, the Court of Appeals considered intentional infliction of emotional distress arising out of a custody case. The parties were both psychiatrists. Plaintiff alleged that Defendant used his medical training to "systematically manipulate, instigate .. indoctrinate and brainwash the minor children into totally rejecting" Plaintiff to "the point of extreme antagonism and instilled hatred."
Summary disposition was granted on the basis of Res Judicata in that the issue was litigated in the context of the prior custody proceeding. In reversing, it was held that deliberate destruction of a parent-child relationship can be so outrageous as to form the basis of a tort. In the subsequent action, Plaintiff seeks monetary damages for an injury whereas in the "former action," both parties sought custody of the minor children.
Domestic torts raise new considerations regarding settlement that every practitioner must recognize.
The presence of marital misconduct, or recognition of a potential tort claim raises the issue of inclusion or exclusion of a general release in the Judgment for Divorce. Obviously, the position the attorney takes will differ according to which party he or she is representing. If representing the party upon which a claim may be asserted, it will be important to get a general release of all claims in the Judgment for Divorce. If you client has been the victim of misconduct or a potential claim is recognized, a general release is not desirable without adequate consideration for its inclusion.
Settlement of a domestic relations action involving a potential tort claim will require analysis typically applied to personal injury lawsuits. Counsel will have to be versed on theories of liability, damages, and those subtle factors utilized in valuing a case: credibility of witnesses, jury considerations, venue, etc.
Based on what the claim is worth, the perpetrator should be prepared to settle the matter for an additional percentage of the estate or "X" dollars in exchange for a release.Statute of LimitationsThe practitioner must be mindful that there may exist a statute of limitations’ problem. Case law is split over whether a limitation of actions for a tort by one spouse against the other is tolled during the marriage.
The historical reason for the inapplicability is based on the same policy considerations associated with interspousal immunity, the fostering of domestic discord by a precipitous filing of a lawsuit. The modern trend, however, holds that the statute of limitations is not tolled by marriage.
In Catron v First National Bank of Tulsa, the Oklahoma Court held that since a married woman is competent to sue her husband, there is no tolling of the statute:
"As the marriage relationship provides no defense to the husband, the better view is that the statute of limitations will run to bar a wife’s claim against her husband during converture."
Although this precise issue is not settled in Michigan, the better view is to treat the matter as if there is a statute of limitations’ problem.
The breakdown of interspousal immunity and "no-fault" divorce has created a new by-product where marital misconduct exists: tort actions in the context of domestic relations. As is pointed out by our own learned commentators, where family law lawyers have for years seen firms specializing in "Plaintiff’s work," personal injury and negligence, invading the field of family law, now the reverse is taking place.
Recent examples tell us that juries will be sensitive to liability and damages in cases involving marital misconduct. Michigan is following, and perhaps helping to set this trend.
While this new arena creates new problems and considerations, it is also an opportunity to recognize legitimate concerns of clients and provide a remedy.