Blending Spousal Tort Claims and Colorado Divorce Actions
| Publication year | 1996 |
| Pages | 57 |
1996, May, Pg. 57. Blending Spousal Tort Claims and Colorado Divorce Actions
Spousal tort claims are viable in Colorado(fn1) and could inadvertently be overlooked by family law practitioners handling divorce cases. Although the spousal tort claim cannot be joined in the divorce action,(fn2) the existence of a spousal tort claim should be carefully considered by family law practitioners. This article identifies certain spousal tort claims and contains suggestions for how a family law practitioner can deal with those claims in the context of a divorce action.
One of the goals of the Uniform Dissolution of Marriage Act(fn3) is to promote the amicable settlement of disputes that have arisen between parties to the marriage.(fn4) The joinder of dissolution of marriage actions with claims sounding in tort would require trial courts to address many extraneous issues, including trial by jury.(fn5) Moreover, a tension would be created between the acceptance of contingent fees in tort claims and the longstanding public policy against contingent fees in domestic cases.(fn6) Thus, the Colorado Court of Appeals in Simmons v. Simmons(fn7) held that tort claims and contract claims are not permissive or compulsory claims in dissolution of marriage proceedings.
Disallowance of tort claims in dissolution of marriage cases does not preclude one spouse from suing the other for tort claims.(fn8) The balance of this article addresses common tort claims and tips for the family law practitioner who may have a divorce case involving spousal tort claims.
Many dissolution of marriage cases arise after an incident of spousal abuse resulting in a domestic abuse restraining order.(fn9) The conduct that gave rise to the restraining order may be the basis of an outrageous conduct claim.
Outrageous conduct is committed if, by extreme and outrageous conduct, an individual intentionally or recklessly causes severe emotional distress to another.(fn10) To qualify as outrageous, the conduct must go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.(fn11) The statute of limitations on this claim is two years after the cause of action accrues.(fn12) However, if the basis of the claim is assault and battery, a one-year statute of limitations may apply.(fn13)
An incident or pattern of physical abuse, marital rape, harassing phone calls or stalking may give rise to a claim for extreme and outrageous conduct. If the tortfeasor's conduct also is a violation of a criminal statute, the conduct should, as a matter of law, be deemed "outrageous."(fn14) However, Colorado courts have not yet decided as a matter of law that criminal conduct is outrageous conduct in the civil context.
A parent's interference with the other parent's parenting time rights and the disparagement of one parent by another in front of the children may not be extreme and outrageous conduct. In Hetfeld v. Bostwick,(fn15) the court said that the defendant's behavior in doing those things was reprehensible, but not outrageous. The court reasoned that such conduct is all too common between individuals in a hostile divorce involving children.
A spouse who falsely alleges that he or she has AIDS may have committed outrageous conduct. In Whelan v. Whelan,(fn16) the court held that the ex-wife had a viable claim for intentional infliction of emotional distress based on allegations that her ex-husband had, during the marriage, falsely told her that he had tested positive for AIDS and that she should leave with the parties' son so they would not see him suffer and die. The husband made the allegation as a back-door attempt to obtain a divorce and spousal support. As this case demonstrates, divorce cases are ripe for unusual facts giving rise to outrageous conduct claims.
An assault giving rise to civil liability occurs when the defendant: (1) acts with intent to make contact with the plaintiff or with the intent of putting the plaintiff in apprehension of contact; (2) the plaintiff was placed in...
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