Wednesday, December 29, 2010

ABUSED SPOUSE: You can sue for damages

Domestic violence wreaks emotional and physical havoc on the victim and the other innocent family members. While its clear that in a family law case the victim can procure protective orders from the court, victims of abuse may be unaware that they also have a right to sue in civil courts for their emotional and physical damages.

Just because you are in a marriage or partnership does not rule out your right to seek money damages in the civil courts for the abuse. Besides seeking recovery for wage losses and medical treatment, the victim can ask for damages for pain and suffering. Children that are direct victims or witnesses to abuse are also entitled to recovery for their physical and/or emotional damages.

The most recent California case in point decided November 2010 is Boblitt v. Boblitt (11/30/10) 3 Civ C061307 (Robie) 2010 WL 4851085.

Before their marriage and the very day that wife moved in with husband he began verbally abusing her. Verbal abuse escalated to physical abuse. Husband broke wife's jaw.. The abuse did not end when they were married in late 1989, but continued up to and beyond wife's divorce filing in 2004.

In 2007, wife filed a separate tort action against husband, seeking damages for domestic violence, assault and battery, breach of fiduciary obligations, and intentional and negligent infliction of emotional distress. Wife's claims of domestic violence were also raised in the divorce action. In the divorce, wife asked for lost wages and other economic help.

In the family law trial court decision, the judge noted that he was remedying detrimental effect of husband's actions on wife's finances by awarding eight months of spousal support, conditioned on no contact between parties. Wife's request for award of funds for past and future medical bills, counseling, and pain and suffering was denied by the family law judge who noted that such an award would be inappropriate. After moving unsuccessfully for new trial, W appealed.

Wife filed a separate civil tort action and in response to that lawsuit husband moved for judgment on the pleadings in wife's tort action, claiming that because of the family law ruling and award of support to wife, all causes of action could have been or were tried in parties divorce case(including domestic violence and wife's request for reimbursement of medical bills, and for pain and suffering), which barred their re-litigation.

Wife replied in the civil case that tort action was not precluded because the family law judgment was not final (an appeal was still pending) and domestic violence issues were not litigated in the family court.

The civil litigation trial judge granted husbands motion dismissed wife's tort action.

Wife filed an appeal to the dismissal and the California Court of Appeal reversed the lower court, agreeing with wife and found that: (1) Wife has not waived her arguments because they present questions of law and are not based on disputed facts; (2) Wife’s domestic violence claims are not precluded because they are not based on same primary right (the wife's spousal-support request is not based on primary right to be free from personal injury.)

Even though the family law judge awarded money to the wife as a backdrop to her request for compensation due to husband's abusive conduct, wife still had a right in tort law to seek right of compensation and recovery from husband for her damages.

Victims of domestic violence are entitled to the full protection the law affords in criminial, family law and civil courts. Each court has a different remedy so its important to ensure you are protecting your legal rights by getting legal representation from an attorney skilled in handling these difficult and dangerous cases.