## Facts

- A wife filed a divorce action in 1981 alleging extreme cruelty and seeking equitable distribution of a substantial marital estate.
- During the pendency of the divorce, the wife alleged the husband assaulted her, giving rise to a marital tort claim.
- The wife did not plead or attempt to join the tort claim in the divorce action.
- After the divorce concluded, the wife filed a separate civil action seeking damages for the alleged assault.
- The trial court granted summary judgment to the husband, ruling the tort claim was barred by the entire controversy doctrine because it was not joined in the divorce.
- The wife appealed from the summary judgment dismissal.

## Issues

1. Whether the entire controversy doctrine requires a spouse to join, in a pending divorce action, a tort claim for an assault committed during the divorce litigation or forfeit that claim.
2. Whether equitable considerations can limit application of the entire controversy doctrine in the divorce context when joinder would be unfair.

## Decision

- The appellate court reversed the summary judgment for the husband.
- The court held that the entire controversy doctrine ordinarily calls for joinder (or attempted joinder) of causes of action arising during the pendency of litigation, including those arising while a divorce is ongoing.
- The court also held the doctrine is equitable and may yield where applying it would be unfair.
- On these facts, equitable considerations made it improper to bar the wife’s later-filed tort action for injuries allegedly inflicted during the divorce; the tort case could proceed.

## Legal Principles

- The entire controversy doctrine generally requires a party to join (or at least attempt to join) constituent causes of action that arise during ongoing litigation.
- The doctrine is applied as an equitable rule, not a mechanical forfeiture rule; courts may decline to apply it where countervailing equitable considerations make preclusion unfair.
- In the divorce setting, a marital tort occurring during the litigation may present circumstances where mandatory joinder would effectively deny a meaningful tort remedy and thus should not be required.

## Conclusion

The court permitted a spouse’s post-divorce civil action for damages based on an alleged assault committed during the divorce proceedings, holding that although joinder is ordinarily expected under the entire controversy doctrine, equity may preclude claim preclusion when mandatory joinder would be unfair in the circumstances.


Brown v. Brown, 208 N.J. Super. 372 (N.J. Super. Ct. App. Div. 1986)