Chen v. Fischer: Was it Judicial Legislation or Just Some Old Black Magic

Notes and Comments: Elliot D. Samuelson, Editor

Chen v. Fischer, 783 N.Y.S.2d 394 (App.Div2 2004), recently decided by the Appellate Division Second Department, is a remarkable case. It appears to be an example of judicial legislation, and an attempt to limit tort actions between marital partners, since the doctrine of res judicata appears not to be applicable to such litigants. Moreover, to compel a marital partner who may have a cause of action for damages for assault and battery to litigate such claim within a marital action, or other similar personal injury claims accrued because of their spouse's wrongful conduct, could cause irreparable harm to such a litigant, since an award obtained, although separate property, could nevertheless be subject to equitable distribution, resulting in the wrongdoer sharing in the award for damages...a grossly unfair result. This circumstance was considered in Maharam v. Maharam, 177 A.D.2d 262, 575 N.Y.S.2d 846 (1st Dept. 1991), a case cited in Chen, when it held:

We recognize that if plaintiff is successful in her tort action, the defendant would be paying damages to the plaintiff with funds that later may be determined to have been, in part, marital property.

Such a result could mean that the plaintiff would be responsible for paying one half of her own damage. Moreover, the Maharam court observed possible further prejudice might befall such a spouse when it explained:

It is clear that before making an equitable distribution award, the court will have to take into account the resolution of the plaintiff's tort claims, as a substantial award thereunder would have a significant impact upon "the probable future financial circumstances of each party."

In mulling over this vexatious issue, I kept hearing the lyrics of Cole Porter's "Old Black Magic" swirling in my head, and could not resist the query of whether the court had that old black magic in its spell when it rendered its decision.

This case either wittingly or unwittingly had the effect of limiting, if not judicially repealing General Obligations Law§ 3-313(2) which permits inter-spousal tort actions. Additionally, it declared a permissive statute, CPLR 601 (a) which allows joinder of as many claims a party may have against another party, to be mandatory in a matrimonial litigation, forcing a plaintiff or a counter claiming defendant to include any accrued tort action in the divorce proceeding. In doing so, the court grasped for legal precedents to sustain its position, citing a New Jersey decision that held tort actions should be brought "in conjunction" with an action for divorce. One of the reasons advanced for reaching its conclusion in Chen that tort actions should be brought within the divorce action, is that the recovery in money damages would be subject to equitable distribution, and if it was brought outside the divorce action, it would not. It is precisely for this reason that the rationale in Chen was flawed. Fairness and equity would seem to mandate that any award obtained against the wrongdoer should not be subject up to a fifty percent discount of the damage award, which would take place in the matrimonial context where all marital assets (including the damage award) are equitably distributed.

The court, seemingly took liberties with the doctrine of res judicata, in holding:

Societal needs, logic, and the desirability of bringing spousal litigation to finality now compel us to expand upon the rule espoused in these cases, and hold that an interspousal tort action seeking to recover damages for personal injuries commenced subsequent to, and separate from, an action for divorce is likewise barred by claim preclusion.

Res judicata is defined in Black's Law Dictionary as a doctrine that limits successive law suits where the same issues were litigated or could have been brought in a previous action.

In hedging its conclusions the Chen court explained:

We are cognizant that, unlike the equitable nature of the division of marital property in a divorce action, the aims of a tort claim are the assignment of fault and the award of damages. Marital fault, however, is relevant in New York divorce actions, and indeed is even relevant to the issue of equitable distribution in instances where it is found to be egregious enough to warrant its consideration.(see Havell v. Islam 301 AD2d 339). (Editor's note: When was the last time that egregious fault was found to limit a maintenance award?) It is therefore reasonable to expect a spouse to assert a cause of action seeking to recover damages for personal injures caused by the actions or the course of conduct of his or her spouse during the marriage within the divorce action where the same tortious activity would constitute grounds for divorce.

What the appellate court failed to recognize is that the marital action might pollute the tort action and diminish its legitimacy in the eyes of the trial court, as occurs in practice where trial judges often apply pressure to the parties and their counsel to withdraw the tort claim in the spirit of compromise, and as a vehicle to settle the case.

To grasp these principles and better understand the decision made by the court to adopt a policy that would limit matrimonial litigants from bringing lawsuits that would otherwise be permissible between unmarried persons, the facts of the case should be carefully reviewed.

Mrs. Xiao Chen, who held such title for but nine months, defended an action for divorce brought by her husband Ian Fischer in the Supreme Court of Westchester County on March 11, 2001, some ninety days after their marriage. Fischer alleged a cause of action for cruelty, at which time Chen counterclaimed for divorce on the ground of cruelty, and also asserted a cause of action for fraud, seeking to obtain money damages. Thereafter and on October 15, 2001 the parties entered into a stipulation resolving their claims for divorce, each withdrawing their allegations of cruelty (except for a "benign" allegation of cruelty which was not disclosed in the decision), and a dual divorce was granted by the court. Once fault was resolved, the remaining issues were tried which included equitable distribution and the wife's claim of fraud, which was ultimately dismissed for lack of proof. On May 8, 2002 a reciprocal judgment of divorce was granted to the parties. While the action for divorce was still pending and after their stipulation of settlement resolving fault, and after the trial had commenced on all ancillary issues, Chen instituted a new cause of action for personal injuries allegedly sustained during the marriage, but not joined in the matrimonial action.

Apparently, Mrs. Chen failed to include the original pleadings in the record on appeal, and the appellate court only had before it the wife's second amended complaint, dated May 10, 2002 and the husband's amended answer. The second amended complaint asserted two causes of action, one to recover damages for intentional infliction of emotional distress, and the other tort damages for assault and battery alleging, inter alia, that Fischer slapped her on her face and ear. There were allegations in the emotional distress cause of action that the husband repeatedly accused the wife of being unfaithful, threatened to lock her out of the marital residence, refused to permit her to socialize with friends, physically and emotionally abused her for failing to have sex with him, filed a false police report and referred to the wife as a slave and demanded subservience from her. (Editor's note: These allegations appear to be more consistent with cruelty than emotional distress) The assault charge alleged the husband had struck her on the face and ear. Significantly these precise charges were not included in the cruelty cause of action in the second amended complaint. Nevertheless the husband alleged an affirmative defense of res judicata, arguing that the wife's allegation for assault were substantially (but not exactly) the same as contained in her cruelty action for divorce, and when the stipulation of settlement on grounds were made, the wife had withdrew all but one allegation of cruelty (apparently not one for assault), and failed to expressly reserve her right to make the same or similar allegations in a later separate action.

The lower court dismissed the wife's personal injury claim as barred by the doctrine of res judicata, more specifically claim preclusion, since the personal injury cause of action was "...predicated onvirtually identical factual transactions that were at issue in the matrimonial action" The appellate division affirmed this finding!

In deciding for yourself whether the result was justified by the facts in this case, one must review the doctrine of res judicata, as well as claim preclusion. Black's Law Dictionary definesres judicata as follows:

A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute part to a subsequent action involving the same claim, demand or cause of action." (Our emphasis) ..."The sum and substance of the whole rule is that a matter once judicially decided is finally decided."

Claim preclusion is defined by Black's as follows:

Term means that when a particular issue has already been litigated, further litigation of same issue is barred. ...it is in substance that any fact, question or matter in issue and directly adjudicated or necessarily involved in the determination of action before court of competent jurisdiction in which judgment or decree is rendered on merits, is conclusively settled by judgment therein and cannot be relitigated in any future action between parties or privies, either in same court or court of concurrent jurisdiction, while judgment remains unreversed or unvacated by proper authority, regardless of whether claim or cause of action, purpose or subject matter of two suits is same.

The operative words in the issue preclusion definition appears to be "directly adjudicated" . The issue of whether Mrs. Chen had sustained money damages by reason of her husband's alleged wrongful behavior was never litigated even though it might have been necessary for the court to determine whether the husband was guilty of cruel and inhuman treatment as defined by the Domestic Relations Law. Moreover, although the appellate court thought that the Boronow decision by the Court of Appeals, substantiated its findings, it actually was inapposite to its holding. In Boronow , the trial court considered and litigated the issue of title to the marital residence. Since the matter had already been litigated, the Court of Appeals held that a subsequent action to contest title to the same real property, would be barred by the doctrine of res judicata. Put another way, the high court would not approve what would be tantamount to appellate review by permitting another action to be litigated.

The Chen court went on to reflect, that interspousal tort actions relating to title to property commenced after an action for divorce are precluded by the doctrine of res judicata, citing the Rakowski v. Rawkowsi, 109 A.D.2d, 489 N.Y.S.2d 929, court in its decision which was a case where a spouse following a divorce attempted to obtain a constructive trust against the marital residence. While such holding pertaining to real property is certainly correct, since title could be adjudicated by the marital court, it does not appear that the same holding should be applied to the Chen situation, where no money damages were sought and the tort cause of action was not litigated in the divorce case.

Unfortunately Chen reached its decision based upon "societal needs" rather thanstare decisis, in deciding to expand the rule promulgated by the Court of Appeals. For the court to suggest that marital fault is the same as fault in a tort action, is stretching the definition of the terms. It found in this regard, "...where the same tortious activity would constitute grounds for divorce." , it would be barred in a subsequent suit. But the court failed to discuss the fact that there are many contested cases seeking divorce on the grounds of cruelty which would be insufficient to obtain a divorce, but nevertheless actionable for recovery of personal injury damages.