On appeal from the Superior Court, Law Division, Essex County.
Pressler, Dreier and Bilder. The opinion of the court was delivered by Pressler, P.J.A.D.
This appeal raises the question of whether the entire controversy doctrine embraces constituent causes of action which arise during the pendency of the litigation. The issue is before us in the context of matrimonial litigation. The specific question is whether the victim of a marital tort committed during the pendency of her divorce action is precluded from later pursuing the tort claim if she has not raised or attempted to raise it in that action. Although we conclude that the entire controversy doctrine ordinarily requires joinder or attempted joinder of constituent causes arising pendente lite, we are also satisfied that in exceptional cases there may be countervailing equitable considerations which would render application of that doctrine unfair. This is such a case. Accordingly, we reverse the summary judgment appealed from, which dismissed plaintiff's tort complaint against her former husband.
Plaintiff Leander Brown filed a divorce complaint against defendant Kenneth A. Brown on March 27, 1981, seeking to dissolve their nearly 22-year marriage on the ground of extreme cruelty. Defendant counterclaimed, seeking a divorce on the same ground. Each also sought equitable distribution of the apparently substantial marital estate which included residences in Maplewood, New Jersey, and Oak Bluffs, Massachusetts; real property in Newark, New Jersey; and substantial personal property. The record on this appeal includes no documents or pleadings in the divorce action other than the final
judgment and a later consent order, but it is represented to us that the litigation followed a typical pretrial discovery and motion pattern.
By September 1981, the parties were already living separate and apart, plaintiff apparently having continued to reside in the Maplewood residence. Insofar as we can determine from the record, sometime early in September defendant's brother appealed to plaintiff for assistance in caring for defendant's mother, who was ill and whose own husband had just been hospitalized. Plaintiff, accompanied by one of the emancipated daughters of the marriage, went to her mother-in-law's home in the Bronx and stayed there several days rendering such help as she could. On September 12, after visiting her father-in-law in the hospital, plaintiff and her daughter returned to the mother-in-law's home to retrieve their personal belongings as they were intending then to return to New Jersey. It is plaintiff's claim that upon her arrival, defendant, who had apparently come to his parents' home to visit his mother, refused her admittance and then assaulted her, twisting her arm and pushing her to the ground. She further alleged that as a result of the assault, she sustained a chronic cervical strain and aggravation of her existing muscular dystrophy. She required emergency medical care, eventual hospitalization and extended treatment and physical therapy.
According to plaintiff's certification filed in this action, she was preoccupied with her physical problems during the three months following the assault, but in December 1981 she discussed the incident with her divorce attorney. She claims that he then told her that the divorce action was scheduled for trial on January 6, 1982, and that "he further advised me that because the assault occurred in another state, the question of the proper forum required research, which he declined to do, and further that he would not represent me in my claims for personal injuries and damages." Apparently, plaintiff saw no alternative to proceeding with the divorce trial as scheduled and as the issues therein were then postured.
Accordingly, the trial of the divorce action, including all property claims, proceeded on the scheduled January 6th date and apparently resulted in an oral disposition granting each party a divorce from the other on extreme cruelty grounds and directing the distribution of the marital assets. The oral disposition was not, however, reduced to judgment until April 9, 1982. It appears that the delay was occasioned by the necessity for appraisals and by the parties' apparent undertaking at trial to attempt the amicable resolution of outstanding issues respecting the distribution of various specific marital assets. It further appears that not all of these matters had been accomplished even at the time the final judgment was entered and that proceedings to clarify, implement and modify the judgment continued at least through October 1982, when a consent order was entered fixing values of some of the real property and establishing the respective rights of the parties to other parcels. Plaintiff was represented throughout these proceedings by her original attorneys.
In the meantime, in March 1982, between the date of the divorce trial and the date the judgment was formally entered, plaintiff consulted her present attorney respecting her tort claim. The complaint asserting that claim was filed and served in September 1982. Defendant filed his answer on October 4, 1982, during the pendency of the post-judgment proceedings in the divorce action and prior to the date of entry of the concluding consent order therein. A tortuous procedural course then ensued which finally resulted in this dismissal of the tort claim two-and-a-half years later.
The parties engaged in pretrial discovery during the first 18 months of the pendency of the tort action. The case was scheduled for trial on March 5, 1984 but was adjourned on motion of plaintiff's attorney because of her peremptory criminal trial commitments. By some mishap, apparently resulting from communication problems between the court and counsel, the matter was again listed on the ...