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Giovine v. Giovine

August 11, 1995


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County.

Approved for Publication August 11, 1995

Before Judges Skillman, Wallace and Kleiner. The opinion of the court was delivered by Kleiner, J.A.D. Skillman, J.A.D., Concurring and Dissenting.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by KLEINER, J.A.D.

On July 1, 1994, plaintiff Christina Giovine filed an eleven count complaint against defendant Peter J. Giovine denominated: "Complaint for divorce, domestic torts, equitable claims and jury trial demand." Plaintiff's complaint alleged habitual drunkenness, N.J.S.A. 2A:34-2(e) (count one) and extreme cruelty, N.J.S.A. 2A:34-2(c) (count two) as alternative grounds for the dissolution of the marriage. In counts three through six, plaintiff asserted claims for compensatory and punitive damages based upon an assault and battery which allegedly occurred in March 1972 (count three); intentional infliction of emotional injury/distress commencing in March 1972 (count four); "continuous wrong" between March 1972 and May 1993, resulting in "severe emotional and physical damage" (count five); and negligence (count six).

Counts seven through eleven of plaintiff's complaint alleged equitable claims respecting real property acquired by defendant in February 1969 prior to the marriage and titled solely in defendant's name, predicated upon the concepts of transmutation (count seven); constructive/resulting trust (count eight); implied contract (count nine); unjust enrichment (count ten); and quasi-contract (count eleven).

Plaintiff demanded a jury trial on counts three through eleven.


Plaintiff and defendant were married on May 1, 1971. Three children were born of this marriage on August 17, 1975, July 5, 1979, and July 7, 1983.

On approximately December 31, 1978, defendant separated from plaintiff. In May 1980, he filed a complaint seeking to establish visitation rights with the two children of the marriage. On August 1, 1980, defendant filed a complaint for divorce, asserting a cause of action for dissolution of marriage predicated upon eighteen consecutive months of separation. Plaintiff filed an answer and counterclaim for divorce, alleging habitual drunkenness and extreme cruelty as alternative grounds for divorce. Additionally, that counterclaim contained three counts for damages predicated upon the following torts: a specific act of assault and battery in March 1972 and a final act of assault and battery on December 28, 1978; infliction of emotional distress based upon the same acts of assault and battery; and "a continuous and unbroken wrong commencing on or about March 1972 and continuing down until December 28, 1978."

Defendant filed an answer to the counterclaim and amended his complaint for divorce, adding a cause of action for divorce based upon acts of extreme cruelty.

In July 1982, while their matrimonial action was pending, the parties reconciled and resumed living together. On July 26, 1982, both parties directed their respective attorneys to discontinue the litigation. The proceedings were dismissed by a stipulation of dismissal with prejudice dated October 25, 1982. The couple separated again in September 1993. As noted, plaintiff filed her present complaint on July 1, 1994. Defendant filed an answer and counterclaim asserting a cause of action for divorce based upon extreme cruelty.


On August 8, 1994, defendant filed a motion to strike certain causes of action contained within plaintiff's complaint and to strike plaintiff's demand for a jury trial on counts three through eleven. On September 20, 1994, the motion Judge granted defendant's motion, striking all tortious claims occurring prior to June 30, 1992 based upon the applicable statute of limitations, N.J.S.A. 2A:14-2, and limiting plaintiff's proofs on her claims for emotional distress or negligence to those acts alleged to have occurred after June 30, 1992. The motion Judge also determined that plaintiff did not have a constitutional right to a jury trial. We granted plaintiff's motion seeking leave to appeal those rulings, which were memorialized in an order dated November 14, 1994. We now affirm in part and reverse in part.


Interspousal tort immunity no longer exists to bar the suit of one spouse against another for injuries sustained by one spouse due to the tortious conduct of the other. Merenoff v. Merenoff, 76 N.J. 535, 557, 388 A.2d 951 (1978).

The abolition of the doctrine pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as 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 (citation omitted).]

If the circumstances surrounding a domestic tort and a claim for monetary damages are relevant to a divorce proceeding, the domestic tort must be joined with the divorce proceeding under the "single controversy doctrine" in order to avoid protracted, repetitious and fractionalized litigation. Id. at 434.

On appeal, plaintiff contends that the motion Judge erred in refusing to follow the decision in Cusseaux v. Pickett, 279 N.J. Super. 335, 652 A.2d 789 (Law Div. 1994), which concluded that "battered-woman's syndrome is the result of a continuing pattern of abuse and violent behavior that causes continuing damage." Id. at 345. As such, "it must be treated in the same way as a continuing tort." Ibid. Battered woman's syndrome would therefore be an exception to N.J.S.A. 2A:14-2, that "every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have occurred." Ibid. The decision in Cusseaux substantially relied upon State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984).

In Kelly, the Supreme Court, relying in part on the research of Lenore E. Walker, The Battered Woman (1979), noted that battered woman's syndrome is a recognized medical condition. By definition, a battered woman is one who is repeatedly physically or emotionally abused by a man in an attempt to force her to do his bidding without regard for her rights. State v. Kelly, supra, 97 N.J. at 193. According to experts, in order to be a battered woman, the woman and her abuser must go through the "battering cycle" at least twice. Ibid.

The battering cycle consists of three stages. Ibid. Stage one, the "tension-building stage," involves some minor physical and verbal abuse while the woman tries to prevent an escalation of the abuse by assuaging the abuser with her passivity. Ibid. (citation omitted). Stage two, the "acute battering incident," is characterized by more severe battering due to either a triggering event in the abuser's life or the woman's inability to control the anger and fear she experienced during stage one. Ibid. (citation omitted). During stage three, the abuser pleads for forgiveness and promises that he will not abuse again. Id. at 193-94 (citation omitted). This period of relative calm and normalcy eventually ends when the cycle begins anew. Id. at 194 (citation omitted). *fn1

"The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers." Ibid. The caring and attentive behavior of the abuser during stage three fuels the victim's hope that her partner has reformed and keeps her tied to the relationship. Ibid. In addition, some women who grew up in violent families do not leave abusive relationships because they perceive their situations as normal. Ibid. Others cannot face the reality of their situations. Ibid. Some victims "become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation." Ibid. Victims are often afraid to seek help out of shame, fear that no one will believe them, or fear of retaliation by their abusers. Id. at 195. "They literally become trapped by their own fear." Ibid.

In Kelly, the Supreme Court held that expert testimony on battered woman's syndrome was admissible to show that a woman on trial for murder who was repeatedly beaten during her marriage honestly believed that she was in imminent danger of death when she stabbed her husband, and therefore, she acted in self-defense. Id. at 187, 202-04.

In State v. Ellis, 280 N.J. Super. 533, 543, 656 A.2d 25 (App. Div. 1995) (citing State v. Kelly, supra), we concluded that evidence of battered woman's syndrome can be introduced in a criminal proceeding as evidence to explain why a victim of a kidnapping neither attempted to escape a kidnapper nor immediately reported the kidnapping. In Ellis, the victim was the defendant's girlfriend.

Cusseaux v. Pickett, supra, recognized for the first time in this state, that a woman who suffers from the medically diagnosable condition of battered woman's syndrome is entitled to seek compensation for the physical and emotional injuries attributable to the abusive conduct during the course of the relationship. The trial Judge found that:

Because the battered-woman's syndrome is the result of a continuing pattern of abuse and violent behavior that causes continuing damage, it must be treated in the same way as a continuing tort. It would be contrary to the public policy of this State, not to mention cruel, to limit recovery to only those individual incidents of assault and battery for which the applicable statute of limitations has not yet run. The mate who is responsible for creating the condition suffered by the battered victim must be made to account for his actions--all of his actions. Failure to allow affirmative recovery under these circumstances would be tantamount to the courts condoning the continued abusive treatment of women in the domestic sphere. This the courts cannot and will never do.

[Cusseaux v. Pickett, supra, 279 N.J. Super. at 345.]

Cusseaux established a four-part test to state a cause of action for battered woman's syndrome:

1) involvement in a marital or marital-like intimate relationship; and 2) physical or psychological abuse perpetrated by the dominant partner to the relationship over an extended period of time; and 3) the aforestated abuse has caused recurring physical or psychological injury over the course of the relationship; and 4) a past or present inability to take any action to improve or alter the situation unilaterally.

[Id. at 344 (footnotes omitted).]

We agree with the premise espoused in Cusseaux and conclude that a wife diagnosed with battered woman's syndrome should be permitted to sue her spouse in tort for the physical and emotional injuries sustained by continuous acts of battering during the course of the marriage, provided there is medical, psychiatric, or psychological expert testimony establishing that the wife was caused to have an "inability to take any action to improve or alter the situation unilaterally." Ibid. In the absence of expert proof, the wife cannot be deemed to be suffering from battered woman's syndrome, and each act of abuse during the marriage would constitute a separate and distinct cause of action in tort, subject to the statute of limitations, N.J.S.A. 2A:14-2. Laughlin v. Breaux, 515 So. 2d 480, 482-83 (La. Ct. App. 1987).

Our disagreement with Cusseaux is predicated upon somantics. Cusseaux classifies battered woman's syndrome as a continuous tort. *fn2 The concept of "continuous tort" has been recognized in this state. Morey v. Essex County, 94 N.J.L. 427, 430, 110 A. 905 (E. & A. 1920) (unremitting trespass is a continuous tort); Russo Farms, Inc. v. Vineland Bd. of Educ., 280 N.J. Super. 320, 327-28, 655 A.2d 447 (App. Div. 1995) (claim of inverse condemnation continued to accrue as long as defendant's conduct caused plaintiff's property to be subject to continual flooding due to negligent construction of an adjoining building); Aykan v. Goldzweig, 238 N.J. Super. 389, 392, 569 A.2d 905 (Law Div. 1989) (continuous negligent representation by an attorney is a continuous tort which tolls the statute of limitations until the representation is terminated or the client discovered or should have discovered the injury). This concept was also discussed, although not applied, in Tortorello v. Reinfeld, 6 N.J. 58, 66, 77 A.2d 240 (1950), in reference to a claim that a continuing course of negligent treatment by a physician should be considered a continuous tort, and not an isolated incident of negligent treatment.

We do not adopt the Conclusion in Cusseaux that battered woman's syndrome is itself a continuous tort. Battered woman's syndrome is more correctly the medical condition resulting from continued acts of physical or psychological misconduct. Because the resulting psychological state, composed of varied but identifiable characteristics, is the product of at least two separate and discrete physical or psychological acts occurring at different times, to overcome the statute of limitations, it is imperative that the tortious conduct giving rise to the medical condition be considered a continuous tort. As noted in Kelly:

The combination of all of these symptoms--resulting from sustained psychological and physical trauma compounded by aggravating social and economic factors-constitutes the battered-woman's syndrome. Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's state of mind be accurately and fairly understood.

[State v. Kelly, supra, 97 N.J. at 196.]

The Supreme Court in Kelly and the Law Division in Cusseaux placed substantial weight on the legislative findings which led to the enactment of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -16. *fn3 Those findings deserve repeating:

The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.

.... Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature encourages ... the broad application of the remedies available under this act in the civil and criminal courts of this State.

[N.J.S.A. 2C:25-18.]

Cusseaux had no cause to discuss the statute of limitations, N.J.S.A. 2A:14-2, as it might affect a cause of action for the medical condition of battered woman's syndrome.

In Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 207 A.2d 513 (1965), the Supreme Court held that N.J.S.A. 2A:14-21 "foreclosed a tolling of the running of [the limitations period] unless plaintiff was [insane] at the time the cause of action accrued ...." Id. at 106-07. The Court carved out an equitable exception, however, where defendant's "negligent act brings about [a] plaintiff's insanity." Id. at 111. Applying equitable considerations, the Court concluded:

If plaintiff's insanity was caused by defendant's wrongful act, it may be said that such act was responsible for plaintiff's failure or inability to institute her action prior to the running of the statute of limitations. We feel that Justice here requires us to carve out an equitable exception to the general principle that there is no time out for the period of time covered by the disability if the disability accrued at or after the cause of action accrued. Thus, a defendant whose negligent act brings about plaintiff's insanity should not be permitted to cloak himself with the protective garb of the statute of limitations.

[Ibid. (footnote omitted).]

The Court added:

The equitable approach should mandate the following: A trial court shall itself without a jury hear and determine (1) whether insanity developed on or subsequent to the date of the alleged act of defendant and within the period of limitation and if so, whether that insanity resulted from the defendant's acts; and (2) whether plaintiff's suit was started within a reasonable time after restoration of sanity ....

[Id. at 112.]

"Insane," as used in N.J.S.A. 2A:14-21, means "such a condition of mental derangement as actually prevents the sufferer from understanding his [or her] legal rights or instituting legal action." Ibid.

In Jones v. Jones, 242 N.J. Super. 195, 576 A.2d 316 (App. Div.), certif. denied, 122 N.J. 418 (1990), we applied equitable considerations to abrogate the running of the statute of limitations against an incest victim. We noted the victim's emotional condition as a justification for tolling the statute of limitations, as well as the fact that the victim plaintiff was placed under physical and psychological duress by the defendant. Plaintiff's expert psychologist opined that "individuals subjected to childhood sexual abuse often find it impossible to communicate and describe such misconduct." Id. at 201. Jones likened plaintiff's condition to the condition of insanity, which tolls the statute of limitations in N.J.S.A. 2A:14-21 and provides in part:

If any person entitled to any of the actions or proceedings specified in sections 2A:14-1 to 2A:14-8 or sections 2A:14-16 to 2A:14-20 ... is or shall be, at the time of any such cause of action or right or title accruing, under the age of 21 years, or insane, such person may commence such action ... after his coming to or being of full age or of sane mind.

[Ibid. (emphasis added).]

We are able to draw an analogy between the status of the plaintiff in Jones to the status of a victim of repeated violence within the marital setting, who may "sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation." Kelly, supra, 97 ...

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