Interspousal Torts: They’re Not For Dessert

David Diggs

By David Diggs
The Law Offices of David V. Diggs

The practice of divorce law in Maryland underwent a radical transformation with the abolition of interspousal immunity for intentional torts approximately 16 years ago. According to Black’s Law Dictionary, the initial text purchased by every first-year law student, a tort is a “private or civil wrong or injury, other than breach of contract, for which the court will provide a remedy in the form of an action for damages.”

Writing for the Court of Appeals, Maryland’s highest court, then Chief Judge Robert Bell pronounced that “the interspousal immunity doctrine is an antiquated rule of law which … runs counter to prevailing societal norms and, therefore, has lived out its usefulness.” (Bozman v. Bozman.) With that, the court reversed centuries of precedent that prohibited spouses from suing one another for civil wrongs and injuries.

The Bozmans, more so than most divorcing couples, were not getting along. William Bozman was arrested and charged with stalking, harassment and violations of a protective order. Feeling he had been wronged during his several stints in lock-up, he filed a complaint for malicious prosecution against his wife, Nancie, shortly before the couple’s divorce was finalized. Nancie moved to dismiss the complaint on the grounds that it was barred by interspousal tort immunity, and the Circuit Court for Baltimore County granted her motion.

William sought review and found the Court of Special Appeals, Maryland’s intermediate appellate court, somewhat sympathetic, as it “questioned the continued viability of the doctrine of interspousal immunity.”

The intermediate appellate court nevertheless harkened to the holding in Lusby v. Lusby, which had only partially abrogated interspousal tort immunity in instances where tortious conduct was “outrageous [and] intentional.” In affirming the trial court’s dismissal of the malicious prosecution count, the Court of Special Appeals determined that Nancie Bozman’s conduct “did not involve extreme violence of the most personal and invasive sort, the threat of death and a display of the means by which to carry out that threat, or the physical and psychic trauma that the victim in Lusby endured.”

The Court of Appeals granted both parties’ petitions for Certiorari and, in an expansive opinion tracing the historical origins of interspousal tort immunity through a misogynistic past, the court fittingly brought Maryland into the 21st century and in line with the vast majority of states. In its Appendix A, the court provides a thorough summary of the status of interspousal immunity throughout the nation. Forty-six states had eliminated the doctrine, either fully or partially, while only four states had retained it, as of 2003.

Dismissing paternalistic notions that the happiness of the home and hearth depended upon the continuation of the discredited doctrine, the court concluded that the interspousal immunity rule was “a vestige of the past, whose time has come and gone.”

Accordingly, spouses are free to sue one another for any and all intentional torts. (Interspousal immunity for negligence actions was abolished in Boblitz v. Boblitz, and a wife was permitted to sue for the carelessness operation of a vehicle by her husband.) The effects of Bozman upon the practice of divorce law in Maryland are still unraveling. Perhaps more questions have been raised than have been answered.

Will a spouse filing a multi-count complaint for divorce, battery and defamation have the right to a jury trial on tort issues? Would the tort actions to be tried before a jury simultaneous with the divorce action before a family law judge? Might the mere threat of a damage award for tortious conduct result in property concessions in the divorce? Divorce lawyers know that theirs is an arena where malice is provable and punitive damages, therefore, are attainable. These are but a few of the myriad areas where the interplay between domestic and tort issues must be carefully considered.

Whether a divorcing spouse should also pursue a tort case against her partner presents a complicated question. If you have questions about divorce and civil wrongs committed by your spouse, you should consult an attorney who is familiar with this area of the law and who will assist you in making informed decisions.

David Diggs is experienced in family law and tort actions. If you need further information regarding this subject, contact The Law Office of David V. Diggs LLC, located at 8684 Veterans Highway, Suite 204, in Millersville, by phone at 410-244-1171 or email at david@diggslaw.com.