May 29, 2007
VIJAY R. PATEL, PLAINTIFF-APPELLANT,
HINA V. PATEL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1674-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2007
Before Judges C. S. Fisher and Yannotti.
Plaintiff Vijay R. Patel appeals on leave granted from an order entered by the Family Part on September 26, 2006, transferring the second and third counts of the counterclaim filed by defendant Hina V. Patel to the Civil Part for disposition; and an order filed on November 27, 2006, denying his motion for reconsideration. For the reasons that follow, we reverse.
On July 10, 2006, plaintiff filed an amended complaint for divorce in the Family Part. Plaintiff alleged that defendant had been guilty of extreme cruelty toward the plaintiff, beginning in mid-1998 and continuing until April 2005, when defendant left the marital residence in Port Ewen, New York, and moved to Wayne, New Jersey. Plaintiff cited several acts of extreme cruelty which he claimed had endangered his safety or health, and made it unreasonable to expect him to continue to cohabit with defendant. Plaintiff asserted that, due to defendant's "abuse," he had commenced an action in the Family Court in New York, which resulted in a settlement that granted plaintiff sole legal and physical custody of their child and provided that defendant would have not visitation or communicate with the child, without plaintiff's permission or further order of the court. Plaintiff sought: dissolution of the marriage; confirmation that New York had exclusive jurisdiction over custody and visitation regarding the minor child of the marriage; child support; equitable distribution of the marital property; and counsel fees and costs.
Defendant filed an answer and counterclaim on August 8, 2006. Defendant denied plaintiff's allegation that she had been guilty of extreme cruelty. In her counterclaim, defendant alleged that plaintiff had been guilty of extreme cruelty, "commencing early in the marriage and continuing until the present time." Defendant cited a variety of actions and conduct by plaintiff which defendant alleged constituted extreme cruelty. Defendant sought dissolution of the marriage; permanent alimony; rehabilitative alimony; equitable distribution of the marital property; and counsel fees and costs.
In her counterclaim, defendant also asserted two marital tort claims against plaintiff. In count two, defendant asserted a claim for battered wife syndrome. In count three, defendant asserted a claim for intentional infliction of emotional distress. These claims were based on the same facts that supported defendant's demand for dissolution of the marriage on the ground of extreme cruelty. Defendant sought compensatory and punitive damages; counsel fees and costs; and interest on both claims. Defendant also demanded a jury trial "on all issues so triable."
The trial judge conducted a case management conference on September 21, 2006. The judge stated on the record that defendant had asserted marital tort claims under Tevis v. Tevis, 79 N.J. 422 (1979), and those claims would be transferred to the Civil Part because defendant had demanded a trial by jury. Counsel for defendant informed the judge that he might make a motion respecting the transfer of the claims. The following colloquy ensued between the judge and defendant's attorney:
THE COURT: No. [Those claims are] going to the civil division. There is a jury demand and I'm going to sever it and I'm going to send Counts Two and Three to the civil division. They'll take care of it there.
COUNSEL: I would ask that Your Honor withhold that until the end of discovery because we may make a motion at the end of discovery that that claim, number one, is not entitled to a jury trial. . . .
THE COURT: That's no problem. You make that in the civil division. No problem.
COUNSEL: And that the matter should be resolved by you, if there's no jury trial.
THE COURT: If there's no jury trial, I keep it here, I agree.
COUNSEL: That's what I --
THE COURT: I agree. There's a jury demand, so I have to treat it as though it's civil. I'm not going to send it to civil when it's already a year old and they say you got two more years to wait. That's not fair to Mr. and Mrs. Patel. It's just not fair. I send it to civil as quickly as I can simply so that you don't have to wait and wait and wait. You get your matters moved along and get done with it.
COUNSEL: If Your Honor -- if we make a motion, I don't know [if] it's civil division or before you, and there's a decision that there should be no jury trial because the complaints for battered women's syndrome are so intrinsically intertwined with the family matter that it should be heard -- and the cases say that, then what do we do, come back and forth?
THE COURT: All I know is I'm told by higher authorities than I, when I have Tevis claims, no matter what they are, I am to find out do you have a jury demand, I see there is one here, I'm to sever it and send it over to the civil division. That's what I'm told I have to do. If everybody agrees it can stay here and be non-jury, then I can keep it here. That's my instructions. I'll ask again. I have no problem asking again.
Thereafter, the judge wrote to counsel and advised that he had spoken with the Presiding Judge of the Family Part in the vicinage and had been told that it is a state-wide policy that when there is a demand for a jury trial on marital torts asserted in a matrimonial matter, the counts must be severed and transferred to the Civil Part. The judge accordingly entered an order on September 26, 2006, transferring counts two and three of defendant's counterclaim to the Civil Part.
Defendant thereafter filed a motion for reconsideration. The motion was denied by the Presiding Judge of the Family Part of the vicinage by order entered on November 27, 2006. The judge wrote the following comments on the order:
When there is a Tevis claim in a dissolution matter, if a jury trial on those issues is requested, the Tevis claim is transferred to the Civil Division [and] the divorce issues remain in the Family Part. This is a State[-]wide policy adopted [and] approved by the Presiding Judges Conference. Therefore, the motion is denied.
Defendant moved before us for leave to appeal, and we granted the motion by order filed on January 9, 2007.
Subsequently, the judge filed a letter opinion in which he further explained his reasons for denying the motion for reconsideration. The judge stated that it was "well established" that there are no jury trials in the "Family Part" and the Family Courts are not "equipped to handle a jury trial." The judge commented:
Ever since the Tevis type claims became actionable, it has been the policy of the Family Courts in New Jersey to send those issues to the Civil Division if a jury trial is requested. In fact, the Family Courts ask . . . the parties at the initial Case Management Conference . . . whether or not a jury is requested on the Tevis issues. This way, early in the divorce litigation, the Tevis [c]laim is severed and sent to the Civil Part so as not to delay processing of that claim.
The judge added that under the Supreme Court's decision in Brennan v. Orban, 145 N.J. 282 (1996), a party asserting a Tevis claim is entitled to a jury trial if requested. The judge stated, "Shortly after the Brennan [c]ase was decided, it became a statewide policy in all Family Court matters such as this, that the Tevis [c]laims would be sent to the Civil Division for a jury trial disposition." The judge commented that the policy had been approved by the Conference of the Presiding Family Part Judges ever since Brennan was decided, "in the interest of expedience and practicality" and was in the "best interest of the parties."
In this appeal, plaintiff argues that that the order transferring defendant's Tevis claims to the Civil Part, and the order denying his motion for reconsideration, should be reversed because the judges transferred the claims without undertaking the analysis required by Brennan. We agree with this contention and therefore reverse.
In Tevis, the plaintiff brought an action against her former husband, seeking damages for the personal injuries she allegedly sustained as a result of a severe beating administered by him. Tevis, supra, 79 N.J. at 424. The Tevis Court held that the claim was barred by the applicable statute of limitations and commented that a claim alleging wrongful marital conduct "would obviously be germane" in the matrimonial action "for any number of reasons," including the potential for liability that might affect "the parties' financial status in the context of a matrimonial controversy." Id. at 433-34. The Court added:
Since the circumstances of the martial tort and its potential for money damages were relevant in the matrimonial proceedings, the claim should not have been 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 fractionalization of litigation. [Id. at 434.]
Subsequently, in Brennan, the Court considered whether a martial tort should be tried by a judge or jury when it is joined with other claims in a dissolution matter. The Court noted that the doctrine of ancillary jurisdiction allows the Chancery Division to dispose of ancillary legal claims, and award monetary damages, when exercising jurisdiction in a matter seeking equitable relief. Brennan, supra, 145 N.J. at 293. "Legal issues are ancillary if they are 'germane to or grow out of the subject-matter of the equitable jurisdiction.'" Ibid. (quoting Fleischer v. James Drug Stores, 1 N.J. 138, 150 (1948)). A jury trial is not required when the Chancery Division adjudicates an ancillary legal claim. Ibid. (citing Ebling Brewing Co. v. Heirloom, Inc., 1 N.J. 71, 76 (1948), and Fleischer, supra, 1 N.J. at 150). The Brennan Court held that a jury trial is not required for all marital torts asserted in a divorce action. Rather, the Family Part judge must determine, in the exercise of discretion, whether the martial tort should be tried before a jury, or tried by the judge in a single proceeding. Id. at 302.
The Court stated, "When issues of child welfare, child support, and child parenting are intertwined with dissolution of the marriage and the necessary resolution of the martial 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.'" Id. at 301-302 (quoting Tevis, supra, 79 N.J. at 434). In these 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." Id. at 302. However, the marital tort may be severed and tried before a jury if the judge "is convinced that society's interest in vindicating [the] marital tort through the jury process is the dominant interest in the matter." Ibid.
The Court held in Brennan that the marital tort should be tried by a jury. Id. at 306. There, the plaintiff had asserted a claim for injuries resulting from the defendant's alleged mental and physical abuse. Id. at 288. The principal claim arose out of an incident in which the defendant struck the plaintiff after an argument. Ibid. The Court noted that the marital tort was "the dominant matter in controversy." Id. at 287. The Court pointed out that the marriage was of short duration and no children were born of the marriage. Id. at 287-88. Because the parties were both professionals, the Court assumed that they each had the capacity to earn income, and equitable distribution of the marital assets would be relatively uncomplicated. Id. at 288.
The Brennan Court additionally stated that domestic violence was a serious problem which the Legislature had addressed by enacting the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. In that Act, the Legislature sought to provide "the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. The Court observed:
In some cases, the maximum protection of the law will be in the form of a jury trial. In other cases, where other interests of the law converge, the maximum protection of the law will be in the form of non-jury trial.
We invest the Family Part with discretion to make an appropriate judgment concerning the type of trial to be afforded, with special emphasis placed on the severability of the tort claim from the other matters in controversy between the parties. [Id. at 306.]
In this matter, the trial judges did not undertake the analysis required by the Court in Brennan. The judges simply determined that, because defendant made a demand for a jury trial on her marital tort claims, those claims must be severed and transferred to the Civil Part for trial. There was no assessment of whether the marital torts were germane to the matters in dispute in the divorce action. Moreover, the judges failed to consider how resolution of the martial torts might affect the other issues in the case, which include child support, alimony and equitable distribution. The judges also did not consider whether society has an interest in vindicating the particular torts at issue through the jury process and whether society's interest was the dominant interest in the matter.
In his letter opinion explaining his decision to deny plaintiff's motion for reconsideration, the judge commented that severance of the marital torts, and transfer of those claims to the Civil Part, was in furtherance of a policy adopted and approved by the Conference of Presiding Judges of the Family Part conference. However, as best as we can determine, the Conference has not approved a policy requiring the transfer of marital torts from the Family Part to the Civil Part in any matter when a jury trial is requested. In any event, whether or not the orders at issue here were entered pursuant to such a policy, we are convinced that the transfer of defendant's marital tort claim from the Family Part to the Civil Part was erroneous because the judges transferred the claims without undertaking the analysis required by Brennan.
Defendant argues that her Tevis claims are distinct from the dissolution and should be tried by a jury. Defendant asserts that a cause of action for extreme cruelty is "rarely, if ever" presented to the trial judge for decision. Defendant further contends that she could simply file an amended counterclaim, alleging irreconcilable differences and seek dissolution of the marriage on that basis. Defendant maintains that such an amendment would make clear that her Tevis claims are not germane to the divorce and should be tried separately before a jury.
We decline to address these issues because, under Brennan, they should be addressed in the first instance by the trial court. We merely note that when the orders at issue here were entered, the complaint and counterclaim both sought dissolution on the grounds of extreme cruelty. Moreover, the factual allegations supporting defendant's counterclaim were the same facts relied upon for her Tevis claims. Amendment of the counterclaim may have a bearing upon the trial court's determination of whether the Tevis claims are germane to the divorce action, but those issues should be resolved first by the trial judge in accordance with Brennan.
We therefore reverse the orders entered in this action on September 26, 2006, and November 27, 2006. We remand the matter to the Family Part to determine whether defendant's marital torts should be tried by a judge in the Family Part in the exercise of ancillary jurisdiction, or whether those claims should be severed and transferred to the Civil Part for trial by jury. In reaching its decision, the trial court must undertake the analysis required by the Supreme Court in Brennan.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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