Shoemake v. Shoemake, A91A0673

• Decision Date: 25 June 1991
• Docket Number: No. A91A0673,A91A0673
• Citation: 407 S.E.2d 134,200 Ga.App. 182
• Parties: SHOEMAKE v. SHOEMAKE.
• Court: Georgia Court of Appeals

Page 134

407 S.E.2d 134

200 Ga.App. 182

SHOEMAKE v. SHOEMAKE.

No. A91A0673.

Court of Appeals of Georgia.

June 25, 1991.

Dale P. Smith, Toccoa, for appellant.

Blasingame, Burch, Garrard & Bryant, James B. Matthews, III, Athens, for appellee.

SOGNIER, Chief Judge.

Rex Shoemake brought a personal injury suit against Abby Shoemake in September 1990. In response, Ms. Shoemake filed a verified answer in which she averred that she and Mr. Shoemake were married on January 18, 1990 and "have been married ever since." Ms. Shoemake then filed a motion to dismiss the complaint on the ground that it was barred by the doctrine of interspousal tort immunity. OCGA § 19-3-8. The trial court considered the facts set forth in Ms. Shoemake's verified answer (as it was authorized to do, see Foskey v. Smith, 159 Ga.App. 163, 164-165, 283 S.E.2d 33 (1981), cert. vacated, 249 Ga. 32, 289 S.E.2d 248 (1982)) and, converting Ms. Shoemake's motion to dismiss into a motion for summary judgment without objection by Mr. Shoemake, see Davidson v. Amer. Fitness Centers, 171 Ga.App. 691, 693, 320 S.E.2d 824 (1984), granted the motion. Mr. Shoemake appeals.

Appellant contends the trial court erred by granting appellee's motion because the trial court misapplied the doctrine of interspousal tort immunity to this case. We do not agree. The doctrine of interspousal tort immunity bars actions between spouses in respect to personal torts committed by one spouse against the other, see Robeson v. Intl. Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981), except where the traditional policy reasons for applying interspousal tort immunity are absent, i.e., where there is no marital harmony to be preserved and where there exists no possibility of collusion between the spouses. Harris v. Harris, 252 Ga. 387, 313 S.E.2d 88 (1984); Stanfield v. Stanfield, 187 Ga.App. 722, 371 S.E.2d 265 (1988). Since we have held that "there is [no] burden upon a defendant spouse to prove absence of collusion and the existence of marital harmony sufficient to invoke the [doctrine of interspousal tort] immunity, either as a defendant in suit, as movant in summary judgment, or as spouse," Jones v. Jones, 184 Ga.App. 709, 710(1)(a), 362 S.E.2d 403 (1987), rev'd on other grounds in 259 Ga. 49, 376 S.E.2d 674 (1989) and in Trust Co. Bank v. Thornton, 186 Ga.App. 706, 709, 368 S.E.2d 158 (1988), the grant of appellee's motion was proper unless the record reveals that appellant's suit falls within "that category of cases" of "extreme factual situations" as discussed in Stanfield, supra at 723, 371 S.E.2d 265, so as to authorize the courts to "deviate from a strict application of the general rule regarding interspousal immunity." Id.

Even construing the record most strongly in favor of Mr. Shoemake as the respondent on motion for summary judgment and giving him the benefit of all favorable inferences and reasonable doubts, see generally Ga. Farm, etc., Ins. Co. v. Allstate Ins. Co., 190 Ga.App. 593, 594, 379 S.E.2d 619 (1989), the only possible evidence we have found in the record indicating a lack of marital harmony is the slight inference created by the filing of the negligence action itself. Such an inference pales beside the affidavit filed by the wife...