November 2010 Archives

November 26, 2010

Confidential Relationship and Tort Liability Involving Divorcing Spouses

A prior posting, discussed a developing area of law for Maryland Divorce Lawyers resulting from the abolition of interspousal tort immunity in the 2003 opinion in Bozman vs. Bozman. In the 2010 opinion in Lasater vs. Guttman , various theories of tort liability (conversion, intentional infliction of emotional distress and fraud and breach of fiduciary duty) raised by wife were rejected on summary judgment and upheld on appeal. Perhaps the most instructive section of the opinion relates to wife's claim based upon husband's depletion of the parties' marital assets over decades while she occupied a position of trust and confidence in him.

The court distinguished the duties arising from a true fiduciary and those resulting from a confidential relationship. Absent an agreement that actually establishes a fiduciary relationship, for example creation of a partnership, husband and wife will not have a fiduciary relationship. On the other hand, a confidential relationship may be proven to exist, although it is not presumed. The proponent of a confidential relationship must show that he or she was justified in assuming that the other spouse would not act in a manner inconsistent with his or her welfare. Among the factors to be considered are the age, mental condition, education, business experience, state of health and degree of dependence of the spouse in question.

A confidential relationship may be used as an entree to setting aside a particular transaction such as an oppressive separation agreement. However Lasater vs. Guttman makes it clear that it cannot be used to vindicate a history of financial wrongs occurring during the course of a marriage. Such wrong doing will not become an independent cause of action. It will remain only one of many factors subsumed into the equity courts decisions about marital property and spousal support.

November 20, 2010

Tort Liability Involving Divorcing Spouses

Maryland Divorce Lawyers have received some important guidance from a recent opinion issued by Maryland's Court of Special Appeals. The opinion in Lasater vs. Guttman denied wife's far reaching claims arising from a divorce ending a chaotic marriage between two high powered Montgomery County Lawyers. The court upheld the trial court's summary judgment on wife's claim for conversion, intentional infliction of emotional harm, fraud and breach of fiduciary duty.

The need for clarification follows the 2004 decision by the Court of Appeals abolishing the doctrine of interspousal immunity in Maryland in Bozman vs. Bozman. It is one thing to allow an individual injured in an auto accident to sue his or her spouse for negligent driving. It is quite another to litigate alleged economic impropriety occurring over decades.

The court's bottom line is that the marital relationship does not automatically give rise to any duties that are actionable in tort. Any such claims must be consistent with traditional tort law. Lasater vs. Guttman will be particularly helpful in analyzing possible claims based on a breach of fiduciary duty or confidential relationship. This is the topic of another posting.

November 4, 2010

Protecting Privacy in Domestic Violence and Peace Order Cases

With the advent of almost universal access to the internet, domestic violence and peace order cases are readily accessed using the Maryland Judiciary Case Search. In the 2010 session of the Maryland General Assembly, advocates on all sides of the issue supported new law that will shield some domestic violence cases from general public access. As a former member of the House of Delegates' Judiciary Committee and a Maryland Family Law attorney who frequently handles domestic violence cases, I applaud this measured change. The new law, that is designed to protect personal privacy in Domestic Violence and Peace order cases, took effect on October 1, 2010.

Shielding precludes access by the general public; it does not preclude access by victim service providers, law enforcement officers, states attorneys, employees of the local department of social services and attorneys who have represented either party in a proceeding.

A respondent who has obtained a dismissal or denial at any stage of the domestic violence case, may file a request that the case records be shielded if certain conditions are met. There must be no prior domestic violence or peace orders that have been issued in any proceeding between the parties. There must be no proceedings currently pending. The respondent must execute a release of any tort claims arising from the alleged incident. The petitioner may object.

If there is an objection, the court will hold a hearing at which the court will determine whether there is "good cause" to shield the records. This requires the court to balance the privacy of and potential for adverse consequences to respondent versus the potential risk of future harm and danger to the petitioner and the community. For a broader understanding of the law relating to domestic violence, please see some of my prior postings on this topic.