Bozman v. Bozman

BARBERA, Judge. This appeal asks that we examine the “aged, if not antiquated,” doctrine of interspousal immunity. 1 Despite its antiquity, the doctrine remains a part of Maryland’s common law. Appellant, William E. Bozman, appeals from an order of the Circuit Court for Baltimore County dismissing his two-count second amended complaint against appellee, Nancie L. Boz-man, on the ground that it was barred by interspousal immunity. 2 Appellant presents the following questions for our review, which we have rephrased: ¹⁸⁶ I. Did the circuit court err in dismissing Count I of the second amended complaint on the ground of inter-spousal immunity because malicious prosecution is an outrageous intentional tort, to which the defense of interspousal immunity does not apply?

II

Did the circuit court err in dismissing Count II of the second amended complaint on the ground of inter-spousal immunity because the parties were not married when the cause of action arose? We hold that the tort of malicious prosecution is not so outrageous as to bring it within the narrow exception to the doctrine of interspousal immunity, and thus we affirm the decision of the circuit court dismissing Count I of the second amended complaint on this basis. But, because appellee failed to demonstrate that the parties were married when the cause of action in Count II arose, we vacate the court’s dismissal of that count and remand for further proceedings. FACTUAL BACKGROUND AND LEGAL PROCEEDINGS Appellant and appellee were married in a civil ceremony in Baltimore County, Maryland on August 16,1968.

As of late, a tenuous relationship has existed between the parties. In January 2001, appellant filed a one-count complaint for malicious prosecution against appellee. The complaint alleged that on three separate occasions appellee filed false criminal charges against him, causing the State’s Attorney for Baltimore County to file a criminal information. The charges included stalking, harassment, and multiple violations of a protective order.

The complaint further alleged that some of the charges were dismissed before trial and the remainder resulted in appellant’s acquittal. Appellee filed a motion to dismiss appellant’s complaint on the grounds that the complaint failed to state a claim upon which relief could be granted and that the doctrine of inter-spousal tort immunity barred the suit. Attached to the motion was a memorandum of law and an affidavit, signed by ¹⁸⁷ appellee and dated February 16, 2001, stating “[t]hat she is still married to [appellant].” On March 12, 2001, after the filing of appellee’s motion to dismiss but before the court ruled on it, the parties were divorced. Thereafter, the court dismissed appellant’s complaint with fifteen days leave to amend it.

Appellant filed an amended complaint, curing a factual deficiency in the original complaint. Appellee responded with a motion to dismiss the amended complaint, again asserting interspousal immunity. Appellee attached to the motion a memorandum of law and an affidavit, signed by her and dated April 28, 2001, again stating “[t]hat at all times alleged in the Amended Complaint,” the parties were husband and wife. On July 80, 2001, the court held a hearing on appellee’s motion to dismiss the amended complaint.

At the outset, appellant informed the court of his intention to file a second amended complaint that same day, incorporating by reference the allegations contained in his amended complaint and adding a second count for malicious prosecution. Count II of the second amended complaint alleged that appellee maliciously and falsely filed new charges against him for violating an ex parte order, that the charges were brought to trial, and that they were dismissed for lack of evidence. At the hearing, the parties stipulated that appellee’s defense of interspousal immunity would be deemed raised in response to appellant’s newly presented second amended complaint. Appellant emphasized, however, that the defense did not apply to Count II because the parties were divorced by the time the grounds for the cause of action set forth in that count had arisen.

Appellee did not respond to appellant’s assertion that their divorce foreclosed her reliance on interspousal immunity as a defense to Count II. Nor did she suggest that an affidavit would be forthcoming reflecting that the parties were married when the cause of action set forth in Count II arose. ¹⁸⁸ Regarding the doctrine’s applicability to Count I, appellant relied on Lusby v. Lusby, 283 Md. 334 , 390 A.2d 77 (1978). He argued that the intentional deprivation of someone’s liberty by the bringing of repeated false allegations resulting in incarceration is sufficiently outrageous to render the doctrine inapplicable. At the conclusion of the hearing, the court dismissed both Counts I and II of the second amended complaint as barred by interspousal immunity, stating: “I don’t think that the situation as set forth in this case meets the ... outrageous set of facts that was set out in Lusby.” The court did not address appellant’s argument that the defense did not apply to Count II because the parties were not married at the relevant time.

From the court’s order dismissing his complaint, appellant filed this timely appeal. DISCUSSION Appellant mounts a two-pronged attack upon the court’s dismissal of his second amended complaint. With regard to Count I, he argues that the defense of interspousal immunity, though seemingly applicable because the parties were married when the cause of action arose, is inapplicable to the tort of malicious prosecution alleged in that count because of the tort’s “outrageous” character. As he did below, appellant relies upon the Court of Appeals’ Lusby decision, which held that the doctrine does not apply to “the type of outrageous, intentional conduct” alleged in that case.

With regard to Count II, appellant argues that the defense simply does not apply, because appellee failed to establish that the parties were married at the time the cause of action alleged in that count arose. Presumably, appellant would also argue that the reasons why the court erred in dismissing Count I apply with equal force to Count II. We shall discuss each of appellant’s complaints in turn. But first, we review the doctrine of interspousal immunity that underlies the issues presented on appeal. ¹⁸⁹ Interspousal Immunity The common law doctrine of interspousal immunity was predicated on the concept of a husband and wife as one legal unit.

Thompson v. Thompson, 218 U.S. 611, 614 , 31 S.Ct. 111 , 54 L.Ed. 1180 (1910). The foundation of this nearly extinguished doctrine lay not only in the archaic belief that the marriage of a man and woman created a single entity, but also on the premise that to allow suits between spouses would adversely affect familial ties and strike at the heart of domestic relations. 3 Id. Because a wife’s legal identity merged with her husband’s upon marriage, married women could not enter into contracts, own property, sue, or be sued. Id. at 614-15 , 31 S.Ct. 111 .

This legal fiction of husband and wife as one identity barred suits between spouses. 4 Id. at 615 , 31 S.Ct. 111 . The doctrine’s applicability to tort cases has long been a part of Maryland’s common law. See Doe v. Doe, 358 Md. 113, 119 , 747 A.2d 617 (2000), and eases cited therein. The Court of Appeals and this Court nevertheless have recognized that the historical underpinnings of the doctrine are contrary to present-day circumstances.

Boblitz v. Boblitz, 296 Md. 242, 245 , 462 A.2d 506 (1983); Linton v. Linton, 46 Md.App. 660, 661 , 420 A.2d 1249 (1980). Indeed, over the years, the Court of Appeals has had misgivings about some of its prior decisions holding that the doctrine remains viable in Maryland. ¹⁹⁰ More than half a century ago, Chief Judge Marbury, writing for the Court, rejected as “artificial” the “broader sociological and political ground that [suits between spouses] would introduce into the home, the basic unit of organized society, discord, suspicion and distrust, and would be inconsistent with the common welfare.” Gregg v. Gregg, 199 Md. 662, 666 , 87 A.2d 581 (1952) (citations omitted). Chief Judge Marbury said the following about that asserted rationale for the doctrine: It applies to a post-bellum situation a theory which is clearly only applicable to conditions prior to the difficulty which caused the bringing of the legal action. After discord, suspicion and distrust have entered the home, it is idle to say that one of the parties shall not be allowed to sue the other because of fear of bringing in what is already there.

Id. at 667 , 87 A.2d 581 . Its criticism of the doctrine notwithstanding, the Court of Appeals was unwilling in Gregg, and for many years thereafter, to abrogate the doctrine in the face of legislative silence on the subject. See, e.g., Stokes v. Assoc. of Indep. Taxi Operators, Inc., 248 Md. 690, 691 , 237 A.2d 762 (1968) (recognizing a split of authority on the continued viability of the doctrine, but stating that any change in the rule must come from the General Assembly); Hudson v. Hudson, 226 Md. 521, 526-27 , 174 A.2d 339 (1961) (stating that “we feel impelled to follow our previous decisions ... and to hold that the wife’s cause of action [against husband to recover for personal injuries] was extinguished upon marriage to the defendant____”); Ennis v. Donovan, 222 Md. 536, 542-43 , 161 A.2d 698 (1960) (holding that the common law precluded a married woman from suing her husband for injuries suffered by her as the result of his negligence, and that “if it be desirable to permit a married woman, under certain circumstances, to sue her husband in tort, this authorization should emanate from the Legislature, not from the courts”); Gregg, 199 Md. at 670 , 87 A.2d 581 (concluding that, absent an “express mandate from the Legislature to that effect,” the Court was powerless to permit a wife’s suit against her husband, and if “this ¹⁹¹ omission should be repaired, it is for the Legislature, and not for us, to act”).

It was not until 1978, in Lusby , that the Court of Appeals narrowed the scope of the doctrine’s applicability in the area of intentional torts. In that case, Ms. Lusby brought a tort action for damages against her husband, alleging that he and two unidentified men had forced her vehicle off a public highway at gunpoint, and that he then “forcefully and violently” raped her and thereafter assisted his accomplices in attempting to rape her. 283 Md. at 335-36 , 390 A.2d 77 . Judge Smith, writing for the Court, traced the doctrine’s history and application to cases in Maryland, and declared: “We can conceive of no sound public policy in the latter half of the 20th-century which would prevent one spouse from recovering from another for the outrageous conduct here alleged.” Id. at 357 , 390 A.2d 77 . Noting that “[t]he General Assembly has not heeded the suggestions by this Court that a new statute be enacted,” and that none of the Court’s prior cases had involved an intentional tort, id., the Court held: “We find nothing in our prior cases or elsewhere to indicate that under the common law of Maryland a wife was not permitted to recover from her husband in tort when she alleged and proved the type of outrageous, intentional conduct here alleged,” id. at 358 , 390 A.2d 77 . 5 ¹⁹² Then Chief Judge Gilbert, writing for this Court two years later in Linton , had this to say about the Court’s decision in Lusby : Maryland has steadfastly adhered to the common law doctrine of interspousal immunity in tort cases.

Nevertheless, the Court, in Lusby [ ], recognized an exception to the doctrine whenever the tort committed against the spousal victim is not only intentional, as in assault and battery, but “outrageous,” as where the errant spouse’s conduct transcends common decency and accepted practices. The Court, in Lusby , was cognizant of the fact that there was no marital harmony that could be preserved by denying to the wife in that case the right to pursue civil remedies for the wrong done to her because the husband had effectively destroyed the marriage through his own atrocious misbehavior. Lusby represents a safe passage past the Rock [“of Gibraltar, guarding, as it were the sea of matrimony from an invasion by causes apt to alienate the spouses.” 46 Md.App. at 661 , 420 A.2d 1249 ]. It is a limited way to be sure, but it is a small gap that heretofore did not exist. 46 Md.App. at 664 , 420 A.2d 1249 (citations and footnotes omitted).

Lusby was followed by Boblitz , decided by the Court of Appeals in 1983. The Court had before it a trial court’s grant of summary judgment to the husband in his wife’s suit against him alleging negligence in his operation of a motor vehicle that led to her suffering “serious, painful and permanent injuries.” 296 Md. at 243 , 462 A.2d 506 . The Court took this opportuni ¹⁹³ ty to abrogate the common law of interspousal immunity in negligence cases. Playing a part in the Court’s decision, apparently, was the view held by a majority of the courts nationwide that the underpinnings of the doctrine found no place in modern society: We share the view now held by the vast majority of American States that the interspousal immunity rule is unsound in the circumstances of modern life in such cases as the subject [case].

It is a vestige of the past. We are persuaded that the reasons asserted for its retention do not survive careful scrutiny. They furnish no reasonable basis for denial of recovery for tortious personal injury. We find no subsisting public policy that justifies retention of a judicially created immunity that would bar recovery for injured victims in such cases as the present.

Id. at 273 , 462 A.2d 506 . The Court was “mindful of the value of the doctrine of stare decisis and aware that for reasons of certainty and stability, changes in decisional doctrine ordinarily should be left to the Legislature.” Id. The Court nevertheless concluded: “ ‘We have never construed [the doctrine of stare decisis ] to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people.’ ” Id. at 274 , 462 A.2d 506 (quoting Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 459 , 456 A.2d 894 (1983)). The Court went on to hold in Boblitz that, in cases such as the one before it, “we have no legislative barrier to abrogation of this outmoded rule of law.

Indeed, after legislative passage and approval by the people of Article 46 of the Maryland Declaration of Rights any ancient deprivation of rights based upon sex would contravene the basic law of this State.” Id. at 274-75 , 462 A.2d 506 . Cognizant of the Court of Appeals’ decision in Bushy, and apparently influenced by the Court’s subsequent opinion in ¹⁹⁴ Boblitz , this Court for some time entertained the notion that Lusby had abrogated the doctrine of interspousal immunity with respect to all intentional torts. Thus, in Bender v. Bender, 57 Md.App. 593, 600 , 471 A.2d 335 , cert. denied, 300 Md. 152 , 476 A.2d 721 (1984), we described the issue before us as “whether the earlier case of Lusby [ ], is to be restricted to the facts of that case ..., or whether Lusby serves as a beacon for Boblitz____” We reasoned in Bender that “the Court’s primary focus in Lusby was its recognition that henceforth in Maryland intentional torts would form a basis for interspousal suits at law.” Id. at 601, 471 A.2d 335 . We commented that the Court’s use of the word “outrageous” in Lusby was a mere adjective that appropriately described the offense, “but the Court was sanctioning claims for intentional torts and not claims limited to outrageous torts.” Id. at 601-02, 471 A.2d 335 .

We therefore upheld the trial court’s finding that an intentional tort was committed under circumstances “which render[ed] legally inappropriate the interposition of interspousal immunity....” Id. at 602 , 471 A.2d 335 . Our decision in Bender led us, in Doe v. Doe, 122 Md.App. 295, 309 , 712 A.2d 132 (1998), rev’d, 358 Md. 113, 747 A.2d 617 (2000), to declare that neither the doctrine of interspousal immunity nor public policy barred the husband’s causes of action for fraud and intentional infliction of emotional distress. We followed our opinion in Bender to say in Doe that Lusby had abolished the defense of interspousal immunity with respect to all intentional torts. Id. at 322-23, 712 A.2d 132 .

Our opinion in Doe, however, was reversed by the Court of Appeals. Doe v. Doe, 358 Md. 113 , 747 A.2d 617 (2000). The Court made clear in that case that we were wrong in both Bender and Doe to conclude that Lusby had abrogated inter-spousal immunity for all intentional torts. Id. at 120, 747 A.2d 617 .

In so doing, the Court reaffirmed its “narrow” holding of Lusby that, “under the common law of this State, interspousal immunity ha[s] never been applied where the conduct alleged was ‘outrageous’ and intentional.” Id. at 121, 747 A.2d 617 ; Lusby, 283 Md. at 358 , 390 A.2d 77 . ¹⁹⁵ As the Court of Appeals itself has done, Boblitz, 296 Md. at 273 , 462 A.2d 506 , we question the continued viability of this antiquated doctrine. The doctrine runs counter to present-day norms. Further, its application often arises in instances when the parties’ marriage is near dissolution or, at the very least, is foundering on the shoals of anger, distrust, or discontent. This leaves little doubt that the doctrine’s oft-cited rationale of preserving the unity and sanctity of the marital unit simply does not pertain.

We recognize that the doctrine may serve the practical purpose of preventing spouses from instituting suits in tort as a means of gaining an advantage in pending divorce proceedings or for some other improper reason. 6 We remain unconvinced, however, that retention of this doctrine best reflects the will of the people of this State as evidenced by, among other reforms, enactment of the Equal Rights Amendment in 1972. 7 ¹⁹⁶ Regardless, we are bound to