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May 16 — A divorce action in which a woman alleged that she had been physically abused by her husband does not raise a res judicata bar to her post-divorce tort claim for his assault and battery of her during their marriage, the Alabama Court of Civil Appeals decided May 13.
The court distinguished this case from the state supreme court's most recent decision on the issue, Ex parte Howle, 776 So.2d 133, 26 FLR 1436 (Ala. 2000), which held that a woman's divorce judgment was a res judicata bar on her later assault and battery claim against her ex-husband because his conduct was an issue in their divorce and she had been awarded money for her medical bills.
It explained that in this case, the divorce court did not award the wife damages for the injuries she had sustained, nor did the spouses settle her assault claim. Moreover, the court said, both parties have a right to have the tort action tried before a jury.
As the result of an incident on Oct. 19, 2010, the husband was convicted of second degree domestic abuse, a felony. The wife filed for divorce on Oct. 22, 2010.
One of the grounds asserted in the divorce action was that the husband had physically and emotionally abused the wife. Details of the Oct. 19 incident were set out in the divorce complaint, and testimony regarding it and other instances of abuse was presented at the divorce trial. On Oct. 18, 2012, the trial court entered a judgment divorcing the parties on the ground of incompatibility of temperament.
The next day, the wife filed a civil action against the husband based on his assault and battery of her during the marriage.
The trial court granted summary judgment to the husband, who had argued that the tort action was barred by res judicata because the assault and battery had been litigated in the divorce and considered by that court in its property division and support awards. The wife appealed.
At the outset, Presiding Judge William C. Thompson reviewed Ex parte Howle along with Ex parte Harrington, 450 So.2d 99 (Ala. 1984); Weil v. Lammon, 503 So.2d 830, 13 FLR 1337 (Ala. 1987); Jackson v. Hall, 460 So.2d 1290 (Ala. 1984); Coleman v. Coleman, 566 So.2d 482 (Ala. 1990); and Smith v. Smith, 530 So.2d 1389, 14 FLR 1609 (Ala. 1988).
After considering the case law, he concluded that the wife's claim in the civil suit was not barred by res judicata. Pointing out that unlike Jackson there was no settlement agreement between the parties in the divorce action, he explained that thus “there could have been no settlement of claims existing between the parties incorporated into the divorce judgment that would preclude litigation of the assault-and-battery claim.”
“Further, as pointed out in Harrington [ ], although an allegation of abuse, i.e., assault and battery, can be a basis for a divorce, a claim for a divorce and a claim alleging assault and battery are separate causes of action,” Thompson added.
He also noted that here, there was no evidence presented in the divorce action regarding the costs of medical expenses incurred by the wife as a result of injuries sustained in the Oct. 19 incident.
“There is no indication in the record [ ], as was the case in Weil, [that] the wife sought damages in the divorce action to compensate her for her injuries, for pain and suffering, for her alleged scarring and disfigurement, or for her mental anguish and distress,” Thompson explained, also citing Howle.
As to the husband's claim that the Oct. 19 incident and others were considered by the divorce court in its $4,200 per month periodic alimony award, Thompson said that although fault in bringing about the end of the marriage may be a factor when awarding spousal support, neither periodic alimony nor alimony in gross “is intended to punish a spouse for wrongdoing during the marriage[.]”
In fact, he observed, the divorce judgment did not even mention the assault and battery. Thus, to the extent, if any, that such a claim was raised in the divorce action, “we cannot say that judgment was entered on the merits of that claim,” Thompson stated.
Going on to note the wife's contention that because she had a constitutional right to have the assault and battery claim tried before a jury, she should not have been required to litigate it during the divorce action, he said that “the wife's point is well taken.”
Thompson looked to Abbott v. Williams, 888 F.2d 1550, 16 FLR 1063 (11th Cir. 1989), which had considered the implications that forcing the joinder of tort claims in a divorce action would have on a party's right to a trial by jury.
Agreeing with Abbott that “a divorcing spouse should not be required to include tort claims in a divorce action, because to do so would deprive each party of his or her right to have a tort action tried before a jury,” Thompson concluded that “under the facts of this case, the doctrine of res judicata does not preclude the wife's assault-and-battery claim in the civil action.”
Judges Craig S. Pittman, Terri Willingham Thomas, Terry Moore, and Scott Donaldson concurred.
To contact the reporter on this story: Julianne Tobin Wojay in Washington at firstname.lastname@example.org
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