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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...