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Brennan v. Orban

July 16, 1996

MARY BRENNAN, PLAINTIFF-RESPONDENT,
v.
JOSEPH S. ORBAN, JR., DEFENDANT-APPELLANT. MARY KATHRYN BRENNAN, PLAINTIFF-RESPONDENT, V. JOSEPH S. ORBAN, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court, Appellate Division.

The opinion of the Court was delivered by O'hern, J. Justices Handler, Pollock and Garibaldi join in Justice O'HERN's opinion. Justice Stein filed a separate Concurring and Dissenting opinion in which Justice Coleman joins. Chief Justice Wilentz did not participate.

The opinion of the court was delivered by: O'hern

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Mary Brennan v. Joseph S. Orban, Jr. (A-95-95)

(NOTE: This is a companion case to Lyn-Anna Properties, Ltd., et al. v. Harborview Development Corp.,

et al. also decided today.)

Argued February 14, 1996 -- Decided July 16, 1996

O'HERN, J., writing for the Court.

The issue on appeal is whether a marital tort that is joined with other divorce claims should be tried by a Judge or a jury.

Joseph Orban, Jr. and Mary Brennan were married on January 23, 1991. The couple separated in September 1994 when Brennan obtained a Domestic Violence Temporary Restraining Order against Orban, prohibiting him from having any contact with her and granting her exclusive possession of the marital home. On October 4, 1994, Brennan filed a complaint in the Chancery Division, Family Part, seeking a divorce on grounds of extreme cruelty. Two weeks later, on October 17, 1994, Brennan instituted a marital tort action, with a jury demand, seeking recovery for injuries resulting from Orban's mental and physical abuse. Brennan's principle claim arose out of a February 26, 1994 incident in which she alleges that Orban struck her in the head following an argument. Brennan was treated at a hospital for a deep laceration of her forehead.

On April 28, 1995, Orban moved to consolidate the matrimonial and personal injury actions. Brennan filed a cross-motion to confirm her right to a jury trial on her personal injury claims. On June 16, 1995, the Family Part heard both motions and granted Orban's motion to consolidate the two actions. The court denied Brennan's motion to have her tort action heard by a jury, reasoning that Tevis v. Tevis requires marital tort claims to be joined with a pending action for divorce. The court found that, once the actions are consolidated, the doctrine of ancillary jurisdiction permits a court of equity, such as the Family Part, to grant full legal relief of a party's action for damages, without the right to a jury trial arising. The court acknowledged that case law was split on the application of the ancillary jurisdiction doctrine in the context of marital torts. Noting that those cases were not binding on a court of equal jurisdiction, the Family Part concluded that Brennan was not entitled to a jury trial because her personal injury claims were ancillary to her divorce action.

The Appellate Division granted Brennan's motion for leave to appeal that portion of the Family Court's order that denied her right to a jury trial. The Appellate Division reversed and remanded the matter to allow Brennan to introduce proof of her physical and mental health and for the court to determine if the injuries she suffered are either serious and significant, resulting in permanent physical or psychological damage or if the medical proofs to be presented at trial are complex. If so, Brennan is entitled to a jury trial on the Tevis claim. If her injuries are not significant or the medical proofs are not complex, the tort claim would be considered ancillary to the divorce proceeding and would be heard without a jury.

The Supreme Court granted Brennan's motion for leave to appeal.

HELD:

Because of the divisibility of claims, the public interest in vindicating the policy against domestic violence outweighs in significance the competing State policies that favor resolution in a single proceeding of all family matters in dispute. In such a case, a court should, in the interests of Justice, exercise its discretion to afford a jury trial to the victim of a marital tort.

1. The entire controversy doctrine requires that all claims between parties arising out of and relating to the same transaction or circumstances be joined in a single action. It is the factual circumstances giving rise to the controversy itself, rather than the commonality of claims, issues or parties that triggers the requirement of joinder. Mandatory joinder applies to family actions,and, pursuant to Tevis, a tort action arising out of the marital relationship must be filed as part of the divorce complaint begin heard in the Chancery Division. Nonetheless, the entire controversy doctrine is an equitable doctrine whose application is left to judicial discretion based on the factual circumstances of each case. Here, there is no basis for relaxing the application of the entire controversy doctrine. The assault underlying Brennan's personal injury claims occurred before she filed for divorce; the tort arose out of her marital relationship; and the tort complaint alleges many of the same factual circumstances as the divorce complaint. Thus, joinder of Brennan's claims is appropriate. (pp. 5-7)

2. To resolve whether or not a claimant is entitled to try his or her tort claims before a jury, a court must determine if the tort claims are ancillary and incidental to the underlying divorce action. Under the doctrine of ancillary jurisdiction, once the Chancery Division asserts jurisdiction over a complaint seeking equitable relief, the court has the power to dispose of ancillary legal claims and award money damages. Legal issues are ancillary if they are germane to, or grow out of, the subject matter of the equitable jurisdiction. Pursuant to the doctrine of ancillary jurisdiction, a Chancery Court can properly adjudicate an ancillary legal claim without providing the complainant with a jury trial. (pp. 7-10)

3. The distinction between serious and non-serious injuries found in Giovine v. Giovine, and adopted by the Appellate Division in this case, does not find support in the New Jersey constitutional doctrine. New Jersey has evidenced a profound interest in combatting the domestic violence epidemic. At the same time, a dominant theme of the law is the preservation of families, with a paramount concern for the best interests of the children. Hence, a major factor in deciding the question whether jury trials will be given for a marital tort action should be the divisibility of the tort claim from the other matters in controversy between the parties. When issues of child welfare, child support, and child parenting are intertwined with dissolution of the marriage and the necessary resolution of the marital tort, the Family Part may conclude that the marital tort should be resolved in conjunction with the divorce action as part of the overall dispute between the parties. In that case, the Family Part should retain jurisdiction over the matter and try the cause of action without a jury in the same proceedings. Under those circumstances, the tort is germane to, and grows out of, the subject matter of the divorce action, and should be tried in the Family Part as contemplated by the doctrine of ancillary jurisdiction. However, when the Family Part is convinced that society's interest in vindicating a marital tort through the jury process is the dominant interest in the matter, it may order that the marital tort be tried by a jury. Because of the difficulty in empaneling juries in the Family Part to decide the marital tort, a Family Part Judge may order that the marital-tort action be severed and the tort claims transferred to the Law Division for trial. On this record, the Court is unable to assess the effect that a jury trial will have on the resolution of the remaining marital issues, that is, whether, if issues are interrelated, the resolution of those remaining issues should be deferred or be resolved subject to reopening. (pp. 10-23)

4. Most matters will benefit from single-case management by a Family Party Judge. All issues, including the marital tort, should be submitted to the available processes of mediation and non-binding arbitration. Failing resolution of all issues, the Family Part Judge should decide whether, on balance, the interests of vindicating the marital tort outweigh the interests of a unitary Disposition of the family dispute and warrant a jury trial. This is consistent with the Legislature's intent to assure maximum protection to victims of domestic violence. The court should consider in its assessment of the interests, the nature and extent of the violence inflicted on the spouse. The Court is confident that Judges can successfully balance the societal interests. Family Part Judges are well equipped to assess the monetary value of a tort and whether the vindication of public policy against such tortious conduct requires a jury trial. And, jury trials in appropriate cases will not unduly burden the courts.

(pp. 24-26)

5. A sufficient divisibility among the claims exists to warrant a jury trial on Brennan's tort claim. The Family Part Judge shall retain management of the entire case until the Judge decides whether to try the tort claim herself or transfer it to the Law Division. (pp. 27-28)

As MODIFIED the judgment of the Appellate Division is AFFIRMED.

JUSTICE STEIN, Concurring in part and Dissenting in part, in which JUSTICE COLEMAN joins, concurs in the Court's judgment mandating a jury trial of Brennan's tort action and agrees with much of the substantive content of the Court's opinion. He Dissents from the virtually standardless discretion that the Court confers on Family Part Judges to decide whether or not the victim of a marital tort is entitled to a jury trial on a tort claim that is joined with a divorce action. Justice Stein would hold that all victims of marital torts who seek a jury trial are entitled to have a jury trial, whether the marital tort is or is not joined with a claim for divorce. Justice Stein would allow only the narrowest exception to that rule: if the Family Part Judge before whom the divorce action is pending determines that the marital tort action involves an obviously insignificant claim that has been asserted primarily for strategic reasons and is designed to influence the outcome of the divorce action, the Judge may treat the tort claim as ancillary to the divorce action and decide it without a jury.

JUSTICES HANDLER, POLLOCK and GARIBALDI join in JUSTICE O'HERN's opinion. JUSTICE STEIN filed a separate Concurring and Dissenting opinion in which JUSTICE COLEMAN joins. CHIEF JUSTICE WILENTZ did not participate.

The opinion of the Court was delivered by

The question in this appeal is whether a marital tort that is joined with other claims in dissolution of marriage should be tried by Judge or jury. We hold that when vindication of the public policy against domestic violence outweighs in its significance to the family the other matters awaiting Disposition, the tort claim should, at the request of a victim, be tried by a civil jury.

I

The issue arises in the context of a marriage in which the dominant matter in controversy appears to be the marital tort. This marriage of two professionals was of relatively short duration. Each had been married previously. Defendant Joseph Orban, Jr., is an associate general counsel for a major corporation. Plaintiff Mary Brennan was an attorney with the same company until 1993, and now serves as the executive director of a hospital trade association. No children were born of their marriage. Although the record before us does not disclose the details, we surmise that both professionals have separate income-producing capacities and that the issues of equitable distribution should not present the difficulties of cases such as Lynn v. Lynn, 91 N.J. 510, 453 A.2d 539 (1982) or Kothari v. Kothari, 255 N.J. Super. 500, 605 A.2d 750 (App. Div. 1992).

The parties were married on January 23, 1991. They later purchased a home in Red Bank, New Jersey, where they resided until their separation in September 1994. That separation was triggered on September 26, 1994, when plaintiff Brennan obtained a Domestic Violence Temporary Restraining Order against defendant. The Order prohibited defendant from having any contact with plaintiff and granted plaintiff exclusive possession of the marital home, thereby marking the end of the parties' cohabitation. On October 4, 1994, plaintiff filed a complaint for divorce in the Chancery Division, Family Part, of Monmouth County, seeking relief on grounds of extreme cruelty.

Two weeks later, on October 17, 1994, plaintiff instituted her marital tort action, with a jury demand, in the Law Division, Monmouth County. Plaintiff sought recovery for injuries resulting from defendant's mental and physical abuse. Her principal claim arose out of a February 26, 1994, incident in which she alleges that her husband struck her in the head following an argument. Apparently, defendant took plaintiff to the hospital. Plaintiff asserts and the hospital records disclose that doctors treated her for a "severe deep irregular laceration" to her forehead.

On April 28, 1995, defendant moved to consolidate the matrimonial and personal injury actions. Plaintiff filed a cross-motion to confirm her right to a jury trial on her personal injury claims. The Family Part heard those motions together on June 16, 1995. At the Conclusion of oral argument, the Family Part granted defendant's motion to consolidate the two actions and denied plaintiff's motion to have her tort claim heard by a jury.

The court held that Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979), requires marital tort claims to be joined with a pending action for divorce. Once the actions are consolidated in the Chancery Division, the court reasoned, the doctrine of ancillary jurisdiction permits a court of equity to grant full legal relief on a party's action for damages. Such relief can be provided without any right to a jury trial arising. The court acknowledged that a divergence of case law existed on the application of the ancillary jurisdiction doctrine to the context of marital torts. Davis v. Davis, 182 N.J. Super. 397, 442 A.2d 208 (Ch. Div. 1981), held that a tort claim is ancillary to a divorce action, and thus denied plaintiff's request for a jury trial. In contrast, Tweedley v. Tweedley, 277 N.J. Super. 246, 649 A.2d 630 (Ch. Div. 1994), held that a wife's tort claim was not ancillary to her husband's action for divorce, and thus a jury trial should be provided. Noting that those cases were not binding on a court of equal jurisdiction, the Family Part concluded that plaintiff was not entitled to a jury trial because her personal injury claim was ancillary to her divorce action, the "primary dispute between the parties."

The Appellate Division granted plaintiff's motion for leave to appeal from that portion of the Family Part's order that denied plaintiff her right to a jury trial. It reversed the lower court's denial of plaintiff's jury trial application and remanded the matter

to permit plaintiff to introduce proof of her physical and mental health and for the court to determine if the injury suffered is serious and significant resulting in permanent physical or psychological damage or alternatively that the medical proofs to be presented at trial are complex, in which case, plaintiff is entitled to a jury trial for this Tevis claim. Otherwise, plaintiff's tort claim shall be determined ancillary to the divorce proceeding and be heard without a jury.

The panel's decision adopted the test that was later established in Giovine v. Giovine, 284 N.J. Super. 3, 663 A.2d 109 (App. Div. 1995).

We granted plaintiff's motion for leave to appeal, 142 N.J. 512 (1995), and permitted the parties ...


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