When family law actions collide with civil claims for damages

It is axiomatic that divorce fosters conflict. Occasionally the conflict between divorcing spouses may give rise to tort and other civil claims for damages being brought by one spouse against the other.

Frequently, when one spouse pursues a civil action for damages against the other spouse during the pendency of a dissolution of marriage action, the other spouse files a demurrer, asserting that the complaint involves the same claims as those involved in the family law proceeding.

Civil actions have been dismissed because they were too connected to pending family law actions. These generally involved claims on assets or issues that directly overlapped what was actively at issue in the family law matter.

In Pont v. Pont, 31 Cal. App. 5th 428 (2018), the ex-wife signed a marital settlement agreement pursuant to which she waived her right to make claims that her former husband had given his new wife community property. Four years later, the former wife filed a civil complaint alleging that her former husband had given his new wife community property. This civil claim was inextricably connected to the family law action and was dismissed in the demurrer.

In Neal v. Superior Court, 90 Cal. App. 4th 22 (2001), the husband filed a civil complaint against the wife alleging that he had complied with the stipulation on child support entered in the family law action after certain oral modifications were taken into account. The wife had a competing motion pending in the family law court seeking to enforce the child support stipulation. This civil claim was inextricably connected to the enforcement of the child support stipulation pending in the family law action and was dismissed via the demurrer.

In Askew v. Askew, 22 Cal. App. 4th 942 (1994), the husband sued his wife in civil court after she filed for divorce, claiming that she had fraudulently told him that she loved him and was sexually attracted to him, which caused him to place nine properties into joint tenancy during their marriage. The trial court did not grant wife's demurrer. The appellate court reversed, entered judgment in favor of the wife, directed the family court to award reasonable fees to the wife for the cost of the civil case, ordered the husband to pay for her costs on appeal, and directed the family court to hear the issues related to the properties. This civil claim was inextricably connected to the division of the properties in the pending family law action.

Under certain circumstances spouses can sue each other for torts after marriage. A request for damages "and punitive damages in particular, [have] to be determined in the civil action" when "those causes of actions could not have been pleaded as part of the dissolution. In re Marriage of McNeill, 160 Cal. App. 3d 548 (1984). In McNeill, the husband filed a civil action seeking to quiet title to various properties and punitive damages for fraud. His wife had told him that she was an attorney, that she had a master's degree in accounting, that she had cancer and that she had 90 days to live. She asked him to sign documents to place assets into the trust before she died. None of what the wife told her husband was true, and the documents turned out to be a marital settlement agreement granting her nearly all of the assets in the marriage. The trial court consolidated the wife's divorce action where she sought to enforce the marital settlement agreement and the husband's civil action. The court held a jury trial and awarded husband $96,000 in compensatory and consequential damages and $32,000 in exemplary damages and costs. "Neither the existence of the marital relationship nor the fact wife was contemporaneously seeking a dissolution prohibited husband from his requested relief ... Damages could not have been pleaded in the dissolution action; to be compensated for fraud, husband had to file a separate civil action."

If it is a close question as to whether the civil action and the dissolution of marriage action are interrelated, the court may order the two cases consolidated. Consolidation is preferable to dismissal, since courts want to hear issues on their merits. See Porter v. Superior Court, 73 Cal. App. 3d 793 (1977) (consolidating civil action to set aside property deed); Beehler v. Beehler, 100 Cal. App. 3d 376 (1979) (appellate court instructing that wife's civil complaint against husband and business partners be consolidated); In re Marriage of Utigard, 126 Cal. App. 3d (1981) (consolidating children's civil complaint into parent's divorce action); Watkins v. Watkins, 143 Cal. App. 3d 651 (1983) (consolidating wife's action for declaratory relief, constructive trust, breach of contract, and fraud with husband's divorce action). "Courts have encouraged consolidation since the enactment of both the Family Law Act and the Family Law Rules of Court. This allows issues which could not be raised in the dissolution action nevertheless to be heard concurrently." In re Marriage of McNeill, 160 Cal. App. 3d at 557.

The test for determining whether family law actions and civil actions are inextricably intertwined, thereby requiring a dismissal of the civil action, will likely remain in place for the foreseeable future. However, recent statutory changes allow for punitive measures to be imposed against perpetrators of domestic violence, such as by denial of the right to receive spousal support or the potential loss of their pension benefits. These changes may cause courts to be less hesitant about sustaining demurrers to civil complaints for damages brought by a divorcing spouse. 