Marital Torts: The Current Legal Landscape

Family Law Quarterly

Volumn 33, Issue 3, 1999, Pages 745-762

  Spector, Robert G ^a  

^a NONE

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EID: 0033275268     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (54)

1. Self v. Self, 376 P.2d 65 (Cal. 1962). California abolished the doctrine for negligence cases in Klein v. Klein, 376 P.2d 70 (Cal. 1962). This had a great effect on insurance companies since it opened up insurance coverage for injuries growing out of automobile accidents. However, it had very little effect on tort suits between the parties arising from the breakup of the marital relationship.
2. California was not the first state to abolish interspousal immunity in tort. There were almost twenty states that had done so before California. However, the Self opinion generated considerable impetus and was extremely influential in the doctrine's eventual demise.
3. See, e.g., Harry D. Krause, On the Danger of Allowing Marital Fault to ReEmerge in the Guise of Torts, 73 NOTRE DAME L. REV. 1355 (1998); Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996).
4. See, e.g., Harry D. Krause, On the Danger of Allowing Marital Fault to ReEmerge in the Guise of Torts, 73 NOTRE DAME L. REV. 1355 (1998); Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIZ. ST. L.J. 773 (1996).
5. For a full discussion of the subject, see PROSSER & KEETON, TORTS § 124 (5th ed. 1984)
6. Karen S. Peterson, Million-Dollar Message from Ex-Wife, Jury, U.S.A. TODAY, Aug. 8, 1997, at 1D, 2D. (wife sued her former husband's new wife, who had been his secretary); Hutelmyer v. Cox, 514 S.E.2d 554 (N.C. Ct. App 1999) (affirming the million dollar jury verdict).
7. E.g., Pickering v. Pickering, 434 N.W.2d 758 (S.D. 1989) ("We believe the tort of intentional infliction of emotional distress [and fraud] should be unavailable as a matter of public policy when it is predicated on conduct which leads to the dissolution of a marriage."). Breach of promise cases have also disappeared in most states, although some courts have suggested that conduct of one party in calling off the marriage might, in some cases, justify the tort of intentional infliction of emotional distress. Jackson v. Brown, 904 P.2d 685 (Utah 1995); Gilbert v. Barkes, 987 S.W.2d 772 (Ky. 1999).
8. Lewis v. Lewis, 351 N.E.2d 526, 532 (Mass. 1976).
9. Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978). See also S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. 1986) (abolition of interspousal immunity does not lead to liability in every "unwanted kiss and rolling pin" case).
10. 530 So. 2d 1389 (Ala. 1988).
11. Other typical cases include: Murray v. Murray, 598 So. 2d 921 (Ala. Civ. App. 1992) (wife awarded $5,000 compensatory and $50,000 punitive damages against husband for his physical abuse during the marriage); Windauer v. O'Connor, 477 P.2d 561 (Ariz. Ct. App. 1971) (wife shot by husband); Cater v. Cater, 846 S.W.2d 173 (Ark. 1993) (wife awarded $20,000 compensatory and $350,000 punitive damages for husband's assault and battery); Catlett v. Catlett, 388 S.E.2d 14 (Ga. Ct. App. 1989) (wife awarded $20,000 punitive damages against husband for assault, battery and false imprisonment when husband, among other conduct, dragged her down the stairs by her feet because he thought it was funny); Duplechin v. Toce, 497 So. 2d 763 (La. Ct. App. 1987) (wife awarded $52,000 for grossly unjustified battery including laceration of scalp, broken nose, numerous contusions, and perforated eardrum); Sumrall v. Sumrall, 612 So. 2d 1010 (La. Ct. App. 1993) (wife awarded $43,000 after a beating by her husband); Townsend v. Townsend, 708 S.W.2d 646 (Mo. 1986) (husband shot wife in back with a shotgun); Aubert v. Aubert, 529 A.2d 909 (N.H. 1987) (husband awarded $350,000 against wife who shot him without provocation from a few feet; wife had been convicted of attempted murder); Sielski v. Sielski, 604 A.2d 206, (N.J. Super. Ct. Ch. Div. 1992) (wife awarded $1,030 of compensatory damages, $1,000 for pain and suffering, $30 for property damage and $5,000 of punitive damages); Noble v. Noble, 761 P.2d (Utah 1988) (husband shot wife in head with .22 caliber rifle).
12. PROSSER & KEETON, supra note 4, at 909.
13. The statute of limitations for battery is often a short one and therefore an issue often arises of the tolling of the statute during marriage. A number of cases have held that the statute is not tolled. See, e.g., R.A.P. v. B.J.P., 428 N.W.2d 103 (Minn. Ct. App. 1988). Others have likened the conduct to that of a continuing nuisance where the statute of limitation does not run until the abusive conduct occurring during the marriage has ended. Curtis v. Firth, 850 P.2d 749 (Idaho 1993).
14. See, e.g., Ira Mark Ellman & Stephen D. Sugarman, Spousal Emotional Abuse as a Tort, 55 MD. L. REV. 1268 (1996), and the articles cited in supra note 3.
15. 597 N.E.2d 233 (Ill. App. Ct. 1992).
16. In Ruprecht v. Ruprecht, 599 A.2d 604 (N.J. Super. Ct. 1991), the husband alleged the wife was liable for conducting an eleven year affair with her employer. The court concluded as a matter of law that wife's actions were not outrageous. Similarly the husband is not liable for intentional infliction of mental distress for divorcing the wife and marrying another woman. Weicker v. Weicker, 237 N.E.2d 876 (N.Y. 1968). The New York Court of Appeals said that strong policy considerations militated against applying the tort of intentional infliction of mental distress to "matrimonial differences." Poston v. Poston, 436 S.E.2d 854 (N.C. Ct. App. 1993)(allegations of adultery do not constitute the extreme and outrageous conduct necessary for the tort); Smith v. Smith, 438 S.E.2d 457 (N.C. Ct. App.1994)(allegation of adultery does not constitute a new tort called intentional marriage destruction). The only exception to this rule occurred in Neal v. Neal, 873 P.2d 871 (Idaho 1994). The wife sued the husband for battery. She alleged that although she voluntarily had sexual intercourse with him while he was having an affair with another woman, she did not know of the affair. Had she known of the affair she would not have consented because sexual relations under those circumstances would have been offensive to her. The court said that she raised an issue of fact concerning whether there was actual consent and, on this point, reversed the trial court. No other court has given such a subjective interpretation to the consent defense in a battery case. The reasoning would suggest that a battery claim might lie in cases when one spouse was engaged in an affair and continued to have sexual relations with his or her spouse.
17. See D.D. v. C.L.D., 600 So.2d 219 (Ala. 1992)(intentional infliction of emotional distress and other torts may not be used as alternative to an alienation of affections claim); Alexander v. Inman, 825 S.W.2d 102 (Tenn.App. 1991)(defendant's affair with plaintiff's wife not "outrageous conduct" as a matter of law).
18. 773 P.2d 602 (Colo.Ct. App. 1988).
19. See also Weisman v. Weisman, 485 N.Y.S.2d 571 (App. Div. 1985)(wife stated a claim for intentional infliction of mental distress against husband for his actions in destroying the windows of the house where defendant and her children were staying, leaving them without protection from the severe cold, and threats to defendant's life by display of a bullet while defendant and wife's brother were involved in a religious divorce ceremony); Murphy v. Murphy, 486 N.Y.S.2d 457 (App. Div. 1985)(intentional infliction of mental distress growing out of cohabitation relationship where defendant killed plaintiff's pet, broke screens, and smashed windows to gain entry, threatened and used force on plaintiff, creating something more than a mere matrimonial dispute); Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993) (defendant's actions included shattering the doors of kitchen cabinets while he "came after" her, meanwhile calling her a "lying, whoring bitch" who was "stealing money from him;" calling plaintiff at a friend's house where she was staying because she was afraid to come home and threatening to burn down the inn; tearing down a wall in the dining room before she returned; swaying over her bed and threatening to "get" her; and pulling the telephone out of the wall and telling her he did so to prevent her from calling for help; usually conduct occurred while defendant was intoxicated).
20. 812 P.2d 1320 (N.M. Ct. App. 1991).
21. Ellman, supra note 4, at 801.
22. 712 A.2d 128 (Md. Ct. App. 1998), cert. granted, 717 A.2d 384 (Md. 1998).
23. Other recent decision to the same effect are Miller v. Miller, 956 P.2d 887 (Okla. 1998); Koelle v. Zwiren, 672 N.E.2d 868, 875 (Ill. App. Ct. 1996); C.M. v. J.M., 726 A.2d 998 (N.J. Super. Ct. 1999); G.A.W. v. D.M.W., 596 N.W.2d 284 (Minn. Ct. App. 1999).
24. 249 Cal. Rptr. 247 (Cal. Ct. App. 1988).
25. See, e.g., Morgan v. Morgan, 388 S.E.2d 2 (Ga. Ct. App. 1989); Holcomb v. Kincaid, 406 So. 2d 650 (La. Ct. App. 1981); Calloway v. Munzer, 291 N.Y.S.2d 589 (N.Y. 1968); Mashunkashey v. Mashunkashey, 113 P.2d 190 (Okla. 1941); and cases cited in PROSSER & KEETON, supra note 4, at 726.
26. Vance v. Vance, 408 A.2d 728 (Md. 1979).
27. See also Holcomb v. Kincaid, 406 So. 2d 650 (La. Ct. App. 1981), where a jury verdict of $200,000 for the plaintiff was reduced on appeal to $5,000. The reviewing court held that it was improper to include any amount for lost wages, particularly when the wife-plaintiff had not worked before her marriage and it was speculative whether she would have resumed her teaching career if the defendant-husband had not disapproved of her doing so. In some states punitive damages and attorney fees may also be recoverable. Morgan v. Morgan, 388 S.E.2d 2 (Ga. Ct. App. 1989) (plaintiff recovered $30,000 compensatory damages, $90,000 punitive damages and $5,000 in attorney fees).
28. 672 P.2d 1168 (Okla. 1983).
29. See also Church v. Church, 630 P.2d 1243 (N.M. Ct. App. 1982), where the plaintiff-wife alleged that: (1) by agreement defendant pursued his medical studies and plaintiff worked to support plaintiff and defendant, and pay defendant's educational expenses; (2) in the second year of medical school, defendant began an extramarital relationship which continued through the fourth year of medical school; (3) defendant knew that if he revealed his extramarital relationship his marriage with plaintiff would probably end; (4) defendant did not intend to continue his marital relationship with plaintiff once his medical studies were completed; (5) for the purpose of inducing plaintiff to continue the marital relationship and to continue supporting him until his medical studies were complete, defendant fraudulently concealed the existence of the extramarital relationship and continued to represent his medical education as an investment of the marriage; (6) plaintiff continued to provide emotional and financial support to the defendant; (7) upon completing medical school defendant asked plaintiff for a divorce. The trial court dismissed the claim for failure to state a cause of action. The appellate court, applying Virginia law, concluded that a cause of action in fraud and misrepresentation had been pled and remanded the case for trial.
30. 28 Cal. Rptr. 2d 284 (Cal. Ct. App. 1994).
31. CAL. CIVIL CODE § 43.4.
32. See Mims v. Mims, 305 So. 2d 786 (Fla. Dist. Ct. App. 1974) (wife sued husband for fraud, alleging she married him because of his false and fraudulent promises of love; he left her after ten days; no claim stated as it would turn every divorce into a tort action); R.A.P. v. B.J.P., 428 N.W.2d 103, 109 (Minn. App. 1988) (husband claims wife misrepresented her background before marriage and as a result he claimed that he has "been damaged in his desire to establish a family and a lasting meaningful relationship and has been caused to endure great embarrassment, mental anguish, and suffering;" court grants summary judgment to wife); Perry v. Atkinson, 240 Cal. Rptr. 402 (Cal. Ct. App. 1987) (woman could not state cause of action for fraud against man with whom she had intimate relationship based on allegations that she had terminated her pregnancy by abortion in reliance upon his false misrepresentations that he would impregnate her the following year either through sexual intercourse or artificial insemination). Cf. Singh v. Singh, 611 N.E.2d 347 (Ohio App. Ct. 1992) (plaintiff's case against defendant for fraudulently misrepresenting his sister's attributes in an ad seeking a husband for her is properly dismissed). An attempt to recategorize the case as a breach of contract has also been unsuccessful. The classic case is Bridgeman v. Bridgeman, 391 S.E.2d 397 (W.Va. 1990). Barbara McKettrick met Robert Bridgeman in her hometown of Augusta, Georgia, in April 1982. Dr. Bridgeman was a dentist, practicing in New Martinsville, West Virginia. Mrs. McKettrick worked for a utility company in Augusta. Dr. Bridgeman was a widower, and Mrs. McKettrick was a divorcee. Mrs. McKettrick received alimony of $850 per month from her first husband, payable until Mrs. McKettrick's remarriage or the death of either. Dr. Bridgeman courted Mrs. McKettrick ardently for eighteen months, from the time they met until their marriage on July 2, 1983. In the course of this courtship, Dr. Bridgeman wrote Mrs. McKettrick many letters containing "boiler-plate" language of undying devotion and the like: "You really need someone to take care of you and look after you and I'm applying for that job," that he loved her so much it hurt, that she should "be his forever," and that he would "change the weather" to please her. Mrs. McKettrick also wrote Dr. Bridgeman letters, but she destroyed those after they were married. Some three weeks after the couple were married, Dr. Bridgeman told the new Mrs. Bridgeman that he had made a mistake in marrying her. Mrs. Bridgemen claims that Dr. Bridgeman's courtship letters to his future wife constituted an express contract to support Mrs. Bridgeman for life. The Supreme Court concluded that the letters to Mrs. Bridgeman constituted neither an express contract nor fraud in the inducement.
33. Miller v. Miller, 956 P.2d 887 (Okla. 1998)
34. DAN B. DOBBS, REMEDIES § 9.1, at 594 (1973).
35. See, e.g., Anderson v. Anderson, 399 N.E.2d 391 (Ind. Ct. App. 1979) (wife's remedy for fraud is to have the judgment set aside).
36. 580 A.2d 357 (Pa. Super. Ct. 1990).
37. See Carney v. Wohl, 785 S.W.2d 630 (Mo. Ct. App. 1990). The wife brought a separate proceeding against her former husband seeking to set aside and rescind their settlement agreement with respect to the division of marital property. She also sought actual and punitive damages for fraudulent misrepresentations made by her husband and for conspiracy to defraud against by him and her father-in-law. The trial court granted summary judgment on the issue of fraud for the defendant husband. The appellate court reversed, noting that there were substantial issues of fact to be resolved. It said that whether the defendant could recover compensatory and punitive damages depended upon proof of the fraud. The former wife would have a choice of rescinding the marital property agreement or affirming the agreement and suing in tort for misrepresentation. However, an attempt to relitigate the same issues under the guise of a tort of fraud or breach of fiduciary obligation that were litigated in the divorce action will result in a dismissal. Kahn v. Kahn, 21 F.3d 859 (8th Cir. 1994).
38. 78 Cal. Rptr. 2d 1213 (Cal. Ct. App. 1998)
39. See, e.g., Bidna v. Rosen, 19 Cal. App. 4th 27 (Cal. Ct. App. 1993)(malicious prosecution action for bringing countless meritless modification of custody proceeding must be dismissed because relief can be granted by the divorce court); Askew, 28 Cal. Rptr. 2d at 284 (alternatively holding that to allow a tort cause of action would interfere with the ability of the divorce court to divide the community property).
40. It follows from the Dale opinion that other torts could be the subject of an independent lawsuit if there is no proceeding pending in the dissolution action. See Sosnick v. Sosnick, 84 Cal. Rptr. 700 (Cal. Ct. App. 1999)(battery claims can be brought independently after the dissolution proceeding has ended)
41. 975 S.W.2d 584 (Tex. 1998).
42. See Head v. Head, 759 F.2d 1172 (4th Cir. 1985); McHugh v. McHugh, 676 F. Supp. 856 (N.D. Ill. 1988).
43. 896 F.2d 975 (5th Cir. 1990).
44. It is possible that an exploration of state RICO laws may produce a different result. But see Laporte v. Laporte, 621 A.2d 186 (R.I. 1993) (husband's willful concealment of marital assets does not give rise to a state RICO claim).
45. 115 F.3d 94 (1st Cir. 1997)
46. 68 Cal. Rptr. 2d 324 (Cal. Ct. App. 1997).
47. Id. at 326 n.2.
48. Representative cases are Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989); Kathleen K. v. Robert B., 150 Cal. App. 3d 992 (Cal. Ct. App. 1984); Gabriel v. Tripp, 576 So. 2d 404 (Fla. App. 1991); Long v. Adams, 333 S.E.2d 852 (Ga. App. 1985); B.N. v. K.K., 538 A.2d 1175 (Md. 1988); R.A.P. v. B.J.P., 428 N.W.2d 103 (Minn. App. 1988); S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. 1986); G.L. v. M.L., 550 A.2d 525 (N.J. Super. 1988); J.Z.M. v. S.M.M., 545 A.2d 249 (N.J. Super. 1988); Maharam v. Maharam, 510 N.Y.S.2d 104 (App.Div. 1986).
49. Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. 49. Long v. Long, 611 A.2d 620 (N.H. 1992).
50. Stone v. Wall, 734 So. 2d 1038 (Fla. 1999).
51. 409 N.E.2d 717 (Mass. 1980).
52. See also Klein v. Klein, 376 P.2d 70 (Cal. 1962) (slip and fall on slippery deck of pleasure boat); Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978) (husband negligently amputated part of wife's finger with hedge clipper and husband had used a flammable glue too close to gas stove setting wife aflame); Garrity v. Garrity, 504 N.E.2d 617 (Mass. 1987) (violation of fiduciary responsibility); Slansky v. Slansky, 553 A.2d 152 (Vt. 1988) (conversion); Young v. Young, 709 P.2d 1254 (Wyo. 1985) (husband withheld oil and gas royalties required to be paid wife under divorce decree, he may be liable for conversion); Nogueira v. Nogueira, 444 N.E.2d 940 (Mass. 1983) (husband's complaint against wife for writing his employer and others that he has a drinking and psychological problem states claim for defamation and intentional infliction of mental distress).
53. I spent several years as chair of the Family Law Section's Marital Torts Committee and have lectured all over the United States on the subject. There seemed to be one constant response from the attorneys who were members of the committee and who attended the continuing legal education programs: they were fascinated by the topic but had not filed a tort case, nor did they know of anyone who had done so. Discussion with lawyers involved in a number of the reported appellate cases revealed that most of the awarded damages had yet to be collected.
54. See, e.g., D.C. v. J.C., 802 S.W.2d 535 (Mo.App. 1991). The wife had contacted papilloma virus also known as genital warts. The court awarded periodic alimony as well as alimony in gross. The periodic alimony was linked to the wife's future medical expenses in treating the disease. The husband claimed there was insufficient evidence to indicate that he caused the venereal disease. The court responded that it did not matter. It was a "condition she contracted during marriage."