The opinion of the court was delivered by KLEINER, J.A.D.Page 8

On July 1, 1994, plaintiff Christina Giovine filed an eleven count complaint against defendant Peter J. Giovine denominated: "Complaint for divorce, domestic torts, equitable claims and jury trial demand." Plaintiff's complaint alleged habitual drunkenness, N.J.S.A. 2A:34-2(e) (count one) and extreme cruelty, N.J.S.A. 2A:34-2(c) (count two) as alternative grounds for the dissolution of the marriage. In counts three through six, plaintiff asserted claims for compensatory and punitive damages based upon an assault and battery which allegedly occurred in March 1972 (count three); intentional infliction of emotional injury/distress commencing in March 1972 (count four); "continuous wrong" between March 1972 and May 1993, resulting in "severe emotional and physical damage" (count five); and negligence (count six).

Counts seven through eleven of plaintiff's complaint alleged equitable claims respecting real property acquired by defendant in February 1969 prior to the marriage and titled solely in defendant's name, predicated upon the concepts of transmutation (count seven); constructive/resulting trust (count eight); implied contract (count nine); unjust enrichment (count ten); and quasi-contract (count eleven).

Plaintiff demanded a jury trial on counts three through eleven.

I — MARITAL HISTORY

Plaintiff and defendant were married on May 1, 1971. Three children were born of this marriage on August 17, 1975, July 5, 1979, and July 7, 1983.

On approximately December 31, 1978, defendant separated from plaintiff. In May 1980, he filed a complaint seeking to establish visitation rights with the two children of the marriage. On August 1, 1980, defendant filed a complaint for divorce, asserting a cause of action for dissolution of marriage predicated upon eighteen consecutive months of separation. Plaintiff filed an answer and counterclaim for divorce, alleging habitual drunkenness and extreme cruelty as alternative grounds for divorce. Additionally, that counterclaim contained three counts for damages predicated upon the following torts: a specific act of assault and battery in March 1972 and a final act of assault and battery on December 28, 1978; infliction of emotional distress based upon the same acts of assault and battery; and "a continuous and unbroken wrong commencing on or about March 1972 and continuing down until December 28, 1978."

Defendant filed an answer to the counterclaim and amended his complaint for divorce, adding a cause of action for divorce based upon acts of extreme cruelty.

In July 1982, while their matrimonial action was pending, the parties reconciled and resumed living together. On July 26, 1982, both parties directed their respective attorneys to discontinue the litigation. The proceedings were dismissed by a stipulation of dismissal with prejudice dated October 25, 1982. The couple separated again in September 1993. As noted, plaintiff filed her present complaint on July 1, 1994. Defendant filed an answer and counterclaim asserting a cause of action for divorce based upon extreme cruelty.

II — PRESENT LITIGATION

On August 8, 1994, defendant filed a motion to strike certain causes of action contained within plaintiff's complaint and to strike plaintiff's demand for a jury trial on counts three through eleven. On September 20, 1994, the motion judge granted defendant's motion, striking all tortious claims occurring prior to June 30, 1992 based upon the applicable statute of limitations, N.J.S.A. 2A:14-2, and limiting plaintiff's proofs on her claims for emotional distress or negligence to those acts alleged to have occurred after June 30, 1992. The motion judge also determined that plaintiff did not have a constitutional right to a jury trial. We granted plaintiff's motion seeking leave to appeal those rulings, which were memorialized in an order dated November 14, 1994. We now affirm in part and reverse in part.

III

Interspousal tort immunity no longer exists to bar the suit of one spouse against another for injuries sustained by one spouse due to the tortious conduct of the other. Merenoff v. Merenoff, 76 N.J. 535 , 557, 388 A.2d 951 (1978).

[T]he abolition of the doctrine pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of excessive behavior such as gross negligence, recklessness, wantonness, and the like. The only kind of marital conduct excepted from the abolition was that involving marital or nuptial privileges, consensual acts and simple, common domestic negligence, to be defined and developed on a case-by-case approach.

[ Tevis v. Tevis, 79 N.J. 422 , 426-27, 400 A.2d 1189 (1979) (citation omitted).]

If the circumstances surrounding a domestic tort and a claim for monetary damages are relevant to a divorce proceeding, the domestic tort must be joined with the divorce proceeding under the "single controversy doctrine" in order to avoid protracted, repetitious and fractionalized litigation. Id. at 434, 400 A.2d 1189.

On appeal, plaintiff contends that the motion judge erred in refusing to follow the decision in Cusseaux v. Pickett, 279 N.J. Super. 335, 652 A.2d 789 (Law Div. 1994), which concluded that "battered-woman's syndrome is the result of a continuing pattern of abuse and violent behavior that causes continuing damage." Id. at 345, 652 A.2d 789. As such, "it must be treated in the same way as a continuing tort." Ibid. Battered woman's syndrome would therefore be an exception to N.J.S.A. 2A:14-2, that "[e]very action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have occurred." Ibid. The decision in Cusseaux substantially relied upon State v. Kelly, 97 N.J. 178 , 478 A.2d 364 (1984).

In Kelly, the Supreme Court, relying in part on the research of Lenore E. Walker, The Battered Woman (1979), noted that battered woman's syndrome is a recognized medical condition. By definition, a battered woman is one who is repeatedly physically or emotionally abused by a man in an attempt to force her to do his bidding without regard for her rights. State v. Kelly, supra, 97 N.J. at 193, 478 A.2d 364. According to experts, in order to be a battered woman, the woman and her abuser must go through the "battering cycle" at least twice. Ibid.

The battering cycle consists of three stages. Ibid. Stage one, the "tension-building stage," involves some minor physical and verbal abuse while the woman tries to prevent an escalation of the abuse by assuaging the abuser with her passivity. Ibid. (citation omitted). Stage two, the "acute battering incident," is characterized by more severe battering due to either a triggering event in the abuser's life or the woman's inability to control the anger and fear she experienced during stage one. Ibid. (citation omitted). During stage three, the abuser pleads for forgiveness and promises that he will not abuse again. Id. at 193-94, 478 A.2d 364 (citation omitted). This period of relative calm and normalcy eventually ends when the cycle begins anew. Id. at 194, 478 A.2d 364 (citation omitted).

"The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers." Ibid. The caring and attentive behavior of the abuser during stage three fuels the victim's hope that her partner has reformed and keeps her tied to the relationship. Ibid. In addition, some women who grew up in violent families do not leave abusive relationships because they perceive their situations as normal. Ibid. Others cannot face the reality of their situations. Ibid. Some victims "become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation." Ibid. Victims are often afraid to seek help out of shame, fear that no one will believe them, or fear of retaliation by their abusers. Id. at 195, 478 A.2d 364. "They literally become trapped by their own fear." Ibid.

In Kelly, the Supreme Court held that expert testimony on battered woman's syndrome was admissible to show that a woman on trial for murder who was repeatedly beaten during her marriage honestly believed that she was in imminent danger of death when she stabbed her husband, and therefore, she acted in self-defense. Id. at 187, 202-04, 478 A.2d 364.

In State v. Ellis, 280 N.J. Super. 533 , 543, 656 A.2d 25 (App.Div. 1995) (citing State v. Kelly, supra), we concluded that evidence of battered woman's syndrome can be introduced in a criminal proceeding as evidence to explain why a victim of a kidnapping neither attempted to escape a kidnapper nor immediately reported the kidnapping. In Ellis, the victim was the defendant's girl-friend.

Cusseaux v. Pickett, supra, recognized for the first time in this state, that a woman who suffers from the medically diagnosable condition of battered woman's syndrome is entitled to seek compensation for the physical and emotional injuries attributable to the abusive conduct during the course of the relationship. The trial judge found that:

Because the battered-woman's syndrome is the result of a continuing pattern of abuse and violent behavior that causes continuing damage, it must be treated in the same way as a continuing tort. It would be contrary to the public policy of this State, not to mention cruel, to limit recovery to only those individual incidents of assault and battery for which the applicable statute of limitations has not yet run. The mate who is responsible for creating the condition suffered by the battered victim must be made to account for his actions — all of his actions. Failure to allow affirmative recovery under these circumstances would be tantamount to the courts condoning the continued abusive treatment of women in the domestic sphere. This the courts cannot and will never do.

[ Cusseaux v. Pickett, supra, 279 N.J. Super. at 345, 652 A.2d 789.]

Cusseaux established a four-part test to state a cause of action for battered woman's syndrome:

1) involvement in a marital or marital-like intimate relationship; and 2) physical or psychological abuse perpetrated by the dominant partner to the relationship over an extended period of time; and 3) the aforestated abuse has caused recurring physical or psychological injury over the course of the relationship; and 4) a past or present inability to take any action to improve or alter the situation unilaterally.

[ Id. at 344, 652 A.2d 789 (footnotes omitted).]

We agree with the premise espoused in Cusseaux and conclude that a wife diagnosed with battered woman's syndrome should be permitted to sue her spouse in tort for the physical and emotional injuries sustained by continuous acts of battering during the course of the marriage, provided there is medical, psychiatric, or psychological expert testimony establishing that the wife was caused to have an "inability to take any action to improve or alter the situation unilaterally." Ibid. In the absence of expert proof, the wife cannot be deemed to be suffering from battered woman's syndrome, and each act of abuse during the marriage would constitute a separate and distinct cause of action in tort, subject to the statute of limitations, N.J.S.A. 2A:14-2. Laughlin v. Breaux, 515 So.2d 480, 482-83 (La.Ct.App. 1987).

Our disagreement with Cusseaux is predicated upon semantics. Cusseaux classifies battered woman's syndrome as a continuous tort. The concept of "continuous tort" has been recognized in this state. Morey v. Essex County, 94 N.J.L. 427, 430, 110 A. 905 (E. A. 1920) (unremitting trespass is a continuous tort); Russo Farms, Inc. v. Vineland Bd. of Educ., 280 N.J. Super. 320 , 327-28, 655 A.2d 447 (App.Div. 1995) (claim of inverse condemnation continued to accrue as long as defendant's conduct caused plaintiff's property to be subject to continual flooding due to negligent construction of an adjoining building); Aykan v. Goldzweig, 238 N.J. Super. 389 , 392, 569 A.2d 905 (Law Div. 1989) (continuous negligent representation by an attorney is a continuous tort which tolls the statute of limitations until the representation is terminated or the client discovered or should have discovered the injury). This concept was also discussed, although not applied, in Tortorello v. Reinfeld, 6 N.J. 58 , 66, 77 A.2d 240 (1950), in reference to a claim that a continuing course of negligent treatment by a physician should be considered a continuous tort, and not an isolated incident of negligent treatment.

We do not adopt the conclusion in Cusseaux that battered woman's syndrome is itself a continuous tort. Battered woman's syndrome is more correctly the medical condition resulting from continued acts of physical or psychological misconduct. Because the resulting psychological state, composed of varied but identifiable characteristics, is the product of at least two separate and discrete physical or psychological acts occurring at different times, to overcome the statute of limitations, it is imperative that the tortious conduct giving rise to the medical condition be considered a continuous tort. As noted in Kelly:

The combination of all of these symptoms — resulting from sustained psychological and physical trauma compounded by aggravating social and economic factors — constitutes the battered-woman's syndrome. Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's state of mind be accurately and fairly understood.

[ State v. Kelly, supra, 97 N.J. at 196, 478 A.2d 364.]

The Supreme Court in Kelly and the Law Division in Cusseaux placed substantial weight on the legislative findings which led to the enactment of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -16. Those findings deserve repeating:

The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.

. . . . Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature encourages . . . the broad application of the remedies available under this act in the civil and criminal courts of this State.

[N.J.S.A. 2C:25-18.]

Cusseaux had no cause to discuss the statute of limitations, N.J.S.A. 2A:14-2, as it might affect a cause of action for the medical condition of battered woman's syndrome.

In Kyle v. Green Acres at Verona, Inc., 44 N.J. 100 , 207 A.2d 513 (1965), the Supreme Court held that N.J.S.A. 2A:14-21 "foreclose[d] a tolling of the running of [the limitations period] unless plaintiff was [insane] at the time the cause of action accrued. . . ." Id. at 106-07, 207 A.2d 513. The Court carved out an equitable exception, however, where defendant's "negligent act brings about [a] plaintiff's insanity." Id. at 111, 207 A.2d 513. Applying equitable considerations, the Court concluded:

[I]f plaintiff's insanity was caused by defendant's wrongful act, it may be said that such act was responsible for plaintiff's failure or inability to institute her action prior to the running of the statute of limitations. We feel that justice here requires us to carve out an equitable exception to the general principle that there is no time out for the period of time covered by the disability if the disability accrued at or after the cause of action accrued. Thus, a defendant whose negligent act brings about plaintiff's insanity should not be permitted to cloak himself with the protective garb of the statute of limitations.

[ Ibid. (footnote omitted).]

The Court added:

The equitable approach should mandate the following: A trial court shall itself without a jury hear and determine (1) whether insanity developed on or subsequent to the date of the alleged act of defendant and within the period of limitation and if so, whether that insanity resulted from the defendant's acts; and (2) whether plaintiff's suit was started within a reasonable time after restoration of sanity. . . .

[ Id. at 112, 207 A.2d 513.]

"Insane," as used in N.J.S.A. 2A:14-21, means "such a condition of mental derangement as actually prevents the sufferer from understanding his [or her] legal rights or instituting legal action." Ibid.

In Jones v. Jones, 242 N.J. Super. 195 , 576 A.2d 316 (App.Div.), certif. denied, 122 N.J. 418, 585 A.2d 412 (1990), we applied equitable considerations to abrogate the running of the statute of limitations against an incest victim. We noted the victim's emotional condition as a justification for tolling the statute of limitations, as well as the fact that the victim plaintiff was placed under physical and psychological duress by the defendant. Plaintiff's expert psychologist opined that "individuals subjected to childhood sexual abuse often find it impossible to communicate and describe such misconduct." Id. at 201, 576 A.2d 316. Jones likened plaintiff's condition to the condition of insanity, which tolls the statute of limitations in N.J.S.A. 2A:14-21 and provides in part:

If any person entitled to any of the actions or proceedings specified in sections 2A:14-1 to 2A:14-8 or sections 2A:14-16 to 2A:14-20 . . . is or shall be, at the time of any such cause of action or right or title accruing, under the age of 21 years, or insane, such person may commence such action . . . after his coming to or being of full age or of sane mind.

[ Ibid. (emphasis added).]

We are able to draw an analogy between the status of the plaintiff in Jones to the status of a victim of repeated violence within the marital setting, who may "sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation." Kelly, supra, 97 N.J. at 194-95, 478 A.2d 364 (citations omitted); Cusseaux, supra, 279 N.J. Super. at 341, 652 A.2d 789.

Jones also determined that duress may toll the statute of limitations when "it is either an element of or inherent in the underlying cause of action." Jones, supra, 242 N.J. Super. at 208, 576 A.2d 316 (citations omitted). We prefaced that conclusion with this admonition:

We do not suggest that the decisions we have cited should be applied uncritically whenever a plaintiff claims that his or her failure to initiate suit in a timely fashion was caused by a defendant's wrongful act. We are, nevertheless, of the view that, within certain limits, a prospective defendant's coercive acts and threats may rise to such a level of duress as to deprive the plaintiff of his freedom of will and thereby toll the statute of limitations.

[ Ibid.]

As noted in Tevis v. Tevis, supra, 79 N.J. at 431, 400 A.2d 1189, the Legislature has not specified when a cause of action shall be deemed to have "accrued" for the purposes of the statute of limitations for tortious injury to property or persons. The accrual of a cause of action has been left entirely as a matter of judicial determination, interpretation and administration. Ibid. (citing Rosenau v. City of New Brunswick, 51 N.J. 130 , 137, 238 A.2d 169 (1968)).

The role of the court in interpreting legislative intent respecting the statute of limitations is illustrated in Jones, supra:

Unswerving, mechanistic application of statutes of limitations would at times "inflict obvious and unnecessary harm upon individual plaintiffs" without materially advancing the objectives they are designed to serve. The legislative and judicial response to such inequities has been to provide certain statutory exceptions. . . .

[ Jones, supra, 242 N.J. Super. at 203, 576 A.2d 316 (citation omitted).]

Similarly, the Supreme Court in Galligan v. Westfield Centre Service, Inc., 82 N.J. 188 , 412 A.2d 122 (1980) held:

A "just accommodation" of individual justice and public policy requires that "in each case the equitable claims of opposing parties must be identified, evaluated and weighed." Whenever dismissal would not further the Legislature's objectives in prescribing the limitation, the plaintiff should be given an opportunity to assert his claim.

[ Id. at 193, 412 A.2d 122 (citations omitted).]

We recognize that this same reasoning was implicated in Lopez v. Swyer, 62 N.J. 267 , 300 A.2d 563 (1973), which concluded that a cause of action will be held not to accrue until an injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim, thus resulting in a tolling of the statute of limitations on equitable grounds.

We also note that in Lopez, the Supreme Court specifically directed that the determination whether to toll the statute of limitations is a legal question "within the province of the court." Id. at 274, 300 A.2d 563.

Likewise, in Kyle v. Green Acres at Verona, Inc., supra, 44 N.J. at 112, 207 A.2d 513, the Supreme Court directed:

A trial court shall itself without a jury hear and determine (1) whether insanity developed on or subsequent to the date of the alleged act of defendant and within the period of limitation and if so, whether that insanity resulted from the defendant's acts; and (2) whether plaintiff's suit was started within a reasonable time after restoration of sanity. . . .

[ Ibid.]

That same mandate will be applicable in the trial of this matter. It will be incumbent upon plaintiff to establish pretrial, by medical, psychiatric or psychological evidence, that she suffers from battered woman's syndrome, which caused an inability to take any action to improve or alter the circumstances in her marriage unilaterally, so as to warrant a conclusion by the trial judge that the statute of limitations should be tolled.

We construe the clear legislative statement in the preamble to N.J.S.A. 2C:25-18 as justification for the decision we reach: "the Legislature encourages . . . the broad application of the remedies available under this act in the civil and criminal courts of this State." Ibid. The motion judge, in refusing to be guided by Cusseaux, applied N.J.S.A. 2A:14-2 mechanistically and totally ignored the invitation of the Legislature. We recognize that the motion judge was not bound to follow Cusseaux, as that opinion was rendered by a court of concurrent jurisdiction. However, as we now subscribe to the concept articulated in Cusseaux, we reverse the motion judge's decision and direct that plaintiff shall be entitled to present proof that she has the medically diagnosed condition of battered woman's syndrome. Plaintiff shall be entitled to sue her husband for damages attributable to his continuous tortious conduct resulting in her present psychological condition, provided she has medical, psychiatric, or psychological expert proof to establish that she was caused to have an inability "to take any action at all to improve or alter the situation." Cusseaux, supra, 279 N.J. Super. at 341, 652 A.2d 789.

Our dissenting colleague properly notes that plaintiff has failed to present any medical, physical or psychological evidence to support her claim that she suffers from the medical condition labeled battered woman's syndrome. However, the trial court dismissed count five of plaintiff's complaint alleging "continuous wrong" not because plaintiff failed to present proof of her medical condition in response to defendant's motion, but because the decision in Cusseaux was not binding upon a court of concurrent jurisdiction. Yet, the trial court established a discovery schedule which encompassed the future filing of plaintiff's expert reports. Accordingly, the motion judge's decision to bar all claims for injuries both psychological and physical suffered prior to June 30, 1992 was too broad and was prematurely granted. The motion to dismiss plaintiff's claim should have been decided after plaintiff was compelled to file her expert medical reports, and not prior to the completion of discovery.

IV

Although plaintiff should not have been foreclosed from attempting to prove a claim of battered woman's syndrome, the decision of the trial court dismissing certain aspects of plaintiff's complaint was correct.

In the third count of plaintiff's complaint for divorce, plaintiff specifically refers to a battery which occurred in March 1972, which caused plaintiff to suffer a perforated eardrum resulting in surgery and a two-week hospitalization. Plaintiff contends she suffered a permanent loss in hearing as a result of that attack. In that count, plaintiff also contends: "The defendant has continually since March of 1972, attacked the plaintiff causing her on numerous occasions great physical and bodily injury. The last such beating having occurred in or about June of 1993."

It is clear that the statute of limitations bars any claim asserted in count three for damages attributable to an assault and battery which allegedly occurred in March 1972. The motion judge properly dismissed that claim.

In count five of plaintiff's complaint, plaintiff repeats, by reference, the allegations of count three and then asserts:

The defendant's conduct against the plaintiff has been a continuous and unbroken wrong commencing in or about March of 1972 and continuing down until May of 1993. Said continuous course of conduct by the defendant has caused the plaintiff severe emotional damage and physical damage.

Although plaintiff does not specifically refer to battered woman's syndrome, it is clear that count five is designed to encompass that claim.

We conclude that regardless of any expert medical opinion which may hereafter be filed, all psychological or physical injury associated with the alleged March 1972 incident is barred by the statute of limitations.

As noted, the medical condition of battered woman's syndrome does not occur until a woman is battered at least twice. Kelly, supra, 97 N.J. at 193, 478 A.2d 364 (citations omitted). The physical and emotional injuries suffered as a result of an initial striking may give rise to a tort claim against a spouse, but such a claim must be asserted within two years of the date of injury. N.J.S.A. 2A:14-2. Battered woman's syndrome does not develop, if at all, until a spouse is abused a second time. One common characteristic of battered woman's syndrome is "psychological paralysis," the inability of the victim "to take any action at all to improve or alter the situation." Kelly, supra, 97 N.J. at 194-95, 478 A.2d 364. Here, plaintiff was able to take action. In 1980, plaintiff filed a counterclaim for divorce which alleged acts of extreme cruelty, including a battery committed in March 1972 and a final battery, committed December 28, 1978. She also alleged psychological damage attributable to those beatings. Clearly, the statute of limitations, N.J.S.A. 2A:14-2, must bar any present cause of action predicated upon those alleged marital torts.

Our conclusion that plaintiff's damage claim is barred does not, however, prevent the introduction of proof of those incidents (March 1972 and December 1978) in the forthcoming trial of this matrimonial action. The component of the motion judge's ruling which barred all proofs on plaintiff's claims for emotional distress or negligence to acts occurring after June 30, 1992 was error.

Obviously, in order to prove the medical condition of battered woman's syndrome, plaintiff must be permitted to prove all acts of physical or psychological misconduct. This proof will also encompass the first beating in March 1972. The medical condition is attributable to more than one act of battering. Although plaintiff may be barred from recovering damages for certain marital torts (here, the act allegedly committed in March 1972, which was pled, and on December 28, 1978, which was not specifically pled), those acts and others may be relevant in plaintiff's proofs presented to establish plaintiff's claim of emotional distress. "Relevant evidence" is defined as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. It was error for the court to bar all evidence of abuse occurring prior to June 30, 1992. Some or all evidence of pre-1992 events may be relevant to proving plaintiff's causes of action framed in terms of infliction of emotional distress or negligence. Rulings which exclude proffered evidence are best made at trial, where the court is best able to evaluate "the logical connection between the proffered evidence and a fact in issue." State v. Hutchins, 241 N.J. Super. 353 , 358, 575 A.2d 35 (App.Div. 1990).

Additionally, prior acts of extreme cruelty are always evidential to establish that the last act of cruelty complained of was of such character as to make it unreasonable to expect that plaintiff would continue to cohabit with defendant. That is the basic underpinning of a cause of action for divorce predicated on extreme cruelty. N.J.S.A. 2A:34-2(c) defines "extreme cruelty" as:

any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant.

[ Ibid.]

As noted in Scalingi v. Scalingi, 65 N.J. 180 , 320 A.2d 475 (1974):

Prior to the 1971 amendment, extreme cruelty was considered to be that degree of cruelty, either actually inflicted or reasonably inferred, which endangered the life or health of the aggrieved party, or rendered his or her life one of such extreme discomfort and wretchedness as to incapacitate him or her physically or mentally from discharging the marital duties.

The 1971 amendment not only embraces the foregoing, but also includes physical or mental cruelty which makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant. N.J.S.A. 2A:34-2(c). This latter provision substantially broadens the concept of extreme cruelty as it existed under the earlier statute.

[ Id. at 183, 320 A.2d 475 (citations omitted).]

In Scalingi, plaintiff presented proof of prior acts of physical and mental cruelty preceding the last act of cruelty committed within three months prior to the filing of plaintiff's complaint. Ibid.

It is therefore clear that plaintiff must be permitted to present proofs of all acts of cruelty which occurred during the course of her marriage to defendant. Those prior acts may be offered to prove plaintiff's cause of action for divorce predicated on the grounds of extreme cruelty, or they may be offered as relevant evidence in conjunction with plaintiff's claim for damages attributable to battered woman's syndrome, intentional infliction of emotional distress and negligence.

V

As we noted preliminarily, plaintiff's complaint demanded a trial by jury on counts three through six of her complaint alleging "domestic torts" and on counts seven through eleven alleging "equitable claims." On defendant's motion to strike plaintiff's jury trial demand, the motion judge, relying on Boardwalk Properties, Inc. v. BPHC Acquisition, Inc., 253 N.J. Super. 515 , 526-27, 602 A.2d 733 (App.Div. 1991), determined that plaintiff had no constitutional right to a trial by jury and granted defendant's motion to strike.

Plaintiff contends that she has a constitutional right to a jury trial on her tort claims pursuant to N.J. Const. art I, ¶ 9. In support of that argument, plaintiff cites Tweedley v. Tweedley, 277 N.J. Super. 246 , 649 A.2d 630 (Ch.Div. 1994). Defendant contends that the motion judge's ruling should be affirmed, citing Davis v. Davis, 182 N.J. Super. 397 , 442 A.2d 208 (Ch.Div. 1981).

The Seventh Amendment of the Federal Constitution, which provides the right to a trial by jury in a civil case, is not enforceable against the states.

By article I, paragraph 9, of the Constitution of 1947, "The right of a trial by jury shall remain inviolate." This provision means exactly what it says. Where the right to a trial by jury existed under the Constitution of 1844, the right continues unimpaired under the new Constitution.

[ Steiner v. Stein, 2 N.J. 367 , 378-79, 66 A.2d 719 (1949); See also Boardwalk Properties, Inc. v. BPHC Acquisition, Inc., supra, 253 N.J. Super. at 527, 602 A.2d 733.]

At common law, prior to 1947, cases sounding in tort carried with them a right to a jury trial. Kenney v. Scientific, Inc., 213 N.J. Super. 372 , 374-75, 517 A.2d 484 (App.Div. 1986). The concurrent jurisdiction of the Law Division and Chancery Division does not deny a party the right to a jury trial under the State Constitution. Fisch v. Manger, 24 N.J. 66 , 75, 130 A.2d 815 (1957); O'Neill v. Vreeland, 6 N.J. 158 , 167, 77 A.2d 899 (1951).

Nevertheless, "[i]f a court of equity, prior to 1947, would have considered the legal issue `ancillary' or `incidental' to the cognizable equitable claim, then the issue was [and still is] triable without a jury." Boardwalk Properties, Inc. v. BPHC Acquisition, Inc., supra, 253 N.J. Super. at 527, 602 A.2d 733; See also Fleischer v. James Drug Stores, 1 N.J. 138 , 150, 62 A.2d 383 (1948). There is no right to a jury trial if the legal issues are "germane to or grow out of the subject-matter of the equitable jurisdiction." Fleischer v. James Drug Stores, ibid. "However, it is incorrect to assume that all claims arising out of the same controversy are `germane to or grow out of the subject matter of the equitable jurisdiction.' Indeed, legal claims may grow out of a controversy that are independent of the equitable action." Boardwalk Properties, Inc. v. BPHC Acquisition, Inc., supra, 253 N.J. Super. at 528 , 602 A.2d 733.

For example, in Chiacchio v. Chiacchio, 198 N.J. Super. 1 , 7, 486 A.2d 335 (App.Div. 1984), the court held that a third-party complaint against Allstate Insurance Company and Allstate's counterclaim for declaratory relief, which involved legal issues relating to Allstate's liability for domestic torts allegedly committed by defendant against plaintiff under an insurance policy issued by Allstate, did not arise out of the marital relationship that gave rise to plaintiff's divorce and tort action against defendant.

In contrast, in Apollo v. Kim Anh Pham, 192 N.J. Super. 427, 430, 432, 470 A.2d 934 (Ch.Div. 1983), aff'd, 224 N.J. Super. 89 , 539 A.2d 1222 (App.Div. 1987), the court concluded that the legal demand for damages presented by defendant in her counterclaim, based on an alleged contract wherein plaintiff promised to support defendant and her children in exchange for her cohabiting with plaintiff in Vietnam and subsequently maintaining a home for him in the United States, were ancillary to plaintiff's equitable claims for specific performance, arising out of the same facts based on theories of quantum meruit and quasi-contract.

The Chancery Division has twice considered the issue at hand. In Davis v. Davis, supra, 182 N.J. Super. at 398-99 , 442 A.2d 208, the court denied a wife's request for a jury trial on her domestic tort claim based largely on a report by the subcommittee of the Supreme Court Committee on Matrimonial Litigation, to the effect that: "As a matter of judicial administration, no jury trial for a marital tort should be provided in an action for divorce. . . ." Supreme Court Committee on Matrimonial Litigation, Phase Two Final Report, June 10, 1981, at 78-79. The subcommittee concluded that a domestic tort claim is closely related to equitable distribution and therefore, is incidental and ancillary to the underlying divorce action. Id. at 399, 442 A.2d 208. Hence, the subcommittee recommended that courts should not allow a jury trial of a domestic tort in conjunction with an action for divorce. Ibid. The court noted that the report had not been implemented and did not have the force of law. Ibid. We note that the subcommittee report did not indicate that a tort claimant does not have a right to a jury trial. The recommendation was primarily predicated upon the dictates of judicial administration, focusing upon the difficulty in accommodating a jury trial within the framework of an equitable proceeding.

The Chancery Division came to the opposite conclusion in Tweedley v. Tweedley, supra, 277 N.J. Super. at 247, 649 A.2d 630. First, the Tweedley court noted that its case was distinguishable from Davis because defendant amended her counterclaim for divorce from extreme cruelty to no-fault, and plaintiff's allegations of cruelty were few. Id. at 252, 649 A.2d 630. Therefore, the Tweedley court stated that it could not conclude that the tort claim was closely related to the divorce action. Ibid. Tweedley also relied on Merenoff v. Merenoff, supra. The Supreme Court, in discussing the scope of interspousal tort liability, declared:

There is a range of activity arising in the course of a marriage relationship beyond the reach of the law of torts. Special matters of privacy and familiarity may be encompassed by a marital or nuptial privilege and fall outside the bounds of a definable and enforceable duty of care. Certain conduct may also be regarded as "consensual", involving the "give-and-take" and subtle ebb and flow of married life. In these areas courts and juries cannot be expected to grasp sensibly and consistently the acceptable norm of married living or chart the parameters of reasonable marital behavior as a predicate for affixing liability in tort.

[ Merenoff v. Merenoff, supra, 76 N.J. at 555, 388 A.2d 951 (citations omitted) (emphasis added).]

Furthermore, the Court commented:

Similarly, certain kinds of claimed injuries between married persons will be based on simple domestic carelessness arising from activities which partake of the everyday exigencies of regular household existence and, for that reason, may not readily be controlled or influenced by the law of torts through the judicial imposition of a duty of care and the corresponding obligation to respond in damages for its breach. Thus, absent the immunity bar, the fear that trivial, exaggerated or unrealistic claims for personal injury will be brought by married persons is counterpoised by the realization that such claims for the most part will not be cognizable by courts or rewarded by juries.

[ Id. at 555-56, 388 A.2d 951 (citation omitted) (emphasis added).]

We recognize that Merenoff was a consolidation of two appeals: Merenoff v. Merenoff, a wife's claim against her husband for the traumatic amputation of her left index finger, resulting from his alleged negligent use of a hedge trimmer; and Mercado v. Mercado, a wife's claim for serious burns resulting from her husband's use of a flammable substance near a stove. Neither case involved an intentional tort allegedly committed by one spouse against the other. Nonetheless, the Court concluded that interspousal immunity in all tort actions would thereafter be abolished. Id. at 556, 388 A.2d 951. In its historical analysis leading to its ultimate conclusion, Merenoff cited Tevis v. Tevis, 155 N.J. Super. 273 , 382 A.2d 697 (1978), rev'd on other grounds, 79 N.J. 422 , 400 A.2d 1189 (1979), in which the Appellate Division recognized a spouse's right to sue for interspousal intentional torts. Tevis involved an appeal of a jury verdict awarding compensatory and punitive damages to a former wife for injuries sustained as a result of assault and battery committed by her former husband at a time when the parties were still married. The Supreme Court stated:

Divorce or separation provide escape from tortious abuse but can hardly be equated with a civil right to redress and compensation for personal injuries. Equally arcane and unworthy is the notion that a wronged spouse, who has been injured at the hands of her or his mate, can and should resort to an arsenal of "private sanctions". Regardless of the ways a person can "get back" at one's spouse, they do not add up to an enforceable civil right of recovery for damages.

[ Merenoff v. Merenoff, supra, 76 N.J. at 556-57, 388 A.2d 951 (citations omitted).]

We find nothing in the language of the Supreme Court to prohibit the right to a jury trial.

The Supreme Court has not had occasion to address the specific right of trial by jury to recover damages for interspousal torts since its decision in Merenoff. The Court did not discuss trial by jury when it later decided Tevis v. Tevis, 79 N.J. 422 , 400 A.2d 1189 (1979) and concluded a marital tort claim must be presented in conjunction with pending matrimonial litigation by virtue of the entire controversy rule. Id. at 434, 400 A.2d 1189.

Tweedley did not merely distinguish Davis, but pointed out that in New Jersey, fault is not one of the criteria a court should consider in resolving the issues of support and equitable distribution. Tweedley v. Tweedley, supra, 277 N.J. Super. at 253, 649 A.2d 630. In addition, the court explained that it is substantively and procedurally feasible for the family court judge to hear the divorce action while permitting a jury to determine the issues of damages and fault, which are central to a domestic tort claim. Ibid. The court suggested that the family court judge can then allocate the damages and/or modify the support following the jury verdict. Ibid. Finally, the court stated that divorce actions are already complicated and subject to delay because Tevis requires the joinder of domestic tort claims with the underlying divorce action. Ibid. Therefore, the court opined that allowing a jury trial on the domestic tort claim will not increase the delay or complicate the issues. Ibid.

The Davis court provided no analysis in its decision, other than citing the report of the subcommittee of the Supreme Court Committee on Matrimonial Litigation. The Tweedley court, however, thoroughly explained why a jury trial on the domestic tort claim would not further complicate the divorce action or cause any more delay than what Tevis already caused. In addition, the Tweedley court explained that the domestic tort is not ancillary to the divorce action because fault, the major issue posed by a domestic tort, is not an issue in the determination of support or equitable distribution.

We find the analysis in Tweedley more persuasive than that in Davis. In addition to the reasons expressed in Tweedley, we note that presently a married person may sue a spouse for damages attributable to tortious conduct. If the injured spouse chooses not to sue for divorce, the tort claimant will be entitled to a jury trial in the Law Division. However, if the injured spouse also seeks a divorce, that spouse would be deprived of a jury trial. We can find no logical reason to maintain that dichotomy.

We are mindful that since Davis, decided in 1981, there has not been an onslaught of matrimonial litigants challenging the deprivation of a right to a jury trial on damage claims arising from domestic torts. We infer that our courts of equity have been able to adjudicate tort claims asserted in matrimonial litigation and to ascribe damages as a component of a divorce judgment within the ambit of the expectations of the tort claimant. We envision that tort claims encompassing complex medical issues or substantial claims of permanent disability, whether physical or psychological, may warrant a jury trial. Just as Merenoff created an exception from the abolition of interspousal torts, claims based on "marital or nuptial privileges, consensual acts and simple, common domestic negligence, to be defined and developed on a case-by-case approach," Tevis v. Tevis, supra, 79 N.J. at 427, 400 A.2d 1189, we also conclude that tort claims which are not the permanent cause of serious and significant psychological or physical injuries should not give rise to a jury trial.

Every tort claimant should be entitled to demand a jury trial in the first pleading filed asserting such a claim in a matrimonial dissolution proceeding. However, in order to qualify for a jury trial, the claimant must establish by written expert opinion that proofs will be introduced at trial demonstrating that the injury is serious and significant, resulting in permanent physical or psychological injury, to be defined and developed on a case-by-case approach. Alternatively, a plaintiff must establish that the nature of the injury, whether physical or psychological, requires complex medical evidence. A tort claimant will be required to meet this threshold in response to a motion to strike the jury trial demand after all discovery has been completed and the pending matter is deemed ready for trial by the court.

We are constrained to reverse the decision of the motion judge in this case. Plaintiff shall have the right to present her claims for compensatory and punitive damages to a jury as part of the entire dissolution of marriage proceeding, provided that plaintiff can establish that she has sustained serious or significant permanent physical or psychological damage, or that her injuries require complex medical proof.

In the presentation of plaintiff's claim for damages to the jury, plaintiff obviously will present proof of her age, her physical and emotional health, and possibly claims that her occupational capacity is limited by her physical or emotional health, proximately resulting from defendant's tortious conduct. If plaintiff recovers a favorable jury verdict predicated upon those proofs, then the court thereafter shall be particularly mindful of that judgment in equitably dividing the marital property. N.J.S.A. 2A:34-23.1 directs that a court shall consider fifteen factors in equitably dividing property, including "[t]he age and physical and emotional health of the parties;" "[t]he income and earning capacity of each party;" and "[t]he debts and liabilities of the parties." Ibid.

Clearly, plaintiff's age, physical and emotional health and occupational limitations, if any, attributable to defendant's tortious conduct, may not again be considered in evaluating the equitable division of property issues. Likewise, defendant's actual liability in tort resulting in judgment must be considered in the court's decision respecting the division of property. The judgment debt owed plaintiff must also be considered in evaluating plaintiff's demand for alimony and particularly defendant's ability to pay alimony. There may not be a double recovery from defendant.

VI

Part V of this opinion focuses solely on the right to a jury trial on counts three through six of plaintiff's complaint. Plaintiff's jury trial demand also encompassed counts seven through eleven of her complaint, denominated "equitable claims."

Although plaintiff's notice of appeal encompassed an appeal from the decision striking her jury trial demand, plaintiff's brief on appeal focused solely upon the right to a jury trial for marital tort claims. Plaintiff's brief fails to assert any claim of error attributable to the motion judge's decision pertinent to her "equitable claims." Defendant's brief is also silent on that issue.

It is quite clear that plaintiff has no right to a jury trial on her claim that premarital real property titled solely in defendant's name should be included in the marital estate for equitable distribution purposes, by virtue of the concepts of transmutation of property, constructive/resulting trusts, implied contract, unjust enrichment, and quasi-contract. Those concepts are clearly equitable in nature, and as such, they should be presented solely to the court as the trier of fact. Boardwalk Properties, Inc. v. BPHC Acquisition, Inc., supra, 253 N.J. Super. at 527 , 602 A.2d 733.

VII — SUMMARY

The component of the order striking plaintiff's demand for a jury trial on counts seven through eleven is affirmed. However, the portion of the order striking plaintiff's demand for a jury trial on counts three through six is reversed. A jury trial will be permitted on these claims, provided plaintiff's proofs satisfy the threshold requirements outlined in Part V of this opinion.

The component of the order striking all tortious claims occurring prior to June 30, 1992, based upon N.J.S.A. 2A:14-2, is modified. Plaintiff is barred from pursuing a claim for damages for assault and battery on any battery occurring prior to June 30, 1992, but she is permitted to assert a claim for battered woman's syndrome attributable to acts occurring after October 25, 1982, when plaintiff's prior counterclaim for divorce was dismissed with prejudice. Our modification of the motion judge's order is without prejudice to defendant's right to again move to strike plaintiff's claim of continuous tort resulting in battered woman's syndrome, should plaintiff fail to amend her complaint to allege specifically the acts of continuous violence occurring after October 25, 1982, which she contends resulted in the condition described as battered woman's syndrome.

The component of the order limiting plaintiff's proofs on her claims for emotional distress, count four, and negligence, count six, to acts occurring after June 30, 1992 is modified. Plaintiff may produce proof of facts occurring prior to June 30, 1992, if deemed relevant to proving acts occurring after June 30, 1992. Plaintiff may not recover damages for any acts of emotional distress or negligence occurring prior to June 30, 1992.