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Pleading Tort Claims Between Spouses In Family Law Cases


In Waite v. Waite, 618 So.2d 1360 (Fla. 1993), the Florida Supreme Court abrogated the doctrine of interspousal immunity for all tort causes of action, thereby allowing spouses to sue each other for damages from tortious acts. Prior to the Waite decision, interspousal tort claims had been statutorily authorized for battery only. Ch. 85-328, § 1, Laws of Fla. (adopting § 741.235, FLA. STAT.; “The common law doctrine of interspousal tort immunity is hereby abrogated with regard to the intentional tort of battery, and the ability of a person to sue another person for the intentional tort of battery shall not be affected by any marital relationship between the persons.”).

Procedurally, Florida courts have recognized that tort claims brought by one spouse against the other may be asserted during the parties’ marriage, see, Kalisch v. Kalisch, 646 So.2d 292 (Fla. 3d DCA 1994) (negligence claim), or as separate claims in a dissolution-of-marriage action. See, San Pedro v. San Pedro, 910 So.2d 426 (Fla. 4th DCA 2005) (claims of negligence, fraud and deceit, intentional infliction of emotional distress, and battery); Snedaker v. Snedaker, 660 So.2d 1070 (Fla. 4th DCA 1995) (battery claim); Hahn v. Hahn, 595 So.2d 1098 (Fla. 4th DCA 1992) (battery claim). These tort claims typically are asserted as separate counts in a petition or counter-petition that includes a count for dissolution of marriage. San Pedro v. San Pedro, supra.

Although the Florida Supreme Court has not specifically ruled on the question as to whether tort claims that accrued during the parties’ marriage are compulsory counterclaims in a dissolution-of-marriage action, there are several District Court of Appeal decisions that have involved tort claims that were brought after the dissolution of the parties’ marriage. See, Hogan v. Tavzel, 660 So.2d 350 (Fla. 5th DCA 1995) (claims of negligence, battery, fraudulent concealment, and intentional infliction of emotional distress), review denied, 666 So.2d 901 (Fla. 1996); Waite v. Waite, 593 So.2d 222 (Fla. 3d DCA 1991) (battery claim), approved, 618 So.2d 1360 (Fla. 1993); see also, San Pedro v. San Pedro,supra 910 So.2d at 428 n. 1 [rejecting reading of Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla. 1996), as mandating conclusion that tort claims accruing during marriage are compulsory claims in dissolution-of-marriage actions and therefore may not be brought after dissolution action is final].

Not all tort claims that one spouse may wish to bring against the other are available under Florida law. For example, Florida courts have recognized that where the basis of a tort claim is the dissipation or depletion of marital assets during the marriage, such claims cannot be brought as a separate cause of action in tort, but may only be considered within the context of a dissolution-of-marriage action. See, Beers v. Beers, 724 So.2d 109 (Fla. 5th DCA 1998) [holding that there is no cognizable tort claim for either constructive fraud or breach of fiduciary duty based upon former husband’s concealed depletion of marital assets during marriage and that § 61.075(1), FLA. STAT., provides exclusive remedy where one’s spouse intentionally dissipated marital property during marriage; declining to address propriety of joinder of separate count for conversion or fraudulent dissipation of nonmarital assets],review denied, 735 So.2d 1283 (Fla. 1999); see also, Levy v. Levy, 862 So.2d 48 (Fla. 3d DCA 2003) (stating that where there is no specific transaction or agreement between spouses, dissolution-of-marriage statute provides exclusive remedy where one spouse has intentionally dissipated marital property during marriage).

Another tort that may come to mind is the tort of interference with custodial rights. The Florida Supreme Court in Stone v. Wall, 734 So.2d 1038 (Fla. 1999), held that the common-law cause of action for intentional interference with the custodial parent-child relationship, asserted by a parent against a non-parent, would be judicially recognized in Florida. However, a recent decision from the Fourth District Court of Appeal implies that such a claim may lie against a parent. See, Stewart v. Walker, No. 4D08-838, 2009 WL 454496 (Fla. 4th DCA Feb. 25, 2009). Stewart involved a biological father’s suit against the mother of the parties’ illegitimate child for intentional interference with custodial rights and intentional infliction of emotional distress. The suit was precipitated by the mother’s move (without the father’s knowledge or consent) with the child to Massachusetts. As the mother had superior custody rights under Section 742.031(2), Florida Statutes, the father lacked standing to sue for interference. Custodial rights, however, were irrelevant to a claim for intentional infliction of emotional distress, and thus the court held that the father did have standing to assert that claim.

Florida cases do not indicate that there is anything unique about the pleading requirements of a tort claim asserted by one spouse against the other. Also, all the defenses applicable to such claims, as well as matters in avoidance of such defenses, may be asserted in response to such claims or defenses. See, e.g., San Pedro v. San Pedro, supra (holding, with regard to wife’s tort claims, that record failed to show that former husband conclusively disproved former wife’s attempt to avoid statute-of-limitations defense on grounds of equitable estoppel). Given the fact that all defenses generally applicable to tort claims are available to spousal or ex-spousal defendants, and because such claims may be brought after a dissolution of marriage as well as.

Another defense that may be particularly relevant to tort claims by spouses or ex-spouses is the language of any release that may be contained in a marital settlement agreement. See, Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla. 1996) (holding that former wife was precluded from alleging common-law fraud claim, grounded on former husband’s nondisclosure of financial assets, by virtue of release in marital settlement agreement which barred all claims arising from marriage). Consequently, a careful examination of any martial settlement agreement that the parties have executed is necessary prior to deciding whether to file a tort claim against a present or former spouse.

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