Bozman v. Bozman

Decision Date12 August 2003
Docket NumberNo. 105,105
Citation376 Md. 461,830 A.2d 450
PartiesWilliam E. BOZMAN v. Nancie L. BOZMAN.
CourtMaryland Court of Appeals

John J. Condliffe (Judith Shun-Condliffe of Shub-Condliffe & Phoenix), on brief, for petitioner/cross-respondent.

Robert W. Lazzaro (Heisler, Williams & Lazzaro, L.L.C., Towson, on brief), for respondent/cross-petitioner.


BELL, Chief Judge.

Whether the common-law doctrine of interspousal tort immunity shall remain viable in Maryland is the issue we decide in this appeal. The Circuit Court for Baltimore County dismissed the complaint alleging malicious prosecution filed by William E. Bozman, the petitioner, against Nancie L. Bozman, the respondent,1 a judgment which the Court of Special Appeals affirmed. We shall reverse the judgment of the intermediate appellate court and, as urged by the petitioner, abrogate the doctrine of interspousal immunity.


The petitioner and the respondent were married in this State on August 16, 1968. On February 24, 2000, the petitioner initiated divorce proceedings against the respondent. As grounds, he pled adultery. The parties were divorced on March 12, 2001.

Shortly before the divorce was finalized, on January 20, 2001, the petitioner filed in the Circuit Court for Baltimore County a complaint sounding in malicious prosecution against the respondent.2 In that complaint, which consisted of one count, the petitioner alleged that, as a result of criminal charges, which the respondent brought against him on February 17, 2000, May 3, 2000 and July 19, 2000, he was arrested and charged with stalking, harassment and multiple counts of violation of a Protective Order. The petitioner further alleged that the charges were brought without probable cause, were deliberately fabricated to ensure that the petitioner would be arrested, and were in retaliation for the petitioner's initiation of the divorce proceedings and his unwillingness to make concessions in those proceedings. The respondent moved to dismiss the complaint. She argued, in support of that motion, inter alia, that the action was barred based upon the common law doctrine of interspousal tort immunity.

The Circuit Court granted the respondent's Motion to Dismiss, but with leave to amend. Thereafter, the petitioner filed an Amended Complaint. As she had done earlier, the respondent filed a motion to dismiss, relying, also as she had done before, on the doctrine of interspousal immunity. Responding to the motion to dismiss and relying on this Court's decision in Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978), in which the Court held that interspousal immunity was not a defense to a tort action between spouses where the conduct constituting the tort was "outrageous [and] intentional," id. at 335, 390 A.2d at 77, the petitioner argued that the defense was inapplicable under the facts he alleged; his multiple incarcerations and his being subjected to house arrest were sufficiently outrageous and intentional as to fall within the Lusby rule. Altogether, the petitioner claims, as a result of the respondent's false accusations, that he was incarcerated on five separate occasions, for periods ranging between one (1) and ten (10) days, and placed on home detention, which required that he wear an ankle monitoring bracelet for approximately eight (8) months.

On the same day that a hearing on the motion to dismiss was held, the petitioner filed a Second Amended Complaint. That complaint reiterated the allegations of the earlier complaint as Count I and added a second malicious prosecution count. That second malicious prosecution count alleged that, on February 2, 2001, the respondent filed, against the petitioner, additional charges of violating an ex parte order, which although ultimately dismissed, again resulted in the petitioner's incarceration and incurring an expense to be released. As he did in the initial complaint, the petitioner claimed that the respondent fabricated the charges, although, on this occasion, the momentum was different; it was in response to the initial malicious prosecution action and the respondent's inability to "prevail in her position" in the divorce proceedings. The petitioner specifically alleged that the dismissal of the charges referred to in Count II, one of the elements of a successful malicious prosecution action, occurred after the parties were divorced. Thus, he argued that that count was not subject to the interspousal immunity defense.

The trial court granted the respondent's Motion to Dismiss, ruling that the action was barred by the doctrine of interspousal immunity. The petitioner noted a timely appeal to the Court of Special Appeals.

In the intermediate appellate court, the petitioner challenged the trial court's dismissal of Count I of the Second Amended Complaint, arguing that it was error in light of this Court's decision in Lusby, because malicious prosecution is an outrageous, intentional tort to which interspousal immunity is not a defense. As to the dismissal of Count II of the Second Amended Complaint, the petitioner submitted that, not only was the conduct outrageous and intentional, but the cause of action for the malicious prosecution alleged in that count arose after the parties were legally divorced. Consequently, he argues, the doctrine of interspousal immunity is rendered inapplicable to that count, as well.

To be sure, the Court of Special Appeals "questioned the continued viability of" the doctrine of interspousal immunity. Bozman v. Bozman, 146 Md.App. 183, 195, 806 A.2d 740, 747 (2002), citing Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506, (1983). Characterizing it as an "antiquated doctrine" and stating that it "runs counter to present-day norms," id., the intermediate appellate court commented:

"We recognize that the doctrine may serve some 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. We remain unconvinced, however, that retention of this doctrine best reflects the will of the people of this State as evidence by, among other reforms, enactment of the Equal Rights Amendment in 1972."

Id. Nevertheless, it recognized that:

"Regardless, we are bound to follow the dictates of the law as it presently exists in Maryland. The law is that interspousal immunity may be raised as a defense to a viable cause of action alleging an intentional tort so long as the tort is not `outrageous,' as that term is used in Lusby and Doe [v. Doe, 358 Md. 113, 747 A.2d 617]."

Id. at 196, 806 A.2d at 747.

Therefore, the Court of Special Appeals addressed the issue that lay at the heart of the case, as submitted to it, the quality of the respondent's conduct and, more generally, the nature of the tort of malicious prosecution. More specifically, the court considered whether the tort, or at least the conduct that constituted the tort, came within the term, "outrageous," as defined in, and contemplated by, Lusby. It concluded:

"Without minimizing in any way the harsh consequences to appellant wrought by appellee's behavior in this case, we cannot say that it is of comparable character to that addressed by the Court in Lusby. Appellee's actions in the instant case no doubt caused appellant to suffer significant humiliation and hardship. But they 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. We conclude, therefore, that the conduct that underlies appellant's claim of malicious prosecution is not, in and of itself, indicative of the sort of outrageous conduct contemplated by the Lusby exception to interspousal immunity."

Id. at 197-98, 806 A.2d at 748.3 Accordingly, the intermediate appellate court held that "malicious prosecution is not so outrageous as to bring it within the narrow exception to the doctrine of interspousal immunity." The court affirmed the trial court's dismissal of Count I of the Second Amended Complaint. Id. at 186, 806 A.2d at 741.

Turning to Count II, the intermediate appellate court vacated the trial court's dismissal of that count and remanded the case for further proceedings. It explained that the respondent "failed to demonstrate that the parties were married when the cause of action in Count II arose." Id.

Both the petitioner and the respondent filed a petition for Writ of Certiorari in this Court. The petitioner's petition sought review of the correctness of the Court of Special Appeals' judgment dismissing Count I of the Second Amended Complaint, both as to the grounds, interspousal immunity, and the standard for defining "outrageous" conduct, to measure whether the conduct met the standard established in Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977).4 In her cross-petition, the respondent sought review of the propriety of the dismissal of Count II of the Second Amended Complaint.5 We granted both petitions. Bozman v. Bozman, 372 Md. 429, 813 A.2d 257 (2002). We agree with the Court of Special Appeals, that the interspousal immunity doctrine is an antiquated rule of law which, in our view, runs counter to prevailing societal norms and, therefore, has lived out its usefulness. Accordingly, we shall answer the petitioner's first question in the affirmative and, so, complete the abrogation of the doctrine from the common law of this State. As a result, we need not, and shall not, address the other questions raised by the petitioner's petition or the respondent's cross-petition.


In the case sub judice, the petitioner states that the "fundamental issue before this Honorable Court is whether the doctrine of interspousal immunity should be abolished." (Petitioner's Brief at 6). Thus, the petitioner directly and...

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