[226 NJSuper Page 643] Pursuant to R. 4:3-1(b) defendant has filed a motion seeking to have plaintiff's present tort action consolidated with a prior divorce action or in the alternative transferred to the Family Part for disposition. Defendant's application was filed contemporaneously
with the filing of his Answer and thus his application is within time. The significant facts are uncontroverted.
Plaintiff and defendant married June 1963 and lived together continuously until approximately Christmas 1981. Thereafter they lived together intermittently until a final separation sometime in 1983. During this on-again, off-again period it was defendant who left the marital home and who returned on occasion, apparently in an effort to effect a reconciliation. This effort was unsuccessful and plaintiff filed for divorce in June 1984. She was granted a Judgment of Divorce in January 1985.
In the pending matter, filed April 1987, plaintiff has alleged that defendant infected her with herpes, Types I and II, prior to the final separation although her illness was not diagnosed until October 1986. She seeks damages for the injuries alleged to have been inflicted upon her by defendant. Defendant's Answer denies the allegations, asserts certain separate defenses and seeks dismissal of plaintiff's Complaint. One of the separate defenses asserted by defendant is:
2. Plaintiff's claim is barred by the single controversy doctrine in that the claim, which was known or discoverable by plaintiff in the exercise of reasonable diligence, if true as alleged, should have been raised in the original divorce proceedings between the parties.
For reasons not explained in the record, service of plaintiff's Complaint was not made until August 20, 1987, and defendant's Answer was not filed until October 28, 1987. Neither party has raised any objection to these delays and the Court deems the objections waived.
Prior to the commencement of plaintiff's tort action defendant had filed a motion in the Family Part seeking a modification of the custody arrangement set forth in the Final Judgment of Divorce as well as for other relief. That motion was originally returnable January 30, 1987, but it, together with plaintiff's cross-motion, was not heard until March 20, 1987. After the motion hearing the parties were referred to a counselling/mediation program, which process remains ongoing. The balance of
the issues raised in the post-judgment divorce motion and cross-motion were resolved by consent of the parties.
Defendant's present application seeks to consolidate the tort action with the ongoing custody dispute under the single controversy doctrine. Alternatively, defendant seeks to have the tort action tried in the Family Part pursuant to R. 5:1-2. These applications are opposed by plaintiff who asserts that since she had no knowledge of defendant's tortious conduct prior to the entry of the Final Judgment of Divorce, consolidation is inappropriate. It is plaintiff's position that after the divorce she and defendant became "legal strangers" and thus the tort action should not be tried in the Family Part. At oral argument plaintiff also asserted that transfer of her Complaint to the Family Part would deny her trial by jury. However, a review of the pleadings filed in the tort action indicates that neither party has requested a jury trial. In accordance with R. 4:35-1(c) the parties have waived this right.
In Tevis v. Tevis, 79 N.J. 422 (1979) the Supreme Court applied the single controversy doctrine to matrimonial actions. There, the parties were divorced in May 1975 and the former wife instituted a tort action two months later to recover damages for a physical beating that occurred on or about May 1973. The Supreme Court held that N.J.S.A. 2A:14-2 precluded the former spouse from raising her tort action 26 months after the commission of the tort.
The case at bar presents facts very different from Tevis. Although the alleged tort occurred during the marriage, it was not discovered/diagnosed until some 22 months after the final judgment was entered. Moreover, while there is before the Family Part an ongoing post-judgment custody dispute, the judgment of divorce has long since been finalized. There does not exist ...