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Bozman v. Bozman9/4/2002
ne of inter-spousal immunity with respect to all intentional torts. Thus, in Bender v. Bender, 57 Md. App. 593, 600, cert. denied, 300 Md. 152 (1984), we described the issue before us as "whether the earlier case of Lusby [ ], is to be restricted to the facts of that case . . . , or whether Lusby serves as a beacon for Boblitz . . . ." We reasoned in Bender that "the Court's primary focus in Lusby was its recognition that henceforth in Maryland intentional torts would form a basis for inter-spousal suits at law." Id. at 601. We commented that the Court's use of the word "outrageous" in Lusby was a mere adjective that appropriately described the offense, "but the Court was sanctioning claims for intentional torts and not claims limited to outrageous torts." Id. at 601-02. We therefore upheld the trial court's finding that an intentional tort was committed under circumstances "which render legally inappropriate the interposition of inter-spousal immunity . . . ." Id. at 602.
Our decision in Bender led us, in Doe v. Doe, 122 Md. App. 295, 309 (1998), rev'd, 358 Md. 113 (2000), to declare that neither the doctrine of inter-spousal immunity nor public policy barred the husband's causes of action for fraud and intentional infliction of emotional distress. We followed our opinion in Bender to say in Doe that Lusby had abolished the defense of inter-spousal immunity with respect to all intentional torts. Id. at 322-23.
Our opinion in Doe, however, was reversed by the Court of Appeals. Doe v. Doe, 358 Md. 113 (2000). The Court made clear in that case that we were wrong in both Bender and Doe to conclude that Lusby had abrogated inter-spousal immunity for all intentional torts. Id. at 120. In so doing, the Court reaffirmed its "narrow" holding of Lusby that, "under the common law of this State, inter-spousal immunity ha never been applied where the conduct alleged was `outrageous' and intentional." Id. at 121; Lusby, 283 Md. at 358.
As the Court of Appeals itself has done, Boblitz, 296 Md. at 273, we question the continued viability of this antiquated doctrine. The doctrine runs counter to present-day norms. Further, its application often arises in instances when the parties' marriage is near dissolution or, at the very least, is foundering on the shoals of anger, distrust, or discontent. This leaves little doubt that the doctrine's oft-cited rationale of preserving the unity and sanctity of the marital unit simply does not pertain.
We recognize that the doctrine may serve the practical purpose of preventing spouses from instituting suits in tort as a means of gaining an advantage in pending divorce proceedings or for some other improper reason. We remain unconvinced, however, that retention of this doctrine best reflects the will of the people of this State as evidenced by, among other reforms, enactment of the Equal Rights Amendment in 1972.
Regardless, we are bound to follow the dictates of the law as it presently exists in Maryland. The law is that inter-spousal immunity may be raised as a defense to a viable cause of action alleging an intentional tort so long as the tort is not "outrageous," as that term is used in Lusby and Doe. It is this issue that lies at the heart of this case, to which we now turn.
This Case
I.
Appellant asserts that appellee's conduct in filing false criminal charges against him was sufficiently outrageous as to foreclose her from the shield that inter-spousal immunity historically has provided. He points to the facts that appellee's actions resulted in his arrest and incarceration on five occasions and caused him to have to wear an ankle bracelet for nearly eight months. Given the posture
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