If he continuously commits acts of violence against his ex wife, she should be able to go after him with a legal vengeance.  And the California appellate courts agree.  In its wisdom, the Golden State’s highest court has held that despite the fact Wife went after Husband in family law court, and was awarded spousal support, she is not collaterally estopped (prevented) by res judicata from filing a tort action against her former Husband based on his alleged acts of domestic violence against her. In the case of Boblitt v Boblitt (2010) 190 CA4th 603, 118 CR3d 788, Wife, at the couple’s divorce trial, claimed that her Husband had been physically and mentally abusive for decades, from the time before they were married up until after the dissolution was filed.  She further claimed that injuries resulting from the abuse had impaired her ability to work. The trial judge indicated that he considered her allegations in reviewing the factors set forth in Family Code §4320 affecting spousal support and stated in his statement of decision that he had trouble with Wife’s credibility relating to some of the alleged incidents.  The family court judge then went on to state that, although Wife had also requested she be repaid for “past medical bills, future medical bills, counseling and alleged pain and suffering,” he felt her spousal support award was appropriate.  When a judgment on reserved issues was entered in the family law court, the wife requested reconsideration and then, when that was unsuccessful, appealed the judgment. In a civil action, Wife later sued Husband for damages based on domestic violence, assault and battery, and negligent and intentional infliction of emotional distress, as well as other causes of action.  Husband moved for judgment on the pleadings, claiming that all of Wife’s claims had been or could have been tried in the family law case and that the family law court had denied Wife most of the relief she had requested there. Wife opposed Husband’s motion, first by arguing that the family law judgment, being on appeal, was not a final judgment, and second, by arguing that the domestic violence cause of action was “not tried in the dissolution action.”  The trial court in the tort action granted Husband’s motion based on collateral estoppel or res judicata. The appellate court reversed.  It found Wife to be correct on both counts in her tort action.  The panel pointed out that even had the family law judgment on reserved issues been final, Wife’s second argument remained valid.  The appellate court found that Wife’s tort action was based on “the primary right to be free from personal injury,” while the right to spousal support from a former spouse was based on the trial court’s consideration of numerous factors, one of which is a history of domestic violence.  Also, the family law judge’s failure to award Wife some of the relief she requested, such as for past and future medical bills, counseling, and alleged pain and suffering, did not have a preclusive effect, because that judge had no power to award such relief in a divorce case.

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