Catherine M. Langlois, Judge
This matter is before the court on plaintiff's motion requesting, among other things, that defendant's demand for a jury trial on her counterclaim alleging both negligent and intentional tortious acts be stricken. Oral argument was heard on December 3, 1993, and other issues were resolved. However, the court reserved decision on the jury trial demand. Having now reviewed the case law both in New Jersey and in other jurisdictions, the court denies the motion to strike defendant's jury demand. The counterclaim shall be tried before a jury.
The Tweedleys were married on January 4, 1985. Their child, George, III, was born in February 1987, and there are two children from prior marriages. The Tweedleys separated on July 20, 1991; Mr. Tweedley filed the divorce complaint on December 6, 1991, alleging extreme cruelty. Defendant's answer and counterclaim were not filed until December 1992.*fn1
Mrs. Tweedley's counterclaim is in three counts. The first count seeks a divorce on grounds of extreme cruelty and lists 16 pages of acts occurring during the marriage (Schedule A). Among
those acts are instances of sexual assault and abuse, physical assault and abuse, adultery, verbal abuse to herself and the children, mental cruelty and neglect. The second count alleges that the acts listed in the Schedule "were done intentionally, willfully and wantonly and with the express and exclusive purpose of causing grievous and severe personal injury to defendant and to cause the defendant to be in fear of said personal injury." The third count alleges that the physical injury and threats of physical injury were performed with the "purpose of causing severe emotional and mental distress." The relief sought in those counts is for compensatory and punitive damages, restraints, and counsel fees.
At oral argument, defendant's counsel stated that the defendant would withdraw her extreme cruelty claim and seek a divorce solely on the basis of an 18-month separation. That procedural tactic, therefore, leaves the tort claims remaining for resolution without any underlying issue of plaintiff's marital fault before the court.
New Jersey has definitively abolished spousal immunity from tortious conduct alleged to have been committed by "conventional negligence," or "intentional acts," or "other forms of excessive behavior such as gross negligence, recklessness, wantonness, and the like." "The only kind of marital conduct excepted from the abolition was that involving marital or nuptial privileges, consensual acts and simple, common domestic negligence, to be defined and developed on a case-by-case approach." Tevis v. Tevis, 79 N.J. 422, 426-27, 400 A.2d 1189 (1979), citing Merenoff v. Merenoff, 76 N.J. 535, 557-59, 388 A.2d 951 (1978).
Tevis further established that a spouse must bring an action for damages arising out of a personal injury caused by the other spouse during the marriage as a part of the divorce action itself.
Since the circumstances of the marital tort and its potential for money damages were relevant in the matrimonial proceedings, the claim [cannot] be held in
abeyance; it should, under the 'single controversy' doctrine, have been presented in conjunction with that action as part of the overall dispute between the parties in order to lay at rest all their legal differences in one proceeding and avoid the prolongation and fractionaliztion of litigation.
See also Brown v. Brown, 208 N.J. Super. 372, 378-79, 506 A.2d 29 (App. Div. 1986) (the purpose is to 'conclusively dispose of their respective bundles of rights and liabilities which derive from a single transaction or related serious of transactions. . . .). Cf. J.Z.M. v. S.M.M., 226 N.J. Super. 642, 545 A.2d 249 (Law Div. 1988). Therefore, defendant having to assert her claims in one proceeding, has done so by the filing of the counterclaim, and neither party disputes that this court now has jurisdiction over all claims ...