Simmons v. Simmons , 12 Brief Times Rptr. 1741 ( 1988 )

VAN CISE, Judge,

concurring in part and dissenting in part.

I disagree with Part II of the majority opinion. Therefore, although I concur in the reversal of the judgment, I would remand with directions to dismiss the complaint.

I agree with defendant husband’s contention that plaintiff wife should have asserted her tort claims as counterclaims when she filed her answer in the dissolution action. Since she did not so plead, the instant case based on these claims should have been dismissed under the doctrine of res judicata.

The district court in the dissolution action is a trial court of general jurisdiction. Colo. Const, art. VI, § 9. Section 14 — 10—. 105(1), C.R.S. (1987 Repl.Vol. 6B) of the Uniform Dissolution of Marriage Act (the Act) states that: “The Colorado Rules of Civil Procedure apply to all proceedings under this article, except as otherwise specifically provided in this article.” There is no language in the Act prohibiting joinder of other claims with proceedings under the Act. Therefore, C.R.C.P. 13(a) pertaining to compulsory counterclaims is applicable as in any other type of civil action.

The complained of acts arose out of the failed marital relationship and, therefore, came under the category of compulsory counterclaims as defined in C.R.C.P. 13(a). Not having been raised in the dissolution proceeding, they are barred. See Visual Factor, Inc., v. Sinclair, 166 Colo. 22, 441 P.2d 643 (1968); McCabe v. United Bank, 667 P.2d 976 (Colo.App.1982). This is so even though the evidence needed to establish these tort claims is quite different from that pertaining to the dissolution action, see Visual Factor, Inc., supra., as here, there is a logical relationship between the claim for dissolution and the claims for torts committed during the marriage. See McCabe, supra.

Also, § 106(l)(b) of the Act directs the court to “consider, approve, or make provision for ... the disposition of property” in conjunction with the entry of a decree of dissolution. These tort claims are choses in action and, therefore, are property to be disposed of in the dissolution proceeding. And, since one of the underlying purposes of the Act, as stated in § 102(2)(a), is “[t]o promote the amicable settlement of disputes that have arisen between parties to a marriage,” the dissolution court is the proper court to decide all claims and disputes that may exist between the parties. See Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979).

. The judgment should be reversed and the complaint should be dismissed.