Bozman v. Bozman

• Decision Date: 04 September 2002
• Docket Number: No. 1167,1167
• Citation: 806 A.2d 740,146 Md. App. 183
• Parties: William E. BOZMAN v. Nancy L. BOZMAN.
• Court: Court of Special Appeals of Maryland

806 A.2d 740

146 Md. App. 183

William E. BOZMAN v. Nancy L. BOZMAN.

No. 1167, September Term 2001.

Court of Special Appeals of Maryland.

September 4, 2002.

John J. Condliffe (Shub-Condliffe & Condliffe, P.A. on the brief), Towson, for appellant.

Robert W. Lazzaro (Heisler, Williams & Lazzaro, L.L.C. on the brief), Towson, for appellee.

Argued before DAVIS, BARBERA and RAYMOND G. THIEME, JR. (Retired, specially assigned), JJ.

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. Bozman, on the ground that it was barred by interspousal immunity.² Appellant presents the following questions for our review, which we have rephrased:

I. Did the circuit court err in dismissing Count I of the second amended complaint on the ground of interspousal 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 interspousal 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 onecount 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 interspousal tort immunity barred the suit. Attached to the motion was a memorandum of law and an affidavit, signed by 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 23, 2001, again stating "[t]hat at all times alleged in the Amended Complaint," the parties were husband and wife.

On July 30, 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.

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.

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 cases 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.

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...