Section 14.3 Tort Claims and Dissolution Proceedings

• Library: Family Law Deskbook and 2014 Supp

2. (§14.3) Tort Claims and Dissolution Proceedings

Tortious conduct may be part of or related to a person’s claim for dissolution of marriage. An issue that arises is whether a related tort claim and the dissolution claim must be tried together and, if not, whether one of the proceedings will have a res judicata effect on the other.

In State ex rel. M.D.K. v. Dolan, 968 S.W.2d 740 (Mo. App. E.D. 1998), a wife contested the trial court’s order severing her dissolution of marriage count from her tort damages count against her husband for infecting her with an incurable sexually transmitted disease. The court cited S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. banc 1986), for the rule that a spouse is not barred from bringing a tort action against the other spouse. The court interpreted S.A.V. to mean that “neither res judicata nor issue preclusion would be a bar to a subsequent dissolution proceeding in which the marital conduct of the parties would ‘be taken into account in [the] division of marital property.’” Dolan, 968 S.W.2d at 745 (quoting S.A.V., 708 S.W.2d at 653). Dolan also stated that “by way
of dicta, S.A.V. implies that either the tort case or
the dissolution proceeding could be tried first.” Dolan, 968 S.W.2d at 745. Based on S.A.V., the court seemed to reject the...