New York Law Journal: Matrimonial and Tort Law: A Collaboration To Compensate the Victim?

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Matrimonial and Tort Law: A Collaboration To Compensate the Victim?
Can clients seek compensation for domestic violence from their spouses in a parallel tort action as opposed to addressing these issues exclusively in divorce proceedings … or is that a double dip?
By Lisa Zeiderman and Russell Yankwitt | July 23, 2021 at 1:20 PM

In August 2010, Gov. David Patterson signed legislation making New York a no-fault divorce state. With divorce now largely predicated on an irretrievable breakdown of a marriage, the question arises as to how and in which forum matrimonial clients should address issues of domestic violence, including but not limited to assault, battery and defamation. In particular, can clients seek compensation for domestic violence from their spouses in a parallel tort action as opposed to addressing these issues exclusively in divorce proceedings … or is that a double dip?

Recent events have brought this issue to the forefront. First, the state has seen a rise in domestic violence, particularly during the COVID-19 pandemic. Second, the legislature amended the Domestic Relations Law (DRL) in May 2020 to require courts to consider the nature, extent, duration and impact of acts of domestic violence, as described in §459-a(1) of the social services law, against the other party with respect to an equitable distribution of property. See DRL 236B(5)(d)(14). Further, with regard to spousal support, where the court finds that the suggested maintenance guideline amount is unjust or inappropriate, the court is now required to consider “acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment.” Such acts include, but are not limited to, acts of domestic violence. The new post-divorce maintenance provisions apply to actions commenced on or after Jan. 23, 2016, whereas the temporary maintenance revisions apply to actions commenced on or after Oct. 25, 2015. See DRL 236B(5-a)(h)(1)(g) and 236B(6)(e)(1)(g).

Prior to the change in this law, to be considered in the monetary division of assets, the abuse had to be so egregious as to shock the conscience. See, e.g., Orofino v. Orofino, 215 A.D.2d 99 (3d Dep’t 1995). Short of murder, little rose to the level of shocking the conscience so as to warrant a greater division of property in favor of the victim. See Havell v. Islam, N.Y.L.J., July 30, 2001, at 21 (Sup. Ct. July 30, 2001).

Given the recent changes in the DRL and the COVID-19 pandemic, which slowed dispositions of divorces, there are few cases that provide insight as to how the courts are integrating domestic violence into their decisions related to equitable distribution of property and spousal support. However, the case of Y.L. v. L. L, 68 Misc.3d 1209 (N.Y. Sup. Ct. 2020) provides some instruction, notwithstanding that the new domestic violence factor was not in effect when this action commenced in May 2015. Here, the court specifically stated when awarding the wife non-durational lifetime maintenance of $78,000 annually that it had “considered the Husband’s maltreatment of Wife when determining maintenance and equitable distribution.” In Y.L., the husband’s abuse of his wife included but was not limited to punching her in the mouth, knocking out several of her teeth, causing permanent injury to her jaw and mouth, kicking her in the stomach when she was eight months pregnant with their child and causing her to be hospitalized. Notwithstanding that, the court awarded non-durational maintenance and noted that there was little evidence to prove that the husband’s horrific acts actually inhibited the wife’s earning capacity.

The question to be considered is could the wife in Y.L. also have commenced tort litigation against her husband while pursuing her divorce action? To determine whether clients can seek compensation for domestic violence in both matrimonial and civil courts, some historical context is helpful.

Prior to 1937, an individual could not maintain an action against his/her spouse for tortious conduct under the principle of interspousal immunity. The legislature abrogated that rule with the enactment of NY General Obligations Law §3-313(2), which provides that a married man or women “has a right of action against” against his or her spouse for “wrongful or tortious acts resulting” in any personal injury as set forth in §37(a) of the General Construction Law, or resulting in injury to his or her property, as if they were unmarried. While this amendment made clear that spouses could maintain actions against each other, in the context of domestic violence or similar claims, there remained an open question as to the proper forum in which to assert those tort claims—in divorce proceedings or as a separate civil action.

The New York Court of Appeals decided that issue in 2005, holding one spouse may bring a separate tort action, such as a personal injury suit, against the other spouse. In Xiao Yang Chen v. Fischer, 2005 N.Y. Slip Op. 9572 (N.Y. 2005), the court concluded that “personal injury tort actions and divorce actions do not constitute a convenient trial unit.” The purpose between the two are quite different. They seek different types of relief and require different types of proof. Moreover, a personal injury action is usually tried by a jury, in contrast to a matrimonial action, which is typically decided by a judge when the issue of fault is not contested. Further, personal injury attorneys are often compensated with contingency fees, whereas matrimonial attorneys are prohibited from entering into arrangements that are contingent on the granting of a divorce or property settlement.
The Court of Appeals decision in Chen clearly demonstrates that separate personal injury actions for domestic violence claims are permitted. In that case, the wife commenced a separate civil litigation in New York Supreme Court during an ongoing divorce proceeding and asserted claims for, inter alia, assault and battery during an ongoing divorce proceeding against her husband. In reversing the appellate division’s dismissal of the action, the Court of Appeals held the interspousal tort action was not barred by claim preclusion, i.e., the wife did not need to raise her claims in the matrimonial proceeding, and the matrimonial court did not have exclusive jurisdiction to decide those claims.

The Chen court noted several public policy considerations in support of its ruling, including the ability to expedite matrimonial proceedings by carving out fact-complex personal injury claims, with the attendant “minimizing [of] the emotional damage to the parties and their families.” In particular, the court noted that, “[d]elaying resolution of vital matters such as child support and custody or the distribution of assets to await the outcome of a personal injury action could result in extreme hardship and injustice to the families involved, especially for victims of domestic violence.” The court emphasized that “parties should be encouraged to stipulate to, rather than litigate, the issue of fault,” which like personal injury allegations more generally can be difficult and time consuming for the trier of fact to decide.

While the Chen analysis evinces strong support for separate tort actions, how can it be squared with the DRL amendments that require domestic violence to be considered when calculating spousal maintenance and equitable distribution? In other words, as domestic violence is now a factor in determining equitable distribution and spousal support, could it be argued that there is essentially a double dip if the domestic violence victim is permitted to also collect a personal injury award from his/her spouse?

Because the relief sought in the two proceedings is largely distinct, arguably there is no double dip. Equitable distribution is focused on the division of marital assets, while the domestic violence factor focuses on the harm to the individual. The bulk of damages sought on personal injury claims are for pain and suffering, which is not a specific consideration in the matrimonial action.

This distinction is clarified if we look at the treatment of personal injury settlements in divorce proceedings. If a spouse obtains a personal injury settlement during a marriage, that settlement is only considered marital property if the award applies to lost wages. The pain and suffering portion of the personal injury settlement is separate, not considered marital property, and therefore not subject to equitable distribution in a divorce proceeding. Similarly, while there may be an argument that lost wages or medical bills cannot be recovered by one spouse from the other in a civil tort action, that issue could be addressed in an award of equitable distribution of assets. Further, as pain and suffering belong exclusively to the victim spouse in the tort action, such award should not be precluded by the issuance of a spousal support award or an unequal division of assets.

Viewed in this way, the maintenance of a parallel tort and divorce proceedings is not a double dip, but rather an appropriate doubling down on the different forms of relief offered by our judicial system to ensure adequate compensation for domestic violence victims.

Reprinted with permission from the July 23, 2021 edition of the New York Law Journal© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Lisa Zeiderman is a New York divorce attorney and managing partner at Miller Zeiderman. Russell Yankwitt is managing partner of litigation firm Yankwitt LLP.

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