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Bozman v. Bozman9/4/2002
olating 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 inter-spousal 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 inter-spousal 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 (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 inter-spousal 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 inter-spousal 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 inter-spousal immunity that underlies the issues presented on appeal.
Inter-spousal Immunity
The common law doctrine of inter-spousal immunity was predicated on the concept of a husband and wife as one legal unit. Thompson v. Thompson, 218 U.S. 611, 614 (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. 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. This legal fiction of husband and wife as one identity barred suits between spouses. Id. at 615.
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 (2000), and cases cited therein. The Court of
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