SYLLABUS
(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.
SUPREME COURT OF NEW JERSEY
A-
95 September Term 1995
MARY BRENNAN,
Plaintiff-Respondent,
v.
JOSEPH S. ORBAN, JR.,
Defendant-Appellant.
MARY KATHRYN BRENNAN,
Plaintiff-Respondent,
v.
JOSEPH S. ORBAN, JR.,
Defendant-Appellant.
Argued February 14, 1996 -- Decided July 16, 1996
On appeal from the Superior Court, Appellate
Division.
Steven K. Warner argued the cause for
appellant (Satterlee, Stephens, Burke & Burke
and Charles H. Brandt, attorneys; Thomas V.
Manahan, of counsel).
Robert J. Durst, II argued the cause for
respondent (Stark & Stark, attorneys; Mr.
Durst, Beth G. Baldinger and Sudha T. Kantor,
on the briefs).
The opinion of the Court was delivered by
O'HERN, J.
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.
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 (1982) or Kothari v. Kothari, 255 N.J. Super. 500 (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 (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 (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 (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
[t]o 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 (App. Div. 1995).
We granted plaintiff's motion for leave to appeal,
142 N.J. 512 (1995), and permitted the parties to file supplemental
briefs.
The entire controversy doctrine requires that all claims between parties "arising out of or relating to the same transactional circumstances . . . be joined in a single action." Brown v. Brown, 208 N.J. Super. 372, 377-78 (App. Div. 1986). In Mystic Isle Development Corporation v. Perskie & Nehmad, 142 N.J. 310, 323 (1995), this Court explained that "it is the factual circumstances giving rise to the controversy itself, rather than a commonality of claims, issues or parties, that triggers the requirement of joinder to create a cohesive and complete litigation." New Jersey courts have held that this policy of mandatory joinder applies to family actions. Pressler, Current N.J. Court Rules, comment 5 on R. 5:1-2 (1996). In the leading case of Tevis v. Tevis, supra, 79 N.J. 422, this Court determined that "marital torts, as a class, are to be considered as related to, not `independent' of, divorce suits." Bruce D. Greenberg & Gary K. Wolinetz, The Right to a Civil Jury Trial in New Jersey, 47 Rutgers L. Rev. 1461, 1481 (1995) [hereinafter Greenberg &
Wolinetz]. In Tevis, the parties divorced in May 1975 and the
former wife instituted a tort action against her ex-husband six
weeks later to recover damages for physical abuse that occurred
in May 1973. 79 N.J. at 425. Reasoning that the circumstances
of the marital tort and its potential for money damages were
relevant to the Chancery Division's dissolution proceeding, the
Court held that the plaintiff's
claim should not have been held in abeyance;
it should, under the "single controversy"
doctrine, have been presented in conjunction
with [the divorce] 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.
Even the conflicting cases of Davis, supra, 182 N.J. Super at
398, and Tweedley, supra, 277 N.J. Super. at 248-49, both rely on
Tevis for the proposition that a spouse must bring a tort action
arising out of the marital relationship as part of the divorce
complaint being heard in the Chancery Division.
Despite its policy of joinder of claims, the boundaries of
the entire controversy doctrine are not limitless. Mystic Isle,
supra, 142 N.J. at 323. It remains an equitable doctrine whose
application is left to judicial discretion based on the factual
circumstances of individual cases. Ibid. Brown, supra,
208 N.J.
Super. 372, provides an example of a case in which an evaluation
of the causes of action led the court to conclude that preclusion
of the plaintiff's tort claim was not warranted. In that case,
the plaintiff filed her divorce complaint in March 1981. In
September 1981, while the divorce action was pending, the
plaintiff was physically assaulted by her husband. Because the
plaintiff's divorce attorney learned of the assault one month
before the divorce action was scheduled for trial, he declined to
incorporate the tort claim into her pending dissolution action.
Consequently, the plaintiff waited and filed suit when her
divorce became final. Id. at 376. Although the Appellate
Division concluded that the entire controversy doctrine
ordinarily requires joinder of related claims arising while the
divorce action is pending, the court made an exception because
equitable considerations rendered application of the doctrine
unfair. Id. at 374.
No comparable basis for relaxing the application of the
entire controversy doctrine exists in this case. Unlike that of
the plaintiff in Brown, the assault underlying Brennan's personal
injury claim occurred before she filed for divorce. The tort
arose out of her marital relationship. In addition, the tort
complaint alleges many of the same factual circumstances as the
divorce complaint that plaintiff had filed two weeks earlier.
Thus, joinder under the entire controversy doctrine is
appropriate in this case.
That the several claims between the parties should be tried in the same action does not resolve the question of whether they should be tried by a judge or jury. The right to trial by jury
in New Jersey must arise either by statute or under the New
Jersey Constitution. Shaner v. Horizon Bancorp.,
116 N.J. 433,
435-36 (1989). No statute requires the jury trial of marital
tort claims. Article 1, Paragraph 9 of the 1947 New Jersey
Constitution provides that "[t]he right of trial by jury shall
remain inviolate." N.J. Const., art. 1, ¶ 9. In interpreting
that language, the Court has stated that the constitutional
provision does not enlarge the scope of the right to a jury
trial; "it merely precludes its attrition by either the
Legislature or the courts." Steiner v. Stein,
2 N.J. 367, 379
(1949). That the constitutional provision affording litigants
the right of trial by jury did not extend to equitable actions in
Chancery has long been understood. Lyn-Anna Properties v.
Harborview Dev. Corp., ___ N.J. ___ (1996) (slip op. at 10). In
New Jersey, since colonial times, jurisdiction to grant divorces
has been vested in courts of chancery. Wigder v. Wigder,
14 N.J.
Misc. 880, 882 (Ch. 1936).
To determine whether a litigant is entitled to a jury trial,
a court ordinarily examines the historical basis of the cause of
action to ascertain whether a right to a jury trial existed at
common law at the time the Constitution was adopted. Shaner,
supra, 116 N.J. at 447; State v. Anderson,
127 N.J. 191, 207
(1992). We need not debate the social philosophy and
circumstances of history that led the common law to conclude that
husband and wife were viewed as one, a concept that would have
made a marital tort unknown to the early law.See footnote 1 In Lyn-Anna,
supra, ___ N.J. ___, also decided today, we examine the
development of the constitutional right to trial by jury in each
of the New Jersey Constitutions of 1776, 1844, and 1947. It is
not just the residue of history that decides constitutional
entitlement but the ideals of a modern system of justice. Id. at
___ (slip op. at 20-21) (quoting IV Proceedings of the New Jersey
Constitutional Convention of 1947 109). One of the linchpins of
a modern system of justice is the requirement that a single court
have the authority to decide all matters in controversy between
parties. We have no doubt that an assault by one person upon
another is a familiar common-law tort. The question is whether a
single court should have jurisdiction to try the claim with other
claims before that court.
Tevis, supra,
79 N.J. 422, required parties to join marital
tort claims to dissolution proceedings pending in the Chancery
Division, Family Part. The Court did not, however, decide
whether or not claimants are entitled to try their tort claims
before a jury. To resolve that question, a court must determine
if the tort claims are ancillary and incidental to the underlying
divorce action. See Steiner, supra,
2 N.J. 367; Fleischer v.
James Drug Stores,
1 N.J. 138 (1948); Mantell v. Int'l Plastic
Harmonica Corp.,
141 N.J. Eq. 379 (E. & A. 1947). In Lyn-Anna
Properties, supra, we review in detail the history of the
constitutional provision and the doctrine of ancillary
jurisdiction.
Under the doctrine, once the Chancery Division asserts
jurisdiction over a complaint seeking equitable relief, it has
the power to dispose of ancillary legal claims and award money
damages. Mantell, supra, 141 N.J. Eq. at 393. Legal issues are
ancillary if they are "germane to or grow out of the subject
matter of the equitable jurisdiction." Fleischer, supra, 1 N.J.
at 150. Following the adoption of the 1947 New Jersey
Constitution, this Court made clear that pursuant to the doctrine
of ancillary jurisdiction, a Chancery Court could properly
adjudicate an ancillary legal claim without providing the
complainant with a jury trial. See Ebling Brewing Co. v.
Heirloom, Inc.,
1 N.J. 71, 76 (1948); Fleischer, supra, 1 N.J. at
150. While Chancery Courts continue to adjudicate ancillary
legal claims without a jury, few cases have addressed that issue
in the context of a tort claim arising from an incident of
domestic violence.
Two years after Tevis was decided, a subcommittee of the
Supreme Court Committee on Matrimonial Litigation was formed to
study the jury trial issue more closely. The Subcommittee
prepared a report that outlined the doctrine of ancillary
equitable jurisdiction and noted its impact on a Chancery Court's
ability to resolve ancillary legal issues without a jury. See
Supreme Court Subcommittee on Matrimonial Practice, Tevis v.
Tevis: Does the Right to a Jury Trial Exist for the "Marital
Tort"? [hereinafter Subcommittee Report]. After analyzing
whether a marital tort action is "germane to or grows out of" the
subject matter of a matrimonial proceeding, the report concluded,
"[I]t would appear that a court would be justified in denying the
right to a jury trial in the Tevis situation." Id. at 8. The
Subcommittee reasoned that because a tort action involves an
award of damages from one spouse to the other, that claim, like
the divorce action, "is a division of assets type matter." Id.
at 6-7. In addition, it noted that where, as in the case at bar,
the matrimonial action "is one sounding in extreme cruelty, the
same issues would be tried in the divorce action and the tort
action." Id. at 6.
After reviewing the Subcommittee Report, the full Supreme
Court Committee on Matrimonial Litigation concluded:
Since the marital tort damage claim is so
closely related to the subject matter of
equitable distribution, it passes the test of
"incidental and ancillary." Thus, it appears
not to require a jury trial.
Recommendations
. . . As a matter of judicial
administration, no jury trial for a
marital tort should be provided in an
action for divorce.
[Supreme Court Committee on Matrimonial
Litigation, Phase Two Final Report, June 10,
1981, at 79.]
In December 1995, the Supreme Court Family Practice Committee appointed a Jury Trial Subcommittee to revisit the
issue of how the Family Part should adjudicate ancillary legal
claims that are joined in Chancery actions pursuant to this
Court's decision in Tevis. That Subcommittee's recommendations
are soon to be published and are consistent with those of the
1981 Committee on Matrimonial Litigation.See footnote 2 The Subcommittee
concluded that "[a] litigant who files a marital tort as part of
a dissolution action should not be granted a trial by jury."
Jury Trial Subcommittee on Family Practice, Report Concerning
Jury Trials When a Marital Tort is Joined in a Dissolution Action
at 2 (1996) [hereinafter Jury Trial Report].
As noted earlier, Davis, supra,
182 N.J. Super. 397, is one
of the two conflicting Chancery Division cases that has
confronted the question of how to litigate a tort claim that is
ancillary to the underlying equitable action for divorce. In
Davis, the court relied on the recommendation of the 1981
Committee on Matrimonial Litigation to reach the conclusion that
the marital tort claim was ancillary and incidental to
plaintiff's divorce action, which was considered the main dispute
between the parties. Id. at 399. Based on that finding, the
court denied plaintiff's request for a jury trial. Ibid. That
result was later approved by the Appellate Division in Chiacchio
v. Chiacchio.
198 N.J. Super. 1, 6 (1984) (endorsing rationale
in Davis, but holding that defendant's claim of indemnity against
homeowner's insurer for plaintiff's tort claim should be
transferred to Law Division and heard by jury because it did not
arise out of marital relationship that gave rise to plaintiff's
divorce and tort actions).See footnote 3
The principal case supporting plaintiff's argument that a
marital tort victim should be entitled to a jury trial on her
personal injury claim even if it is joined to an equitable claim
for divorce under the entire controversy doctrine is Tweedley,
supra,
277 N.J. Super. 246. In that case, the husband filed an
action for divorce on the grounds of extreme cruelty. The wife
counterclaimed, seeking a divorce on the same grounds, and also
alleging tort claims for physical assault, mental cruelty and
emotional distress, for which she demanded a jury trial. Id. at
247-48. After reviewing judicial precedent on the issue, the
court granted Mrs. Tweedley's request for a jury trial on her
assault and emotional distress claims. The trial court concluded
that "it seems inherently unfair to deny a party a [jury trial]
right that would have been afforded but for marriage and,
unfortunately, divorce." Id. at 254.
Relying in large part on Tweedley, a divided Appellate
Division panel in Giovine, supra, held that certain marital tort
plaintiffs have a right to a jury trial when their claims are
joined to a matrimonial action pending in the Chancery Division.
284 N.J. Super. at 27-28. Like plaintiff's claim in this case,
Giovine involved a woman who sued her husband for divorce and at
the same time asserted claims for a variety of domestic torts.
The trial court denied the plaintiff's request for a jury trial
on her tort claims but the Appellate Division reversed and
remanded. The appellate court rejected the reasoning in Davis
and the 1981 Subcommittee Report, finding the analysis in
Tweedley more persuasive. Ibid. A majority of the court stated
that it would be unreasonable to afford a jury trial to a tort
claimant who is not suing for divorce, while denying such a right
to an injured spouse who seeks a divorce in the same action. Id.
at 28. Although it recognized a jury trial right, the majority
limited that right to certain types of injuries. In so doing, it
established the test for determining whether a tort plaintiff is
entitled to a jury trial that the Appellate Division adopted
below in its August 3rd Order.
[I]n order to qualify for a jury trial, the
claimant must establish by written expert
opinion that proofs will be introduced at
trial demonstrating that the injury is
serious and significant, resulting in
permanent physical or psychological injury,
to be defined and developed on a case-by-case
approach. Alternatively, a plaintiff must
establish that the nature of the injury,
whether physical or psychological, requires
complex medical evidence.
The dissent relied on the standard for ancillary equitable
jurisdiction that was enunciated in Fleischer, supra, and has
found continued support in cases like Apollo, supra, and
Boardwalk Properties, Inc. v. BPHC Acquisition, Inc.,
253 N.J.
Super. 515 (App. Div. 1991). Thus, it concluded that the trial
court was correct to find that plaintiff's personal injury claims
were ancillary and incidental to the matrimonial aspects of her
complaint.
Indeed, the only specific factual allegations
set forth in the tort counts of plaintiff's
complaint that are not also set forth in the
divorce counts relate to the alleged March
1972 assault and battery. Therefore,
plaintiff's tort claims are "germane to [and]
grow out of the subject-matter" of her
equitable complaint for divorce.
[Giovine, supra, 284 N.J. Super. at 42
(Skillman, J., dissenting) (quoting
Fleischer, supra, 1 N.J. at 150).]
In their article The Right to a Civil Jury Trial in New Jersey, supra, 47 Rutgers L. Rev. 1461, Bruce Greenberg and Gary Wolinetz question the approach of the Giovine majority (which was adopted by the Appellate Division in this case). Greenberg and Wolinetz contend that the holdings in Tweedley and Giovine are inconsistent with this Court's decision in Tevis, supra. Although Tevis did not address directly the issue of jury trials, it held that "marital torts, as a class, are to be considered as
related to, not `independent' of, divorce suits." Greenberg and
Wolinetz, supra,
47 Rutgers L. Rev. at 1481. Greenberg and
Wolinetz explained, "It is difficult to see, however, how marital
tort claims could be considered so integral to the divorce action
that they must be brought in that divorce case, while
simultaneously being `independent' of the divorce so that a jury
trial is appropriate." Id. at 1481 n.105.
Greenberg and Wolinetz then identified the flaw in the legal
reasoning of the Giovine majority.
In addition to overlooking the effect of
Tevis on jury trial rights, the Giovine
majority replaced the legal/equitable basis
for the jury trial decision with a
serious/non-serious injury criterion that
finds no basis in the New Jersey
Constitution, New Jersey Court Rules, or case
law.
They predicted that "[w]hile that decision has appeal, based on
the unhappy facts of marital torts, the New Jersey Supreme Court
will have to, at a minimum, revise Tevis if it is to uphold the
ruling of Giovine." Ibid.
We agree that the distinction between serious and non-serious injuries does not find support in New Jersey constitutional doctrine. In another sense, we believe that there is no such thing as an act of domestic violence that is not serious. Every action of recent Legislatures has been intended
to underscore the serious nature of the domestic violence problem
in our society. Consider some recent findings.
A 1992 congressional report indicated that the most
dangerous place in the United States for a woman to be is in her
home. Linda L. Ammons, Discretionary Justice: A Legal and
Policy Analysis of a Governor's Use of the Clemency Power in the
Cases of Incarcerated Battered Women, 3 J.L. & Pol'y, 1, 5 (1994)
[hereinafter Ammons]. In Planned Parenthood v. Casey,
505 U.S. 833, 891,
112 S. Ct. 2791, 2828,
120 L. Ed.2d 674, 724 (1992),
the United States Supreme Court observed that "on an average day
in the United States, nearly 11,000 women are severely assaulted
by their male partners." Stated another way, according to the
National Coalition Against Domestic Violence, "every fifteen
seconds a woman in America is abused, and each day at least four
women are killed by their batterers." Ammons, supra, 3 J.L. &
Pol'y at 6. Other studies show that "up to 80" of wives suing
for divorce cite physical abuse by their husbands and nearly 50" of all homeless women and children report facing domestic
violence at some point." Ibid. The problem of domestic violence
has become so pervasive that scholars now repeatedly refer to it
as an "epidemic." E.g., id. at 5; Edward S. Snyder, Remedies for
Domestic Violence: A Continuing Challenge, 12 J. Am. Acad.
Matrim. Law 335, 336 (1994); Katherine Hancock Ragsdale, The Role
of Religious Institutions in Responding to the Domestic Violence
Crisis,
58 Alb. L. Rev. 1149, 1163 (1995).
The epidemic is particularly acute among
poor women, whose families must cope with the
stress of extreme poverty as well as other
factors that contribute to violence. In
Washington, the only state to collect this
information, 60" of women on public
assistance reported sexual and physical abuse
as adults, usually by a spouse or boyfriend.
[Martha F. Davis & Susan J. Kraham,
Protecting Women's Welfare in the Face of
Violence,
22 Fordham Urb. L.J. 1141, 1145
(1995).]
This case demonstrates, however, that the domestic violence
epidemic cuts across socio-economic lines and is not simply
restricted to the poor or uneducated. Just last term, in a
disciplinary case brought against an attorney who was convicted
of assaulting his girlfriend, this Court noted that "[t]he
national spotlight is focused on domestic violence. Between
three and four million women each year are battered by husbands,
partners, and boyfriends." In re Magid,
139 N.J. 449, 453 (1995)
(citing Domestic Violence: Not Just A Family Matter: Hearing
Before the Subcomm. on Crime and Criminal Justice of the House
Comm. on the Judiciary, 103d Cong., 2d Sess. (June 30, 1994)
(statement of Sen. Joseph Biden, Jr.)).
In 1994, Congress reacted to this national epidemic.
Violence Against Women Act of 1994, Pub. L. No. 103-322,
108 Stat. 1796 (codified in scattered sections of 16 U.S.C., 18
U.S.C., 28 U.S.C. and 42 U.S.C.). New Jersey has been in the
forefront of states that have sought to curb domestic violence.
In 1991, the Legislature re-wrote New Jersey's Prevention of
Domestic Violence Act. N.J.S.A. 2C:25-17 to -33.
The New Jersey statute enumerates the most
comprehensive protection for abuse victims.
In addition to offering financial support for
petitioner and her children, which is
typically available in civil protection order
proceedings, it specifically authorizes the
payment of punitive damages and compensation
for pain and suffering.
[Catherine F. Klein & Leslye E. Orloff,
Providing Legal Protection for Battered
Women: An Analysis of State Statutes and
Case Law,
21 Hofstra L. Rev. 801, 994
(1993).]
In short, New Jersey has evidenced a profound interest in
combatting the domestic violence epidemic.
In State v. Kelly,
97 N.J. 178, 190-91 n.2 (1984), the Court
said:
In enacting [its first] Prevention of
Domestic Violence Act, the New Jersey
Legislature recognized the pervasiveness and
seriousness of domestic violence:
The Legislature finds and declares
that domestic violence is a serious
crime against society; that there are
thousands of persons in this State who
are regularly beaten, tortured and in
some cases even killed by their spouses
or cohabitants; that a significant
number of women who are assaulted are
pregnant; that victims of domestic
violence come from all societal and
economic backgrounds and ethnic groups;
that there is a positive correlation
between spouse abuse and child abuse;
and that children, even when they are
not themselves physically assaulted,
suffer deep and lasting emotional
effects from exposure to domestic
violence. It is therefore, the intent
of the Legislature to assure the victims
of domestic violence the maximum
protection from abuse the law can
provide. [N.J.S.A. 2C:25-2].
At the same time, a dominant theme of our law is the preservation of the family. In 1983, the Constitution of the
State of New Jersey was amended to create a family court. N.J.
Const. art. VI, § 3, ¶ 3. The idea of creating a separate court
to hear family-type matters has long been supported in New
Jersey.
The concept of a [family court that] would
handle virtually all family related disputes
has had the support of legislators, planners,
concerned citizens and others at least since
1947 when delegates to the Constitutional
Convention called for the establishment of a
family court. The New Jersey Family Court
Study Commission (1972), the Supreme Court
Committee on Juvenile and Domestic Relations
Courts (late 1970's), the Committee on
Matrimonial Litigation (Pashman II) (1981)
and the Preliminary Family Part Planning
Committee (Pashman III) (1982) all issued
reports calling for a family court.
[State Family Court Committee, Report of the
State Family Court Committee to the June 24,
1983 Judicial Conference (1983) at i.]
Coincident with that constitutional amendment was a major modification of practice to furnish that court with jurisdiction over subjects that chancery courts had not had before, including juvenile delinquency and certain forms of criminal conduct, such as interference with custody. The overriding notion was that this court would specialize in and uniquely understand the problems of families and all matters related thereto. The goal was to achieve a sounder and better form of justice. Plaintiff argues that if she were not married to defendant she would have been able to sue him for assault in a law court and obtain a jury trial. She posits the anomaly that an unmarried victim of abuse would have reparation rights that she does not. That is not true. The jurisdiction of the Family Part of the Superior Court
extends to "[a]ll civil actions in which the principal claim is
unique to and arises out of a family or family-type
relationship." R. 5:1-2. Thus, cases involving unmarried
cohabitants may be adjudicated in the Family Part. Crowe v.
De Gioia,
102 N.J. 50, 56 (1986). Other aspects of the dispute
before us undoubtedly would have been heard in the Family Part.
Plaintiff's claim is like that of any other claimant, married or
not, that arises from a family-type relationship.
In every family court action, whatever the relationship
among the adults, when the interests of children are at stake a
paramount concern of courts remains the best interests of the
children. See In re L.A.S.,
134 N.J. 127, 134 (1993). The
children of a marriage do not themselves demand a trial by jury.
They may, however, be affected by the outcome or a delay in the
resolution of the controversy. Hence, we believe that a major
factor 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." Tevis, supra, 79 N.J. at 434. "[I]n order to lay
at rest all their legal differences in one proceeding and avoid
the prolongation and fractionalization of litigation," ibid., the
Family Part should retain jurisdiction over the matter and try
that 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 or ancillary
jurisdiction.
On the other hand, 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. Should the court so decide,
the next question is where should the trial take place. We
believe that that decision should rest within the sound
discretion of the Family Part judge. The Family Part judge will
have managed the case from its inception to the date of trial.
The Family Part judge can coordinate discovery that will bear on
the economic needs of the battered partner as well as the assets
of the other partner, and utilize that information to assess the
fair measure of any punitive damages claimed.
We readily acknowledge, however, the difficulty of
empaneling juries in the Family Part to decide the marital tort.
Courtrooms designed for supervised visitation or for mediation of
family matters are not easily adaptable for jury trials. In
addition, the work day of the judge requires ever-present
readiness to clear the courtroom to attend to the many emergent
matters that arise in the Family Part, as in juvenile matters and
the enforcement of the Prevention of Domestic Violence Act. See
N.J.S.A. 2C:25-28. Juries cannot be shuffled in and out without
inconvenience to them or to the interests of justice. In smaller
counties, the work of the Family Part judge would be effectively
shut off if she were working with a jury.
Consequently, when Family Part judges exercise their
discretion to have marital torts tried separately, they may order
that the marital tort action be severed and the tort claims
transferred to the Law Division for trial in accordance with the
regular Civil Division procedures. See R. 5:1-2(c) (providing
for transfer of criminal action to Law Division pursuant to R.
3:1-5(b) when defendant is entitled to and demands a jury trial).
We note, but do not decide, that, unlike claimants in the Family
Part, a plaintiff in the Law Division may not be entitled to
recover attorney's fees.
We are unable to assess on this record 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. For example, if issues of alimony
depend on the availability of income and the tort judgment
depletes income-producing assets of one spouse, how will the
effect of that depletion be addressed in the Family Part? As
noted, this case may present a deceptive ease of administration
because of the nature of the underlying marital dissolution
action.
The recent report of the Jury Trial Subcommittee recommends
that if there is to be a jury trial, the tort claims should be
tried prior to the dissolution action. That approach would
enable the Family Part judge to consider the tort award when
rendering its decision concerning equitable distribution, child
support, spousal support and the parties' method of payment.
Jury Trial Report, supra, at 40. Family Part judges are
authorized to make interim economic and custody determinations
while the tort action is pending. Id. at 34-35. The report
reasons that resolving the divorce action first might lead to an
increase in Lepis applications because parties against whom a
tort judgment is entered would seek to reopen their economic
divorce settlements based on a change of circumstances. Id. at
37 (citing Lepis v. Lepis,
83 N.J. 139 (1980)).
The report itself acknowledges drawbacks to that approach.
For example, the delay in resolving the divorce proceeding may
have a negative psychological impact on parties by prolonging the
uncertainty of their marital status. Id. at 41. One commentator
has noted that a jury hearing the tort action "cannot assess a
defendant's assets properly to determine punitive damages without
knowledge of the defendant's financial position. Yet until
equitable distribution has been made, the tortfeasor's net worth
is an open question." David M. Wildstein, The Application of the
Entire Controversy Doctrine to Family Part Actions,
16 N.J. Fam.
Law. 69, 77 (1996). We may need to re-evaluate those procedural
questions in light of case-by-case experience.
We are certain of one thing: most matters will benefit from
single-case management by the judge of the Family Part. All
issues, including the marital tort, should be submitted to the
available processes of mediation and non-binding arbitration.
Failing resolution of all issues, that court should decide
whether, on balance, the interests in vindicating the marital
tort outweigh the interests of a unitary disposition of the
family dispute and warrant a jury trial. This would be
consistent with the Legislature's intent "to assure the victims
of domestic violence the maximum protection from abuse the law
can provide." N.J.S.A. 2C:25-18. Obviously, the court will
consider in its assessment of the interests, the nature and
extent of the violence inflicted on the spouse, be it mental or
physical. After all, "these disputes are not private wars. Acts
of domestic violence are often crimes. The public has an
interest, wholly apart from that of litigants, in the fair and
effective resolution of these cases." A.B. v. L.M.,
289 N.J.
Super. 125, 131 (App. Div. 1996). Trial by jury, for reasons
rooted in our history and tradition, is a special repository of
public confidence that our laws will be vindicated. State v.
Dunne,
124 N.J. 303, 319 (1991).
We recognize that this disposition adds but another care to
judges already heavily burdened. The Legislature has reposed
grave responsibilities on Family Part judges to ensure the safety
and well-being of women and children in our society. See
N.J.S.A. 2C:25-17 to -33 (Prevention of Domestic Violence Act of
1991); N.J.S.A. 30:4C-15.1 (termination of parental rights). But
the Family Part judges are the successors of those "courts of
conscience," Shaw v. G.B. Beaumont Co.,
88 N.J. Eq. 333, 336 (E.
& A. 1917), that have always administered justice to the citizens
of New Jersey. We are confident that they can successfully
balance the interests of society in deterring the evils of
domestic violence and caring for families. Our system entrusts
those judges to decide the most profound issues affecting our
society, which of two often worthy parents shall receive custody
of a child, Pascale v. Pascale,
140 N.J. 583 (1995), and
sometimes that neither parent may retain custody of a child and
that parental rights must be terminated. In re L.A.S., supra,
134 N.J. 127. In fact, pursuant to the Prevention of Domestic
Violence Act, the Legislature has authorized Family Part judges
to award civil and punitive damages to the victims of domestic
violence. N.J.S.A. 2C:25-29b(4). Judges who can make such
decisions can surely assess the monetary value of a tort and
whether the vindication of public policy against such tortious
conduct requires a jury trial in given circumstances. Brown,
supra,
208 N.J. Super. 372, illustrates the sound exercise of
discretion in recognizing the separability of a marital tort from
the dissolution action.
We do not believe that jury trial of appropriate cases will
place an undue burden on our courts. Our experience of jury
demands in the years since Tevis has not been great. "[T]he
family lawyer's role is one of the most important in ending
domestic violence." Roberta L. Valente, Addressing Domestic Violence: The Role of the Family Law Practitioner, 29 Fam. L.Q. 187, 193 (1995). The matrimonial bar is in the best position to assess in the first instance the interests of its clients. Family lawyers are experienced in knowing the special skills of Family Part judges to resolve, with dispatch and fairness, the entirety of a family dispute, including the Tevis claims. This case involves a marital dispute between two attorneys. In others, the lack of insurance coverage for intentional torts (unlike the available coverage for automobile negligence when Merenoff v. Merenoff, 76 N.J. 535 (1978), abolished inter-spousal immunity) may render the tort action an illusory remedy. In any case, the policy of the law remains the same. In enacting the Prevention of Domestic Violence Act, the Legislature recognized that "domestic violence is a serious crime against society" that affects people "from all social and economic backgrounds and ethnic groups." N.J.S.A. 2C:25-18. Consistent with the objectives underlying the Act, we should strive to afford citizens "the maximum protection from abuse the law can provide." Ibid. 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.
In this case, to end the dispute, we determine that a
sufficient divisibility among the claims exists to warrant a jury
trial of the tort claim. The Family Part judge shall retain
management of the entire case until she decides whether to try
the tort claim herself or transfer it to the Law Division. As
modified, the judgment of the Appellate Division is affirmed.
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.
SUPREME COURT OF NEW JERSEY
A-
95 September Term 1995
MARY BRENNAN,
Plaintiff-Respondent,
v.
JOSEPH S. ORBAN, JR.,
Defendant-Appellant.
MARY KATHRYN BRENNAN,
Plaintiff-Respondent,
v.
JOSEPH S. ORBAN, JR.,
Defendant-Appellant.
STEIN, J., concurring in part and dissenting in part.
I concur in the Court's judgment mandating a jury trial of
plaintiff's tort claim, and agree with much of the substantive
content of the Court's opinion. I find unacceptable, however,
the broad 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 her tort claim that is joined with a divorce
action. The Court holds that "[w]hen 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 should retain jurisdiction
over the matter and try that cause of action without a jury in
the same proceedings." Ante at ___ (slip op. at 21-22).
I disagree profoundly with that disposition, which vests
virtually standardless discretion in Family Part judges to deny
jury trials in marital tort claims. Under the Court's
formulation, the Family Part could deny a jury trial in virtually
every marital tort claim on the basis that the potential monetary
award by a jury necessarily is "intertwined" with issues of
alimony, child support and equitable distribution.
The Court's ruling may be pragmatic, on the assumption that
consolidating trial of the tort and divorce actions before the
Family Part judge will save time and judicial resources. But the
holding is wrong, because it ignores society's evolving
determination to stamp out domestic violence and to punish those
who perpetrate it, a determination emphatically endorsed by our
Legislature in enacting the "Prevention of Domestic Violence Act
of 1991," L. 1991, c. 261, N.J.S.A. 2C:25-17 to -33. Society's
growing recognition and understanding of the evils of domestic
violence compels a reciprocal response by the judiciary, one that
provides the fullest measure of vindication authorized by law to
compensate victims of domestic violence. To that end, I would
hold that all victims of marital torts who seek a jury trial are
entitled to have a jury trial, whether that marital tort claim is
or is not joined with a claim for divorce. I 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
Family Part judge may treat the tort claim as ancillary to the
divorce action and decide it without a jury.
The Court properly explains that the question whether the marital tort claim must be joined with the action for divorce does not resolve the issue of the tort plaintiff's entitlement to a jury trial. Ante at ___ (slip op. at 8). In Tevis v. Tevis, 79 N.J. 422 (1979), the Court ruled that a wife's claim for damages, arising from a beating inflicted by her husband and filed more than two years after the assault, was barred by the statute of limitations, id. at 434, observing in dictum that under the claim joinder requirements of the entire controversy doctrine the marital tort claim should have been joined in the prior divorce action between the parties "in order to lay at rest all their legal differences in one proceeding and avoid the . . . fractionalization of litigation." Ibid. Some states hold that divorce actions and marital tort claims are "separate and independent causes of action that do not have to be joined in a single proceeding." Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24 Fam. L. Q. 127, 130 (1990); see, e.g., Simmons v. Simmons, 773 P.2d 602, 604-05 (Col. Ct. App. 1988); Heacock v. Heacock, 520 N.E.2d 151, 153 (Mass. 1988);
Walther v. Walther,
709 P.2d 387, 388 (Utah 1985). I agree with
the Court's apparent conclusion that joinder of the marital tort
claim with the divorce proceeding ordinarily should be required.
Even spouses engaged in an adversarial divorce proceeding have an
interest in conducting candid settlement negotiations or in
resolving in a single proceeding all of their outstanding
disputes. Those considerations support the wisdom of requiring
that the marital tort claim and the divorce action be joined in a
single proceeding.
The Court holds that the doctrine of ancillary jurisdiction
authorizes the Family Part, in its discretion, to adjudicate the
marital tort without a jury in those cases in which the court
concludes that the tort claim may be "intertwined" with issues of
child support, alimony, and equitable distribution. Ante at ___
(slip op. at 21-22). The marital tort claim, if successfully
litigated, will inevitably have some impact on the tortfeasor's
financial status and, on that basis, may affect and be
"intertwined" with the Family Part's resolution of issues
directly related to the financial condition of the parties,
including alimony, child support, and equitable distribution.
Under the Court's discretionary standard, Family Part judges
would be required to permit jury trials in relatively few marital
tort cases joined with divorce actions.
Article I, Paragraph 9 of the 1947 Constitution preserves
the common law right of trial by jury: "The right of a trial by
jury shall remain inviolate." Our Court has interpreted that
provision, consistent with its plain meaning, as ensuring that
"[w]here the right to a trial by jury existed under the
Constitution of 1844, the right continues unimpaired under the
new Constitution." Steiner v. Stein,
2 N.J. 367, 378-79 (1949).
At common law, tort claims were among the category of legal
actions entitled to the right of trial by jury. See Kenney v.
Scientific, Inc.,
213 N.J. Super. 372, 374-75 (App. Div. 1986).
Thus, unless the marital tort claim is "ancillary" to the action
for divorce, plaintiffs asserting such claims are entitled to a
jury trial.
The Court strains the ancillary jurisdiction doctrine when
it holds that marital tort claims generally may be regarded as
ancillary to actions for divorce. We have recognized that legal
claims are "ancillary" to claims for equitable relief if they are
"germane to or grow out of the subject matter of the equitable
jurisdiction," Fleischer v. James Drug Stores, Inc.,
1 N.J. 138,
150 (1948), and that equity courts can deal with legal i