Lawyers Manual - Unified Court System

Domestic Violence and Tort Remedies 301
Torts Claims and Matrimonial Actions: Chen v. Fisher 24
In late 2005, the Court of Appeals held that a wife’s personal injury action
against her husband, commenced while their divorce action was pending, should
not have been dismissed by the Appellate Division, Second Department
pursuant to the doctrine of res judicata. Judge Carmen Ciparick, writing for a
unanimous court, marshaled the reasons why mandatory joinder of assault and
matrimonial causes of action, the procedure endorsed by the court below, should
not be required. 25 The policy reasons supporting this decision are sound: tort
claims are generally tried by juries, whereas divorce claims are tried by judges;
tort attorneys are compensated with contingency fees, while matrimonial
counsel are prohibited from engaging in contingency fee agreements; tort claims
constitute separate property and are not subject to equitable distribution directed
by a trial court; the need to expeditiously try matrimonial matters is absent in
tort actions. All of these differences, the court concluded, fail to create a
“convenient trial unit” and should permit the separate prosecution of the
disparate yet related claims.
Chen has properly removed the impediments created by the Second
Department, recognizing that trial courts, burdened by heavy matrimonial
dockets, exert substantial pressure on litigants to stipulate to grounds in divorce
actions. As a practical matter, however, the matrimonial practitioner generally
insists upon an exchange of general releases when drafting a divorce settlement
agreement. Thus, the attorney wishing to preserve her client’s right to proceed
with both varieties of claim, must take care not to miss the general release
provisions in the boilerplate language of settlement documents. If the adverse
party refuses to enter an agreement without an exchange of releases, the injured
spouse will be confronted with the pragmatically difficult decision of whether to
seek peace on both the matrimonial and tort fronts, or on neither.
Practice Points Choice of Forum
State law as interpreted by state courts can be quite harsh and unavailing
to torts victims when passing judgment upon the threshold question of what
constitutes conduct sufficiently extreme and outrageous to sustain an
intentional infliction of emotional distress cause of action. Interestingly, two
federal judges, both women, have exercised more liberal views about what
constitutes such atrocious behavior in two non-domestic violence cases