Chapter 26 - § 26.1 • MARITAL TORTS

• Jurisdiction: Colorado

§ 26.1 • MARITAL TORTS

§ 26.1.1—Historical Background

Historically, upon the consummation of a marriage, the legal identity of the wife was merged into the legal identity of the husband. Based on this merger, a legal fiction was created by the common law; the husband and wife were regarded as one person only (the husband). See 13 Rules of Common Law (n.p., n.d.), cited in Rains v. Rains, 46 P.2d 740, 741 (Colo. 1935). "The husband hath, by law, power and dominion over his wife, and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner." See Bacon, Abridgment, Title Baron and Femme (n.p., n.d.), cited in Rains, 46 P.2d at 741.

Because of this unity, suit for a marital tort was a functional impossibility, as the unity imposed a form of immunity. In any action, a wife could not sue a third party in her own name; to pursue an action, her husband was required to join the suit. As few husbands (either historically or presently) would be willing to initiate a tort suit against themselves, the legal fiction functionally eliminated the possibility of proceeding forward in tort for the wife. Likewise, and conversely, a husband could not sue his wife, lest he subject himself to some liability. Only when this legal fiction was eradicated could a marital tort practically exist.¹

In Colorado, this common law fiction began to break down in approximately 1877, following the decision in Wells v. Caywood, 3 Colo. 487 (1877). The Wells court held that "[t]he wife in Colorado is the wife under our statutes, and not the wife at common law, and by our statutes must her rights be determined." Id. at 492. Further erosion of the concept of husband and wife as a single legal entity came in 1917, with the court's decision in Whyman v. Johnson, 163 P. 76 (1917). Whyman expanded on Wells by stating that the common law fiction of one legal person, composed of husband and wife, no longer existed. Id. at 77. Consequently, husband and wife became separate legal entities.

However, simply eliminating that legal fiction was not in and of itself sufficient to grant a spouse access to relief in tort. While spouses now constituted separate legal entities in law, the question remained as to either spouse's standing to bring suit against the other. In 1935, the Colorado Supreme Court decided Rains, 46 P.2d 740, which helped shed light on the question. In Rains, the wife was allowed to sue her husband for injuries sustained in an automobile accident caused by his negligence. The trial court entered judgment in favor of the wife, and the husband appealed. The Colorado Supreme Court stated that "[a]s the nonliability of the husband to the wife was founded upon the common law fiction that the husband and wife were one, it would seem to follow that where that fiction is abolished, the nonliability does not survive. When the foundation is removed, the superstructure falls." Id. at 742 (emphasis added). Following Rains, each spouse in Colorado became an independent legal entity, with standing for each to initiate suit against the other.

§ 26.1.2—The Modern Approach

While the ability to sue a spouse was specifically permitted by Rains, a number of other issues continue to remain unclear. For the practitioner, perhaps the most important inquiry is determining the arena in which it is proper to bring a marital tort action, and for what. Is the appropriate remedy found in an independent civil action, or within a dissolution proceeding? While some conduct that gives rise to marital tort actions may also give rise to criminal liability, because criminal charges are brought by the state and not the spouse, the concerns raised in this chapter are not relevant to criminal charges. However, some criminal statutes have previously limited avenues of civil recovery.² Courts have attempted to remedy these jurisdictional and tactical questions with varying degrees of success.

§ 26.1.3—Interspousal Immunity

Much of the discussion below relates to the concept of "interspousal immunity," and whether that immunity can bar a claim by one spouse against the other. Interspousal immunity is based upon the ancient common law doctrine founded on the theory of the legal unity of husband and wife explained above, and prohibited (or prohibits) a spouse from bringing suit against the other. 1 Blackstone, Commentaries 433. While many of the cases below cite instances in which interspousal immunity has been abolished, abrogated, or otherwise reduced, the important takeaway for practitioners in this state is that Colorado does not recognize the interspousal immunity doctrine — the immunity does not exist in this state. However, parental immunity is recognized in Colorado, and is discussed in § 26.2.2.

Some states have chosen to address the confusion surrounding the interspousal immunity doctrine by enacting legislation that specifically states that this doctrine has been eliminated. See, e.g., Fla. Stat. § 741.235 (2012); Haw. Rev. Stat. § 572-28 (2012); Mont. Code Ann. § 40-2-109 (2013); R.I. Gen. Laws § 15-4-17 (2011); Va. Code Ann. § 8.01-220.1 (2012). For example, the State of Florida has passed legislation stating the following: "The common-law doctrine of interspousal tort immunity is hereby abrogated with regard to the intentional tort of battery, and the ability of a person to sue another person for the intentional tort of battery shall not be affected by any marital relationship between the persons." Fla. Stat. § 741.235 (2012). Colorado does not recognize the interspousal immunity doctrine.

§ 26.1.4—Mandatory Joinder

The first modern case in Colorado to address the proper management of the marital tort issue was Simmons v. Simmons, 773 P.2d 602 (Colo. App. 1988). In Simmons, the wife filed a civil complaint against her husband, alleging that he committed a number of forms of physical abuse. She also alleged that during the twilight of their marriage, her husband intentionally caused her to suffer emotional distress by his outrageous conduct. A dissolution of marriage proceeding was finalized prior to a judgment in the civil case. The initial issue raised in Simmons was whether a spouse could pursue an independent civil action in tort. The Colorado Court of Appeals, citing Rains, answered in the affirmative. Id. at 604.

However, merely deciding that a spouse could pursue a remedy in tort did not end the inquiry. The remaining issues before the court were (1) whether the wife was required under C.R.C.P. 13 (which sets out the requirements for mandatory and permissive counterclaims) to present her tort claim...