Doe v. Doe

ELDRIDGE, Judge. The issue presented in this case is whether Maryland law recognizes tort actions filed by a husband against his wife for fraud and intentional infliction of emotional distress when the actions are based upon the wife’s alleged adultery and subse ¹¹⁶ quent misrepresentation of the paternity of children born during the marriage. I. Jane Doe, the petitioner, and John Doe, the respondent, were married on September 2, 1989. During their marriage, three children were born: J.D. Doe, born February 21, 1992, and the twins A.E. and Z.S. Doe, born July 10, 1993.

Unbeknownst to Mr. Doe, beginning in 1990 Ms. Doe had been sexually involved with her art professor, M.G. Mr. Doe did not learn about the affair until July 1996, when he discovered a letter written by Ms. Doe to M.G., which stated, in part: “It remains my belief that at some point in the course [of] our relationship I disappointed you deeply, and that this is ... responsible for bringing about the distance which has complicated our interactions during the past few years. The commencement of this change seems to roughly correlate with the birth of our children.... You will always be the father of my children.... The divulging of their identities will be at your discretion.” After reading the letter and confirming his suspicions in a telephone conversation with M.G., Mr. Doe confronted Ms. Doe who denied the allegations.

The next day, July 12, 1996, Mr. Doe filed in the Circuit Court for Baltimore County a complaint for absolute divorce. The complaint alleged that Ms. Doe had committed adultery, and requested that Mr. Doe be awarded custody of the children, child support, use and possession of the family home, a monetary award, and counsel fees. After filing the divorce action, Mr. Doe inquired as to whether he was, in fact, the father of the three children. Ms. Doe had always acted as though Mr. Doe fathered the children, including having his name placed on their birth certificates.

Mr. Doe alleged that he never questioned the paternity of the children until he found Ms. Doe’s letter. Both parties agreed that they and the children would submit to blood testing in order to determine paternity. The results of the ¹¹⁷ tests disclosed that Mr. Doe was the biological father of J.D., but that he was not the biological father of the twins. Upon receiving the blood test results, Mr. Doe filed an amended complaint for absolute divorce and “other causes of action” in December 1996.

In addition to the original count seeking divorce, custody, child support, and relief related thereto, counts II and III of the amended complaint sought damages for fraud and intentional infliction of emotional distress resulting from Ms. Doe’s alleged adultery and misrepresentation of the paternity of the children. The amended complaint also included counts IV through VIII, which were based upon Mr. Doe’s allegation that Ms. Doe had encouraged him to deposit part of his salary into the couple’s joint checking account rather than his 401 (k) plan, assuring him that he could rely on her stockholdings for his retirement. The Circuit Court for Baltimore County dismissed counts IV through VIII under Maryland Rule 2—322(b)(2), for failure to state a claim for which relief could be granted. The court also dismissed counts II and III, holding that the asserted causes of action were barred by interspousal immunity and by public policy.

The Circuit Court, pursuant to Maryland Rule 2-602(b), entered a final judgment on counts II through VIII. Upon Mr. Doe’s appeal, the Court of Special Appeals affirmed the dismissal of counts IV through VIII but reversed the dismissal of counts II and III. The intermediate appellate court held that neither the doctrine of interspousal immunity nor public policy barred Mr. Doe’s causes of action for fraud and intentional infliction of emotional distress. Doe v. Doe, 122 Md.App. 295 , 712 A.2d 132 (1998).

Relying upon its earlier opinion in Bender v. Bender, 57 Md.App. 593, 600-602 , 471 A.2d 335, 338-339 , cert. denied, 300 Md. 152 , 476 A.2d 721 (1984), the Court of Special Appeals in the present case took the position that this Court in Lusby v. Lusby, 283 Md. 334 , 390 A.2d 77 (1978), had abolished the defense of interspousal immunity with respect to all intentional tort actions. See Doe v. Doe, supra, 122 Md.App. at 322-323 , 712 A.2d at 145 . Accordingly, the intermediate appellate court held that the causes of action asserted in counts II and III were not ¹¹⁸ precluded by the doctrine of interspousal immunity. The Court of Special Appeals went on to hold that no other public policy considerations, such as the concern for the best interests of the children or the availability of divorce and marital property remedies, precluded the fraud and intentional infliction of emotional distress causes of action.

Finally, the Court of Special Appeals held that the factual allegations in the amended complaint were sufficient to assert causes of action for fraud and intentional infliction of emotional distress. Ms. Doe, challenging the Court of Special Appeals’ holdings as to counts II and III, filed a petition for a writ of certiorari which this Court granted. Doe v. Doe, 351 Md. 161 , 717 A.2d 384 (1998). The petitioner argues that the Court of Special Appeals misinterpreted this Court’s opinion in Lusby v. Lusby, supra, and that the Lusby opinion did not abrogate the doctrine of interspousal immunity in all intentional tort actions.

According to petitioner, under Lusby , interspousal immunity is a defense to the torts asserted in counts II and III because “the present claims' carry with them perils of domestic intrusion, a negative impact to the societal concern for the best interest of children, and judicial burden.” (Petitioner’s brief at 8). The petitioner goes on to argue that additional public policy considerations militate against recognition of the causes of action alleged in counts II and III. The respondent maintains that the Court of Special Appeals correctly interpreted this Court’s opinion in the Lusby case. Furthermore the respondent contends that, even if the “no-immunity” holding in Lusby was limited to “outrageous” intentional torts, the wrongful conduct alleged in counts II and III meets this standard.

The respondent also contends that no other public policy considerations warrant non-recognition of the causes of action asserted in counts II and III. Lastly, the respondent argues that his “right to pursue his tort claims is protected by Article 19” of the Maryland Declaration of ¹¹⁹ Rights. (Respondent’s brief at 39). 1 II. Preliminarily, we shall address the scope of this Court’s opinion in Lusby and the Court of Special Appeals’ interpretation of the Lusby opinion.

Prior to Lusby , the doctrine of interspousal immunity in tort cases was clearly recognized as part of the common law of this State. This Court stated many years ago: “Maryland w[ould] not entertain a suit by one spouse against the other for his or her tort, committed during the marital status.” Tobin v. Hoffman, 202 Md. 382, 391 , 96 A.2d 597, 601 (1953). See Stokes v. Taxi Operators Assn., 248 Md. 690 , 237 A.2d 762 (1968); Hudson v. Hudson, 226 Md. 521 , 174 A.2d 339 (1961); Ennis v. Donovan, 222 Md. 536 , 161 A.2d 698 (1960); Fernandez v. Fernandez, 214 Md. 519 , 135 A.2d 886 (1957); Gregg v. Gregg, 199 Md. 662 , 87 A.2d 581 (1952); Riegger v. Bruton Brewing Company, 178 Md. 518 , 16 A.2d 99 (1940); David v. David, 161 Md. 532 , 157 A. 755 (1932); Furstenburg v. Furstenburg, 152 Md. 247 , 136 A. 534 (1927). In Lusby , Ms. Lusby brought a tort action for damages against her husband.

She alleged that while she was driving, her husband and two accomplices in another vehicle forced her to the side of the road at gunpoint. Her husband then “forcefully and violently” raped her and thereafter assisted the accomplices in attempting to rape her. 283 Md. at 336 , 390 A.2d at 77 . After reviewing the cases cited above, this Court held that there was nothing in the common law of this State preventing a wife from recovering damages from her husband for the type of outrageous, intentional conduct there involved. ¹²⁰ Judge Marvin Smith for the Court set forth the Court’s holding as follows ( 283 Md. at 358 , 390 A.2d at 89 ): “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.” The exception to interspousal immunity applied in Lusby , therefore, was explicitly confined to “outrageous” intentional torts. The limited scope of the Lusby holding was underscored by this Court’s view that nothing in our prior cases, applying interspousal immunity, precluded recovery for the outrageous conduct of the defendant.

In Boblitz v. Boblitz, 296 Md. 242, 273 , 462 A.2d 506, 521 (1983), where the Court did change the common law by abrogating interspousal immunity in negligence cases, we reiterated the limited nature of the Lusby holding with regard to intentional torts. The Court of Special Appeals, in Linton v. Linton, 46 Md.App. 660, 664 , 420 A.2d 1249, 1251 (1980), held that the exception to interspousal immunity under Lusby was limited to those intentional torts committed “against the spousal victim” which were “outrageous” and which constituted “atrocious misbehavior.” In Bender v. Bender, supra, 57 Md.App. at 601-602 , 471 A.2d at 339 , however, the Court of Special Appeals took the position that this Court, in Lusby , “was sanctioning claims for intentional torts and not claims limited to outrageous torts.” As the intermediate appellate court stated in the case at bar, Bender “[i]mplictly rejected] the analysis in Linton----” Doe v. Doe, supra, 122 Md.App. at 322 , 712 A.2d at 145 . Following the interpretation of Lusby discussed in Bender , the Court of Special Appeals held, in the case at bar, that tort interspousal immunity has been entirely abolished in Maryland. The Court of Special Appeals’ interpretation of the Lusby opinion in Bender and in the present case was erroneous.

The holding in Linton , that Lusby did not abrogate interspousal immunity as to all intentional torts, is correct. As discussed ¹²¹ above, in Lusby this Court held that, under the common law of this State, interspousal immunity had never been applied where the conduct alleged was “outrageous” and intentional. See Lusby, 283 Md. at 358 , 390 A.2d at 89 . See also Hatzinicolas v. Protopapas, 314 Md. 340 , 348 n. 7, 550 A.2d 947 951 n. 7 (1988) (“Lusby ... held that the common law of Maryland had never prevented a wife from suing her husband in tort where the tortious conduct was outrageous and intentional”).

The respondent alternatively argues that the conduct alleged in the case at bar is sufficiently “outrageous” to fit within this Court’s limited holding in Lusby . For the reasons set forth below, however, we need not reach this issue.

III

A claim of immunity is a defense. It need be reached only if the plaintiff has alleged a viable cause of action. We shall hold that the actions pled by Mr. Doe in counts II and III are not viable. In those counts, Mr. Doe seeks to recover damages, under different tort labels, for the same type of conduct which formerly gave rise to the common law cause of action known as criminal conversation.

That cause of action was designed to provide a remedy for husbands in Mr. Doe’s situation. The action, however, has been abolished in this State on constitutional and public policy grounds. See Kline v. Ansell, 287 Md. 585 , 414 A.2d 929 (1980). The common law tort of criminal conversation was the civil tort remedy available to a husband when his wife committed adultery. 2 The elements were “a valid marriage and an act of sexual intercourse between a married woman and a man other than her husband.” Kline, 287 Md. at 587 , 414 A.2d at 930 .

The only valid defense was the consent of the husband. Kline, ibid., citing Kohlhoss v. Mobley, 102 Md. 199, 206 , 62 A. 236, 236 (1905). ¹²² As this Court discussed in Kline with regard to the tort of criminal conversation, “the underlying basis of recovery was the injury to the husband’s feelings and particularly to his sense of his own and his family’s honor.” 287 Md. at 587 , 414 A.2d at 930 . The particular harms sought to be remedied were the “ ‘defilement of the marriage bed,’ ” and a man’s right “ ‘to beget his own children.’ ” Kline, ibid., quoting Tinker v. Colwell, 193 U.S. 473, 484 , 24 S.Ct. 505, 507 , 48 L.Ed. 754, 759 (1904). In fact, as Blackstone pointed out, the damages recoverable under the common law action, which were “usually very large and exemplary,” were often dependent upon “the husband’s obligation by settlement or otherwise to provide for those children, which he [could not] but suspect to be spurious.” 3 William Blackstone, Commentaries 139-140 (1768).

Although married women were not allowed, without being joined by their husbands, to sue or be sued under the common law, in the late 19 th century “Married Women’s Acts” were passed throughout the country, bestowing upon married women legal rights. Shortly thereafter, courts were forced to review the rationale of the common law action of criminal conversation in order to determine if the right to sue for adultery should be extended to women. Many of these courts, in discussing whether to extend the common law cause of action, held that the “gist of the action was the possibility that by the infidelity of the wife the husband might be called upon to support illegitimate children, or the legitimacy of his own offspring be cast into doubt.” Oppenheim v. Kridel, 236 N.Y. 156, 160 , 140 N.E. 227, 228 (1923). See Kroessin v. Keller, 60 Minn. 372 , 62 N.W. 438 (1895) (refusing to extend the action to women and discussing the common law’s purpose of providing rédress to husbands who are forced to raise children of questioned legitimacy).

Under earlier Anglo-Saxon law, inheritance, as well as social standing, was largely dependent upon the “lawful issue of pure blood.” Lippman, The Breakdown of Consortium, 30 Col. L.Rev. 651, 655 (1930). As Lippman points out (ibid.), ¹²³ “[i]t is not likely that adultery was frowned upon for moral reasons, but because of the importance