THE INTERSPOUSAL TORT SUIT: A NEW AVENUE OF RECOVERY FOR MARITAL MISCONDUCT
© 1995 National Legal Research Group, Inc.
In the wake of the widespread abrogation of the doctrine of interspousal tort immunity, see generally Annot., "Interspousal Tort Immunity Modern Status," 92 A.L.R.3d 901 (1979 & Supp. 1995), many divorcing or divorced spouses have been asserting tort claims against each other for misconduct that occurred during the marriage. By this date, a significant body of case law involving interspousal torts has been generated.
Such suits present a number of threshold issues, including timeliness of filing, joinder with divorce suits, and/or preclusion by prior divorce litigation.
This article does not address these preliminary issues, but rather focuses on the issue of liability itself. Through a survey of recent cases, we will identify the tort theories most commonly asserted between spouses, examine the facts offered in support, and discuss the decisions on the merits. As will be seen, a significant number of cases have resulted in recovery by the plaintiff. Modern family law practitioners thus would do well to develop a working familiarity with these tort theories and their potential use in matrimonial litigation.
I. ASSAULT AND BATTERY
The traditional torts of assault and battery are frequently asserted in interspousal suits. Although these torts are usually considered together, there is nevertheless a clear distinction between them. To prove assault, a plaintiff must demonstrate that: (1) the defendant placed the plaintiff in fear of harmful contact; (2) the feared contact was imminent; and (3) the defendant intended that the plaintiff fear the imminent harmful contact. Restatement (Second) of Torts 21(1) (1965). To prove battery, a plaintiff must show that: (1) the defendant acted with intent to cause a harmful or offensive contact with the plaintiff, or an imminent apprehension of such a contact; and (2) a harmful contact with the plaintiff directly or indirectly resulted. Id. 13.
In a few reported cases, damage awards for assault and/or battery have been affirmed on appeal. For example, in Catlett v. Catlett, 193 Ga. App. 399, 388 S.E.2d 14 (1989), a divorced wife sued her former husband for the intentional torts of assault, battery, and false imprisonment. The husband admitted that on one occasion he had struck the wife and physically prevented her from leaving his apartment until a neighbor intervened. At another time, he had dragged her down a stairway by her feet because he thought it was "comical." 388 S.E.2d at 15. The opinion does not specify whether these events occurred during or after the parties' marriage. An award of $10,000 in compensatory and $20,000 in punitive damages was affirmed by the Georgia Court of Appeals.
In Palmer v. Palmer, 169 Ill. App. 3d 828, 523 N.E.2d 1316 (1988), a battery action, a divorced wife recovered damages for injuries inflicted by her former husband during the parties' marriage. She claimed that one day as she was riding in a vehicle driven by the husband, she revealed the fact of her infidelity to him. He became very angry and slapped her. He then drove to his mother's gravesite and made her confess the affair. After the parties resumed riding in the car, the husband caused the passenger's side of the vehicle to collide with a bridge abutment. As a result, the wife suffered a broken neck and other serious injuries. A jury awarded $150,000 in compensatory and $5,000 in punitive damages. Pursuant to the parties' stipulation, the trial court entered judgment for $115,000 in compensatory damages. The Illinois Appellate Court affirmed, believing that ample evidence supported the jury's finding that the husband's collision with the bridge abutment was intentional.
In Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909 (1987), a divorced husband sued his former wife for "intentional tort," seeking damages for injuries he sustained when she shot him in the face. While the parties were still married, they had a heated argument in their home. The husband broke off the argument and went to a neighbor's house, but the wife followed him, wielding the family's .38 caliber revolver. The parties struggled, and the gun discharged in the husband's face. He suffered severe and permanent facial injury, as well as extensive scarring. The New Hampshire Supreme Court affirmed an award of $343,000 in compensatory damages. Noting that punitive damages are not permitted under New Hampshire law, the court stated that the case was a proper one for liberal compensatory damages.
Not infrequently, batteries occur during the pendency of divorce proceedings. In Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993), a wife sued her husband for the torts of assault, battery, and outrage as a result of a beating he inflicted upon her after she filed a complaint for divorce. In violation of several restraining orders, the husband had gone to the wife's home and waited for her return. When she stepped out of her car, he knocked her to the ground and beat her severely. She sustained serious injuries: shattered bones in her face, broken ribs, a hematoma to the back of her head, multiple contusions, abrasions, and lacerations, as well as injuries to her leg and foot. She underwent multiple reconstructive surgeries. The Arkansas Supreme Court affirmed an award of $20,000 in compensatory and $350,000 in punitive damages, rejecting the husband's argument that the punitive award was excessive. See also Sumrall v. Sumrall, 612 So. 2d 1010 (La. Ct. App. 1993) (wife recovered $11,910 in special and $30,000 in general damages for beating inflicted by husband during pendency of parties' divorce); Taylor v. Taylor, 560 So. 2d 768 (Ala. Civ. App. 1990) (wife recovered $5,000 for battery by husband during pendency of parties' divorce).
Cause of Action Stated
A number of appellate decisions have either expressly or implicitly held that a cause of action for assault and/or battery was adequately stated. In Neal v. Neal, 125 Idaho 617, 873 P.2d 871 (1994), the Idaho Supreme Court expressly held that a wife's battery claim, asserted in the parties' divorce action, was sufficiently stated. The wife alleged that several acts of battery had occurred when the husband had sexual relations with her without informing her that he was currently having an extramarital affair. Even though she had consented to the sexual acts, she would not have consented had she known of his affair. Thus, she argued, the husband's failure to disclose the affair rendered her consent ineffective. The trial court dismissed the claim by summary judgment. Reversing, the Idaho Supreme Court held that the wife had raised a material fact issue concerning her consent to the alleged acts of battery. A rule that consent must be measured from the facts known to the parties at the time of the battery would effectively destroy any exception for consent induced by fraud or deceit. The court believed that it was entirely possible that the wife might have engaged in a sexual act based upon a substantial mistake concerning the nature of the contact or the harm to be expected from it.
The Michigan Court of Appeals' decision in McCoy v. Cooke, 165 Mich. App. 662, 419 N.W.2d 419 (1988), contains an implicit holding that intentional tort claims were adequately stated. The wife in the case sought damages from her former husband for the repeated physical abuse she suffered during the marriage. She alleged the torts of assault, battery, and intentional infliction of emotional distress. The trial court dismissed the complaint, believing that the suit was precluded by the wife's failure to assert her tort claims in the divorce action. The Michigan Court of Appeals reversed, holding that the suit was not precluded. Further, the doctrine of collateral estoppel prevented relitigation of the issue of whether the batteries in fact had occurred. The husband could raise as an affirmative defense, however, the issue of whether and to what extent the divorce judgment had already compensated the plaintiff for any injuries she had suffered as a result of the batteries. Accord Noble v. Noble, 761 P.2d 1369 (Utah 1988) (factual finding in prior divorce action precluded husband from relitigating in subsequent tort suit the issue of whether he intentionally shot wife); see also Simmons v. Simmons, 773 P.2d 602 (Colo. Ct. App. 1989) (award of $15,000 in compensatory and $100,000 in punitive damages to wife for assault and battery was reversed and remanded for new trial because of prejudicial error concerning validity of parties' antenuptial agreement).
Similarly, in Stuart v. Stuart, 143 Wis. 2d 377, 421 N.W.2d 505 (1988), a divorced wife sued her former husband for assault, battery, and intentional infliction of emotional distress arising from conduct occurring during the parties' marriage. The precise nature of the husband's conduct is not described in the opinion. Reversing the trial court's dismissal of the action, the Wisconsin Supreme Court held that the suit was not precluded by the wife's failure to assert her tort claims in the divorce action. The court also concluded that the suit "had a reasonable basis in the law." 421 N.W.2d at 509.
II. BATTERED WOMAN'S SYNDROME
A New Jersey trial court recently created a new cause of action for a physically abused spouse the tort of "battered woman's syndrome." Finding the traditional torts of assault and battery insufficient to redress the harms suffered as a result of recurring domestic violence, the New Jersey Superior Court in Cusseaux v. Pickett, 279 N.J. Super. 335, 652 A.2d 789 (Law Div. 1995), fashioned a new tort from prior case law and the policies of New Jersey's Prevention of Domestic Violence Act.
To state a cause of action for battered woman's syndrome, a plaintiff must show: (1) involvement in a marital or marital-like intimate relationship; (2) physical or psychological abuse perpetrated by the dominant partner in the relationship over an extended period of time; (3) that the abuse caused recurring physical or psychological injury over the course of the relationship; and (4) a past or present inability to take any action to improve or alter the situation unilaterally. The court explained that in order to be classified as a battered woman, the victim must go through the battering cycle at least twice. Further, because the syndrome is the result of a continuing pattern of abuse that causes continuing injury, it constitutes a continuing tort. 652 A.2d at 793-94.
In a different case, Giovine v. Giovine, 21 Fam. L. Rep. (BNA) 1513 (N.J. Super. Ct. App. Div. Aug. 11, 1995), the Appellate Division of the New Jersey Superior Court agreed with the policy of Cusseaux v. Pickett but disapproved the creation of a new tort called "battered woman's syndrome." The court believed that the syndrome was more correctly understood as a medical condition resulting from a pattern of physical and/or psychological misconduct that itself constituted the tort. The court agreed with Cusseaux, however, that the pattern of misconduct should be treated as a continuing tort rather than as a series of separate tortious acts, provided that the existence of battered woman's syndrome in a given case could be established by expert testimony. In the absence of such testimony, each act of abuse would constitute a separate tort subject to the two-year statute of limitations. As the court explained:
Cusseaux recognized, for the first time in this state, that a woman who suffers from the medically diagnosable condition of battered woman's syndrome is entitled to seek compensation for the physical and emotional injuries attributable to the abusive conduct during the course of the relationship. We agree with the premise in Cusseaux and conclude that a wife diagnosed with battered woman's syndrome should be permitted to sue her spouse in tort for the physical and emotional injuries sustained by continuous acts of battering during the course of the marriage, provided there is medical, psychiatric, or psychological expert testimony establishing that the wife was caused to have an "inability to take any action to improve or alter the situation unilaterally." In the absence of expert proof, the wife cannot be deemed to be suffering from battered woman's syndrome, and each act of abuse during the marriage would constitute a separate and distinct cause of action in tort, subject to the statute of limitations. Laughlin v. Breaux, 515 So. 2d 480 (La. Ct. App. 1987).21 Fam. L. Rep. (BNA) at 1514 (emphasis in original). Thus, the court concluded, the plaintiff's tort claims, asserted in her divorce suit, should not have been dismissed as untimely. The plaintiff should be permitted to show that the husband's tortious conduct gave rise to the medical condition of battered woman's syndrome in her case.
III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Another claim frequently asserted between spouses is the tort of intentional infliction of emotional distress. This tort is set forth at 46(1) of the Restatement (Second) of Torts, which provides:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.Today, most states have adopted 46(1) or a similar formulation of this tort.
In a few reported cases, damage awards for this tort have been affirmed on appeal. For example, in Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993), a divorced wife brought a tort action against her former husband, seeking to recover for emotional distress intentionally inflicted during the parties' marriage. She alleged a pattern of physical and emotional abuse, ranging from rape and assault to destruction of property, accusations of infidelity, and threats to burn down the marital home or otherwise cause harm. She presented expert testimony that she suffered from posttraumatic stress syndrome. The jury awarded her $75,000 in compensatory and $40,000 in punitive damages. On appeal, the Maine Supreme Judicial Court affirmed the award. The court noted that the events leading to most divorces involve some degree of emotional distress, and thus special caution is required in emotional distress actions between divorcing spouses. Nevertheless, the jury's award in this case was supported by the evidence.
In Massey v. Massey, 807 S.W.2d 391 (Tex. Ct. App. 1991), writ denied, 867 S.W.2d 766 (Tex. 1993), the wife asserted an intentional-infliction-of-emotional-distress claim in the parties' divorce action. She alleged a pattern of psychologically abusive conduct by the husband over the course of the parties' 22-year marriage. His conduct included constant criticism, belittling, and blaming, often in the presence of others, as well as temper tantrums involving the destruction of property, and threats of physical violence. The husband also retained tight control over the family finances, doling out small amounts of cash to the wife for groceries and household supplies. At trial, the husband conceded that he often used threats to get his way both in business and in his marriage, and that the threats often worked. The jury awarded the wife $362,000 in compensatory damages. On appeal, the husband argued that his conduct did not rise to the level of outrageousness necessary for recovery on an emotional distress claim. Noting that under Texas law the issue of outrageousness is one of fact for the jury, the court held that the evidence supported the jury's finding.
In other cases, courts have held that a claim of intentional infliction of emotional distress was sufficiently stated. In Vance v. Chandler, 231 Ill. App. 3d 747, 597 N.E.2d 233 (1992), a divorced wife brought a tort action for intentional infliction of emotional distress against her former husband, who had hired someone to kill her during the parties' divorce proceedings. Unknown to the husband, the "hired gun" was actually an undercover police officer. The wife spent several months in hiding, and even after the husband's arrest and conviction she remained fearful for her life. The trial court dismissed the complaint for failure to state a claim. On appeal by the wife, the husband argued that although his conduct may have been outrageous, he had not intended to cause the wife emotional distress, and thus the second element of the tort was lacking. The Illinois Appellate Court disagreed, believing that the husband's reckless disregard for the possibility that the wife would learn of the plan established the second element of the tort. The husband's numerous dealings with third parties clearly enhanced the risk that the wife would ultimately learn of the plot.
In Whelan v. Whelan, 41 Conn. Supp. 519, 588 A.2d 251 (Super. Ct. 1991), a divorced wife sued her former husband for intentional infliction of emotional distress, based on the husband's having falsely represented to her during the marriage that he had been diagnosed with AIDS. The husband had also asked her to move with their son back to her original home in Canada so that they would not see him suffer and die. The wife did go to Canada, and she experienced severe emotional distress concerning the husband's impending death, her own exposure to the virus, and the future of the parties' son if she should also die. The Connecticut Superior Court held that the wife had adequately stated a claim. Even in the context of divorce litigation, the husband's conduct was outrageous, and the wife's emotional distress was above and beyond that which usually attends divorce.
The Texas Supreme Court ordered a new trial on a divorcing wife's intentional-infliction-of-emotional distress claim in Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993). The wife alleged that her husband had coerced her into engaging in sadomasochistic sexual acts during the marriage, even though he knew that she feared and detested such acts. The trial court found that the husband had emotionally coerced the wife into such acts on an ongoing basis and awarded the wife $15,000 in damages. The supreme court first clarified the elements of the tort of intentional infliction of emotional distress, expressly adopting 46 of the Restatement (Second) of Torts. The court then remanded the tort claim for a new trial, as the court below had made no findings concerning the outrageousness of the husband's conduct or the severity of the wife's emotional distress. Implicit in this disposition is a holding that the wife had adequately stated a claim.
In Weisman v. Weisman, 108 A.D.2d 852, 485 N.Y.S.2d 568 (1985), a New York court allowed a counterclaim by a divorced wife for intentional infliction of emotional distress against her former husband, who had sued her for malicious prosecution. The wife's allegations of a pattern of vindictive conduct by the husband, including destruction of the windows of the house in which she and the parties' children were staying during severely cold weather, adequately stated a claim.
In a somewhat unusual case, Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418 (1991), the West Virginia Supreme Court held that a minor child adequately stated a claim of intentional infliction of emotional distress against his mother's former husband based on the husband's having assaulted his mother in his presence during the marriage. The court believed that a close family member should be permitted to recover damages for emotional distress arising from outrageous conduct inflicted on another family member by a third party.
Claim Not Stated
In many cases, however, courts have concluded that the alleged misconduct failed to meet the degree of outrageousness necessary for this tort.
Extramarital Affairs. In Ruprecht v. Ruprecht, 252 N.J. Super. 230, 599 A.2d 604 (Ch. Div. 1991), a divorcing husband asserted a claim of intentional infliction of emotional distress based on the wife's 11-year extramarital affair. The wife had repeatedly denied involvement in an affair when confronted with the husband's suspicions. Noting that under 46 of the Restatement the issue of outrageousness is for the court to decide, the court ruled that the conduct alleged by the husband was not sufficiently outrageous to permit recovery for this tort. Although the court did not condone the wife's conduct, it did not believe that her conduct was so extreme as to be utterly intolerable in a civilized society. Accord Whittington v. Whittington, 766 S.W.2d 73 (Ky. Ct. App. 1989) (divorcing wife's allegations of husband's adultery did not state claim of intentional infliction of emotional distress).
Allegations that a husband engaged in a homosexual affair were held insufficient to support a divorcing wife's intentional-infliction-of-emotional-distress claim in Doe v. Doe, 136 Misc. 2d 1015, 519 N.Y.S.2d 595 (Sup. Ct. 1987), even though the wife claimed that the affair placed her at greater risk of contracting AIDS. The court held that the claim could not be maintained absent an allegation that either the wife or the husband had tested positive for the HIV virus.
Pattern of Abusive Conduct. In Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320 (Ct. App. 1991), the New Mexico Court of Appeals reversed a divorcing wife's recovery of damages for intentional infliction of emotional distress by the husband. The wife had alleged a 10-year course of conduct by the husband that included several assaults and batteries, numerous insults and outbursts in the presence of others, one instance of locking the wife out of the house overnight in cold weather, and a general refusal to engage in sexual relations. Cautioning that the tort should have a very limited scope in the marital context, the court of appeals held that the husband's conduct was not sufficiently outrageous to permit recovery. Contrast Massey v. Massey, supra (wife recovered damages based on similar conduct by husband).
Similarly, in Weiner v. Weiner, 84 A.D.2d 814, 444 N.Y.S.2d 130 (1981), a wife's allegations that the husband used loud and abusive language when addressing her, that he informed family and friends that he no longer loved her, and that he refused to pay family expenses, leaving the wife in difficult financial straits, were held insufficiently outrageous to support a claim of intentional infliction of emotional distress. The court believed that the wife's allegations reflected "garden-variety spousal disputes" best resolved by an action for divorce. 444 N.Y.S.2d at 131.
IV. NEGLIGENT INFLICTION OF SEXUALLY TRANSMITTED DISEASE
Another tort asserted between spouses with increasing frequency is negligence for the infliction of a sexually transmitted disease (STD). Although the claim is based on traditional negligence principles, the factual context is relatively new.
The Louisiana Supreme Court recently affirmed an award of $125,000 for this tort in Meany v. Meany, 639 So. 2d 229 (La. 1994). A divorced wife claimed that her former husband had transmitted to her during their marriage the herpes simplex virus type II (genital herpes). Noting that all states to consider the issue have held that a spouse may be liable to the other in tort for transmission of an STD, the court held that each spouse has a duty to use reasonable care to prevent the communication to the other spouse of harmful diseases, including STDs. Further, the wife in this case had presented sufficient evidence from which the jury could have concluded that the husband knew or should have known that he was subjecting the wife to the risk of venereal disease by sexual contact. See generally Annot., "Tortious Transmission of Venereal Disease," 40 A.L.R.4th 1089 (1985 & Supp. 1995).
At least one court has held that the transmission of the STD must have occurred during the marriage in order to be actionable. In Zysk v. Zysk, 239 Va. 32, 404 S.E.2d 721 (1990), the Virginia Supreme Court held that a divorced wife's negligence claim against her former husband was barred by her participation in the illegal act of fornication, which had occurred a few days prior to the couple's marriage. Because communication of the STD might have occurred at that time, the wife could not recover in tort for her injury.
This survey of recent cases involving interspousal tort claims has shown that both traditional and modern tort theories have been utilized by spouses seeking recovery for misconduct occurring during the marriage. In cases involving a pattern of domestic violence, theories of assault, battery, and intentional infliction of emotional distress are often successfully asserted. At least one state New Jersey has held that in a case involving recurring domestic abuse, the misconduct is deemed a continuing tort so long as the plaintiff proves with expert evidence that she suffers from battered woman's syndrome. This approach circumvents the problem of a very short limitations period for assault and battery that many battered women encounter.
In cases involving only one instance of domestic violence, the torts of assault, battery, and/or intentional infliction of emotional distress are asserted, often successfully, subject to the usual statutes of limitation. In cases not involving harmful physical contact, or a threat of such contact, the theory of intentional infliction of emotional distress is frequently advanced. Misconduct alleged in support of this theory ranges from a murder plot, Vance v. Chandler, supra, to psychological abuse, Massey v. Massey, supra, to physical deprivation, Weisman v. Weisman, supra, to adultery, Ruprecht v. Ruprecht, supra. Because many courts require a higher degree of outrageousness in marital tort cases than in other cases, many of these claims do not succeed. See, e.g., Hakkila v. Hakkila, supra.
When the injury is the communication of a sexually transmitted disease, the traditional tort of negligence is alleged. To date, all courts considering the issue have permitted negligence claims in this factual context.
In sum, this brief survey has shown that spouses across the country have recovered in tort for a wide range of marital misconduct. When faced with a case involving conduct that appears tortious, therefore, the family law practitioner should give careful consideration to a tort suit, or a tort claim asserted in a divorce action. In this age of heightened awareness of the problem of domestic violence, civil remedies may become increasingly available to injured spouses.
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