(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).
Argued September 22, 1997 -- Decided February 5, 1998
GARIBALDI, J., writing for a majority of the Court.
The primary issue in this appeal is whether the Supreme Court should create an exception to the entire
controversy doctrine for custody actions.
This action arises from a tumultuous eight-year relationship between Beverly Oliver (Beverly) and Louis
Ambrose (Ambrose). Their relationship was characterized by cycles of separations and reconciliations. During their
periods of reconciliations, Beverly became pregnant on five occasions. She maintained that she had two abortions and
two miscarriages, all resulting from Ambrose's extreme physical abuse of her and his threats to kill her, should she
refuse to have an abortion. Beverly alleges that when she became pregnant a fifth time, this time refusing to have an
abortion, Ambrose again assaulted her. She maintained that she was forced to enter the hospital because these events
exacerbated her eating disorder.
During her hospital stay, Beverly terminated her relationship with Ambrose. Thereafter, she began dating her
current husband, Bruce Oliver. Beverly gave birth to her daughter in July l988. Later that month, she became engaged
to Bruce Oliver. She contends that, when she told Ambrose of the engagement, he threatened that she would have to
kill him to keep him away from her. Ambrose asserts that, during the weeks following Beverly's release from the
hospital, he made repeated unsuccessful attempts to visit his daughter.
On August 25, 1988, the day after she married Bruce Oliver, Beverly filed a harassment complaint against
Ambrose in Raritan Municipal Court. On October 4, 1988, Ambrose filed a verified Complaint against Beverly in the
Chancery Division, Family Part, seeking joint custody of their daughter, visitation, and a support determination. On
October 27, 1988, Bruce Oliver filed a Complaint seeking to adopt Beverly's daughter.
On October 31, 1988, Beverly filed a responding certification to Ambrose's application for custody and
visitation, detailing the abortions and the abusive behavior. Thereafter, in November l988, she filed an Answer to
Ambrose's Complaint in the custody action, which did not include any counterclaims or other affirmative claims.
Rather, Beverly asserted that the Complaint was frivolous and instituted for the sole purpose of continuing a course of
conduct of harassment and threats.
On Ambrose's motion, the trial court consolidated the municipal court harassment complaint with the custody
action, and stayed the adoption proceedings pending the outcome of the custody/harassment action. Thereafter, the
parties settled the custody and adoption matters, with Ambrose withdrawing his request for custody and consenting to
the adoption. The harassment complaint was dismissed.
Four months after that settlement, Bruce and Beverly Oliver instituted a tort suit against Ambrose, based on his
alleged abusive and violent behavior against Beverly between 1981 and 1988. Thereafter, the Olivers amended their
complaint to include a claim of false imprisonment. Almost three years after the filing of the original complaint,
Ambrose filed an Answer to the Amended Complaint in which he raised as a separate defense that the Olivers' claim
was barred by the entire controversy doctrine. Thereafter, Ambrose moved for summary judgment on the ground that
the tort claims should have been brought in the adoption/harassment action or as counterclaims in the custody action.
Ambrose further argued that the tort claims were barred by the applicable statute of limitations.
The trial court ultimately dismissed all of the Olivers' claims based on Ambrose's conduct prior to December
1987, as barred by the statute of limitations. It further held that the entire controversy doctrine barred all claims up
until August 4, 1989, the date the custody action was settled. The trial court concluded that Beverly intentionally
withheld her claim, knowing that she intended to file it later, because she wanted Ambrose to surrender his parental
rights and did not want to “upset the apple cart with another lawsuit.”
On appeal filed by the Olivers, a divided Appellate Division affirmed the dismissal on entire controversy
doctrine grounds, noting that the Olivers' tort claims were based on the same facts relevant to the custody/harassment
action and, therefore, should have been joined in that action. The dissenting panel member would have reversed the
trial court's dismissal as to the entire controversy doctrine, noting that joinder of the claims would have served no useful
purpose related to the efficient administration of justice and would detract from a determination of the best interests of
the child.
The Olivers appealed to the Supreme Court as of right. They did not file a petition for certification. Therefore,
the only issue before the Supreme Court was that raised in the Appellate Division dissent: whether the entire controversy
doctrine should apply to custody actions.
HELD: Custody actions are not exempt from the application of the entire controversy doctrine. Because the Olivers'
tort suit involves the same core set of facts that undergirded the custody, adoption, and harassment actions, the claims
should have been joined in the first proceeding.
1. The entire controversy doctrine, which requires the mandatory joinder of all claims to a single transaction, is so
deeply rooted in the administration of the judicial system that it was elevated to constitutional status. (pp. 10-11)
2. To sanction one party's holding in reserve his one available remedy for the purpose of attack in another suit would
be utterly destructive to the goals of the entire controversy doctrine. (pp. 11-12)
3. In applying the entire controversy doctrine, it is the core set of facts that provides the link between distinct claims
against the same parties and triggers the requirement that they be determined in one proceeding. (pp. 12-13)
4. The entire controversy doctrine applies to family actions. (pp. 13-14)
5. Although equitable considerations can relax the application of the entire controversy doctrine, the extent to which the
doctrine is relaxed depends on the facts of the case and the policy interests implicated. (pp. 15-17)
6. The tort suit instituted by the Olivers involves the same core set of facts that undergirded the custody, adoption, and
harassment actions. (pp. 17-20)
7. Any unfairness to the Olivers by application of the entire controversy doctrine is tempered by the fact that most of
their claims are barred by the applicable statute of limitations. (pp. 20-22)
8. It is the trial court's responsibility to determine whether or not joinder is appropriate in any given case. (p. 22)
9. The doctrine does not require that tort actions be actually litigated together with custody actions; rather, it mandates
that the parties must assert all claims they have against the other parties in one proceeding. (pp.22-23)
10. In applying the entire controversy doctrine, courts must consider whether mandatory joinder will promote the goal of
judicial economy and efficiency -- the avoidance of waste and delay. (pp. 24-25)
11. Although Ambrose's delay in raising the entire controversy doctrine as an affirmative defense did not promote the
doctrine's policy against inefficiency and waste of judicial resources, judicial economy is only one consideration, and such
concerns cannot override the doctrine's overall objective of fairness to litigants. (p. 25)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN filed a separate dissenting opinion expressing the view that Ambrose's lengthy delay in
asserting the application of the doctrine, in conjunction with the numerous equitable factors and/or the allegations of
extreme violence, militate against the severe remedy of preclusion of the Olivers' claims. Justice Stein viewed the
Court's disposition as a repudiation of its prior precedents.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN and COLEMAN join in
JUSTICE GARIBALDI's opinion. JUSTICE STEIN filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
33 September Term 1997
BEVERLY OLIVER and BRUCE
OLIVER,
Plaintiffs-Appellants,
v.
LOUIS AMBROSE,
Defendant-Respondent.
Argued September 22, 1997 -- Decided February 5, 1998
On appeal from the Superior Court, Appellate
Division.
Bonnie C. Frost argued the cause for
appellants (Einhorn, Harris, Ascher &
Barbarito, attorneys).
Robert Winters argued the cause for
respondent Louis Ambrose; William H. Mergner,
Jr., argued the cause for Allstate Insurance
Co.; and James M. Williamson argued the cause
for Cumberland Mutual Insurance Co. (Mr.
Winters, O'Toole & Couch and Kennedy &
Kennedy, attorneys for Louis Ambrose; Leary,
Bride, Tinker & Moran, attorneys for Allstate
Insurance Co.; and Methfessel & Werbel,
attorneys for Cumberland Mutual Insurance
Co.; Mr. Winters, Mr. Mergner, Mr.
Williamson, Andrew G. Toulas, and William V.
Kennedy, on the joint brief).
The opinion of the Court was delivered by
GARIBALDI, J.
In this appeal, we consider the application of the entire
controversy doctrine to the joinder of claims. The primary issue
is whether we should create an exception to that doctrine for
custody actions. Plaintiffs instituted a tort action against
defendant, which is based on the same alleged incidents of abuse
by defendant that comprised plaintiff's certification in a prior
custody action involving defendant. Specifically, therefore, the
question is whether the entire controversy doctrine bars the tort
action.
The trial court granted defendant's motion for summary
judgment, holding that plaintiffs' tort action was barred by the
entire controversy doctrine. The Appellate Division affirmed.
This appeal is before us as a result of a dissent in the
Appellate Division, R. 2:2-1, which claimed custody actions
should be exempt from the entire controversy doctrine. We hold
that the entire controversy doctrine applies to custody actions.
This action arises from a tumultuous eight-year relationship between Beverly Oliver (Beverly) and Louis Ambrose (Ambrose). Their relationship, which began in July 1981 and ended in January 1989, was characterized by cycles of separations and reconciliations. Beverly and Ambrose have varying accounts of what transpired during that period. They first met in January of
1980, when they were both employed in the accounting department
of AT&T. When they met, Beverly had recently been divorced, and
Ambrose was married and living with his wife and children.
On July 1, 1981, Beverly was involved in an automobile
accident, and was hospitalized. The trauma of the accident
exacerbated an eating disorder, from which she had suffered since
age 13. Thereafter, Ambrose visited Beverly in the hospital, and
their friendship evolved into an intimate relationship.
In October 1982, Beverly ended the relationship with
Ambrose, and developed a relationship with another man, Timmy.
In February or March 1983, Beverly and Ambrose resumed their
relationship. In April 1983, Beverly learned that she was
pregnant. Beverly contends that when she informed Ambrose of the
pregnancy, an argument followed because he wanted her to have an
abortion. Beverly claims that during the argument, Ambrose
slapped her in the face, pushed her against a wall, and choked
her.
A few days later, Ambrose drove Beverly to a clinic where
she had an abortion. Beverly contends that Ambrose forced her to
have the abortion to make her feel guilty about her relationship
with Timmy. She further testified that her eating disorder
worsened because she felt guilty about having the abortion.
In December 1983, Beverly became pregnant again. According
to Beverly, she had another abortion because Ambrose threatened
to kill her if she refused to do so. Thereafter, Beverly again
broke off their relationship.
In September 1984, Ambrose's wife filed for divorce, and
Ambrose and Beverly reconciled. In December 1984, Beverly became
pregnant once again. According to Beverly, when she refused to
have an abortion this time, a violent argument ensued during
which Ambrose attempted to run her over with his car, chased her
into the house while threatening to kill her, tied her to a
refrigerator, and threw her down the basement steps and locked
the basement door. Later that night, Beverly awoke and
discovered that she had miscarried.
Ambrose's version of the same events differs. He claims
that an argument occurred after her miscarriage and was unrelated
to the pregnancy. He also claims that when he attempted to drive
away, Beverly jumped on the hood of his car to prevent him from
leaving. Then, when he went to the basement to retrieve his
clothes, she followed him, so he ran upstairs and locked the
door. After this incident, Ambrose terminated the relationship,
but again the two reconciled.
In October 1985, Beverly again informed Ambrose that she was
pregnant. Beverly contends that when she informed him of her
pregnancy, Ambrose became violent, slammed her against a wall,
threw her down a flight of stairs, and kicked her as she lay at
the base of the staircase. Later that night she had another
miscarriage. Ambrose disputes this account, and claims that he
did not see Beverly until after she had had the miscarriage.
Thereafter, Beverly told Ambrose that he was not supportive and
that she wanted to end the relationship.
In May 1986, Ambrose's divorce became final, and Beverly and
Ambrose again reconciled. Subsequently, in January 1988, Beverly
informed Ambrose that she was pregnant for the fifth time.
According to Beverly, Ambrose demanded that she either have an
abortion or put the baby up for adoption. Beverly further
alleges that when she insisted on having the baby, Ambrose
assaulted her. According to Beverly, those events exacerbated
her eating disorder, causing her to be hospitalized on February
16, 1988. During her stay in the hospital, Beverly terminated
her relationship with Ambrose. She began dating another co-worker, Bruce Oliver.
Beverly gave birth to Melissa Rose on July 9, 1988, and on
July 24, 1988, she became engaged to marry Bruce Oliver. Beverly
contends that when she told Ambrose of the engagement, he
threatened that she would have to kill him to keep him away from
her. Ambrose asserts that during the weeks following Beverly's
release from the hospital, he made repeated unsuccessful attempts
to visit his daughter, Melissa.
On August 25, 1988, the day after her wedding to Bruce Oliver, Beverly filed a harassment complaint against Ambrose in Raritan Municipal Court. On October 4, 1988, Ambrose filed a Verified Complaint against Beverly in the Chancery Division, Family Part, seeking joint custody of Melissa, visitation, and a support determination. In his Verified Complaint, Ambrose asserted that Beverly refused to allow visitation. On October
27, 1988, Bruce Oliver filed a Complaint seeking to adopt
Melissa.
On October 31, 1988, Beverly filed a responding
certification to Ambrose's application for custody and
visitation. In the certification, Beverly detailed the abortions
and the abusive behavior. In part, Beverly stated:
4. During the course of our relationship I had 2
abortions and 2 miscarriages. . . . I never felt I had
a choice, it was either [Ambrose's] way or no way at
all. When I wouldn't consent to an abortion in
December 1984, [Ambrose] beat me and threw me down a
flight of steps causing me to have a miscarriage.
Looking back, I know that I was really afraid of
[Ambrose], he was abusing me both mentally and
physically. The trauma from my relationship with the
plaintiff exacerbated my eating disorder, known as
bulimia. . . .
5. During the past seven years, [Ambrose] has tied me
to a refrigerator, locked me in the basement, smacked
me across the face, and beat my arms until physical
bruises showed. . . . The traumatic emotional scars . .
. may never heal completely. . . .
6. In January 1988, when I told [him] I was pregnant.
. . . [h]e demanded that I have an abortion. . . . On
January 11, 1988 . . . we had a violent argument over
my decision to have the baby. . . .
7. The next time I heard from [Ambrose] was February
10, 1988. He came to my home in a rage and demanded
that I have an abortion. . . . From the stress of
these constant arguments with [Ambrose], I relapsed
into my bulimia again. . . .
9. . . . Since my child's birth, [Ambrose] has
continually harassed me through friends, family, at
work and on the phone. The course of harassment only
stopped when I signed a complaint against him in the
Raritan Borough Municipal Court for harassment. . . .
11. Indeed, I am afraid for Melissa's safety with [Ambrose]. After 7 years, I state to this Court that [Ambrose] is unpredictable - one moment he seems fine, the next minute he “snaps” and becomes physically abusive. I feel I must protect my daughter from this.
Indeed, it is my belief that the real motivation behind
this custody action is [Ambrose's] desire to get back
at me for ending the relationship. I am afraid that he
will try to get back at me through my child. . . .
On November 1, 1988, Beverly filed an Answer to Ambrose's
Complaint in the custody action. The Answer did not include any
counterclaims or other affirmative claims; however, Beverly
asserted that the “Complaint is frivolous and instituted for the
sole purpose of continuing a course of conduct of harassment and
threats made by [Ambrose] against [Beverly].”
In response to Ambrose's motion, the trial court
consolidated the municipal court harassment complaint with the
custody action, and stayed the adoption proceedings pending the
outcome of the custody/harassment action. Thereafter, the
parties settled the custody and adoption matters, with Ambrose
withdrawing his request for custody and consenting to the
adoption. The harassment complaint was dismissed.
Four months after that settlement, Bruce and Beverly Oliver instituted a tort suit against Ambrose, based on his alleged abusive and violent behavior against Beverly between 1981 and 1988. The Complaint alleged: assault and battery, intentional and negligent infliction of emotional distress, and loss of consortium for Bruce Oliver.
Ambrose then filed declaratory judgment actions against his homeowner's insurance carriers for coverage of plaintiffs' claims. In August 1990, the court consolidated the declaratory judgment actions with the tort action against Ambrose. In
September 1992, the Olivers amended their Complaint to include a
claim of false imprisonment. On October 5, 1992, Ambrose filed
an Answer to Amended Complaint in which he raised as a separate
defense that plaintiffs' claim was barred by the entire
controversy doctrine.
In September 1993, Ambrose and his insurers moved for
summary judgement on the ground that the tort claims should have
been brought in the adoption/harassment action or as
counterclaims in the custody action. Ambrose further argued that
the tort claims were barred by the applicable statute of
limitations. See N.J.S.A. 2A:14-2.
The trial court reserved on the entire controversy doctrine
issue, but ordered a plenary “Lopez” hearing, pursuant to
N.J.S.A. 2A:14-2, to determine when the statute of limitations
began to run. During the eleven-day Lopez hearing, the court
heard testimony from Ambrose, Beverly, and from the parties'
experts on Beverly's state of mind. Because the trial court
found that Beverly failed to show that she was incompetent or
otherwise incapable of bringing suit during that period, the
court concluded that the statute of limitations barred all claims
that were not instituted within two years from their occurrence.
Thus, all claims based on Ambrose's conduct prior to December 26,
1987 were barred.
The court further held that the entire controversy doctrine
barred all claims up until August 4, 1989, the date the custody
action was settled. The court concluded that “there was an
intentional withholding of the claim by [Beverly] knowing that
she intended to file it later.” Furthermore, “[s]he wanted him
to voluntarily surrender any rights to Melissa so that she and
Mr. Oliver could raise her as their own, which she succeeded in,
and she did not want to upset the apple cart with another
lawsuit.”
The Olivers appealed. In an unpublished opinion, a divided
Appellate Division affirmed the dismissal on entire controversy
doctrine grounds. In affirming, the majority reasoned that the
entire controversy doctrine “requires that a party who has
elected to hold back from an initial lawsuit a related component
of the controversy be barred from thereafter raising it in a
subsequent proceeding.” The court further noted that, in
applying the entire controversy doctrine, “the central
consideration is whether the claims arise from related facts of
the same transaction or series of transactions.” The majority,
therefore, concluded that since the Olivers' tort claims were
based on the same facts relevant to the custody/harassment
action, the claims should have been joined in that action.
This appeal is before us as a result of Judge Shebell's
dissent, which reads in its entirety:
I would not subscribe to a rule that requires
a parent to join a claim for assault in an
action to determine custody. It serves no
purpose related to the efficient
administration of justice and would detract
from a determination of the best interests of
the child. I would reverse as to the
application of the entire controversy
doctrine.
The Olivers appealed to this Court under Rule 2:2-1. They
did not file a petition for certification. Accordingly, the only
issue before this Court is the issue raised in Judge Shebell's
dissent: whether the entire controversy doctrine should apply to
custody actions.
We affirm the judgment of the Appellate Division, and hold
that custody actions are not exempt from the application of the
entire controversy doctrine.
For over sixty years, it has been established in New Jersey that the entire controversy doctrine requires the mandatory joinder of all claims to a single transaction. The doctrine, which originated as an equitable common law procedural rule, see, e.g., Smith v. Red Top Taxicab Corp., 111 N.J.L. 439, 440-441 (E. & A. 1933) (“No principle of law is more firmly established than that a single or entire cause of action cannot be subdivided into several claims, and separate actions maintained thereon”), is “so deeply rooted in the administration of the judicial system” that it was elevated to constitutional status. Prevratil v. Mohr, 145 N.J. 180, 187 (1996).
Indeed, Justice Brennan, writing for this Court, recognized that the design and purposes of some of the procedural reforms introduced by the Judicial Article of the 1947 Constitution and the implementing rules of court, were
for the just and expeditious determination in a single action of the ultimate merits of an entire controversy
between litigants. It is a fundamental objective of
this procedural reform to avoid the delays and wasteful
expense of the multiplicity of litigation which results
from splitting of a controversy.
[Ajamian v. Schlanger,
14 N.J. 483, 485, cert. denied,
348 U.S. 835,
75 S.Ct. 58,
99 L.Ed. 659 (1954).]
In Cogdell v. Hospital Center at Orange,
116 N.J. 7, 15 (1989)
(citing 2 State of New Jersey Constitutional Convention of 1947,
Committee on the Judiciary Report § 11(J) at 1187 (1947)), we
observed that “the purposes of the doctrine include the needs of
economy and the avoidance of waste, efficiency and the reduction
of delay, fairness to parties, and the need for complete and
final disposition through the avoidance of 'piecemeal
decisions.'” See also Falcone v. Middlesex County Medical Soc'y,
47 N.J. 92, 94 (1966) (“The piecemeal litigation of fragments of
a single controversy is too evident an evil to remain unchecked
. . . .”)(quoting Silverstein v. Abco Vending Serv.,
37 N.J.
Super. 439, 449 (App. Div. l955)); Vacca v. Stika,
21 N.J. 471,
476 (1956) (broadening the doctrine by requiring representative
parties to assert counterclaims in one suit because otherwise a
single action would be nothing more than “the trigger which . . .
would start the chain reaction of other litigation.”); Pressler,
Current N.J. Court Rules, comment 2 on R. 4:30A(2)(1998) (citing
additional joinder of claims entire controversy cases).
In the interest of fairness and judicial efficiency, “to
sanction [one party's] holding in reserve his one available
remedy for the purpose of attack in another suit, would be
utterly destructive” to the goals of the entire controversy
doctrine. Prevratil, supra, 145 N.J. at 188-89 (quoting Ajamian,
supra, 14 N.J. at 489). Likewise, the Appellate Division has
determined that the entire controversy doctrine requires “a party
who has elected to hold back from the first proceeding a related
component of the controversy be barred from thereafter raising it
in a subsequent proceeding.” Wm. Blanchard Co. v. Beach Concrete
Co.,
150 N.J. Super. 277, 292-93 (1977); see also Mortgagelinq
Corp. v. Commonwealth Land Title,
142 N.J. 336, 338 (1995)
(stating in context of party joinder that if a party deliberately
chooses to fragment litigation court need not entertain claim
against those parties omitted from prior litigation).
Consistent with these goals, Rule 4:30A provides a mechanism
to prevent fragmentation of litigation. That Rule states that
the “[n]on-joinder of claims or parties required to be joined by
the entire controversy doctrine shall result in the preclusion of
the omitted claims to the extent required by the entire
controversy doctrine, except as otherwise provided by
. . . R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary action).”
The entire controversy doctrine encompasses “virtually all
causes, claims, and defenses relating to a controversy.” Cogdell,
supra, 116 N.J. at 16. “At a minimum, all parties to a suit
should assert all affirmative claims and defenses arising out of
the underlying controversy.” Prevratil, supra, 145 N.J. at 187
(quoting Cogdell, supra, 116 N.J. at 15). Under Cogdell, supra,
116 N.J. at 15, the doctrine also includes counterclaims and
cross-claims. See Ajamian, supra, 14 N.J. at 487-89; see also R.
4:7-5; R. 4:27-1(b). In applying the doctrine, “[i]t is the core
set of facts that provides the link between distinct claims
against the same parties . . . and triggers the requirement that
they be determined in one proceeding.” DiTrolio v. Antiles,
142 N.J. 253, 267-68 (1995).
The entire controversy doctrine applies to family actions. See Brennan v. Orban, 145 N.J. 282, 290-91 (1996) (requiring joinder of a personal injury claim in a divorce proceeding); Tevis v. Tevis, 79 N.J. 422, 434 (1979)(stating in dicta that the marital tort claim should have been joined with the dissolution proceeding); see also Brown v. Brown, 208 N.J. Super. 372, 379 (App. Div. 1986) (stating that “[h]ad the marital tort here occurred prior to the institution of the divorce action . . . there would be no question of plaintiff's obligation to have raised it as a separate claim in her subsequently filed divorce action”); Pressler, Current N.J. Court Rules, comment 5 on R. 5:1-2(5)(1998)(“It is, of course, also clear that the entire controversy doctrine applies to family actions. Consequently, a marital tort is required to be joined with a pending family action involving the same parties.”).
In Brennan, supra, the wife filed for divorce in the Chancery Division, Family Part, in October 1994. Two weeks later, she filed a tort complaint in the Law Division alleging
that her husband struck her in the head following an argument in
February 1994. Thereafter, the Family Part consolidated the two
actions. In finding that joinder was appropriate under the
entire controversy doctrine, the Court reasoned that "[t]he tort
arose out of the marital relationship. In addition, the tort
complaint alleges many of the same factual circumstances as the
divorce complaint that [the wife] had filed two weeks earlier."
145 N.J. at 291. In reaching this conclusion, the Court relied
in part on Tevis, supra.
In Tevis, the Court held that the statute of limitations
barred a wife's tort claim against her husband because she filed
suit two years after the alleged incident. 79 N.J. at 432.
Notably, she instituted the tort action against her husband two
weeks after the conclusion of the dissolution proceedings. In
dicta, the Court stated:
Since the circumstances of the marital 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.
Hence, the Court ruled that, under the entire controversy
doctrine, marital tort claims should be joined with dissolution
proceedings because the potential for money damages was relevant.
Ibid.; see Brennan, supra, 145 N.J. at 290 (discussing Tevis).
The application of the entire controversy doctrine requires us to consider fairness to the parties, as the “polestar of the application of the rule is judicial fairness.” DiTrolio, supra, 142 N.J. at 272. Consequently, “the boundaries of the entire controversy doctrine are not limitless. It remains an equitable doctrine whose application is left to judicial discretion based on the factual circumstances of individual cases.” Brennan, supra, 145 N.J. at 291 (citing Mystic Isle, supra, 142 N.J. at 323). Thus, equitable considerations can relax mandatory-joinder requirements when joinder would be unfair. Prevratil, supra, 145 N.J. at 190.
For example, in Prevratil, although the Court found that the entire controversy doctrine applied to actions arising out of automobile accident cases, the Court remanded the matter to the Law Division for a determination of whether it was fair to dismiss the claims. Id. at 196. In that case, a possible equitable consideration was the fact that the plaintiff was represented by counsel selected by the insurer in the first action. Ibid.
In considering the fairness to the plaintiff, we are mindful that the plaintiff, whose claim is being barred, must have had a fair and reasonable opportunity to have fully litigated her claim in the prior action. See Cafferata v. Peyser, 251 N.J. Super. 256, 261 (App. Div. 1991). Therefore, we have stated that the doctrine will not bar a claim that was unknown or unaccrued at
the time of the original action. DiTrolio, supra, 142 N.J. at
273-74 (citing comment 2 on R. 4:30A). However, where the
plaintiff had sufficient information to have included the claims
in the prior suit, mandatory joinder is not unfair. Id. at 274
(citing Cogdell, supra, 116 N.J. at 25).
In Brown, supra, while a divorce action was pending, the
husband assaulted the wife, pushing her to the ground and
twisting her arm. 208 N.J. Super. at 378. The Appellate Division
considered equitable principles in holding that the entire
controversy doctrine did not bar a marital tort action. Id. at
374. In support of that finding, the panel observed that the
wife's matrimonial lawyer refused to raise the tort action in the
divorce proceeding; that the husband was aware of the tort claim
during the pendency of the equitable distribution proceedings and
filed for bankruptcy in an attempt to avoid it; and therefore,
the husband "had already substantially assumed the burdens of
successive litigation and had encouraged plaintiff herself to
continue in the costly prosecution thereof." Id. at 383-84.
Hence, the court reasoned that, "[a]lthough we conclude that the
entire controversy doctrine ordinarily requires joinder or
attempted joinder of constituent causes arising pendente lite, we
are also satisfied that in exceptional cases there may be
countervailing equitable considerations which would render
application of that doctrine unfair." Id. at 374.
In sum, the entire controversy doctrine applies to family
actions. Claims stemming from the same core of facts should be
raised in one action. Similar to other contexts, the goal is to
avoid fractionalized and successive litigation in family actions.
The courts have indicated that equitable considerations can relax
the application of the doctrine, but the extent to which the
doctrine is relaxed depends on the facts of the case and the
policy interests implicated.
The tort suit instituted by plaintiffs involves the same core set of facts that undergirded the custody, adoption, and harassment actions. See DiTrolio, supra, 142 N.J. at 267-68. In the custody action, Beverly detailed the numerous incidents of alleged abuse and stated:
I am afraid for Melissa's safety with [Ambrose]. After 7 years, I state to this Court that [Ambrose] is unpredictable - one moment he seems fine, the next minute he “snaps” and becomes physically abusive. I feel I must protect my daughter from this. Indeed, it is my belief that the real motivation behind this custody action is [Ambrose's] desire to get back at me for ending the relationship. I am afraid that he will try to get back at me through my child. . . .
Beverly asserted that Ambrose had abused her mentally and
physically, and it was her obligation to protect the child from
Ambrose. She argued that Ambrose should be denied custody and
visitation because he had been violent and abusive throughout
their relationship. These same allegations of abuse formed the
basis for this tort claim. Plaintiffs' tort complaint sought
monetary damages for the harm suffered as a result of Ambrose's
alleged abuse.
Plaintiff argues that in custody actions, the court
focuses on the best interest of the child, Fantony v. Fantony,
21 N.J. 525, 536 (1956), whereas in a tort suit, the focus is on the
defendant's actions. Further, in the custody action, “the
paramount consideration is the safety, happiness, physical,
mental and moral welfare of the child.” Ibid; see also Terry v.
Terry,
270 N.J. Super. 105, 119 (App. Div. 1994).
Nevertheless, the focus in custody actions is also on the
parents to the extent that it pertains to their fitness as
parents and the safety of the child. See N.J.S.A. 9:2-4. In
making a custody determination, among the factors the court must
consider are:
the parents' ability to agree, communicate and
cooperate in matters relating to the child; . . . the
history of domestic violence, if any; the safety of the
child and the safety of either parent from physical
abuse by the other parent; . . . the stability of the
home environment offered; . . . the fitness of the
parents; . . .
This list of factors makes it obvious that the alleged incidents of abuse were relevant to the custody action because, in custody actions, the court is required to consider the history of domestic violence and the safety of either parent from abuse by the other parent. See Terry, supra, 270 N.J. Super. at 119 (holding in custody proceeding the court “must reference the pertinent statutory criteria with some specificity”). Additionally, as the Appellate Division correctly pointed out, Beverly's inclusion of the details of the abuse in her
certification indicates that she understood their relevance to
the custody action.
Likewise, in Ambrose's custody complaint, he requested that
a reasonable level of child support be set. N.J.S.A. 2A:34-23(a)
provides several factors for the court to consider in determining
the amount to be paid by a parent for child support. Among the
factors listed are “all sources of income and assets of each
parent,” “[r]easonable debts and liabilities of each . . .
parent,” and “[a]ny other factors the court may deem relevant.”
Ibid.; see also Cleveland v. Cleveland,
249 N.J. Super. 96, 101
(App. Div. 1991) (holding that it was proper to consider a
personal injury award as income in determining level of child
support). Obviously, a judgment in the tort claim would have
been a relevant circumstance affecting Beverly's and Ambrose's
financial status. Additionally, when the harassment complaint
was consolidated with the custody action, the alleged torts
became even more germane to the proceedings. Therefore, the two
claims should have been joined in the first proceeding.
That plaintiffs' tort action is precluded by application of
the entire controversy doctrine is supported further by the trial
court's finding that Beverly's decision not to file a tort
complaint against defendant while the custody suit was pending
was a matter of trial tactics. Beverly's certification in the
custody matter belies her claim that she was not fully aware of
the extent of the abuse until after the settlement, a mere four
months before the filing of this action. Beverly chose to delay
filing the tort suit until after defendant voluntarily
relinquished his rights to Melissa, so as not to upset the “apple
cart.” This we cannot sanction. To do so would “be utterly
destructive” to the goals of the entire controversy doctrine.
Ajamian, supra, 14 N.J. at 488-89.
Plaintiffs assert that the time constraints in custody actions make joinder unfair. They contend that because the custody action was filed by Ambrose, and in custody actions “the court shall set a hearing date no later than three months after the last responsive pleading,” R. 5:8-6, she had no control over the timing. Plaintiffs further argue that, just as tort claims need not be joined with claims brought under the Domestic
Violence Act because of the time constraints, see Lickfield v.
Lickfield,
260 N.J. Super. 21 (Ch. Div. 1992), joinder is also
inappropriate in this case because of the time constraints.
In Lickfield, supra, the Chancery Division was presented
with the task of applying the entire controversy doctrine to the
Prevention of Domestic Violence Act ("Domestic Violence Act"),
N.J.S.A. 2C:25-17 to -33. After the wife had instituted a
divorce action, she filed a complaint under the Domestic Violence
Act seeking a restraining order. Id. at 22. At the final hearing
on the domestic violence complaint, the court made a finding of
domestic violence. Ibid. The wife's attorney told the court that
"[a]ll collateral issues can be done in the 'FM' [i.e. divorce
action]." Ibid. Thereafter, the wife amended the divorce
complaint to include a claim for damages arising from the
domestic violence. Ibid. The husband moved to dismiss the tort
claim on entire controversy grounds. Ibid.
The Chancery Division held that the entire controversy
doctrine did not bar the claim. In so holding, the court
reasoned that "the time restrictions imposed upon the plaintiff
by the [Domestic Violence] Act are incongruent with a strict
interpretation of the entire controversy doctrine." Id. at 24.
The court reasoned that the "expedited process is available for
the protection of the victim and to prevent further acts of
domestic violence. The process, however, is ineffective
if the victim is forced to make a case for damages at that time
as well." Lickfield, supra, 260 N.J. Super. at 24.
The time limit in custody actions differs from the time
constraints imposed under the Domestic Violence Act. Under the
Domestic Violence Act, the court has only ten days from the
filing of the complaint to hold a hearing, N.J.S.A. 2C:25-29(a),
whereas in custody cases, a hearing date must be set “no later
than three months after the last responsive pleading.” R. 5:6-8.
Moreover, this was not a simple custody action, as the custody,
harassment, and adoption matters were all consolidated into one
action.
Although the requirement of joinder may be unfair in some
custody actions, nevertheless, we continue to emphasize that “the
joinder determination does not repose with the parties;” rather,
“[i]t is the trial court's responsibility to determine whether or
not joinder is appropriate in a given case . . . .” DiTrolio,
supra, 142 N.J. at 275. The Appellate Division has also noted
that “the [trial] court, rather than a litigant acting
unilaterally, must make the determination of whether a
supplementary claim is to be joined or reserved.” Brown, supra,
208 N.J. Super. at 381. Furthermore, “plaintiff's failure to
allow the trial court the opportunity to manage the full
controversy at the outset diminishes the force of [plaintiff's]
claim that joinder would have been inappropriate.” DiTrolio,
supra, 142 N.J. at 275 (citations omitted).
The entire controversy doctrine does not require that tort
actions be actually litigated together with custody actions;
rather, it mandates that the parties must assert all claims they
have against the other parties in one proceeding. See Brown,
supra, 208 N.J. Super. at 381. In a custody action, if the trial
court determines that the tort claim is not relevant to the best
interest of the child, and finds that the child's interest
demands that the claims be severed or reserved, the claims may be
severed or reserved for later action. See Pressler, Current N.J.
Court Rules, comment 2 on R. 4:30A (1998)(“It is clear that the
court has the right to direct reservation of a claim against an
existing . . . party for later action”). That discretion,
however, lies with the court, not with the parties.
Because the only issue before us arises from the dissenting
opinion in the Appellate Division, we need not engage in the
debate contained in the dissenting opinion concerning the proper
method of pleading a defense of failure to join claims. We would
be more sensitive to the matters of inequity claimed in Justice
Stein's dissenting opinion if the bulk of Beverly's claims were
not already barred by the trial court's ruling on the statute of
limitations. (Beverly had unsuccessfully claimed that the
discovery rule set forth in Lopez v. Swyer,
62 N.J. 267 (1973),
entitled her to bring the claims more than two years after the
occurrence of the injuries.).
In applying the entire controversy doctrine to this case,
fairness to defendant must also be considered. No doubt
defendant was disadvantaged by plaintiffs' failure to assert the
tort claims until after the original action was settled.
Defendant settled the custody/adoption/harassment action thinking
that he and Beverly had “conclusively dispose[d] of their
respective bundles of rights and liabilities that derive[d] from”
their relationship. O'Shea v. Amoco Oil Co.,
886 F.2d 584, 590-91
(3d Cir. 1991). It would be unfair to defendant for him to have
to litigate those issues that he reasonably believed had already
been resolved.
In applying the entire controversy doctrine, we must also consider whether mandatory joinder will promote the goal of “judicial economy and efficiency - the avoidance of waste and delay.” DiTrolio, supra, 142 N.J. at 277 (quoting Cogdell, 116 N.J. at 23). We have defined inefficiency as “a duplication of lawsuits . . . [and] multiple actions each involving the identical controversy and the same witnesses.” DiTrolio, supra, 142 N.J. at 277 (quoting Cogdell, supra, 116 N.J. at 26). The court in the custody action and the court in the tort action would both have had to consider the allegations of abuse comprising both the custody certification and the tort complaint. Consequently, judicial efficiency would have been served by settling those issues in the first litigation. Also, although we have acknowledged that the “weight of the economy factor lessens” when the first action is settled, id. at 278, that does not apply in cases such as this, where a party intentionally holds back
filing the second claim so as not to upset settlement
negotiations.
In this case, the tort complaint was filed on December 26,
1989. However, on October 5, 1992 in his answer to plaintiffs'
amended complaint, Ambrose raised the entire controversy doctrine
as an affirmative defense. Defendant did not move for summary
judgment until September 1993, nearly four years after the filing
of the complaint. The entire controversy doctrine's policy
against inefficiency and waste of judicial resources, although
not entirely negated by this delay, is surely not promoted by
such actions. Nevertheless, because judicial economy is only one
consideration, and such concerns cannot override the doctrine's
overall objective of fairness to litigants, see DiTrolio, supra,
142 N.J. at 278, the conclusion remains the same: the claim is
barred because it was not brought in the original action.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
and COLEMAN join in JUSTICE GARIBALDI's opinion. JUSTICE STEIN
has filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
33 September Term 1997
BEVERLY OLIVER and BRUCE
OLIVER,
Plaintiffs-Appellants,
v.
LOUIS AMBROSE,
Defendant-Respondent.
STEIN, J., dissenting.
The Court's fixation on the entire controversy doctrine continues. It bars the assault claims asserted by the victim of severe domestic violence that allegedly caused two miscarriages, on the ground that those claims were not joined in a prior custody action instituted by defendant, the perpetrator of the alleged assaults. The Court demonstrates its affinity for the entire controversy doctrine by dismissing plaintiffs' complaint notwithstanding that the entire controversy defense was not pleaded as an affirmative defense until defendant answered the amended complaint approximately thirty-three months after the suit was commenced, and was not asserted as a defense in support of defendant's summary judgment motion until nearly four years after the complaint was filed. In the process, the Court utterly ignores its own precedents on waiver of affirmative defenses, see
Williams v. Bell Tel. Lab., Inc.,
132 N.J. 109, 118-20 (1993),
and Fees v. Trow,
105 N.J. 330, 335 (1987), as well as former
Presiding Judge Michels's opinion in Kopin v. Orange Products,
Inc.
297 N.J. Super. 353, 375 (App. Div.), certif. denied,
149 N.J. 409 (1997), expressly holding that the entire controversy
defense is waived if not asserted within three years of the
filing of a complaint.
The Court creatively mischaracterizes the waiver issue as a
"debate . . . concerning the proper method of pleading a defense
of failure to join claims," Ante at ___ (slip op. at 23), and
attempts to obscure its inability to meet it by declining to
address waiver, inflexibly dismissing it as an issue beyond the
scope of the dissent below. A more forthright and accurate
response by the Court would unequivocally confirm that the
availability of the entire controversy doctrine defense is
conditioned on its timely assertion. The Court excuses its
silence on the waiver issue and plaintiff's other equitable
arguments by representing that "it would be more sensitive to the
matters of inequity" recited in this dissenting opinion if the
bulk of plaintiff's claims had not been barred by the statute of
limitations.
Ante at ___ (slip op. at 23). The Court fails to
acknowledge, however, that claims for compensatory and punitive
damages based on intentional assaults remain in the case. Our
entire controversy jurisprudence breaks new ground with the
Court's assertion that an apparent substantive weakness in a
plaintiff's case is a factor that may affect decisively whether
the equitable aspects of the entire controversy doctrine will
receive recognition.
In Olds v. Donnelly,
150 N.J. 424 (1997), one of last term's
most significant cases decided less than six months ago, the
Court virtually assured the bar that there would be no more
instances of draconian applications of the entire controversy
doctrine. In words designed to calm and reassure both litigants
and lawyers, the Court benignly observed: "We have always
emphasized that preclusion is a remedy of last resort." Id. at
446. The Court then cited Gelber v. Zito Partnership,
147 N.J. 561, 565 (1997), for the proposition that "[c]ourts must
carefully analyze" both fairness to the parties and fairness to
the system of judicial administration "before dismissing claims
or parties to a suit." Olds, supra, 150 N.J. at 446-47 (emphasis
added). Continuing, the Court cited both claim joinder and party
joinder cases in support of the principle that "[t]he purpose of
the doctrine is not to bar meritorious claims, but to encourage
litigants to bring to the attention of trial courts persons [or
claims that] should be joined in a proceeding." Id. at 447.
And just one year before deciding Olds, the Court in Brennan
v. Orban,
145 N.J. 282 (1996), confronted with the question
whether marital tort claims joined with other domestic relations
claims should be tried by a court or by a jury, held that the
"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." Id.
at 304. The Court in Brennan emphasized that, in balancing those
interests, the severity of the violence inflicted merits
significant weight:
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." Trial by jury,
for reasons rooted in our history and
tradition, is a special repository of public
confidence that our laws will be vindicated.
[Ibid. (citations omitted).]
Notwithstanding its recent pronouncements in Olds and
Brennan, the Court bars plaintiffs' tort action against defendant
Ambrose because plaintiff Beverly Oliver failed to assert her
tort claims as counterclaims in the custody proceeding previously
filed by Ambrose. In holding that preclusion -- the remedy of
last resort -- is appropriate here, the Court apparently
overlooks or attaches little significance either to the numerous
equitable factors or to the allegations of extreme violence that
militate against so severe a remedy:
* Ambrose's custody action, filed in October
1988, was settled without a trial in August
1989, and apparently imposed only a minimal
burden on judicial resources in the Family
Part.
* Although the Olivers' tort action was filed
in December 1989, the motion for summary
judgment based on the entire controversy
doctrine was not filed until November 1993,
nearly four years later. At the time the
motion was filed, Ambrose was being defended
on plaintiffs' negligence claims by counsel
for Allstate and Cumberland Insurance
Companies, the homeowners carriers covering
Ambrose for the time period at issue, and by
personal counsel on plaintiffs' claims of
intentional tort and punitive damages. The
summary judgment motion, filed only by
counsel for Allstate, was not granted until
December 1994, after Allstate's counsel in
October 1994 sought reconsideration by the
trial court of the prior motion.
* In the course of her eight-year
relationship with Ambrose, Beverly Oliver
became pregnant four times. Two pregnancies
were terminated by abortion, Oliver alleging
that Ambrose forced her by threats and
violence to terminate those pregnancies. The
last two pregnancies terminated by
miscarriages that Oliver alleges were caused
by violent beatings inflicted on her by
Ambrose. Melissa Rose Oliver was born July
9, 1988. In explaining during depositions
why she did not seek to assert her tort
claims against Ambrose in the custody suit he
filed, Beverly Oliver testified that "my
concentration during that period was to make
sure that Melissa Rose was safe and cared for
and got the best care that she could. I did
concentrate on that [and] I wasn't looking at
what had gone on with me." She testified
that in the custody case she focused on the
safety of her daughter, "paramount to
everything else."
* Beverly Oliver filed a certification during
the custody proceeding that informed both the
Family Part judge and defendant of her
allegations that she was viciously and
violently assaulted by Ambrose.
Nevertheless, Ambrose consented to the
dismissal with prejudice of his custody
action without requiring Oliver to release
him from liability for his assaultive
conduct.
* Under Brennan v. Orban, supra, Oliver's
allegations that Ambrose brutally and
violently assaulted her on numerous occasions
would have required a jury trial (and a jury
trial was demanded in the tort action) even
if the tort claims had been asserted in the
custody case. Those allegations include:
April 1983: Angered that she was
pregnant, Ambrose slapped her in
the face, pushed her against a
wall, and choked her;
December 1983: Upon learning that
Oliver was pregnant again, Ambrose
threatened to kill her if she did
not have an abortion.
December 1984: When Oliver refused
to terminate another pregnancy by
abortion, Ambrose tried to run her
over with his car, tied her to a
refrigerator, and threw her down
the basement steps, causing a
miscarriage;
October 1985: Angered over another
pregnancy, Ambrose threw her
against a wall, flung her down a
flight of stairs, and kicked her.
Another miscarriage followed.
Putting to one side the equitable roots of the entire controversy doctrine, one would assume that the Court would understand fully why Oliver, whose four prior pregnancies allegedly were terminated either by abortions coerced by Ambrose or miscarriages caused by Ambrose's violent assaults, would not wish to entangle the custody proceeding, in which she was highly likely to prevail, with an extremely adversarial tort litigation against Ambrose. Viewed in the context of our precedents that compel consideration of equitable factors, and taking into account the powerful
public policy articulated in Brennan, supra, favoring
judicial vindication of aggravated domestic violence
assaults, the Court's disposition precluding the Olivers'
tort action constitutes an astonishing repudiation of our
precedents.
Long before our decision last term in Olds, supra, our cases have emphasized the equitable underpinnings of the entire controversy doctrine and its focus on fairness. As Justice O'Hern observed in Brennan, supra: "Despite its policy of joinder of claims, the boundaries of the entire controversy doctrine are not limitless. It remains an equitable doctrine whose application is left to judicial discretion based on the factual circumstances of individual cases." 145 N.J. at 291 (citation omitted). In our application of that doctrine, we have "proceed[ed] on a step-by-step basis recognizing that the doctrine is one of judicial fairness and will be invoked in that spirit." Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 343 (1984); see also Cogdell v. Hospital Ctr., 116 N.J. 7, 23 (1989) (stating that "party fairness is critical in the application of the entire controversy doctrine."). Because the doctrine is so inextricably dependent in its application on principles of fairness, we have been cautious not to
"convert the entire controversy doctrine from an equitable
device into a trap for the unsuspecting." Cafferata v.
Peyser,
251 N.J. Super. 256, 263 (App. Div. 1991).
Unfortunately, as on a prior occasion, see Prevratil v.
Mohr,
145 N.J. 180, 199 (1996) (Stein, J. dissenting), the
Court gets the wrong answer in this case because it poses
the wrong question. Respectfully, the issue before us
cannot simply be framed