Are tort claims compulsory in a dissolution of marriage action?

• Author: Mitchell, James R.
• Position: Florida

In 1984, Beres Waite attacked and inflicted serious injuries on his wife, Joyce. He was later convicted of attempted murder and Joyce divorced him. In many cases of domestic violence this is the end of the story, but in this case the legal ramifications of this attack were only beginning. Joyce had a homeowner's insurance policy and sought to recover in tort for the injuries she suffered. The trial court dismissed the cause as being barred by the doctrine of interspousal immunity. On appeal the Florida Supreme Court held that "there no longer is a sufficient reason warranting a continued adherence to the doctrine of interspousal immunity." Waite v. Waite, 618 So. 2d 1360, 1361 (Fla. 1993). Justice McDonald who concurred in result only wrote to warn that he could foresee divorces with "multiple counts for damages being claimed by each spouse against the other for events that occurred during their marriage. The fault concept which was discarded in no fault dissolution proceedings will have a rebirth in a different form."[1]

However, the legislature did not remove all fault issues in the changeover from the fault-based divorce statute to the no fault-based dissolution of marriage statute, F.S. [sections] 61.051(1) (1995). Fault still is relevant to the issues of alimony, equitable distribution, and child custody. Florida's alimony statute states that "[t]the court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded." F.S. [sections] 61.08(l) (1995) (emphasis added). Under Florida's equitable distribution statute the court will equally divide all marital assets unless there is a justification for an, unequal division. The statute lists relevant factors that include "[a]ny other factors necessary to do equity and justice between the parties." F.S. [sections] 61.075(1)(j) (1995) (emphasis added). Finally, under Florida's custody and support of children statute, "[f]or the purpose of shared parental responsibility and primary residence, the best interest of the child shall include an evaluation of all factors affecting the welfare and interests of the child." F.S. [sections] 61.13(3) (1995) (emphasis added). Therefore, fault remains a large part of dissolution actions in Florida.

On September 5, 1996, the Florida Supreme Court ruled that a release clause in a marriage settlement agreement barred later tort claims arising from the marriage. Cerniglia v. Cerniglia, 679 So. 2d 1160 (Fla. 1996). In Cerniglia, the former wife filed a civil action against the former husband for assault and battery, intentional infliction of emotional distress, common-law fraud, and breach. of contract. The basis of the former wife's claims was that during the marriage she was abused by the husband both physically and mentally, that the marital settlement agreement had been obtained by duress, coercion, and threats, and that the husband made oral agreements to pay the wife additional sums. The trial court entered summary judgment for the former husband. On appeal the court reviewed the marital settlement agreement which said in pertinent part, "[t]his Agreement constitutes a full and complete settlement of ... and claims of any nature whatsoever that each may have against the other .... The Husband and Wife mutually forever renounce and relinquish all claims of whatever nature ... this paragraph shall constitute a complete, general, and mutual...