Doe v. Doe

Decision Date01 September 1997
Docket NumberNo. 1330,1330
Citation712 A.2d 132,122 Md.App. 295
PartiesJohn DOE v. Jane DOE. ,
CourtCourt of Special Appeals of Maryland
M. Albert Figinski (David W. Erb and Weinberg & Green, L.L.C., on the brief), Baltimore, for appellant

Paul Mark Sandler (Stacie F. Dubnow, Freishtat & Sandler, Baltimore, Thomas C. Ries and Kaufman, Ries & Elgin, P.A., Towson, on the brief), for appellee.

Argued before HARRELL, THIEME and KENNEY, JJ.


On 12 July 1996, appellant, John Doe, 1 filed a Complaint for Absolute Divorce against appellee, Jane Doe, in the Circuit Court for Baltimore County. The ground asserted for the divorce sought by Mr. Doe was Ms. Doe's alleged commission of adultery. On 5 December 1996, Mr. Doe filed an amended complaint, adding Counts II through VIII, which are Mr. Doe presents the following questions for our review, which we have rephrased:

the subject of this appeal. Counts II and III alleged fraud and intentional infliction of emotional distress, respectively, relating to Ms. Doe's alleged knowing, deliberate, false, and affirmative misrepresentation to Mr. Doe that he was the father of two of the parties' three children. Counts IV through VIII alleged fraud, negligent misrepresentation, promissory estoppel, breach of contract, and constructive trust, respectively, relating to allegations that Ms. Doe repeatedly dissuaded Mr. Doe from contributing to his 401(k) plan by falsely[712 A.2d 136] and intentionally promising Mr. Doe that he could rely on Ms. Doe's stockholdings for his retirement. Compensatory and punitive damages were sought on all counts, save that for a constructive trust. On 31 January 1997, Ms. Doe filed a motion to dismiss Counts II through VII. The trial court held a hearing on the motion on 16 May 1997 and on 8 July 1997 issued an order granting Ms. Doe's motion to dismiss. On 14 July 1997, the court granted a motion for entry of final judgment as to Counts II through VIII pursuant to Rule 2-602(b) 2.

I. Whether the trial court erred in dismissing Counts II and III on public policy grounds.
II. Whether the trial court erred in finding the allegations in Counts II and III insufficient to state a cause of action.
III. Whether the trial court erred in dismissing Counts IV through VIII for failure to state a cause of action.

Mr. and Ms. Doe married on 2 September 1989. During the course of their marriage, three children were born: J.D. Doe, born 21 February 1992; and twins A.E. Doe and Z.S. Doe, born 10 July 1993. Mr. Doe was named as the father on the birth certificates of each of the three children, and Ms. Doe held out Mr. Doe as the biological father of each of the children.

Unbeknown to Mr. Doe, Ms. Doe, an art student, began a sexual affair in 1990 with M.G., Ms. Doe's art professor. In 1991, Ms. Doe began working at M.G.'s art gallery in Baltimore. At Ms. Doe's request, M.G. became godfather to all three children. On 2 July 1996, Mr. Doe 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 a[t] least partially (if not wholly) 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 ... I realize that my decision not to terminate these pregnancies ... If my decision to bear J.D. & A.E. & Z.S. altered the feelings you held towards me, I am sorry. Though I have occasionally wondered if I made the correct choice in this I am convinced that given my perception (or misconceptions) about the bond [between] us at that time, I could not have decided otherwise. You will always be the father of my children. i.e.--have/develop your own relationship with each of them as you wish. The divulging of their identities will be at your discretion. If for some unforeseeable reason it should become necessary for me to provide information to the children regarding how they came to be Mr. Doe spoke with M.G. on 7 July 1996. During the course of that conversation, M.G. admitted the affair and acknowledged that he and Ms. Doe had engaged in sexual relations at the time J.D. was conceived in May 1991, and did not deny that he and Ms. Doe had engaged in sexual relations at or about the time A.E. and Z.S. were conceived in November 1992. Mr. Doe confronted his wife on 11 July with the letter and M.G.'s admissions. Ms. Doe denied having sexual relations with M.G. and refused to discuss the children's paternity. The next day Mr. Doe filed for divorce.

Z.S., A.E., and J.D. will likely receive the [point] of view reflected in this letter, your name ... will be withheld and your privacy protected ... Included please find cards from the St. Paul's parish documenting your godparentship to the children.

On 25 July 1996, Mr. Doe and the children submitted blood samples for DNA testing regarding Mr. Doe's paternity. The test results, provided in October 1996, confirmed that Mr. Doe was J.D.'s biological father but excluded him as the biological father of the twins.

Mr. Doe alleged that throughout the parties' marriage the sexual encounters between Ms. Doe and himself were infrequent. In part because of Ms. Doe's health problems, the parties used withdrawal as their sole source of birth control. Mr. Doe recalled that in November or early December 1992, Ms. Doe uncharacteristically instigated sexual intercourse and "knowingly, deliberately and physically, prevented [Mr. Doe] from withdrawing when necessary." Mr. Doe alleges that this conduct, together with Ms. Doe's letter to M.G., allows a reasonable inference that Ms. Doe knew that M.G. had impregnated her before the rare sexual encounter with Mr. Doe, and that she seduced Mr. Doe solely to mislead him into believing that he was the biological father of the twins born thereafter.

In addition to his allegations regarding Ms. Doe's concealment of the twins' paternity, Mr. Doe made several allegations regarding the parties' finances. Specifically, Mr. Doe alleged Throughout the marriage, Mr. Doe continued to express his desire to begin contributing to the 401(k) plan, but Ms. Doe repeatedly dissuaded him from doing so, claiming that Mr. Doe's income was needed to pay for family expenses. She allegedly continued to assure him that he would be able to rely on her stockholdings for his retirement. As of November 1996, however, Ms. Doe has taken the position that Mr. Doe will not be able to rely on her stockholdings for his retirement.

that in 1990 he discussed with Ms. Doe his desire to take advantage of the opportunity to contribute to the 401(k) retirement plan established by his employer. Ms. Doe asked him instead to continue to contribute one hundred percent of his salary into the joint family bank account, and, in return, Ms. Doe promised that Mr. Doe could rely on her stockholdings for his retirement. Based on these representations, Mr. Doe continued to deposit his entire salary into the parties' joint account, which Ms. Doe managed.


Maryland Rule 2-322(b)(2) allows a defendant to seek a dismissal on the ground that the complaint fails to state a claim upon which relief can be granted. A complaint fails to state a claim when, even if the allegations of the complaint are true, the plaintiff nevertheless is not entitled to relief as a matter of law. Lubore v. RPM Associates, Inc., 109 Md.App. 312, 322, 674 A.2d 547, cert. denied, 343 Md. 565, 683 A.2d 177 (1996). When considering a motion to dismiss for failure to state a claim, the circuit court only examines the sufficiency of a pleading. Id. " 'The grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient cause of action.' " Id. (citing Hrehorovich v. Harbor Hosp. Ctr., 93 Md.App. 772, 784, 614 A.2d 1021 (1992)). On appeal, this Court "must assume the truth of all well-pleaded facts ... as well as inferences which may reasonably be drawn from those well-pleaded facts." Lee v. Denro, Inc., 91 Md.App. 822, 828, 605 A.2d 1017 (1992). If the complaint contains any material facts that support the plaintiff's right to recover, this Court must reverse the order of dismissal. Id.

In the case sub judice the circuit court found Mr. Doe's complaint legally insufficient for two reasons: First, the court found that Mr. Doe's allegations of fraud and intentional infliction of emotional distress were barred by public policy. Second, the court found that the complaint failed to include any material facts supporting Mr. Doe's right to recover not only on the fraud and intentional infliction of emotional distress counts, but also on the counts relating to Ms. Doe's stockholdings and Mr. Doe's intentions regarding his employer's 401(k) plan. We will first address the trial court's finding that Mr. Doe's claims are barred by public policy. Then we will turn to the specific allegations to determine if the pertinent counts of the complaint are sufficient to state a cause of action.


The issue presented in this case is one of first impression in this State: Whether public policy precludes spouses from suing each other for fraud and intentional infliction of emotional distress even though the Maryland Court of Appeals has abrogated interspousal immunity. The court below believed such public policy exists. The court opined:

Maryland has not yet confronted the issue of whether one spouse can sue another for fraud and intentional infliction of emotional distress relating to the paternity of the children born during the course of a marriage. Under the current state of the law, one spouse may sue another for certain outrageous and intentional tortious conduct. The Court of Appeals has expressly stated that interspousal tort immunity no longer exists in Maryland. Lusby v. Lusby, 283 Md. 334 (1978).... [In Lusby t]he Court noted that "no sound...

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