Metropolitan News-Enterprise


Wednesday, December 1, 2010


Page 1


C.A. Revives Suit for Damages Based on Domestic Violence

Support Award in Divorce Case Does Not Preclude Tort Action, Justices Say




A spouse who raises domestic violence issues as part of a claim for support in a divorce action is not necessarily precluded from seeking tort damages in a separate suit, the Third District Court of Appeal ruled yesterday.

The justices reversed Sacramento Superior Court Judge Michael Virga’s ruling that Linda A. Boblitt was estopped from suing Steven B. Boblitt, and directed that Steven Boblitt’s motion for judgment on the pleadings be denied.

Court documents show that the Boblitts began cohabiting in February 1983 and married in 1989. She later testified that he verbally and physically abused her from the day they first lived together until after she filed for divorce in 2004.

She filed a statement of issues in the divorce proceeding, claiming that her ability to work was impaired by the physical and psychological toll of the years of abuse. She also filed a complaint for damages for assault and battery and intentional and negligent infliction of emotional distress.

In his statement of decision in the divorce action, Sacramento Superior Court Judge James Mize said that in ordering spousal support, he had considered all of the statutory facts, including the “history of domestic violence...including...consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.”

He also found, however, that some of the wife’s allegations of physical abuse lacked credibility, although the husband’s behavior “could be described as intimidating.” He awarded the wife $2,000 per months for eight months, reduced to zero at the end of that period conditioned on compliance with a mutual no-contact order, but rejected her claim for past and future medical expenses, counseling, and compensation for pain and suffering.

The wife’s motion for new trial was denied, and she appealed.

Judgment for Defendant

While that appeal was pending, Steven Boblitt moved for judgment on the pleadings in the tort action, arguing that the issues raised by the pleadings had been specifically resolved by Mize’s ruling. Virga granted the motion “on the grounds of res judicata or collateral estoppel,” concluding that all of her claims were raised, or could have been raised, in the family law action.

But Justice Ronald Robie, writing for the Court of Appeal, said the tort claims were not encompassed by the divorce action because they involved a separate “primary right.”

The justice cited Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091, in which the court held that the denial of a request for attorney fees in a dissolution action—the request being based on the moving party’s claim that the opposing party had filed a frivolous cross-complaint to the moving party’s complaint against a trust that had been joined—did not preclude a malicious prosecution action against the party that successfully resisted the fee motion.

Different Right

The court reasoned that the right to need-based attorney fees in a family law action differs from the right to be free of malicious and unmerited litigation, so the denial of the former remedy does not preclude the latter.

The same principle applies to Linda Boblitt’s suit, Robie said.

“A tort action like the present one is based on ‘the primary right to be free from personal injury,’” he wrote. “....There is no sound basis, however, for concluding that a claim for spousal support in a marital dissolution proceeding is also based on ‘the primary right to be free from personal injury,’ even if one of the circumstances the family court considers in adjudicating that claim is domestic violence between the parties.”

Robie added that the burden was on the husband, as the moving party, to show that all of the claims raised in the tort action were litigated in the domestic relations case.

“Without the actual evidence introduced in the dissolution proceeding, which Steven did not put before the trial court or this court, Judge Mize’s statement that Linda ‘was permitted to testify as to every allegation of domestic violence up to the date of trial’ in July 2007 does not establish which incidents of domestic violence actually were litigated in the dissolution proceeding,” the justice said.

In an unpublished portion of his opinion, Robie said the trial judge erred for another reason. The divorce judgment was not “final” for res judicata or collateral estoppel principles, he said, because it was still on appeal.

The case is Boblitt v. Boblitt, 10 S.O.S. 6659.


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